Volume 56 — Texas Civil Appeals Reports

<p>1. —Tax Sale—Redemption.</p> <p>Article 5187 of the Revised Statutes gives the owner of land the right to redeem same from a tax sale within two years by payment or tender to the purchaser at such tax sale, and those acquiring an interest in the land during such period by a transfer from such purchaser duly recorded take the same subject to the right so given the owner to redeem from the original purchaser.</p> <p>2. —Same—Judgment.</p> <p>A judgment sustaining the validity of a tax sale but giving the owner the right to redeem within two years from a purchaser or his assignee, did not deprive him of his right to redeem from the original purchaser disregarding the rights of assignees.</p>

<p>Appeal from the District Court of Coleman County. Tried below before Hon. John W. Goodwin.</p>

<p>Appeal from the District Court of Potter County. Tried below before Hon. J. H. Browning.</p>

<p>1. —Personal Injury—Concurring Negligence of Third Party.</p> <p>If a railroad company was negligent in the maintenance of its station platform the fact that the negligence of a third party concurred with the negligence of the company in inflicting a personal injury upon plaintiff, would be no defense to an action against the railroad company for damages.</p> <p>2. —Negligence—liability for Natural Results.</p> <p>The injurious proximate and natural consequences of a negligent act are always deemed to have been foreseen. It is not necessary that the precise injury which occurred should have been anticipated.</p> <p>3. —Carrier and Passenger—Degree of Care.</p> <p>The failure of a railroad company to exercise the highest degree of care that a very cautious, competent and prudent person would exercise under similar circumstances to provide for its passengers a safe approach to its coaches, is negligence. This duty is required with respect to passengers on the company’s premises as well as .upon the trains.</p> <p>4. —Same.</p> <p>The fact that an intending passenger left the waiting room before an approaching train came to a full stop, and proceeded along the platform towards the place opposite which the passenger coach usually stopped, would not preclude the passenger from recovering damages for personal injuries caused by a defective platform, there being no intention or attempt to board the train before it came to a stop.</p> <p>5. —Trial—Calling Jury from Jury Room—Practice.</p> <p>It is not reversible error to call a jury back from the jury room, shortly after they had retired to consider of their verdict, and give them an additional charge requésted by the nlaintiff. Such matter lies in the discretion of the trial court. It was not calculated to give undue prominence or importance to said special change.</p> <p>6. —Personal Injuries—Case Stated.</p> <p>The engine of an incoming train struck a passenger on the platform of the station and threw her violently against the plaintiff who was attempting to rescue her, and plaintiff was thus in turn thrown upon a truck standing on the platform, and thereby injured. Evidence ■ considered, and held to justify a recovery by plaintiff against the defendant company upon the ground of negligence in the maintenance of its station platform.</p>

<p>Appeal from the District Court of Montgomery County. Tried below before Hon. L. B. Hightower.</p>

<p>Appeal from the District Court of Waller County. Tried below before Hon. Wells Thompson.</p>

<p>1.—Notes and Bills—Renewal—Endorser—Fraud—Innocent Holder.</p> <p>When the endorser of a promissory note voluntarily renews the same at maturity and thereby obtains an extension of time, with full knowledge that his signature to the original note was obtained by fraud, he can not urge the fraud in the procurement of the original note as a defense in a suit upon the renewal note without alleging and proving that the holder thereof had knowledge of the fraud at the time he bought or acquired the original note.</p> <p>3.—Same—Suit before Maturity—Attorney’s Fee.</p> <p>The fact that suit is filed upon a promissory note before maturity will not prevent a recovery by plaintiff of the attorney’s fee stipulated for in the note, when an amended petition is filed after maturity from which it appeared that suit was necessary to collect the note.</p>

<p>Appeal from the District Court of Harris Count)’. Tried below before Hon. Norman G. Ivittrell.</p>

<p>1. —Contract—Sale of Land—Forfeit.</p> <p>The term “forfeiture” when used in a contract does not necessarily exclude a purpose to make the sum named a penalty to which the parties may resort for the recovery of the actual damages resulting from a breach of the contract. Contract for the sale of land considered, and held not to evidence as matter of law an intention by the parties to make the sum named and deposited liquidated damages rather than a penalty, although the word “forfeit” was used.</p> <p>2. —Vendor and Vendee—Abstract of Title—Release of Vendor’s Lien.</p> <p>When a vendor had agreed to furnish an abstract showing good title in himself, and it appeared from the abstract of title that two vendor’s lien notes executed by a remote vendee had never been formally released, it was error for the trial court, under the circumstances of this ease to refuse to permit the vendor to testify that it was not customary at the time the said notes were executed to execute releases therefor when paid, the contention of the vendor being that the notes had in fact been paid.</p> <p>3. —Same—Contract of Sale—Evidence of Title.</p> <p>When a. contract for the sale of land did not specifically provide that the vendee had the right to demand an abstract which in and of itself evidenced a good title in the vendor, it was error for the trial court in an action to enforce the contract to charge the jury that the abstract itself must evidence all the facts necessary to constitute a good title in the vendor. An abstract of title is merely a summary of the documents and facts of record which affect the title. Parol proof may sometimes be resorted to for the purpose of explaining or supplying apparent defects in a record title.</p> <p>4. —Contract of Sale—Compliance by Vendor.</p> <p>A contract for the sale of land provided that in the event any debts should appear against the land, the vendee should assume the same, but he should not be thereby compelled to pay more than the agreed consideration nor should he pay the same any sooner than the time agreed upon; and it appearing from the abstract of title that two vendor’s lien notes executed by a remote vendee had never been formally released, an offer by the vendor to permit the vendee to deduct from the cash payment the amount of said outstanding notes, obviated any reasonable objection to the title because of said outstanding notes, and the vendor could not be required to incorporate in the deed the provision about the vendee assuming any debt against the land.</p>

<p>r Appeal from the County Court of Hardeman County. Tried below before Hon. J. C. Marshall.</p>

<p>Material Man’s lien—Statute Construed.</p> <p>In accordance with the terms of a written contract, a lumber company furnished to a contractor the building material necessary for the construction of a house; the lumber company failed to' give to the owner of the house or his agent or representative notice in writing of each item of the account as it was furnished to the contractor; the only notice served by the lumber company on the owner was a copy of the contract between itself and the contractor at the time the same was executed, and a copy of the entire account after the owner had paid the contractor all that was due him. Held, that the lumber company failed to comply with the statutory requirements necessary to fix a lien on the property.</p>

<p>1. —Divorce—Pleading—Exception—Harmless Error.</p> <p>When a suit for divorce is ba'sed upon two distinct grounds or counts in the petition, error on the part of the trial court in overruling exceptions to one count becomes harmless when the other ground for divorce is well pleaded, sustained by the evidence, and found by the jury in plaintiff’s favor.</p> <p>2. —Same—Abandonment.</p> <p>In an action for divorce, pleading considered, and held sufficient to admit proof that defendant had left plaintiff for three years with intention of abandonment.</p> <p>3. —Husband and Wife—Separate Property of the Wife—Pleading.</p> <p>While it is the rule that property purchased during the marriage is presumed to be community property and the burden is upon the party claiming the contrary to allege and prove such facts as will establish that it is his or her separate estate, this rule is complied with by the wife when she avers and proves that it was purchased with money of her separate estate. The same particularity in alleging the facts is not required of the wife as of the husband in such ease.</p> <p>4. —Deed—Consideration—Evidence.</p> <p>Parol testimony is always admissible to show wliat was the real consideration paid for property, and to explain the recitals in the deed as to the consideration.</p> <p>5. —Evidence—Ownership.</p> <p>The ownership of property is a fact to which a witness may testify in so many words—except when the whole issue of the case turns upon it—without the answer being subject to the objection that it is a conclusion of the witness.</p> <p>6. —Practice—Improper Evidence.</p> <p>Before the admission of improper testimony can be cause for the reversal of a judgment, it must be made to appear that the testimony was prejudicial to appellant.</p> <p>7. —Brief—Defective Assignment of Error.</p> <p>When an assignment of error complains of two or more rulings of the trial court relating to distinct questions, it is insufficient to require -a consideration of such questions by the Appellate Court.</p> <p>8. —Appeal—Practice—Rejected Charge.</p> <p>When a requested charge is long and embraces a number of distinct propositions of law, an assignment of error complaining of its refusal must be followed by propositions. in the brief pointing out the particulars wherein it is claimed its refusal was error.</p> <p>9. —Husband and Wife—Purchase of Property on Credit.</p> <p>The purchase of property by the husband on credit during the marriage does not necessarily make it community property. It may belong to the wife’s separate estate when paid for with money realized from a sale or mortgage of her separate estate.</p> <p>10. —Trial—Special Issues—Practice.</p> <p>When a case is tried on special issues a requested chaise calling for a general verdict is properly refused.</p> <p>11. —Same.</p> <p>The rule inhibiting a leading question to a witness has no application in propounding special issues to a jury.</p> <p>12. —Same.</p> <p>When a judgment is supported by the findings of the jury upon special issues properly raised by the pleading and evidence, the submission of issues not raised by the pleading and evidence is harmless error.</p>

<p>1. —Master and Servant—Assumed Risk—Rule.</p> <p>The- rule in this State is that an employee does not assume any risk caused by the negligence of the employer unless he either has actual knowledge of such negligence or, in the ordinary performance of his duties, must necessarily have known thereof in time to avoid injury therefrom.</p> <p>2. —Same—Negligence—Knowledge of Master—Evidence.</p> <p>In a suit by a locomotive fireman against a railroad company for damages for personal injuries received in attempting to alight from a locomotive while the same was upon a bridge in obedience to the order of the engineer, the issue being whether the engineer had actual knowledge that the locomotive was upon the bridge at the time he gave the order to the fireman, testimony of the engineer himself and of other witnesses considered, and held sufficient to require the submission of the issue to the jury, and to support an affirmative finding thereon, notwithstanding the testimony of the engineer that he did not know that the locomotive was upon the bridge at the time.</p> <p>3. —Trial—Repetition of Charges—Rule.</p> <p>It is not error for the trial court to refuse a charge submitting an issue already fairly submitted in the main charge. Upon an issue of contributory negligence, a charge requested by the defendant considered, and held properly refused for the above reason.</p> <p>4. —Master and Servant—Negligence—Order of Master—Intention Immaterial.</p> <p>If the words and actions of a master are reasonably calculated to induce a servant to do a certain act, and the servant is in fact caused thereby to do the act and he is injured, the fact that the master did not intend or expect for the servant to do the act, is immaterial.</p>

<p>1. —Homestead—Mortgage—Estoppel.</p> <p>While our Constitution prohibits mortgaging the homestead, and requires parties dealing with the homestead to take notice of the conditions that impress it with that character, still, where the borrower owns more than one tract, and part of it is not in the actual use of the owner and is not used openly and notoriously in connection with his home for the comfort and convenience of his family, and a mortgagee has no notice of its homestead character, if any, and is not put upon enquiry, then the owner making representations that the same is not the homestead, would be estopped from claiming it as such.</p> <p>2. —Same.</p> <p>Where a party owns several tracts of land adjoining, and he wishes to select his homestead of 200 acres out of said tracts, said tracts should be considered as one and the lines marking the division of the different tracts should have no controlling effect. He has the right to select one or more, or parts of several tracts, not to embrace more than 200 acres, and to exclude such parts of the different tracts not so selected, as he desires. When the parts combined embrace more than 200 acres and he has impressed the homestead character upon parts of different tracts, then his dwelling, outhouses, garden, etc. must be included in liis homestead, and the excess of 200 acres may be mortgaged by him, and if such excess is designated by him as not his homestead and he encumbers it, h'e will be estopped from afterwards claiming it as such.</p> <p>3.—Same.</p> <p>In a suit of trespass to try title, wherein the plaintiff claimed the land in controversy under a mortgage and foreclosure sale, and the defendant claimed that the land was homestead at the date of the mortgage and therefore the mortgage and sale thereunder were void, evidence considered, and held to raise such a question of fact as to the homestead character of the land as to require the submission of the issue to the jury.</p>

<p>Appeal from the District Court of Grayson County. Tried below before Hon. B. L. Jones.</p>

<p>Appeal from the District Court of Grayson County. Tried below before Hon. B. L. J ones.</p>

<p>Error from the District Court of Dallas County. Tried below before Hon. Thos. E. Hash.</p>

<p>1. —Pleading—Personal Injuries.</p> <p>-Allegations in the petition, in an action for personal injuries, held sufficiently specific as to the nature and extent of the injuries to enable the defendant to prepare its defense.</p> <p>2. —Pleading—Negligence—Railway—Collision.</p> <p>Where the plaintiff was injured in a wreck of the train on which he was a passenger caused by a collision between such train and an engine, allegations that said train, through the carelessness and negligence of the railway company’s agents, servants and employes who operated and controlled the movements of its trains, engine and cars, with terrific force ran into and collided with an engine with such force and violence as to cause the passenger coach of the train in which plaintiff was being transported to be jammed together, broken and shattered, and that the car in which plaintiff was riding was struck with such great force as to wreck .it, etc., did not limit the charge of negligence to those controlling the passenger train; and the court was" authorized to submit the issue though the undisputed evidence showed that the negligence of those in charge of the colliding engine caused the wreck.</p> <p>3. —Measure of Damages—Medical Bills—Charge.</p> <p>Evidence that the plaintiff was at a sanitarium for treatment, and was charged and paid a certain sum which included medical bills and treatment by certain physicians on the basis of a certain sum per week, authorized the jury to infer that the charges were reasonable; and, there being no evidence that other physicians who treated him charged for their services or intended to charge therefor, the defendant could not complain of a charge which allowed all reasonable and necessary physicians’ bills, in the absence of a request for a special charge.</p> <p>4. —Evidence—Expert Testimony.</p> <p>The opinion of an expert, elicited on cross-examination, that tuberculosis or consumption sometimes results from a lick or traumatism in the region of the lungs, was admissible, over objection that it was speculative and conjectural.</p> <p>5. —Same.</p> <p>The defendant having brought out testimony of an expert that the symptoms which the plaintiff complained of were those of neurasthenia, but there was no outward evidence demonstrating the presence of such symptoms, it was permissible for the plaintiff to show on cross-examination that a person could suffer from neurasthenia without any objective symptoms of the disease.</p> <p>6. —Same.</p> <p>Where the evidence showed an injury on the left side of the chest, and the defendant introduced evidence to show that it was a slight bruise, the plaintiff was entitled to show by an expert, who found a bandage over such place but did not remove it in treating the plaintiff, the manner of the dressings and that it indicated there had been a hurt there of some kind, either a broken rib or a bruise. ‘</p> <p>7. —Same—Declarations.</p> <p>Declarations made by the injured person to his physician while sick and under treatment, in explanation of his symptoms, are admissible as against objection that they are self serving and no part of the res gestae.</p> <p>8. —Same—Suppression of Evidence—Rebuttal.</p> <p>Where defendant proved that by agreement of counsel the plaintiff was to meet a physician selected by defendant at a certain time and place for examination at defendant’s instance, and that he did not appear at the time stated or at any time for such purpose, testimony of a physician who was with him at the time that it would not have been safe for plaintiff to come to town at such time and stand an examination, was admissible in rebuttal, when limited to the purpose of explaining why he did not come in accordance with the agreement.</p> <p>9. —Damages—Verdict Held Excessive.</p> <p>A verdict awarding damages for personal injuries in the sum of thirty-four thousand dollars held excessive, and remittitur required.</p>

<p>1. —Community Property—Presumption—Statute.</p> <p>The fact that land was reciprocally possessed by the original grantee and his wife at the dissolution of the marriage by the death of the grantee, required that it be regarded as community property until the contrary was satisfactory proved. Rev. Stats., art. 2969.</p> <p>2. —Evidence—Inference upon Inference—Marriage.</p> <p>Where the sole issue was whether or not the original grantee was married to Ann Radcliff at the date the. land certificate issued to him in 1840, a deed executed by him to Ann Radcliff in 1839, offered to show that at such date they were not married, as a circumstance from which the inference was sought to be drawn they were not married in 1840 when the certificate was issued, should have been excluded. The inference sought to be drawn is too remote and is founded on another inference, that the Ann Radcliff named in the deed is the same Ann Radcliff to whom the grantee was afterwards married. An objection that the deed named “An” Radcliff as grantee was without merit.</p> <p>3. —Community Property—Presumption—Rebuttal.</p> <p>Conceding the admissibility of the deed, the fact that the original grantee and the woman he afterwards married were not married in 1839, affords only a remote inference that they were not married in 1840, and, standing alone, could not overcome the presumption of community property arising from the facts that the land was reciprocally possessed at his death, before 1847, that the. surviving wife in'184S claimed, sold and conveyed it as sole heir, and that this was seemingly acquiesced in by his administrator who reported no assets, and that the grantee received a donation to which he would only have been entitled as a married man or head of a family.</p> <p>4. —Same—Land Certificates.</p> <p>If the land certificate was issued to the grantee before his marriage, and his marriage occurred before it was located, upon the marriage it became community property under the statute. Act of January 20, 1840, see. 4.</p> <p>5. —Personal Property—Land Certificates.</p> <p>That an unlocated land certificate is personal property is well settled by the decisions of this State.</p> <p>6. —Limitation—Remainderman.</p> <p>Limitation does not run against the remainderman during the existence of the life estate.</p>

<p>Appeal from the District Court of Harris County. Tried below before Hon. Norman G. Kittrell.</p>

<p>Appeal from the District Court of McLennan County. Tried below before Hon. Marshall Surratt.</p>

<p>1. —Railway—Lighting Water Closet.</p> <p>Evidence that a lamp at a passenger station east a light in the direction of the water closet there maintained did not show compliance with the law requiring the latter to be lighted, where there was no evidence that it was kept lighted at the hours required by the statute.</p> <p>2. —Penalty—Constitutional Law—Overruled Case.</p> <p>A ruling of the Supreme Court holding a penal statute unconstitutional in its application to the acts of defendant then involved, will not protect a defendant incurring a penalty by violating the statute in other particulars in which its validity was sustained, where the court do not overrule the first but distinguish and harmonize the two decisions.</p>

<p>Railway—Killing Stock—Negligence.</p> <p>Evidence considered, and held to support a finding that plaintiff’s horse was killed by the negligence of those operating a railway train at a point where the road was not required to be fenced, in failing to sound the signals required for highway crossings, in running through a town at a high rate of speed, and in failing to keep a proper lookout for animals at a point where they were frequently found upon the track. Gulf, C. & S. F. R. R. Co. v. Anson, 101 Texas, 198, and Missouri, IC. & T. Ry. Co. v. Baker, 99 Texas, 452, distinguished.</p>

<p>1. —Carriers of Passengers—Pleading—Evidence.</p> <p>Under an allegation that a passenger was carried by her destination without being afforded time to alight, evidence that she was compelled to pass through several coaches in attempting to do so because the vestibule doors were closed was admissible without being specially alleged.</p> <p>2. —Passenger—Carrying beyond Station—Evidence.</p> <p>In an action for damages for carrying a passenger beyond a station, evidence of the surroundings at the point where the train was stopped and she disembarked was admissible.</p> <p>3. —Evidence—Contingent Pee.</p> <p>It was not permissible to ask the plaintiff suing for damages as to whether her attorneys were prosecuting the suit for a contingent fee.</p> <p>4. —Judge—Jury—Comment on Evidence.</p> <p>Remarks of the court on the admissibility of evidence in response to an inquiry addressed by appellant’s counsel held no invasion of the province of the jury.</p> <p>5. —Requested Charge.</p> <p>The court properly refused to consider requested instructions not -called to its attention until after verdict.</p> <p>6. —Assignments of Error.</p> <p>Distinct assignments of error, one relating to the measure of damages, the other as to the element of damages to be considered, can not be grouped and treated together in the brief.</p> <p>7. —Passenger—Carrying past Station—Damages—Proximate Cause.</p> <p>A passenger can not be denied recovery for injuries received in returning to the station of her destination because she voluntarily left the train at a point beyond same, where tlie carrier refused to back the train to the station and offered no other alternative but to be carried to the next station. Requested instructions on this subject held properly refused.</p> <p>8. —Question of Pact.</p> <p>Whether a railway wrongfully carrying a passenger beyond destination was excused for failing to back the train to the station just left by reason of danger of collision with a following section was a question of fact.</p> <p>9. —Charge—Weight of Evidence.</p> <p>Requested instructions which are upon the weight of evidence are properly refused.</p> <p>10. —Contributory Negligence—Pleading—Evidence.</p> <p>A requested charge relieving a railway from liability for damages incurred by a passenger leaving the train at a point beyond the station, if the injury could have been avoided by going to the next station and returning on the train therefrom, were properly refused where there was no pleading or evidence raising the issue of contributory negligence in so doing.</p>

<p>Appeal from the District Court of Jefferson County. Tried below before Hon. L. B. Hightower, Jr.</p>

<p>1. —Homestead—Trust Deed—Sale.</p> <p>Where an incumbrance on real property by trust deed was created by the owner at the time when it was not his homestead, a sale by the trustee under the power given by the deed passed title, although the owner with his family occupied it as their homestead at the time of the sale. Stone v. Darnell, 20 Texas, 11; Griffie v. Maxey, 58 Texas, 211, distinguished.</p> <p>2. —Same.</p> <p>Evidence considered and held to support a finding that property not actually occupied as a homestead at the time contract lien was fixed thereon was not a homestead in fact though the owner testified that he then intended to occupy it as such in the future.</p> <p>3. —Same—Intent to Occupy—Abandonment.</p> <p>The mere intent to occupy property in the future as a homestead, if sufficient to fix its status as such, was capable of abandonment and was abandoned by the act of the owner in inducing another to loan money on security of a trust deed by disclaimer of homestead rights therein.</p>

Tried below before Hon. P. A. Turner. The terms of the reward offered were as follows: “$2,000.00 REWARD. “On the night of December 1, 1906, at or near Red Water, Texas, the joint Express Messenger and Train Baggageman on Saint Louis SouthAvestern Railway train Ho. 4, was murderously assaulted ‘and robbed by two unknoAvn men. “The Saint Louis Southwestern Railway Company and the Pacific Express Company will jointly pay a reward of $1,000.00 each for the arrest and conviction…

<p>1.—Trespass to Try Title—location and Survey—Patent.</p> <p>The right to recover land by one owning a certificate and showing a valid location and survey, is met by proof of a patent to defendant or a third party under a different certificate and survey, unless plaintiff then shows a superior right over the patentee by virtue of his priority of appropriation or the invalidity of the patent; and this is true though the patent issued after suit was brought.</p> <p>2. —Field Notes—Return.</p> <p>If the Act of February 12, 1852 (Laws 4th Leg., p. 58) requiring that field notes of previous surveys be returned to the General Land Office by Aug. 31, 1853, was applicable to surveys of land for public school purposes, which is questioned, the rights lost by failure to comply therewith were restored by the Act of April 25, 1871, and prevailed over an adverse location made after the latter Act took effect.</p> <p>3. —Same—Forfeiture—Waiver.</p> <p>The State had the right to waive forfeiture of a land location by failure to return the certificate, and the legislative Act doing so was not a new donation.</p> <p>4. —Corporation—Dissolution—Nonuser of Franchise.</p> <p>In case of a corporation chartered for the promotion of public education, it seems that the presumptions of forfeiture or corporate dissolution obtaining in case of corporations for private gain will not be indulged.</p> <p>5. —Same.</p> <p>Nonuser of franchise is merely a ground for forfeiture or dissolution of a corporation by judicial proceedings by the State; and presumption of dissolution from long nonuser is rebutted by a statute recognizing continued existence of the corporation.</p> <p>6. —Same—College—Right to Hold and Convey Property.</p> <p>• An educational corporation endowed by grant of a land certificate, surveyed for it but not patented, took no steps to establish its school or otherwise exercise its powers for more than sixty years, during which time a majority of the trustees named in the charter either died or moved from the State. A special Act of the Legislature then filled the vacancies in the board of trustees and authorized such reorganized board to exercise the powers granted by the original charter. Patent to the lands formerly located and surveyed was then issued to the corporation. Held, that its title.prevailed over that of an adverse claimant locating a certificate in compliance with law upon the same land during the period' of nonuser of its franchises.</p> <p>7. —After Acquired Title—Pleading.</p> <p>Defendants in trespass to try title could not receive affirmative relief by reason of patent issued after suit was filed without pleading, by amendment, such after acquired title; but they could introduce same as showing an outstanding title in disproof of plaintiff’s right to recover without repleading their plea of not guilty after the patent issued.</p> <p>8. —Public Lancls—School land.</p> <p>Lands granted for the establishment of a college for public education, on the dissolution of such corporation became, by Art. 9, Sec. 6, of the Constitution of 1869, and similar provisions in the Constitution of 1876, a part of the public school fund and were not subject to location as part of the unappropriated public domain.</p>

<p>Appeal from the District Court of Bowie County. Tried below before Hon. P. A. Turner.</p>

<p>1. —Injunction—Appeal—Effect.</p> <p>It is only when the preliminary order of injunction is mandatory, that is, requires affirmative action or the performance of specified things, that an appeal with supersedeas suspends the order. When the order is prohibitive merely, the appeal leaves it operative; the reason of the rule being the same in both cases, namely, to preserve the status quo of the parties and subject matter pending the appeal.</p> <p>2. —Same—Statute.</p> <p>An appeal with supersedeas from a preliminary order enjoining the sale of intoxicating liquors upon certain premises, would not suspend the operation of the injunction pending the appeal. Article 1406, Rev. Stats., has reference to final judgments and not to such preliminary orders as are authorized by the Act of April 16, 1907, concerning appeals from orders granting injunctions.</p> <p>3. —Same—Contempt Proceeding.</p> <p>When a lessee agreed and stipulated in the contract of lease that intoxicating liquors should not be sold upon the leased premises, in a contempt proceeding for violating an injunction forbidding the sale of such liquors on said premises, he will be held responsible for the acts of his subtenant in violating said contract.</p>

<p>Appeal from the District Court of Wichita County. Tried below before the Hon. A. H. Oarrigan.</p>

<p>Appeal from the District Court of Tarrant County. Tried below before Hon. Jas. W. Swayne.</p>

<p>Appeal from the County Court of Martin County. Tried below before Hon. Bailey Anderson.</p>

<p>1. —limitation—Contract for Services—Tenants in Common.</p> <p>Where one tenant in common entered into a contract with the independent executor of the estate to handle, manage and control certain land devised to him and others, and was to receive a certain sum per year for his services which he was to take out of the rents in the fall of each year, the estate not to be run in debt, and in a suit by the cotenants for partition sought to recover against them for such services, which terminated under the contract in 1900, it was error to refuse to instruct that his claim was barred by the statute of limitation pleaded by the cotenants.</p> <p>2. —Same—Tenants in Common.</p> <p>Where one tenant in common contracted with his cotenants to handle, manage and control the land for a definite sum payable at a definite time—the fall of each year, to be taken out of rents—limitation ran against the claim for services as in any other case. The fact that he was a cotenant could not affect the question.</p> <p>3. —Tenants in Common—Services—lien.</p> <p>Where a tenant in common contracted with the cotenants to handle, manage and control the farm for a certain sum per annum payable out of the crop of each year, without incurring any debts further than could be met by the rents, and such contract gave no lien on the land, equity gave none, and it was error in allowing him for such services, in a suit for partition, to fix a lien for the sum due.</p> <p>4. —Same—Partition—Improvements.</p> <p>In adjusting the question of improvements between tenants in common a recovery should not be allowed in favor of the improving tenant for the value of his improvements against his cotenants; but in making the partition his improvements should be set apart to him, if it can be done without detriment to the interest of such cotenants.</p>

<p>1. —Partition—Act Construed.</p> <p>Prior to the Act of 1905, the duty of determining in a statutory proceeding whether lands sought to he partitioned were susceptible of partition, was committed to the commissioners of partition; but by amendment of article 3611, Rev. Stats. (Gen. Laws, 1905, p: 95) this duty is imposed upon the court, to be performed before the decree of partition is entered and the commissioners appointed.</p> <p>2. —Same—Decree—Presumption.</p> <p>A decree ordering partition of land and appointing commissioners concluded as follows: “If, in the opinion of the said commissioners, a fair and equitable division of said real estate or any part thereof can not be made, they shall report the fact to this court in writing under oath at this term, stating their reasons for such opinion, etc.” Held, in view of said recital and in the absence of anything in the record to the contrary, it could not be presumed that the court determined whether or not the land Avas susceptible of partition, but it must be supposed that the court committed the determination of that fact to the commissioners.</p> <p>3. —Same—Harmless Error.</p> <p>When, in a suit for partition, the defendants filed no answer and made no contest at any step in the proceedings, and in the absence of some showing on appeal that injustice was done them by the- decree of partition, the failure of the trial court to ascertain that th'e land was capable of partition before entering the decree and appointing the commissioners, will not be cause for reversal of the judgment.</p> <p>4. —Same—Partition among Defendants—Absence of Pleading.</p> <p>Where, in a suit for partition, the plaintiff owned an undivided one-fourth interest in the land and two defendants owned the remaining three-fourths, and the defendants filed no answer and made no contest or objection in the trial court, it was not reversible error on appeal by the defendants that the trial court decreed partition as between the defendants although there was no pleading praying therefor.</p>

<p>1. —Appeal—Rendition of Judgment—Practice.</p> <p>When the judgment of the trial court is reversed the Court of Civil Appeals should not render judgment, although it may have power to do so, when the case must be retried upon a different theory in accordance with the opinion of the appellate court, and may therefore not have been fully developed on the first trial.</p> <p>2. —Certifying Question—Practice.</p> <p>Simply because additional authorities are cited which make it possible that the Supreme Court would have ruled differently on a question certified to them if their attention had been called to the authorities, is not a sufficient reason for certifying the same question a second time to said court.</p>

<p>Appeal from the District Court of Navarro Counity. Tried below before Hon. H. B. Davies.</p>

<p>Appeal ijrom the District Court of Bell County. Tried below before Hon. John1 M. Furman.</p>

<p>Error from the District Court of Brown County. Tried below before Hon. John W. Goodwin.</p>

<p>Appeal from the County Court of Hays County. Tried below before Hon. Ed R. None.</p>

<p>1. —Damages—Diminished Earning Capacity—Contract of Carriage—Breach.</p> <p>In an action for injuries to a passenger, based on a breach of the contract of carriage, damages for diminished earning capacity resulting from the injuries are recoverable.</p> <p>2. —Same.</p> <p>While diminished capacity to earn money can be considered as an element of damages in an action to recover for personal injuries to a passenger based on a breach of the contract of carriage, there must be some evidence of the capacity to earn it to justify an instruction to the jury to consider such element in arriving at their verdict.</p> <p>3. —Same.</p> <p>Testimony of the injured party that before the accident she did not do anything in regard to domestic duties, that she looked after clothing and kept it attended to and that she did not have a household, in the absence of any evidence indicating she is unable to look after the clothing since the accident, did not raise the issue of diminished earning capacity.</p> <p>4. —Continuance—Bill of Exceptions—Practice.</p> <p>When no bill of exceptions is reserved to the refusal of a continuance, such refusal will not be revised even though the record shows that exception was reserved to the refusal.</p> <p>ON REHEARING.</p> <p>5.—Damages—Diminished Earning Capacity.</p> <p>In order to authorize diminished earning capacity to be submitted to the jury as an element of damage, there should be evidence tending to show what was the earning capacity before the injury and the extent to which it has been affected. Dallas Con. E. St. Ry. Co. v. Motwiller, 101 Texas, 515.</p>

<p>Appeal from the District Court of San Jacinto County. Tried below before Hon. L. B. Hightower.</p>

<p>Appeal from the District' Court of El Paso County. Tried below before Hon. J. M. Goggin.</p>

<p>1. —Deed—Execution—Circumstantial Evidence.</p> <p>The existence and execution of a deed may be shown by circumstances as well as by direct proof.</p> <p>2. —Notice—Unrecorded Deed—Occupancy of land.</p> <p>Actual possession and occupancy of land is constructive notice of the title of the occupant though his deed be unrecorded.</p> <p>3. —Same.</p> <p>The original grantee of a 320-survey _ conveyed the same to P. and W. as joint owners; the deed to P. and W. was never recorded; the joint owners partitioned the land among themselves, and P. took actual possession of the portion allotted to him; the portion allotted to W. was not occupied. Held, a. subsequent purchaser of the entire 320-survey from the heirs of the original grantee having actual notice of the possession of P. was by reason of such possession charged with notice of the deed to P. and W., by the original grantee and therefore could not claim to be an innocent purchaser.</p>

<p>Appeal from the District Court of Sabine County, Tried below before Hon. W. B. Powell.</p>

<p>Appeal from the District Court of Galveston County. Tried below before Hon. Bobt. G. Street.</p>

<p>1. —Brief—Assignment of Error—Statement.</p> <p>In the preparation of a brief, a mere reference to the record without such a statement of the facts appearing in the record as will enable the Appellate Court to pass on an assignment of error, is not sufficient.</p> <p>2. —Estoppel—Heirs.</p> <p>When heirs join in the conveyance of land which they knew had been received by their mother in consideration of a land certificate belonging to the community estate of their father and mother, they are thereby estopped from denying that their mother was authorized to sell the certificate.</p> <p>3. —Same—Estoppel by Warranty.</p> <p>When the heirs of a surviving wife inherit property from her, they are estopped from claiming title to land located by virtue of a certificate sold and conveyed by her with covenant of warranty.</p> <p>4. —Limitation—Boundaries.</p> <p>A defendant in trespass to try title claimed 160 acres under the ten years statute of limitation; the lines of the land claimed by him had been marked or “blazed out” when he first took possession; a subsequent survey showed that defendant had marked out more than 160 acres; after the survey he claimed only the 160 acres. Held, defendant’s adverse possession having continued for more than ten years before the suit was filed he was entitled to hold the entire tract of 160 acres and not merely the quantity actually enclosed.</p>

<p>1. —Attaching Creditor—Consideration—Evidence.</p> <p>Land conveyed from a mother to her son was reconveyed by him, both deeds reciting that the consideration was love and affection. Before the reconveyance it was attached by a creditor of the son who had notice thereof. In an action to subject the land to the attachment lien, it was competent to prove that the first deed was on a parol agreement that the son would build and reside on the land in order to be near and assist his mother and his reconveyance was in consideration of his inability to comply with this condition, such evidence being admissible to prove that his deed to her was on a valuable consideration and not void against his attaching creditor.</p> <p>2. —Charge on Weight of Evidence—Invited Error.</p> <p>Error in giving a charge which was on the weight of evidence is not excused under the doctrine of invited error by appellant requesting a charge modifying the propositions announced in that given, but invading in like manner the province of the jury.</p> <p>3. —Charge—Omission—Request.</p> <p>A charge not erroneous in itself is not ground for reversal in the absence of a requested instruction modifying it.</p>

<p>1. —Street—Dedication—Map—Construction.</p> <p>A map or plot is a written instrument and its construction is for the court unless there is an ambiguity which renders it necessary to resort to circumstances attending its making in order to arrive at the real intent of the parties.</p> <p>2. —Same—Evidence of Intent.</p> <p>In a case where a town was laid off by a railway company and a map filed showing its streets and blocks with their relation to the property reserved by the railway for its own use, evidence of the circumstances attending such dedication of streets and subsequent conduct of the company in relation thereto considered and held to disclose no act or declaration on the part of defendant company raising any question of fact as to the intent to be deduced from the filing of such map, and leaving its construction one for the court.</p> <p>3. —Same—Case Stated.</p> <p>A railway company laid out and mapped streets and blocks for a town on property owned by it at a station which it established. The map showed a strip 200 feet wide along its tracks marked “reserved for railway purposes” and enclosed by a marked line. Streets were mapped on either side of and running parallel with this reservation. At right angles with the reservation C. street was represented by bounding lines running across such reservation at the depot. T. street and others were represented by lines terminating at the marked boundary of the railway reservation. Held, that such map would not evidence any intent to dedicate a crossing of T. street over the reservation and tracks of the railway company.</p> <p>4. —Dedication by Map—Intent—Subsequent Conduct.</p> <p>The intent as to the dedication to the public of a certain street by a map filed by the owner of the property is not affected by his subsequent conduct in opening and recognizing another street similarly represented upon the map.</p>

<p>Judgment—Pleading—Petition.</p> <p>Where the petition in an action for land expressly limited the claim asserted to three-fourths of the survey described, no valid judgment by default could have been rendered thereon for the entire survey, though a second count contained allegations of facts which, if true and properly proven, would have entitled the plaintiff to recover the entire survey. The rule that the entire petition must be considered in arriving at the intention of the pleader had no application.</p>

<p>1.—Policeman—Official Bond—Liability of Surety.</p> <p>For an unlawful and malicious assault by a policeman, a private individual has no cause of action against a surety on his official bond given to the city to segure the faithful and impartial discharge of his duties by the policeman, in the absence of averment that the bond was executed for the benefit of persons not parties thereto; and in the absence of an ordinance of the city authorizing suits upon such bonds by persons injured by the unlawful acts of its policeman.</p> <p>2. —Bond—Surety—Obligation.</p> <p>The obligation of a surety can not be extended beyond the terms of his bond nor to those not parties thereto.</p> <p>3. —Case Distinguished.</p> <p>Holliman v. Carroll,-27 Texas, 23, distinguished.</p>

<p>Appeal from the District Court of Dallam County. Tried below before Hon. J. N. Browning.</p>

<p>Contract of Sale—Specific Performance.'</p> <p>Where the authority of agents to sell land extended only to making a sale at a certain price per acre, one-half cash and the balance in five equal annual payments, a contract by said agents allowing the purchaser five weeks for making the cash payment, and receiving from the purchaser a certain sum of money as a' forfeit or payment on the purchase, was not binding on the principal, and the purchaser could not' enforce specific performance of the same.</p>

<p>Appeal from the County Court of Callahan County. Tried below before Hon. C. D. Bussell.</p>

<p>Appeal from the District Court of Grayson County. Tried below before Hon. B. L. Jones.</p>

<p>Appeal from the District Court of Dallas County. Tried below before Hon. R, M. Scott, Special Judge.</p>

<p>Appeal from the Sixty-first Judicial District, Harris County. Tried below before Hon. Herman G-. Kittrell.</p>

<p>Appeal from the District Court of McLennan County. Tried below before Hon. Marshall Surratt.</p>

<p>1. —Evidence—Declarations.</p> <p>Utterances constituting expressions of existing pain or suffering by one who had received an injury, are admissible and are not excluded as hearsay.</p> <p>2. —Evidence—Opinion—Ability to Work.</p> <p>One not a medical expert, but familiar by observation with plaintiff’s physical condition before and after his injury, may testify that plaintiff was not able to perform physical labor after receiving it.</p> <p>3. —Cases Distinguished.</p> <p>Moore v. Kennedy, 81 Texas, 147, and Gulf, C. & S. F. By. Co. v. Bichards, 83 Texas, 203, distinguished. Wells-Fargo Express Company v. Boyle, 39 Texas Civ. App., 365, disapproved.</p> <p>4. —Charge—Harmless Error.</p> <p>It would seem that where the act of negligence relied on for recovery was so clearly established as to leave no room for doubt on that subject, appellant is not in a position to ask reversal on account of alleged errors in the charge of the court relating thereto.</p> <p>5.—negligence—Collision of Trains.</p> <p>Evidence considered and held to support a recovery for injuries to a railway fireman in a collision of trains caused by the failure of defendant’s telegraph operator to deliver to the conductor of one of them a message directing him to remain at a certain station uritil the other train had passed.</p>

<p>1. —Trespass to Try Title—Abstracts of Title.</p> <p>A second abstract of title tiled by a party in an action of trespass to try title and not apparently intended to supersede the former abstract, is to be taken in connection therewith and the two considered together in determining whether or not the opposite party had received notice of the title papers proposed to be introduced in evidence.</p> <p>2. —Brief—Statement.</p> <p>An assignment of error upon the refusal of a charge submitting defendant’s plea of limitation should be followed in the brief by a statement showing the charge refused and the facts in connection with it necessary to determine whether the charge would have been proper.</p> <p>3. —Estoppel—landlord and Tenant.</p> <p>A tenant is estopped from questioning the title of his landlord during the continuance of the lease; but when that relation terminates he has the right to assert any title that he has against the landlord.</p> <p>ON MOTION FOR REHEARING.</p> <p>4. —Statement of Facts.</p> <p>Where a case is reversed upon appeal on a question of law not dependent upon the facts, it is unnecessary to pass upon the merits of a motion by appellee to strike out the statement of facts.</p> <p>5. —Practice on Appeal—Exclusion of Evidence—Statement of Facts—Bill of Exceptions,</p> <p>Where the action of the court in excluding from the evidence deeds offered by appellant, and the relevancy of the evidence offered, are shown by the bill of exception, the alleged error will be considered, independent of what may be shown by the statement of facts.</p> <p>6. —Trespass to Try Title—Use and Occupancy—Improvements.</p> <p>Plaintiff in trespass to try title is limited in his recovery for the use and occupancy of the land to two years prior to the commencement of the suit, except where the claim for improvements by defendant is greater than that for such use and occupancy, in which case the value of the latter for a longer period may be considered for the purpose of balancing the claim for improvements.</p>

<p>1. —Guardianship—Jurisdiction of District Court.</p> <p>In a proceeding in the County Court to have one declared non compos mentis and to appoint a guardian of his estate, his father, whose previous application to be guardian was also pending, appeared and contested the necessity of any guardian. The court appointed another as guardian, and the father, by certiorari, removed the proceedings to the District Court, seeking there the removal of the appointee and substitution of himself as guardian. Held, that the proceedings disclosed a controversy in the County Court between the two claimants to the appointment, over which the District Court had appellate jurisdiction by certiorari, and not an original proceeding by the father for such appointment in the District Court, which had no original jurisdiction.</p> <p>2. —Same—Waiver of Appeal.</p> <p>It seems that where, in a contest between A. and B. over the right to be appointed guardian, resulting in the selection of B., A. waived his right of appeal, agreeing with B. that the latter resign and C. be appointed, which was done, A. could not thereafter prosecute writ of error to revise the judgment rejecting his application and appointing A.</p> <p>3. —Guardianship—Costs.</p> <p>One who is appointed guardian on being suggested to the court as a suitable person by another who had made application for adjudging the ward a lunatic and appointing a guardian of his estate, is liable personally for costs where he contests the right of the father of the ward in a successful proceeding by the latter to secure his removal and the appointment of the father as guardian.</p>

<p>Appeal from the District Court of Harris County. Tried below before Hon. Chas. E. Ashe.</p>

<p>Appeal from the District Court of Jasper County. Tried below before the Hon. W. P. Powell.</p>

<p>Appeal from the District Court of Bowie County. Tried below before Hon. P. A. Turner.</p>

<p>1. —Mandamus—Officer—Construction of Law.</p> <p>If an officer by misconstruction of a statute deprives a citizen of an unquestioned legal right, and such person has no right of appeal or other adequate remedy, the courts have power to review such decision and award relief by mandamus.</p> <p>2. —Practice of Medicine—¡District Board of Examiners—Examination for License—Certificate.</p> <p>Under the law in force in 1889, (Dev. Stats., arts. 3784, 3785) women practicing obstetrics only were exempt from examination by county medical boards; the latter were only authorized to give certificate of qualification on examination upon all the subjects enumerated in the statute, and such certificate entitled the applicant to enter on the general practice of medicine; the board will be presumed to have discharged their duty with respect to such examination; their certificate that they had examined the applicant as required by the law must be taken as including an examination and satisfaction as to qualification in all the required branches; and, having no-power to limit the right of an applicant found qualified for the practice of certain branches of the profession, their attempt to restrict the effect of their certificate to a right to practice “branches of obstetrics and diseases peculiar to women and children” was unwarranted and should be treated as surplusage.</p> <p>3. —Same—Verification by State Board—Act of 1907.</p> <p>A woman-holding a certificate showing her examination and qualification for the general practice of medicine, issued by a district board of medical examiners in 1889, showing that same had been duly filed and that she had ever since been engaged in a general practice thereunder, applied to the state Board of Medical Examiners for verification of such license by them in accordance with the requirements of the Act of April 17, 1907 (Laws 30th Leg., p. 224). The Board refused her a certificate of verification as a general practitioner and tendered her a verification license to practice “obstetrics only,” basing their action on a misconstruction of the legal effect of the original certificate. Held, that such refusal of a general verification of her certificate was unwarranted, and the Board was properly required by mandamus to issue same.</p> <p>4. —Same—Pleading.</p> <p>Where the legal effect of- a certificate of examination as to the qualifications of a physician, issued in 1889, by a district board of medical examiners, was to qualify the applicant to pursue the general practice of medicine, a prayer in her petition for mandamus that the Board of Medical Examiners for the State be required to issue a verification license under section 6, of the Act of April 17, 1907, “according to the terms and provisions of the certificate granted” was sufficient to support the award of a writ requiring the issuance of such verification certificate as a general practitioner.</p>

<p>1. —limitation—Cotenants—Possession—Trust Relation.</p> <p>Where a surviving husband continued in possession of community real estate till his death by consent of the heirs, the trust relation attaching to his possession did not attach to that of an heir who, residing on the land with the father during his life, after his death occupied a specific part of the land as his by inheritance and partition, holding same adversely to another of the heirs.</p> <p>2. —Same—Charge.</p> <p>A surviving husband, by consent of the children, heirs of the wife, occupied the community real property during his life. On his death a judgment partitioning the land between the heirs was had and they took and held possession of their specific allotments adversely to the claim of one of them whose rights were ignored in and who was not a party to the partition. Limitation ran in their favor against such dispossessed heir. Charge held to properly submit this issue.</p> <p>3. —limitation—Cotenant—Disseisin—Partition.</p> <p>Heirs of a decedent, having obtained partition of his lands among them by decree of court, took possession of, held, improved and paid taxes on their several allotments for more than ten years. Held, that such possession was property treated as a disseisin, as matter of law, of a cotenant having an interest in the land by inheritance, who was not made a party to the partition proceedings and whose rights were ignored therein; and that the court properly refused an instruction as to the necessity of notice to a cotenant that the possession is held adversely to him and the presumption that the holding by one part owner is not adverse to his cotenant.</p>

<p>Appeal from the District Court of Dallam County. Tried below before Hon. L. S. Kinder.</p>

<p>Libel—Injunction.</p> <p>An injunction will not lie to restrain the publication of a libel in Texas.</p>

<p>Appeal from the CouBty Court of Dallas County at law. Tried below before Hon. W. M. Holland.</p>

<p>Contractor’s lien—Fraud.</p> <p>Evidence, in an action for debt and to foreclose a contractor’s lien, held to sustain the action of the court in refusing to foreclose the lien on the ground of fraud and deceit in procuring it.</p>

<p>Appeal from the District Court of Dallas County, Tried below before Hon. E. B. Muse.</p>

<p>Appeal from the County Court of Delta County. Tried below before Hon. J. L. Bailiff.</p>

<p>Appeal from thé District Court of Sabine County. Tried below before Hon. W. B. Powell.</p>

<p>Appeal from the District Court of Robertson County. Tried below before Hon. J. C. Scott.</p>

<p>1.—Passenger—Sleeping Car—Ticket—Evidence.</p> <p>Plaintiff declaring on failure to comply with a contract evidenced by purchase of a ticket for through transportation in a sleeping car to destination, the evidence as. to whether the ticket was such as pleaded is considered, and being found conflicting, the presumption from defendant’s failure to produce the ticket which was taken up by its conductor, is held sufficient, in connection with the evidence, to support a finding in plaintiff’s favor.</p> <p>3.—Joinder of Parties—Harmless Error.</p> <p>Permitting the joinder of a railway company as defendant, in an action against appellant, a sleeping car company, for violation of its contract with a passenger, if error, was not ground for reversal when the judgment was in favor of the railway company against the plaintiff, and he was taxed with the costs incurred by making such company a party.</p> <p>3. —Damages—Pleading—Charge.</p> <p>An instruction on the damages recoverable is held to submit no elements not alleged in the pleading.</p> <p>4. —Damages—Charge—Mental Suffering—Fright.</p> <p>“Alarm” and “distress of mind” as elements of damages recoverable by a woman wrongfully put off a Pullman car on which her passage had been paid were not synonymous. A charge authorizing recovery for both is held not to permit double damages.</p>

<p>1. —landlord’s lien—Consent to Subletting.</p> <p>A landlord, who, by written contract, has retained an express lien upon the crops raised upon the premises to secure the rent, does not release or waive such lien by consenting that his tenant sublet to others. The subtenant takes subject to such contract.</p> <p>2. —Briefs—Exclusion of Evidence.</p> <p>Where appellant asserts error in the exclusion of evidence, his brief should show the state of facts rendering the excluded evidence pertinent; the appellate court can not be required to examine the statement of facts in order to ascertain its relevancy.</p> <p>3. —Brief—Refusal of Charge.</p> <p>A brief asserting error in the refusal of a requested charge should set forth the charge requested and whatever facts are necessary to show that error was committed in its refusal.</p> <p>4. —Assignment of Error.</p> <p>An assignment of error must not embrace two or more unrelated questions.</p> <p>5. —Landlord’s Lien—Innocent Purchaser.</p> <p>Purchasers of cotton raised upon rented land are not protected against the landlord’s lien, though buying in good faith for a valuable consideration and without intent to defraud.</p> <p>6. —Issues Unsupported by Evidence.</p> <p>The court should not submit to the jury an issue not supported by the evidence and the appellant’s brief asserting error in failure to submit an issue should show facts requiring such action.</p>

<p>Appeal from the County Court of Hamilton County. Tried below before Hon. A. E. Scott.</p>

<p>Error from the District Court of Sabine County. Tried below before Hon. W. B. Powell.</p>

<p>ON MOTION FOB BEHEABING.</p> <p>1. —Carriers—Providing Cars—Common Law.</p> <p>At common law shippers could not require initial carriers to provide them with cars to be transported, when loaded with freight, to a point beyond the line of the initial carrier; the carrier’s obligation to provide equipment was always limited to service over its own road.</p> <p>2. —Same—Statute—Railroad Commission.</p> <p>Under the provisions of neither article 4574, Rev. Stats, nor of the order of the Railroad Commission of the State, known as Circular No. 199, can a railroad company be required to furnish cars for the transportation of freight beyond its own line when to do so would impair its equipment and render the company unable to discharge its duty to the public in carrying freight tendered it for transportation over its own line.</p>

<p>Appeal from, the District Court of Jasper County. Tried below before Hon. W. B. Powell.</p>

<p>Commissions—Agent.</p> <p>In an action to recover commission on sale of timber, evidence considered and held sufficient to sustain a finding by the jury that the agent was the procuring, cause of the sale by the principal.</p>

<p>Appeal from the County Court of Franklin County. Tried below before Hon. D. H. Miller.</p>

<p>1. —Transfer of Land Certificate—Circumstantial Proof—Charge—Presumption.</p> <p>On the issue of title to land by transfer of the certificate by the grantee thereof to whom it was patented, evidence of such transfer being circumstantial, a charge that proof of payment of taxes, recitals of the transfer in deeds, claim of title, partition and sales of the land thereunder, etc., raised a presumption that’ such transfer was made, was an erroneous invasion of the province of .the jury.</p> <p>2. —Same.</p> <p>It is never proper for the court to instruct the jury as to presumptions arising from certain facts, except where the presumption is one of law and therefore conclusive, or one of fact required by positive law but rebuttable. Stooksbury v. Swan, 85 Texas, 573, followed.</p> <p>3. —Transfer of Land Certificate—Sufficiency of Evidence.</p> <p>Evidence in support of a finding by the jury that a land certificate had been transferred by parol by the grantee to whom patent issued, considered, and held insufficient. Harrison v. Fryar, 8 Texas Civ. App., 524, distinguished.</p> <p>4. —Evidence—Recorded Instrument—Affidavit.</p> <p>An affidavit as to the existence and contents of. a transfer in writing of a land certificate by the grantee to whom the patent issued was not.an instrument ■permitted by law to be recorded in the deed records of a county, and a certified copy of such record is not admissible to prove its contents in support of a claim of title under such transfer..</p>

<p>Appeal from the District Court' of Leon County. Tried below be-, fore Hon. S. W. Dean.</p>

<p>Appeal from the District Court of Bosque County. Tried below before Hon. O. L. Lockett.</p>

<p>Appeal from the County Court of Erath County. Tried below before Hon. M. J. Thompson.</p>

<p>1. —Contribution—Variance—Allegation and Proof—Notes.</p> <p>Where, in. an action for contribution, the plaintiff alleged that he and defendant being jointly indebted to the bank executed and delivered to said bank their two notes aggregating a certain sum, and that he had paid off and discharged same, and the notes showed upon their face that they were joint and several, and plaintiff testified that they were given in settlement of their partnership business and to close their transactions with -the bank, and that the amount was what they owed the bank which was evidenced by various notes they had previously executed jointly and overdrafts, there was no material variance in the allegations and proof.</p> <p>2. —Contribution—Illegal Transaction—Settlement.</p> <p>Where, in a suit for contribution, the issue made by the defendant was that while the parties were partners the plaintiff had lost the money for which their notes were given in gambling transactions and promised to pay same and hold defendant harmless, the defendant was in no position to receive relief at the hands of the court with reference to plaintiff’s "gambling if there had been a final settlement and adjustment of the partnership business at the time the notes were given.</p> <p>3. —Charge—Omission—Defensive Issues.</p> <p>A plea of defendant, in an action for contribution, that the plaintiff promised to save him harmless from the payment of said notes, was a defense, and the failure of the court to charge thereon was not affirmative error, but merely an omission, and the defendant, failing to request a charge submitting the issue, could not be heard to complain.</p>

<p>Appeal from the District Court of Dallas County. Tried below before Hon. E. B. Muse.</p>

<p>1.—Vendor and Vendee—Sale of Land—Executory Contract—Recovery of Land —Estoppel.</p> <p>The assignee of notes given for the purchase price of land secured by a vendor’s lien, who takes a conveyance of the vendor’s superior title has the the same right to recover the land, on nonpayment of the notes as the original vendor would have; and the mere payment of a portion of the purchase money and the erection of improvements by the vendee, though erected with the knowledge of the vendor, the several endorsees of the notes, or of the assignee, will not .estop him from recovering the land on his superior title, either at law or in equity.</p> <p>2. —Same.</p> <p>The fact that some of the purchase money notes, by the indulgence of the holder, were not promptly paid at maturity, and that all of them were permitted to mature before suit was brought to recover the land by the assignee of the notes, who had acquired. the vendor’s superior title, did not estop him from recovering the land on such title.</p> <p>3. —Same—Tender of Purchase Money.</p> <p>When the action is to recover the land on nonpayment of the vendor’s lien notes, the vendee can only defeat recovery by paying or tendering unconditionally into court the balance of the purchase money represented by the notes. An offer to allow the plaintiff to take a foreclosure and to pay the notes, on conditions, that plaintiff will allow a certain number of days to raise the money, settle all litigation, and that the title was good, constitutes no defense to the action.</p> <p>4. —Same—Charge—Immaterial Issue.</p> <p>Where, in trespass to try title, it conclusively appeared from the evidence that plaintiff was entitled to recover on his superior title acquired from the ^vendor for nonpayment of the vendor’s lien notes, the issue of whether a deed 'executed by the vendee to plaintiff was intended as an absolute deed or a mortgage, became immaterial, and there was no error in refusing to submit such issue.</p> <p>5. —V erdict—Crossbill.</p> <p>Where in trespass to try title, the defendants by cross-bill sought a judgment against the plaintiff for the' value of improvements placed on the land and the amount of purchase money paid on it, in the event of recovery by plaintiff to be paid before a writ of possession was awarded, and the verdict and judgment were in favor of plaintiff for the land unconditionally, the crossbill was disposed of. The failure to grant the relief sought was in itself a disallowance of the same.</p>

<p>Appeal from the District Court of 'Harris County. Tried below before Hon. Chas. E. Ashe.</p>

<p>Appeal from the District Court of El Paso County. Tried below before Hon. J. M. Goggin.</p>

<p>Appeal from the County Court of Hamilton County. Tried below before Hon. A. E. Scott.</p>

<p>Railway—Station—Starting Place—Connections at State Line—Railroad Commission.</p> <p>The starting place of a railway which begins at the State line is by law a station, and 'the railroad commission has power to require suitable depots and station buildings to be provided at such point though the company use the depot of a connecting line, under the same management, beyond the State line. Railroad Commission of Texas v. Chicago, R. I. & G. Ry. Co., 102 Texas, 393, followed.</p>

<p>1.—Railways—Contract for Use of Track—Railroad Commission.</p> <p>The rights of a railway operating its trains partly over the track of another company, under contract with it, are such only as given by the contract. If the company owning the road performs its duties to the public with respect to supplying adequate train service to all intermediate stations, it is not within the power of the Railroad Commission to require the company permitted by it to run over its track to stop its trains or carry freight and passengers to and from such intermediate stations, in contravention of the contract, which gave it right to do business only between the terminal points of the line over which such contract gave it trackage rights.</p> <p>2. —Same.</p> <p>A contract, by which one railway grants to another the right to run trains over a portion of its track, on condition that it does not stop them or do local business at intermediate stations, is not invalid if it contains nothing affecting the obligation of the grantor to render the service owing to the public at such points. But if it should be held invalid, it was still beyond the power of the Railroad Commission to change it into a contract the parties would not have made by requiring the company acquiring such trackage rights by the contract to operate its trains in violation of the conditions on which its rights were granted.</p> <p>3. —Railways—Passenger Trains.</p> <p>Article 4580, Rev. Stats., sec. 2, as amended by Act of 1903, page 183, requiring railway companies to operate at least one passenger train a day over their lines of road applies to the company owning the road and not to one merely obtaining by contract trackage rights enabling it to operate trains thereon.</p> <p>4. —Railroad Commission—Operation of Trains—Reasonable Service.</p> <p>A railway company furnishing upon its road by its own trains, ample service for the transportation of freight and passengers can not be required by order of the Railroad Commission to permit additional service to be rendered by another company permitted by contract to operate trains over a portion of its line.</p>

<p>Appeal from the District Court of Bexar County. Tried below before Hon. A. W. Seeligson.</p>

<p>1. —Practice—Overruling Exception.</p> <p>The failure of a trial court to submit an issue is tantamount to sustaining an exception to the pleading raising such issue; therefore the overruling the exception becomes harmless when tlie issue is not submitted. And so when the judgment is in favor of the party whose exception was overruled.</p> <p>2. —Husband and Wife—Wife’s Separate Property—Divorce—Suit by Husband —Pleading.</p> <p>An agreement by a husband that certain money on hand (in this ease, money earned by the Wife) should belong to the wife, is sufficient to make the same her separate property; and such agreement might be proved under a general denial in a suit by the husband, after divorce from the wife, against a third party for possession of the money.</p> <p>3. —Charge—Undisputed Evidence—Assumption of Pact.</p> <p>When the undisputed evidence shows that only a certain amount of money is in controversy, although said amount is less than that alleged in the pleading, it is the duty of the court in submitting the case to state the actual amount involved.</p> <p>4. —Same—Practice.</p> <p>Matters which are indisputably established by the uncontroverted evidence, should be assumed as facts without submitting them to the jury.</p>

<p>1.—Deed as Mortgage.</p> <p>The intention of the parties to an instrument, whatever its language might be, must determine whether it is a deed or a mortgage, and when it is doubtful whether the parties intended a mortgage or a conditional sale, a court of equity will resolve the doubt in favor of the instrument being a mortgage rather than a deed.</p> <p>2.—Same.</p> <p>A warranty deed contained the following language immediately after the habendum clause: “This instrument shall remain in escrow for the period of ninety days from date, and if at the end of such period I have not paid or caused to be paid to said T. (the grantee) the sum of $150, then same is to be delivered to him; but if such amount has been paid at such time then this instrument to be returned to me.” Said instrument was placed in the hands of a third party to be held by him for ninety days; the grantor remained in possession of the land; the land was worth much more than $150; at the end of ninety days, the money not having been paid, the grantee named in said instrument placed the same on record and sold the land. In a suit of trespass to try title by the grantor in said instrument against a remote vendee of the original grantee, held:</p> <p>(a) The instrument showed on its face that it was a mortgage, and the testimony of the grantor and grantee therein that such was the nature of the transaction was conclusive of the question, and therefore the instrument should not have been admitted as a muniment of title.</p> <p>(b) Neither the language of the instrument nor the attendant circumstances justified the conclusion that the transaction was a conditional sale.</p> <p>(c) The provision, that the instrument should be delivered to T. at the end of ninety days if the debt was not then paid, was not equivalent to a stipulation that the conveyance should become an absolute one upon failure to pay said money.</p>

<p>1. —J udge—Disqualification.</p> <p>When a judge is a stockholder in a corporation, he is disqualified to sit in trial of a case in which such corporation is a party.</p> <p>2. —Same.</p> <p>Where an order is in effect a mutual insurance company, the assets consisting only in the general fund raised by dues and benefit assessments, each holder of a benefit certificate is an owner of the assets of the order in proportion that the amount of his certificate bears to all certificates issued by such order, and he is interested very much in the nature of a stockholder in corporation assets, and such interest disqualifies him from sitting as judge in a case to which the order is a party.</p> <p>3. —Same.</p> <p>The disqualification of the trial judge is sufficiently established if it appears from the uncontroverted affidavit of the appellant, filed in the lower court, and the written statement of the judge.</p>

<p>• Appeal from the District Court of Hopkins County.- Tried below before Hon. B. L. Porter. ■</p>

<p>1. —Railway—Freight Rates—Discrimination.</p> <p>While there is no affirmative provision of the statute forbidding a railroad from fixing a lower rate for the transportation of freight than that prescribed by the Railroad Commission, the statute does prohibit discrimination by charging one shipper a different rate from that charged another, and it seems that unless the lower rate charged in the particular case is shown to have been open to all shippers, a special contract at such rate would be void because prohibited by the statute against discrimination.</p> <p>2. —Same—Contract of Carriage—Mistake.</p> <p>Where it was the intentibn of both parties to the contract for the carriage of cattle that the regular or commission rate should be charged, and a lower rate was specified in the contract by mistake, there was no discrimination.</p> <p>3. —Same—Contract of Carriage.</p> <p>Where the undisputed evidence showed that the parties to the contract intended to ship the cattle at the regular or commission rate, and a lower rate was inserted in the contract by mistake, a notation at the head of the contract that the rate therein named was subject to correction so as to conform to the rate prescribed by the Railroad Commission, did not change the contract actually made, and the question whether or not the notation was a part of the contract was immaterial.</p> <p>4. —Same—Detention of Cattle for Charges.</p> <p>Where the parties to the contract for the carriage of cattle intended that the cattle should be shipped at the regular or commission rate, and a lower rate was inserted in the contract by mistake, and was paid by the shipper to the initial carrier, the shipper was liable for an additional charge for the difference, and the terminal carrier, having the right under the statute to hold all of said cattle until all the freight was paid, could not be held liable for injury to the cattle caused by their detention by it on the refusal of the shipper to pay such additional charge, whether such carrier was a party to the original contract or not.</p> <p>5.—Same—Connecting Carriers—Contract.</p> <p>The connecting carrier is bound under the law to accept and forward a shipment of cattle and its acceptance of the shipment does not necessarily bind it to carry out the contract made with the initial carrier.</p> <p>6. —Same.</p> <p>Where the evidence showed that when the terminal carrier received the cattle for transportation new contracts were made with the shipper, but did not show the terms of such contracts, it could not be presumed that they bound such carrier to ship the cattle at a rate less than that allowed by law, nor could a contract of that kind be implied merely from the fact that its agent, who received and forwarded the shipment to destination was informed that the freight had been paid and knew the amount which had been paid to the initial carrier. It was not the duty of such agent to determine whether the amount so paid was the correct amount, but the duty of the agent at destination when the shipment was delivered to the shipper or consignee.</p> <p>7. —Damages—Proximate Cause.</p> <p>Damages which could not be reasonably anticipated as the probable result of an act or omission can not be held to have been proximately caused by such act or omission.</p> <p>8. —Same—Carriers—Negligence.</p> <p>Where the shipper was liable for the additional charge demanded by the terminal carrier, and his refusal to pay it caused the carrier to detain his cattle, and it appeared that he had the money in his pocket to pay the charge, negligence on the part of the initial carrier in quoting him an incorrect rate was not the proximate cause of the damage resulting from the detention of the cattle.</p>

<p>1. —Evidence—Privileged Communication.</p> <p>Testimony of an attorney that certain deeds were executed by his client in fraud of the client’s creditors is not subject to the objection that it involves privileged communications between client and attorney. Communications of that character between attorney and client are not privileged.</p> <p>2. —Briefing—Rules.</p> <p>The Court of Appeals will not consider assignments of error to the admission of evidence when the grounds of objection are not set out in the assignments nor in the “statements” thereunder and the court is referred to the record for such information; nor when the brief contains no statement of the evidence complained of or the statement consists of a mere conclusion as to the effect of the testimony.</p> <p>3. —Same—Practice.</p> <p>An assignment based upon a charge of the court will not be considered when neither the assignment nor the proposition thereunder points out in what respects the charge is “misleading, or ambiguous, or inconsistent with the main charge, or not applicable to the facts.”</p> <p>4. —Fraudulent Conveyance—Knowledge of Purchaser.</p> <p>Knowledge on the part of a purchaser of property from an insolvent debtor that the conveyance was made with the intent on the part of the debtor to defeat other creditors will not vitiate the conveyance when the purpose of the purchaser was only to secure his own claim.</p> <p>5. —Same.</p> <p>When the sale of real property, belonging to an insolvent debtor, is a part of a scheme for defrauding creditors and so understood by both parties to the transaction, the whole scheme will be tainted with the fraud.</p> <p>6. —Same—Charge—Assumption of Fact.</p> <p>When there is no dispute or conflict in the testimony about a fact, it is not error for the court to assume such fact in its charge.</p> <p>7. —Charge—Ignoring Issue.</p> <p>When a plaintiff would be entitled to recover upon any one of several grounds, a special charge which authorized the jury to render a verdict for the defendant if they found for defendant upon one of said issues, is properly refused.</p>

<p>Appeal from the District Court of Midland County. Tried below before Hon. Jas. L. Shepherd.</p>

<p>Appeal from the District Court of Deaf Smith County. Tried below before Hon. J. N. Browning.</p>

<p>Error from the District Court of Deaf Smith County. Tried below before Hon. J. ¡N". Browning.</p>

<p>Appeal from- the District Court of Freestone County. Tried below before Hon. L. B. Cobb.</p>

<p>Garnishment—Insurance Companies—Receivership.</p> <p>Where an insurance company has ceased to do business and its affairs and property have been placed in the hands of a receiver by a court of competent jurisdiction, at the instance of the Attorney-General, in an action to forfeit its charter, the fund deposited by the company with the State Treasurer for the benefit of policy holders, in accordance with the statute (Acts 1903, chap. 109, sec. 5), is not subject to garnishment at the suit of one of many policy holders who has recovered a judgment against the company. The fund is in custodia legis and held for the benefit of all.</p>

<p>Appeal from the District Court of Galveston County. Tried below before Hon. Lewis Fisher.</p>

<p>1. —Trial—Argument.</p> <p>Where the injury complained of was a broken leg of the minor, and there was no evidence that the leg was or would be shortened, as a result of the accident, remarks of counsel in the closing argument asking the jury to determine if the leg was a fraction of an inch shorter than the other, and how much shorter it would be when the plaintiff became a young lady, and to compensate her for that permanent injury was improper and, objection of opposing counsel being met by the court with silence, cause for reversal.</p> <p>2. —Same—Practice.</p> <p>If remarks by counsel are improper, it is not incumbent upon opposing counsel to do more than call the court’s attention thereto and make objection to the court. It then becomes the duty of the court to take such action as may be called for, either by way of warning to the counsel or instructions to the jury, or both.</p>

<p>Error from the District Court of Harris County. Tried helow before Hon. W. P. Hamblen.</p>

<p>Transcript—Time for Filing—Waiver.</p> <p>A written agreement by appellee waiving the requirement that the transcript be filed by appellant within ninety days from the perfecting of appeal does not give the latter an unlimited time in which to exercise that right; it must be filed within reasonable time, and a delay of one year from the time appeal was perfected will justify a refusal to permit the filing.</p>

<p>Appeal from the District Court of Travis County. Tried below before Hon. George Calhoun.</p>

<p>1. —Misjoinder—Harmless Error.</p> <p>While it is improper to join the wife as plaintiff in an action brought by the husband to recover damages sustained by her, the error will not justify a reversal of the judgment.</p> <p>2. —Charge—Harmless Error.</p> <p>An instruction criticized as having a tendency to convey the idea that the facts as grouped therein established negligence on the part of defendant is held, however, not to show reversible error.</p> <p>3. —Carrier—Passenger—Agency—Connecting Lines.</p> <p>In the absence of proof of partnership between defendants, a railway company is not responsible for the mistake of the agent of another company in selling a passenger the wrong ticket for transportation over both lines.</p> <p>4. —Case Distinguished.</p> <p>Blanks v. Missouri, IC. & T. Ry. Co., 116 S. W., 377, distinguished.</p> <p>5. —Damages—Medical Treatment.</p> <p>It was error to submit, as an element of damages recoverable, expenses incurred by plaintiff for medical treatment of personal injuries in the absence of proof as to the amount expended and its reasonableness.</p> <p>6. —Passenger—Damages—Charge.</p> <p>The expenses for hotel bill of a passenger compelled to leave the train by reason of mistake in ticket were not recoverable where occasioned by her voluntarily remaining at that station when she might have continued the journey.</p> <p>7. —Confusing Charge.</p> <p>A charge as to the duty of a railway to keep its passenger station heated is held error because confusing and misleading.</p> <p>8. —Carriers of Passengers—Duty to Heat Depot.</p> <p>The statutory duty to keep depots warm for the benefit of passengers, imposed upon railway companies by article 4521, Rev. Stat., is limited to a period of an hour before and after the departure of their trains, and except during that period it is not an absolute requirement, the violation of which would constitute negligence in law.</p> <p>9. —Same—Question of Fact.</p> <p>The duty of a railway company, to one permitted to use its depot and having the rights of a passenger, to keep the same properly warmed during the period of time not covered by the requirements of the statute (Rev. Stat., art. 4521) exists irrespective of the statute where the circumstances demanded such services, and the question of negligence in failing so to do is one of fact •for the jury.</p> <p>TO.—Passenger—Carrier—Duty of Conductor.</p> <p>No duty rested upon a railway to have its conductor assist a passenger in obtaining correction of a mistake in her ticket made by the agent ofoanother line in selling it.</p> <p>11.—Passenger—Carrier—Evidence.</p> <p>Evidence of damages occasioned to a passenger by mistake of the agent of a railway in selling a ticket considered and held sufficient .to require the submission of the case to the jury.</p>

<p>Error from the District Court of Orange County. Tried below before Hon. W. B. Powell.</p>

<p>1.—Injunction—Sale of Mortgaged Property by Junior Mortgagee.</p> <p>Ordinarily the rights of a senior mortgagee arc not prejudiced by a sale of the mortgaged property under a junior mortgage. The purchaser, having notice of the prior lien, will buy subject thereto, and if the rights of the senior lien holder are jeopardized, he may sequester the property and establish his superior right. But it does not follow that equity will not interfere by injunction to prevent a sale and to hold the property in statu quo when it appears that such action is reasonably necessary to protect the security of the prior lien holder.</p> <p>2. —Same.</p> <p>Injunction will lie at the suit of the senior mortgagee to restrain a sale under foreclosure proceedings by the junior lien holder when the property, being movable, -might become so scattered, or so lose its identity, as to be placed beyond the reach of a writ of sequestration, or to render necessary the issuance of as many writs as there were purchasers of the various articles of the property mortgaged, and the joinder in the foreclosure proceedings of that many defendants.</p> <p>3. —Same—Chattel Mortgage.</p> <p>Where in the sworn petition for an injunction, by a prior mortgagee to prevent the sale of the cattle under foreclosure proceedings by the junior mortgagee, it was alleged that the debt of the latter had been discharged by the mortgagor, and this was not denied in the pleadings of defendant, and on the hearing the debtor testified particularly as to the manner in which the debt had been paid, which testimony was flatly contradicted by defendant’s testimony, the court properly enjoined the sale until the truth or falsity of the allegation could be determined upon final trial.</p> <p>4. —Same—Receiver.</p> <p>Where an injunction was granted to restrain the sale of mortgaged cattle by the junior lien holder, on the petition of the senior mortgagees, it was proper for the judge, on proper prayer in the petition, to appoint a receiver and place the cattle in his hands pending the trial.</p>

<p>1. —Master and Servant—Negligence—Switchman—Unsurfaced Track.</p> <p>In case of a railway switchman who, having his foot caught between ties, was run down and injured by an approaching engine when about to get upon the switch board to arrange the coupler, evidence considered and held to support a finding of negligence on the part of the railway company in permitting a part of its track, necessarily used by its servants in such duties, to remain unsurfaced between the rails, with irregular intervals between ties, and so overgrown with grass as to conceal the dangerous depressions incident to such accident.</p> <p>2. —Same—Contributory Negligence—Proximate Cause,</p> <p>The act of a switchman in attempting to get on an approaching engine from a position between the rails could not be held contributory negligence as matter of law where the proximate cause of the injury was not such act, but the negligence of the employer with respect to the condition of the track, whereby his foot became caught between the ties.</p> <p>3. —Same—Assumed Risk.</p> <p>It was not error, after having charged that the risk was one assumed by the servant if the dangerous condition of the track causing his injuries was known to him or would have been learned by the exercise of ordinary care, to instruct the jury also that plaintiff was not bound to inspect the track at the place in question to ascertain if it was reasonably safe to be used by him in the performance of his duties; or to charge that he assumed only such risks as he knew or would have learned by the exercise of ordinary care.</p> <p>4. —Charge—Assuming Fact.</p> <p>Instruction considered and held not erroneous as assuming controverted facts in the case.</p> <p>5. —Same.</p> <p>The negligence relied on consisting of evidence that the track was unsurfaced, leaving depressions between the ties concealed by grass, whereby plaintiff’s foot was caught and held till an engine ran over him, no error appeared in a charge submitting this issue as a question whether there were “spaces and holes between the ties;” nor in submitting the permitting of such growth of grass, conjunctively with the other defects in the track, as one of the proximate causes of the injury.</p> <p>6. —Requested Instructions.</p> <p>Various requested instructions held properly refused because the matters were sufficiently presented by the instructions given.</p> <p>7. —Damages—Personal Injury.</p> <p>A recovery of $20,000, as damages for injuries to a switchman, 31 years old and earning $100 per month, sustained as not excessive; the injuries consisting in the crushing of both legs, rendering them permanently incapable of use.</p>

<p>Appeal from the District Court of Bowie County. Tried below before Hon. B. W. Simpson.</p>

<p>1. —Trespass to try Title—Misjoinder.</p> <p>It was permissible for plaintiff to sue for the recovery of land on the ground that title was expressly retained by vendor, and to seek in the alternative a foreclosure in a case his lien be held not a vendor’s but a lien by contract.</p> <p>2. —Liens—Vendor—Contract—Payment—Renewal.</p> <p>A note secured by vendor’s lien having been paid, the payor and holder thereafter agreed to secure a loan of money from the latter to the former by executing a new note appearing to be given as a renewal of such vendor’s lien note for the purchase money secured thereby. Held, that although such transaction could not create a vendor’s lien, it was sufficient to give a contract lien upon the land to secure payment of the money loaned, which was good as between the parties and others not purchasers for value without notice.</p> <p>3. —Pleading—Vendor’s or Contract Lien.</p> <p>Plaintiff sued upon a note and alleged vendor’s lien. Defendant alleged that the note was not given for purchase money, the original purchase money note having been paid and the one sued on given for a different consideration, though executed in the form of a renewal of the discharged purchase money note. Plaintiff in reply alleged the intent to make the land security for the new note by the form of contract adopted, and ashed foreclosure. Held, that plaintiff’s pleadings were sufficient to support a foreclosure of his lien as one given by contract and not for purchase money.</p> <p>4.—limitation—Minor—Guardian—Eight of Action.</p> <p>On the death of the holder of a promissory note, his right therein passed to a minor as residuary legatee. His executor, guardian also of the minor, procured an indorsement on the note by the maker that it was just and unpaid. More than four years thereafter, but less than four years after the minor became of age, be brought suit upon the note. Held, that the executor and guardian had no such title to the note as that limitation would run thereon, as in case of a trustee entitled to sue, and that the action on the, contract created by the written acknowledgment of the justice of the debt was not barred until four years after the minor became of age.</p>

<p>Appeal from the District Court of Newton County. Tried below before Hon. W. B. Powell.</p>

<p>Appeal—Jurisdiction—Proof of Inability to Pay Costs.</p> <p>In order to confer jurisdiction on the Court of Civil Appeals on appeal by an affidavit of inability to pay costs of appeal or give security therefor, it is requisite that proof be made before one or the other of the tribunals named in the statute. Revised Statutes, art. 1401.</p>

<p>Appeal from the County Court of Nacogdoches County. Tried below before Hon. C. D. Mims.</p>

<p>Tax Suit—Citation to Estate—Void Judgment.</p> <p>In a suit for delinquent taxes the following conclusions of law by the trial court, approved and adopted:</p> <p>1. There can be no citation to an estate as an estate.</p> <p>2. There can be no judgment against an estate as an estate.</p> <p>3. A recitation in a judgment that an estate has been served with citation is a void recitation and meaningless, as an estate is not. an entity.</p> <p>4. The petition being against an estate only is not a suit against an entity in law, and the citation showing that it ran to the estate and to no legal representative, the fact that the judgment recited that the defendant estate “though duly cited, came not,” afforded no presumption in favor of service, and the record only showing an insufficient affidavit, the sworn petition and no other, the service, judgment and sale were void.</p> <p>5. No other owner or person but the estate, which is not a person in law, having been sued, the owner of the land was not bound by the judgment.</p>

<p>Appeal from the County Court of Taylor County. Tried below before Hon. T. A. Bledsoe.</p>

<p>Appeal—Judgment not Final—Jurisdiction.</p> <p>A plaintiff sued a railroad company in trespass to try title to a certain town lot, and for damages caused by the construction of defendant’s road near to plaintiff’s residence. The defendant pleaded a general denial, not guilty, and disclaimer as to the land sued for except a strip of the same, as to which it claimed a right to construct its road thereon. The jury returned the following verdict. “We, the jury, find for the plaintiff and assess the damages at $400.” Upon this verdict a judgment was entered in plaintiff’s favor, but no disposition was made in the judgment of the issue as to the title to the strip of land claimed by the defendant. Held, the judgment was not a final judgment and would not support an appeal.</p>

<p>1. —Condemnation Proceedings—Irrelevant Testimony.</p> <p>In a proceeding by a railroad company to condemn land for right of way purposes, the amount of damages to which the defendants should be entitled being the sole issue, it was reversible error to permit a witness for defendants to testify that a rent house situated on defendant’s premises near the right of way had been burned since the railroad was put in operation.</p> <p>2. —Same—Measure of Damages.</p> <p>In condemnation proceedings the correct measure of damages is the value of the land at the time the railroad took possession of the same, and not at the time of the trial.</p> <p>3.—Practice—Examination of Witnesses—Limit as to Time.</p> <p>In the absence of a showing that appellant was injured thereby, the action of the trial court in limiting the time allowed to appellant’s attorney in the examination of its witnessess, would not be reversible error.</p>

<p>Appeal from the County Court of Erath County. Tried below before Hon. W. J. Thompson.</p>

<p>1. —Parties—Vendor’s lien—Foreclosure.</p> <p>When vendor’s lien notes, given by the same vendee to the same vendor for the same land, are held by different persons, all such persons are proper parties plaintiff to a suit to foreclose the lien.</p> <p>2. —Briefing—Statement.</p> <p>A declaration in a brief by counsel for appellant that it is “impossible to make reference to the portions of the statement of facts fully showing the condition of the evidence under the issue” is no excuse for failure to make a proper statement of the evidence, and will justify the Appellate Court in declining an invitation to search the entire statement of facts.</p> <p>3. —School lands—Subject of Contract—Forfeiture.</p> <p>Until a sale of school lands is actually forfeited such lands are the subject of contract.</p> <p>4. —Same—Promissory Note—Failure of Consideration.</p> <p>When a forfeiture of a sale of school land is practically set aside by the Commissioner of the Land Office, and the former award substantially reinstated in favor of a vendee of the original purchaser, such vendee can not successfully plead failure of consideration for the notes given by him to said purchaser for said land before the forfeiture.</p> <p>5. —Promissory Note—Endorsement in Blank—Effect.</p> <p>Because the notes sued upon, when offered in evidence, were endorsed in blank by the plaintiff, who was the original payee, is no reason why the said payee could not sue and recover upon the same.</p> <p>6. —Practice—Objection to Evidence.</p> <p>An objection to evidence as a whole is properly overruled when a part of the evidence is competent.</p> <p>7. —Same—Assignments of Error—Buies.</p> <p>When assignments of error are grouped in violation of rules 24, 25 and 26 for the preparation of briefs, they will not be considered on appeal.</p>

<p>1. —Verdict—Construction—Certainty.</p> <p>In a suit upon a vendor’s lien note the jury returned the following verdict: “We, the jury, find our verdict in favor of the plaintiff against the defendant for the amount of principal, interest and attorney’s fees due on the note sued on, less the amount of forty-three dollars with interest on same, and the foreclosure of the vendor’s lien on all the lands described in plaintiff’s petition.” Held, the plaintiff’s petition might be looked to in aid of the verdict, and when so considered it was sufficiently definite to fix the amount due on the note.</p> <p>2. —School Land—Forfeiture fof Nonresidence—Statute Construed.</p> <p>Under the provisions of the law of 1895, forfeitures of sales of school land for nonresidence were required to be evidenced by a formal declaration to that effect by the Commissioner of the General Land Office; until such action by the Commissioner, the original purchaser from the State or his vendee being in possession of the land, has such title as will constitute a consideration for a note given to him by a purchaser of the land who acquires possession of the land and the improvements thereon by reason of the purchase.</p> <p>3. —Same—Correction of Mistake.</p> <p>When the applicant to purchase additional school sections makes a mistake in describing the section of which he is an actual occupant, such mistake is not necessarily cause for forfeiture but might be corrected by the Commissioner of the General Land Office.</p> <p>4. —Promissory Note—Failure of Consideration—Pleading.</p> <p>Under a plea of a total failure of consideration a partial failure may be shown, but in ease of partial failure it devolves on the defendant to furnish proof from which the extent of the failure might be determined.</p>

<p>1. —Railroad—Hospital—Liability for Maltreatment—Evidence—Question of Eaet.</p> <p>The issue being whether or not a railroad company in the maintenance of a hospital for the treatment of its sick and injured employees, said hospital being supported by deductions from the wages of the employees, was engaged in a charity, evidence considered and held to raise a question of fact which should have been submitted to the jury.</p> <p>2. —Same—Cases Questioned and Distinguished.</p> <p>Galveston, H. & S. A. Ry. Co. v. Hanway, 57 S. W., 697, and Galveston, H. & S. A. Ry. Co. v. Scott, 18 Texas Civ. App., 321, questioned and distinguished.</p>

<p>1. —Railway—Negligence—Death—Contributory Negligence.</p> <p>In an action against the railway company for the death of a brakeman alleged to have resulted from its negligence in tlie operation of its train with defective cars, evidence considered, and held to require the submission to the jury of the issues of negligence and contributory negligence.</p> <p>2. —Same-—Negligence—Defective Car.</p> <p>Where the evidence showed that one of the cars of the train had a defective brakebeam, that it fell and was dragging on the track and was liable to wreck the train, that this was the moving cause that prompted the brakeman to go between the car's, which resulted in his death, and that the train had passed through stations where an inspection could have been made by the defendant and no inspection was made, the court properly submitted the issue of negligence on the part of the railway company in carrying a car with a defective brake-beam.</p> <p>3. —Contributory Negligence.</p> <p>Where the pleadings charged and the evidence showed that it was the duty of the deceased brakeman to stop the train, if in Ms judgment it was necessary to prevent the train from injury, a charge, upon contributory negligence, submitting the issue as thus presented, was not subject to the objection that the judgment of deceased was not the criterion by which his conduct was to be measured.</p> <p>4. —Same—Acts in Emergency.</p> <p>Acts done in an emergency on an impulse, are not negligence as a matter of law. The principle applies to the protection of life, and also where the duty devolves on the employe to protect the employer’s property.</p> <p>5. —Same.</p> <p>Where the brakeman went between the cars in order to stop the train and was killed, and the evidence showed that the dragging of the 'brakebeam was calculated to wreck the train and created an emergency that called for an immediate stopping of the train, that this duty devolved on the deceased, that from the moment he was made aware of the dragging brakebeam until he met his death, Ms efforts to stop the train never ceased, and that he acted suddenly and hurriedly and seemed to be excited, the issue of contributory negligence was for the jury.</p> <p>6. —Same—Charge.</p> <p>Where the charge upon the issue of contributory negligence authorized the jury to find whether or not the realization of the clanger to the train and necessity to stop it came upon deceased so suddenly and unexpectedly as to afford no time for reflection upon or consideration of the danger in his act, and that he acted upon the impulse of the moment in placing himself in peril of his life, and instructed the jury that if the deceased acted deliberately or after time for consideration of the danger of the act of going between the cars, there could be no recovery, there was no error in refusing a charge defining sudden impulse, or one excluding the right to recover if deceased was justified in so acting in an emergency.</p> <p>7.—Assumed Bisk—Operation of Train.</p> <p>An employe does not assume the risk of the negligence of a railway company in the operation of the train.</p>

<p>1. —Subrogation—lien—Advance to Pay lien Creditor—Equity.</p> <p>Where one advances money to pay off a note secured by a vendor’s lien, equity will subrogate him to the rights of the lien creditor as effectually as if he had become the assignee of the purchase money notes.</p> <p>2. —Same—Transfer of Note.</p> <p>Where a bank held a vendor’s lien notes for collection, and, at the request of the maker, third parties borrowed money from the bank to pay the note, attaching the note to their own note as collateral, and the bank immediately forwarded the money so borrowed to the owner in satisfaction of the note, who accepted the money and thereafter confirmed the action of all parties, the transaction was in effect a transfer of the vendor’s lien note to such parties which carried with it the lien.</p> <p>3. —Same—Equity.</p> <p>Where third parties, at the request of the maker of a vendor’s lien note who was in possession of and claiming the property for which it was given, furnished money to take up and pay off the note with an express understanding between the maker and the bank having the note for collection that they were to become the owners of the note and be subrogated to all the rights of the owner of the note, equity, without regard to whether the transaction be considered as a transfer of the note or a payment of it, preserved the lien in favor of such third parties; and it was immaterial whether a subsequent purchaser of the land or the owner of the note knew of such arrangement or consented thereto.</p> <p>4. —Res Adjudicata.</p> <p>A former judgment is only conclusive of such matters as were essential to be determined before the judgment could be rendered.</p> <p>5. —Same.</p> <p>It is a general rule that the former judgment or litigation relied on as having adjudicated the matter and as a bar to further proceedings should have involved and determined the same vital issue, or that such issue or question should have been fairly within the scope of the pleadings. The matter in issue is that upon which the plaintiff’s cause of action is based, and which the defendant denies by his pleading.</p> <p>6. —Same—Trespass -to Try Title—Issues.</p> <p>Where the junior lien holder became the purchaser at the foreclosure sale under his deed of trust and brought an action of trespass to try title, setting out his title under the trust deed, and making the debtor, who was in possession, and the holder of the prior lien parties, and such prior lien holder disclaimed, and judgment was for plaintiff as prayed for, the issues of possession and title were the issues raised and adjudicated, and the judgment was not con'clusive of the right of the prior lien holder to sell the land under an order of sale under a judgment subsequently obtained against the debtor foreclosing his prior lien.</p> <p>7. —Same.</p> <p>A judgment in an action of trespass to try title in favor of defendant who set up title under a purchase at foreclosure sale under his trust deed, was not conclusive of the right of the plaintiff therein, who became subrogated to a lien prior to that through which the defendant asserted title, to subject the land to the payment of "such prior lien and sell it under an order of sale on a judgment against the debtor foreclosing such lien, though the subrogation occurred before the judgment in the trespass to try title suit was rendered.</p>

<p>Appeal from the District Court of Hill County. Tried below before Hon. W. C. Wear.</p>

<p>1. —Insurance—Double Insurance. •</p> <p>Wherever there are two separate insurers liable for the same loss, the fact that one policy covers more property or wider risks than the other, does not prevent the insurance being double on the subjects covered by both.</p> <p>2. —Same—Contribution.</p> <p>Where the loss is less than the whole insurance, and the policy sued on stipulates that the insurer shall not be liable for a greater proportion of the loss than the amount insured shall bear to the whole insurance, such provision must be given effect, though the other policies by different insurers cover other property of the insured located in another place, and the insurer will only be liable for such proportion of the loss.</p> <p>3. —Same—Parties—Contribution.</p> <p>When the policy provides that the insurer shall not be liable for a greater proportion of any loss than the amount insured bears to the whole insurance, it is not necessary for the insurer, in an action on the policy, in order to give such provision effect, to make the other insurers parties.</p> <p>4. —Same—Contribution.</p> <p>A stipulation in a policy limiting the insurer’s liability to no greater proper- . tion of the loss sustained than the amount insured bears to the whole insurance, is not impaired or nullified by another stipulation therein that if, at the time of the fire, the whole amount of insurance on the property covered by such policy shall be less than the actual cash market value thereof, the insurer shall, in case of loss or damage, be liable for such portion only of the loss or damage as the amount insured by such policy shall bear to the actual cash market value of such property at the time and place of the fire.</p>

<p>Appeal from the District Court of Hidalgo County. Tried below before Hon. W. B. Hopkins.</p>

<p>Appeal from the District Court of Jefferson County. Tried below before Hon. W. H. Pope.</p>

<p>1.—Limitation—Five Years—Deed Duly Registered.</p> <p>The five years statute of limitation requires that the deed under which title may be acquired by adverse possession shall be duly recorded, and this means not only that the deed must be properly acknowledged and certified for record but that the record itself must show this fact.</p> <p>2. —Same—Registration.</p> <p>Where the record of the deed showed that the certificate of acknowledgment was fatally defective, the grantee could not prescribe under the five years statute, though in fact the deed was properly acknowledged and such acknowledgment was properly certified by the officer.</p> <p>3. —Same—Adverse Possession.</p> <p>Where the land in controversy was the south half of a 320 acre survey, and the possession under a deed extended only to a few acres thereon which the grantee cultivated for ten years in connection with the larger holdings on the north half of the survey on which he lived, such possession was not sufficient to perfect title under either the five or ten years statute of limitation.</p> <p>4. —Same—Tax Deed.</p> <p>A tax deed, describing the land with certainty, reciting that the land was sold as the property of unknown owners, and duly recorded, is- sufficient to support the five years statute of limitation, without proof of the authority to sell.</p> <p>5. —Same—Deed.</p> <p>It is not necessary that the deed under which the possessor claims should be to him. All that is required is that he shall hold and claim under a duly recorded deed and that the title conveyed by such deed is in fact for the benefit of the claimant.</p> <p>6. —Same—Possession.</p> <p>Where husband and wife entered upon a 320 acre survey and improved it, and thereafter purchased same at tax sale and continued in possession, claiming same under the tax deed which was duly recorded for four years, at which time they separated and were divorced by a decree which ordered a partition, which order was never executed, and after said decree the divorced wife continued in possession, claiming the entire survey beyond the time necessary to complete the five years, all taxes being paid^ the right acquired by the tax deed was a community right, and her possession and claim under it inured to the benefit of the common estate; and if her possession was not sufficient to perfect title in the common estate to the entire survey, she at least acquired title to one half by limitation and it appearing that a one half appropriated by her and sold was the unimproved half and presumably of no greater value than the remainder, her deed vested in her grantee the title to such half.</p> <p>7. —Damages—Cutting Timber.</p> <p>Where the defendant, in trespass to try title, purchased the land on the advice of counsel that he was getting a good title, and the plaintiff recovered upon title by limitation, the mere fact that defendant knew of the adverse occupancy and claim did not warrant the conclusion that he acted in bad faith in cutting timber, so as to subject him to a recovery of the value of the timber in its manufactured state, which increased value was created by labor and money expended by him in the honest belief that the property was his.</p>

<p>Error from the District Court of Harris County. Tried below before Hon. W. P. Hamblen.</p>

<p>1. —Laborer’s Lien—Affidavit.</p> <p>An affidavit made to fix a laborer’s lien on ties under article 3339a, Revised Statutes, stating the amount of the debt and that it was for labor and services performed, and that it was made for the purpose of fixing a lien on the property, was sufficient. It was not necessary to state therein that the property was manufactured by his labor.</p> <p>2. —Same.</p> <p>Where there was an agreement to pay for the services of the laborer on July 1, 1908, the indebtedness accrued on that date, and the time within which the lien could be fixed then began to run. \</p> <p>3. —Same—Purchaser—Notice—Burden of Proof.</p> <p>Where one purchases the property from the employer before the laborer’s lien, under article 3339a, is fixed, lie is protected against the lien unless he had actual notice of the laborer’s .claim before the purchase, and the burden of proof is on the lienholder to show such actual notice.</p>

<p>1. —Land Grant—Donation.</p> <p>/</p> <p>It seems that as a general rule when a legislative grant is not made in discharge of some obligation of the government that the law would recognize such grant as a pure donation.</p> <p>2. —Same—Sale of Claim to Bounty Warrants.</p> <p>Where the grantee was entitled to a bounty warrant certificate for 1280 acres of land by reason of his services in the Texas army in 1835 and 1836 and executed a deed to an undivided one-lialf of such claim, and thereafter, in 1862, the Legislature passed a relief Act requiring the Commissioner of the General Land Office to issue to him a duplicate land warrant for 1280 acres in lieu of the original warrant for that quantity, provided it should appear that the original warrant had not been returned or duplicate issued for same, it appeared from the terms of the Act that the grant was in consideration for the service in the war for Texas Independence, and in lieu of his barred claim, and the title thus required to the land located by such certificate inured to the benefit of his vendee. Houston Oil Co. v. Gallup, 50 Texas Oiv. App., 369.</p> <p>3. —Cases Reviewed and Distinguished;</p> <p>Causici v. La Coste, 20 Texas, 286; McKinney v. Brown, 51 Texas, 94; Grant v. Wallis, 60 Texas, 350.</p> <p>4. —Limitation—Stale Demand.</p> <p>If the Act, under which .the certificate was granted, inured to the benefit of the assignee, the title thus acquired by the latter, whether legal or equitable, was such title as would support an action of trespass to try title and would only be barred under the statute of limitation affecting suits of trespass to try title, and the doctrine of stale demand had no application.</p>

<p>Appeal from the District Court of Bexar County. Tried below before Hon. J. L. Camp.</p>

<p>Error from the District Court of Kaufman County. Tried below before Hon. F. L. Hawkins.</p>