Volume 94 — Texas Reports

Seymour sued Coverdill and Buffington and had judgment which, on their appeal, was affirmed. Appellants then procured writ of error.

<p>Questions certified by the Court of Civil Appeals for the Second District, in an appeal from Fisher County.</p>

<p>1. Insurance—Warranties—Written Application—Oral Statements.</p> <p>The validity of an insurance policy, issued on a written application and malting the statements therein warranties, must depend on the truth of such written statements, regardless of any oral communications made by the insured to the soliciting agent. (P. 34.)</p> <p>2. Corporation—Powers—Limitation of Laws of State Creating It.</p> <p>While the limitation of the powers of a corporation by its charter or the laws under which it is incorporated restricts its power to act or contract in another State, the same effect will not be given to t)ie genera] statute laws of the State creating it. (P. 34.)</p> <p>3. Contract—Lex Loci—Test of Where Made.</p> <p>Contracts are governed by the laws of the place where they are made, unless a different place is fixed "by the contract for its performance, the place where made being tested by the acquiescence or final agreement of minds by which the contract is concluded. (Pp. 34, 35.)</p> <p>4. Same—Insurance.</p> <p>Contracts of insurance on applications made in one State and forwarded for acceptance to the domicile of the insurer in another, are ordinarily treated as made at such domicile, because the act of the insurer in signifying its acceptance there completes the contract. (P. 35.)</p> <p>5. Same—Contract Not Binding Till Delivery.</p> <p>The first payment being forwarded with application for' insurance, the provision of a policy that it “shall not be binding until delivery during the lifetime and good health of the applicant and until the first payment due hereon has been made” did not have the effect to suspend the contract till delivered to insured and make the place of delivery that of the contract, where the policy was forwarded to the insurer’s agent for unconditional delivery. (Pp. 35-37.)</p> <p>6. Same—Place of Performance.</p> <p>The presumption that a contract of insurance issued and forwarded for unconditional delivery was presumed to be made with reference to the laws of the State where issued is strengthened where it appears from the whole transaction that the parties contemplated performance in that State. (P. 37.)</p> <p>7. Lex Loci—Cases Distinguished.</p> <p>Cases denying the application of the laws of the place of contract where their application is forbidden by the laws of the forum distinguished. (P. 37.)</p> <p>8. Representations—Materiality—Question of Law—Law of Place of Contract.</p> <p>Whether representations in an application for insurance were material is ordinarily a question for the jury, unless so clear that reasonable irSnds could not differ about it; but upon a contract made in and governed by the laws of another State in which representations by the insured as to previous medical attendance are held material as matter of law, such rule is one of substantive law, not merely of procedure, and decisive of the materiality of such representations. (Pp. 37-39.)</p>

<p>1. Estoppel—Inventory.</p> <p>The act of a surviving husband in placing lands on the inventory of property held in community with the deceased wife, on giving bond to administer and account for-it as survivor, does not estop him, in a suit by the heirs against him and his bondsmen, from showing that it was, in fact, his separate property. (P. 44.)</p> <p>3. Same—Guardian—Inventory—Estoppel.</p> <p>The act of a father who had executed and put on record a deed of gift of land to his minor children, in placing same upon an inventory of their property made by him as guardian, did not estop him from showing, as against them, that the deed was never delivered, and that the property was his own. (P. 44.)</p> <p>3. Deed—Delivery.</p> <p>Placing a deed on record is evidence of delivery, but not conclusive; and the grantor is not thereby estopped from showing, as against the grantees, that .the deed was never delivered, and its record contrived merely to mislead his creditors. (Pp. 44, 45.)</p> <p>4. Estoppel.</p> <p>Listing land on the inventory of community property of himself and bis deceased wife, placing on record an undelivered deed of same to his minor children, and putting it, as their guardian, on the inventory of their property, neither singly amounting to an estoppel, could not, collectively, estop defendant, as against such children, from showing that the property was his own. (P. 45.)</p> <p>5. Voluntary Deed—Fraud—Estoppel.</p> <p>A bad intent can not operate to pass title without the execution of a deed. That the transaction was an attempted fraud on creditors might prevent the grantor from avoiding his executed deed, but can not estop him from showing that the deed was never actually delivered nor title passed. (P. 44.)</p>

<p>Error to the Court of Civil Appeals for the Third District, in an .appeal from Travis.</p>

Long sued the railway to recover damages for personal injuries. Judgment was against him and was affirmed on his appeal, whereupon he obtained writ of error.

<p>1. Sale of School Land—Detached Timbered Sections—Statutes Construed.</p> <p>Revised Statutes, article 4218y, permitting or directing the sale of detached and isolated sections of school land “at one dollar per acre, upon the same terms as other public lands are sold under the' provisions of this chapter”—there being no provisions in the chapter mentioned which are applicable to all lands alike—must be construed to require detached timbered sections to be sold as other timbered lands are authorized to be, that is, for cash only. (P. 68.)</p> <p>2. Sale of School Land—Detached Sections—Price—Statutes Construed.</p> <p>In the provisions for sale of isolated sections of public school land, Revised Statutes, article 4218y, the word “may” is to be construed in its literal- sense, as permitting, and not as commanding the Commissioner .to sell such sections at- the price of one dollar per acre named in the act; his control over the price remains as under the former laws; and he can not be compelled by mandamus to accept an application to purchase at one dollar. (Pp. 68-71.)</p> <p>S. Statutory Construction.</p> <p>The controlling rule of statutory construction is, that the intent of the Legislature must govern. In determining whether the word “may,” in the act authorizing sale1 of detached sections of school land by the Land Commissioner at one dollar per acre is mandatory, or merely permissive, the rule-which requires that it be taken in the sense of “shall,” in a matter in which the public have an interest to be promoted by the 'exercise of a power by a public officer, must yield to the evidence of a different intent found in other parts of the act and by a review of the previous legislation on the same subject; so,- and for the same reason, must be disregarded the rule that would infer an intent' to take away the discretion given the Commissioner, from the omission, in the act, of the words “not less than,” contained in previous laws fixing the price at which sales should be made. (Pp. 68, 69.)</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Bowie County.</p> <p>See Darrow v. Summerhill, 93 Texas, 92, where certified questions in this case were decided.</p>

<p>Application for Writ of Error to the Court of Civil Appeals for the Fourth District, in an appeal from El Paso County.</p>

<p>Application for writ of error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p>

<p>Application for writ of error to the Court of Civil Appeals for the First District, in an appeal from Austin County.</p>

- Wettermark sued Adoue and Campbell. The suit was dismissed in the trial court as to -Campbell, on his exceptions sustained, and as to Adoue, on his plea to be sued in the county of his residence. Wettermark appealed and questions were certified to the Supreme Court for decision. See Wettermark v. Campbell, 93 Texas, 517. The Court of Civil Appeals then reversed and remanded the ease, and Adoue applies for writ of error.

John A. Boggess and others brought suit in trespass to try title against A. C. Allen and others. Plaintiffs recovered a part only of the land sued for, and on their appeal the judgment was reversed and rendered in their favor for the whole. Defendants (appellees) thereupon obtained writ of error.

•Application for writ of error to the Court of Civil Appeals for the First District, in an appeal from Gregg County. McWhorter sued the mayor and aldermen of Longview, and Lam, whom the council had, after removing plaintiff therefrom, appointed city marshal, the action being for mandamus to compel plaintiff’s restoration, and appealed from a judgment on demurrer denying him relief.

<p>Question certified from the Court of Civil Appeals for the Fourth District, in an appeal from Maverick County.</p>

<p>1. Community Property—Sale for Community Debt.</p> <p>Community property may be sold for the payment of community debts by" the surviving husband, or under execution on judgment against him for a community debt, or by his administrator, whether the wife be living or dead. (P. 97.)</p> <p>2. Same—Independent Executor.</p> <p>The appointment of an independent executor, without other provision either enlarging or restricting his powers, confers upon him authority to do, without an order of court, every act which an administrator could perform with such order; hence he may sell community property to pay community debts without an order. (P. 97.)</p> <p>3i Same—Will Construed—Powers of Executor.</p> <p>A will by a surviving husband appointing an independent executor with power to manage the estate of the testator, does not restrict such executor’s authority to the „ .administration of the testator’s separate estate; his estate includes his right to .apply the community property to the payment of community debts. Especially is this the case where the estate is insolvent and the executor is directed to manage it to the best advantage for the benefit of creditors. (Pp. 97-99.)</p> <p>4. Same.</p> <p>A will which provided that an independent executor should manage the testator’s . estate to the best advantage for the benefit of creditors, did not deny to, but impliedly conferred upon the executor a power to sell for the payment of debts. Blanton v. Mayes, 54 Texas, 422, distinguished. (P. 99.)</p>

<p>1. Immaterial Error—Charge.</p> <p>A charge improperly restricting a defense to plaintiff’s action will not be ground for reversal where there is no evidence making such defense an issue. (P. 106.)</p> <p>2. Same.</p> <p>If it was error to hold a railway liable to an employe when injured by negligence of itself or its servants co-operating with that of a third person called in by the plaintiff to assist him in his work, a charge so holding was not ground for reversal where there was no evidence that negligence of such third person contributed to the injury. (P. 106.)</p> <p>3. Master and Servant—Disobeying Master’s Orders—Question for Jury.</p> <p>It is not negligence in law for the servant to disobey the master’s regulations. It is 'a question for the jury, whether, under the circumstances, if they present any phase of facts which might excuse disobedience, a reasonably prudent man would have done as the servant did. (Pp. 106, 107.)</p>

B. P. Cooper and wife and J. C. League sued Charles H. Mayfield. Defendant had judgment. B. P. Cooper and League, the surviving plaintiffs, prosecuted error to the appellate court, and on affirmance they obtained writ of error from the Supreme Court.

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Harris County.</p> <p>Fawcett sued Tennant and recovered judgment. Defendant appealed, and it was affirmed. He then obtained writ of error.</p>

<p>1. Wife’s Separate Estate—Deed from Husband—Recitals—Parol Evidence.</p> <p>Where a deed from husband to wife clearly expressed an intention to make the property conveyed her separate estate—by reciting payment of consideration from her separate funds—parol evidence is not admissible, without proof of fraud or mistake in the insertion of such recitals, to show that the grantor did not intend to convey to her as her separate property. (Pp. 117-119.)</p> <p>S. Consideration—‘Evidence to Defeat Deed.</p> <p>The statement in a deed from husband to wife of a consideration received from the wife’s separate property is a contractual recital showing the character of the right created, and can not be varied by parol evidence of a different consideration which would malee the deed inoperative. (Pp. 119, 120.)</p> <p>3. Husband’s Deed to Wife—Parol Evidence—Implied Trust.</p> <p>The rules permitting the engrafting of parol trusts on legal titles will not permit parol evidence to show the absence, in a deed from husband to wife, of an intent plainly expressed in the deed, in order to raise an implied trust. (P. 120.)</p>

<p>1. Voluntary Conveyance—Existing Debt.</p> <p>Where the debt existing at the making of a voluntary deed (by the debtor to his wife) is paid by the debtor, no debt subsequently created between the same parties, although in the transaction of the same character of business, will be considered as a debt existing at the date of the conveyance, and it is error to admit evidence of such subsequent debts to impeach the deed. (P. 124.)</p> <p>2. Contradictory Charges.</p> <p>An erroneous charge is not corrected by giving, elsewhere, a correct charge on the subject which does not refer to the erroneous one. (P. 125.)</p> <p>3. Same—Deed—Delivery.</p> <p>A charge requiring defendants to prove that a deed under which they claimed was not only delivered and accepted, but was intended by the grantor to become operative as a conveyance, was error which was not cured by another charge, hot referring to it, authorizing a verdict for defendant on proof of facts showing presumptive delivery and acceptance. (Pp. 124-126.)</p> <p>4. Same.</p> <p>The intent of a grantor to pass title, apparent from the terms of his deed, is not required to be proved where delivery and acceptance are shown. (P. 125.)</p>

Dancy A. Shobe, as holder of a judgment against the city of Sherman, sued out garnishment against Grayson County as a debtor of the city, and the latter was brought in as a party by the garnishee’s answer. Plaintiff: had judgment against the garnishee and the city appealed and on its affirmance obtained writ of error.

<p>Negligence of Minor—Want of Discretion—Absence of Evidence.</p> <p>In an action to recover for the death of a boy between 11 and 12 years of age and of ordinary intelligence for his years, who was run over by a railway train while wrongfully on the track between stations, either walking along or lying asleep thereon, it was a question of fact, the burden of proof being on plaintiff, whether such negligent act of deceased was excused by his want of discretion; and testimony that he had not discretion to understand the danger that he might fall asleep if he sat down (he knowing the danger of being run over while on the track) or that he had not discretion to go alone to other counties or distant towns (which was not admissible) was not sufficient to raise the issue whether his negligence was so excused. (Pp. 136-141.)</p>

<p>Charge—Burden of Proof—Conflicting Evidence.</p> <p>The mere fact that the evidence upon an issue which is submitted to the jury is conflicting, does not make it improper to give a charge informing the jury as to which party has the burden of proof; there might be, however, a state of facts which would render such charge misleading and improper. Distinguishing Railway v. Nesbitt, 11 Texas Civ. App., 610. (Pp. 144, 145.)</p>

<p>Original application by Walker to the Supreme Court for mandamus to require respondent, the Comptroller, to issue warrant.</p>

Mrs. Woeltz sued for divorce and division of property, making O’Brien, a mortgagee thereof, a defendant. She prosecuted error from a judgment holding his mortgage valid and foreclosing it, and had judgment reversed and rendered. O’Brien obtained writ of error from the Supreme Court.

<p>1. Railway—Right of Way—Planting Bermuda Grass—Damages to Adjoining Proprietor.</p> <p>The planting of Bermuda grass on its right of way by a railway company, not being in itself unlawful, would not, unless shown to have been done under circumstances making it an unjustifiable use of its property by the company, render it liable for injury to the lands of an adjoining proprietor by the spreading of such grass thereon from the right of way. (Pp. 157-163.)</p> <p>2. Same—Liability for Negligence.</p> <p>It was a good defense to the action, that the railway company had acted as a person of ordinary prudence would have done under the same circumstances, in planting Bermuda grass on its right of way. (P. 163.)</p> <p>3. Railway—Use of Right of Way.</p> <p>The right of a railway company to use the land acquired for its right of way is subject only to the restrictions laid upon persons generally, with the addition that the use be for a purpose proper to the prudent maintenance and operation of the road. (P. 162.)</p> <p>4. Right to Use Land—Injury to Adjoining Proprietor.</p> <p>In determining what is a proper use of land by its owner, with reference to adjacent lands, the importance of the use to the owner as well as the extent of the damage to be inflicted upon his neighbor must be taken into consideration, and the rights of the parties are to be adjusted in a practical way,—the question being whether the proposed use is a reasonable one under all the circumstances. (P. 160.)</p>

<p>Questions certified from the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p>

<p>1. Deed—Warranty—Incumbrance—Assumption by Vendee—Parol Evidence.</p> <p>A grantor by deed of general warranty (implying a covenant against incumbrances) when sued thereon by the warrantee who had been dispossessed by a purchaser at a sale under foreclosure of an incumbrance covered by such warranty, can show in defense a parol agreement, as part of the consideration, that the vendee should himself assume and pay off such incumbrance. (Pp. 172-175.)</p> <p>2. Same—Cases Distinguished.</p> <p>Such case distinguished from those showing merely knowledge by the covenantee of the incumbrance, or parol agreement that it be excepted from the warranty. (P. 173.)</p>

<p>Land Commissioner—Patent—Mandamus—Chain of Transfers.</p> <p>Mandamus will not be granted to compel the issuance of patent to one locating land under certificate granted to another without filing, by the applicant, of his chain of transfer from the original grantee. Rev. Stats., arts. 4182, 4183. (Pp. 176, 1770</p>

<p>Original application for writ of mandamus to the Commissioner of the General Land Office.</p>

Francis Smith sued Skidmore to foreclose a vendor’s lien on land, making the plaintiffs in error, Bamirez et al., defendants as claimants of an interest therein. These defendants, as to whom the suit was one for the recovery of land, appealed from a judgment in favor of plaintiff, and on its affirmance obtained writ of error.

<p>1. Fraud—Sale by Insolvent Debtor—Purchaser’s Knowledge.</p> <p>See charge on the issue of fraud in a transfer of goods of an insolvent debtor to his creditor held erroneous because it made the transfer void if done by the debtor to defeat another creditor, with knowledge of such intent by the party to whom the goods were transferred, though the purpose of the latter.was only to secure his own claim. The rule announced in Hass v. ICraus, 86 Texas, 689, approved. (P. 195.)</p> <p>2. Charge—Error—Contradictory Instructions.</p> <p>A definite statement of an erroneous proposition of law is not rendered harmless by a correct statement of the law on the subject in another part of the charge. (Pp. 195, 196.)</p>

<p>1. Negligence—Discovered Peril—Evidence of Defendant’s Knowledge.</p> <p>See case of plaintiff attempting to cross the track in rear of a freight train and injured by sudden backing of train, held not to present the issue of negligence of defendant after discovering plaintiff’s negligence and peril, though plaintiff’s attempt to cross the track was seen by defendant’s brakeman, who knew the train was about to be backed but testified that he did not know plaintiff was about to cross till too late to warn him. (Pp. 197-200.)</p> <p>3. Same.</p> <p>There must be evidence to show knowledge by defendant of plaintiff’s perilous position (not mere lack of care to discover it) in order to justify the submission of negligence after discovery of plaintiff’s peril as a ground for recovery in spite of contributory negligence. (P. 199.)</p> <p>3. Same—Anticipating Negligence.</p> <p>One person is not bound to anticipate negligent conduct on the part of another. (Pp. 199, 200.)</p>

Fraleys, as executors, sued the Sovereign Camp of the Woodmen of the World to recover on a benefit certificate issued to W. B. Fraley, deceased, husband of their testator. Plaintiffs recovered judgment, and it was affirmed on appeal by defendant, who thereupon obtained writ of error.

<p>Jurisdiction of Supreme Court—Divorce.</p> <p>Where on appeal a decree of divorce is affirmed, but the judgment below as to the disposition of the property is reversed and remanded, appellee can not show jurisdiction in the Supreme Court on the ground that the judgment of reversal practically settles the rights of property, for this is a part of the divorce case over which the judgment of the Court of Civil Appeals is final. Dev. Stats., art. 996. (P. 208.)</p> <p>Motion fox rehearing of an application for writ of error to the Court of Civil Appeals for the Third District, in an appeal from McLennan County.</p>

<p>1. Guardianship—Laws of Sister State—Presumption.</p> <p>On an application under article 2753, Revised Statutes, for appointment, as guardian of the estate of a minor, of the guardian appointed in another State, upon the filing of a transcript showing such appointment there, the court will not take judicial notice of laws of the sister State by which a guardian there appointed becomes guardian of both the person and estate; but, in the absence of proof of such laws, will presume them the same as those of Texas. (Pp. 213, 214.)</p> <p>3. Same—Foreign Guardian.</p> <p>Tested by the laws of Texas (Revised Statutes, articles 2576, 2577, 2590, 2598-2600, 2602, 2612-2628, 2631-2C34), presumed to be in force in a sister State in the absence of proof, an appointment by the courts of Kentucky, as guardian, generally, of a minor will not be taken as creating a guardianship of the estate; nor will such foreign guardian be presumed legally qualified on executing a bond in no named sum, our own laws requiring bond in double the value of the property. (Pp. 214, 216.)</p>

<p>Question certified by the Court of Civil Appeals for the Third District, in an appeal from Coleman County.</p>

John A. Robinson sued Sallie M. McCreary and others, her children, and recovered judgment. Defendants appealed, and upon affirmance obtained writ of error.

The State sued to foreclose its lien for taxes, and was denied recovery and this ruling affirmed on appeal, whereupon it obtained writ of error.

<p>1. School Land—Defaulting Purchaser—Reinstatement—Statute.</p> <p>The Act of 1897 (Batts’ Statutes, article 4218f) permitting defaulting purchasers of school land to be reinstated on request by payment of arrears is a remedial statute and to be as liberally construed as its language permits. (Pp. 240, 241.)</p> <p>2. Same—Intervening Rights.</p> <p>The proviso in such act saving intervening rights of third persons, protected vested rights, and not such as those of an applicant to lease, whose right was by the statute (Batts’ Revised Statutes, article 4218r) subject to be rejected by the Commissioner at any time prior to signing his lease. (P. 241.)</p> <p>S. School Land—Application for Reinstatement—Application to Lease.</p> <p>- It was not necessary that the request for reinstatement by a defaulting purchaser should have been accompanied with payment into the treasury of the full amount of interest due by the applicant in order that his right to reinstatement prevail over an already pending application to lease the land. The law admits the construction that the applicant for reinstatement should have a reasonable time to ascertain the amount due and make payment. (P. 241.)</p> <p>4. Same.</p> <p>A purchaser of school land having made default, another party applied for lease of the land, paying in advance the first year’s rent; afterwards the purchaser applied for reinstatement and was proceeding to ascertain and pay the amount in default when the lease contract was executed to the applicant therefor. Held, that the purchaser, paying on its ascertainment the amount in default, acquired a right in the land superior to that of the lessee. (Pp. 239-242.)</p>

Mills sued the railway company and judgment went for defendant. Plaintiff appealed, and on affirmance obtained writ of error.

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p> <p>Nass sued the Galveston, Harrisburg & San Antonio Railway Company and the latter made the International & Great Northern Railway Company defendant to its suit to recover indemnity. Plaintiff had judgment against defendant and the latter had judgment over for a like amount against the International & Great Northern Railway Company. On appeal the recovery over against the latter company was reversed and the company discharged of liability. The Galveston, Harrisburg & San Antonio Railway Company thereupon obtained writ of error.</p>

The building association sued Goforth and wife and appealed from a judgment allowing their debt but refusing foreclosure of the lien claimed to secure it. Plaintiff appealed, and on affirmance, with reduction of its judgment, obtained writ of error.

Smith sued the city for damages caused by a nuisance and the city made Hildebrand and Hamilton parties, claiming indemnity from them against plaintiff’s judgment. Plaintiff recovered and the city was denied indemnity on its plea over, and this holding being affirmed on appeal, obtained writ of error.

<p>1. Jurisdiction of Supreme Court—Agreed Case—Assignment of Error-Practice.</p> <p>Where the appellate court, being of the opinion that they could not consider the question involved in an agreed case without an assignment of error, affirm the judgment for want of such assignment, the Supreme Court, on granting writ of error, acquires jurisdiction of the whole case, and, on determining that the question should have been passed on without an assignment of error, and the case affirmed on its merits, they will so adjudge, and not remand to the Court of Civil Appeals for its decision. (Pp. 275, 276.)</p> <p>2. Wife’s Separate Property—Judgment Against Husband.</p> <p>It is nowhere provided that the husband (though he may sue alone) can be sued alone for the wife’s separate property, and a judgment for the recovery of her property in a suit against him to which she was not a party does not bind her nor estop her from asserting title. (P. 276.)</p> <p>3. Assignments of Error.</p> <p>The statutes in regard to assignments of error should receive a liberal and practical construction, and when parties have agreed upon the question upon which the determination of the case is made to depend, error is impliedly assigned. (P. 276.)</p> <p>4. Error Apparent.</p> <p>By error “apparent upon the face of the record,” which the court may consider without assignment, is meant a prominent error, either fundamental in character, or one determining a question upon which the very right of the case depends. (P. 276.)</p>

<p>Question certified from the Court of Civil Appeals for the Second District, in an appeal from Eastland County.</p>

<p>Question certified from the Court of Civil Appeals for the Third District, in an appeal from McLennan County.</p>

<p>Question certified from the Court of Civil Appeals, Fourth District, in an appeal from Bexar County.</p>

Ward brought suit against Mrs. Kelley and others to set aside the judgment affirmed in Ward v. Wilson, 92 Texas, 22. He recovered judgment, which was affirmed on appeal by defendants, who thereupon obtained writ of error.

<p>1. Contract—Mistake—Parol Evidence—Release of Damages.</p> <p>A contract releasing all damages from personal injuries received by the maker in a railway wreck can not be set aside or disregarded on parol proof that it was made under the mistaken belief that he had received no injury except to the ankle, so as to permit recovery for injuries to the spine, subsequently developed, for which no adequate compensation was made in the settlement. (Pp. 299-304.)</p> <p>8. Same.</p> <p>One who accepts a thing of value in settlement of a claim for personal injuries is, in the absence of fraud or concealment, concluded by the settlement though the final issue may be different from that which was anticipated; the parties take the chances of future development. (Pp. 301-304.)</p> <p>S. Same—Cases Distinguished.</p> <p>This case distinguished from those of releases involving distinct causes of action (Lyall v. Edwards, 6 Hurl. & N., 337) or release for certain specified injuries followed bv words of general release. (Lumley v. Railway, 6 Am. and Eng. R. R. Cas., N. S., 81.) (Pp. 302, 303.)</p>

<p>1. Telegraph—Message—Connecting Lines—Route Designated by Sender.</p> <p>A telegraph company accepting for transmission a message for a point off its line by delivering it to a telephone connection designated by the sender, was bound to transmit by the telephone route so named, and is liable to the sender for damages from delay in the delivery occasioned by its attempt to forward by a different telephone connection, the fine of which proved to be out of order. The sender had a right to designate the route. (P. 307-309.)</p> <p>2. Damages—Business Transaction—Notice to Company.</p> <p>The message “accept offer five three quarters” being sufficient to suggest that it was an acceptance of an offer involving a business transaction, no further notice of the fact that its delivery was necessary to close a contract for purchase of cotton was necessary in order to make the company liable for damages to the sender by loss of the profits of such contract which he was prevented from concluding by default in the delivery of the message. (Pp. 308, 309, 310.)</p>

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Anderson County.</p> <p>Newburn sued the railroad company for damages for injuries to the person, and obtained judgment. The defendant appealed, and on the judgment being affirmed obtained writ of error.</p>

White sued the city and had judgment. On appeal by defendant this was reversed and the case remanded. Appellant then obtained writ of error on the ground that the ruling practically settled the case..

<p>Questions certified from the Court of Civil Appeals for the First District, in an appeal from Fort Bend County.</p>

F. L. Miller and others, sureties on the official bond of Skipwith - as county treasurer for his second term, obtained writ of error upon a judgment of the Court of Civil Appeals reversing their judgment over against the Farmers National Bank of Henrietta for the amount recovered of them as sureties by the county. •

Kieff sued the railroad company, by next friend, on account of injuries to the person, and recovered judgment. Defendant appealed and on affirmance obtained writ of error.

Anna Massie and others sued the mortgage company in trespass to try title, and had judgment. Defendant appealed, and on affirmance obtained writ of error from the Supreme Court.

<p>1. Telegram—Delivery—Absence of Addressee.</p> <p>The primary duty oí" a telegraph company is to deliver a dispatch to the one to ■whom it is addressed in person. In his absence it is not under obligation to deliver the message at his place of business, unless there is some one there authorized to receive telegrams for him. (P. 348.)</p> <p>2. Same—Sale of Land—Message to Stop.</p> <p>On the day for sale of plaintiff’s land under execution a message to stop the sale, directed to the sheriff by name, not officially, was received, but was not delivered, by reason of his absence from town, until his return at 3 p. m.—the land having in the meantime been sold by his deputy. Held, that in order to recover damages arising from such sale of his property, as caused by the negligent delay in the delivery of the message, it was necessary for plaintiff to show that there was some one at the sheriff’s office authorized to receive and open messages directed to him personally, and that if the message had been so delivered it would have been opened and the sale by deputy postponed. (Pp. 347-349.)</p>

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Liberty County.</p> <p>The Texas & New Orleans Railroad Company sued Speights in trespass to try title. Defendants had judgment and it was affirmed on appeal by the plaintiff, who then procured writ of error.</p>

Voigt sued the railway company and judgment was rendered for defendant on exceptions urging the statute of limitation to his peti- ' tion. The judgment being affirmed on his appeal he then obtained writ of error.

Kemendo sued the assurance company .and defendant had judgment. Plaintiff appealed and the judgment was reversed and remanded. Ap- ' pellee thereupon procured writ of error on the ground of conflict with previous rulings.

<p>1. Mandamus—Judicial Act.</p> <p>While a judge may be required by mandamus to enter judgment upon the verdict of a jury, where he refuses to do so, the determination of what is the proper judgment to be entered upon a verdict calls for the exercise of judicial discretion, and this can not be controlled by another court by a writ of mandamus. (P. 376.)</p> <p>2. Mandamus—Other Remedy—Appeal.</p> <p>Mandamus will not be awarded where the law has provided another remedy, plain, adequate and complete; thus it will not lie to compel the correction of a judgment which the plaintiff' may have corrected by appeal. (Pp. 376, 377.)</p>

The city sued for and had judgment foreclosing its lien for taxes on the property of Link and Patillo, who appealed, and on affirmance obtained writ of error. The opinion of the Court of Civil Appeals in this cause is as follows: “Gill, Associate Justice.

<p>Error to the Court of Civil Appeals for the Eirst District, in an appeal from De Witt County.</p> <p>The bank sued Dowlearn, and defendant had judgment. Plaintiff appealed and on affirmance obtained writ of error.</p>

<p>Questions certified by the Court of Civil Appeals for the Second District, in an appeal from Denton County.</p> <p>The majority and dissenting opinions in the Court of Civil Appeals were as follows:</p> <p>“CONNER, Chief Justice. The majority do not feel authorized to read into article 3786, Revised Statutes, an inhibition limiting the authority of a member of a medical board to the issuance of a single certificate, as insisted upon in behalf of appellant; particularly in view of the somewhat similar provisions relating to the issuance of temporary certificates in cases of dentists and pharmacists found in the Revised Statutes.</p> <p>“In these instances the statute had limited the authority to the issuance of a single certificate. Had there been like legislative intent in the case of physicians, no reason is perceived why the same should not have been expressly declared. The reasons urged why the law should be so' construed, in our judgment, are reasons more-properly to be addressed to the Legislature. We therefore conclude that the certificate made in 1889 authorized appellee to practice medicine; and that Dr. Inge’s avowed purpose and declarations at the time of its issuance can not control its legal effect.</p> <p>“The objection to the certificate issued by the board of medical examiners January 26, 1899, should have been sustained, and the ruling of the court in that particular was technically erroneous, but on careful consideration of the record we have concluded that the error will not justify us in reversing the judgment under the express limitation of the court in his charge.</p> <p>“Whatever may have been the general incompetence of appellee, and his lack of technical and general knowledge of the practice and theory of medicine, he was entitled to the reasonable value of beneficial services performed by him at the request of appellant. The jury by their verdict under the charge of the court necessarily affirmed the beneficial character of appellee’s services; and the record fails to disclose any evidence tending to prove that appellee’s services as actually performed by him were not beneficial in the case in which he had been called, or that the medicine, by whatever name designated, administered by him was of injurious effect upon appellant’s wife, or that her death was in any degree induced or brought about by the enlargement of the deceased’s liver, which it is insisted should have been discovered by appellee.”</p> <p>DISSENTING OPINION.</p> <p>“HUNTER, Associate Justice. I can not agree to the above, because I believe that the intention of the Legislature was to allow a member of the board of physicians to grant only one temporary certificate, and after the board had found the applicant not qualified to practice medicine no member of the board had the right or authority to grant a second temporary certificate.</p> <p>“I give the statute this construction in view of the evil which the Legislature intended to remedy—that is, the injuries to life and health if incompetent quacks and ignorant charlatans are permitted to prey upon the sick and afflicted people throughout the land.</p> <p>“Hot being legally authorized to practice medicine the appellee was violating the penal laws of the State, and he can not recover for such services, or for his ‘niggerhead’ and gravel drops.”</p>

<p>Question certified from the Court of Civil Appeals, Fifth District, in an appeal from Ellis County.'</p>

<p>Original application for writ of mandamus against the Comptroller.</p>

<p>Ceetieicate of dissent from the Court of Civil Appeals for the Second District, in an appeal from Erath County.</p>

<p>Questions certified from the Court of Civil Appeals for the First District, in an appeal from Harris County.</p>

<p>1. Jurisdiction of Supreme Court—Overruling Cases.</p> <p>To give the Supreme Court jurisdiction over a reversed and remanded cause on the ground that the decision conflicts with previous rulings of that court, it is not sufficient that it merely conflicts with a proposition announced in the previous case; if such proposition was not the very point there determined the later decision does not overrule it. (P. 414.)</p> <p>2. Same—Trespass to Try Title—Limitation.</p> <p>The previous decisions in Curlin v. Hendricks, 35 Texas, 225, and Mayers v. Paxton, 78 Texas, 196, are not overruled by the holding of the Court of Civil Appeals in this case that in an action of trespass to try title in the statutory form the plaintiff may establish title by limitation without specially pleading the facts requisite to show such title, though a contrary proposition was announced in the latter case. (P. 414.)</p> <p>3. Supreme Court—Jurisdiction—Settling Case.</p> <p>The Supreme Court can not be given jurisdiction over a case reversed and remanded upon a claim that the ruling practically settles the case, where further evidence was necessary to determine the extent to which plaintiffs were entitled to recover under the ruling made; defendant could not obtain the writ of error by alleging that plaintiffs could not produce further evidence. (Pp. 414, 415.)</p> <p>4. Trespass to Try Title—Pleading—Limitation.</p> <p>It is intimated, though not decided, that plaintiff in trespass to try title must plead specially in order to recover on a title acquired by adverse possession. (P. 415.)</p>

Ebbob to the Court of Civil Appeals for the Second District, in an appeal from Cooke County. Stevens brought suit against Stone, and appealed from a judgment for defendant, which being affirmed, he obtained, writ of error.

Ekrok to the Court of Civil Appeals for the Second District, in an appeal from Parker County. Malone and others sued Dick in trespass to try title and recovered judgment, from which defendants appealed. The Court of Civil Appeals reversed and rendered judgment for appellant, and appellees obtained a writ of error.

Dawson sued the St. Louis, etc., Company and obtained a judgment against it which the company carried by writ of error to the Court of Civil Appeals, where it was reversed. Dawson then obtained writ of error from the Supreme Court on the allegation that the opinion practically settled the case.

<p>1. Insanity—Power of Attorney.</p> <p>A power of attorney by one of unsound mind, and the conveyance of land by authority of such power, are not void, but merely voidable. (Pp. 433436.)</p> <p>8. Same—Avoiding Conveyance—Return of Consideration.</p> <p>A lunatic in an action to set aside his voidable conveyance is not required to return the consideration received therefor in the absence of proof that he still had it in his possession or had spent it for necessaries. (P. 436.)</p> <p>3. Lunatic—Suit Against Nonresident—Costs.</p> <p>In a suit by one insane, through his guardian, against a nonresident cited by publication, the fees of the attorney appointed to represent defendant, who has prevailed in the suit, may be taxed against plaintiff. (P. 436.)</p>

<p>Question certified by the Court of Civil Appeals for the First District, in an appeal from Victoria County.</p>

<p>1. Limitation—Installment Notes—Default—Maturity.</p> <p>A contract providing that on default in payment of one or more of a series of installment notes the remaining .notes of the series shall be due and payable, operates to mature the entire debt and to set limitation running against it upon such partial default, and not merely to give the creditor an option whether to treat the whole debt as due or not. (Pp. 444, 445.)</p> <p>2. Same—Contract—Maturing on Default.</p> <p>Installment notes and the mortgage or lien securing them forming one contract, the effect of the insertion of a provision for maturing the entire debt on a partial default in payment is the same when inserted in the instrument securing the notes as though in the notes themselves; it matures the remaining notes for general purposes, not merely so far as to allow foreclosure, and sets limitation running from the time of default. (P. 445.)</p> <p>3. Installment Notes—Partial Default—Maturity of Whole—Contract.</p> <p>Whether the debtor in a contract maturing an entire series of installment notes upon a failure to pay any one, could, by his willful default, convert a promise for future payment with interest into one for present payment, and thus deprive the creditor without his consent of the investment he had contracted for, is questioned but not decided. (P. 446.)</p> <p>'4. Limitation—Set in Motion by Wrong.</p> <p>It is not an obstacle to the plea of limitation that the party invoking it has put it in motion .by his own wrong. (P. 446.)</p> <p>5. Installment Debt—Default—Maturity of Whole—New Agreement.</p> <p>While a creditor can not by his acts alone change the effect of the debtor’s partial default in maturing the entire debt under a contract so providing, the parties can by mutual agreement obviate this effect of the default and restore the contract to its original condition, the surrender by the debtor of his right to discharge the whole liability at once and his securing further credit furnishing consideration from each party for such agreement. (P. 447.)</p> <p>6. Same—Estoppel—Waiver.</p> <p>Where each party so acts as to justify the other in believing and acting on the belief that the effect of the failure to pay an installment when due is to be disregarded and the contract to stand as if there had been no default, the principle of estoppel by waiver would apply to their acts. (P. 447.)</p> <p>7. Limitation—New Promise—Writing.</p> <p>The statute requiring a new acknowledgment of the debt to be in writing in order to take the case out of the operation of limitation (Revised Statutes, article 3370) has application to the acknowledgment of the cause of action against which the statute runs, and does not prevent a parol agreement waiving the effect of partial default in payment of installments in maturing the entire debt. Such waiver restores the original debt, not mature, and against which no limitation runs. (P. 448.)</p> <p>8. Waiver—Question of Fact.</p> <p>See facts attending the payment and acceptance of installments of debt after default held to tend to show, as matter of fact, a mutual waiver of the effect of such default in maturing the entire debt, but not to warrant the inference of such waiver as matter of law. (Pp. 443, 444, 448.)</p>

<p>Question certified from the Court of Civil Appeals for the Second District, in an appeal from Taylor County.</p>

Eebob to the Court of Civil Appeals for the Third District, in an appeal from San Saba County. Hall sued White and recovered a judgment from which defendant appealed, and on its affirmance obtained writ of error.

<p>1. Foreclosure—Parties—Purchaser from Mortgagor.</p> <p>The legal title acquired by purchase from a mortgagor not being affected by a sale under foreclosure to which such purchaser was not made a party, the burden of proof was upon one claiming to recover against him upon purchase at such foreclosure sale to show that defendant had bought after the suit to foreclose was instituted. (P. 455.)</p> <p>3. Same—Registration—Burned Record.</p> <p>Writ of error is refused in this case on the ground that judgment was properly rendered in favor of the holder of the legal title under purchase from the mortgagor, without passing on the question whether his purchase was with constructive notice of a recorded mortgage when the record had been burned. (Pp. 455, 456.)</p>

The Phoenix Lumber Company and Dillingham as its statutory assignee brought the suit against the Houston Water Company, in the District Court of Harris County, and numerous insurance companies ' intervened in the suit, claiming partial interests in the cause of action. The cause was transferred to Fort Bend County on change of venue. Defendant having judgment, plaintiffs and interveners appealed, and on affirmance obtained writ of error.

The suit was brought by Mary Miller and others against the Texas Loan Agency and others, in trespass to try title. Judgment was for defendants and plaintiffs appealed on an agreed case. The judgment was affirmed as to all except Mary Miller, and as to her was reversed and rendered in her favor, whereupon appellees procured writ of error.

<p>Damages—Death—Sum of Future Contributions.</p> <p>In an action by a parent for death of a son it Avas error to instruct the jury to allow as damages whatever pecuniary aid plaintiff had a reasonable expectation of receiving from deceased after he came of age; the rule being such sum as would be a present compensation for such future contributions. (P. 469.)</p>

Green brought suit and recovered judgment against Southard and others. On defendants’ appeal this was reversed and the case dismissed. Appellee thereupon obtained writ of error.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Cooke County.</p> <p>Walker sued the insurance company and recovered judgment. Defendant' appealed and on affirmance obtained writ of error.</p>

<p>1. Registration—Mortgagee—Notice—Burden of Proof.</p> <p>As against one holding land by an unrecorded deed, the holder of a junior mortgage is in the relation of a purchaser who has to show, by evidence outside the recitals of his conveyance, that he bought for valuable consideration and without notice of previous conveyances, and not of a creditor who had established a lien against the grantor by process of law, and whose lien prevails unless notice of the unrecorded deed is shown. (Pp. 484-486.)</p> <p>2. Mortgage—Registration—Notice.</p> <p>Section 3 of Act of May 15, 1838, requiring that mortgages be recorded within ninety days (Paschal’s Digest, article 4995), was superseded by the amendatory acts of February 5, 1840, making unrecorded mortgages good between the parties, which rule has since prevailed. The record, though not made within ninety days, is notice from the time it was made. (Pp. 486, 487.)</p>

Neighbors sued Anderson and wife and had judgment from which defendants appealed. Certified questions were answered by the Supreme Court (Anderson v. Neighbors, ante, p. 236) and thereupon the Court of Civil Appeals reversed and rendered the judgment for appellants. Neighbors then applied for writ of error.

Evants sued the insurance company and recovered judgment. The company appealed and on affirmance applied for writ of error, complaining among other matters of the ruling of the Court of Civil Appeals sustaining plaintiff’s issue that the defense of forfeiture of the policy by permitting the premises to become vacant had been waived.

<p>Motion for leave to file original petition for mandamus.</p>

<p>1. Mandamus—Issuance of Patent—Parties.</p> <p>Mandamus will not issue to compel the Commissioner of the General Land Office to issue a patent, when it appears that there are adverse claimants to the land not made parties to the suit. (Pp. 492, 493.)</p> <p>2. Same—Jurisdiction of Supreme Court—Query.</p> <p>Question is suggested whether the Supreme Court, in an original proceeding, can compel the Commissioner of the General Land Office to issue to one a patent to land claimed by another, though such adverse claimant be made a party to the proceeding. (P. 493.)</p>

<p>1. Estoppel—False Representations Not Acted On.</p> <p>Unless false representations have been acted on by the party asserting estoppel doing otherwise by reason of them than he would have done but for the representations, they do not effect an estoppel. (P. 496.)</p> <p>2. Same—Facts.</p> <p>See facts under which false representations were held not to estop because the party complaining did not act upon them to his prejudice. (Pp. 494-497.)</p>

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Denton County.</p> <p>Jones and wife sued the building company and obtained judgment. Defendant appealed and on its affirmance obtained writ of error.</p>

County. Chamberlin sued Leland for land and had judgment. Leland appealed and it was reversed and judgment rendered in his favor, whereupon Chamberlin obtained a writ of error.

Ekkok to the Court of Civil Appeals for the First District, in an appeal from Wharton County. MArris sued the railway company for damages from personal injuries, and recovered judgment. It was affirmed on writ of error by the Court oí Civil Appeals and the company obtained writ of error from the Supreme Court.

<p>Negligence, Contributory Negligence and Accident.</p> <p>See issues and evidence in case of boy injured in street by passing train, held to involve the question of injury by pure accident (which defendant need not plead as a defense), as distinguished from contributory negligence,, and to make it reversible error to refuse a requested charge relieving defendant from liability in such -case. (P. 512.) *</p>

Cleveland Rutherford, by next friend, sued the railway company on account of personal injury and recovered judgment, which was affirmed on defendant's appeal. Appellant then obtained writ of error.

Sarah F. Ostrom sued the city of San Antonio, and judgment being given for defendant, plaintiff appealed, and on affirmance obtained writ of error.

<p>Questions certified by the Court of Civil Appeals for the Fifth District, in an appeal from Hunt County.</p>

<p>Application for writ of error to the Court of Civil Appeals for the Third District, in an appeal from Travis County.</p>

Ebror to the Court of Civil Appeals for the Third District, in an appeal from Runnels County. Dwight, Skinner & Co. sued Matthews, Miller & Co. The suit was dismissed on demurrer, and, plaintiffs having appealed, it was affirmed. Appellants then procured a writ of error.

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.</p> <p>Rivera sued White, guardian, and others, and appealed from a judgment for defendants, on the affirmance of which he obtained writ of error.</p>

In a receivership over the Texas Briquette and Coal Company, D. Sullivan & Co., and others, holders of bonds secured by mortgage, prosecuted writ of error from a judgment of the District Court giving preference to the liens of the Watt 'Mining Car Wheel Company and others, interveners asserting materialmen’s liens. The judgment being affirmed, they then obtained writ of error from the Supreme Court.

<p>Questions certified from the Court of Civil Appeals for the First District, in au appeal from Cameron County.</p>

<p>Question certified from the Court of Civil Appeals for. the Fifth District, in an appeal from Kauffman County.</p>

<p>Motion for leave to file original petition for writ of mandamus against the Attorney-General.</p>

<p>Questions certified from the Court of Civil Appeals for the First District, in an appeal from Aransas County.</p>

<p>Question certified from the Court of Civil Appeals for the Second District, in an appeal from Parker County.</p>

<p>Certified Question—Referring to Brief for Facts.</p> <p>In certifying a question to the Supreme Court for determination, the Court of Civil Appeals should embody in the certificate itself a statement of the facts upon which the question arose, and not merely refer to the briefs for such statement. (P. 566.)</p>

Martin sued McAllister and others and appealed from a judgment in their favor. On its affirmance he obtained writ of error.

Richmond & Tiffany sued the Texas & Pacific Railway Company, and had judgment which was affirmed on appeal by defendant, who thereupon obtained writ of error.

<p>Ebboe to the Court of Civil Appeals for the First District, in an " appeal from Harris County.</p>

<p>Questions certified from the Court of Civil Appeals for the First District, in' an appeal from Harris County.</p>

<p>Certificate of dissent from the Court of Civil Appeals for the Second District, in an appeal from Fisher County.</p>

<p>1. Public Lands—Classification and Appraisement—Powers of Commissioner.</p> <p>The acts of the Commissioner of the General Land Office in classifying and valuing land under article 4218b of the Revised Statutes and offering it for sale were conclusive on the State. (P. 595.)</p> <p>2. School Land—Reservation of Minerals.</p> <p>Articles 3498a, 3498n, of the Revised Statutes, reserving from sale all lands containing valuable minerals, were not intended to operate upon lands which had not been found to contain such deposits and were not apparently mineral lands. (Pp. 595-599.)</p> <p>3. Same—Purchaser—Affidavit—Statutes Construed.</p> <p>The requirement in article 3498n that the purchaser file an affidavit that there were none of the enumerated minerals on the land, with his application to buy “any of the lands embraced in article 3498a,” refers only to the lands reserved from sale by that article, that is, those "containing valuable mineral deposits,” and does not apply to lands classed as agricultural and not known to be mineral lands. (P. 596.)</p> <p>4. Same—Reservation of Minerals. _</p> <p>The provision reserving minerals from sale applies only to purchase of land once classed as mineral, by one making oath to his belief that it is not so in fact, for the purpose of buying it under the general law, as agricultural and not as mineral land; except in such purchases the minerals passed with the land. (Pp. 595, 596.)</p> <p>5. Statutory Construction.</p> <p>Roe this case for application of the maxim that all laws relating to the same subject and enacted at the same session are to be construed together and practically as one act. Also that the construction placed upon a statute by the legislative and executive departments should be followed by the judiciary. (Pp. 597, 598.)</p> <p>6. School Land—Mandamus.</p> <p>A purchaser under the law of 1895, of land classified as agricultural, and who has complied with all the requirements of purchase for lands of that class, may have mandamus to compel the Commissioner of the General Land Office to issue him a patent, though he has made no affidavit that the land contains no mineral deposits, as required by article 3498n of the Revised Statutes. (Pp. 590, 591, 598.)</p>

Brightman brought the suit against Comanche County. He had judgment which on defendant’s appeal was reversed and rendered in its favor, and thereupon he obtained writ of error.

Ebbob from the Court of Civil Appeals for the Fifth District, in an appeal from Ellis County. Mrs. Coleman sued the bank, and, having appealed from a judgment for defendant, on its affirmance obtained writ of error.

Errob to the Court of Civil Appeals for the First District, in an appeal from Harris County. The investment company sued Grymes and another and appealed from a judgment for defendants; this being affirmed it obtained writ of error.

<p>Application for writ of error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p>

<p>1. Railway Corporation—Charter—Amendment—Fees—Stock.</p> <p>Article 2439, Revised Statutes, does not require a corporation, on filing an amendment to its charter which does not increase its stock, to pay to the Secretary of State a fee of $25 on each $100,000 of capital stock authorized by its original charter. (Pp. 633-635.)</p> <p>2; Same—Statutory Construction.</p> <p>A construction of a statute in accordance with its reason and spirit may be preferred to one based on its strict letter, where not inconsistent with its terms. See example of such construction applied to the provisions of article 3439, Revised Statutes, as to the fee required to be paid by a railway corporation for filing an amendment to its charter. (P. 634.)</p>

McLennan County appealed from a judgment on motion for re-taxation of the costs on a sheriff’s sale of lands under a judgment in its favor. The judgment was modified and affirmed, and appellant then procured writ of error.

Galloway sued Kerr and others to recover possession of real estate and enjoin sale by Kerr under a trust deed. He appealed from an adverse judgment, which was reversed and rendered by the appellate court, whereupon Kerr, the trustee, and the Texas Loan Agency, the beneficiary, obtained writ of error.