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defense. He simply answered to the court's HURT, P.J. Theft of a yearling alleged to question that he did not have counsel.

be the property of W. E. Whitehead. A bide 2. That he was deprived of the right to upon which was the brand of Whitehead was have witnesses in his behalf. To prove found in the possession of Francisco Garza. what fact? Not stated. We gather from Garza states that the animal from which this the motion that perhaps witnesses might be hide was taken was killed, and the carcass obtained to support the plea (so called) of delivered to him by appellant. If this be so, insanity. This, however, is not stated defi. appellant is evidently guilty, under the facts nitely. But, be this as it may, appellant of this case. Appellant denies that he ever seems to have been perfectly sane when he had anything to do with such an animal, and took the horse; and he certainly exhibited hence the issue, and the only important issue, no symptoms of insanity when on the stand in the case, was, did appellant kill and deas a witness. There was no error in refus. liver to Garza a yearling bearing the brand ing a new trial.

of Whitehead? Garza and another witness There was a motion in arrest because the swear that he did. A bill of sale was deliverindictment does not allege that the horse ed to Garza at the time he received the aniwas corporeal personal property,—the word mal; but this bill does not contain Whitehead's "corporal” is used instead of "corporeal.” brand, but does contain the brand of Ben Now, a horse is not real or mixed property,

Bendele. Appellant admits that he did kill nor is it incorporeal property. It is evi

and deliver to Garza a yearling, but says he dently corporeal property. The indictment was authorized to do so by its owner, Ben need not allege that it is corporeal property,

Bendele. In this he was supported by the tesfor this court and all courts know that a timony of Val Tilly. Ben Bendele denies horse is corporeal personal property. The such authority. George Deaton, who was motion in arrest was properly overruled.

constable at the time of the supposed theft, The judgment is affirmed.

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 SHACKELFORD V. STATE.

says Deaton) “that the hide he (Garza) had

shown Stein, Whitehead, and Bendele was (Court of Criminal Appeals of Texas. June 16, 1894.)

not the hide that came off the animal that


examination, the state attempted, but failed, DENCE.

to prove by this witness that the defendant 1. On the cross-examination of one of de had acknowledged to him that he had killed fendant's witnesses, he was asked, without ref

the Whitehead beef; whereupon the state erence to anything in his direct examination, if defendant had not confessed the crime to him,

proposed to prove that Deaton had told Benwhich the witness denied. Held, that the state dele that defendant had told him that he could not show that the witness had stated killed the animal in question, and that he that defendant confessed to him, as the state, by attempting to prove the confession, had

(Bendele) got a part of the beef, and that, if made the witness her own.

he would let up on this prosecution, he (de2. Where evidence admissible only to im- fendant) would tell him where two of his peach defendant's witness is admitted, the

horses were that had been stolen. Deaton de. court should instruct that such evidence can be considered only for that purpose.

nied making any such statement to Bendele. 3. In a prosecution for the theft of a beef, Bendele was recalled by the state, and, over G., in whose possession a hide was found, with objection of defendant, swore that Deaton the prosecutor's brand on it, testified that he

had made this statement to him. This was bought the beef from defendant, showing a bill of sale to him. The bill contained B.'s

palpable error. When the state attempted to brand. Defendant testified that he sold a beef prove by Deaton that appellant had made to G., but that it had B.'s brand on it. D. stat.

this statement to him, she made Deaton her ed that G. had told him that the hide having on it the prosecutor's brand came off of a beef

witness; for appellant in the examination in other than the one sold him by defendant. The chief had elicited nothing whatever from him court instructed that defendant had introduced in regard to this matter. Being the state's evidence to prove that the beef alleged to have

witness, she can impeach, except by general been stolen was the property of B., instead of the prosecutor's. Held, that such instruction

reputation,-when? When the witness testiwas erroneous, as making a false issue, since fies to a fact injurious to her. Now, Deaton, defendant claimed that he had nothing to do when he denied that he had made the statewith the beef off of which the hide in G.'s possession came.

ment to Bendele, swore to no fact injurious

to the state, nor did he swear to a fact which Appeal from district court, Val Verde coun

was injurious to the state in stating that apty; Walter Gillis, Judge.

pellant had not confessed to him that he had R. M. Shackelford was convicted of steal

killed the Whitehead yearling. The state at. ing a steer, and appeals. Reversed.

tempted to prove a fact by this witness, but H. C. Carter and Joseph Jones, for appel- failed. This was a failure to make certain lant. R. L. Henry, Asst. Atty. Gen., for the proof, and in doing so the witness swore to State.

no fact injurious to the state. Now, if some

at Ben dele, and not the property of

witness had sworn that appellant bad confessed to Deaton that he had killed White

CROUCH V. JOHNSON." head's yearling, and Deaton had denied that

(Court of Civil Appeals of Texas. May 23, be had, then he could have been impeached

1894.) in the manner proposed. But this was not

SALE OF LAND – RESCISSION BY VENDOR - Eva the case. Having admitted this impeaching DEXCE_TITLE FROM STATE-CONTINUANCE. testimony, the court should have instructed 1. In an action by a vendor to rescind an the jury for what purpose they could use it. executory contract of sale of school land for A deliberate confession of the fact upon

which he had not yet obtained a patent, on the

ground that defendant had defaulted on the which guilt depended,-a fact which, if true, note given for the purchase money, evidence placed beyond doubt the guilt of the accused, of plaintiff, received without objection, that his. -was admitted in evidence, for the purpose

vendor purchased the land from the state, and

paid part of the purchase money before he sold of impeaching Deaton. It was imperative

to defendant, and that he had since paid the upon the court to instruct the jury in the balance to the state, was sufficient to show such written charge that this matter could only

facts. be used for the purpose of impeaching Dea

2. Error in admitting a letter to plaintiff

from the state treasurer, without proof of the ton.

latter's signature, acknowledging receipt of final In the fifth paragraph of the charge, the payment due the state for the land and patent jury were instructed as follows: "The de- fee, and stating that "patent will reach you in fendant has introduced evidence for the pur

due course," is harmless if such final payment

is proved by other uncontradicted testimony, pose of showing that the one head of cattle and there is no evidence of any material de alleged to have been stolen was the property fect in plaintiff's title.

3. The mere refusal of the land commis

sioner to issue a patent to plaintiff would not Whitehead, as alleged in the indictment."

show that plaintiff did not have title to the Appellant introduced evidence for no such land. purpose. He never denied that the White- 4. It was not error to refuse to permit debead yearling bad been stolen. He never at

fendant to show, by cross-examination of plain

tiff, that the parties had an oral contemporane tempted to prove that the bide found in the

ous agreement about the land being unpatented, possession of Garza did not come off of an an- and that they understood the terms "warranty imal which belonged to Whitehead. His con

deed in common form,” used in the bond, meant tention was that he never had any connection

that defendant was to have a perfect fee-simple

title from plaintiff before accepting a deed, in with said hide, or the animal from which it the absence of any ambiguity in the language was taken. It is true that he adduced evi- of the bond. dence to the effect that he had delivered a

5. Where one defense set up is insufficient

because oral evidence necessary to support it yearling to Garza; that he killed the yearling

would be contradictory of a written contract, for Garza himself, and delivered the meat and the other defense sets up facts within deto him, and that this was done for Bendele,

fendant's knowledge, but he offers no testimony and by his permission. This was a very im

on the trial, though present, the refusal of a

continuance is not injurious to him. portant fact to be proved, in order to make relevant and give force to the fact that Garza

Appeal from district court, Atascosa counhad stated that he had not shown the hide

ty; M. F. Lowe, Judge. which came from the animal received from

Action by Alberry Johnson against M. E. appellant to Stein, Whitehead, and Bendele.

Crouch to rescind an executory contract of Garza did not pretend to know that the year

sale of land, and to recover possession, or ling belonged to Bendele. He says he did not

to foreclose a bond for a deed in case plainknow the owner, but believed that appellant

tiff is not entitled to rescission. From a had the right to deliver it to him, as the prop

judgment rescinding the sale, defendant aperty of Bendele. But when the hide was ex

peals. Affirmed. amined, after it had been dried, it was dis- John W. Preston and Hudson & Smith, covered that it belonged to Whitehead. There for appellant. D. C. Marr and Jay Minter, was an examination made by Stein, White- for appellee. head, and Bendele. Then it was that Garza stated that he had gotten the meat and hide JAMES, C. J. We find the conclusions of from appellant. Appellant denied that he fact prepared by the trial judge to be susbad obtained the meat or hide from him, but tained by the testimony, and the objections conceded that he had delivered meat and a to these conclusions will be considered in hide to Garza, but that the hide delivered by our conclusions of law. The conclusions of him was never seen by Stein, Whitehead, or fact will be adopted by this court as follows: Bendele. He does not question but that Gar- That on the 1st day of January, 1886, the za stole the animal from which the hide plaintiff and defendant entered into a conshown to Stein, Whitehead, and Bendele was tract of sale and purchase of 160 acres of taken. The statement of appellant's theory land, as alleged in plaintiff's original petiof the case was wrong. It made a false is- tion. The plaintiff gave the defendant a sue,-an issue upon the trial of which appel. bond for title, and the defendant gave the lant was sure to be defeated, and consequent plaintiff the promissory note for the purchase ly convicted. The judgment is reversed, and the cause remanded.

* Rehearing denied

money, dated January 1, 1886, as set out in and when the defendant had refused to pay said petition. Plaintiff bound himself by his the purchase money, the plaintiff offered to bond to convey the 160 acres to the defend- deliver back the notes, and demanded posant within three years thereafter, by a war- session of the land, which defendant refused. ranty deed duly acknowledged in usual form, I find that the defendant repudiated the conprovided defendant should first pay plaintiff tract. the purchase money, as specified in the bond

Conclusions of Law. and note. I find that the smaller note described in plaintiff's original petition was The appellant questions the said conclugiven by the defendant to the plaintiff in sions by his assignments 6 and 7: (1) The settlement of the first installment of interest | finding that Dignowity had contracted with upon the other note,-that is, for the interest the state for the purchase of section 1606, for the year 1886,--and I find that when the and had made part payment thereon, for the contract was made and the first note exe- reason that there is not a particle of testicuted it was understood by the parties that mony in the record of such facts outside of the interest should be paid by the defendant the recitals in the deed from Dignowity to at the end of each year, but that this provi- | plaintiff, Johnson. (2) The finding that there sion was omitted from the note by mutual was no defect in the plaintiff's title to the mistake. That, at the date of the contracts, land except that he had not yet obtained a the plaintiff had no patent to the land, and patent to the land, and in finding as a fact the defendant knew this fact when he entered that plaintiff was entitled to a patent. We into said contract for the purchase of the think the conclusions of the judge were warland, which is a part of state school section ranted. The plaintiff in bis testimony stated No. 1606. That J. V. Dignowity had con- that his vendor Dignowity had purchased tracted with the state for the purchase of the section 1606 from the state, and paid this section, and made part payment (as re- part of the purchase money before he sold, cited in his deed to the plaintiff), and that and that the witness had since paid the balthe plaintiff purchased said section from said ance to the state. The original evidence of Dignowity, paying him four hundred dollars the purchase would have been the contract therefor, and that the plaintiff has paid the of purchase, but secondary evidence is suffistate all of the balance of the purchase cient when no objection is made. The testimoney, and made the last payment to the mony of plaintiff was sufficient to show the state treasurer on October 9, 1889. That the fact of purchase. We see no testimony in defendant has been in the possession of the the record to show a different state of facts 160 acres he purchased from plaintiff ever from wbat the conclusions state as to any since January, 1886, and that the rent of defect in plaintiff's title other than that same is worth one hundred dollars per an- patent had not issued. num, and that the defendant has made im- The first assignment of error is to the reprovements upon the land, but their charac- fusal of a continuance. It appears that the ter or value was not proved at all. I find application, although stating the acts of dil. that at the maturity of the first note and igence, failed to add that due diligence had bond the plaintiff offered to make the defend- been used. Railway Co. v. Wooluin, 84 ant a warranty deed in usual form, according Tex. 573, 19 S. W. 782. It seems, however, to the terms of the bond, if the defendant that, before the application was acted upon, would pay the purchase money then due, defendant offered to make this addition to his but this the defendant refused to do, stating affidavit. Independently of these questions, that he would never pay any part of the we believe the court did not err in refusing purchase money until plaintiff should obtain the continuance, for the reason that defenda patent. That the defendant has never ant does not appear to have suffered by its paid either of the two notes given for the denial. An inspection of the answer shows purchase money, or any part thereof, nor has that defendant admitted the contract of sale he ever tendered the money with any inten- as it was alleged by plaintiff, viz. that he tion of paying it to the plaintiff. I find that had executed the note .sued on for the land, there is no proof of any defect in plaintiff's and had taken from plaintiff a lond for title to the land (except that he has not yet title, conditioned that plaintiff would exeobtained a patent), and that, so far as the cute and deliver to defendant a warranty evidence shows, the plaintiff is entitled to a deed to the land, upon defendant's paying patent to the entire section. That there is to plaintiff the amount of said promisno proof of any other title in the defendant sory note and interest. The defenses were: except under the plaintiff, nor of any valid (1) That at the time of the contract the land outstanding title in any other person, to the was not patented, and plaintiff agreed to land in controversy. That there was no perfect his title by obtaining a patent from fraud or misrepresentation upon the part of the state, which had not been done. This plaintiff in making the contract with the de- constituted no defense, for the reason that fendant for the sale of the land, but that evidence to support the same was not ad. both parties knew the true state of the title. missible to vary the terms of the written That at the maturity of the notes and bond, contract of sale. (2) That plaintiff wrongfully and fraudulently put defendant in pos- until the state issued you a patent?" The session of another and different 160 acres of ruling was correct, because there was no unland, owned by others, and on which defend certainty or ambiguity in the language of the ant in good faith had made valuable improve- bond, and parol testimony of a different conments, believing it to have been the land tract at the time than that expressed therein he bought, and specified the improvements, was not allowable. The proof which was exalleging their value at $2,100, and prayed pected to be made (as shown by the bill of for this sum in reconvention if plaintiff did exceptions) was that the term “warranty not comply with his contract, and procure deed in common form," used in the bond, for him title to the land. On the trial the meant that defendant was to have a perfect defendant was present, and offered no tes-fee-simple title from plaintiff before he was to timony. He could not have expected the accept any deed from plaintiff. If there was absent witnesses to testify to what did not such an agreement, and its omission from relate to his said defenses, and their testi- the writing was due to fraud and mistake or mony concerning the first of said defenses accident, pleadings properly setting up this would not have been allowed. As to the equitable ground for relief would have ausecond, as well as the first, of said defenses, thorized the evidence. As it was, the evithe facts may reasonably be taken to have dence would not have been admissible. Soell been within the knowledge of the defendant, v. Hadden, 85 Tex. 187, 19 S. W. 1087; Bigand he refrained from giving any testimony. ham v. Bigham, 57 Tex. 243. Under these circumstances, it would appear The evidence in this case shows an executhat there was no injury to him in overruling tory contract of sale of land whereby plainthe continuance.

tiff obligated himself to convey to defendant The second assigiment complains of the certain land by warranty deed in common admission of a letter purporting to have been form upon payment of the note with interest. written by the state treasurer, F. R. Lub- No payment of purchase money had been bock, to plaintiff. The letter was an ac- made. The note given for purchase money knowledgment of the receipt for the final had matured. The vendor had, at the maturipayment of purchase money due the state for ty of the note, offered to make defendant a the land and patent fee, and stating that warranty deed according to the bond, and "patent will reach you in due course." This defendant refused to accept such a deed, and was no error that would reverse the judg- declared he would never pay a cent for the ment, although the letter should not have land until he got a patent to it. The plaintiff been admitted without proof of the treasur- not being in default under these circumer's signature. The final payment of the land stances, he was in a situation to enforce a was otherwise proved by uncontradicted tes- rescission of the contract and recover the timony, and the final clause of the letter land. Moore v. Giesecke, 76 Tex. 543, 13 S. did not probably affect the decision, as the W. 290. This was the principal relief sought case was tried by the judge. The admission by the petition, plaintiff asking, in the event of erroneous evidence will not ordinarily that he was not entitled to a rescission, that cause a reversal, in cases tried without a he be decreed a foreclosure for the purchase jury, if there is other testimony in the case money. In the case of an executed contract sufficient to support the judgment. Smith v. of sale, as, for instance, when a warranty Lee, 82 Tex. 130, 17 S. W. 598. There was deed is made, it is held that the vendee canno evidence of any material defect in the not resist payment of purchase mono on the plaintiff's title to the land in question.

ground of a defect in the title, if he knew of The fourth assignment of error discloses such defect at the time he purchased. In that the following question was propounded such case he must ordinarily await eviction. to plaintiff: “Did the commissioner of the Rawle, Cov. § 320; Ogburn v. Whitlow, 80 general land office refuse to issue you a

Tex. 241, 15 S. W. 807. It is not necessary patent from the state of Texas to the land in to decide whether or not such rule will apply controversy?” The bill of exceptions does not in this case of executory contract, because the state what was expected to be proved by the evidence does not disclose a defect in the title answer to the question. But, assuming that of the vendor. That a patent had not been the answer would have been in the affirma- | issued for the land, or even a refusal of the tive, it would not have evidenced a want of commissioner to issue it, would not be tangititle in the plaintiff. The mere refusal of the ble evidence of a want of title. The supreme commissioner to issue a patent would not jus- court say in Moore v. Giesecke: "When the tify a court in finding that the applicant did vendor's suit is predicated upon the mere renot have title.

fusal of the vendee to pay the whole considThe court did not err in not permitting eration contracted for, the facts that the venplaintiff to be asked the question: "Did you dee has paid part of the consideration and and Mr. Crouch, at the time the bond for title made valuable improvements, coupled with was executed, have any conversation and possession of the property, unaided by some agreement in reference to the land being un- other sufficient equity, will not entitle him to patented, and did not you and he understand recover for such purchase money or improvea warranty deed from you to him to mean ments. In such case, when the vendor has that you could not give him a warranty deed neither waived his legal rights nor commit


ted any default, he cannot be involuntarily Wells Thompson, as trustee in a certain deed taxed with improvements made upon his of trust executed to him by one Harry S. property without his consent, or be made to Levy, conveying certain merchandise to secure pay a price for recovering it back.” This an indebtedness in favor of said Stafford & clear statement of the rule furnishes the Co., as recited in the deed of trust. Three of means of determining the rights of the parties the notes mentioned in the deed of trust were before us upon the facts. Here the plaintiff drawn by the said Levy in his own favor, and was not in default. The defendant was in were by him indorsed in blank. These notes default. The defendant had paid nothing on were the property of Ehrenwerth, and were the land. It was shown he had made some received by Stafford & Co., and included in improvements, but what they were, the deed of trust to be collected for his use; whether they were valuable or not, is not but Thompson had no knowledge of the indisclosed. From the time the purchase terest of Ehrenwerth. Plaintiffs sue as the money was due, he refused to perform unless assignors of Ehrenwerth of the notes above plaintiff did what his contract did not require mentioned, and of his interest in the fund. him to do. The delay of plaintiff in filing the

They took the transfer, however, after the suit does not appear to have operated in any

maturity of the notes and the collection and way to defendant's injury. We can see noth- deposit of the fund by Thompson, and subject ing in the evidence that can be construed a to any defenses in favor of the defendants waiver of the right to rescind, or any super

against the said Ehrenwerth. This is not devening equity in favor of the defendant, and

nied by the plaintiffs. Thompson answered we conclude that this remedy was clearly

the petition of plaintiffs, that it was true, as available. The judgment is affirmed.

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 STAFFORD et al. v. BLUM et al.

was directed to do so by said instrument. (Court of Civil Appeals of Texas. May 31, He showed the manner of sale, amount of re1894.)

ceipts, etc., and that R. E. Stafford & Co. had APPEAL BOND-VENUE-JURISDICTION-PARTIES in their hands $12,763.59, the proceeds of CHATTEL MORTGAGE-CORPORATION.

said property, out of which he asked to be al1. Where a suit is dismissed as to one defendant, and judgment rendered against the

lowed his commissions. Defendants R. E. other three defendants, only two of whom ap

Stafford & Co. answered to the said Septempeal, it is proper to make the appeal bond pay. ber term of court, 1891, and admitted that able, not only to the plaintiffs, but also to the they had in their hands the said sum of $12,two defendants who do not appeal. 2. Where the venue of an action is changed

763.59 deposited with them by the said on the application of one of several defendants, Thompson as trustee, etc.; but they averred a subsequent dismissal of the action as to him that the same belonged to them, and that does not deprive the court of jurisdiction.

plaintiffs had no right to any portion thereof, 3. Where, in an action by the assignee of notes against one who has collected them, an

nor any interest therein. They averred the answer is filed setting up offsets as against execution of the deed of trust by Harry S. plaintiff's assigaor, such assignor is a proper Levy to Wells Thompson, and set out the inparty to the action.

debtedness of Levy which it was to secure, 4. The mortgagee of chattels belonging to a corporation placed them in the hands of the -their own as well as that of Ehrenwerth, secretary of the corporation to dispose of at They alleged that, at the time the said deed private sale for the benefit of the mortgagee. of trust was executed, the said Ehrenwerth Hell, that the secretary was liable to the mort. gagee for the proceeds of such sale, though the

was also indebted to them, as evidenced by corporation was then indebted to him for salary. his two promissory notes, (1) dated Septem

ber 29, 1889, due January 1, 1890, for $1,272.Appeal from district court, Fayette county;

91, with 12 per cent. interest, and (2) dated H. Teichmueller, Judge. Action by Leon Blum and H. Blum against

March 2, 1889, due July 1, 1889, for $786, Sarah E. Stafford, J. E. Sandmeyer, and

with 12 per cent. interest; both of said

notes stipulating for 10 per cent. attorney Wells Thompson. Plaintiffs obtained judg

fees if collected by law; that the notes in. ment. Defendants appeal. Reversed.

cluded in said deed of trust belonging to Phelps & Willrich and Foard, Thompson & Ehrenwerth were transferred to defendants Townsend, for appellants. M. Kennon and as collateral security for their said notes Brown, Lane & Jackson, for appellees.

against Ehrenwerth, and with the further

understanding that the claims of defendants GARRETT, C. J. Leon & H. Blum brought against Levy were to be first paid out of the this suit to the September term of 1891 of the proceeds of said property so conveyed in district court of Colorado county against Sa- trust to Thompson; that the said goods did rah E. Stafford and E. J. Sandmeyer, com- not sell for enough at retail to pay the inposing the firm of R. E. Stafford & Co., and debtedness mentioned in the deed of trust, Wells Thompson, to recover of them the in- and the trustee, acting under the provisions terest of one H. M. Ehrenwerth in a fund de- of said trust deed, sold the remainder of the posited with said Stafford & Co. by the said stock in bulk at public auction, and defenn.

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