Volume 233 — South Western Reporter

Where a bank took a note secured by a chattel mortgage on a “Wheeland sawmill complete,” and thereafter the mortgagor gave another- bank a note secured by a chattel mortgage on a boiler, engine, and other machinery and equipment, which the first bank claimed were included in the mortgage of the mill, and the jury found, that the description used in the first mortgage did not include such articles, and that the second bank before taking its mortgage pursued a proper inquiry…

<p>Appeal from Harris County Court; Roy F. Campbell, Judge.</p> <p>Action by W. C. Roberts against C. M. Tuell and another. From judgment for plaintiff, the named defendant appeals.</p>

<p>1. Trial &wkey;35l (5) — Special interrogatory held properly refused, where covered by another Interrogatory submitted.</p> <p>In a railroad employé’s action for injuries from an explosion while attempting to start a gasoline engine, by pouring gasoline into an extinguished generator which was still hot,. it was not error to refuse to submit the question as to whether plaintiff was familiar with gasoline. and knew that it was liable to explode in coming in contact with hot metals; such question having been sufficiently submitted in one as to- whether he was ignorant of the danger attendant on a relighting of the generator in its then condition.</p> <p>2. Master and servant &wkey;>286(4l) — Negligence In failing to warn employe, injured by explosion of gasoline, held for jury.</p> <p>In an action by a roundhouse hostler, injured by an explosion while he was attempting to start a gasoline engine by pouring gasoline on a hot generator, evidence on the question of his ignorance of the danger and defendant’s failure to warn, held, sufficient to go to the jury.</p> <p>3. Master and servant &wkey;>!55(2) — Danger of attempting to start gasoline motor held not so open as to relieve master of duty to warn.</p> <p>In a railroad employé’s action for personal injuries sustained by the explosion of gasoline while he was attempting to start a motor by pouring gasoline on a hot generator, the danger held not so open and apparent as to relieve the master of the duty to warn.</p>

Error from McLennan County Court; Jas. P. Alexander, Judge. Action by U. S. Wrigbt and wife against W. K. Davidson and others. Judgment for plaintiffs, and defendants bring error.

In a suit to recover the possession of property in which defendants had conveyed a life estate to plaintiff, defended on the ground that following the execution of the written contract, it was agreed, in consideration of defendants’ collection of the rents for plaintiff, that plaintiff thereby renounced his right of possession, evidence held to justify the court in instructing a verdict for plaintiff. Appeal from District Court, Anderson County; John S. Prince, Judge.

M. Spann, Judge. Action by John Bostick against the Gulf, Colorado & Santa Fé Railway Company and Walker D. I-Iines, Director General of Railroads, in which John Barton Payne, as the successor to Walker D. Hines, was made a party. From a judgment for plaintiff against both defendants, they appeal. Reversed as to the Santa Fé Company, and action as to it dismissed, and reversed and remanded for a new trial as to John Barton Payne.

<p>Appeal from District Court, Jackson County ; John M. Green, Judge.</p> <p>Action by N. Strauss against J. R. Slone, From judgment of dismissal, plaintiff appeals.</p>

<p>Appeal from District Court, Runnels County; J. O. Woodward, Judge.</p> <p>Suit by Gus Noyes against the J. M. Rad-ford Grocery Company. From judgment for plaintiff, defendant appeals.</p>

<p>Boundaries <@==>41— Party producing evidence on issue is entitled to special charge thereon.</p> <p>Where, in a boundary dispute, there was evidence produced by a party in support of an issue by him as to a particular location, he was entitled to a special charge thereon in addition to the general charge.</p>

<p>1. Appeal and error ¡§=31217 — Executfbn obtained through processes issued out of court having original record.</p> <p>The execution of judgment at common law was obtained through processes issued out of. the court having the original record, and this is true in Texas procedure under Rev. St. art. 1646, relating to execution on judgments of Court of Civil Appeals.</p> <p>2. Appeal and error <@=31217 — County court proper place to institute proceedings for violation of agreement in proceedings on mandate from Court of Civil Appeals.</p> <p>When the Court of Civil Appeals affirmed judgment of the lower court appointing a guardian of a minor, it became the duty of the county court, under the mandate issued from the Court of Civil Appeals, to give effect to such .judgment, which required other proceedings in the county court, such as fixing the amount of the guardian’s bond, etc.; an agreement made between the guardian and another party filed in the county court and approved by the county judge, relative to the minor remaining in school until the end of her term, was a part of such subsequent proceedings, and if violation of such agreement subjects the parties violating it to a charge of contempt,'.the appropriate place to institute contempt proceedings against them is in the county court, and not in the Court of Civil Appeals.</p> <p>3. Appeal and error <§=31217 — Jurisdiction of appellate court does not end with its mandate.</p> <p>Rev. St. art. 1592, gives the Courts of Civil Appeals power to issue such writs as are necessary to enforce the jurisdiction of the court, and the jurisdiction of such a court does not end with the issuance of its mandate.</p> <p>4. Appeal and error <§=>1206 — Appellate court need not move where obstruction of execution of judgment is act of mere individual.</p> <p>There is no necessity for any procedure in the appellate court where the obstruction to the execution of the judgment of the lower court, affirmed by the appellate court, is the act of a mere individual, and is not caused by the refusal of the lower court to issue execution, etc.</p> <p>5. Judges <§=>45 — Judge held not disqualified by relation by “affinity” to litigant.</p> <p>The county court judge' whose daughter was the wife of a litigant’s son was not related by “affinity” to the litigant to disqualify him from sitting in the cause.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Affinity.]</p> <p>6. Judges <§=>19 — Litigant who consented to appointment of special judge cannot in contempt proceedings impeach such judge’s acts.</p> <p>A litigant in a guardianship matter, who by his agreement entered into with the other party and filed in the county court recognized the authority of a special judge to act in such case, cannot in contempt proceedings in the Court of Civil Appeals for violation of the</p> <p>agreement, impeach the acts of such special judge, though in fact the regular county court judge was not disqualified from relationship to the other litigant by affinity, and there was no need for the appointment of the special judge.</p> <p>Error from District Court, Floyd County.</p> <p>Proceedings between S. E. Williams, and</p> <p>I. J. Foster in the matter of the minor Alta Grace Williams. From the judgment, Williams brings error. Motion by J. J. Foster to have S. E. Williams and B. Frank Buie, Ms attorney, held in contempt of the Court of Civil Appeals.- Motion denied and proceedings dismissed.</p>

<p>I.Witnesses <@==>240(4) — Question held objectionable as leading.</p> <p>The question whether a written instrument embodied the terms of the agreement between the parties, being susceptible of a simple affirmative or negative answer, is leading.</p> <p>2. Appeal and error <@=>1048(3) — It is reversible error to permit a leading question on material issue over objection.</p> <p>It is reversible error to permit a leading question over objection on a controverted material issue.</p> <p>3. Witnesses <@=271 (1) — Questions designed to show that writing did not embody intention of parties not improper.</p> <p>Where plaintiff contended that a written instrument prepared by an attorney embodied the agreement between the parties and the attorney so testified, the exclusion of questions whereby the attorney was asked if certain portions of the written statement were not different from the oral agreement was improper.</p> <p>4. Witnesses <@=>255(5) — Original memoranda, and not itemized account, should be used to refresh memory.</p> <p>In an action for work done, an itemized account filed by plaintiff should not be used to refresh his memory where it was prepared by plaintiff’s counsel from memoranda furnished by plaintiff, who testified that the same was at his house; it not appearing where Ms house was or that the memoranda was lost.</p> <p>5. ¡Mines and minerals <@=>113 — Provision in contract for operation of lease allowing sale within 90 days held not to prevent acquisition of lien.</p> <p>A provision in a contract with lessee for the operation of an oil lease allowing sale of the lease by lessee within 90 days does not prevent acquisition of a mechanic’s lien on the lease, particularly where it does not appear that the property was sold within the 90-day period.</p> <p>6. Escrows <@=>13 — Deed delivered in escrow relates back.</p> <p>Where a deed is delivered in escrow, and the terms of the escrow are afterwards complied with, it relates back to the date of execution and conveys title from that time.</p>

<p>Appeal from Houston County Court; Nat Patton, Judge.</p> <p>Suit by the Houston County Oil Mill & Manufacturing Company against the Electric Gin Company, and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Harris County ; Ewipg Boyd, Judge.</p> <p>Action by R. B. Hemphill against Joe Romano and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Brazoria County; M. S. Munson, Judge.</p> <p>Action by Minnie Mills against tbe Lum-mus Cotton Gin Sales Company. From a judgment overruling defendant’s plea of privilege, it appeals.</p>

<p>1. Landlord and tenant <§»199!/2 — Closing of bakery by authorities for bad sanitary conditions held not to excuse nonpayment of rent.</p> <p>Where tenant’s bakery was closed by government military authorities, because of bad sewerage and water connections, and bad ventilation, the tenant is not released from paying rent, unless he proved that the order closing the bakery was permanent, and not temporary, and condition on improving the bad conditions, and that to put the place in repair would have involved a prohibitive expense to him.</p> <p>2. Landlord and tenant <@^>152(4) — Lease held to require tenant to abate a nuisance at his own expense.</p> <p>Where a lease provided that the lessee should execute and fulfill all orders and requirements imposed by the board of health, sanitary, and police departments for the correction and abatement of nuisances at his own ex- - pense, the spirit of this-clause required that the tenant should at his own expense abate the nuisance of bad ventilation and bad water and sewer connections, on account of which his bakery was closed by the federal military authorities.</p> <p>3. Landlord and tenant ©=>170(2) — Failure of tenant to notify landlord of nuisance releases landlord from obligation to abate nuisance..</p> <p>Where the landlord is under a duty to make changes. to abate a nuisance caused by bad sewerage connections, bad water connections, and bad ventilation, failure of the tenant to notify the landlord of the premises having been closed by the government excuses the landlord for failure to abate the nuisance.</p> <p>4. Landlord and tenant <®=p230(3) — Claim of tenant for reimbursement on account of use of his light meter by other tenants held not sufficiently pleaded.</p> <p>In an action for rent, the answer alleged that the lessors represented to defendant that separate electrical meters were provided for the several tenants, and that, relying on that fact, he paid the light bills of other tenants; that on discovery of the mistake he notified the lessors, and requested them to protect him. There was no allegation that the alleged representations of the lessors as to separate meters were untrue, or that the lessors promised to reimburse the tenant. Bold, that the answer was insufficient to warrant recovery by way of counterclaim.</p>

Action by Jacob C. Baldwin and wife against W. L. Baldwin and others. From a judgment sustaining a plea of privilege of the defendant J. T. Trull, plaintiffs appeal.

<p>1. Deeds <@=I29(4) — Held to convey life estate with remainder to children.</p> <p>A deed conveying land to grantor’s daughter and her children, to have and to hold to the daughter for her sole use during her natural life, and at her death to the issue of her body forever, gives to the daughter only a lifé estate, with remainder in fee to her children.</p> <p>2. Trusts <©=3191 (2) — Deed held not to authorize trustee therein appointed to sell land.</p> <p>A deed appointing the husband of a life tenant as guardian or trustee of the property conveyed, to use it and its proceeds for the benefit of the life tenant and the issue of her body, does not authorize the trustee to sell the property, the expression authorizing the use of the proceeds applying only to the rents and revenues derived therefrom.</p> <p>3. Deeds <§=93 — Construed to effect intent of parties.</p> <p>The primary rule for construction of deeds is to ascertain the intention of the parties, and technical rules of construction must yield to this primary rule.</p> <p>4. Deeds <§= 133(2) — Conveyance of remainder to “children” and “issue of body” conveys to children who survived life tenant.</p> <p>Where the granting clause of the deed designated the remaindermen as) the “children,” and the habendum clause as the “issue of the body" of the life tenant, the expressions children, and issue of the body, are not the equivalent of heirs, but are words of purchase, and not of limitation, so that the remainder passes to the children who were living at the death of the life tenant to the exclusion of those who died during her lifetime.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First Series, Issue of the Body; First and Second Series, Child — Children.)</p> <p>5. Tenancy in common <@=13 — Possession by other grantees of portion of tract does not benefit grantee of portion in controversy.</p> <p>Where a large tract of land conveyed by a life tenant had been partitioned among the grantees, the actual possession of other portions of that tract by the grantees and their successors holding conveyances thereof does not inure to the benefit of a grantee of a portion who never took possession thereof, though the title of the remaindermen to the portion in controversy was the same as their title to the portion adversely held.</p> <p>6. Life estates <§=8 — I nciosure of small portion of tract conveyed to another is not notice whole tract is adversely claimed to the other.</p> <p>Where a grantee from a life tenant of a portion of a tract of land inclosed with the land described in his conveyance a small portion of the land conveyed to another, and which otherwise was uninclosed, such possession was not notice to the remaindermen of the claim by the grantee of the uninclosed portion of the tract, and does not entitle them to hold by adverse possession.more than the small portion inclosed with the other tract.</p> <p>7.Adverse possession <§=58— Must indicate assertion of exclusive ownership by occupant.</p> <p>To make possession adverse, it must be of such character as to indicate unmistakably an *■ assertion of claim of exclusive ownership in the occupant.</p>

<p>1. Brokers <©=>52 — Not entitled to commission " for consummation of trade unless binding contract is made.</p> <p>Where a broker’s contract entitles him to commission on consummation of a trade, he is not entitled to a commission unless at least a contract for the trade is entered into by the parties which is binding on them.</p> <p>2. Brokers <©=63(4) — Refusal of other party’s wife to join in conveyance as required1 by contract with broker’s client for an exchange of lands prevents consummation of trade.</p> <p>A broker is not entitled to a commission for the consummation of a trade of land where the contract for the trade required the deed to the broker’s client, which covered a homestead, to he executed by the grantor’s wife, who was not a party to the contract, and the wife refused to sign such deed, so that the client was justified in refusing to perform his part of the contract.</p> <p>3. Brokers <©=>61 (I) — Client’s renunciation of contract to exchange lands held justified by demand of other party for a contract to protect latter against defects in title.</p> <p>Where the contract for exchange of lands, • for consummating which plaintiff was to receive a commission, provided that, if either party failed to overcome defects in his title, the other party could remove such defects at the expense of the other, the demand of the other party that the broker’s client execute an additional contract to protect him against defects in the title gave the client the right to decline to go on with the deal without being liable for the commission.</p>

<p>I.Partition @=>8 — Description held unambiguous, when applied to circumstances.</p> <p>A deed executed in pursuance of an agreement for voluntary partition, which conveyed to plaintiff 200 acres in part of a survey set apart to the heirs of the parties’ ancestor, except the portion thereof set apart to defendant and elsewhere described, shown to have been executed shortly after the tract thereby divided between the parties was decreed to the heirs who made the partition, was plain and unambiguous, Both on its face and when applied to the circumstances.</p> <p>2. Evidence @=>461(3) — Intention to convey other land inadmissible to contradict unambiguous deed.</p> <p>Where a deed effecting a voluntary parti-: tion between the parties was unambiguous on its face and when applied to the situation, parol evidence is inadmissible to show that the oral agreement for partition was intended to convey other land, though the deed recited it was executed in pursuance of a partition agreement.</p> <p>3. Partition @=>9(2) — -Evidence held not to show intention to convey land other than that described.</p> <p>Even if parol evidence were admissible to show the oral agreement for partition effected by a deed reciting it was given in pursuance to an agreement for partition, an oral agreement, made while a suit to determine title to the land was pending, which divided land ultimately not received by the parties to the partition agreement, held not the agreement referred to in the deed; but it will be presumed that a subsequent agreement was made after the decision of the suit, in pursuance of which the deed dividing the tract set off to the parties in that suit was executed.</p> <p>4. Appeal and error @=>1177(6) — Judgment cannot be rendered, where evidence shows adverse possession of some land without showing boundaries.</p> <p>On appeal from a judgment for defendants in trespass to try title, where the record showed that the plaintiff was the owner of the title to the land in controversy, but that some portion thereof had been claimed and occupied by the defendants for more than 10 years before the suit was filed without showing the boundaries of the portion so occupied, judgment cannot be rendered for the plaintiff, but the cause must be remanded, to have the boundaries of that portion determined.</p> <p>5. Adverse possession @=>100(1) — Possession by record owner of portion of tract extends to all not occupied adversely.</p> <p>Where the owner of the record title to land is in actual possession of a portion thereof, his possession extends to all of the tract, except those portions actually occupied adversely.</p>

<p>Appeal from Harris County Court; Roy -F. Campbell, Judge.</p> <p>Action by Mrs. J. M. Culpepper and another against J. O. Sammons. Judgment for plaintiffs, and defendant appeals.</p>

<p>Error from Harris County Court; Geo. D. Sears, Judge.</p> <p>Suit by A. C. Yan Velzer against A. B. Stryker. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from District Court, Walker County; E. A. Berry, Judge.</p> <p>Action by Sarah Perue and others against the Casualty Company of America, in which a.receiver was appointed, and Jesse S. Phillips, Superintendent of Insurance of the State of New York, as liquidator of the Casualty Company of America, and others intervened. Judgment for plaintiff and some of the interveners against the defendant and the receiver, and directing that the named intervener take nothing, and named inter-vener appeals. On remand after answer of the Supreme Court to questions certified to it (229 S. W. 849).</p>

M. Spann, Judge: Suit by S. M. Carothers and others against J. J. Mills and others. Judgment for the defendants, motion to set aside verdict and judgment and for new trial overruled, and the plaintiffs appeal. •

<p>Appeal from Harris County Court; John W. Lewis, Judge.</p> <p>Action by the National Cash Register Company against the Acme Tire & Vulcanizing Company and others. Judgment for the plaintiff, and defendants appeal.</p>

<p>Appeal from McLennan County Court; Jas. P. Alexander, Judge.</p> <p>Action by the Mistrot-Callahan Company against the Southern Pacific Company and another. Judgment for plaintiff, and defendant Southern Pacific Company appeals.</p>

<p>Appeal from District Count, Tarrant CounT ty; Ben M. Terrell, Judge.</p> <p>Action by the American Home Life Insurance Company against Frank Patton. From a judgment in favor of intervener, the International Life Insurance Company, defendant appeals.</p>

<p>1. Process <@=>138 — Service on unknown owners cited -by publication in proceedings to foreclose street improvement lien held insufficient.</p> <p>Where sheriff’s return in proceedings to foreclose street improvement lien consisted, of his signature to blank form, which failed to show the newspaper or the county or state in which citation was published, or dates of publication, and where the citation on which the return was made was only the skeleton of a citation, and omitted any statement of the cause of action, or other recitals required to be shown in such a citation, and where the return stated that a copy of the publication was made a part thereof and that it was published in a particular paper, but failed to state in what county or state the publication was made, the service was insufficient to confer jurisdiction on unknown owners cited by publication.</p> <p>2. Judgment <@=3461(1) — Presumptions in favor of validity of judgment do not control in a suit directly attacking judgment.</p> <p>The usual- presumptions indulged in favor of the validity of a judgment in case of collateral attack by a party who was made a party defendant to the former suit do not control in a suit which is a direct attack on the judgment.</p>

Bond, Judge. Habeas corpus by H. D. Kendall and wife against Wester Williams and wife, ahd by D. H. Blacketer against the same defendants, which were consolidated. From judgment for defendants’ plaintiffs appeal.

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Action by Billy Good against Gwendoline Adrian and others. From an order to transfer the cause to another county, plaintiff appeals.</p>

R. Pearman, Judge. Application for writ of habeas corpus by R. A. Garner against Mrs. A. R. Bowles and another. Judgment for defendants, and relator appeals.

<p>Appeal from District Court, Milam County; John Watson, Judge.</p> <p>Action by N. B. Shugart and others against M. L. Shugart and others. Judgment for plaintiffs, and defendant named appeals.</p>

<p>Public lands <&wkey;!75(7) — Taking lease from state held not to estop patentee from claiming land under his patent.</p> <p>Where patentee of land from state had the boundaries as recited in the patent marked on the ground and went into possession, and thereafter resurvey by the state developed a vacant strip which was included in his original boundaries, conduct of patentee in leasing from the state such vacant strip, and having it surveyed for possible purchase, and transferring his lease to another, did not estop him from claiming the land as included in his patent as against one with full knowledge of the facts, claiming title through purchaser from state as an addition to the home tract, after application by transferee of lease as addition to his home tract was forfeited to the state.</p>

<p>1. Sales <&wkey;4l2 — Answer to buyer’s petition for failure to deliver held not subject to general demurrer.</p> <p>In a buyer’s action for stipulated damages because of seller’s failure to deliver, answer denying that seller had broken his contract, alleging that he had been at all times and was ready and willing to comply therewith, that buyer had extended the time for delivery, and that his failure to deliver was not due to any fault on his own part, but was caused by wrongful acts of the buyer, held not subject to general demurrer, even though it was in-artistically drawn and contained portions subject to exception; the facts alleged being sufficient to show that buyer was not .entitled to recover.</p> <p>2. Judgment <@=5126(1) — Court cannot render judgment for plaintiff after sustaining demurrer to answer without evidence in sup. port of plaintiff’s cause of actiqn.</p> <p>The court, having eliminated defendant’s answer by order sustaining general demurrer thereto, could not render judgment for plaintiff without evidence in support of his alleged cause of action.</p>

<p>1. Insurance &wkey;>5!5 — Provision for payment of one-half benefits for death from stated diseases within one year is prohibited.</p> <p>Rev. St. 1911, art. 4742, subd. 3, making void a provision for any mode of settlement at maturity for less than the amount insured on the face of the policy, when construed with the proviso authorizing provisions for partial payments in the event of suicide or engaging in hazardous occupations, prohibits a clause limiting liability to one-half the stated amount of the insurance in the event that insured should die from certain stated diseases contracted within 12 months after the policy was issued, though in a sense such provision fixes the amount shown by the face of the policy.</p> <p>2. Constitutional law &wkey;>l54(3), 206(1), 240 (2), 276, 296(1) — Insurance <§?»5I5 — Legislature can prohibit provisions for payment of less than face of insurance policy.</p> <p>It was within the police power of the Legislature to enact Rev. St. 1911, art. 4742, prohibiting provisions in insurance policies for the payment of less than the amount of the benefit stated on the face of the policy, and that statute is therefore not contrary to Const. U. S. art. 1, § 10, or Amendments 5 and 14, nor to Const. Tex. art. 1, § 19, as impairing the-obligation of contract and taking away from the parties their right to contract, or taking away privileges and immunities, or depriving of property without due process or denying equal protection of the laws.</p>

<p>Waters and water courses <&wkey;>203(l3) — Petition to restrain turning off water held insufficient.</p> <p>A petition by a consumer for a decree restraining a water company from turning off the water from his houses for nonpayment of charges alleged to be illegal and excessive, and also for a construction of the contract, held. insufficient to warrant relief;' there being no definite allegations required by Rev. St. arts. 4643, 4649, showing injury would result from the threatened act, and no attempt by the pleader to set forth the contract.</p>

<p>I.Fraud <&wkey;28 — Purchaser in unrecorded deed entitled to damages on vendor’s resale to innocent purchaser.</p> <p>As between the vendor and purchaser in an unrecorded deed, title passes to the purchaser under Kev. St. 1911, art. 6824, and no act of the vendor can deprive the purchaser of right to recover damages from a fraudulent second sale of the land to an innocent purchaser.</p> <p>2. Judgment <&wkey;708 — inadmissible against one not party to former suit.</p> <p>In suit by the purchaser of land for damages accrued through the fraudulent acts of the vendor in selling the land to another after selling it to plaintiff purchaser, judgment of foreclosure by defendant vendor in another ease of a vendor’s lien on .land sold to a third party by the vendor was not admissible in evidence against the plaintiff, who was not a party to the lien suit.</p> <p>3. Fraud &wkey;>28 — Vendor’s appropriation of vendor’s land by resale unjustifiable. '</p> <p>Even if no trust exists, where land is sold, arid deed and release to the property delivered to the purchaser, and the vendor paid, the vendor cannot thereafter sell the land again to another party, the first purchaser’s deed not having been recorded, witjjput rendering himself liable in damages to,the first purchaser; the first purchaser being under no obligation to speak to the vendor about the appropriation of his property.</p> <p>4. Fraud <&wkey;59(l) — Damage to purchaser defrauded by resale is value oí land with interest.</p> <p>The vendor of land, who sold a second time, the first, purchaser not having recorded Ms deed, is liable to the first purchaser to pay the value of the land at the time it was sold to him, with 6 per cent, interest.</p>

<p>Appeal from District Court, Wichita County; P. A. Martin, Judge.</p> <p>Action between the Oklahoma State Bank and the Seaboard Oil & Gas Company and others. From a judgment for the Bank, the Seaboard Oil & Gas Company appeals.</p>

<p>Appeal from Gonzales County Court; J. C. Romberg, Judge.</p> <p>Suit by Melissa A. Palm and husband against J. C. Magee. From an order granting a temporary injunction, defendant appeals.</p>

<p>1. Mines and minerals &wkey;>77 — In suit to cancel lease for discontinuing work, heid error to overrule exception to part of answer setting up mortgage lien.</p> <p>In suit to cancel an, oil and gas lease for discontinuing work, it was error to overrule exception to the part of defendant’s answer setting up an outstanding mortgage lien on the leasehold land, there having been no ouster under it, or an impending ouster, and the lien not having been so pleaded as to entitle defendants to any relief on such account.</p> <p>2. Mines and minerals <&wkey;77 — .Leases construed against lessee and forfeitures favored-.</p> <p>On account of necessity to guard the rights of the landowner, oil and gas leases are construed strictly against the lessee, and forfeitures are favored.</p> <p>3. Mines and minerals <&wkey;>77 — Breaches of lessee by failing to continue development leave lessor to remedy of suit for damages, or for specific performance or cancellation.</p> <p>Breaches on the part of an oil and gas lessee by failing to continue the development of the land after finding gas thereon do not work a forfeiture, but leave the lessor to a remedy of suit for damages, leaving him also to the right of specific performance or cancellation.</p> <p>4. Trial <&wkey;l39(l), 178 — Direction of verdict when there is any evidence in favor of party erroneous; evidence given its strongest probative value on motion to direct verdict.</p> <p>The settled rule in respect to directing a verdict in favor of one of the parties on the evidence is to give to the evidence its strongest probative force in favor of the ruling, so, if there is any evidence in favor of the party against whom the instruction is given, the direction would be error.</p> <p>5. Mines and minerals <@=w77 — Evidence insufficient to show as matter of law that lessees had abandoned.</p> <p>Evidence held insufficient to show as matter of law that defendant oil and gas lessees had abandoned their contract of lease with plaintiff, the lessor’s successor, and would not fairly, honestly, and in good faith continue the further development of the property; the question b.eing for the jury.</p>

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Suit by the First State Bank of Keller against W. J. Mays and others. From judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Wichita .County; P. A. Martin, Judge.</p> <p>Action by J. C. Sproles and another against the First National Bank of Burkburnett, Tex. From judgment for plaintiffs, defendant appeals.</p>

A. Hill, Judge. Suit by Parilee Hubbard against J. M. Hubbard for divorce. Decree for. plaintiff. From an order dissolving an injunction staying sale of property for division, defendant appeals.

<p>Appeal from District' Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Action by S. Y. Matthews against J. T. Deason and others. From a judgment for defendants, plaintiff appeals.</p>

H. Burney, Judge. Suit for partition by the Medina Oil Development Company against J. E. Murphy and others. From a judgment dismissing the suit, when plaintiff declined to amend its petition after demurrer thereto was sustained, plaintiff appeals.

<p>1. Master and servant <&wkey;>278(20) — Evidence held not to support theory that master informed servant oil well was in good condition for shooting.</p> <p>In an employee’s action for injuries sustained in shooting an oil well for third parties, plaintiff’s own testimony held not to justify recovery on the theory that defendant negligently informed him that the well was in good condition for shooting.</p> <p>2. Trial <&wkey;350(6), 352(1) — Charge submitting issue of negligence in furnishing nitroglycerin squib held too general.</p> <p>In an employee’s action for injuries sustained in shooting an oil well with nitroglycerin, where the only question for the jury was that of defendant’s negligence in furnishing a leaky squib to hold the nitroglycerin, an issue whether defendant was negligent in furnishing plaintiff the kind and character of squib and weight he was furnished was calculated to impress the jury with the idea that they could consider dangerous characteristics of the squib other than its leaky condition, and could consider the weight suspended to the squib, especially where the charge was in general language, and the court should have submitted the issues whether the squib was leaky, whether defendant was negligent in furnishing it in that condition, whether its leaky condition caused the accident, and whether defendant should reasonably have foreseen an accident of that character.</p> <p>3. Master and servant <&wkey;286(l9) — Negligence in furnishing nitroglycerin tube held question for jury.</p> <p>In an action for injuries sustained by an employee while shooting an oil well, in which he alleged negligence on the part of the employer in furnishing him a leaky tube for nitroglycerin, where' he testified that the explosion could not have occurred unless some of the niJ troglycerin was on the outside of the tube, and that it could not get on the outside of the tube unless the tube was leaky, because he had thoroughly washed it, a peremptory instruction was properly refused.</p>

<p>1. Limitation of actions <&wkey;58(6) — Limitation ordinarily does not run against enforcement of assessment until validly levied.</p> <p>Limitation against enforcement of a certificate of special assessment against property for street paving ordinarily does not rim until a valid assessment has been levied, and, in the absence of express statutory provisions to the contrary, until the municipality has the right to proceed to enforce the assessment.</p> <p>2. Limitation of actions <&wkey;87(3) — Limitation runs in favor of nonresident who remains without state until period completed.</p> <p>Limitation runs in favor of nonresidents who shall remain without the state until the period of limitation has been completed, and, once begun, continues to run after the party returns to the state.</p>

<p>Appeal from District Court, Stephens County; G. O. Bateman, Judge.</p> <p>Suit by Jasper Tucker and others against the Imperial Oil & Development Company and others. From judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Wichita County ; W. E. Fitzgerald, Judge.</p> <p>Action by W. L. Dugger and another against H. A. Allen and others. From a judgment for defendants, plaintiffs appeal.</p>

W. Coleman, Judge. Suit by the Pittman & Harrison Company and others against J. P. Boatenhamer. From judgment refusing plaintiffs a permanent injunction against defendant, plaintiffs appeal.

C. Davis, Judge. Action by Tony Lewis against the Houston & Texas Central Railroad Company, which filed a cross-action against Mrs. R. J. White, whose executor, Stone White, was substituted in her stead. Prom judgment for the executor in the district court, on appeal from justice court, defendant appeals.

O. McKinsey, Judge. Suit by S. M. Gose and others against F. J. Slay, Jr., in which J. J. Ingram intervened. From a judgment for plaintiffs, defendant and intervener appeal.

<p>1. Appeal and error &wkey;>242(3) — Defendant who did not invoke ruling on exception to petition cannot successfully urge it.</p> <p>Though special exception was addressed to the petition, where defendant failed to invoke any ruling thereon by the trial court he cannot successfully urge it in the Court of Civil Appeals.</p> <p>2. Evidence <&wkey;158(27) — Testimony admissible in suit to quiet title over objection affidavit of defendant and wife best evidence.</p> <p>In suit in trespass to try title to recover land, where a defense was that the property was the homestead of defendant husband and his wife at the time deeds of- trust were executed by them under which plaintiff deraigns title, and that by’reason of such fact both of the instruments were without legal effect, testimony of the attorney before whom their affidavit was made as notary that the affidavit of defendant and his wife correctly gave what they said at the time, and testimony of another witness corroborating the attorney, was admissible over the objection that the affidavit itself was the best evidence. •</p>

<p>1. Husband and wife <&wkey;274(4) — Allegations of fraudulent sale of community property held sufficient, though no sale to defraud wife alleged.</p> <p>In a suit for partition of community property of plaintiffs’ father and deceased mother, plaintiffs were entitled to an accounting by the father for the amount sacrificed by Mm on a sale of a part of such property, a few days before his wife’s death, at a price below its market value, for'the purpose of cheating plaintiffs out of their rights therein, though it was not specifically charged that the. sale was made for the purpose of defrauding the wife, the allegations of their complaint being substantially to that effect, the jury in answer to special issues having found in their favor on such issue, and that the wife was insane when she joined in such conveyance, and the court having found that the property was sold for $1,995 less than its market value.</p> <p>2. Appeal and error &wkey;>907(3) — Where no statement of facts, judgment presumed sustained by evidence.</p> <p>In the absence of a statement of facts, it must be presumed that the judgment, except as to the pleadings and findings of the court and jury, was sustained by the evidence.</p> <p>3. Husband and wife <&wkey;274(4) — No error in awarding partition of community estate and ■ decreeing that defendant, who fraudulently sold part thereof, pay entire indebtedness.</p> <p>Where a husband, joined by his insane wife, a few days before her death, conveyed a part of their community property for much less than its market valúe for the purpose of defrauding their children, there was no fundamental error in awarding a partition on complaint of the latter, and decreeing that the husband pay the entire indebtedness of the estate, in view of further findings that he owed the children, as their half of the community property converted by him, only the balance remaim-ing after crediting him with the amount of such indebtedness, and there was no partition of the homestead, his possession of which was left undisturbed, and no rights of creditors other than the children were affected by the decree.</p>

<p>1. Appeal and error (&wkey;l029 — Assignments immaterial where no other judgment proper under undisputed evidence.</p> <p>Where, under undisputed evidence, no other judgment than the one rendered was proper, all assignments of error are immaterial and should be overruled.</p> <p>2. Sales <&wkey;85(3) — No recovery for failure to purchase real estate loans on honest advice of attorneys to whose opinions contract stipulated to be subject.</p> <p>In an action for breach of a contract to purchase real estate loans secured by first lien bonds, where the evidence was undisputed that defendant might exercise its judgment freely as to the title, regularity of the proceedings and value of the securities of all loans offered by plaintiff, and that the loans rejected were refused, because of some question as to title or as to the value of the land or security offered, though the titles to all such loans had been approved by plaintiff’s attorneys, and the values of the lands were equal to or in excess of those agreed on, the report of defendant’s attorneys or inspectors tending to a contrary conclusion was conclusive, in the absence of allegation or proof they were made in bad faith; the merits of an honest opinion actually given by the attorney for a party, to whose opinion as to the title to or legal status of things to be purchased such party stipulates his contract to purchase shall be subject, not being subject to review.</p> <p>3. Sales &wkey;>384(2) — Measure of damages for failure to purchase real estate loans stated.</p> <p>The measure of damages for breach of a contract to purchase real estate loans secured by first lien bonds, where plaintiff elected, not to resell the bonds for defendant’s account, but to retain them as his own, is the difference in the contract price and m.arket value thereof, not in the county wherein the lands were located, but at the place where and time when the bonds were to be delivered, so that, in the absence of evidence as to the state of the market at such place and time, plaintiff cannot recover.</p> <p>4. Trial &wkey;>35l (2) — Seiler of real estate loans oannot recover lost profits where submission of such issue not requested nor omission thereof objected to.</p> <p>In an action for breach of a contract to purchase real estate loans, though the pleadings were broad enough, and the evidence sufficient to authorize the recovery of profits as damages, plaintiff could not recover such lost profits where he made no request for the submission of such issue and did not object to the omission thereof from the issues submitted by the court.</p>

Terrell, Judge.’ . Suit by G. W. Ware against J. R. Jones and wife, in which William Capps interven- ed. From a judgment granting insufficient relief, plaintiff and defendants separately appeal.

<p>Monopolies 17(1) — Agreement with promoters not to sell the promoted stock at less than promoters’ price held violation, of Anti-Trust Act; “commodities.”</p> <p>Plaintiff owned stock in an oil company which he desired to sell at 75 cents per share. Defendant promoters were selling stock in the company at $1 per share, and agreed with plaintiff that if he would not sell his stock for 60 days, so as to maintain the price at §1 per share, they would guarantee him 90 cents a share for it. Held, the guaranty agreement was unenforceable by plaintiff, being a violation of the Anti-Trust Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 7796, 7799), prohibit.ing, among other things, a combination to fix the price of any commodity, as shares of stock are within the meaning of the term “commodities,” which is a broader term than merchandise, and which, in referring to commerce, may 'mean almost any article of movable or personal property.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Commodity.]</p>

<p>1. Railroads @=>348 (I)— Evidence held to show negligence.</p> <p>In an action for damages for death of auto-mobilist at railroad crossing, .evidence held sufficient to sustain finding of negligence on part of the defendant.</p> <p>2. Death @=>99(1)— $21,000 held not excessive.</p> <p>A verdict for $21,000 for the death of driver of motortruck was not so excessive as to authorize appellate court to conclude that it was the result of passion, prejudice, or any other improper motive.</p> <p>3. Railroads @=>328(11) — Motortruck driver held guilty of contributory negligence.</p> <p>In an action for death of motortruck driver i at railroad crossing in the state of Louisiana, evidence held to show as a matter of law that deceased was guilty of contributory negligence, although deceased stopped, looked, and listened, but because of the rapidity with which the train was running, and the length of time it took to get his car started and get on the crossing, and the difficulty of seeing to the side of the car because of its closed top, he drove onto the track in front of the train without knowing of its approach.</p>

<p>Appeal from District Court, Cameron County; W. B. Hopkins, Judge.</p> <p>Action by E. D. Box against the Eresnos Land & Irrigation Company and another, others intervening. From an adverse judgment, defendants appeal.</p>

<p>Mines and minerals <@=»79(3) — Annual rental under lease held payable in advance.</p> <p>An oil lease held to require payment in advance of the annual rental, with ten days of grace additional in which to make payment; this .having been the construction placed on it by the parties.</p>

<p>1. Depositaries <s=>6 — City of Corpus Christi could reject all bids offered for depositary or treasurer.</p> <p>The city council of Corpus Christi, under Special Charter, aTt. 10, § 7, in Sp. Laws 1909, c. S3, in the exercise of reasonable and sound discretion, is clothed with the power and authority to reject any and all bids offered under an advertisement for the use of the public funds of the city, and it has the inherent power to reject all bids if none is offered that gives a fair remuneration for the use of the money, or if the bids are the result of fraudulent combination; but such discretion must not be arbitrarily, corruptly, or unreasonably exercised.</p> <p>2. Depositaries, c®=>6 — Council held to have acted within bounds of discretion when it rejected bids for treasurer.</p> <p>Council of the city of Corpus Christi held to have acted within the bounds of a sound discretion when it rejected bids made by two banks seeking the position of city treasurer.</p> <p>3. Contracts 119 — Combinations among bidders render contracts void.</p> <p>Arrangements and combinations among prospective bidders for municipal contracts to prevent competition among themselves, and to bring about an award at a figure which is not the result of an honest competition, are contrary to public policy and void.</p>

<p>1. Appeal and error <s=>499(3) — Objection to testimony must be presented by proper bill of exceptions.</p> <p>An objection to the introduction of testimony, to be available on appeal, must be presented by a proper bill of exception.</p> <p>2. Appeal and error <@=>688 (I) — Bill of exceptions held not to show witness was in courtroom after rule invoked.</p> <p>A bill of exceptions, reciting that a witness was permitted to testify, “After said witness bad been in the courtroom and heard a number of witnesses testify, the rule bad been duly invoked,” did not show that the witness was in the courtroom and beard other witnesses testify after the rule bad been duly invoked.</p> <p>3. Divorce 130 — Evidence held to support decree for wife.</p> <p>In a wife’s suit for divorce, evidence that the husband slapped the wife, and evidence concerning his associations with women of questionable character and concerning fusses between the husband and wife, ¡held to support a decree in favor of the wife.</p> <p>4. Divorce <@=184(6) — Conflicts in evidence in divorce suit were for trial court.</p> <p>That a husband, sued for divorce, denied slapping his wife or associating with women of questionable character, or other circumstances tending to show a want of harmony between the parties, testified to by the wife’s witnesses, merely presented a conflict of testimony which it was the province of the trial court to determine.</p>

L. Davenport, Judge. Suit by the Eranklin Plumbing Company, a partnership composed of R. E. Franklin and others, against G. W. Daniels and another. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from District Court, Rockwall County; Joel R. Bond, Judge.</p> <p>Suit by W. E. Davidson and others against J. R. Wells, County Judge, and others. From judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Wichita County; Edgar Scurry, Judge.</p> <p>Suit by H. G. Taylor against the Motex Oil Corporation. From a judgment granting writ of mandamus, defendant appeals.</p>

<p>Error from District Court, Tarrant County; R. E. L. Ray, Judge.</p> <p>Action by J. T. Davis and others against I A. W. Walker and others. To review judgment for defendants, plaintiffs bring error.</p>

A. Martin, Judge. Suit by Charles F. Noble, liquidating agent, against E. P. Pumphrey and another, wherein the Golden Rod Oil Company No. 1 and others intervened. From judgment for plaintiff against the named defendant and the interveners, etc., such defendant and the interveners appeal.

<p>Appeal from Gooke County Court; H. S. Holman, Judge.</p> <p>Action by M. T. Brigbam against S. B. Cason. From a judgment for plaintiff, defendant appeals.</p>

Error from District Court, Parker County; F. O. MeKinsey, Judge. Action by J. M. Richards against J. I. Campbell and others. Judgment for plaintiff. Motion of defendants Campbell and the Virginia Company to vacate the same was denied, and they bring error.

R. Ely, Judge. Action by E. P. Bruce and others against the Texas Pacific Coal & Oil Company and others. Prom judgment rendered, the named defendant appeals.

<p>Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.</p> <p>Suit in partition by B. C. Castleberry and others against Horace Acrey and others, in which Lige Acrey intervened. Judgment for plaintiffs, and defendants appeal.</p>

Green, Judge. Action by M. A. Koontz against J. R. Savely and others. Erom a judgment in favor of defendant Crutsinger, sustaining his landlord’s lien giving it priority over certain liens and mortgages, plaintiff and certain defendants appeal.

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Suit by M. L. Turner and others against Emma P. Montgomery and others. From an order overruling their plea of privilege, defendants appeal.</p>

P. Walker, Judge. Suit by J. H. Herndon and another against H. A. Williams. Prom a judgment for defendant in a justice court plaintiffs appealed, and from a judgment for defendant in.the county court they again appeal.

B. Keith, Judge. Proceeding to probate a will by C. A. Dalton and others against Ed Dalton and others. From judgment for contestants, proponents appeal.'

<p>Appeal from District Court, Stephens County; C. O. Hamlin, Judge.</p> <p>Suit by Alfred Tyler against the Hodges Drilling Company,- wherein the Pen-Breck Oil Association intervened. Prom an order appointing a receiver, defendant appeals.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Suit by the City of Houston against the Scottish Rite Benevolent Association. From decree for defendant, plaintiff appeals.</p>

<p>1. Carriers <3=105(2) — Damages for loss of profits held allowable.</p> <p>Where an express company wrongfully marked a shipment C. O. D., and thereby caused failure of a sale, and it knew that plaintiff was a wholesale dealer in coffee, and by reason of the indorsed value knew the selling price, it was charged with knowledge that plaintiff usually made a profit in business, and the item of profit was within the rule that a party breaking a contract is liable for damages he should reasonably expect to arise from the breach of contract.</p> <p>2. Carriers <3=105(2) — Damages for loss of business held not allowable.</p> <p>Where an express company wrongfully marked shipment C. O. D., and in consequence plaintiff lost a customer, the defendant is not liable for loss of business, good will, and patronage, where he was not notified that shipment was to a customer and that a loss of patronage was likely to result from a mistake.</p> <p>On Motion for Rehearing.</p> <p>3. Carriers <3=105(2) — Damages from loss of business dependent on knowledge.</p> <p>In an action against a carrier for negligently marking a shipment C. O. D., because of the loss of business, patronage, and good will, in the absence of a showing of notice to the defendant at the time of the making of the contract, or of the negligent act or omission, that the loss of business, patronage, and good will was to be expected from the negligent act, damages' on this count will not be sustained.</p> <p>4. Carriers <3=104 — Evidence held not to show damage.</p> <p>In an action against a railroad company for negligently marking a shipment C. O. D., when it should have been on time, where the manager of plaintiff’s customer testified that he quit trading with plaintiff because of plaintiff’s competition with him in sale of goods to cafés, the evidence does not support a finding of loss of business, patronage, and good will on account of the negligence of defendant.</p>

<p>I. Frauds, statute of <®=»I48(1) — Contract presumed valid and enforceable.</p> <p>In an action by a purchaser of land against a third person, inducing the vendor to break the contract and sell to him instead, -it must be presumed, in passing on the sufficiency of the petition, that the contract was for the sale of land as alleged, and was evidenced by a written memorandum signed by the vendor, and was enforceable against him, unless it appears from other averments that some intervening cause has rendered the vendor incapable of performing.</p> <p>2. Torts <®=oI2 — Vendor and purchaser <®=»228 (2) — Purchaser with notice of contract to sell takes subject thereto; purchaser without right of action against subsequent purchaser with notice for inducing breach of contract.</p> <p>Where defendant purchased land with knowledge that the vendor had contracted to sell to plaintiff, plaintiff’s right of specific performance was not affected, and he had no right of action against defendant for inducing the vendor to break his contract and sell the land to him.</p>

<p>Appeal from Austin County Court; W. I. Hill, Judge.</p> <p>' Action by Otto Sonnenberg against A. 0. Ernst. From a judgment of dismissal, plaintiff appeals.</p>

| Suit by O. E. Wood against the Childress Oil Company. Judgment for plaintiff before a justice, and defendant appealed, and from a similar judgment in the county court he again appealed.

<p>I.Husband and wife <®=273(9)— Existence of community debts presumed more than 30 years after surviving husband’s sale.</p> <p>Where a daughter, more than 30 years after her mother’s death, sued her father to recover an interest in land purchased, by him with the proceeds of community property sold by him following the mother’s death, it will be presumed that there were community debts existing at the time of the sale.</p> <p>2. Husband and wife <§=>273(9) — -Existence of community debts empowers surviving husband to seii community estate.</p> <p>Existence of community debts on wife’s death confers upon the surviving husband the power to sell the community estate and to pass good title thereto.</p> <p>3. Trusts 105 — Land purchased by surviving husband with proceeds of sale of community estate held impressed with constructive trust in favor of minor child.</p> <p>On the sale of the community estate by the surviving husband, following the wife’s death, under the power to dispose of the community estate by reason of the existence of community debts, the sale passed the title of a minor child, and the proceeds of the sale and land purchased therewith became impressed with a constructive trust in favor of the child.</p> <p>4. Compromise and settlement <§=>I9(I) — Daughter held not estopped from claiming interest in lands purchased by father with proceeds of sale of community estate.</p> <p>Where surviving husband did not inform daughter that on wife’s death he had sold the community estate and invested the proceeds in the purchase of land, and the daughter, without notice thereof, in consideration of advances, conveyed to her father and his second wife any interest claimed by her in the estate of her mother for the purpose of freeing the lands, held by father, of any controversy between the daughter, the father, and his second wife, and children born of the second marriage, such settlement did not estop the daughter from suing to recover her interest in lands purchased by father with proceeds of the sale of the community estate.</p> <p>5. Limitation of actions <®=>100(7)— Daughter held not estopped by limitations from suing father for interest in land purchased with proceeds of the sale of community estate.</p> <p>Where a father did not inform his daughter of the sale by him of the community estate following the mother’s death and the purchase of lands with the proceeds thereof, and the daughter had no knowledge that a constructive trust was impressed on such land in her favor until a short time prior to the institution of a suit against her father to recover such interest, she was not precluded from prosecuting such suit by limitations, since the failure of the father, in whom she reposed confidence and trust, to notify her of her interest, constituted constructive fraud arresting the statute of limitations.</p> <p>6. Husband and wife ®=248l/2 — 'Property purchased by husband before marriage, but conveyed after marriage, held “claimed” by husband before marriage making such property husband’s separate property.</p> <p>Where the husband had, prior to marriage, purchased land by parol contract and purchased from squatters improvements made thereon, the land was not a part of the community estate, as between the husband and daughter, following the wife’s death,' under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, making property owned or “claimed” by husband before marriage his separate property, though the formal conveyance was not made until after the marriage; such land having been owned or “claimed” by the husband before marriage within such statutes.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Claim.]</p> <p>7. Husband and wife <S=>262(2)— Husband has burden of proving separate character of land where deed was delivered during marriage relation.</p> <p>Husband claiming land to be separate property notwithstanding delivery of deed during the marriage relation under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4621, making property owned or Claimed by husband before the marriage his separate property, has the burden of proving the separate character of the land.</p> <p>On Motion for Rehearing.</p> <p>8. Husband and wjfe <®=»264 — Evidence held to show that property purchased by husband during marriage relation was separate property.</p> <p>Evidence held to support finding that land purchased, by husband after marriage with the proceeds of the sale of cattle was separate and not community property.</p>

R. Ewing, Judge. Action by Byers Bros. & Co., a livestock commission corporation, against Thomas Waters. Judgment for plaintiff on sustaining a general demurrer to the answer, and defendant appeals.

L. Manry, Judge. Suit by S. R. Buchanan and others against L. G. Hurley and others. Order granting, plaintiffs a temporary writ of injunction, and defendants appeal.

<p>1. Husband and wife &wkey;»273(9)— Community survivor may not use deceased wife’s estate except to pay community debts.</p> <p>Under Vernon’s Saylcs’ Ann. Civ. St. 1914, arts. 3598-3601, a husband, as community survivor, is not authorized to use his deceased wife’s estate for the payment of any but community debts, but must manage the estate in good faith for its best interest.</p> <p>2. Husband and wife <&wkey;273( 10) — Husband’s creditors who received community property and credited valuation on debts not purchasers for value without notice; “innocent purchaser.”</p> <p>Where no independent consideration was paid to a community survivor by his creditors for conveyance to them of property of the community estate, but his creditors merely credited on their accounts against Mm the 55 per cent, thereof represented by the agreed valuation of the lands conveyed to them, none of the creditors can be held to be purchasers for value without notice; for, to constitute an innocent purchaser, there must be a purchase without notice, actual or constructive, of the outstanding claims urged against the thing purchased, and there must have been payment of a valuable consideration.</p> <p>[Ed. Note. — Eor other definitions, see Words and. Phrases, Eirst and Second Series, Innocent Purchaser.]</p> <p>3. Husband and wife <&wkey;273(l2) — Evidence held to justify finding of fraud on part of grantor surviving husband and grantee creditors.</p> <p>Evidence held sufficient to sustain jury’s verdict that deeds by the surviving husband of a community conveying community lands to his creditors were procured by fraud or coercion of the creditors, grantees in the deed, to the injury of the rights of the minor children of the grantor husband and Ms deceased wife in the tracts of land conveyed, though no actual fraudulent intent inspired either the grantor husband or the grantee creditors; the husband and the creditors having attempted to use the community estate for the payment of separate debts of the husband.</p>

<p>1. Evidence <&wkey;265(!8) — Defendant's uneon-tradictcd admission of collection of note held sufficient evidence.</p> <p>Where suit was to enforce former judgment that plaintiff owned a one-half interest in a note, the admission of defendant to plaintiff’s attorney that he had received payment of the note, when corroborated by silence on the part of defendant at the trial, at which defendant’s attorney announced ready, although defendant was absent, was sufficient evidence of collection of the note.</p> <p>2. Evidence <&wkey;2l3(4) — Admission held not inadmissible as made in effort to compromise.</p> <p>Where a half interest in a note had been adjudged to plaintiff in a former suit, and in a conversation with plaintiff’s attorney concerning compromise of several claims against defendant owned by plaintiff defendant admitted that he had been paid the amount of the note, the admission of liability is proper evidence, since the note could not be the subject of compromise, and the admission was an admission of a fact.</p> <p>3. Judgment &wkey;>853(I) — Judgment held dormant 12 months after date though appealed from.</p> <p>Where a judgment in a former suit was appealed from, and later was affirmed by the appellate court, the limitation of 12 months for the judgment to become dormant under Rev. St. 1911, arts. 3714, 3715, begins to run on the date of judgment, and not on the date of issuance of the mandate by the appellate court.</p> <p>4. Judgment <®=»875 — Judgment held extinguished when judgment creditor received property exceeding amount of judgment.</p> <p>Where a judgment adjudged that defendant was the owner of a judgment against plaintiff, and that plaintiff owned a one-half interest in a note, and defendant subsequently collected the note, and refused to settle with plaintiff, though holding for his account an amount in excess of the judgment, the judgment was extinguished, and interest thereafter was not recoverable.</p> <p>5. Estoppel <&wkey;>68(2) — Defendant held estop-ped to deny validity of orders on him for money pleaded as defense in former sunt.</p> <p>Where, in a former action "for an accounting between plaintiff and defendant, defendant had set up orders for money in favor of-third parties drawn on him by plaintiff, who after judgment purchased these orders and brought suit, since defendant used these as a defense in former action, ho is now estopped from denying their validity.</p> <p>6. Limitation of actions &wkey;>l2!(l) — Filing of suit on claims held by others as collateral security prevents running of statute.</p> <p>Where, in a former action for an accounting, defendant set up as a defense orders drawn by plaintiff on defendant in favor of third parties who held them as collateral security for debts due them by plaintiff, the filing of suit barred the running of limitations against the orders; the order holders being only proper, and not necessary, parties.</p> <p>7. Parties <&wkey;84(2)— Nonjoinder should be pleaded in abatement.</p> <p>The nonjoinder of proper parties, to be available, should be pleaded in abatement and presented within the time prescribed for such pleas.</p>

<p>Appeal from District Court, Cook County; C. R. Pearman, Judge.</p> <p>Action by B, F. Comegys against Fred Harvey, a corporation. From judgment for plaintiff, defendant appeals.</p>

<p>Error from District Court, Harris County; J. D. Harvey, Judge.</p> <p>Action by W. P. Neblett against the R. S. Sterling Investment Company. Judgment for defendant, and plaintiff brings ' error.</p>

R. Warren, Judge. Suit by Carrie Wynne, administratrix, against John Barton Payne, Agent. Judgment for plaintiff, and defendant appeals. As temporary administratrix of the estate of R. F. • Wynne,, deceased, the appellee brought the suit to recover damages for the benefit of the minor sister of the deceased, as next of kin dependent upon him, for the alleged negligent death of R. P. Wynne.

R. Ely, Judge. Action by S. J. McEntire and wife against G. J. Thomason, in which G. W. Thomason and another intervened. Judgment for plaintiffs, and defendant and interveners appeal.

W. Walker, Judge. Suit by J. Y. Prunty against tbe Texas & Pacific Railway Company. On appeal by defendant from judgment for plaintiff, questions were certified to tbe Supreme Court.

Error from District Court, Nueces County; W. B. Hopkins, Judge. Suit by the City National Bank of Corpus Christi against Mrs. Nellie M. Craig and others. N. H. Hand intervened, claiming prior lien on land attached by plaintiff. From judgment for plaintiff subject as to its attachment to lien of intervener, the plaintiff brings error.

<p>Mines and minerals <&wkey;>78(5) — Extensions of time for beginning of oil well constituted es-toppel of original lessor.</p> <p>Extensions of time for the beginning of an oil and gas welt, made by the original lessor in conjunction with other' joint owners of the land, sublet by the original lessee, held to have constituted an estoppel of the original lessor to claim in equity that the lease on his land which was not sublet was terminated by reason of the failure of the original lessee and his codefend-ants to begin a well or pay rentals on such land within the first year of the life of the lease, or, at all events, within the six-month period provided for in the first extension agreement.</p>

<p>1. Evidence &wkey;?l23( 11) — Statement of motorman immediately after and at place of accident part of res gestae.</p> <p>Statement of the motorman immediately after collision of street car with automobile and at the place of the accident that, if he had not thought it was a jitney, he would not have hit it so hard, is admissible as part of the res gestae.</p> <p>2. Witnesses <&wkey;379(2) — Prior statement admissible to contradict and impeach.</p> <p>Statement of the motorman just after collision of his car and an automobile that, if he had not thought it was a jitney, he would not have hit it so hard, is admissible to contradict and impeach his testimony that the car was standing still at the time of the collision.</p> <p>3. Trial t&wkey; 120(2) — -Statement in argument of a fact not in evidence improper.</p> <p>Statement in argument of a fact not in evidence, as by plaintiff’s counsel that on a previous trial for the same accident defendant had certain witnesses, not now present, and that they testified then, is improper, as depriving defendant of the right to a verdict based solely on the sworn testimony.</p> <p>4. Trial <&wkey;132 — Improper argument held not withdrawn.</p> <p>Statement of counsel when his argument was objected to, “If * * * [it] is not proper, I will withdraw it,” is not a withdrawal thereof.</p> <p>5. Trial <&wkey;l33(6)— Statement held not an instruction to disregard improper argument.</p> <p>Statement of the court to the jury on objection to statements in argument, “I suppose, maybe, gentlemen, you had better disregard those statements of counsel; it is not evidence, neither one of them,” accompanied by a direction to the reporter, “Don’t take down what I am saying,” does not amount to an instruction to disregard, but is rather calculated to impress the jury with the idea that counsel’s remarks were proper.</p> <p>6. Trial <&wkey;129 — Improper argument held not invited error because of opposing counsel’s comment on absence of witnesses.</p> <p>Statement of plaintiff’s counsel in argument that on a previous trial for the same accident defendant had certain witnesses (two persons who, as it appeared from the evidence, were in the car with plaintiff at the time of the accident), and that they testified then (facts not in evidence), is not invited error because of defendant’s counsel having commented on absence of the witnesses, on plaintiff's not producing them; comment on absence of witnesses who are, or from their connection with the circumstances should be, possessed of a knowledge of the transaction inquired about, and who are not present, being proper, and not beyond the record, but fairly within it.</p> <p>7.Appeal and error <&wkey;1060(1) — Reversal granted for improper argument where evidence of negligence was close.</p> <p>The testimony on the issue of negligence being such that the jury could have found either way, and it being impossible to say that it appears probable that the verdict was not influenced by the improper statement in argument of plaintiff’s counsel that on a previous trial for the same accident defendant had certain witnesses, not present at the last trial, and that they then testified, reversal will be granted.</p>

D. Guinn, Judge. Action by R. F. Gee against G. W. Lyles and others. From an order sustaining the named defendant’s plea of privilege, plaintiff appeals.

<p>1. Constitutional law &wkey;>31— Municipal corporations <&wkey;29(I) — Special charter provision for charter amendment or annexation of territory repealed by Enabling Act.</p> <p>The Home Rule Amendment (Const, art. 11, § 6) and the Enabling Act (Acts 33d Leg. e. 147), approved April 7, 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1096a-1096i), together constitute a self-executing law that must be applied whenever a city of over 5,000 population adopts a new charter or amends an existing one; hence section 3 of the 1909 charter of the city of Beaumont, respecting annexation of adjoining territory, was repealed by article 1096b, prescribing a different and inconsistent procedure for annexation.</p> <p>2. Statutes <&wkey; 162 — Special repeals general one if intent appear.</p> <p>The general rule that a genera] law does not by implication repeal a special one, although both relate to the same subject-matter, is inapplicable when the language of the general act clearly manifests the legislative intention to make such change.</p> <p>3. Municipal corporations &wkey;>46 — Prohibition against amendment oftener than every two years cannot be invoked where prior amendments relied on were under superseded procedure.</p> <p>An election under the Enabling Act (Vernon’s Sayles’ Ann. Oiv. St. 1914, arts. 1096a— 1096i), changing a city charter by adopting a new one, was not invalidated, under the inhibition of the Home Rule Amendment (Const, art. 11, § 6), forbidding alteration, amendment, or repeal of a city charter oftener than every two years, by attempted charter amendments within two years previous thereto, where such attempted amendments were invalid because they followed the procedure prescribed by the city charter as to amendments which had been superseded by the provisions of the Enabling Act (art. 1096b) as to city charter amendments.</p> <p>4. Municipal corporations <&wkey;>27 — Cities have plenary power to annex territory under Home Rule Amendment.</p> <p>The plenary power of the Legislature to extend the boundaries of cities was by the Home Rule Amendment (Const, art. 11, § 5) taken from the Legislature and conferred on cities of over 6,000 population* except that in making changes such cities are limited to the procedure prescribed by the Enabling Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1096a-1096i).</p>

<p>1. Tenancy in common <@=I9(4) — Cotenant buying at foreclosure sale takes title as trustee.</p> <p>A cotenant buying at a foreclosure sale takes title for himself and as trustee for the other cotenants.</p> <p>2. Tenancy in common <@=19(5) — Duty to contribute begins with disbursement of funds for benefit of joint estate.</p> <p>The duty of eotenants to contribute their proportionate part to the discharge of a common debt paid by one of them only begins with the disbursement of funds for the benefit of the joint estáte.</p> <p>3. Subrogation <§=3(4), 41(1) — Tenant in common, acquiring incumbrance, is subro-gated to rights of lienholder, and may foreclose, if other cotenants fail to contribute.</p> <p>A tenant in common, who acquires an outstanding incumbrance against the common property, becomes subrogated to the rights of the lienholder whose claim he discharges, and may foreclose such lien in the event the other co-tenants fail or refuse to contribute their proportionate part to the discharge of the common debt.</p> <p>4. Tenancy in common <@=I9(5) — Purchaser from cotenant, who had purchased mortgage and foreclosed against cotenants, held entitled to oust them.</p> <p>Where one of several tenants in common purchased a mortgage against the property, and on the failure of the other cotenants to reimburse him foreclosed it, and purchased the property for the joint benefit of himself and one of such cotenants, to whom was assigned a portion of such property, on recovery by him of a judgment for an undivided one-half interest therein, a purchaser of such portion was entitled to recover possession thereof from the remaining cotenants, by whom he had been ejected; their offer of contribution, first made in the proceeding to oust them from possession, coming too late.</p>

<p>Sales <@=>40— Purchaser of scrap iron falsely represented to be cast iron not liable on contract.</p> <p>A corporation, purchasing scrap iron in reliance on the seller’s representation that it was cast iron, which, on discovering the iron delivered was chilled iron and unsuited for the •purposes for which it was purchased, stored it where it would be protected and notified the seller it was subject to its order, is not liable for the contract price.</p>

Action by M. L. Kelly, Jr., and others against the National Bank of Denison and others. From order sustaining pleas of privilege and transferring the case to other county, defendants appeal.

<p>Appeal from District Court, El Paso County; W. D. Howe, Judge.</p> <p>Action by J. A. Gillett against C. B. Hud-speth and another. Judgment for defendant Hudspeth, and plaintiff appeals.</p>

<p>Appeal from District Court, Tom Green County; C. E. Dubois, Judge.</p> <p>Suit by S. H. Evans against M. E. Hunt and others. Judgment for plaintiff, and defendants appeal.</p>

In the matter of the estate of Edwin D. Horne, deceased. A writing was offered as a will by Katherine H. Barnes and others and contested by Elsie T. Horne and others. From an adverse judgment, proponents appeal.

<p>1. Appeal and error <@=>742(1) — Substantial conformity to rules as to assignments of error, etc., sufficient.</p> <p>A substantial compliance with the rules relative to assignments of error, propositions, and statements is enough, an'd the assignments may be considered notwithstanding the failure to conform to the letter of the rules where they do not call for any great labor on the part of the court.</p> <p>2. Sales <@=>182(1) — Evidence held to make question for jury as to waiver of comparison with sample.</p> <p>In a seller’s action for breach of a contract for the sale of cotton by sample, evidence held to make a question for the jury as to whether the buyer waived inspection or comparison of the samples and committed the question of quality and grade to the sound judgment of the seller’s representative.</p> <p>3. Sales <@=>38(2) — Misrepresentation of quality by seller need not be willful to constitute fraud'.</p> <p>It was not necessary that a seller’s false representation of the quality of cotton should be willful to constitute fraud, if it was made without knowledge whether it was true or false.</p> <p>4. Sales <@=>182(3) — Whether buyer waived right to full amount and was bound to accept part complying with contract held question of fact.</p> <p>"Where a sale of cotton embraced 100 bales which were shipped in two lots, one of which, consisting of 12 bales, complied with the contract and the other of which did not, it was a question of fact whether the buyer waived its right to the full amount purchased so as to be liable for the price of the 12 bales.</p> <p>On Rehearing.</p> <p>5. Sales <@=>88 — Whether sale was by sample held in issue under pleadings and evidence.</p> <p>Though a seller of cotton suing for breach of contract did not plead a sale by sample, where the buyer did plead such sale and offered evidence tending to support that theory the issue was raised by the pleadings and the evidence.</p> <p>6. Sales <@=>88 — Evidence held to make question for jury whether sale was by sample.</p> <p>In an action by a seller of cotton for breach of contract, evidence held to make’a question for the jury as to whether the sale was by sample.</p> <p>7. Sales <@=>387 — Whether seller acted properly and promptly in retaking possession and selling on buyer’s rejection held question of fact.</p> <p>"Whether a seller of cotton properly and promptly exercised its right to take possession of the cotton and resell it upon being advised by the buyer of its rejection and whether a resale on a holiday was proper were questions for the decision of the jury, though the evidence strongly tended to show that no damage was caused by any delay, and it was agreed that the cotton brought the best price obtainable on the day of sale.</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Suit by Y. Ii. Boyd and husband against T. F. Johnson and another. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, Val Verde County; Joseph Jones, Judge.</p> <p>Action by W. B. Silliman against Walter Oliver and others. From an adverse judgment, plaintiff appeals.</p>

<p>Appeal from District Court, McCulloch County.</p>

C. Jeffrey, Judge. Action by Mrs. Augusta Heller, guardian, and others, against Moritz Heller. Judgment for plaintiffs, on the sustaining of demurrer to the answer, and defendant appeals.

<p>1. Injunction <@=>43 — Against payment of moneys constituting mere chose in action not granted.</p> <p>A fund .accruing to a contractor from a county for the construction of a road being but a chose in action, equity will not enjoin payment and collection, to aid a creditor whose claim was not reduced to judgment, where no fraud or trust was shown.</p> <p>2. Injunction <@=>13 — Refused where no probable danger to plaintiffs rights shown.</p> <p>Irrespective of the existence of a probable right of a sublessee of a road building contract to a county fund payable to the contractor, or to damages for the latter’s breach of contract in proceeding with the construction of the road after subletting the contract, payment by the county and collection by the contractor of sums payable during the progress of the work will not be enjoined where no probable danger to such rights was shown.</p> <p>3. Injunction <@=>24 — Not granted where public work injuriously affected.</p> <p>Since the stopping, delaying, or hampering of the construction of a county highway from the county seat to the line of an adjoining county would work serious injury to county and public generally, payment to and collection by the road contractor of sums payable during the progress of the work will not be enjoined.</p>

<p>Elections <©=>275 — District court has no jurisdiction of contest of election of mayor in incorporated city.</p> <p>The district court has no jurisdiction of a proceeding to contest an election for, mayor of a municipal corporation, since Const, art. 5, § 8, giving the district court original jurisdiction of contested elections, • is not self-executing, and since Rev. St. art. 3081, making the provisions of title 49, relating, among other things, to election contests, applicable “to all elections held in this state, except as otherwise herein provided.” does not authorize such a proceeding, in view of failure to specify the forum in which such a contest is to be tried, as is done with reference to contested elections of other officers, under articles 3046-3063, 3077.</p>

<p>1. Appeal and error <@=>1040(3) — Sustaining demurrer not reversible error where evidence under the pleading was considered.</p> <p>Bill of exceptions complaining that court sustained demurrer to pleading held not to present reversible error where subsequent hill of exceptions shows that evidence was admitted and considered by the court under such pleading.</p> <p>2. Attorney and client <@=>182(3) — Attorney entitled to retain title papers on client’s refusal to pay him money expended in procuring them.</p> <p>An attorney employed to perfect title to land could retain title papers on client’s refusal to pay him money expended in procuring them, under his agreement to so do.</p> <p>3. Appeal and error. <@=>1058(2) — Exclusion of testimony harmless where witnesses subsequently testified fully concerning the matters.</p> <p>Refusal to permit witnesses to testify to certain matters held not ground for reversal where the witnesses subsequently testified fully concerning such matters.</p> <p>4. Attorney and client <@=>I34( I) — Attorney cannot-recover, on termination of contract, more than what his compensation would have been if he had fully performed.</p> <p>An attorney employed to .perfect title to certain land under a contract entitling him to certain interest in the land for such services could not, on client’s termination of contract before he had fully performed services, recover as reasonable value of the services, upon quantum meruit, more than the value of the land which would have been his compensation for his services had the title been perfected.</p> <p>5. Attorney and client <@=> 158 — Attorney, having performed services, could not recover on a quantum meruit, but was limited to compensation specified in contract.</p> <p>Attorney, who had agreed to perform certain services in consideration of a certain percentage df client’s stock in corporation, having performed such services, could not recover reasonable value of service upon quantum meruit, hut was confined to a recovery of the specified proportion of client’s corporate stock.</p>

D. Tarlton, Jr., Special Judge. Suit by the Board of Trustees of Robstown Independent School District against C. D. Patterson and the American Indemnity Company. Judgment for plaintiff against the last-named defendant, and the latter appeals.

<p>1. Brokers <&wkey;66 — Subagent could not secure agency direct from owner without notice to agent.</p> <p>A real estate agent, having agreed to represent another agent who had land listed, could not, without reasonable notice to such agent, secure an agency from the owner of the listed land direct for the sale of the property, since to do so would be a breach of good faith, which the law does not tolerate.</p> <p>2. Brokers &wkey;>66 — One accepting position of subagent must abide by agreement and divide commissions.</p> <p>One who has accepted the position of sub-agent of one having land listed under an agreement to personally procure purchaser and divide the commissions must abide by his agreement, and divide the commissions, though the first agent had no exclusive agency, and did not actively interest himself in the negotiations resulting in a sale of the property, .notwithstanding that the subagent, without notice to the first agent, procured agency direct with the owner of the listed land.</p>

<p>1. Evidence <S&wkey;>471 (5) — Witnesses <&wkey;248 (2)— Testimony as to effect of conversation held responsive to question, and not a conclusion of witness.</p> <p>In wife’s action against parents of deceased husband for proceeds of insurance policies, on theory that husband before his death had instructed his father to have policies changed so as to make wife beneficiary, testimony in answer to question as to the effect of husband’s conversation with witness as to whether he intended to change the beneficiary as to all of his policies that “he stated * * * that his intentions were to the effect that his wife should receive all his insurance” held properly received as against contention that it was not responsive and was a conclusion of the witness.</p> <p>2. Appeal and error &wkey;>l050(l) — Admission of evidence held harmless in view of other testimony.</p> <p>In wife’s action against parents of deceased husband for proceeds of insurance policies, in which she claimed that the husband had instructed his father to change the policies so as to make her beneficiary, the admission of testimony by witness who had been questioned as to the effect of his conversation with the husband as to husband’s intention to change the beneficiary in all of his policies that the husband had stated to witness that his intentions were to the effect that his wife should receive all his insurance, if error, was harmless, in view of further testimony of witness that husband was to name wife as beneficiary in all his policies.</p> <p>3. Evidence &wkey;>2l5(3) — Excerpt from letter held admissible as an admission against interest.</p> <p>In wife’s action against parents of deceased husband for proceeds of insurance policies on theory that husband had instructed father to change policies so as to make wife beneficiary, excerpt from father’s letter to the wife stating that the husband had written him to have the insurance changed, held admissible as admission against interest.</p> <p>4. Evidence <@=»155(8)— Portions of instrument from which excerpt has been offered' by one party are admissible only where explanatory of portion first offered.</p> <p>The rule that, where a portion of an instrument is offered by one party, the whole may be offered by the other, is applicable only to those portions of the instrument that bear immediately upon and are explanatory of the portion first offered.</p> <p>5. Evidence <§=>155(8) — Admission of excerpt from letter did not warrant admission of other portions which were argumentative, self-serving, immaterial, and irrelevant.</p> <p>In surviving wife’s action against parents of deceased husband for proceeds of insurance policies on theory that the father failed to follow husband’s instructions to make the wife beneficiary, admission in evidence of excerpt from father’s letter to the wife stating that the husband had instructed him to change the insurance did not warrant admission of other portions in which the father merely sought to testify to his acts in collecting and retaining the proceeds; such portions having no bearing upon the excerpt admitted, and being argumentative, self-serving, immaterial, and irrelevant.</p>

<p>‘Appeal from District Court, Dallas County ; W. F. Whitehurst. Judge.</p> <p>Suit by T. S. Kelly against A. S. Lewis. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Injunction <§=>58 — Restrictive covenants enforced at instance of individual purchasers of lots.</p> <p>Compliance with restrictive covenants imposed upon the sale of lots in a subdivision for the purpose of prescribing and preserving the residential character of the property will be enforced by injunction at the instance of individual purchasers of lots.</p> <p>2. Covenants <§=>51 (2) — Covenant prohibiting construction at less than certain cost not avoided by constructing portion of building with intent to add in future.</p> <p>Owner of lot could not avoid restrictive covenant prohibiting construction of residence thereon at less than a certain cost, by constructing merely a portion of a residence at a cost of less than the specified amount, with the intention at some future date to build additions which would finally make the cost conform yjith the requirements.</p> <p>3. Covenants <@=>77 — 'When one not a party to a restrictive covenant can enforce it.</p> <p>Whether a person not a party to a restrictive covenant has the right to enforce it depends upon the intention of the parties, to be ascertained from the language of the deed itself, construed in connection with the circumstances existing at the time the deed was executed.</p> <p>4. Covenants <@=>51 (2) — Compliance with covenant as to cost of construction dependent on actual expenditure.</p> <p>Compliance with restrictive covenant as to cost of construction of dwelling depends on amount actually expended in the construction of the building, and does not require the construction of a house which would have cost required amount at the time the subdivision was laid out, and the general building plan, pursuant to which such restrictive covenants were incorporated in the deeds, was originally formulated.</p> <p>5. Covenants <@=>79(3) — Purchasers of lots in subdivision by deeds containing building covenants could not enforce covenants relating to lots in other subdivision.</p> <p>Purchasers of lots in a subdivision by deeds containing restrictive covenants pursuant to a general building plan could not enforce’restrictive covenants relating to lots in other subdivision subsequently platted by same owners.</p>

<p>Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Suit by Nick Nelson against J. B. Stephenson and others. From judgment for plaintiff, the named defendant appeals.</p>

<p>Appeal from District Court, Harris County; Lewis R. Bryan, Special Judge.</p> <p>Action by Harriett Ann Elmore and others against Ada C. Saulnier and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Error from District Court, San Jacinto County; J. L. Manry, Judge.</p> <p>Action by W. B. Hale against William Hunter and another. Judgment for plaintiff, and defendants bring error.</p>

B. Muse, Judge. Suit by the Jones Lumber Company against G. E. Lake, the American Surety Company of New York, the Security Mortgage & Investment Company, and the Watson Company in which the two last-named defendants brought a cross-action against the first two named defendants. Judgment for plaintiff and for last-named defendant against the first two named defendants, and the first two named defendants appeal.

<p>Appeal from District Court, Harris County; Ewing Boyd, Judge.</p> <p>Suit by Charles O’Brien and others against A. E. Ammerman and others. From an adverse judgment, plaintiffs appeal.</p>

B\ Whitehurst, Judge. Suit by C. H. Cooper against J. Mercer Carter and wife. Verdict for defendants, plaintiff’s motion for new trial overruled, and plaintiff appeals.

<p>Appeal from District Court, Harris County; Charles E. Ashe, Judge.</p> <p>Action by the Guarantee Life Insurance Company and others against the Boston & Texas Corporation and others. Judgment for plaintiffs, and the named defendant and its receiver appeal.</p>

<p>1.-Constitutional law &wkey;>298(l) — Landlord and tenant <&wkey;200(l!/2) — Statute providing penalty for collecting rent greater than authorized void as denying due process.</p> <p>Rev. St. 1911, art. 5475, as amended in 1915 (Acts 34th Leg. c. 38, § 1 [Vernon’s Ann. Civ. St. Supp. 1918, art. 5475]), providing that tenant may recover twice the rental advanced, if the rental exceeds one-third the value of the grain and one-fourth of the cotton crop, is void as violating the due process clauses in both the federal and state Constitutions (Const. U. S. Amend. 14, § 1; Const. Tex. art 1, § 19).</p> <p>2. Courts &wkey;>90(7) — If decisions of co-ordinate courts conflict on constitutional questions, the correct one will be followed.</p> <p>Where the decision of the Court of Civil Appeal of another district conflicts with a decision of the court determining a constitutional question, the decision of the other court will not be followed, where not considered well founded.</p>

<p>1. Associations <®= 10 — Rules as to courts’ interference with decisions relating to members stated.</p> <p>Courts will not interfere with decisions of voluntary associations in disciplining, suspending, or expelling its members, where no property rights are involved, except to ascertain whether or not the proceeding was pursuant to' the rules and laws of such association, whether it was in good faith, and whether there was any violation of the laws of the land.</p> <p>2. Associations 10 — Member must exhaust remedies provided by association itself before applying to equity fon relief.</p> <p>Where a voluntary association under its rules expels a member, the member must resort to, and must exhaust, the remedies provided by the association itself through its constitution and by-laws, before applying to a court of equity for relief.</p> <p>3. Associations <S=> 10 — Member who has been expelled in violation of rules of association may resort to equity for relief.</p> <p>Where member of voluntary association has been convicted of an offense and expelled in violation of the rules and by-laws of the association, and where no by-laws or other laws of the association make any adequate allowance for relief by appeal from such conviction and expulsion, such member may resort to equity for relief.</p> <p>4. Associations •<§==> 10 — Member held entitled to enjoin association from expelling him.</p> <p>Member of voluntary association who was acquitted by his local lodge of making an attack upon grand officers, but who on appeal to the grand officers themselves was found guilty and ordered to be expelled, held entitled to restrain the association from expelling him; the provision of the by-laws providing for an appeal to and another trial before the grand officers, without the right on the part of the accused member to appeal from the judgment of such grand officers, being unreasonable and inadequate in such case.</p>

<p>Appeal from Liberty County Court; C. N. Smith, Judge.</p> <p>■ Action by J. S. Teague against Leon Mitchell. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Cass Comity; H. F. O’Neal, Judge.</p> <p>Action by J. J. Bradley against John Bar-' ton Payne, Director General, as Agent. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Vendor and purchaser <&wkey;308 (7) — Failure of title defense to purchase-money notes.</p> <p>Vendee in possession under an executed warranty deed may defeat a vendor’s suit upon purchase-money notes, in whole or in part, by showing that there has been a failure or partial failure, of title to the land, that there is a valid existing outstanding title, that there is danger of eviction, and also such facts as would prima facie repel the presumption that at the time of purchase he knew and intended to assume the risk of the defect, especially where vendors are nonresidents of the state.</p> <p>2. Reformation of instruments &wkey;>l6 j- Deed corrected to effectuate intent of parties.</p> <p>Where a deed does not convey the tract intended to be conveyed, parties are entitled to have correction effectuated by judgment; proper parties being before the court, and there being proof establishing mutual mistake.</p> <p>3. Pleading <&wkey;376 — Admission of facts by one defendant did not establish them as against other defendants and interveners.</p> <p>Admission by one defendant of every fact alleged in petition necessary to establish plaintiff’s case did not relieve plaintiff of her onus of establishing facts admitted as against other defendants and interveners.</p> <p>4. Vendor and purchaser <&wkey;>308(l) — Threat of eviction not essential to defense of partial failure of title.</p> <p>There need be nothing more than an actual claim under an outstanding paramount title, or else danger of eviction by it, to warrant defense of failure of title in an action on vendor’s lien notes, and there need not be an actual threat of eviction, and a like rule is applied where, through a mutual mistake in a deed, the legal title stands in the name of a third person, as vendee will not be relegated to mere chance to make title through a suit for reformation.</p> <p>5. Judgment <&wkey;IOl(2) — Not entered against defaulting party under pleadings and proof.</p> <p>One making a sale of land to which he has no title cannot foreclose a vendor’s lien for the price and cannot go into court confessing in his pleadings that he conveyed no vestige of title and at the same time obtain a judgment for the purchase money, notwithstanding default of some of the defendants.</p> <p>6. Deeds <&wkey;93 — Nothing passes except what is described.</p> <p>Nothing passes by a deed except what is described in it, whatever the intention of the parties may be.</p> <p>7. Deeds <@=»I3 — Grants to deceased persons void.</p> <p>Generally a deed to a deceased person, “her heirs or assigns,” is void for want of a grantee; but, where the intention of the parties is clear and the persons intended by the terms “heirs or assigns” of the grantee are ascertainable beyond a doubt, the fact that the grantee is dead should not defeat such intention.</p> <p>8. Estoppel <§=>15 — Evidence <©=>215(1) — Correction deed executed after action commenced admissible to estop grantor and as admission.</p> <p>In action involving title to land, a correction deed, even though not passing legal title to heirs or grantee of deceased grantee, would be sufficient to estop grantor and her heirs from claiming title to land intended originally to be conveyed, and also was' admissible as an admission upon grantor’s part as to a mistake of description in the original deed, even though executed after the institution of the suit.</p> <p>9. Reformation of instruments <&wkey;33 — Parties to chain of title necessary to correction back to source of error.</p> <p>In order to reform deed not conveying property that parties had in mind, it is necessary to correct the title back to the source of the error, and the parties to all deeds in the chain of title are necessary parties to the proceeding.</p> <p>10. Trial <&wkey;l4I — Uncontroverted facts need not be submitted to jury.</p> <p>Where by reason of a record admission of one party, confession of liability by another, and default of another, certain facts were not controverted, court erred in submitting such facts to the jury;. there being no issue to be determined by it.'</p> <p>11. Evidence <©=>134 — Showing of similar acts to show intent inadmissible where intent is immaterial.</p> <p>It is only where the intent prompting an act in issue is material that it is competent to resort to a showing of similar acts as circumstantial proof of the act in issue as a part of a system or scheme.</p> <p>12. Vendor and purchaser <&wkey;281 (2) — Sheriff’s deed held properly admitted in evidence.</p> <p>In action to foreclose vendor’s lien notes where title to land was involved, held, that court properly admitted in evidence a sheriff’s deed which formed a link in chain of title under which certain parties claimed.</p> <p>13. Adverse possession <§=>47 — Suit held not to break peaceable possession. ■</p> <p>A suit did not break peaceable possession of land, where it was not prosecuted to final effect and ouster.</p> <p>14. Adverse possession -<§=>47 — Suit did not break peaceable possession as to persons not interested.</p> <p>A suit involving real estate did not break peaceable possession thereof as against persons not before the court in the suit, and limitations would continue to run as against their interests.</p> <p>15. Vendor and purchaser <§=>279 — Holder of vendor’s lien may protect title of vendees.</p> <p>It was the right and duty of one seeking to foreclose vendor’s lien notes, where third parties intervened and injected into the suit an action of trespass to try title, to protect the title both for herself and the vendees, and one of the vendees could not by willful default to interveners defeat her recovery.</p> <p>16. Adverse possession <§=>54 — Party may set up adverse possession no matter how remote.</p> <p>A party may establish title by adverse possession in his chain of title, however remote from the present time it may have ended.</p> <p>17. Adverse possession <@=>100(6) — Bond for title sufficient to comply with 10-year statute.</p> <p>A bond for title was sufficient memorandum of title to comply with the 10-year statute of limitations, where it obligated the conveyance of the entire title, though recognized claims of interest by heirs of a third person.</p> <p>Dickson, Special Justice, dissenting in part.</p>

E. Traylor, Judge. Action by J. K. Platt against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Appellee’s suit was against appellant as the Director General of Railroads. It was to recover damages appellee claimed he suffered by reason of negligence on the part of the St. Louis Southwestern Railway Company of Texas in handling a shipment of sweet potatoes delivered to it at Athens, November 5, 1917, for carriage to Corsicana.

<p>Appeal from District Court, El Paso County; B. Coldwell, Judge.</p> <p>Action by Isabella Ritter and husband against the Great Southern ¡Sulphur Company. Judgment for plaintiffs, and defendant appeals.</p>

Pierson, Judge. Action by T. W. Roach and wife against the Texas Employers’ Insurance Association and another. Judgment for defendants, and plaintiffs appealed to the Court of Civil Appeals, which reversed as to the named defendant (195 S. W. 328), and such defendant brought error to the Supreme Court, which reversed and remanded to the Court of Civil Appeals for further disposition of the remaining assignments of appellant.

<p>Appeal from Jefferson County Court; D. P. Wheat, Judge. Suit by Eva Trevis and husband against Abe Werth. Judgment for plaintiffs, and defendant appeals.</p>