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defense. He simply answered to the court's question that he did not have counsel.

2. That he was deprived of the right to have witnesses in his behalf. To prove what fact? Not stated. We gather from the motion that perhaps witnesses might be obtained to support the plea (so called) of insanity. This, however, is not stated definitely. But, be this as it may, appellant seems to have been perfectly sane when he took the horse; and he certainly exhibited no symptoms of insanity when on the stand as a witness. There was no error in refusing a new trial.

There was a motion in arrest because the indictment does not allege that the horse was corporeal personal property,-the word "corporal" is used instead of "corporeal." Now, a horse is not real or mixed property, nor is it incorporeal property. It is evidently corporeal property. The indictment need not allege that it is corporeal property, for this court and all courts know that a horse is corporeal personal property. The motion in arrest was properly overruled. The judgment is affirmed.

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1. On the cross-examination of one of defendant's witnesses, he was asked, without reference to anything in his direct examination, if defendant had not confessed the crime to him, which the witness denied. Held, that the state could not show that the witness had stated that defendant confessed to him, as the state, by attempting to prove the confession, had made the witness her own.

2. Where evidence admissible only to impeach defendant's witness is admitted, the court should instruct that such evidence can be considered only for that purpose.

3. In a prosecution for the theft of a beef, G., in whose possession a hide was found, with the prosecutor's brand on it, testified that he bought the beef from defendant, showing a bill of sale to him. The bill contained B.'s brand. Defendant testified that he sold a beef to G., but that it had B.'s brand on it. D. stated that G. had told him that the hide having on it the prosecutor's brand came off of a beef other than the one sold him by defendant. The court instructed that defendant had introduced evidence to prove that the beef alleged to have been stolen was the property of B., instead of the prosecutor's. Held, that such instruction was erroneous, as making a false issue, since defendant claimed that he had nothing to do with the beef off of which the hide in G.'s possession came.

Appeal from district court, Val Verde county; Walter Gillis, Judge.

R. M. Shackelford was convicted of stealing a steer, and appeals. Reversed.

H. C. Carter and Joseph Jones, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

HURT, P. J. Theft of a yearling alleged to be the property of W. E. Whitehead. A hide upon which was the brand of Whitehead was found in the possession of Francisco Garza. Garza states that the animal from which this hide was taken was killed, and the carcass delivered to him by appellant. If this be so, appellant is evidently guilty, under the facts of this case. Appellant denies that he ever had anything to do with such an animal, and hence the issue, and the only important issue, in the case, was, did appellant kill and deliver to Garza a yearling bearing the brand of Whitehead? Garza and another witness swear that he did. A bill of sale was delivered to Garza at the time he received the animal; but this bill does not contain Whitehead's brand, but does contain the brand of Ben Bendele. Appellant admits that he did kill and deliver to Garza a yearling, but says he was authorized to do so by its owner, Ben Bendele. In this he was supported by the testimony of Val Tilly. Ben Bendele denies such authority. George Deaton, who was constable at the time of the supposed theft, was introduced as a witness for defendant. He had arrested Garza for this theft, and while taking him to Comstock, one H. C. Young being present, Garza told Deaton (so says Deaton) "that the hide he (Garza) had shown Stein, Whitehead, and Bendele was not the hide that came off the animal that defendant had killed for him." Upon crossexamination, the state attempted, but failed, to prove by this witness that the defendant had acknowledged to him that he had killed the Whitehead beef; whereupon the state proposed to prove that Deaton had told Bendele that defendant had told him that he killed the animal in question, and that he (Bendele) got a part of the beef, and that, if he would let up on this prosecution, he (defendant) would tell him where two of his horses were that had been stolen. Deaton denied making any such statement to Bendele. Bendele was recalled by the state, and, over objection of defendant, swore that Deaton had made this statement to him. This was palpable error. When the state attempted to prove by Deaton that appellant had made this statement to him, she made Deaton her witness; for appellant in the examination in chief had elicited nothing whatever from him in regard to this matter. Being the state's witness, she can impeach, except by general reputation,-when? When the witness testifies to a fact injurious to her. Now, Deaton, when he denied that he had made the statement to Bendele, swore to no fact injurious to the state, nor did he swear to a fact which was injurious to the state in stating that appellant had not confessed to him that he had killed the Whitehead yearling. The state attempted to prove a fact by this witness, but failed. This was a failure to make certain proof, and in doing so the witness swore to no fact injurious to the state. Now, if some

witness had sworn that appellant had confessed to Deaton that he had killed Whitehead's yearling, and Deaton had denied that he had, then he could have been impeached in the manner proposed. But this was not the case. Having admitted this impeaching testimony, the court should have instructed the jury for what purpose they could use it. A deliberate confession of the fact upon which guilt depended,-a fact which, if true, placed beyond doubt the guilt of the accused, -was admitted in evidence, for the purpose of impeaching Deaton. It was imperative upon the court to instruct the jury in the written charge that this matter could only be used for the purpose of impeaching Deaton.

In the fifth paragraph of the charge, the jury were instructed as follows: "The defendant has introduced evidence for the purpose of showing that the one head of cattle alleged to have been stolen was the property of Bendele, and not the property of W. E. Whitehead, as alleged in the indictment." Appellant introduced evidence for no such purpose. He never denied that the Whitehead yearling had been stolen. He never attempted to prove that the hide found in the possession of Garza did not come off of an animal which belonged to Whitehead. His contention was that he never had any connection with said hide, or the animal from which it was taken. It is true that he adduced evidence to the effect that he had delivered a yearling to Garza; that he killed the yearling for Garza himself, and delivered the meat to him; and that this was done for Bendele, and by his permission. This was a very important fact to be proved, in order to make relevant and give force to the fact that Garza had stated that he had not shown the hide which came from the animal received from appellant to Stein, Whitehead, and Bendele. Garza did not pretend to know that the yearling belonged to Bendele. He says he did not know the owner, but believed that appellant had the right to deliver it to him, as the property of Bendele. But when the hide was examined, after it had been dried, it was discovered that it belonged to Whitehead. There was an examination made by Stein, Whitehead, and Bendele. Then it was that Garza stated that he had gotten the meat and hide from appellant. Appellant denied that he had obtained the meat or hide from him, but conceded that he had delivered meat and a hide to Garza, but that the hide delivered by him was never seen by Stein, Whitehead, or Bendele. He does not question but that Garza stole the animal from which the hide shown to Stein, Whitehead, and Bendele was taken. The statement of appellant's theory of the case was wrong. It made a false issue, an issue upon the trial of which appel. lant was sure to be defeated, and consequently convicted. The judgment is reversed, and the cause remanded.

CROUCH v. JOHNSON.1 (Court of Civil Appeals of Texas. May 23, 1894.)

SALE OF LAND RESCISSION BY VENDOR - Ev DENCE-TITLE FROM STATE-CONTINUANCE.

1. In an action by a vendor to rescind an executory contract of sale of school land for which he had not yet obtained a patent, on the ground that defendant had defaulted on the note given for the purchase money, evidence of plaintiff, received without objection, that his vendor purchased the land from the state, and paid part of the purchase money before he sold to defendant, and that he had since paid the balance to the state, was sufficient to show such facts.

2. Error in admitting a letter to plaintiff from the state treasurer, without proof of the latter's signature, acknowledging receipt of final payment due the state for the land and patent fee, and stating that "patent will reach you in due course," is harmless if such final payment is proved by other uncontradicted testimony, and there is no evidence of any material defect in plaintiff's title.

3. The mere refusal of the land commissioner to issue a patent to plaintiff would not show that plaintiff did not have title to the land.

4. It was not error to refuse to permit defendant to show, by cross-examination of plaintiff, that the parties had an oral contemporaneous agreement about the land being unpatented, and that they understood the terms "warranty deed in common form," used in the bond, meant that defendant was to have a perfect fee-simple title from plaintiff before accepting a deed, in the absence of any ambiguity in the language of the bond.

5. Where one defense set up is insufficient because oral evidence necessary to support it would be contradictory of a written contract, and the other defense sets up facts within defendant's knowledge, but he offers no testimony on the trial, though present, the refusal of a continuance is not injurious to him.

Appeal from district court, Atascosa county; M. F. Lowe, Judge.

Action by Alberry Johnson against M. E. Crouch to rescind an executory contract of sale of land, and to recover possession, or to foreclose a bond for a deed in case plaintiff is not entitled to rescission. From a judgment rescinding the sale, defendant appeals. Affirmed.

John W. Preston and Hudson & Smith, for appellant. D. C. Marr and Jay Minter, for appellee.

JAMES, C. J. We find the conclusions of fact prepared by the trial judge to be sustained by the testimony, and the objections to these conclusions will be considered in our conclusions of law. The conclusions of fact will be adopted by this court as follows: That on the 1st day of January, 1886, the plaintiff and defendant entered into a contract of sale and purchase of 160 acres of land, as alleged in plaintiff's original petition. The plaintiff gave the defendant a bond for title, and the defendant gave the plaintiff the promissory note for the purchase

1 Rehearing denied.

money, dated January 1, 1886, as set out in said petition. Plaintiff bound himself by his bond to convey the 160 acres to the defendant within three years thereafter, by a warranty deed duly acknowledged in usual form, provided defendant should first pay plaintiff the purchase money, as specified in the bond and note. I find that the smaller note described in plaintiff's original petition was given by the defendant to the plaintiff in settlement of the first installment of interest upon the other note,-that is, for the interest for the year 1886,-and I find that when the contract was made and the first note executed it was understood by the parties that the interest should be paid by the defendant at the end of each year, but that this provision was omitted from the note by mutual mistake. That, at the date of the contracts, the plaintiff had no patent to the land, and the defendant knew this fact when he entered into said contract for the purchase of the land, which is a part of state school section No. 1606. That J. V. Dignowity had contracted with the state for the purchase of this section, and made part payment (as recited in his deed to the plaintiff), and that the plaintiff purchased said section from said Dignowity, paying him four hundred dollars therefor, and that the plaintiff has paid the state all of the balance of the purchase money, and made the last payment to the state treasurer on October 9, 1889. That the defendant has been in the possession of the 160 acres he purchased from plaintiff ever since January, 1886, and that the rent of same is worth one hundred dollars per annum, and that the defendant has made improvements upon the land, but their character or value was not proved at all. I find that at the maturity of the first note and bond the plaintiff offered to make the defendant a warranty deed in usual form, according to the terms of the bond, if the defendant would pay the purchase money then due, but this the defendant refused to do, stating that he would never pay any part of the purchase money until plaintiff should obtain a patent. That the defendant has never paid either of the two notes given for the purchase money, or any part thereof, nor has he ever tendered the money with any intention of paying it to the plaintiff. I find that there is no proof of any defect in plaintiff's title to the land (except that he has not yet obtained a patent), and that, so far as the evidence shows, the plaintiff is entitled to a patent to the entire section. That there is no proof of any other title in the defendant except under the plaintiff, nor of any valid outstanding title in any other person, to the land in controversy. That there was no fraud or misrepresentation upon the part of plaintiff in making the contract with the defendant for the sale of the land, but that both parties knew the true state of the title. That at the maturity of the notes and bond,

and when the defendant had refused to pay the purchase money, the plaintiff offered to deliver back the notes, and demanded possession of the land, which defendant refused. I find that the defendant repudiated the contract.

Conclusions of Law.

The appellant questions the said conclusions by his assignments 6 and 7: (1) The finding that Dignowity had contracted with the state for the purchase of section 1606, and had made part payment thereon, for the reason that there is not a particle of testimony in the record of such facts outside of the recitals in the deed from Dignowity to plaintiff, Johnson. (2) The finding that there was no defect in the plaintiff's title to the land except that he had not yet obtained a patent to the land, and in finding as a fact that plaintiff was entitled to a patent. We think the conclusions of the judge were warranted. The plaintiff in his testimony stated that his vendor Dignowity had purchased the section 1606 from the state, and paid part of the purchase money before he sold, and that the witness had since paid the balance to the state. The original evidence of the purchase would have been the contract of purchase, but secondary evidence is sufficient when no objection is made. The testimony of plaintiff was sufficient to show the fact of purchase. We see no testimony in the record to show a different state of facts from what the conclusions state as to any defect in plaintiff's title other than that patent had not issued.

The first assignment of error is to the refusal of a continuance. It appears that the application, although stating the acts of diligence, failed to add that due diligence had been used. Railway Co. v. Woolum, 84 Tex. 573, 19 S. W. 782. It seems, however, that, before the application was acted upon, defendant offered to make this addition to his affidavit. Independently of these questions. we believe the court did not err in refusing the continuance, for the reason that defendant does not appear to have suffered by its denial. An inspection of the answer shows that defendant admitted the contract of sale as it was alleged by plaintiff, viz. that he had executed the note sued on for the land. and had taken from plaintiff a bond for title, conditioned that plaintiff would execute and deliver to defendant a warranty deed to the land, upon defendant's paying to plaintiff the amount of said promissory note and interest. The defenses were: (1) That at the time of the contract the land was not patented, and plaintiff agreed to perfect his title by obtaining a patent from the state, which had not been done. This constituted no defense, for the reason that evidence to support the same was not admissible to vary the terms of the written contract of sale. (2) That plaintiff wrong

fully and fraudulently put defendant in possession of another and different 160 acres of land, owned by others, and on which defendant in good faith had made valuable improvements, believing it to have been the land he bought, and specified the improvements, alleging their value at $2,100, and prayed for this sum in reconvention if plaintiff did not comply with his contract, and procure for him title to the land. On the trial the defendant was present, and offered no testimony. He could not have expected the absent witnesses to testify to what did not relate to his said defenses, and their testimony concerning the first of said defenses would not have been allowed. As to the second, as well as the first, of said defenses, the facts may reasonably be taken to have been within the knowledge of the defendant, and he refrained from giving any testimony. Under these circumstances, it would appear that there was no injury to him in overruling the continuance.

The second assignment complains of the admission of a letter purporting to have been written by the state treasurer, F. R. Lubbock, to plaintiff. The letter was an acknowledgment of the receipt for the final payment of purchase money due the state for the land and patent fee, and stating that "patent will reach you in due course." This was no error that would reverse the judgment, although the letter should not have been admitted without proof of the treasurer's signature. The final payment of the land was otherwise proved by uncontradicted testimony, and the final clause of the letter did not probably affect the decision, as the case was tried by the judge. The admission of erroneous evidence will not ordinarily cause a reversal, in cases tried without a jury, if there is other testimony in the case sufficient to support the judgment. Smith v. Lee, 82 Tex. 130, 17 S. W. 598. There was no evidence of any material defect in the plaintiff's title to the land in question.

The fourth assignment of error discloses that the following question was propounded to plaintiff: "Did the commissioner of the general land office refuse to issue you a patent from the state of Texas to the land in controversy?" The bill of exceptions does not state what was expected to be proved by the answer to the question. But, assuming that the answer would have been in the affirmative, it would not have evidenced a want of title in the plaintiff. The mere refusal of the commissioner to issue a patent would not justify a court in finding that the applicant did not have title.

The court did not err in not permitting plaintiff to be asked the question: "Did you and Mr. Crouch, at the time the bond for title was executed, have any conversation and agreement in reference to the land being unpatented, and did not you and he understand a warranty deed from you to him to mean that you could not give him a warranty deed

until the state issued you a patent?" The ruling was correct, because there was no uncertainty or ambiguity in the language of the bond, and parol testimony of a different contract at the time than that expressed therein was not allowable. The proof which was expected to be made (as shown by the bill of exceptions) was that the term "warranty deed in common form," used in the bond, meant that defendant was to have a perfect fee-simple title from plaintiff before he was to accept any deed from plaintiff. If there was such an agreement, and its omission from the writing was due to fraud and mistake or accident, pleadings properly setting up this equitable ground for relief would have authorized the evidence. As it was, the evidence would not have been admissible. Soell v. Hadden, 85 Tex. 187, 19 S. W. 1087; Bigham v. Bigham, 57 Tex. 243.

The evidence in this case shows an executory contract of sale of land whereby plaintiff obligated himself to convey to defendant certain land by warranty deed in common form upon payment of the note with interest. No payment of purchase money had been made. The note given for purchase money had matured. The vendor had, at the maturity of the note, offered to make defendant a warranty deed according to the bond, and defendant refused to accept such a deed, and declared he would never pay a cent for the land until he got a patent to it. The plaintiff not being in default under these circumstances, he was in a situation to enforce a rescission of the contract and recover the land. Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290. This was the principal relief sought by the petition, plaintiff asking, in the event that he was not entitled to a rescission, that he be decreed a foreclosure for the purchase money. In the case of an executed contract of sale, as, for instance, when a warranty deed is made, it is held that the vendee cannot resist payment of purchase mone on the ground of a defect in the title, if he knew of such defect at the time he purchased. In such case he must ordinarily await eviction. Rawle, Cov. § 320; Ogburn v. Whitlow, 80 Tex. 241, 15 S. W. 807. It is not necessary to decide whether or not such rule will apply in this case of executory contract, because the evidence does not disclose a defect in the title of the vendor. That a patent had not been issued for the land, or even a refusal of the commissioner to issue it, would not be tangible evidence of a want of title. The supreme court say in Moore v. Giesecke: "When the vendor's suit is predicated upon the mere refusal of the vendee to pay the whole consideration contracted for, the facts that the vendee has paid part of the consideration and made valuable improvements, coupled with possession of the property, unaided by some other sufficient equity, will not entitle him to recover for such purchase money or improvements. In such case, when the vendor has neither waived his legal rights nor commit

ted any default, he cannot be involuntarily taxed with improvements made upon his property without his consent, or be made to pay a price for recovering it back." This clear statement of the rule furnishes the means of determining the rights of the parties before us upon the facts. Here the plaintiff was not in default. The defendant was in default. The defendant had paid nothing on the land. It was shown he had made some improvements, but what they were, or whether they were valuable or not, is not disclosed. From the time the purchase money was due, he refused to perform unless plaintiff did what his contract did not require him to do. The delay of plaintiff in filing the suit does not appear to have operated in any way to defendant's injury. We can see nothing in the evidence that can be construed a waiver of the right to rescind, or any supervening equity in favor of the defendant, and we conclude that this remedy was clearly available. The judgment is affirmed.

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APPEAL BOND-VENUE-JURISDICTION-PARTIESCHATTEL MORTGAGE-CORPORATION.

1. Where a suit is dismissed as to one defendant, and judgment rendered against the other three defendants, only two of whom appeal, it is proper to make the appeal bond payable, not only to the plaintiffs, but also to the two defendants who do not appeal.

2. Where the venue of an action is changed on the application of one of several defendants, a subsequent dismissal of the action as to him does not deprive the court of jurisdiction.

3. Where, in an action by the assignee of notes against one who has collected them, an answer is filed setting up offsets as against plaintiff's assignor, such assignor is a proper party to the action.

4. The mortgagee of chattels belonging to a corporation placed them in the hands of the secretary of the corporation to dispose of at private sale for the benefit of the mortgagee. Held, that the secretary was liable to the mortgagee for the proceeds of such sale, though the corporation was then indebted to him for salary. Appeal from district court, Fayette county; H. Teichmueller, Judge.

Action by Leon Blum and H. Blum against Sarah E. Stafford, J. E. Sandmeyer, and Wells Thompson. Plaintiffs obtained judg

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Wells Thompson, as trustee in a certain deed of trust executed to him by one Harry S. Levy, conveying certain merchandise to secure an indebtedness in favor of said Stafford & Co., as recited in the deed of trust. Three of the notes mentioned in the deed of trust were drawn by the said Levy in his own favor, and were by him indorsed in blank. These notes were the property of Ehrenwerth, and were received by Stafford & Co., and included in the deed of trust to be collected for his use; but Thompson had no knowledge of the interest of Ehrenwerth. Plaintiffs sue as the assignors of Ehrenwerth of the notes above mentioned, and of his interest in the fund. They took the transfer, however, after the maturity of the notes and the collection and deposit of the fund by Thompson, and subject to any defenses in favor of the defendants against the said Ehrenwerth. This is not denied by the plaintiffs. Thompson answered the petition of plaintiffs, that it was true, as stated therein, that on September 24, 1890, Harry S. Levy executed the deed of trust as alleged; that he had sold the property conveyed therein, and deposited the proceeds of said sale with R. E. Stafford & Co., and he was directed to do so by said instrument. He showed the manner of sale, amount of receipts, etc., and that R. E. Stafford & Co. had in their hands $12,763.59, the proceeds of said property, out of which he asked to be allowed his commissions. Defendants R. E. Stafford & Co. answered to the said September term of court, 1891, and admitted that they had in their hands the said sum of $12,763.59 deposited with them by the said Thompson as trustee, etc.; but they averred that the same belonged to them, and that plaintiffs had no right to any portion thereof, nor any interest therein. They averred the execution of the deed of trust by Harry S. Levy to Wells Thompson, and set out the indebtedness of Levy which it was to secure, -their own as well as that of Ehrenwerth. They alleged that, at the time the said deed of trust was executed, the said Ehrenwerth was also indebted to them, as evidenced by his two promissory notes, (1) dated September 29, 1889, due January 1, 1890, for $1,272.91, with 12 per cent. interest, and (2) dated March 2, 1889, due July 1, 1889, for $786, with 12 per cent. interest; both of said notes stipulating for 10 per cent. attorney fees if collected by law; that the notes included in said deed of trust belonging to Ehrenwerth were transferred to defendants as collateral security for their said notes against Ehrenwerth, and with the further understanding that the claims of defendants against Levy were to be first paid out of the proceeds of said property so conveyed in trust to Thompson; that the said goods did not sell for enough at retail to pay the indebtedness mentioned in the deed of trust, and the trustee, acting under the provisions of said trust deed, sold the remainder of the stock in bulk at public auction, and defend

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