services." he could not do it. The money that was re-in escrow does not become operative, and ceived from the sale of the goods before the fire, passes no title, until the condition has been I think some of it was paid in current expenses performed or the event has happened upon down there, and Mr. Guy Cornwell kept the balance and applied it on what we owed him for his which it is to be delivered to the grantee; that where the vendor, who delivers a deed in escrow, has a fire policy on the house situated on the premises, which is destroyed by fire before the conditions of the escrow are performed, the hazard from the fire not being increased, the right to recover on the policy is not forfeited, under its clause requiring unconditional and sole ownership. In Stockstill's Case the following language from R. C. L. 628, is quoted with approval: The testimony of the witness T. E. Blanchard is fully corroborated by the other witnesses, and it is without dispute shown that the policies were not transferred to E. H. Cornwell & Son, as contemplated by the parties, and that the insurance company positively refused to so transfer them. E. G. (Guy) Cornwell testified that a price of $1,500 was agreed upon for the property; that Mr. Blanchard told him to go ahead and open up the stock of goods and sell because it was hot weather and there were some perishable goods on hand; that Blanchard told him to keep account of the cash he took in, and that if the sale was completed it belonged to E. H. Cornwell & Son, but if the sale was not completed it belonged to Boren-Stewart Company; that he went down to Ferris, opened up the stock of goods as Blanchard instructed him, and kept a daily record of sales, etc.; that when he was getting ready to go down and take charge of the goods Mr. Blanchard said, "If anything happens before that trade is completed, it belongs to BorenStewart Company and to Sanger Bros.;" that the stock of goods belonged to BorenStewart Company and Sanger Bros. until the insurance was transferred; that the "deal is not completed until the insurance is transferred." This witness further testified that he kept a record of what he sold and a record of his expenses, and sent them to Boren-Stewart Company; that he deposited the money in the bank, and paid it out for expenses; that he got some compensation for his time, and that the business was open eight days before the fire occurred; that he was to be paid for his services, in the event the sale was not completed, a reasonable salary, but that the amount was not fixed; that he charged appellees $60 a month. E. H. Cornwell testified that E. H. Cornwell & Son contracted for the stock of goods at Ferris, and had just about closed the deal; that when they were getting ready to leave the office of T. E. Blanchard, Mr. Blanchard said: "Now understand, these goods remain the property of ourselves, or Boren-Stewart Company and Sanger Bros., until these insurance policies are transferred. After the fire I came to Dallas, saw Mr. Blanchard, and told him about the fire I asked him if he had had the papers transferred, and he said, 'No.' He then canceled the notes and turned them over to me." "There is no change in the title or right of chaser occupies it with the consent of the venpossession to the property, although the purdor in anticipation of completing the contract of sale and purchase. So when, in such case, the vendor has a fire insurance policy on a house situated on the premises, and the house is deconditions of the escrow are performed, the stroyed by fire while so occupied, and before the hazard from the fire not being increased, the right to recover on the contract of insurance is not forfeited." That case is analogous and the principles enunciated therein are applicable and controlling here. If, as held in Stockstill's Case, there was no change in interest, title, or possession under a contract of sale when the deed to the property insured was deposited in escrow to be delivered to the purchaser upon his compliance with a condition to pay off a lien, etc., and when the purchaser had gone into possession of the property, it is difficult to conceive that there would be a change in the interest, title, or possession of the property insured in the instant case, when the condition of the agreement of sale was to the effect that the title to the property should remain in the appellees unless the appellant insurance company should transfer its policies to the proposed purchasers, the Cornwells. In Stockstill's Case, as argued by counsel for appellees, the party agreeing to purchase could comply with the terms of the contract by paying off the liens upon the property given by him in exchange for the insured property, but in the case at bar nothing the proposed purchaser could do would put him in position to demand a transfer of the insured property. Furthermore, prior to the fire the condition named for a transfer of this property had failed; the insurance company had refused to transfer the insurance policies to Cornwell & Son, and the possession of Cornwell & Son when the fire occurred was merely the possession of the appellees. The case of Fire Association of Philadel[2] There was no evidence that the pos- phia v. Perry, 185 S. W. 374, is distinguish- · session of the Cornwells, under their agree-able in its facts. In that case the court ment to purchase, in any manner increased points out that the insured property was purthe hazard, and such "change of possession chased by the plaintiffs in the suit for their was immaterial, except so far as it threw brother, L. E. Perry; that he was placed light upon the issue as to change of title." in possession of it under an agreement that Pennsylvania Fire Ins. Co. v. Stockstill, 197 if he paid to plaintiffs $3,000 in monthly payS. W. 1036. In that case it was held, and ments of $150, and if in the meantime he his wife, the property would be his; that Perry was carrying out his part of the agreement at the time of the fire which destroyed the property, and that had the property not been destroyed Perry could have carried out his part of said agreement and have become the sole owner of the property. The court then holds that under such a state of facts Perry's sisters could not, over his protest or objection, have arbitrarily canceled the agreement, and that such a contract and possession constituted a change, other than by the death of the insured, in the interest, title, and possession of the insured property which, under the terms of the policy sued on, avoided it and defeated a recovery thereon. No such state of facts exists in the present case, and its decision is not controlled by the Perry Case. Here the thing necessary to be done in the transfer of the policies of insurance to Cornwell & Son in order to complete the proposed sale was to be done by the insurance company, and not by either party to the contract. Such transfer was purely optional with the company and this was clearly and fully understood by both the appellees and the Cornwells, and nothing either could do would bring about a situation which would entitle either to enforce the contract of sale. The insurance company, in the exercise of its clear legal right, refused to make the transfer of the policies, and, in consequence thereof alone, consummation of the proposed sale was prevented or defeated, and appellees at the date of the fire were its sole owners. We therefore hold that the proposition of appellant under his first assignment of error, is not sustained by the record, and the assignment will be overruled. The second assignment of error, in addition to raising the same question presented by the first assignment, asserts that the undisputed evidence shows that there was a breach of the iron safe or record warranty clause of the policies in suit of such a nature as to render said policies void and no recovery can be had upon them. This assignment, like the first is not sustained by the record and will be overruled. The jury found that the appellees substantially complied with the record warranty clause of each of the policies sued upon, and this finding is supported by the evidence. "It is understood and agreed to be a condition of this insurance that, in the event of loss or damage by fire to the property insured under this policy, this company shall not be liable for an amount greater than three-fourths of the actual cash value of each item of the property insured by this policy, not exceeding the amount insured on each item at the time immediately preceding such loss or damage." Under this provision of the policies the appellant is liable for the damages suffered not to exceed three-fourths of the actual cash value of the property, regardless, we think, of the question of whether or not the assured had offered to sell it for less than its actual cash value. The jury found that the actual cash value of the stock item of the policy at the time of the fire was $1,660; that the actual cash value of the fixture item at the time of the fire was $300. The jury also found that the actual cash value of the stock saved was $145; that the actual cash value of the furniture saved was $145. The policies provided that any loss should be due and payable 60 days after filing proof of loss. Proof of loss was filed on the 11th day of September, 1914. The court rendered judgment against defendant for $1,571.50. are unable to say that the verdict is excessive. Believing that no reversible error is disclosed by the record the judgment of the district court is affirmed. Affirmed. BY FIRE-MEASURE. In such suit, the measure of plaintiff's dam ages was the sum of money necessary to compensate him for being deprived of the trees for the use intended, rather than the difference in the value of the land on which they stood immediately before and immediately after the injury, since the fundamental rule as to the measure of actual damages is the rule of com pensation. [3] The next and last contention is that the verdict for $1,571.50 is excessive. This contention is made upon the theory that, if the appellant is liable upon the policies at all, its obligation is simply to indemnify the appellees to the extent of three-fourths of the ac tual loss suffered by them; that according to their testimony they had sold the property for $1,500, conditioned that the appellant would transfer the policies to Cornwell & Son; that if the policies had been transferred and the property burned, appellees could only have suffered a loss of $1,500, and hence they could not lawfully recover in this action more than ant appeals. Appeal from Hamilton County Court; Joe H. Eidson, Judge. Suit by C. C. Baker against the Stephenville, North & South Texas Railway Company. From judgment for plaintiff, defendAffirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-25 E. B. Perkins and W. B. Hamilton, both of Dallas, and A. R. Eidson, of Hamilton, for appellant. P. M. Rice and Dewey Langford, both of Hamilton, for appellee. KEY, C. J. This is a suit for damages alleged to have resulted from three fires caused by sparks alleged to have escaped from passing engines upon the defendant's railroad. Verdict and judgment were rendered for the plaintiff, and the defendant has ed for the plaintiff, and the defendant has appealed. The questions involved in the appeal are The questions involved in the appeal are not difficult. Circumstances beyond our control have increased the volume of this court's business, and therefore no extended opinion will be written in this case. Upon some of the questions presented, we announce our conclusions as follows: be adjusted to the facts of the particular case, so that the trespasser and tort-feasor will be sult, but the natural and probable consequences held responsible, not only for the necessary reof his act. Full indemnity for the injury sustained is what the law exacts. Hence it is difficult and unwise to attempt to lay down a rule of damages that should apply alike to all cases of trover or conversion." See, also, and to the same effect, Railway V. Gorman, 2 Tex. Civ. App. 144, 21 S. W. 158; Railway v. Beeler, 126 Ky. 328, 103 S. w. 300, 11 L. R. A. (N. S.) 930, 128 Am. St. Rep. 291, 15 Ann. Cas. 913; and the note to Bailey v. Chicago, M. & St. P. R. Co., 19 L. R. A. 653. In this case the trees that were destroyed or injured were fruit and shade tres; the orchard being in the rear of appellee's residence, and intended to supply fruit for him[1, 2] 1. It may be true, as contended on self and family. Such being the case, we behalf of appellant, that as a general rule hold that the testimony was admissible to trees and other things growing upon land show the value of the trees as they stood constitute part of the realty, and that in before they were injured, and the extent of general the correct measure of damages for their injury, and that the sum of money injury or destruction of trees or other growths being deprived of them for the uses intended necessary to compensate the plaintiff for is the difference between the value of the will come nearer affording actual compensaland immediately before and immediately tion for the injuries sustained than the opinafter the injury. But that is not an inflexi-ion of witnesses as to the difference in the ble rule necessarily applicable to all conditions and to every case. In fact, the only inflexible rule as to the measure of actual damages is the rule of compensation. other words, in any case where the plaintiff is entitled to recover damages, the sum of money, and no more, which is necessary to make fair and just compensation for the injury is the correct measure of damages. General rules laid down for particular classes of cases may and should be modified whenever it becomes necessary to do so, in order to afford fair and just compensation. In In Pacific Exp. Co. v. Lasker Real Estate Ass'n, 81 Tex. 83, 16 S. W. 793, our Supreme Court said: "The purpose in every case is to compensate the owner for the injury received, and the measure of damages which will accomplish this in a given case ought to be adopted.' In Moore v. King, 4 Tex. Civ. App. 397, 23 S. W. 484, this court said: "It is an axiom of the law that a party injured is entitled to damages commensurate with the injury sustained. The exceptions to this rule exist in those cases of damnum absque injuria, and when a state of facts exists that entitles the injured party to exemplary damages. The damages recoverable must be either the necessary result of the act complained of, or that arise as the natural and probable consequences of the particular act or acts that occasion the harmful results; and, in ascertaining the result of these acts, the purpose of the law is to give exact compensation for those consequences that are traceable as the necessary, natural, or probable fruits of the wrongful act. In applying these principles of law to the given case, the courts should not be bound by an inflexible and unvarying rule as to the measure of damages that should apply alike in all cases, but, keeping in view the just principle of compensation, the measure of damages should value of the land upon which they stood immediately before and immediately after the injury. Therefore the evidence objected to was admissible, and the verdict is not excessive. 2. We hold that, while the plaintiff's petition could have presented the two grounds for recovery more clearly and distinctly than was done, still the facts alleged, with the implications which will be indulged in favor of the pleading as against a general demurrer, were sufficient to justify the court in submitting to the jury the two issues of negligence; one relating to the equipment of the engine, and the other relating to the negligence in permitting combustible material to accumulate upon the right of way. 3. The other questions presented have been considered, and are decided against appellant. No reversible error has been shown, and the judgment is affirmed. Affirmed. SIONS. - Where, in cross-action, allegations of plaintiff's petition are adopted, the allegations must be taken as true on general demurrer. HOMESTEAD On death of a husband, a half interest in the community property of himself and wife descended to the nine children of the husband, subject to the homestead rights of the wife and 3. PLEADING 214(1) — DEMURRER-ADMIS- ceased, in the form of trespass to try title to certain property in the city of Waco, and to remove cloud from her title, and in the alternative to enforce her alleged equitable 4. HUSBAND AND WIFE 273(1)-COMMU- vendor's lien against said property. She alNITY PROPERTY DESCENT leged in substance that the lots were formerRIGHTS. ly the community property of herself and her deceased husband, who at his death left surviving him appellant Juliana Janes, his wife, and nine children, one of whom, Jessie Janes, was at the time a minor; that she and said minor then residing on said property as their homestead; that being without means of support, she executed to one of her sons, Dan Janes, a deed to said lots on July 13, 1907, for the consideration recited in said deed of $1, and that he would support her during her lifetime, and support and educate her minor son until he arrived at the age of her minor son. 5. DEEDS 64-NECESSITY FOR ACCEPTANCE. If a deed was a forgery, it conveyed no in terest. 7. HUSBAND AND WIFE 249-COMMUNITY PROPERTY-ACQUISITION BY HUSBAND. Where a married man acquired realty by deed, the property became the community of himself and his wife. 8. HUSBAND AND WIFE 273(10) - COMMU-21 years; that four of the other children for NITY PROPERTY CONVEYANCES BY WIFE AND OTHERS-CHILDRENS' INTEREST. Deeds executed by a widow in her own behalf and as survivor of the community estate, and by others, did not convey the interest of the minor children of the deceased husband, if they had any, aside from his community in terest. 9. HOMESTEAD 128 HUSBAND ALONE. If land was the homestead of a husband at the time of several conveyances from him, and such conveyances were intended as mortgages, and all the grantees had notice of the facts when they acquired their several interests, the conveyances were void. On Motion for Rehearing. 10. DEEDS 196(2)-FRAUD-PLEADING. a like consideration executed deeds to Dan Janes for their interest in said property; and that the other three executed deeds to him for their interest for an alleged money consideration; that Dan Janes and his wife, Regina Janes, immediately moved into the house with her, and that they and she continued to occupy the same as their homestead until the death of Dan Janes, February 10, 1912, and until she was unlawfully dispossessed of same on July 8, 1912. She alleged that Dan Janes, for the purpose of fraudulently obtaining relief from his obligation to support her and her minor son, on October 5, 1907, joined by his wife, executed a deed to her for said land for the recited consideration of $1, and love and affection, and the cancellation of said agreement to support her and her minor son, and procured said deed to be recorded in the deed records of McLennan county March 4, 1908. She alleges that said deed was never delivered to her, that she never accepted the same, and had no knowledge of its execution until a short time before the filing of this suit. Appeal from District Court, McLennan She alleges that Dan Janes, on October 16, County; J. W. Cocke, Special Judge. 1907, forged her name to a deed to himself Suit by Mrs. Juliana Janes against Mrs. for said lots. She then alleges that for the K. T. Stratton and others, and the minor purpose of borrowing money on said lots in children of Dan Janes, deceased; the children violation of the law which forbids the mortfiling a cross-action. From judgment sus-gaging of a homestead, Dan Janes executed certain deeds to said lots, pretending to take taining demurrers to the petition and cross-vendor's lien notes, but that such deeds were action, petitioner and cross-petitioners ap- in fact mortgages, and the holders of said peal. Reversed, and cause remanded for new notes took them with knowledge of such trial. James E. Yeager, of Waco, for appellant Juliana H. Janes. Jas. R. Jenkins, of Waco, for minor appellants. Jas. D. Williamson, J. N. Gallagher, W. B. Carrington, T. G. Dilworth, and Bebout & Penland, all of Waco, for appellees. facts. If the transactions had stopped here, there would have been merit in appellant's claim. But she further alleges that after the death of Dan Janes, his wife, Regina Janes, qualified as the survivor of the community estate of herself and her deceased husband, and that the disability of Jessie Janes' miJENKINS, J. Appellant Mrs. Juliana Janes nority was removed by the district court of brought suit against appellees and appel- McLennan county, and thereafter, on July lants, the minor children of Dan Janes, de- 8, 1912, Regina Janes, for herself and as sur For other cases see same topic and KEY-NUMBER in'all Key-Numbered Digests and Indexes vivor of the community estate of herself and her deceased husband, and Jesse Janes for himself, executed deeds to said property to Mrs. K. T. Stratton, the consideration to be paid to Regina Janes being $850; that upon learning said fact appellant went to the office of S. E. Stratton, husband of K. T. Stratton, to whom Regina had executed said deed, and was informed by S. E. Stratton that there was large indebtedness against said property, which appears from the allegations of her petition to have been true, though she alleges such indebtedness was not enforceable against said property by reason of the homestead rights of herself and of Dan Janes and his wife; that she then and there declared such indebtedness to be fraudulent, but that she accepted from Stratton $85 of the money that was to be paid to Regina Janes, and executed a deed to Mrs. Stratton. [1] The court sustained a general demurrer to the petition of appellant Juliana Janes. In this there was no error. It is useless to consider what would have been her rights in the premises if she had not executed the deed to Mrs. Stratton. That deed, if not voidable on account of fraud, conveyed whatever interest, legal or equitable, she had in the premises. [2] In order to cancel a deed or other contract on the ground of fraud, three things must concur, viz.: (1) False representation of a material fact; (2) the representations must have been believed to have been true by the party deceived; and (3) he must have relied upon said representations. Cresap v. Manor, 63 Tex. 485; Calhoun v. Quinn, 21 S. W. 705; Bonzer v. Garrett, 162 S. W. 934; Luckie v. McGlasson, 22 Tex. 285; Carson v. Kelley, 57 Tex. 379; Webb v. Harris, 1 White & W. Civ. Cas. Ct. App. § 1289. According to the allegations of appellants' petition, the statement by Stratton that there was a large indebtedness against the land was true. It is only by intendment, if at all, that she alleges that Stratton represented that such indebtedness was legally binding on the land. If such representation had been made, it would be no ground for avoiding her deed, as she does not allege that she was deceived thereby, or relied upon the same. On the contrary, she alleges that she then knew, and so stated to Stratton, that the said indebtedness was fraudulent, but that she accepted the $85, and executed said deed, because she thought it was the best she could do. The demurrer to the petition of appellant Juliana Janes having been properly sustained, and she having declined to further amend, the judgment as to her is affirmed. for the purpose of the demurrer, the property in question was the community property of Juliana Janes and her deceased husband; and upon his death a half interest therein descended to the nine children of the deceased husband, subject to the homestead rights of Juliana Janes and her minor son. Dan Janes was one of the children, and inherited, as his separate property, one-eighteenth thereof. If the deed from Dan Janes was never accepted by Juliana Janes, it did not convey his interest; and if the deed from Juliana Janes back to Dan Janes was a forgery, it conveyed no interest. Excluding these two deeds, Dan Janes, by virtue of the deed from his mother and from seven of his brothers and sisters, became the owner of his mother's community interest, and of seven-ninths of his father's interest, subject to the support of his mother and minor brother. Dan Janes being a married man at the time these deeds were executed, the property thus acquired was community of himself and his wife, Regina Janes, and the same was conveyed to Mrs. Stratton by Regina Janes, who executed said deed in her own behalf and as survivor of the community estate of herself and her deceased husband, Dan Janes. The deed from Jessie Janes and the deed from Juliana Janes to Mrs. Stratton conveyed their interest. None of these deeds, however, conveyed the interest of the minor children of Dan Janes, if any they had, aside from the community interest of their father. If it be true, as alleged, that the property was the homestead of Dan Janes at the time of the several alleged conveyances from him, and that these conveyances were intended as mortgages, and that all of the other defendants had notice of such facts at the time they acquired their several interests, such conveyances were void; and as none of the other conveyances purported to convey Dan Janes' separate interest in said property, his minor children, appellants herein, were entitled to recover such interest on their cross action. For the reasons stated, the judgment of the cross-action of said minors is reversed, the trial court sustaining, the demurrer to and this cause is remanded for a new trial in accordance with this opinion. Affirmed in part, and in part reversed and remanded. On Motion for Rehearing. [10] Upon a former day of the present term, we affirmed the judgment herein as to all of the appellants, except the minors. As to appellant Juliana Janes, our opinion [3-9] The trial court also sustained a gen- was based upon the fact that her petition, eral demurrer to the cross-action of the mi- as we construed it, did not contain sufficient nor children of Dan Janes, deceased. In allegations as to fraud. The allegations this we think there was error. The guardian as to fraud in obtaining the deed from her ad litem of the minors adopted the allega- to K. T. Stratton, as well as to the transactions in plaintiff's petition. If these allega- tions leading up to the same, are numerous |