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ing died in 1861. By the terms of the con- Susan Ann Bowen, Mrs. Ellis, and William tract, Bowen was to take possession of the P. Bowen to sell their interests. Whether or Easton survey of land, make improvements not such authority existed was submitted as thereon, and hold possession under the owner a special issue to the jury, and the finding thereof for a period of 10 years, in consid- was that Elliot Bowen had such authority eration of which he was to have 200 acres from Mrs. Susan Ann Bowen and William thereof, which 200 acres includes the land P. Bowen. The jury also found that the in controversy. His possession began in value of the land without improvements was 1853; and, though he died in 1861 (before the $1,800; the value of the use and occupation contract was entirely performed on his part), of the land, $800; the value of the improvehis surviving wife and their childreu re- ments made by Kosmyroski, $600. Upon mained in possession for a much longer pe this verdict the court rendered judgment for riod than required by the contract. Under the plaintiff Marlin for an undivided interest this state of facts, appellees contend, by of nine-eightieths in the land, and for the cross assignment of error, that the title to plaintiff Mrs. Blackwell a life estate in an the land acquired under said contract was undivided three-eightieths thereof. Marlin in Mrs. Bowen; in other words, that it was alone has appealed. It appears from the her separate property, and not community briefs of the parties, and the amount to property, and that the children of William which Marlin's recovery was limited so inBowen inherited no interest therein from dicates, that the court below held that the their father. With this contention we do

deed from R. L. and W. D. Bowen was void, not agree. Under the facts stated, we think and passed no title whatever to the plaintiff the land was community property, and that Marlin, because of the minority of the said the children of William Bowen inherited a

R. L. and W. D. Bowen. It was agreed behalf interest therein from their deceased tween the parties at the time of the trial father. William Bowen left his wife, Susan (in January, 1893) that said W. D. and R. Ann Bowen, and six children, surviving him, L. Bowen were minors, being at that time na ely, Milton Bowen, William P. Bowen, about 16 and 18 years of age. At the tim Elliot Bowen, Daniel C. Bowen, Sarah Ann of the execution of the deed (October 7, 1890) Bowen, and an unnamed babe, that died they were nearly 14 and 16 years of age. shortly after the death of William Bowen. Said W. D. and R. L. Bowen are not parties The testimony warrants the conclusion that to this cause. Daniel C. Bowen is dead; that he was never According to the weight of authority, and married, and had no children. Milton Bowen especially the more recent decisions, conmarried and died, leaving a surviving wife, tracts made by minors, and not founded who is the plaintiff Sallie Ann Blackwell, upon an illegal consideration, are not absoand two surviving children, R. L. and W. lutely void, but only voidable at the instance D. Bowen. Appellant, Marlin, offered in evi. of the minor. At an early day in this state, dence a general warranty deed to himself, this doctrine was applied to a deed executed dated July 2, 1890, and executed by J. R. by a minor (Cummings v. Powell, 8 Tex. 84), Ellis and wife, S. A. Ellis (formerly Sarab and it has been repeatedly applied since then Ann Bowen), and Susan Ann Bowen, acting (Stuart v. Baker, 17 Tex. 418; Bingham v. for herself and as agent for William P. Bow. | Barley, 55 Tex. 285; Ferguson v. Railway en, conveying the land in controversy; also Co., 73 Tex. 346, 11 S. W. 347; Askey v. Wila power of attorney from William P. Bowen liams, 74 Tex. 294, 11 S. W. 1101). In fact, to Susan Ann Bowen, dated November 22, counsel for appellees admits that, as between 1892, authorizing her to sell all the lands be- the parties to the deed, it would be only longing to said William P. Bowen in Falls voidable, and not void, but contends that county, Tex.; also a deed of ratification ex- such a deed will not authorize the vendee ecuted by said William P. Bowen, dated Jan- to maintain an action for the land during uary 19, 1891, ratifying the deed made in his the minority of the grantor. No authority behalf by Mrs. Susan Ann Bowen, July 2, is cited to sustain this proposition, and it is 1890. Marlin also introduced in evidence a not believed that any exists. If, as against general warranty deed from W. D. Bowen the minor himself, the deed is only voidable, and R. L. Bowen to himself, dated October ---that is to say, binding until repudiated by 7, 1890, conveying an undivided one-fifth in- him,-then, as against a third person, it ought terest in the land in controversy. Appellees, to be regarded as valid. The assignment who were defendants in the court below, of error which complains of this ruling must claim the land under a bond for title made be sustained. to Joho Kosmyroski, dated October 30, 1982. and executed by Elliot Bowen, for himself appellant, we hold that the rule that a tenand as agent for Mrs. Susan Ann Bowen, ant in common may recover an entire tract Mrs. S. A. Ellis, and William P. Bowen, and of land only has application as between such as guardian of W. D. and R. L. Bowen. No tenant and a stranger to the title. It does order of the probate court or other authority not apply to the facts of this case. was produced authorizing Elliot Bowen to The court committed no error in excludsell the land as such guardian; and the plain- ing the will of James Marlin, deceased, betiffs denied that he had authority from Mrs. cause said will was not embraced in the ab.

2. "Passing on other questions presented by

stract of title filed by appellant in response The question of the legality of the citation to the demand made by appellees. The mat- being one which cannot arise on the next ter is regulated by a statute which, when trial, it becomes unnecessary to discuss it. notice to file such abstract has been given, The number of the case could have been declares that "the documentary evidence of amended by the court. title shall at the trial be confined to the mat- Appellants' application for a continuance ters contained in the abstract of titles.” being in compliance with the statute, and the Rev. St. art. 4799.

diligence being sufficient, it was error in the Concerning the alleged authority of Elliot court to overrule it. Bowen to sell the land, the court instructed The third assignment of error is not well the jury that it was immaterial whether taken. The whole amount claimed, value of such authority was in writing or verbal. the cattle and damages, was $800; and the Appellant assigns this charge as error. The county court had jurisdiction. This is shown instrument under which the defendants by the prayer in the petition in which judg. claimed was not a deed, but a bond for title. ment is asked for $350, the value of the cattle, It has been held in this state that written and in the sum of $150, for damages. authority is not necessary to enable an agent It was not error to sustain the exceptions to bind his principal in an executory contract to that portion of the answer of appellants for the sale of land. Huffman v. Cartwright, which endeavored to offset the claim of ap 44 Tex. 296. The instruction complained of pellee for damages by a plea that appellee is supported by the case cited.

had converted cattle belonging to appellants We agree with appellant, Marlin, that, in to his use. The unlawful seizure and con. making partition and adjusting equities, he version of appellants' cattle did not arise out will be entitled to his proportional share of of, and was not incident to or connected with, the improvements placed on the land be- the plaintiff's cause of action; and the plea fore Kosmyroski acquired any interest in it. of insolvency of appellee we do not believe

For the reasons above given, the judgment will justify this court in sustaining the pleadwill be reversed, and the cause remanded. ing of one tort in offset to another. It may Reversed and remanded.

be said that it is an independent cross action, that should in equity be permitted; but it is, in effect and reality, the same as plead

ing an uncertain amount of damages arising SMITH et al. v. BATES.'

from a tort in offset to another uncertain

amount of damages arising from another tort. (Court of Civil Appeals of Texas. Oct. 17, This question has been fully discussed by 1894.)

Judge 0. M. Roberts in the case of Duncan CoxtixUANCE--COUNTERCLAIM-SUMMONING JURY v. Magette, 25 Tex. 245. After reviewing a -COMPETENCY-CONVERSION-DAMAGES.

number of cases, the learned judge says: "Il 1. Where an application for continuance debts and torts could be set off against each complies with the statute, the diligence being other, and torts against torts, it would lead sufficient, it is error to overrule it.

2. In an action for conversion, damages to strange results. The strong would collect arising from another tort cannot be set up as a their own debts off the weak, by taking their counterclaim, even where plaintiff is insolvent. 3. Rev. St. arts. 3091, 3093, 3094, provide

property into possession, retaining it until for the selection of juries by 'commissioners: converting it otherwise, and, when sued for and the summoning of the venire by order of the trespass, adjust the matter by setting up court is sufficient ground for reversal,

their debts. Assault and battery might be 4. Where appellant had not exhausted his peremptory challenges, it is no ground for re

met by a set-off for the slander that had proversal that the court erroneously held certain

voked it. So libel against libel might be set jurymen competent.

off. Such a state of things it was doubtless 5. The measure of damages in conversion

the object of the restriction in the statute to is the market value at the time of conversion, with interest from that time.

avoid. The insolvency of one of the parties

could not justify, obviate, or diminish the Appeal from Zavalla county court; George evil.” We do not believe that it was ever C. Herman, Judge.

contemplated by our lawmakers that one tort Action by B. A. Bates against W. O. and

could be pleaded as an offset to another. It A. G. Smith for conversion. Judgment for would, in effect, be substituting the lex plaintiff. Defendants appeal. Reversed.

talionis for the rules of right and law, and W. N. Parks, for appellants. I. L. Martin would tend to encourage retaliatory acts for and T. G. Baker, for appellee

wrongs committed. This question is dis.

cussed in Hart v. Davis, 21 Tex. 411; and it FLY, J. This suit was instituted to recover is there held that in actions for damages for of appellants $350, for cattle alleged to have a tort the defendant cannot plead in set-ofr been taken and converted by them, and for damages resulting from a tort committed by $450, damages generally. Appellants answer- the plaintiff. It is also held in the same ed by general denial, and by plea setting up a opinion that, while it has been held that equi. conversion of their property by appellee. Ex-ty will extend the remedy beyond the limits eeptions to this special plea were urged by of the statute, still it never has been held, as appellee, and sustained by the court.

is believed, to extend to a case of tort like 1 For rehearing opinion, see 28 S. W. 64.

the present. This position is sustained by Appeal from district court, Travis county; other authority. Wat. Set-Off, & 36; Barhyte James H. Robertson, Judge. v. Hughes, 33 Barb. 320.

Appeal by the Houston & Texas Central Appellants had the right, under the statute, | Railway Company against Bidala Guisar. to have their case submitted to a jury chosen Appellee moves to strike out appellant's by duly-appointed jury commissioners. Dan- brief. Motion granted. iel v. Bridges, 73 Tex. 149, 11 S. W. 121; Rev. St. arts. 3091, 3093, 3094. The law providing

0. T. Holt, for appellant. Wheless & Har. for the selection of juries by commissioners; ris, for appellee. was passed for the purpose of preventing and avoiding the well-known evils resulting from

FISHER, C. J. A motion is made in this the summoning of juries by sheriffs. Rail

case to strike out the brief of appellant, and way Co. v. Greenlee, 70 Tex. 553, 8 S. W. 129.

dismiss the appeal, because the appellant, in The summoning of the venire by order of the presenting its case in its brief, has grouped court was without warrant of law, and it was

all of its assignments of error. The brief of error to compel appellants to try their case appellant contains about 50 pages of printed before a jury chosen from such a venire.

matter, and in it are presented 12 assignThe court should have sustained the chal

ments of error, grouped near the beginning lenges made by appellants on account of four

of the brief and each in the main contains jurors stating that they had formed such an and presents distinct questions, and do not reopinion as would influence their action in

late to the same matter. The rules require finding a verdict. The cousin of appellee was

that the assignments of error shall be copied related to him within the third degree, and in the brief of appellant, and we think that the challenge should have been sustained as

they also contemplate that the assignments to him. It does not appear, however, that

of error shall be separately stated in the appellants exhausted their peremptory chal

brief, and not all grouped, unless they relate lenges, and the action of the court in holding to the same matter, or are so connected with the jurymen competent would not be ground

each other that practically they present the for reversal. Railway Co. v. Terrell, 69 Tex.

same question. The primary object of these 031, 7 S. W. 670.

rules is to lessen the labor of this court, and There is no assumption of the existence of

to require that the questions at issue shall be any fact in the first paragraph of the charge,

so plainly stated in the brief of the parties and the assignment attacking it is not well

as to clearly present the questions without taken.

obscurity, so as to save the court the labor of The measure of damages in cases of conversion of personal property is the market value it may be necessary or proper to do so. It

looking to the record, except in a case where at the time of conversion, with legal interest thereon from the date of the conversion.

was never contemplated under the present

rules that the court should look into the recIt becomes unnecessary to discuss the other

ord to ascertain the nature of the assignassignments of error further than to call at

ments; and, when the assignments are pretention to the rule that no controverted fact should be assumed by the court in its charge,

sented as they are in the brief in this case, and due care should be taken not to charge

the court would probably gain time and save

labor by looking to the record, because it upon the weight of the testimony, or in any manner invade the province of the jury. The

would be about as inconvenient to look back verdict of the jury was for $150 more than

from a proposition at the end of a brief to claimed or proved, and they also found for

the beginning to find the assignment to which 10 per cent. interest from date of the con

it belongs. Assignments relating to the same version. There was a remittitur entered for

question may be grouped, but those relating the excess, but the fact that such a verdict

to different questions or matters should be was returned is the strongest argument that separately presented, and each accompanied could be offered in favor of guarantying to

with appropriate propositions and stateappellants their legal rights in the choice of a

ments. This has been expressly held by the jury to try their cause. The judgment will

supreme court in the case of Railway Co. v. be reversed, and the cause remanded.

Anderson, 82 Tex. 517-521, 17 S. W. 1039.

The motion to strike out the brief is granted, and the case will be dismissed, unless a

brief in accord with the rules is filed in this HOUSTON & T. C. RY. CO. v. GUISAR.

cause within 60 days from this date. It is (No. 1,164.) (Court of Civil Appeals of Texas.

Oct. 31,

also ordered that appellee may have 30 days 1894.)

after the appellant's brief is filed in which BRIEF ON APPEAL-AssigxMENTS OF ERROR.

to file a reply. We desire to say that in the Under the rules requiring that assign

future briefs in all cases not presented in acments of error shall be copied in briefs, such as- cord with the views here expressed will be signments, unless they relate to the same mat- stricken from the record, upon order of the ter and present the same question, must be separately presented, each with its appropriate

court, although no motion is made to that propositions and statements.


Conclusions of Fact. HOUSTON & T. C. RY. CO. v. PÔRAS et al.

The judgment recites the existence of the (No. 1,165.)

following facts, which recitals are supported (Court of Civil Appeals of Texas. Oct. 31, by the testimony: “And the court, having 1894.)

heard the evidence, and being fully advised, Appeal from district court, Travis county; is of the opinion that the law and the facts James H. Robertson, Judge. The Houston & Texas Central Railway Com

are with the plaintiff; ard it appearing to pany appeal from a judgment against them by

the court that on the 26th day of November, Petra Poras and others. Motion to strike out 1889, the plaintiff, the People's Building & appellants' brief. Motion granted.

Savings Association, sold and conveyed by 0. T. Holt, for appellants. Wheless & Har- deed of that date to W. M. Mapes, now deris, for appellees.

ceased, the land hereinafter described, and FISHER, C. J. For the reasons stated in

that on said date said Mapes paid to plaincause No. 1,164 (Railway Co. y. Guisar, 27 s. tiff the sum of $125 cash, and executed his W. 1045), the same order will be made in this

note for $1,012.50 to plaintiff, payable in sixty case as made in No. 1,164.

equal monthly installments of $16.871, each, as purchase money for said property hereinafter described, and that, at the same time

the deed and note were executed as aforesaid, HOOD et al. v. PEOPLE'S BLDG. & SAV.

W. M. Mapes executed to plaintiff a deed of ASS'N.

trust upon the land conveyed by said deed, (Court of Civil Appeals of Texas. Oct. 31,

to secure the payment of said note; and it 1894.)

appearing further to the court that said VENDOR AND PURCHASER - DEFAULT IN PAYMENT

Mapes and the defendants have made default -RecovERY OF LAND. 1. On default in the payment of install

in the payment of said note, and failed to ments of the price of land, the rental value of perform the contract for the purchase of said which while in possession of the grantee was land, as provided in the contract of sale equal to the value of his improvements, added

aforesaid; and it further appearing to the to the amount paid on the price, the vendor may elect to recover the land or sue for the amount

court that the value of the use and occupaunpaid.

tion of said land described in said deed is 2. In an action to recover land for the non- equal to the amount of purchase money paid payment of the price, in which defendants ad

therefor in cash, and on said note and the mitted that more than one-half the price was unpaid, and was a legal charge on the land, a improvements thereon.” In addition to the judgment for recuvery of the land will not be facts found by the court as shown by the reversed because the interest provided in the

judgment, the testimony shows that there contract of sale was usurious.

was no administration on the estate of w. Appeal from district court, McLennan coun. M. Mapes. ty; L. W. Goodrich, Judge.

Conclusions of Law.
Action by the People's Building & Savings
Association against Nancy G. Hood, guard-

1. In so far as appellee sought to recover ian, and Willie Mapes, minor, to rescind a

the land, unquestionably the district court contract for the sale of land, and to recover

had jurisdiction; and, as the judgment is the land. Judgment for plaintiff, and de

only for the land, it is not necessary to de fendants appeal. Affirmed.

cide whether or not it had jurisdiction to ren

der judgment on the note. Scarborough & Rogers, for appellants.

2. The purchase money for the land not Jones, Kendall & Sleeper, for appellee. having been paid when due, appellee could

elect to reclaim the land or pursue its remedy KEY, J. Appellee brought this suit against for the remainder of the purchase money. Willie Mapes in person and against Nancy unless it would be inequitable to allow such G. Hood, her guardian, alleging, in substance, right of election. The testimony shows that that on the 26th day of November, 1889, ap- the rental value of the land during the time pellee sold to W. M. Mapes, now deceased, the defendants and W. M. Mapes had possesand father of said Willie, a certain lot in sion of it up to the time of trial was largely Waco; that said Mapes executed a vendor's in excess of the value of the improvements lien note for the purchase money of said lot made thereon by them, and about equal to in the sum of $1,012.50, payable in monthly the amount of purchase money paid, with the installments of $16.87142 per month, etc.; that value of the improvements added thereto. because of the failure to pay installments Appellants did not offer to pay for the land, past due the entire debt had matured; and and it was not shown that they had the ability asserting the right to rescind the sale and sue to do so. On this state of facts we do not for and recover the land. Appellants' an- think it was inequitable to allow a rescisswer contained general and special demur- sion of the sale and a recovery of the premrers, pleas to the court's jurisdiction, and a ises. McPherson v. Johnson, 69 Tex. 484, 6 plea of usury. The case was tried before the S. W. 798; Lanier v. Foust, 81 Tex. 186, 16 court without a jury, and judgment rendered S. W. 994. for appellee for the premises, and the deed 3. Conceding that the purchase-money obfrom appellee to W. M. Mapes was canceled. | ligation was usurious, yet it does not follow that the judgment must be reversed. The evi- before purchasing, he had inquired of the dence shows that only $260 of the purchase president of defendant, and was told the money had been paid at the death of W. M. note was all right. No jury. Judgment by Mapes,-and none is shown to have been paid the court for $616.74, principal and interest since,-and appellants admit in their answer and attorney's fee, with foreclosure of lien. that a balance of $550 was due thereon, which Findings of fact and law were filed, excepis admitted to be a proper and legal charge tions taken, motion for new trial overruled, upon the land. This being the case, and there and appeal taken and perfected. being no equitable reason why appellee The trial court's findings of fact, as shown should be denied its right of election to re- by the record, are supported by the testicover the land, it follows that the judgment mony, and adopted by this court. In addirendered by the court below is correct, and tion to said findings, there was verbal testitherefore said judgment will be affirmed. mony showing that appellant had executed Affirmed.

a chattel mortgage on all of its abstract books to secure the note sued on.


The court below filed the following conCO. v. BAHN.

clusions of law: "(1) That, there being no (Court of Civil Appeals of Texas. Oct. 31,

consideration for the verbal agreement made 1894.)

by M. E. Fain to give the defendant an exDEFENSE OF USURY ESTOPPEL TO SET UP-AC


said note sued on, the same was not binding. FORECLOSURE.

(2) That defendant having failed to inform 1. Where the maker of a note, in answer the plaintiff of its defense of usury at the to inquiries by an intending purchaser of the time the plaintiff asked its president about note, tells him that it is “all right," and will be paid, and the purchase is made on such rep

the validity and payment of said note, and resentations, the maker is estopped, in an action

having then informed plaintiff that the note by such purchaser, to assert that the note is was 'all right,' and was well secured, and usurious. 2. A verbal extension of the time of pay

would be paid, and plaintiff, in the purchase ment of a promissory note, made without con

of the note, having relied upon this statesideration, is not binding.

ment, the defendant is estopped from plead3. A decree establishing a mortgage on "the

ing said defense of usury in this case." record books, index books, and all the appur

These conclusions are believed to be founded tenances pertaining to the business of" a title company, in accordance with the prayer of the upon sound principles of law, and are adoptcomplaint, is not justified by evidence of a ed by this court as correct. mortgage covering only the company's abstract

Appellee alleged in his petition: "That, conbooks.

temporaneously with the execution and delivAppeal from district court, Travis county;

ery of the note aforesaid, defendant made and James H. Robertson, Judge.

delivered to the said M. Easlee Fain, who Action by G. A. Bahn against the Austin

was then M. Easlee Stanley, a chattel mortReal-Estate & Abstract Company for the col

gage on the record books, index books, and lection of a promissory note. Judgment for

all the appurtenances pertaining to the busiplaintiff, and defendant appeals. Reformed

ness of the defendant, which said mortgage and affirmed.

is also owned by plaintiff, and was given inWalton & Hill, for appellant. 2. T. Ful- cident to, and to secure the payment of, the more, for appellee.

note aforesaid, at maturity." The written

mortgage does not appear to have been ofKEY, J. The nature and result of this suit, fered in evidence, but the following testias stated in appellant's brief, are as follows: mony concerning a mortgage was introduced Appellee sued appellant on a promissory note without objection: William H. Stacy, appelfor $550 and interest, and attorney's fee of lant's president, among other things, said: 10 per cent., and foreclosure of chattel mort. “I drew up the note and chattel mortgage, gage securing same. Appellant defended on and dictated the form of the transaction, exthe ground that the note was usurious, in that clusively myself. * * * I told him [plainthe original payee loaned it $500, and the tiff) that we had borrowed $500 of her [Mrs. $50 was added to the note as interest for Fain), and had given her this note, and to six months; that appellee bought it by tak- secure it she held a mortgage on our abing it on a debt after maturity; that, before stract books." Appellee, G. A. Bahn, testify. appellee bought it, appellant and the holder ing to a conversation between said Stacy, of the note agreed on an extension of time; appellant's president, and bimself, said: "He that, before expiration of the agreed time, told me the note was all right, and was seit tendered the principal and interest to ap- cured by a mortgage on the defendant compellee, who had then placed the note in his pany's abstract books, and would be paid." attorney's bands. The tender was kept up of This is all the evidence disclosed by the rec$500 and interest for period of extension. ord tending to show the existence of a mortAppellee pleaded in replication that appel-gage, and the property covered thereby. The ant was estopped from plea of usury because, judgment follows the petition, and estab

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