ing died in 1861. By the terms of the contract, Bowen was to take possession of the Easton survey of land, make improvements thereon, and hold possession under the owner thereof for a period of 10 years, in consideration of which he was to have 200 acres thereof, which 200 acres includes the land in controversy. His possession began in 1853; and, though he died in 1861 (before the contract was entirely performed on his part), his surviving wife and their children remained in possession for a much longer period than required by the contract. Under this state of facts, appellees contend, by cross assignment of error, that the title to the land acquired under said contract was in Mrs. Bowen; in other words, that it was her separate property, and not community property, and that the children of William Bowen inherited no interest therein from their father. With this contention we do not agree. Under the facts stated, we think the land was community property, and that the children of William Bowen inherited a half interest therein from their deceased father. William Bowen left his wife, Susan Ann Bowen, and six children, surviving him, namely, Milton Bowen, William P. Bowen, Elliot Bowen, Daniel C. Bowen, Sarah Ann Bowen, and an unnamed babe, that died shortly after the death of William Bowen. The testimony warrants the conclusion that Daniel C. Bowen is dead; that he was never married, and had no children. Milton Bowen married and died, leaving a surviving wife, who is the plaintiff Sallie Ann Blackwell, and two surviving children, R. L. and W. D. Bowen. Appellant, Marlin, offered in evidence a general warranty deed to himself, dated July 2, 1890, and executed by J. R. Ellis and wife, S. A. Ellis (formerly Sarah Ann Bowen), and Susan Ann Bowen, acting for herself and as agent for William P. Bowen, conveying the land in controversy; also a power of attorney from William P. Bowen to Susan Ann Bowen, dated November 22, 1892, authorizing her to sell all the lands belonging to said William P. Bowen in Falls county, Tex.; also a deed of ratification executed by said William P. Bowen, dated January 19, 1891, ratifying the deed made in his behalf by Mrs. Susan Ann Bowen, July 2, 1890. Marlin also introduced in evidence a general warranty deed from W. D. Bowen and R. L. Bowen to himself, dated October 7, 1890, conveying an undivided one-fifth interest in the land in controversy. Appellees, who were defendants in the court below, claim the land under a bond for title made to John Kosmyroski, dated October 30, 1582, and executed by Elliot Bowen, for himself and as agent for Mrs. Susan Ann Bowen, Mrs. S. A. Ellis, and William P. Bowen, and as guardian of W. D. and R. L. Bowen. No order of the probate court or other authority was produced authorizing Elliot Bowen to sell the land as such guardian; and the plaintiffs denied that he had authority from Mrs.

Susan Ann Bowen, Mrs. Ellis, and William P. Bowen to sell their interests. Whether or not such authority existed was submitted as a special issue to the jury, and the finding was that Elliot Bowen had such authority from Mrs. Susan Ann Bowen and William P. Bowen. The jury also found that the value of the land without improvements was $1,800; the value of the use and occupation of the land, $800; the value of the improvements made by Kosmyroski, $600. Upon this verdict the court rendered judgment for the plaintiff Marlin for an undivided interest of nine-eightieths in the land, and for the plaintiff Mrs. Blackwell a life estate in an undivided three-eightieths thereof. Marlin alone has appealed. It appears from the briefs of the parties, and the amount to which Marlin's recovery was limited so indicates, that the court below held that the deed from R. L. and W. D. Bowen was void, and passed no title whatever to the plaintiff Marlin, because of the minority of the said R. L. and W. D. Bowen. It was agreed between the parties at the time of the trial (in January, 1893) that said W. D. and R. L. Bowen were minors, being at that time about 16 and 18 years of age. At the time of the execution of the deed (October 7, 1890) they were nearly 14 and 16 years of age. Said W. D. and R. L. Bowen are not parties to this cause.

According to the weight of authority, and especially the more recent decisions, contracts made by minors, and not founded upon an illegal consideration, are not absolutely void, but only voidable at the instance of the minor. At an early day in this state, this doctrine was applied to a deed executed by a minor (Cummings v. Powell, 8 Tex. 84), and it has been repeatedly applied since then (Stuart v. Baker, 17 Tex. 418; Bingham v. Barley, 55 Tex. 285; Ferguson v. Railway Co., 73 Tex. 346, 11 S. W. 347; Askey v. Williams, 74 Tex. 294, 11 S. W. 1101). In fact, counsel for appellees admits that, as between the parties to the deed, it would be only voidable, and not void, but contends that such a deed will not authorize the vendee to maintain an action for the land during the minority of the grantor. No authority is cited to sustain this proposition, and it is not believed that any exists. If, as against the minor himself, the deed is only voidable, -that is to say, binding until repudiated by him, then, as against a third person, it ought to be regarded as valid. The assignment of error which complains of this ruling must be sustained.

Passing on other questions presented by appellant, we hold that the rule that a tenant in common may recover an entire tract of land only has application as between such tenant and a stranger to the title. It does not apply to the facts of this case.

The court committed no error in excluding the will of James Marlin, deceased, because said will was not embraced in the ab

stract of title filed by appellant in response to the demand made by appellees. The matter is regulated by a statute which, when notice to file such abstract has been given, declares that "the documentary evidence of title shall at the trial be confined to the matters contained in the abstract of titles." Rev. St. art. 4799.

Concerning the alleged authority of Elliot Bowen to sell the land, the court instructed the jury that it was immaterial whether such authority was in writing or verbal. Appellant assigns this charge as error. The instrument under which the defendants claimed was not a deed, but a bond for title. It has been held in this state that written authority is not necessary to enable an agent to bind his principal in an executory contract for the sale of land. Huffman v. Cartwright, 44 Tex. 296. The instruction complained of is supported by the case cited.

We agree with appellant, Marlin, that, in making partition and adjusting equities, he will be entitled to his proportional share of the improvements placed on the land before Kosmyroski acquired any interest in it. For the reasons above given, the judgment I will be reversed, and the cause remanded. Reversed and remanded.

SMITH et al. v. BATES.1

(Court of Civil Appeals of Texas. Oct. 17, 1894.) CONTINUANCE--COUNTERCLAIM-SUMMONING JURY -COMPETENCY-CONVERSION-DAMAGES.

1. Where an application for continuance complies with the statute, the diligence being sufficient, it is error to overrule it.

2. In an action for conversion, damages arising from another tort cannot be set up as a counterclaim, even where plaintiff is insolvent.

3. Rev. St. arts. 3091, 3093, 3094, provide for the selection of juries by commissioners; and the summoning of the venire by order of court is sufficient ground for reversal.

4. Where appellant had not exhausted his peremptory challenges, it is no ground for reversal that the court erroneously held certain jurymen competent.

5. The measure of damages in conversion is the market value at the time of conversion, with interest from that time.

Appeal from Zavalla county court; George C. Herman, Judge.

Action by B. A. Bates against W. O. and A. G. Smith for conversion. Judgment for plaintiff. Defendants appeal. Reversed.

W. N. Parks, for appellants. and T. G. Baker, for appellee

I. L. Martin

FLY, J. This suit was instituted to recover of appellants $350, for cattle alleged to have been taken and converted by them, and for $450, damages generally. Appellants answered by general denial, and by plea setting up a conversion of their property by appellee. Exceptions to this special plea were urged by appellee, and sustained by the court.

1 For rehearing opinion, see 28 S. W. 61.

The question of the legality of the citation being one which cannot arise on the next trial, it becomes unnecessary to discuss it. The number of the case could have been amended by the court.

Appellants' application for a continuance being in compliance with the statute, and the diligence being sufficient, it was error in the court to overrule it.

The third assignment of error is not well taken. The whole amount claimed, value of the cattle and damages, was $800; and the county court had jurisdiction. This is shown by the prayer in the petition in which judgment is asked for $350, the value of the cattle, and in the sum of $450, for damages.

It was not error to sustain the exceptions to that portion of the answer of appellants which endeavored to offset the claim of appellee for damages by a plea that appellee had converted cattle belonging to appellants to his use. The unlawful seizure and conversion of appellants' cattle did not arise out of, and was not incident to or connected with, the plaintiff's cause of action; and the plea of insolvency of appellee we do not believe will justify this court in sustaining the pleading of one tort in offset to another. It may 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 pleading an uncertain amount of damages arising from a tort in offset to another uncertain amount of damages arising from another tort. This question has been fully discussed by Judge O. M. Roberts in the case of Duncan v. Magette, 25 Tex. 245. After reviewing a number of cases, the learned judge says: "If debts and torts could be set off against each other, and torts against torts, it would lead to strange results. The strong would collect their own debts off the weak, by taking their property into possession, retaining it until converting it otherwise, and, when sued for the trespass, adjust the matter by setting up their debts. Assault and battery might be met by a set-off for the slander that had provoked it. So libel against libel might be set off. Such a state of things it was doubtless the object of the restriction in the statute to avoid. The insolvency of one of the parties could not justify, obviate, or diminish the evil." We do not believe that it was ever contemplated by our lawmakers that one tort could be pleaded as an offset to another. It would, in effect, be substituting the lex talionis for the rules of right and law, and would tend to encourage retaliatory acts for wrongs committed. This question is discussed in Hart v. Davis, 21 Tex. 411; and it is there held that in actions for damages for a tort the defendant cannot plead in set-off damages resulting from a tort committed by the plaintiff. It is also held in the same opinion that, while it has been held that equity will extend the remedy beyond the limits of the statute, still it never has been held, as is believed, to extend to a case of tort like

the present. This position is sustained by other authority. Wat. Set-Off, § 36; Barhyte v. Hughes, 33 Barb. 320.

Appellants had the right, under the statute, to have their case submitted to a jury chosen by duly-appointed jury commissioners. Daniel v. Bridges, 73 Tex. 149, 11 S. W. 121; Rev. St. arts. 3091, 3093, 3094. The law providing for the selection of juries by commissioners; was passed for the purpose of preventing and avoiding the well-known evils resulting from the summoning of juries by sheriffs. Railway Co. v. Greenlee, 70 Tex. 553, 8 S. W. 129. The summoning of the venire by order of the court was without warrant of law, and it was error to compel appellants to try their case before a jury chosen from such a venire. The court should have sustained the challenges made by appellants on account of four jurors stating that they had formed such an opinion as would influence their action in finding a verdict. The cousin of appellee was related to him within the third degree, and the challenge should have been sustained as to him. It does not appear, however, that appellants exhausted their peremptory challenges, and the action of the court in holding the jurymen competent would not be ground for reversal. Railway Co. v. Terrell, 69 Tex. 651, 7 S. W. 670.

There is no assumption of the existence of any fact in the first paragraph of the charge, and the assignment attacking it is not well taken.

The measure of damages in cases of conversion of personal property is the market value at the time of conversion, with legal interest thereon from the date of the conversion.

It becomes unnecessary to discuss the other assignments of error further than to call attention to the rule that no controverted fact should be assumed by the court in its charge, and due care should be taken not to charge upon the weight of the testimony, or in any manner invade the province of the jury. The verdict of the jury was for $150 more than claimed or proved, and they also found for 10 per cent. interest from date of the conversion. There was a remittitur entered for the excess, but the fact that such a verdict was returned is the strongest argument that could be offered in favor of guarantying to appellants their legal rights in the choice of a jury to try their cause. The judgment will be reversed, and the cause remanded.

HOUSTON & T. C. RY. CO. v. GUISAR. (No. 1,164.)

(Court of Civil Appeals of Texas. Oct. 31, 1894.)

BRIEF ON APPEAL-ASSIGNMENTS OF ERROR.

Under the rules requiring that assignments of error shall be copied in briefs, such assignments, unless they relate to the same matter and present the same question, must be separately presented, each with its appropriate propositions and statements.

Appeal from district court, Travis county; James H. Robertson, Judge.

Appeal by the Houston & Texas Central Railway Company against Bidala Guisar. Appellee moves to strike out appellant's brief. Motion granted.

O. T. Holt, for appellant. Wheless & Harris, for appellee.

FISHER, C. J. A motion is made in this case to strike out the brief of appellant, and dismiss the appeal, because the appellant, in presenting its case in its brief, has grouped all of its assignments of error. The brief of appellant contains about 50 pages of printed matter, and in it are presented 12 assignments of error, grouped near the beginning of the brief and each in the main contains and presents distinct questions, and do not relate to the same matter. The rules require that the assignments of error shall be copied in the brief of appellant, and we think that they also contemplate that the assignments of error shall be separately stated in the brief, and not all grouped, unless they relate to the same matter, or are so connected with each other that practically they present the same question. The primary object of these rules is to lessen the labor of this court, and to require that the questions at issue shall be so plainly stated in the brief of the parties as to clearly present the questions without obscurity, so as to save the court the labor of looking to the record, except in a case where it may be necessary or proper to do so. It was never contemplated under the present rules that the court should look into the record to ascertain the nature of the assignments; and, when the assignments are presented as they are in the brief in this case, the court would probably gain time and save labor by looking to the record, because it would be about as inconvenient to look back from a proposition at the end of a brief to the beginning to find the assignment to which it belongs. Assignments relating to the same question may be grouped, but those relating to different questions or matters should be separately presented, and each accompanied with appropriate propositions and statements. This has been expressly held by the supreme court in the case of Railway Co. v. 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 cause within 60 days from this date. It is also ordered that appellee may have 30 days after the appellant's brief is filed in which to file a reply. We desire to say that in the future briefs in all cases not presented in accord with the views here expressed will be stricken from the record, upon order of the court, although no motion is made to that effect.

HOOD et al. v. PEOPLE'S BLDG. & SAV. ASS'N.

(Court of Civil Appeals of Texas. Oct. 31, 1894.)

VENDOR AND PURCHASER

· DEFAULT IN PAYMENT -RECOVERY OF LAND.

1. On default in the payment of installments of the price of land, the rental value of which while in possession of the grantee was equal to the value of his improvements, added to the amount paid on the price, the vendor may elect to recover the land or sue for the amount unpaid.

2. In an action to recover land for the nonpayment of the price, in which defendants admitted that more than one-half the price was unpaid, and was a legal charge on the land, a judgment for recovery of the land will not be reversed because the interest provided in the contract of sale was usurious.

Appeal from district court, McLennan county; L. W. Goodrich, Judge.

Action by the People's Building & Savings Association against Nancy G. Hood, guardian, and Willie Mapes, minor, to rescind a contract for the sale of land, and to recover the land. Judgment for plaintiff, and defendants appeal. Affirmed.

Scarborough & Rogers, for appellants. Jones, Kendall & Sleeper, for appellee.

KEY, J. Appellee brought this suit against Willie Mapes in person and against Nancy G. Hood, her guardian, alleging, in substance, that on the 26th day of November, 1889, appellee sold to W. M. Mapes, now deceased, and father of said Willie, a certain lot in Waco; that said Mapes executed a vendor's lien note for the purchase money of said lot in the sum of $1,012.50, payable in monthly installments of $16.871⁄2 per month, etc.; that because of the failure to pay installments past due the entire debt had matured; and asserting the right to rescind the sale and sue for and recover the land. Appellants' answer contained general and special demurrers, pleas to the court's jurisdiction, and a plea of usury. The case was tried before the court without a jury, and judgment rendered for appellee for the premises, and the deed from appellee to W. M. Mapes was canceled.

Conclusions of Fact.

The judgment recites the existence of the following facts, which recitals are supported by the testimony: "And the court, having heard the evidence, and being fully advised, is of the opinion that the law and the facts are with the plaintiff; ard it appearing to the court that on the 26th day of November, 1889, the plaintiff, the People's Building & Savings Association, sold and conveyed by deed of that date to W. M. Mapes, now deceased, the land hereinafter described, and that on said date said Mapes paid to plaintiff the sum of $125 cash, and executed his note for $1,012.50 to plaintiff, payable in sixty equal monthly installments of $16.87% each, as purchase money for said property hereinafter described, and that, at the same time the deed and note were executed as aforesaid, W. M. Mapes executed to plaintiff a deed of trust upon the land conveyed by said deed, to secure the payment of said note; and it appearing further to the court that said Mapes and the defendants have made default in the payment of said note, and failed to perform the contract for the purchase of said land, as provided in the contract of sale aforesaid; and it further appearing to the court that the value of the use and occupation of said land described in said deed is equal to the amount of purchase money paid therefor in cash, and on said note and the improvements thereon." In addition to the facts found by the court as shown by the judgment, the testimony shows that there was no administration on the estate of W. M. Mapes.

Conclusions of Law.

1. In so far as appellee sought to recover the land, unquestionably the district court had jurisdiction; and, as the judgment is only for the land, it is not necessary to decide whether or not it had jurisdiction to render judgment on the note.

2. The purchase money for the land not having been paid when due, appellee could elect to reclaim the land or pursue its remedy for the remainder of the purchase money. unless it would be inequitable to allow such right of election. The testimony shows that the rental value of the land during the time the defendants and W. M. Mapes had possession of it up to the time of trial was largely in excess of the value of the improvements made thereon by them, and about equal to the amount of purchase money paid, with the value of the improvements added thereto. Appellants did not offer to pay for the land, and it was not shown that they had the ability to do so. On this state of facts we do not think it was inequitable to allow a rescission of the sale and a recovery of the premises. McPherson v. Johnson, 69 Tex. 484, 6 S. W. 798; Lanier v. Foust, 81 Tex. 186, 16 S. W. 994.

3. Conceding that the purchase-money obligation was usurious, yet it does not follow

that the judgment must be reversed. The evidence shows that only $260 of the purchase money had been paid at the death of W. M. Mapes, and none is shown to have been paid since, and appellants admit in their answer that a balance of $550 was due thereon, which is admitted to be a proper and legal charge upon the land. This being the case, and there being no equitable reason why appellee should be denied its right of election to recover the land, it follows that the judgment rendered by the court below is correct, and therefore said judgment will be affirmed. Affirmed.

AUSTIN REAL-ESTATE & ABSTRACT CO. v. BAHN.

(Court of Civil Appeals of Texas. Oct. 31, 1894.)

DEFENSE OF USURY- ESTOPPEL to Set Up-ACTION ON NOTE-EXTENSION OF NOTE LACK OF CONSIDERATION -EFFECT - CHATTEL Mortgage FORECLOSURE.

1. Where the maker of a note, in answer to inquiries by an intending purchaser of the note, tells him that it is "all right," and will be paid, and the purchase is made on such representations, the maker is estopped, in an action by such purchaser, to assert that the note is usurious.

2. A verbal extension of the time of payment of a promissory note, made without consideration, is not binding.

3. A decree establishing a mortgage on "the record books, index books, and all the appurtenances pertaining to the business of" a title company, in accordance with the prayer of the complaint, is not justified by evidence of a mortgage covering only the company's abstract books.

Appeal from district court, Travis county; James H. Robertson, Judge.

Action by G. A. Bahn against the Austin Real-Estate & Abstract Company for the collection of a promissory note. Judgment for plaintiff, and defendant appeals. Reformed and affirmed.

Walton & Hill, for appellant. Z. T. Fulmore, for appellee.

KEY, J. The nature and result of this suit, as stated in appellant's brief, are as follows: Appellee sued appellant on a promissory note for $550 and interest, and attorney's fee of 10 per cent., and foreclosure of chattel mortgage securing same. Appellant defended on the ground that the note was usurious, in that the original payee loaned it $500, and the $50 was added to the note as interest for six months; that appellee bought it by taking it on a debt after maturity; that, before appellee bought it, appellant and the holder of the note agreed on an extension of time; that, before expiration of the agreed time, it tendered the principal and interest to appellee, who had then placed the note in his attorney's hands. The tender was kept up of $500 and interest for period of extension. Appellee pleaded in replication that appelant was estopped from plea of usury because,

before purchasing, he had inquired of the president of defendant, and was told the note was all right. No jury. Judgment by the court for $616.74, principal and interest and attorney's fee, with foreclosure of lien. Findings of fact and law were filed, exceptions taken, motion for new trial overruled, and appeal taken and perfected.

The trial court's findings of fact, as shown by the record, are supported by the testimony, and adopted by this court. In addition to said findings, there was verbal testimony showing that appellant had executed a chattel mortgage on all of its abstract books to secure the note sued on.

Conclusions of Law.

The court below filed the following conclusions of law: "(1) That, there being no consideration for the verbal agreement made by M. E. Fain to give the defendant an extension of one week in the payment of the said note sued on, the same was not binding. (2) That defendant having failed to inform the plaintiff of its defense of usury at the time the plaintiff asked its president about the validity and payment of said note, and having then informed plaintiff that the note was all right,' and was well secured, and would be paid, and plaintiff, in the purchase of the note, having relied upon this statement, the defendant is estopped from pleading said defense of usury in this case." These conclusions are believed to be founded upon sound principles of law, and are adopted by this court as correct.

Appellee alleged in his petition: "That, contemporaneously with the execution and delivery of the note aforesaid, defendant made and delivered to the said M. Easlee Fain, who was then M. Easlee Stanley, a chattel mortgage on the record books, index books, and all the appurtenances pertaining to the business of the defendant, which said mortgage is also owned by plaintiff, and was given incident to, and to secure the payment of, the note aforesaid, at maturity." The written mortgage does not appear to have been offered in evidence, but the following testimony concerning a mortgage was introduced without objection: William H. Stacy, appellant's president, among other things, said: "I drew up the note and chattel mortgage, and dictated the form of the transaction, exclusively myself. * I told him [plain

tiff] that we had borrowed $500 of her [Mrs. Fain], and had given her this note, and to secure it she held a mortgage on our abstract books." Appellee, G. A. Bahn, testifying to a conversation between said Stacy, appellant's president, and himself, said: “He told me the note was all right, and was secured by a mortgage on the defendant company's abstract books, and would be paid." This is all the evidence disclosed by the record tending to show the existence of a mortgage, and the property covered thereby. The judgment follows the petition, and estab