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to convey, not simply the "right, title, and interest or claim" of the grantor, to the tract of land, but her entire interest in the tract. This we understand to mean the quantity of her interest; that is, the undivided half. The language of the instrument is not such as is appropriate to quitclaim deeds. There is nothing in it but the fact that she conveys all her "interest" in the land that bears any resemblance to that kind of a deed, and this is explained by the fact that she expected only to get a half interest in the tract. The clause of general warranty removes all doubt as to the character of the conveyance. Besides, by the very terms of the instrument, the thing conveyed is the land the grantor expects to receive through her mother's will. It is plain that the intention was not to convey such title as Mrs. Jenkins then had to the land, but all she expected ever to get through the will. A conveyance of such an expectancy is valid, and, in equity, the right of the grantee attaches to an interest which vests, on the death of the ancestor or testator, in the heir or devisee. Tied. Real Prop. § 800, and authorities cited. Especially is this the case where the deed contains a general warranty under which the after-acquired title of the heirs or devisee may pass by estoppel. Id. §§ 727, 728. That the paper expressed the intention of the parties is a conclusion amply supported by the evidence, and there was no error in the holding of the court below that such was the fact. There was sufficient proof of a consideration for the conveyance. The circumstances under which it was made were sufficient to uphold it if no money consideration were shown. But there was proof of such a consideration, Whether or not it was adequate, we have only the agreement of the parties to guide us. At the time of the transaction it might have been a very difficult matter to determine what was the value of such interest in the land as plaintiff expected to receive under her mother's will. It was evidently Mrs. Collier's purpose that plaintiff should have

only a life estate in the portion of the homestead devised to her. While her then exist ent will did not so provide, it was in her power to make another to effectuate her purpose. No one objected to her doing so, and it is plain that this instrument was executed in order to render such action on her part unnecessary. The interest released to Mrs. Adcock by the plaintiff was not then vested, and would never have vested had the arrangement not been made. It cannot therefore be said, we think, that there was not a sufficient consideration to support the deed.

The next contention of appellants is that the instrument should have been construed and declared by the court to be a will, and not a conveyance of the property. We cannot assent to this proposition. The instrument was to become effectual to pass title only after the death of the grantor. This is the only feature in it which is proper to a will, and that may characterize a deed as well as a will. The language is all such as is usually employed in deeds, and not such as is appropriate to testamentary documents. The land is granted, bargained, and sold. A consideration is recited. There are the usual habendum and tenendum clauses, and a clause of general warranty of title. There is no reservation of the right to dispose of the property, nor of a power of revocation. On its face, the deed creates and conveys to the grantee an estate in remainder after the determination of the life estate reserved to the grantor. The evidence, aside from the paper itself, shows that this method of settling the matter in question was adopted in preference to a will for very reason that a will could be changed or revoked, while a deed could not. The court did not err in holding the instrument to be what was intended, and that it was not a will, but a conveyance, or at least a contract for the conveyance of the interest to be obtained by Mrs. Jenkins under her mother's will, and in rendering judgment for defendants. Affirmed.

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Dec. 7,

ADLER et al. v. KIBER.1 (Court of Civil Appeals of Texas. 1893.) MEASURE OF DAMAGES-BREACH OF CONTRACT OF SALE.

Where a buyer rescinds before delivery, and refuses to accept the goods when tendered, the seller is entitled to recover the difference between the contract price and the value of the goods at the time and place of delivery.

Appeal from Washington county court; E. P. Curry, Judge.

Action by A. Adler & Co. against F. Kiber for breach of contract. Judgment for defendant. Plaintiffs appeal. Reversed.

Offa L. Eddins and Wm. P. Ewing, for appellants. Searcy & Garrett, for appellee.

WILLIAMS, J. The parties made a contract by which the appellants agreed to sell Rehearing denied.

and deliver to the appellee at Brenham, at a day subsequent, 100 barrels of sugar of a specified quality and at a stipulated price. No right was reserved by either party to countermand or recede from the agreement. Appellee on same day undertook to countermand his order for the sugar by so notifying the agent of appellants through whom the contract was made, and on the next day he wired a countermand to appellants at New Orleans. Both the agent and appellants declined to rescind or to recognize appellee's right to countermand; and, at the time fixed for delivery, appellants tendered to appellee, at Brenham, sugar such as the contract provided for, and, upon appellee's refusal to receive it, sold it and sued for damages, claiming the difference between the contract price and the sum realized at the sale.

At the trial the court charged the jury that the measure of damages was the difference between the contract price and the market value of the sugar at the time of the countermand; and, as there had been no change in market value before the countermand, the jury found for the defendant. This charge was erroneous. The defendant had not the right to countermand the order, and thereby break the contract. The agreement was clear and unambiguous, and, when the minds of the parties met, both were bound by their agreement. The plaintiffs could not be deprived of the benefits to be derived from the contract by the act of the defendant. The contract was executory, no specific property being appropriated to it, and, therefore, no title ever passed; and, upon a breach by the defendant, plaintiffs' remedy was simply an action for damages. The measure of their recovery was compensation for their loss resulting from the refusal of the defendant to perform. Such loss was plainly the difference between the market value of the sugar at Brenham at the time of delivery and the price fixed by the contract. Plaintiffs by the contract were allowed until the appointed time to perform their agreement, and were entitled to such benefit as could be derived from a decline in the market. They had the right to purchase sugar with which to comply with the agreement at any time before delivery. The measure of damages in cases of this character has often been stated and recognized to be the difference between the market value at time and place of delivery and the contract price. Ullman v. Babcock, 63 Tex. 68; Tumley v. Weiss, 1 White & W. Civ. Cas. Ct. App. 1280; Heilbroner v. Douglass, 45 Tex. 406, 407. There are some exceptional cases to which this measure cannot be justly applied without losing sight of the fundamental principle of compensation, or of the important rule requiring good faith and prudent dealings on the part of the plaintiff after he has received knowledge of the breach; and such are the cases of Tufts v. Lawrence, 77 Tex. 526, 14 S. W. 165, and Sonka v. Chatham, 2 Tex. Civ. App. 312, 21 S.

W. 948, cited by appellee. There is no reason why the ordinary rule should not apply to this case, as it affords exact compensation to plaintiffs, and hold defendant to the re sults of his contract. The judgment is re versed, and the cause remanded.

CAPLEN et al. v. COMPTON et al.' (Court of Civil Appeals of Texas. Dec. 7, 1893.)

JUDGMENT-COLLATERAL ATTACK-ESCHEAT.

Rev. St. art. 1773, relating to escheat, which requires a citation to issue for all persons interested in the estate to appear and answer the petition, is not complied with by issuing a citation for "the unknown heirs" of the owner, since there could have been no escheat if he left either heirs or devisees; and hence, the court having acquired no jurisdiction, its judgment declaring the escheat is subject to collateral attack, and evidence is admissible to show that the owner was alive when the judgment was rendered.

Appeal from district court, Harris county: James Masterson, Judge.

Action by John P. Compton and others against J. A. Caplen and others to quiet title to certain land. From a judgment for plaintiffs, defendants appeal. Affirmed.

Austin & Rose, for appellants. blen, for appellees.

E. P. Ham

PLEASANTS, J. This appeal presents for our decision the validity or invalidity of a judgment of escheat pronounced by the district court of Harris county on the 11th of January, 1890, in proceedings instituted by the county attorney of Harris county for the purpose of escheating land as property of the estate of one Philo C. Merwin. The appellee Compton filed his suit against appellants on the 20th of August, 1892, setting out the proceedings in escheat, and charging that they were null and void, and averring. that the said Merwin was still living, and that he had since the rendition of said judgment purchased the land from him, and that the appellant Caplen had procured the said county attorney to institute and prosecute to final judgment said proceedings in escheat for the fraudulent purpose of acquiring title to the land, and that, at the sale made by the sheriff under said judgment, he purchased said land through one Nicholson, and afterwards received a deed from Nicholson for the land; and he prayed that said Caplen and said Nicholson be cited to answer his petition, and that the said judgment of escheat be declared null and void, and that he have his writ of possession, and that he be quieted in his title. The appellee W. P. Hamblen intervened in the suit, and asserted title to one-half interest in said land, by purchase from the plaintiff, and adopted the pleadings of the plaintiff. The appellant Caplen denied the allegations of fraud, 'Rehearing denied.

and he also excepted to the petition, on the ground that it sought, by collateral attack, to avoid the judgment of escheat. Upon trial of the cause, judgment was rendered for appellees for the land, and the defendants appealed.

It is insisted by the appellants that the judgment of escheat is not void, and that, therefore, the appellees cannot attack it collaterally. If the judgment be not void, the proposition that it cannot be attacked collaterally is correct, and the judgment rendered by the court a qua, for appellees, must be reversed. It is often difficult to draw the line of demarkation between what is void and what is voidable only. If a judgment is voidable simply, it is conclusive against all whose rights it may affect, until it is either reversed by appeal, or until it is vacated and held for naught by a decree of a court of competent jurisdiction, rendered on proceedings instituted directly for that purpose. But, when a judgment is void, it is a nullity, and may be so treated by any court in any suit or other judicial proceeding. In numerous decisions of the highest and most distinguished courts it is held that the judgment of a court of general jurisdiction cannot be held to be void unless the record shows that the court was without power to render the judgment. This may be said to be the rule, but the courts of this state recognize at least one exception to this rule. A Judgment ordering administration upon the estate of a dead man is a nullity, although the proceedings in the court are regular, and there is nothing upon the record showing or suggesting that the owner of the property upon which administration is granted is living. The legislature has provided a method for escheating property, and that method must not be departed from in any essential particular. Such departure will render null and void the judgment. Among other things prescribed by the statute1 is that a citation shall be issued for all persons interested in the estate to appear and answer the petition praying for the escheat. case the record discloses that the citation issued was for "the unknown heirs of Philo C. Merwin." This, it is urged by counsel for appellants, in their learned brief, was a substantial compliance with the statute. But was it? We are of the opinion that it was not. There could have been no escheat of the property had Merwin been dead if he left surviving either heirs or devisees. "His unknown heirs" were not, therefore, the only persons who might be interested in the estate, and all such persons, by the method provided by the legislature, must first be cited to appear and answer before the court could acquire jurisdiction of the estate. Vide

Rev. St. art. 1773.

In this

Hanna v. State, 84 Tex. 665, 19 S. W. 1008. This court is unanimously agreed that the omission in the citation is a fatal defect, and that, by reason thereof, the judgment of escheat pronounced by the district court of Harris county on the 11th of January, 1890, vesting the title to the land in question in the state, and ordering it to be sold by the sheriff of said county, is null and void, and that there was no error in permitting the plaintiff and intervener to offer evidence showing that Philo C. Merwin was living when the judgment was rendered, and that they had purchased from him since that date.

one

Speaking for myself, there can be no escheat so long as the owner of the land be alive, whether he be known to be living or not, and no length of absence from the country will empower any court, by its decree, to divest the title of a citizen of this state to land, and vest it in the state. "Escheat" has a well-defined meaning. When seised in fee of land dies without heir or devisee, the title reverts to, and vests in, the state. The decree declaring the escheat does not vest it. Upon the death of the owner, without heir or devisee, the law vests the title in the state; the fee is never in abeyance. The effect of the decree of the court is to judicially determine and declare that the property has escheated, and to direct the disposition of it in accordance with the provisions of the statute. The whole proceeding in escheat, from alpha to omega, assumes, just as the probate court does in granting letters of administration or letters testamentary, that the last person seised of the fee is dead; and in each case, if the person whose property is the subject of judicial inquiry be not in fact dead, the judgment of the court, which rests upon the assumption of his death, is a nullity. A citizen may, by his negligence, permit another, by operation of the statute of limitations or by tax sale, to acquire title to his land; but I know of no authority in the legislature or the courts of this state to deprive one of his title to property, because of his absence from his home or from his country. The constitution (article 13, § 1) does not authorize the legislature to create an escheat; it simply directs it to provide a method for ascertaining whether or not there has been in any case an escheat. No man can be deprived of his property except by due course of law. Bill of Rights, § 19. That Philo C. Merwin was alive when the decree of January 11, 1890, declared his land to have escheated, is beyond cavil, and that both plaintiff and defendants claim title from him, we think, is established by the evidence; and the judgment of the lower court, decreeing the title to the land in controversy to be in the plaintiff and the intervener, is in all things affirmed.

STARR et al. v. KENNEDY et al.1 Court of Civil Appeals of Texas. Sept. 13, 1893.)

TRESPASS TO TRY TITLE-CLAIMANTS UNDER COMMON TITLE.

In trespass to try title, where defendant in possession claims under two titles, and plaintiff shows a title superior to only one of them, the rule that, when both parties claim title from a common source, plaintiff need only exhibit the superior title therefrom to entitle him to recover, does not apply.

Appeal from district court, Tarrant county; R. E. Beckham, Judge.

Action of trespass to try title by James F. Starr and others against O.'S. Kennedy and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Wynne & McCart and Stedman & Thompson, for appellants. Hunter, Stewart & Dunklin, for appellees.

HEAD, J. Appellants, as plaintiffs in the court below, on December 15, 1887, instituted this suit in trespass to try title to recover of appellees the land in controversy, being 960 acres of the Charles Fleisner headright, charging them with having been in possession since January 1, 1886. On the trial it was developed by the evidence introduced by the plaintiffs that the defendants claimed under two chains of title,-the first originating in a deed made by T. J., E. P., and J. A. Belcher to James S. Davis, August 31, 1883, who conveyed to defendant Kennedy, March 25, 1887, who conveyed an interest to his codefendant, Burgess, February 28, 1887; and the second consisting of a deed from the heirs of Timothy Pillsbury to defendants Kennedy and Burgess, dated June 28, 1887. The plaintiffs also claimed under Timothy Pillsbury, exhibiting a chain of title, alleged to be superior to that of defendants, from the same source. Neither party undertook to deraign title from the state. The record does not disclose under which title the defendants entered into possession, but on the trial they disclaimed holding under Pillsbury. The court below concluded that the evidence failed to show that defendants claimed exclusively under a common source with plaintiffs, and entered judgment in their favor, from which this appeal is prosecuted.

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parties has the right to assert as many different, and even conflicting, titles as he may be able to produce. The question, then, presented in this case is, should the rule above announced apply to a case where a defendant in possession claims under two titles, and the plaintiff shows a title superior to only one of them? and we feel constrained to hold that it does not. We believe that the one in possession of the land should be allowed to remain until some other person exhibits a better title than he has; and, where he has sev eral titles, the one seeking to oust him does not make a prima facie case until he shows a title superior to any one of these. To hold otherwise would enable a plaintiff, where the defendant has sought to buy his peace by securing conflicting claims, to select the weakest one of these, and, by showing a superior title from a common source in this chain, throw upon the defendant the burden of tracing his other title, and the one upon which he mainly relies, back to the sovereign. We do not hold that a case might not be presented in which the evidence would show the real title under which the defendant was asserting his claims and had acquired his possession, although he might also pretend to have other rights for the purpose of avoiding the common source, and that in such case the plaintiff would not be entitled to judgment upon showing a right superior to the defendant's real claim; but we do hold that where the evidence, as in this case, shows two paper titles in the defendant, and there is nothing in the record to show that he does not equally rely upon both, the plaintiff is not entitled to evict him simply by showing a superior title from a common source in one of them. We believe these conclusions fairly sustained by the decision of our supreme court in Howard v. Masterson, 77 Tex. 41, 13 S. W. 635. This leads to an affirmance of the judgment appealed from, and it will, therefore, be unnecessary for us to consider the merits of the respective titles of the parties in the chain emanating from Pillsbury as a common source. Appellees' claim under the Belchers seems to have been the oldest one asserted by them, and it may be the principal one relied upon, and appellants have shown no right superior to this. The judgment of the court below will be in all things affirmed. Affirmed.

JACKSON et al. v. WALDSTEIN et al. (Court of Civil Appeals of Texas. June 13, 1894.)

SALE OF LAND-BONA FIDE PURCHASERS-EVI

DENCE.

1. Where persons claim under equitable titles, the burden is on the one claiming under the later title to show the facts constituting it a superior one.

2. A land certificate being personal property, the general rule is that a purchaser ao quires no better title thereto than his vendor had.

3. A purchaser of a land certificate who takes it for an antecedent debt is not a bona fide purchaser.

4. The fact that a purchaser of a land certificate had no "actual knowledge" of a prior equitable title does not make him a bona fide purchaser, as he may have had notice of facts sufficient to put him upon inquiry.

5. A vendor's only title to the land sold rested upon the fact that the land was located under a duplicate certificate, the original of which once belonged to him. At the time of the sale, he told his vendee that he did not know whether he had sold the certificate or not, as he had owned and sold a great many. The consideration for the sale was inadequate. Held, that the vendee was not a bona fide purchaser.

6. C. and T. entered into an agreement to purchase whatever title B. had to land in Texas, to prosecute all litigation necessary to perfect the title, and, after selling the same, to reimburse T. the money furnished by him to pay B., and divide the remainder. Before the undertaking was completed, H. bought T.'s interest in the enterprise, and agreed to furnish the money necessary for its completion. Held, that what knowledge C. had concerning the defects in B.'s title to the lands purchased, which would be imputed to T., was to be imputed to H. also. Appeal from district court, Travis county; J. H. Robertson, Judge.

Action by J. L. Hume against J. H. Jackson and others, and L. Waldstein and others intervene. There was a judgment for interveners, and Jackson and others appeal. Affirmed.

The

J. L. Hume brought this suit against J. H. Jackson and others to recover 640 acres of land, situated in Roberts county, and patented to the Buffalo, Bayou, Brazos & Colorado River Railroad Company. The heirs of J. J. Waldstein intervened, and made themselves parties plaintiff, claiming the land as against all other parties. A trial was had before the court, without a jury, and judgment rendered for the interveners. We do not think the findings that appellants Jackson and Hume had no notice when their rights accrued are sustained by the evidence. statement of facts shows that, when they bought, they had no knowledge of the Waldstein title; but, as we understand the law, a want of knowledge does not necessarily signify a want of notice. Nor does the evidence sustain the findings that the transfers named in the second and third findings contained covenants of warranty. With these modifiIcations, the conclusions of fact filed by the trial court are sustained by the evidence, and, as thus modified, this court adopts said conclusions of fact.

Hewlett & Von Rosenberg, A. J. Gibson, and Fred Carleton, for appellants. R. C. Walker, for appellees.

KEY, J. (after stating the facts). 1. The land in question was patented to the Buffalo, Bayou, Brazos & Colorado River Railroad Company, whose rights are now held by the defendant the Galveston, Harrisburg & San Antonio Railway Company, which company has filed a disclaimer, and asserts no right to the land. The real litigants, the plaintiff,

Hume, the defendants Jackson, Crane, and Frost, and the interveners, the heirs of J. J. Waldstein, rest their claims upon equitable titles. The interveners' title is the oldest, and therefore the burden was upon the other claimants to show all the facts essential to constitute a superior equitable title.

2. Appellant Jackson contends that he should have recovered the land (1) because his vendor, W. F. Cummings, was an innocent purchaser of the duplicate certificate under which the land was patented; (2) because he (Jackson) was an innocent purchaser from Cummings; and (3) because, his vendor, Cummings, having procured the duplicate certificate, and caused its location be fore it was barred, and he having taken the land from Cummings in satisfaction of debt now barred, it would be inequitable to allow the owner of the original certificate to recover the land. A land certificate is personal property, and the general rule is that a purchaser of such property acquires no better title than his vendor had (Dodge v. Litter, 73 Tex. 319, 11 S. W. 331); but, without resting our decision on this ground, it must be held that Cummings was not an innocent purchaser. He testified that he could not remember whether he paid money for the certificate, or received it as compensation for services previously rendered. If the latter was the consideration,-and the burden rested upon Jackson to show that Cummings paid a consideration,-he was not such an innocent purchaser as equity protects. Watkins v. Edwards, 23 Tex. 447; Steffian v. Bank, 69 Tex. 513, 6 S. W. 823. And for the same reason, if no other, Jackson was not an innocent purchaser for value. He bought the land from Cummings in payment of an antecedent debt. But there is another reason why Jackson cannot claim protection, either under the general rule as to innocent purchasers, or because of a superior equity, resulting from the facts that his vendor, Cummings, procured the grant from the gov ernment before the certificate was barred, and that Jackson's debt, in payment of which he purchased the land, is barred. To have entitled him to such protection, it was necessary for him to show that his right to the land was acquired without notice of the Waldstein title. The only evidence in the statement of facts tending to show a want of notice on Jackson's part is the following: "It was agreed that Jackson, at the time he bought from Cummings, had no actual knowledge of the Waldstein title." Notice of a fact may exist without actual knowledge of the fact. In Wethered v. Boon, 17 Tex. 145, it is said: "Notice may be either actual or constructive. The former is said to exist where the party to be affected by it is proved to have had actual knowledge of the fact; where the knowledge of it is brought directly home to him by the evidence. Of this there is no pretense in the present case. Or there may be constructive notice, as when

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