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uary, 1876. It was upon a judgment obtained by Todd against the defendant in that suit in one of the district courts of New Orleans in Louisiana. The petition averred that the defendant resided in Louisiana. set out the cause of action, and alleged that the defendant, John C. Barelli, was indebted to plaintiff in the sum of $4,196.37, and concluded as follows: "Petitioner further avers that the said John C. Barelli has property situated in Victoria county, out of which he believes a portion of this debt can be made. Wherefore petitioner sues and prays that the said John C. Barelli be cited by publication to appear and answer hereto at the next term of your honorable court for the county of Victoria, and that, upon final trial, petitioner have judgment for his said debt, with interest, and for all costs of suit; and petitioner further prays that a writ of attachment may issue directing the sheriff of Victoria county to seize so much of the property of the said John C. Barelli as will pay the debt aforesaid," etc. The petition was sworn to by A. H. Phillips, one of the attorneys for the plaintiff, and, with the affidavit of the attorney to the petition, forms the only affidavit made in the case. Following the petition is the affidavit: "I do solemnly swear that the matters set forth in the foregoing petition are true, and that John C. Barelli, the defendant named in the foregoing petition, is justly indebted to Sam'l M. Todd, the plaintiff named in the foregoing petition, in the sum of four thousand one hundred and ninety six & 37/100 dollars, and that the said Barelli is not a resident of Texas." It will appear from an inspection of the affidavit that the attorney of plaintiff did not swear that the attachment was "not sued out for the purpose of injuring the defendant." as required by the statute in force at the time the suit was brought. Pasch. Dig. art. 142. A writ of attachment, fair on its face, was issued and levied on the land. Citation by publication was duly perfected, and no appearance was made by the defendant. No question is made as to the entire regularity of the attachment and other proceedings resulting in judgment and the sale of the land, except as to the affidavit.

As presented by appellants in their brief, the question before the court is: "Did the court-in the case of Todd v. Barelli-get jurisdiction of the property without the statutory affidavit for attachment, the defendant being a nonresident of the state, and not personally served with process, and not appearing to answer in said cause? And was the personal judgment rendered against him, and in which the order of sale issued, and to satisfy which the property was sold, a void judgment?"

We are of the opinion that the judgment in the case of Todd v. Barelli was not void on account of the defect in the affidavit, and consequently not subject to a collateral attack in this action of trespass to try title.

That the defendant is a nonresident is made by the statute one of the grounds for an attachment, and the proceedings in the attachment suit showed that the judgment rendered, if not free from error, was certainly not void, but at most only erroneous, if the question is to be determined by the statute of our state then in force, because the act regulating attachments provided that every original attachment issued without affidavit taken as required should be abated on motion of the defendant. Pasch. Dig. art. 147. This right to abate the attachment on account of defects in the affidavit or bond is restricted by the statute to the defendant in the suit. Goodbar v. Bank, 78 Tex. 461, 14 S. W. 851. That the act was intended to apply as well to cases where the property of a nonresident has been attached, if there could be any question as to that, is made clear by the eighteenth section, which declares "that no judgment shall be rendered in suits by attachment, unless the citation or summons has been served in the ordinary mode, or by publication in the manner provided by law." Pasch. Dig. art. 156. In accordance with the procedure in this state, the attachment of the property of the defendant, and citation to him by publication, conferred jurisdiction upon the court to subject the property to the satisfaction of the plaintiff's demand by sale thereof, and the affidavit was not a jurisdictional fact so as to preclude the court having general jurisdiction of the subject-matter from adjudicating its sufficiency to support a writ, fair on its face, which has been levied upon the property. Is this procedure due process of law, such as is necessary for a state court to take in subjecting the property of a nonresident, situated within the limits of the state, to a demand that may be established by its judgment? There are quite a number of decisions by the state courts which hold that the affidavit is a jurisdictional fact, and that a judgment rendered in an attachment proceeding, defective for the want of an affidavit complying with the provision of the statute, is utterly void, and may be attacked in a collateral proceeding. These decisions are not confined to proceedings in rem, where the property of a nonresident is sought to be subjected to a demand asserted in a state court, but extend to cases of ordinary attachment, when the defendant has appeared and pleaded. But, on the other hand, it is held, with better reason, we think, that the attachment of the property and bringing it into the custody of the law is the fact that gives the court jurisdiction of the property of a nonresident, and that citation to the defendant, as required by our statute, is not necessary, unless otherwise provided by the procedure of the state whose court has caused the property to be attached. The question has been definitely settled in this way by the supreme court of the United States in the case of Cooper v. Reynolds, 10

Wall. 319, and Matthews v. Densmore, 109 U. S. 216, 3 Sup. Ct. 126. We think, also, that the trend of the decisions of our supreme court is to the same effect. Stewart v. Anderson, 70 Tex. 595, 8 S. W. 295; Goodbar v. Bank, supra, and other cases, in which the question of presumption in favor of the judgment of a court having jurisdiction of the subject-matter has been considered.

Because the court rendered a personal judgment against Barelli which was void did not affect the validity of so much of the judgment as adjudged the amount due the plaintiff, and directed the sale of the attached property to satisfy the same. Foote V. Sewall, 81 Tex. 660, 17 S. W. 373. The judg

ment of the court below will be affirmed. Affirmed.

PLEASANTS, J., did not sit in this case.

On Rehearing.

(Dec. 21, 1893.)

The judgment of the court entered in this case on October 12, 1893, having been set aside by the court by its order on October 19, 1893, and the cause having been again submitted to the court for its determination, it is our opinion that the judgment of the court below should be affirmed, for the reasons stated in the opinion filed October 12, 1893, which will be now filed again as the opinion of the court. Affirmed.

TRUBE v. MONTGOMERY. (Court of Civil Appeals of Texas. June 25, 1894.)

LIMITATIONS-EVICTION OF TENANT.

Where a landlord wrongfully evicts a tenant holding under a lease, completely ending the tenant's enjoyment of the leased premises, limitations run against an action for the breach from the date of the eviction.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action by J. C. Trube against J. S. Montgomery, executor. There was judgment for defendant, and plaintiff appeals. Affirmed.

The case is thus correctly stated in appellant's brief: "On November 11, 1893, the appellant, who was plaintiff below, filed his original petition, and on January 20, 1894, his first amended original petition, which latter pleading alleged, substantially, the execution and delivery by Margaret Wright (appellee's decedent), on December 31, 1881, to G. W. Nordholtz (appellant's assignor) of a written lease for lot 7 in block 501, and improvements, in Galveston, Tex., for 10 years from December 31, 1881, in consideration of the aggregate sum of $30,000, to be paid in equal monthly payments of $250; the covenants, on the part of Mrs. Wright and her representatives, that Nordholtz and his assigns, paying said rent and keeping and ob

let,

serving all the covenants and agreements on their part, should peaceably and quietly during the said term hold, possess, and enjoy the demised premises without any hindrance, molestation, disturbance, or interruption by her or by any person or persons whatsoever, and that Nordholtz and those claiming under him should have the right and privilege of subletting the demised premises; the putting, by Mrs. Wright, of Nordholtz, on December 31, 1881, by virtue of said lease, in the possession of the demised premises, and the entry thereupon by Nordholtz, and his becoming possessed thereof; the sale, transfer, and assignment, in writing and for value, by G. W. Nordholtz to appellant, J. C. Trube, on September 16, 1887, of all his rights arising out of said lease and its covenants; the fulfillment and performance by Nordholtz up to September 16, 1887, and thereafter by appellant, of all things by them in said lease to be kept, fulfilled, and performed, and particularly touching the payment of the rent in said lease reserved, according to the true intent and meaning of said lease, and the breach by Mrs. Wright, and, after her death, by appellee, as her executor, of the covenants on their part in said lease, and especially in this: that, although often requested so to do by Nordholtz and by appellant, Mrs. Wright in her lifetime did not, nor did appellee at any time after her death, defend either to Nordholtz or to appellant the title to and the possession and enjoyment of the demised premises, and against the hindrance, molestation, disturbance, and interruption of all persons whatsoever, but, on the contrary, during the term, and about January 1, 1887, notwithstanding Nordholtz had paid the monthly installments of rent theretofore due, and was ready and willing to pay those thereafter falling due (as appellee continued ready and willing after September 16, 1887, and up to December 31, 1891), Mrs. Wright did enter into and upon the possession of said demised premises, and unlawfully and wrongfully did eject, expel, and remove Nordholtz against his will from the possession, occupation, and enjoyment of the demised premises, and that she continually thereafter during her lifetime excluded Nordholtz and appellant, against the will of each, from the possession, occupation, and enjoyment thereof, and after her death, continually up to the expiration of said lease, the defendant so kept and excluded the appellant, against appellant's will and contrary to the form and effect of said lease and of Mrs. Wright's covenants; by reason of all of which Nordholtz and appellant, his assignee, have not only lost entirely and been deprived of the said demised premises and its appurtenances, but have also lost and been deprived for five years during said term, to wit, from January 1, 1887, to December 31, 1891, of the rental value to Nordholtz and his assignee, appel. lant, of said demised premises, which rental

value, over and above the rent to be paid under said lease to Mrs. Wright or her representatives by Nordholtz or his assignee, appellant, during said period from January 1, 1887, to December 31, 1891, amounts to the aggregate sum of $18,000; the death of Mrs. Wright on September 7, 1889, leaving a will which was probated in the county court of Galveston county on November 18, 1889, and appellee James S. Montgomery's, appointment as executor, and his due qualification, and that he, as such executor, is in charge of Margaret Wright's estate, said administration upon said estate being still open and pending in said county court of Galveston county; the failure and refusal of Mrs. Wright and of defendant to keep and observe the covenants of said lease, and appellee's failure and refusal, although often requested, to allow or to pay, in whole or in part, appellant's claim for damages against Mrs. Wright's estate arising out of the breach of said covenants in said lease. Prayer for. process, for judgment against defendant as executor of Mrs. Wright's will, for his said damages, with legal interest, for general and special relief, and for costs." Appellee excepted to the petition on the ground,that the cause of action was barred by the statute of limitations of two and four years. The exception was sustained and the suit dismissed.

Davidson & Minor and McLemore & McLemore, for appellant. S. S. Hanscom, for appellee.

WILLIAMS, J. (after stating the facts). The suit was for damages for breach of a contract in writing, and the four years statute is applicable. Robinson v. Varnell, 16 Tex. 382. But the only question to be decided is, when did the cause of action accrue? Appellant contends that it was not complete and perfect until the expiration of the term, as the extent of the damages resulting from the eviction could not be known until then. If the fact were as supposed, it would not of itself prevent limitation from operating from the date of the alleged eviction. There can be no doubt, according to the allegation, that such an eviction was a distinct invasion of plaintiff's right, inflicting immediate legal injury, for which a suit might at once have been commenced. In Water Works v. Kennedy, 70 Tex. 236, 8 S. W. 36, the rule is thus stated: "If, however, the act of which the injury was the natural sequence was a legal injury, by which is meant an injury giving cause of action by reason of its being an invasion of plaintiff's right, then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damages resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar." See, also, Lyles v. Railroad Co., 73 Tex. 95, 11 S. W. 782. There are cases aris

ing under covenants of title in conveyance of real estate where damages to the premises of which the covenantee is in possession and enjoyment are partial only, and occur at intervals, in which limitation upon actions for the breach is held not to run from the first breach, the covenant running with the land, and the breach being continuous (Wood, Lim. §§ 173, 174, and notes); but, when the right of action is upon an eviction from the whole land, there is a complete and final breach of the entire covenant, and limitation begins at once (Id.). It will be seen that the distinction made between acts which constitute causes of action complete at the time of their commission and those which are not actionable per se, but become so only when resulting damage to another occurs, is substantially observed in the application of the law of limitation to actions for breach of covenants. Here there was a complete eviction from the leased premises, which wholly ended plaintiff's enjoyment of them. His cause of action was perfect when this occurred, and should have been prosecuted within four years from that date. Affirmed.

Dec. 21,

FARRELL v. DUFFY.1 (Court of Civil Appeals of Texas. 1893.) FRAUDULENT CONVEYANCES-RIGHTS OF GRANTOR.

Where a debtor, to defraud his creditors, conveys his land without consideration, and subsequently procures the grantee to convey it to a third person as security for a loan obtained by the debtor, the agreement of the lender to reconvey to the debtor on payment of the sum loaned will not be enforced, since it is against public policy.

Appeal from district court, De Witt county; James C. Wilson, Judge.

Trespass to try title by John Farrell against Owen Duffy. From a judgment for defendant, plaintiff appeals. Reversed.

Proctor & Proctor, for appellant. Baker & Sumners, for appellee.

WILLIAMS, J. Appellant sued appellee in trespass to try title to recover the lot in controversy. Appellee pleaded not guilty, and pleaded specially the facts stated in the conclusions of fact.

Conclusions of Fact.

(1) That appellee, Duffy, prior to October 4, 1883, was the owner of the premises in controversy, and on that day, in order to hinder and defraud parties who were about to sue him for damages for injuries done by him to the furniture in their house, he made a deed conveying it to J. T. Hathaway, who received the deed knowing and participating in the fraudulent purpose with which it was made. There was no consideration for the deed, though it recites a paid consideration of $1,500. (2) Hathaway never asserted any

'Rehearing denied.

claim to the lot against appellee, but held it in accordance with the agreement until about September 16, 1884, when appellee, having previously borrowed from appellant $100, and anticipating that he would want to borrow $150 more, procured Hathaway to make a deed for the lot to appellant, with the verbal understanding that it was to be held as security for such loans, and that Farrell was to pay the taxes on it, and would reconvey to appellee, Duffy, when such debt and taxes should be paid. Farrell, the appellant, knew of the purpose for which the deed had been made to Hathaway, and, at the time the last deed was made, the claim for damages was still being prosecuted against Duffy, and was subsequently reduced to judgment, and in 1891 was compromised by him. (3) We infer and find from the circumstances, though no witness states such to be the case, that the fraudulent intent with which Duffy made the deed to Hathaway still existed, and actuated the parties in the transaction with appellant; and that the absolute deed was made to him for the purpose of still covering up the property from the parties asserting the claim against Duffy, and in order to enable Duffy to get the benefit of it, as well as to secure Hathaway. (4) No further loan was made by Hathaway to Duffy after the deed was executed, the latter not needing it. (5) On January 21, 1892, Duffy tendered to appellant, Farrell, the amount of principal and interest due on the loan and taxes paid by Farrell, and on March 1, 1892, Duffy took actual possession of the lot.

Conclusions of Law.

1. That the parties asserting the claim against Duffy were creditors in the sense of the statute of frauds, and that the two deeds were therefore made in fraud of creditors.

2. That by the deed to Hathaway the title passed out of Duffy, and by the deed from Hathaway to Farrell such title passed to the latter.

3. That the defendant, Duffy, cannot set up his fraud to avoid either deed. While Hathaway could recognize his moral obligation to Duffy, and could restore the title to him, and while a bona fide conveyance of it to Farrell in trust for Duffy, accompanied by an agreement on Farrell's part to convey to Duffy, might invest Duffy with the right to possession and to a conveyance from Farrell, this effect cannot be attached to the transaction in question. That agreement is tainted with the same fraud that characterized the conveyance to Hathaway. To permit Duffy to show his own fraud, and avail himself of such an agreement, would put it in his power to reap the benefit of his device to defraud his creditors, and open up an easy way to debtors to put their property beyond the reach of creditors, and at the same time enjoy it themselves. The right of redemption intended to be reserved to Duffy was subject to the claims of his creditors, and that he con

veyed, at the same time attempting to secure to himself the beneficial enjoyment of the property. It is the policy of the law and the duty of courts to discourage such transactions, instead of encouraging by enforcing them. The deeds are sufficient in themselves to entitle Farrell to recover, and they cannot, in our opinion, be defeated by proof of the fraudulent scheme by which Duffy attempted to retain the equitable title in himself. There are authorities in other states under which, as between the parties, Farrell's agreement to reconvey would be enforced. See note by Mr. Freeman to Whitworth v. Thomas [Ala.; 3 South. 781], 3 Am. St. Rep. 728 et seq. But we do not understand our courts to have laid down such a doctrine. They have treated such agreements, where they require the aid of courts to enforce them, as against public policy and void, and have enforced conveyances of parties absolute on their face. The equitable title and right of possession in Duffy which would ordinarily result from such a transaction, where there is no fraud, cannot arise out of this, because the agreement of Farrell is vitiated by fraud; while, in order to visit upon the party perpetrating the fraud on his creditors the consequences of his own act, the law looks to the character of the deed he has executed, and enforces the title which on its face it purports to convey. Hoeser v. Kraeka, 29 Tex. 450; Eastham v. Roundtree, 56 Tex. 110. The judgment for defendant was therefore erroneous, and will be reversed, and judgment here rendered for appellant for the property. Reversed and remanded.

JENKINS et al. v. ADCOCK et al.1 (Court of Civil Appeals of Texas. Nov. 23, 1893.)

DEED-WHAT CONSTITUTES CONSIDERATION.

1. A deed to take effect on the grantor's death, conveying her entire interest in land which she expected to be devised to her by her mother's will, followed by a clause of general warranty, is not a mere quitclaim deed of the interest that the grantor had in the land when it was executed, but will pass to the grantee the title acquired by the grantor on her mother's death through her will.

2. A deed conveying land expected to be devised to the grantor, but reserving a life estate in the latter's favor, executed pursuant to a request by testatrix so as to effectuate her intention of devising to the grantor only a life estate in the land, with remainder to the grantee in the deed, without changing her will, is not void for want of consideration.

3. An instrument reciting a grant, bargain, and sale of land, as well as a consideration therefor, and containing the usual habendum and tenendum clauses, and also a general warranty of title, and reserving to the grantor no power of disposition or revocation, is a deed, and not a will, though it provides that it is not to take effect until after the grantor's death. Appeal from district court, Jefferson county; W. H. Ford, Judge.

Action by Elizabeth J. Jenkins and others against Nancy R. Adcock and others to can1 Rehearing den d.

cel or reform a deed. From a judgment for defendants, plaintiffs appeal. Affirmed.

Appellant Elizabeth Jenkins, joined by her husband, brought this suit to cancel or reform an instrument which was in form of a deed conveying plaintiff's interest in a tract of 200 acres of land to her sister, Mrs. Adcock, the appellee, but which was alleged in the petition to have been intended to operate simply as a will, and to devise to appellee such interest in the land as plaintiff might have remaining undisposed of at her death. The petition charged that, by mutual mistake of herself and her sister, as well as of the draughtsman of the paper, it was made to assume the form of a quitclaim deed, conveying the land absolutely, but to take effect at her death, when the intention of all the parties was that it should be a will, leaving in plaintiff the power of revocation, and of control and disposition of the land during her life, and bequeathing to her sister only such portion as should remain undisposed of at plaintiff's death. It was also charged that the defendant procured the instrument by fraud, misrepresentation, and undue influence; that the instrument was without consideration, was never delivered, and was not intended to be recorded, but that defendant had obtained possession of and recorded it, and was asserting title under it. A further allegation was made that the instrument was not intended to embrace the 200 acres, but only a tract of 5 acres of same, which already belonged to the parties jointly. The defendants pleaded general denial. The court below rendered judgment for defendants, which is brought in review in this appeal. The instrument in question is as follows: "The State of Texas, County of Jefferson. Know all men by these presents, that I, Elizabeth Jane Hays, a feme sole, of the state of Texas and county of Jefferson, for and in consideration of the sum of fifty dollars to me paid by Nancy R. Adcock, have granted, sold, and conveyed (to take effect at my death), and by these presents do grant, bargain, and sell, to the said Nancy R. Adcock, of said county and state, my entire interest in and to two hundred acres of land of the Hezekiah Williams survey, situated in Jefferson county, state of Texas, on the west bank of Neches river, including the homestead and ferry of our mother, Ellen R. Collier, and being the same land bequeathed to us, the said E. J. Hays and N. R. Adcock, by our said mother in her last will and testament, and which said land and ferry is now held and occupied by our said mother until her death, when the said E. J. Hays is to hold and occupy the same until her death; and, at my death, my entire interest in said land and premises is by these presents conveyed to my said sister, Nancy R. Adcock, to have and hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, into the said Nancy R. Adcock, her heirs and

assigns, for ever; and I do hereby bind myself, my heirs, executors, and administrators, to warran, and forever defend all and singular the said premises unto the said Nancy R. Adcock, her heirs and assigns, against every person whomsoever lawfully claiming or to claim the same, or any part thereof. Witness my hand, this the 22nd day of June, A. D.

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1889. Elizabeth Jane X Hays. Witness: J. E.

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Charpiot. W. L. Rigsby." The evidence showed the following facts: Mrs. Ellen Collier, the mother of both plaintiff and defendant, owned, as her homestead, a tract of 200 acres of land, besides other property. She had on the 31st day of March, 1879, conveyed to the plaintiff and defendant five acres out of the tract, to be held by them jointly during the life of the plaintiff, at whose death the whole was to vest in the defendant Mrs. Adcock and her heirs. She also, at some time

in 1879, made her will, by which she devised to plaintiff and defendant jointly the land in controversy, other property being also deOn the 224 vised to them and other heirs.

of June, 1889, when the instrument in question was executed, Mrs. Collier sent for her attorney, and had him examine her will to see that all of the children were included, and that the property was properly disposed of. Finding that the will was as she desired it to be, she stated that she did not wish her homestead (the land in dispute) to be divided. but wanted it, with the five acres previously conveyed to plaintiff and defendant, kept together, and, at plaintiff's death, wanted it all to belong to Mrs. Adcock. She requested the attorney to so arrange that this object should be attained, and proposed that plaintiff make her will bequeathing her interest in the property to Mrs. Adcock. The attorney suggest

ed that a will could be changed, and that the desired end could best be secured by a deed from plaintiff to her sister. To this the plaintiff, the defendant, and Mrs. Collier assented, and it was agreed that the consideration for the deed sho'd be a debt of $50 which plaintiff owed defendant, and which was thus satisfied. The deed was then prepared by the attorney, and signed by plaintiff (who was then a widow, 54 years old. without children), and was delivered to the defendant. There were no misrepresentations, fraud, or undue influence employed by any of the parties, and the instrument as prepared is in accordance with the agreement. Mrs. Collier died in November, 1890, since which time the parties have jointly received the income derived from the ferry upon the five-acre tract, amounting to $25 or $30 per month. The plaintiff testified to some facts tending to prove her allegations that the effect of the instrument was different from what she intended it to be, and stated that she could not read, and did not re member whether or not the paper was read to her. The defendant and the attorney wes

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