Volume 96 — Texas Reports

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

<p>1. —Evidence—Certificate of Land Commissioner—Harmless Error.</p> <p>Declining to concur in the opinion of the appellate court herein that the certificate of the Commissioner of the General Land Office was admissible-to defeat plaintiff’s right to purchase school land as an actual settler, by showing a previous award to another applicant, and that to the latter, an actual settler, the land had been sold on his application and the same was in good standing, the court concur in the disposition of the case on the ground that the facts throwing on plaintiff the burden of showing that the former purchaser had lost his rights were shown by the findings to be established by evidence independent of such certificate. (Pp. 4, 5.)</p> <p>2. —Purchase of School Land—Actual Settler—Burden of Proof.</p> <p>To defeat the rights of a prior applicant to purchase school land, shown to be an actual- settler thereon, plaintiff had the burden of proving that either defendant had never completed his purchase, or that he had in some manner forfeited his right before plaintiff made application. (P. 5.)</p>

Certificate of dissent from the Court of Civil Appeals for the Second District, in case on writ of error from Wichita County. The majority and dissenting opinions in the Court of Civil Appeals were as follows:

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Falls County..</p> <p>Phillio sued the railway company and recovered judgment, which ■ was affirmed on appeal by defendant, who thereupon obtained writ of error.</p>

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

<p>Contributory Negligence—Trespasser About Cars.</p> <p>A person unconnected with the railway who, while standing behind the end of a car engaged in examining the coupling apparatus, through mere curiosity and without knowledge by the railway employes of his presence, was killed by the movement of the car in consequence of other ears being switched against it, was guilty of contributory negligence preventing a recovery for his death. (P. 30.)</p>

<p>1. —County Court—Probate Jurisdiction—Seting Aside Will.</p> <p>The county court, sitting in probate, has jurisdiction of an action by th, widow of a testator to set aside a provision of his will by which an interest in his estate to the extent of ten thousand dollars was declared to be his separate property and the executor directed to pay the same to a trustee for his son (Pp. 32-34.)</p> <p>2. —Same—Title to Real Estate.</p> <p>The question of the validity of a provision in a will declaring ten thousand dollars of the property of the testator and his wife to be his separate estate and directing its payment by the executor to a trustee for his son, did. not involve the title to real estate out of sale of which the sum was to be raised, but was the assertion of a claim to reimbursement of his separate estate out of the community property, to determine the validity of which was within the jurisdiction of the county, not of the district court. (Pp. 32-34.)</p> <p>3. —Will—Claiming Separate Estate.</p> <p>While a testator has power to dispose of his own interest in the community property, he can not by will fix upon the whole estate a claim in favor of his separate estate. (P. 35.)</p>

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

Spence appealed from a judgment for defendant in a suit of trespass to try title brought by him against Mrs. Mitchell. The judgment was affirmed and he then obtained a writ of error.

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p> <p>The bank sued McLane and Mackey and recovered judgment from which McLane alone appealed. The judgment being reversed and rendered for appellant, appellee obtained writ of error.</p>

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

<p>1. —V erdict—J udgment—Interest.</p> <p>The verdict of the jury upon issues of fact submitted to them constitutes the sole basis for the judgment; the court can not add to their award of damages for injuries to live stock by a carrier, interest on the amount from the date of the injury. (P. 64.)</p> <p>2. —Damages—Interest—Judgment—Amount Claimed—Assignment of Error.</p> <p>In a suit for injury to property by a carrier, interest is not recoverable, eo nomine; it is an element of the damages, to be included as such by plaintiff in his claim and by the jury in the verdict; recovery for the full amount claimed can not be increased by interest thereon from date of accrual of the cause of action, because not authorized by the pleading; and error in allowing such increase is properly raised by an assignment that the judgment was not authorized by the pleadings. (Pp. 63, 64.)</p> <p>3. —Same—Practice on Appeal,</p> <p>The appellate court, being authorized to render such judgment as the court below should have done (Revised Statutes, article 1027), when plaintiff, in addition to a recovery on verdict, of the full amount claimed, has judgment for interest thereon from the accrual of his cause of action, should reverse and render judgment for only the amount claimed and awarded by the verdict. (P. 64.)</p>

<p>1. —Assignment of Error—Sufficiency of Evidence.</p> <p>An assignment that the verdict is contrary to the evidence in specific particulars pointed out is sufficient to require the appellate court to review that question, though not, in form, an assertion that the trial court erred in overruling the motion for new trial upon such grounds. (Pp. 66, 67.)</p> <p>2. —Same.</p> <p>An assignment of error, on appeal, that the verdict is contrary to the evidence in specific particulars which have been made the ground of a motion for new trial implies that the court erred in overruling such motion; it is practically equivalent to an assignment of such error by the court, and is apparently recognized as a proper form by rules 25 and 26 for the Court of»Civil Appeals. (Pp. 67, 68.)</p>

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

Grace Byer recovered judgment against the railway company, from which it appealed and on affirmance obtained writ of error.

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

in an appeal from Hill County. Worsham and others sued Cauble and others and recovered judgment. Defendants appealed, and on affirmance obtained writ of error.

Puckett sued McDaniel and others, and obtained judgment which, on appeal by defendant was reversed and rendered in their favor. Puckett then obtained writ of error.

<p>1. —Master and Servant—Vice-Principal.</p> <p>In cases not affected by the statute, the test of who is a vice-principal, for whose negligence the master will be held liable though the default is not in a duty personal to the master, is found in the power to employ and discharge the party injured by such negligence. (Pp. 100, 101.)</p> <p>2. —Same—Evidence.</p> <p>Evidence considered and held insufficient to raise an inference that a foreman, from whose negligence plaintiff claimed to have been injured, was a vice-principal of the master, and still less to justify the court in assuming that he was such vice-principal and the master liable for his default. (P. 102.)</p>

<p>Fees—Clerk of Court—Penalties Collected by Civil Action.</p> <p>Article 1143 of the Code of Criminal Procedure, entitling the clerk of the court to 5 per cent of all fines, etc., collected by the State on judgments, does not apply to civil actions on behalf of the State to recover penalties; the clerk was not entitled to retain such per cent on penalties collected in a suit by the State for violation of the Acts of 1895 and 1899 against trusts. (Pp. 103-105.)</p>

<p>1. —Limitation—Suit for Land—Establishing Deed as Mortgage.</p> <p>A suit to recover land of plaintiff which defendant’s testator, owner of a half interest in common with plaintiff, had bid in at a sale under execution against plaintiff, with agreement to hold the sheriff’s deed as security for the repayment of the money as a loan to plaintiff, payment of such loan being tendered, was not barred by the statute of limitation of four years, under article 3358, Revised Statutes. (Pp. 110-112.)</p> <p>2. —Same.</p> <p>The action "was for the recovery of land, by the equitable against the legal owner, whether such transaction constituted the sheriff’s deed a mortgage or made the purchaser a trustee for plaintiff; that plaintiff alleged the facts specially, did not alter the nature of the action nor render it subject to the rules of limitation governing actions not otherwise provided for (Revised Statutes, article 3358), instead of those applying to suits to recover land. (P. 112.)</p>

<p>1. —Public Land—Lease—Assignment—Purchase.</p> <p>Lands held under absolute lease from the State were awarded to a purchaser holding a transfer of the rights of the lessee. On petition of a subsequent applicant to purchase, for mandamus requiring the Land Commissioner to set aside this sale, alleged to be void, and award the land to applicant, it is held that action would not lie, for, if the first purchase was invalid, the lease was still in existence and the land not on the market. (Pp. 119, 120.)</p> <p>2. —Surrender of Lease—Estoppel.</p> <p>The voluntary surrender to the State of the rights of a lessee of public land for the purpose of becoming a purchaser, might estop him, but not the State, from asserting, against a subsequent applicant to purchase, that the lease was still in force. (P. 120.)</p>

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

Pearl Moore and others sued B. B. Dulin and had judgment, which was affirmed on appeal by defendant, who thereupon obtained writ of error.

<p>1. —Mandate—Limitation—Statute Construed.</p> <p>The statute (Acts of 1901, chapter 54) requiring mandates from the appellate courts to be taken out within twelve months from date of judgment applies to a plaintiff who, having been cast in the suit in the trial court, has appealed and secured a reversal of the judgment against him and had the cost of appeal taxed against the opposite party. (Pp. 140-142.)</p> <p>2. —Statute—Limitation Taking Effect from “Passage.”</p> <p>A statute limiting the time for a prescribed act and giving effect to such limitation, as to existing conditions, from the date of the “passage” of the law, will be understood as meaning by “passage” the date when the law goes into effect, unless something appears to indicate a different intent. (Pp. 142, 143.)</p> <p>3. —Same—Mandate—Limitation of Time—Effect on Pending Cases.</p> <p>The statute limiting the time for taking out mandate in reversed and remanded cases to twelve months from judgment, and, as to cases previously reversed, to twelve months from the “passage” of the act, gave an appellant who had procured reversal in a cause then pending twelve months from the time such act went into effect in which to take out mandate. (Pp. 142-144.)</p>

D. Sullivan & Co. sued McRae and McLane for judgment on a note, foreclosure of lien, and to set aside a previous foreclosure and sale to McLane, who appealed from a judgment for plaintiffs. The judgment being reversed and rendered for appellant, Sullivan & Co. obtained writ of error. *

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

<p>1. —Restraining Order—Permanent Injunction—Perpetual Injunction.</p> <p>A restraining order forbidding acts sought to be enjoined pending a hearing as to whether injunction issue, and in force by its terms only till such hearing, distinguished from a permanent injunction, which, though not perpetuated on final hearing, may be kept alive by an appeal till such appeal is disposed of, and both from a perpetual injunction issued by the trial court on final hearing. (Pp. 157, 158.)</p> <p>2. —Same—Appeal from Dissolution of Restraining Order.</p> <p>An order, on presentation to the trial judge of a petition for injunction, that the defendants be cited to show cause why permanent injunction should ® not issue, and that a restraining order “pending such hearing” issue to them as prayed for, expired by its own limitation on the hearing and denial of the application for injunction, at which the restraining order was dissolved on defendants’ motion and the case dismissed on plaintiff declining to amend; an appeal by plaintiff from such judgment did not keep the restraining order in force during its pendency. (Pp. 156-159.)</p> <p>3—Injunction—Appeal—Jurisdiction of Appellate Court.</p> <p>The court of civil appeals has power to issue injunction only so far as necessary to protect its jurisdiction, and its order to appellees to observe, “during the pendency of this cause,” a temporary restraining order issued by the trial court expired by its limitation upon the final determination of the appeal, and was not kept in further force by the filing of application for writ of error from the Supreme Court. (P. 159.)</p>

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

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

Sterrett sued Eoberson for the recovery of land. Defendant had judgment and Sterrett appealed. The judgment having been reversed and rendered in favor of appellant, Eoberson applied for writ of error, and, on its refusal, moved for a rehearing on his application, whereupon a written opinion was delivered refusing the writ. The findings by the trial court were as follows: FINDINGS OF FACTS AND CONCLUSIONS OF LAW.

Certificate of dissent from the Court of Civil Appeals for the First District, in an appeal from Harris County. Tomkies & Company sued the insurance company,.and had judgment, from which defendant appealed.

Long sued Willoughby and others, claimants under Glenn’s purchase, and had a judgment establishing his title. Defendants appealed, and on affirmance of the judgment obtained writ of error.

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Hill County.</p> <p>Bounds sued Vince and Albert Bracken in trespass to try title and recovered judgment for the land, which judgment was affirmed on appeal. Bracken then procured writ of error.</p>

<p>1. —Conveyance—Circumstantial Evidence.</p> <p>Evidence considered and held sufficient to require the submission to the jury of the question whether a conveyance was executed, though the evidence was only circumstantial. (P. 208.)</p> <p>2. —Limitation—Ten Years—Defining Possession.</p> <p>Though one claiming title to land by ten years possession without deed can hold only so much as was .actually occupied, and must show occupancy with definite limits, where the possession shown was of a house and inclosure, the limits of the latter not shown, the title by limitation extended at least to the land on which the house stood. (Pp. 208, 209.)</p>

The action was by Martin and others against Schryver and others, to recover on a note and foreclose a mortgage securing it on a section of school land patented to Clifford, March 13, 1901, by virtue of his purchase of it in December, 1887, as dry grazing land belonging to the school fund, under the Act of April 1, 1887 (Gen. Laws, chap. 99, p. 83), with full payment and proof of occupancy.

<p>1. —Mandamus—Controlling Judicial Decision.</p> <p>Though mandamus may lie to compel a judicial officer to take action upon a case it can not issue to require him to render judgment in a particular way, however erroneous his rulings to the contrary may be. (P. 213.)</p> <p>2. —Same.</p> <p>Mandamus will not issue to require a district judge to dismiss a suit for appointment of a receiver of a corporation on tender by stockholders of the amount of the debt claimed in the suit for appointment of such receiver. (Pp. 213, 214.)</p>

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

<p>1. —Contract—Time of the Essence.</p> <p>Where a contract is to be performed on condition of performance of certain things by the promisee within a named period, time is generally of the essence of the contract. (P. 231.)</p> <p>2. —Same—Subscription to Railway—Completion of Road.</p> <p>A promise to pay money in aid of the construction of a railway, in consideration of its completion within a fixed time, is not enforcible if the road was. not completed within the time named; especially where the parties, by granting an extension of time (within which it was still not finished) have treated time as of the essence. (Pp. 230-233.)</p>

<p>1. —Railway—Occupation of City Street—Acceptance of Ordinance.</p> <p>The grant to a railway company, by city ordinance, of the right to construct its track in a certain street within specified limits, was sufficiently accepted by the action of the company in building into the city and upon a part of the street in question, though the street was not occupied through all the specified limits, and the assent of the city could not be recalled. (Pp. 242, 243.)</p> <p>2. —Same—Abandonment.</p> <p>The fact that the company failed, for five years after building into the city, to extend its tracks along the street through the entire limits granted by ordinance, was only evidence of abandonment, which was a question of fact dependent on many circumstances, and a finding by the trial court involving the conclusion that there had been no abandonment will not, in the absence of a statement of facts, be held erroneous because of such failure to occupy. (P. 249.)</p> <p>3. —Railway—Forfeiture by Failure to Construct Road.</p> <p>The right to complete the occupancy of a partly occupied street, under a right to do so granted by city ordinance, was not forfeited by the failure to occupy, through operation of art. 4558, Rev. Stats. That article was complied with by the completion of the road to the city and the right acquired to make connections and arrange terminals was not affected by the statute. (P. 249.)</p> <p>4. —Right to Occupy Street—Mortgage—Foreclosure.</p> <p>The right granted a railway company to occupy a street was not such a mere personal license as to be incapable of transfer or mortgage, and passed to the purchaser on foreclosure sale under mortgage of its property rights, privileges and franchises. (Pp. 243, 249.)</p> <p>5. —Railway—Foreclosure Sale—Rights of Purchaser.</p> <p>The purchaser, at foreclosure sale, of the property and privileges of a railway company which had acquired a right to occupy a street with its tracks but had not yet done so, could exercise the right without procuring further "consent from the city,.and its title to so occupy the street was superior to that of an electric suburban railway to which the privilege was subsequently granted by ordinance before the first grantee had occupied. (Pp. 241-244.)</p>

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

<p>Malicious Prosecution—Effect of Plaintiff’s Acquittal.</p> <p>In a suit for malicious prosecution, evidence that plaintiff was acquitted of the charge brought by. defendant is admissible to show that the prosecution has terminated, but can not be considered as evidence to show malice or want of probable cause in instituting it, and defendant is entitled to an instruction to that effect. (Pp. 256, 257.)</p>

<p>1. —Cities—Constitutional Law—Police Power Distinguished from Taxation—Side-</p> <p>walks.</p> <p>Questioned whether the ruling in Hutchinson v. Storrie, 92 Texas, 685, and Norwood v. Baker, 172 U. S., 269, as to the constitutionality of local assessments for street improvements, applies to the construction of sidewalks at the expense of abutting owners, the latter falling rather under the city’s power of police than that of taxation. (P. 265.)</p> <p>2. —City of Dallas—Charter—Liability for Defective Sidewalk.</p> <p>The city charter, having provided for the construction and repair of sidewalks at the expense of owners of abutting lots by making the cost a lien on the property, exempted the city from liability for injuries through defects in the walk, not occasioned by direct act of the city, “in the event that because the same adjoins a homestead or for any other reason, the city is unable to lawfully compel the owner to construct and repair a sidewalk by fixing a lien on his property for the cost.” Held, that the exemption did not apply to a case of injury through defect in a grating covering an excavation under the walk, to the repair of which the general police power of the city was adequate and the proceeding by lien inapplicable. (Pp. 263-266.)</p> <p>3. —Leading Question.</p> <p>The question “Those grates were mighty light to start with?” should have been excluded as leading. (P. 266.)</p> <p>4. —Opinion Evidence.</p> <p>Testimony of one not qualified as an expert on iron work, that he judged a grating in a sidewalk was rather light for the purpose, since it did not stand the test of use, was inadmissible, since it was a mere conclusion of the witness which the jury could draw as well as he. (Pp. 266, 267.)</p> <p>5. —Same—Medical Expert—Probable Effect of Injuries—Charge.</p> <p>Plaintiff’s recovery for future results of personal injuries should have been restricted by giving a requested charge limiting it to such results as were probable; and the evidence of a medical expert as to future results should also have been confined to such as were probable. (P. 267.)</p>

Annie E. English sued the insurance company to recover on a life policy. Plaintiff had judgment and defendant appealed. The judgment being reformed and rendered, each party obtained writ of error.

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

Bratton sued Bates and Wheeler for the recovery of land, and obtained judgment, which was affirmed on appeal. Appellants then obtained writ of error.

<p>Mandamus—Allowance of Witness Fees.</p> <p>The State, having the power to require the attendance of witnesses from another county in a criminal case without compensation, as was formerly done, could make the allowance of fees for more than two of such witnesses to the same fact dependent on the decision of the district judge as to the necessity for them (Code Grim. Proc., art. 1093), and his decision on the matter was final and not to be controlled by mandamus. (Pp. 285, 286.)</p>

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

<p>1. —Personal Injury—Attorney’s Fee—Assignment of Interest.</p> <p>An assignment of interest in a cause of action for injuries to the person, to attorneys as compensation for prosecuting suit, is valid as against those having notice, though made before suit was commenced and not filed or noted on the docket as required by Act of 1889 (Rev. Stats., art. 4647). (P. 299.)</p> <p>2. —Same—Contract with Attorney—Right to Compromise.</p> <p>Though a contract with an attorney which deprives plaintiff of the right to compromise his suit has been held contrary to public policy, a contract which simply entitles the attorney to a certain portion of the amount realized by judgment or compromise has not such effect and will be supported. (Pp. 299, 300.)</p> <p>3. —Attorney—Interest in Recovery—Conditional Fee.</p> <p>A contract between plaintiff and his attorney which assigns to the latter one-third of whatever may be recovered in the suit or by way of compromise, is not a mere agreement for a conditional fee, but expresses an assignment of an interest in the cause of action, of which a judgment or compromise was to be the measure. Defendant compromising with plaintiff with knowledge of such agreement became liable to the attorneys for one-third of the amount, and they could assert their right thereto by intervention in the suit. (P, 300.)</p>

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Dallas County.</p> <p>Shelton sued the railway company for personal injuries received while a passenger on its line, resulting in the loss of both legs. He had judgment for $35,000, which was affirmed on appeal, and the company secured writ of error.</p>

Whitmire brought suit for the recovery of land against May, a tenant, whose landlord Powell, as administrator, appeared and defended the suit. Defendants had judgment, which was affirmed on appeal. Whit-mire then obtained writ of error.

Carroll and others sued Scripture and others for the recovery of land, and the heirs of Burton made themselves ‘ also defendants as lessors of Scripture et al. Plaintiffs had judgment. Defendants appealed, and on affirmance obtained writ of error.

Daniel sued the railway company and appealed from a judgment for defendant. On its affirmance he obtained writ of error. -

<p>1. —School Land—Validating Act of 1889—Good Faith of Purchaser.</p> <p>In the Act of March 12, 1889 (Gen. Laws, p. 106), validating .'sales of school land by the Land Board under the Act of April 12, 1883 (Gen. Laws, p. 85), to such as in good faith made their purchases and complied with the requirements of the act and the rules of the board, the “good faith” required is such as is defined by the second section of such Act of 1889; that is, in regard to the settlement upon the land, where required by the terms of the Act of 1883, the requirements of the board, or their contracts of purchase. (Pp. 335-340.)</p> <p>2. —Same.</p> <p>A sale of school land by the Land Board under the Act of April 12, 1883, which was void unler that law because not made in the county where the land was situated, was validated by the Act of March 12, 1889, though evidence was offered showing misrepresentations by the purchaser, in his application, as to the character and class of the land, to establish a want of the “good faith” on his part required by such validating act. (Pp. 335-340.)</p> <p>3. —Statutory Construction.</p> <p>The previous law, the mischiefs disclosed by decisions on actions had thereunder, the bearing of the preamble and of one section of the statute on the terms used in another, the need of giving some practical effect to the enactment, the preferance for a definite rather than a vague and indeterminable meaning, the absence of provisions for practically enforcing the law with the latter construction, and other matters, considered in their bearing on the interpretation of statutory words. (Pp. 335-340.)</p> <p>4. —Case Explained.</p> <p>The refusal of a writ of error in Collyns v. Cain, 9 Texas Civ. App., 193, explained as not involving an approval of its rulings on the question here decided. (Pp. 340.) .</p>

Lula H. Moore and her husband sued Nolan and others for the recovery of land and had judgment. Defendants appealed, and on affirmance obtained writ of error.

<p>1. —Bankruptcy—Discharge—Unadministered Assets.</p> <p>After the close of bankruptcy proceedings and discharge of the trustee, an asset of the bankrupt (right of action to recover, with penalty, usurious interest paid) which had passed to the trustee by the bankruptcy proceedings, though he had no knowledge of its existence, may be recovered by the bankrupt himself, where neither the creditors nor the trustee assert any rights in it. (Pp. 347-348.)</p> <p>2. —Usury—Assignment of Cause of Action.</p> <p>The right of a retiring partner in a cause of action to recover usurious interest paid by the firm passes to the remaining partner buying him out' and succeeding to the partnership assets and liabilities; the right is not strictly personal, and may be assigned, though the purchasing partner be not deemed a “legal representative” of the other within the meaning of the statute. (P. 348.)</p> <p>3. —Usury—Payment by Another.</p> <p>One who, by transfer of property to a surety on his note, procures its payment, with usurious interest, by such surety, can recover back such interest and penalty therefor as on a payment made by himself. (P. 349.)</p> <p>4. —Usury—Paying for Another in Pursuance of Contract.</p> <p>One buying out his partner and assuming payment of a firm note on which both were hound can recover back, after settling such note, double the usurious interest paid; the agreement to assume the obligation was not a promise to pay usurious interest thereon. (P. 349.)</p>

Clark and wife sued the railway company for personal injuries to the latter in getting off cars. Plaintiffs had judgment. Defendant appealed, and on its affirmance obtained writ of error.

Ardella Hicks brought suit against the railway company, prosecuted writ of error from a judgment for defendant, and on its affirmance obtained writ of error from the Supreme Court.

<p>Motion to annul an order transferring this cause from the Fifth to the Fourth Supreme Judicial District.</p>

<p>Motion for leave to file a petition for mandamus in an original proceeding in the Supreme Court by W. H. Betts against G. W. Johnson and others, constituting the Board of Medical Examiners.</p>

<p>1.—Judgment—Estoppel—Reversal and Remand.</p> <p>The ruling of the appellate court on a point of law decided by them in reversing and remanding the cause without determining the rights of the parties, does not bind the appellate or Supreme Court upon a second trial and appeal. (Pp. 373, 374.)</p> <p>Z.—Trust—Conversion of Stock into Real Estate—Powers of Trustee.</p> <p>A trust created by deed in corporate stock in a suburban land company attaches, after conversion of the stock, by partition suit, into a title to a specific part of the land, to the land so recovered, and a power of sale given the trustee over the stock will support a conveyance of such estate by the trustee. (P. 374.)</p> <p>3.—Same—Secret Trust—Innocent Purchaser. .</p> <p>A purchaser from a trustee acting within the scope of the authority conferred by the trust deed, is entitled to protection, as an innocent purchaser, against secret trusts of which such purchaser had no notice. (P. 374.)</p>

<p>1. —Public Land—Sale.</p> <p>Under sec. 6 of the “Act to define the school fund,” etc., approved February-23, 1900, prior to its amendment by Act of April 15, 1901, lands belonging to the public domain and transferred to the school fund by that act were not made subject to purchase by settlers unless embraced within a tract containing 2560 acres or less. (Pp. 378, 379.)</p> <p>2. —Same—Mandamus.</p> <p>An applicant for mandamus against the Commissioner of the General Land Office, to compel reinstatement in his purchase of land which the commissioner, after recognizing, had canceled because of conflict with an existing lease, must show compliance, on his part, with a law authorizing his purchase, as well as the invalidity of the lease. (P. 379.)</p>

Heard and others sued Thrasher and Hall on notes and for foreclosure. Defendants had judgment, which was affirmed on writ of error, and plaintiffs thereupon procured writ of error from the Supreme Court.

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

Weld & Neville, Dorance, Cairns & Co., Hasler & Boyd, D. M. Howard, and T. G. Cole sued the Railroad Commission of Texas and had judgment, from which the plaintiff appealed. The case, on writ of error from a judgment dismissing the appeal, is reported in 95 Texas, 278. Being there remanded to the Court of Civil Appeals, the judgment of the District Court was affirmed and the Railroad Commission obtained writ of error.

<p>Application by Blevins for writ of mandamus against the Commissioner of the General Land Office.</p>

<p>1. —Innocent Purchaser—Deed—Recitals—Registration.</p> <p>One who holds under a conveyance which recites that the grantor had previously conveyed the same land by a deed which he was informed had been lost, is not protected as an innocent purchaser against those holding under an older but unrecorded deed from the same grantor. (Pp. 420-422.)</p> <p>2. —Same—Presumption.</p> <p>It would not be presumed that the recital by grantor of his execution of a previous conveyance of the same land referred to a deed to the same grantee or one under whom he held; rather, that the grantor did not intend to commit himself to that declaration. (P. 420.)</p> <p>3. —Deed—Recitals—Notice.</p> <p>Purchasers of land are charged with notice of everything appearing on the face of their muniments of title, and can not be, regarded as innocent purchasers where they hold under a deed which shows on its face that the grantor had no title. (Pp. 421, 422.)</p> <p>4. —Same—Declarations.</p> <p>The purchaser could not rely on the interested declarations of a grantee, whose deed recited a previous conveyance of the land by the grantor, that he was the grantee in such previous conveyance, without inquiring of the grantor. (P. 422.)</p> <p>5. —Estoppel.</p> <p>Evidence of declarations by a party that he made no claim to the land in controversy considered, and held not to amount to an estoppel, where he was under no duty to disclose his claim, and his attention not directed to the question of his own title, and the opposite party not misled thereby. (Pp. 422, 424.)</p>

<p>1. —School Land—Lease—Sale During Term.</p> <p>The restriction upon the sale of leased school lands during the term of the lease “until otherwise provided by law,” contained in the Act of May, 1897 (Gen. Laws, chap. 129, p, 186, amending art. 4218s, Rev. Stats.), was enacted for the protection of lessees, and did not prohibit a sale during the term to the lessee or his assignee. (Pp. 425-433.)</p> <p>2. —Same.</p> <p>The various statutes regulating the sale and leasing of school lands from 1883 to 1897 examined, to determine the policy and purpose of the Legislature in their enactment. (Pp. 427-432.)</p> <p>3. —Statutes—Construction by Executive—Legislative Approval.</p> <p>The effect of construction of statutes by officers required to enforce them and of legislation enacted with presumed knowledge of such construction, considered. (Pp. 432, 433.)</p>

Original application in the Supreme Court for mandamus against the Land Commissioner. The proceeding was commenced against Commissioner Chas. Rogan, and his successor in office, J. W. Terrell, was afterwards made respondent.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Erath County.</p> <p>J. B. and Louisa West sued Clark, and had judgment. Defendant appealed, and on affirmance obtained writ of error.</p>

Raymond sued Yarrington and others, and appealed from a judgment for defendants. On its affirmance he obtained writ of error.

The Brown Hardware Company sued the Indiana Stove Works, and defendant had judgment on demurrer, which was affirmed on plaintiff’s appeal. Appellant then obtained writ of error.

<p>1. —Assignment of Error—Distinct Rulings.</p> <p>Where an assignment of error complains of two rulings of the trial court, relating to distinct questions, it is insufficient to require a consideration of such questions by the appellate court, though the assignment is followed by appropriate propositions and statements, separately explaining and presenting each of the two questions raised. (Pp. 457-461.)</p> <p>2. —Insufficient Assignment—Discretion of Appellate Court.</p> <p>Failure to' comply with the statute and rules in making assignments of error, while it may deprive appellant of the right to demand that they be noticed, does not preclude the appellate court from passing upon them in the exercise of a sound discretion. (P. 461.)</p>

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

<p>1. —Liquor Dealer—Minors on Premises—Good Faith.</p> <p>It is no defense to an action on a liquor dealer’s bond for permitting a minor to enter and remain on Ms premises, that the dealer acted in good faith, believing that the minor was of age. The exemption extended to cases of sales to minors and habitual drunkards where the dealer was ignorant of the fact, by the amendments of 1893 and 1901, do not extend to cases of permitting minors on the premises. (Pp. 470, 471.)</p> <p>2. —Same—Emancipation of Minor.</p> <p>The fact that the father had “emancipated” his minor son and relinquished Ms control over him, did not constitute a defense to an action by such father, upon a liquor dealer’s bond, for permitting the son to enter and remain on the premises where liquor was sold. (P. 471.)</p>

<p>Questions .certified from 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 Fifth District, in an appeal from Dallas County.</p>

<p>Original application to the Supreme Court by Harper for writ of mandamus against Terrell as Commissioner of the General Land Office.</p>

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

The State sued O’Connor for the recovery of land and obtained a judgment, which, on defendant’s appeal, was reversed and rendered in his favor. The State then obtained writ of error.

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

The Fort Dearborn National Bank and others sued the City of El Paso in trespass to try title, and recovered judgment which was affirmed on defendant’s appeal. The city then obtained writ of error.

Davis sued the mortgage company and Brown Brothers and recovered against both. Defendants appealed, and judgment was reversed as to Brown Brothers and affirmed against the company, which thereupon obtained writ of error.

Original application for writ of mandamus from the Supreme Court to the Commissioner of the General Land Office. T. B. Van Tuyl, a subsequent applicant to purchase the land, was also made a respondent.

<p>1. —Void Judgment—Injunction—Defense Against Original Cause of Action.</p> <p>Enforcement of a judgment shown to be void by the face of the record upon which it was rendered, may be enjoined without a showing by plaintiff that he has a good defense against the cause of action upon which such judgment was based. (Pp. 516, 517.)</p> <p>2. —Same—Judgment Against Nonresident.</p> <p>Where the record showed that a personal judgment against a resident of another State was rendered on service upon him outside this State under art. 1230, Rev. Stats., such judgment was void on its face. (Pp. 514-517.)</p> <p>3. —Cases Distinguished.</p> <p>Railway Co. v. Ware, 74 Texas, 47, and Edrington v. Allsbrooks, 21 Texas, 186, where judgments enjoined were void on the face of the record, distinguished from Sharp v. Schmidt, 62 Texas, 263; House v. Collins, 42 Texas, 492, 58 Texas, 231; Heck v. Martin, 75 Texas, 469, cases of attack by evidence aliunde upon judgments in which the record showed service or was silent on the subject. (Pp. 516, 517.)</p> <p>4. —Same—Limitation.</p> <p>A judgment void because rendered without jurisdiction by valid service of process did not interrupt the running of limitation against the cause of action on which it was based. (P. 517.)</p>

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

<p>1.—Action for City Taxes—Alleging Levy.</p> <p>In an action to recover city taxes an allegation that the city, by ordinance duly passed, “levied and ordered to be collected ad valorem taxes amounting to $1.50 on the $100, for municipal purposes, was sufficient on general demurrer; it was not necessary to set out the acts which constituted the levy, nor the various municipal purposes or funds for which the tax was levied. (Pp. 523, 525.)</p> <p>4.—Constitution—Interest on Delinquent Taxes.</p> <p>A city charter authorizing the collection of interest on delinquent taxes at 8 per cent from' the dates when they were made payable by its ordinances is not rendered invalid by either sections 1 or 2 of article 8 or section 56 of article 3 of the Constitution of the State. (P. 525.)</p> <p>3. —Repeal—Preservation of Rights Under Former Law.</p> <p>The right to recover interest upon delinquent taxes given by the former charter of the city of Galveston was not repealed by sec. 93 of the act granting its new charter (Laws, 27th Leg., p. 145). Sections 1, 54 and 60 of the new charter preserved such right under the former one. (Pp. 525, 526.)</p> <p>4. —Constitution—Interest on Delinquent Taxes.</p> <p>Article 16, sec. 11, of the Constitution, regulates the interest to be charged only in cases of contract where'no rate is agreed on, and does not apply to cases not arising on contract nor prohibit the Legislature from authorizing the collection of a higher rate upon delinquent taxes. (P. 526.)</p> <p>5. —Unconstitutional Law—Repealing Clause.</p> <p>If the new charter of the city of Galveston be held void because of the unconstitutionality of the commission feature therein (Ex parte Lewis, 73 S. W. Rep., 811) the repealing clause fell with it, leaving the former charter in force and rights of action given the city thereby maintainable. (Pp. 526, 527.)</p>

<p>1. —Public Lands—Lease—Cancellation—Reletting—Payment of Arrears.</p> <p>The tender of rent due, not accepted, after the cancellation of a lease of public land for default in its payment, is not a compliance with the condition prescribed by the law (Act of 1895) prohibiting the making of a new lease to the former lessee until all arrears are fully paid. (Pp. 530, 531.)</p> <p>2. —Same—Who May Take Advantage.</p> <p>A reletting of public land to one whose lease has been canceled for default in payment of rent and who has not paid up the arrears, is unauthorized, and the land being thrown open f o purchase by the cancellation, an applicant to buy it can take advantage of the invalidity of the second lease arid maintain mandamus -to compel the Land Commissioner to recognize his rights as a purchaser. (Pp. 530-532.)</p>

Ellis and others sued to recover from Le Bow and others, and appealed from a judgment for defendants. On affirmance they obtained writ of error. The decision on appeal is reported in 30 Texas Civil Appeals.

<p>Questions certified from th'e Court of Civil Appeals for the Third District, in an appeal from Concho County.</p>

M. Schneider & Bro. sued Dorsey and others to enforce a judgment lien. Judgment was for defendants. Plaintiffs appealed, and on affirmance obtained writ of error.

<p>1. —Constitutional Law—Lease—Sale.</p> <p>Question suggested whether public lands held under a valid lease, but not before made subject to sale, could be sold without reference to the rights of the lessee. (P. '555.)</p> <p>2. —Public Lands—Lease—School Fund—Sale.</p> <p>The Act of February 23, 1900, to define the permanent school fund, etc. (Gen. Laws, 1st Called Sess., 26th Leg, chap. 11, p. 29), did not, in bringing into the school fund uiisurveyed lands situated in the absolute lease district and under lease, make them subject to sale' without regard to the lease; by section 3 they were made subject to sale as “now provided by law for the sale of surveyed school lands,” and were to be sold “on the same terms, conditions and limitations,” which included the restriction that they should not be sold during the term of the lease, if situated in the absolute lease territory. (Pp. 554, 555.)</p> <p>3. —Same.</p> <p>Section 7 of the Act of February 23, 1900, determines rights of priority among applicants to purchase, but not when or how the land is to become subject to sale, and does not restrict the rights of lessees to a mere priority of right to purchase as actual settlers. (P. 555.)</p> <p>4. —Land Commissioner—Sale or Lease—Adoption of Regulations.</p> <p>The power of the Commissioner of the General Land Office to lease or sell does not depend upon the previous establishment by him of rules therefor. (P. 556.)</p> <p>5. —School Land—Lease—Advertisement.</p> <p>Under the Act of 1895 for the sale or lease of school lands it was not essential to the validity of a lease that the Commissioner should advertise for same before letting,—the requirement that he “shall” do so in section 17 of that law (Gen. Laws, 24th Leg, chap. 47, p. 69) being changed to “may” by the amendment of such section by the same Legislature. (Gen. Laws, 24th Leg, chap. 48, p. 76.) (P. 556.)</p> <p>6. —Lease—Cancellation—Mandamus.</p> <p>Allegations of petition and answer in regard to cancellation of a lease held, - at most, to present a disputed- question of fact as to its legal cancellation, which the Supreme Court could not determine on application for mandamus. (Pp. 556, 557.)</p> <p>7. —Same.</p> <p>As against the showing, from the mere absence of such instrument from the files, that the Land Commissioner had failed to file a “writing under his hand and seal of office” canceling a lease, as required by Rev. Stats., art. 4218v, an indorsement of its cancellation on the wrapper in the Land Office, and the fact that the parties had treated it as canceled, coupled with the presumption that the officer had done his duty, might, it seems, be sufficient to present an issue of fact. (P. 557.)</p> <p>8. —Same—Informal Cancellation.</p> <p>An informal cancellation of a lease of school land by the Commissioner, without filing the writing under seal required by Rev. Stats., art. 4218v, if acquiesced in by the lessee, could not be reopened by a third party after a lapse of some six years. (P. 557.)</p> <p>9. —Same.</p> <p>A cancellation of a lease of school land for nonpayment of rent under art. 4218v, Rev. Stats., and reletting to the same party after the expiration of sixty days from default was not invalid because the new lease was dated back to the day of default nor because the application therefor was filed before the sixty days expired. (Pp. 557, 558.)</p> <p>10. —Mandamus—Disputed Facts.</p> <p>The Supreme Court can not grant mandamus where material facts, such as an intent to evade the law, are in dispute. (P. 558.)</p>

<p>Practice in Supreme Court—Assignment of Errors.</p> <p>Overruling a motion for rehearing of an application for writ of error, it is held, that, though the Court of Civil Appeals may reverse for fundamental error not assigned (Rev. Stats., art. 1014), the Supreme Court can only grant writ of error for errors specified in the application (Rev. Stats., arts. 942, 943); and it is too late to make the assignment in a motion for rehearing of the application.</p>

Original application to the Supreme Court for writ of mandamus requiring the Commissioner of the General Land Office to award to relator certain school lands which he had made application to purchase. The questions involved and the briefs and arguments of counsel were substantially identical with those in West v. Terrell, supra.-

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

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

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

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Harris County.</p> <p>Maggie Burns sued the oil company for the death of her husband, and recovered a judgment which was affirmed on appeal. The company then obtained writ of error.</p>

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

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

<p>1. —Telegraph—Injury to Feelings—Evidence.</p> <p>In an action for damages from delay in delivery of a telegram, whereby plaintiff was prevented from being present at his mother’s deathbed, it was not permissible to shpw inquiries and requests by the mother for her son’s presence, as enhancing the mental suffering of the son. (Pp. 592, 593.)</p> <p>2. —Damages—Injury to Feelings—Local Law.</p> <p>Damages for injury to the feelings arising from negligent delay in delivering a telegram may be recovered in this State, though the plaintiff resided in the Indian Territory and the message was addressed to him there, where such damages were recoverable. (P. 593.)</p>

<p>Question certified from the Court of Civil Appeals for the Fifth District, on error from Dallas County.</p>

<p>1. —Damages—Depreciation in Value—Cross-Examination—Sales at Subsequent Time.</p> <p>One who, in suit for damages to his cattle by furnishing unsound cotton seed meal for feeding, has testified that by sickness resulting they had been depreciated in value $10 per head, may be asked, on cross-examination, as to the price at which they were sold, in another market and at a subsequent but not remote date, for the purpose of testing the correctness of his judgment in estimating the damages. (Pp. 603, 604.)</p> <p>2. —Same—Sales of Small Number from a Herd.</p> <p>It was not permissible, on the issue of damage to a herd of cattle by bad food, to inquire as to the price brought some time after the alleged injury on the sale of a small number of particular cattle from the herd. (P. 604.)</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Johnson County.</p> <p>Garren sued the railway company and had judgment. Defendant ■appealed, and on affirmance obtained writ of error.</p>

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

<p>Retiring Judge—Successor—Findings of Fact.</p> <p>Questions certified from the Court of Civil Appeals for the First District, in an appeal from Harris County.</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Fannin County.</p>

<p>Question certified from the Court of Civil Appeals for the First District, in an appeal from Smith County.</p> <p>W. S. Thomas and J. O. Mahaffey, for appellant.—The transfer of a bill of lading for value transfers the title to the property covered by it; and a bank which by such transfer to it of a bill of lading acquires the right to property shipped in fulfillment of a contract of sale can enforce against the purchaser no greater right than that possessed by the seller. And where a vendor of cotton in Texas sold to a purchaser in Massachusetts a number of bales of cotton at a given price per pound, and shipped the same from a point in Texas to the purchaser in Massachusetts, and took from the carrier a bill of lading to shipper’s order and attached thereto a draft drawn in the seller’s favor upon the buyer for the purchase money and afterwards sold, transferred and indorsed said draft and said bill of lading to a bank for value, and the'bank forwarded the same with draft attached and delivered the bill of lading to the purchaser upon payment by him of the full purchase price, and this before the purchaser did or could have weighed said cotton, and the cotton turns out short in weight, then the bank is liable to the purchaser for any loss or damage he thus sustains by reason of said shortage in weight. Landa v. Lattin Bros., 19 Texas Civ. App., 246; Finch v. Gregg, 49 Law. Rep. Ann., 679.</p> <p>By acquiring from White & Co. both the bills of lading and the drafts, the bank as before stated became the owner of all their rights and benefits in the contract made by them with appellant; became invested with the right to carry out and enforce the contract with appellant upon the same and no other terms than those agreed between White & Co. and appellant. By this it necessarily follows that appellee bank became an equitable assignee of the contract made with appellant. This it seems follows as logically as the truth that the shadow follows the substance. If the bank became the equitable or legal assignee of the contract and attempted to perform it, can it be denied that if it attempted to carry it out, and failed, though it received compensation for full performance, that it should be compelled to make restitution for its failure? To deny this surely is to deny the existence in the law of that measure of justice which it accords.</p>

<p>Mandamus—Land Commissioner—Duty to Determine Facts.</p> <p>The duty of determining whether a purchaser of school land was' a minor is not imposed by law upon the Commissioner of the General Land Office, and mandamus will not issue against him to compel him to sell to a subsequent applicant on the ground that his previous sale, being to a minor, was void.</p>