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tified to the facts above proved and stated. only a life estate in the portion of the homeAs the trial judge must have adopted their stead devised to her. While her then exist version of the transaction, we find those facts ent will did not so provide, it was in her to have been established.

power to make another to effectuate her pur

pose. No one objected to her doing so, and Hobby, Lanier & Kirby and W. L. Doug

it is plain that this instrument was executed lass, for appellants. Greer & Greer, for ap

in order to render such action on her part pellees.

unnecessary. The interest released to Mrs.

Adcock by the plaintiff was not then vested, WILLIAMS, J. (after stating the facts). It and would never have vested had the aris first contended by appellants that the in- rangement not been made. It cannot therestrument was a quitclaim deed, passing only fore be said, we think, that there was not a such interest as the grantor then had in the sufficient consideration to support the deed. land, and as Mrs. Collier was still living, The next contention of appellants is that and the devisees in her will had no title to the instrument should have been construed the property, nothing then passed, and the and declared by the court to be a will, and title acquired after Mrs. Collier's death, un- not a conveyance of the property. We cander her will, remained in Mrs. Jenkins, un- not assent to this proposition. The instruaffected by the deed. In our opinion, the ment was to become effectual to pass title deed is not merely a quitclaim. It purports only after the death of the grantor. This is to convey, not simply the “right, title, and the only feature in it which is proper to a interest or claim" of the grantor, to the will, and that may characterize a deed as tract of land, but her entire interest in the well as a will. The language is all such tract. This we understand to mean the as is usually employed in deeds, and not such quantity of her interest; that is, the un- as is appropriate to testamentary docudivided half. The language of the instru- ments. The land is granted, bargained, and ment is not such as is appropriate to quit sold. A consideration is recited. There are claim deeds. There is nothing in it but the the usual habendum and tenendum clauses, fact that she conveys all her "interest" in and a clause of general warranty of title. the land that bears any resemblance to that There is no reservation of the right to diskind of a deed, and this is explained by the pose of the property, nor of a power of fact that she expected only to get a half in- revocation. On its face, the deed creates terest in the tract. The clause of general and conveys to the grantee an estate in rewarranty removes all doubt as to the char- mainder after the determination of the life acter of the conveyance. Besides, by the estate reserved to the grantor. The evidence, very terms of the instrument, the thing con- aside from the paper itself, shows that this veyed is the land the grantor expects to re- method of settling the matter in question ceive through her mother's will. It is plain was adopted in preference to a will for we that the intention was not to convey such very reason that a will could be changed or title as Mrs. Jenkins then had to the land, revoked, while a deed could not. The court but all she expected ever to get through the did not err in holding the instrument to be will. A conveyance of such an expectancy what was intended, and that it was not a is valid, and, in equity, the right of the will, but a conveyance, or at least a congrantee attaches to an interest which vests, tract for the conveyance of the interest to be on the death of the ancestor or testator, in obtained by Mrs. Jenkins under her mother's the heir or devisee. Tied. Real Prop. $ 800, will, and in rendering judgment for defendand authorities cited. Especially is this the ants. Affirmed. case where the deed contains a general warranty under which the after-acquired title of the heirs or devisee may pass by estoppel.

ADLER et al. v. KIBER. Id. 88 727, 728. That the paper expressed (Court of Civil Appeals of Texas. Dec. 7, the intention of the parties is a conclusion

1893.) amply supported by the evidence, and there MEASURE OF DAMAGES — BREACA OF CONTRACT OF was no error in the holding of the court

SALE. below that such was the fact. There was

Where a buyer rescinds before delivery, sufficient proof of a consideration for the

and refuses to accept the goods when tendered,

the seller is entitled to recover the difference beconveyance. The circumstances under which

tween the contract price and the value of the it was made were sufficient to uphold it if goods at the time and place of delivery. no money consideration were shown. But Appeal from Washington county court; E. there was proof of such a consideration, P. Curry, Judge. Whether or not it was adequate, we have Action by A. Adler & Co. against F. Kiber only the agreement of the parties to guide for breach of contract. Judgment for de us. At the time of the transaction it might | fendant. Plaintiffs appeal. Reversed. have been a very difficult matter to deter

Offa L. Eddins and Wm. P. Ewing, for apmine what was the value of such interest in

pellants. Searcy & Garrett, for appellee. the land as plaintiff expected to receive under her mother's will. It was evidently Mrs. WILLIAMS, J. The parties made a conCollier's purpose that plaintiff should have tract by which the appellants agreed to sell

* Rehearing denied.


and deliver to the appellee at Brenham, at a | W. 948, cited by appelles. There is no readay subsequent, 100 barrels of sugar of a son why the ordinary rule should not apply specified quality and at a stipulated price. to this case, as it affords exact compensation No right was reserved by either party to to plaintiffs, and hold defendant to the re countermand or recede from the agreement. sults of his contract. The judgment is re Appellee on same day undertook to counter- versed, and the cause remanded. mand 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

CAPLEN et al. v. COMPTON et al.' Orleans. Both the agent and appellants declined to rescind or to recognize appellee's (Court of Civil Appeals of Texas. Dec. 7, right to countermand; and, at the time fixed

1893.) for delivery, appellants tendered to appellee, JUDGMENT-COLLATERAL ATTACK-ESCAEAT. at Brenham, sugar such as the contract pro

Rev. St. art. 1773, relating to escheat, vided for, and, upon appellee's refusal to re

which requires a citation to issue for all persons

interested in the estate to appear and answer ceive it, sold it and sued for damages, claim

the petition, is not complied with by issuing a ciing the difference between the contract price tation for "the unknown heirs" of the owner, and the sum realized at the sale.

since there could have been no escheat if he left At the trial the court charged the jury that

either heirs or devisees; and hence, the court

having acquired no jurisdiction, its judgment the measure of damages was the difference

declaring the escheat is subject to collateral atbetween the contract price and the market tack, and evidence is admissible to show that value of the sugar at the time of the counter- the owner was alive when the judgment was

rendered. mand; and, as there had been no change in market value before the countermand, the Appeal from district court, Harris county: jury found for the defendant. This charge James Masterson, Judge. was erroneous. The defendant had not the Action by John P. Compton and others right to countermand the order, and thereby against J. A. Caplen and others to quiet title break the contract. The agreement was clear to certain land. From a judgment for plainand unambiguous, and, when the minds of tiffs, defendants appeal. Affirmed. the parties met, both were bound by their

Austin & Rose, for appellants. E. P. Hamagreement. The plaintiffs could not be de

blen, for appellees. prived of the benefits to be derived from the contract by the act of the defendant. The contract was executory, no specific property

PLEASANTS, J. This appeal presents for being appropriated to it, and, therefore, no

our decision the validity or invalidity of a title ever passed; and, upon a breach by the judgment of escheat pronounced by the disdefendant, plaintiffs' remedy was simply an

trict court of Harris county on the 11th of action for damages. The measure of their

January, 1890, in proceedings instituted by recovery was compensation for their loss re- the county attorney of Harris county for the sulting from the refusal of the defendant to purpose of escheating land as property of perform. Such loss was plainly the differ

the estate of one Philo C. Merwin. The apence between the market value of the sugar

pellee Compton filed his suit against appelat Brenham at the time of delivery and the

lants on the 20th of August, 1892, setting price fixed by the contract. Plaintiffs by out the proceedings in escheat, and charging the contract were allowed until the appointed that they were null and void, and averring, time to perform their agreement, and were

that the said Merwin was still living, and entitled to such benefit as could be derived that he had since the rendition of said judgfrom a decline in the market. They had the ment purchased the land from him, and that right to purchase sugar with which to com- the appellant Caplen had procured the said ply with the agreement at any time before county attorney to institute and prosecute delivery. The measure of damages in cases to final judgment said proceedings in escheat of this character has often been stated and for the fraudulent purpose of acquiring title recognized to be the difference between the to the land, and that, at the sale made by market value at time and place of delivery the sheriff under said judgment, he purand the contract price. Ullman v. Babcock, chased said land through one Nicholson, and 63 Tex. 68; Tumley v. Weiss, 1 White & W. afterwards received a deed from Nicholson Civ. Cas. Ct. App. 1280; Heilbroner v. Doug- for the land; and he prayed that said Caplass, 45 Tex. 406, 407. There are some ex

len and said Nicholson be cited to answer ceptional cases to which this measure can- his petition, and that the said judgment of not be justly applied without losing sight of escheat be declared null and void, and that the fundamental principle of compensation, he have his writ of possession, and that he or of the important rule requiring good faith be quieted in his title. The appellee W. and prudent dealings on the part of the plain- P. Hamblen intervened in the suit, and as. tiff after he has received knowledge of the serted title to one-half interest in said land, breach; and such are the cases of Tufts v. by purchase from the plaintiff, and adopted Lawrence, 77 Tex. 526, 14 S. W. 165, and the pleadings of the plaintiff. The appelSonka v. Chatham, 2 Tex. Civ. App. 312, 21 s. lant Caplen denied the allegations of fraud,

* Rehearing denied.


and he also excepted to the petition, on the Hanna v. State, 84 Tex. 665, 19 S. W. 1008. ground that it sought, by collateral attack, This court is unanimously agreed that the to avoid the judgment of escheat. Upon omission in the citation is a fatal defect, trial of the cause, judgment was rendered and that, by reason thereof, the judgment of for appellees for the land, and the defendants escheat pronounced by the district court of appealed.

Harris county on the 11th of January, 1890, It is insisted by the appellants that the vesting the title to the land in question in judgment of escheat is not void, and that, the state, and ordering it to be sold by the therefore, the appellees cannot attack it sheriff of said county, is null and void, and collaterally. If the judgment be not void, that there was no error in permitting the the proposition that it cannot be attacked plaintiff and intervener to offer evidence collaterally is correct, and the judgment ren- showing that Philo C. Merwin was living dered by the court a qua, for appellees, must when the judgment was rendered, and that be reversed. It is often difficult to draw the they had purchased from him since that line of demarkation between what is void date. and what is voidable only. If a judgment Speaking for myself, there can be no esis voidable simply, it is conclusive against cheat so long as the owner of the land be all whose rights may affect, until it is alive, whether he be known to be living or either reversed by appeal, or until it is va- not, and no length of absence from the councated and held for naught by a decree of a try will empower any court, by its decree, court of competent jurisdiction, rendered on to divest the title of a citizen of this state proceedings instituted directly for that pur- to land, and vest it in the state. "Escheat" pose. But, when a judgment is void, it is a has well-defined meaning. When one nullity, and may be so treated by any court seised in fee of land dies without heir or in any suit or other judicial proceeding. In devisee, the title reverts to, and vests in, numerous decisions of the highest and most the state. The decree declaring the escheat distinguished courts it is held that the judg- does not vest it. Upon the death of the ment of a court of general jurisdiction cap- owner, without heir or devisee, the law not be held to be void unless the record vests the title in the state; the fee is never shows that the court was without power to in abeyance. The effect of the decree of render the judgment. This may be said to the court is to judicially determine and debe the rule, but the courts of this state recog- clare that the property has escheated, and to nize at least one exception to this rule. A direct the disposition of it in accordance Judgment ordering administration upon the with the provisions of the statute. The whole estate of a dead man is a nullity, although proceeding in escheat, from alpha to omega, the proceedings in the court are regular, assumes, just as the probate court does in and there is nothing upon the record show- granting letters of administration or letters ing or suggesting that the owner of the prop- testamentary, that the last person seised of erty upon which administration is granted the fee is dead; and in each case, if the peris living. The legislature has provided a son whose property is the subject of judicial method for escheating property, and that inquiry be not in fact dead, the judgment of method must not be departed from in any the court, which rests upon the assumption essential particular. Such departure will of his death, is a nullity. A citizen may, by render null and void the judgment. Among his negligence, permit another, by operation other things prescribed by the statute ' is of the statute of limitations or by tax sale, to that a citation shall be issued for all persons acquire title to his land; but I know of no interested in the estate to appear and answer authority in the legislature or the courts of the petition praying for the escheat. In this this state to deprive one of his title to propcase the record discloses that the citation erty, because of his absence from his home or issued was for “the unknown beirs of Philo from his country. The constitution (article C. Merwin." This, it is urged by counsel 13, § 1) does not authorize the legislature to for appellants, in their learned brief, was a create an escheat; it simply directs it to prosubstantial compliance with the statute. vide a method for ascertaining whether or But was it? We are of the opinion that it not there has been in any case an escheat. was not. There could have been no escheat No man can be deprived of his property exof the property had Merwin been dead if he cept by due course of law. Bill of Rights, left surviving either heirs or devisees. "His / $ 19. That Philo C. Merwin was alive when unknown heirs" were not, therefore, the only the decree of January 11, 1890, declared his persons who might be interested in the es- land to have escheated, is beyond cavil, and tate, and all such persons, by the method that both plaintiff and defendants claim tiprovided by the legislature, must first be cit- tle from him, we think, is established by the ed to appear and answer before the court evidence; and the judgment of the lower could acquire jurisdiction of the estate. Vide court, decreeing the title to the land in con

troversy to be in the plaintiff and the inter* Rev. St. art. 1773.

vener, is in all things affirmed.

parties has the right to assert as many differSTARR et al. v. KENNEDY et al.' ent, and even conflicting, titles as he may be Court of Civil Appeals of Texas. Sept. 13,

able to produce. The question, then, present1893.)

ed in this case is, should the rule above anTRESPASS TO TRY TITLE-CLAIMANTS UNDER Com

nounced apply to a case where a defendant MON TITLE.

in possession claims under two titles, and the In trespass to try title, where defendant plaintiff shows a title superior to only one in possession claims under two titles, and plain

of them? and we feel constrained to hold that tiff shows a title superior to only one of them,

it does not. We believe that the one in posthe rule that, when both parties claim title from a common source, plaintiff need only exhibit the session of the land should be allowed to resuperior title therefrom to entitle him to re- main until some other person exhibits a betcover, does not apply.

ter title than he has; and, where he has sev. Appeal from district court, Tarrant county; eral titles, the one seeking to oust him does R. E. Beckham, Judge.

not make a prima facie case until he shows a Action of trespass to try title by James F. title superior to any one of these. To hold Starr and others against o.'S. Kennedy and otherwise would enable a plaintiff, where others. From a judgment for defendants, the defendant has sought to buy his peace by plaintiffs appeal. Affirmed.

securing conflicting claims, to select the Wynne & McCart and Stedman & Thomp

weakest one of these, and, by showing a suson, for appellants. Hunter, Stewart & Dunk

perior title from a common source in this lin, for appellees.

chain, throw upon the defendant the burden

of tracing his other title, and the one upon HEAD, J. Appellants, as plaintiffs in the which he mainly relies, back to the sovereign. court below, on December 15, 1887, instituted We do not hold that a case might not be prethis suit in trespass to try title to recover of

sented in which the evidence would show the appellees the land in controversy, being 960 real title under which the defendant was asacres of the Charles Fleisner headright, char

serting his claims and had acquired his posging them with having been in possession session, although he might also pretend to since January 1, 1886. On the trial it was have other rights for the purpose of avoiding developed by the evidence introduced by the the common source, and that in such case the plaintiffs that the defendants claimed under plaintiff would not be entitled to judgment two chains of title,-the first originating in upon showing a right superior to the defenda deed made by T. J., E. P., and J. A. Belcher ant's real claim; but we do hold that where to James S. Davis, August 31, 1883, who con

the evidence, as in this case, shows two paveyed to defendant Kennedy, March 25, 1887, per titles in the defendant, and there is nothwho conveyed an interest to his codefendant, ing in the record to show that he does not Burgess, February 28, 1887; and the second equally rely upon both, the plaintiff is not consisting of a deed from the heirs of Tim- entitled to evict him simply by showing a othy Pillsbury to defendants Kennedy and

superior title from a common source in one Burgess, dated June 28, 1887. The plaintiffs

of them. We believe these conclusions fairly also claimed under Timothy Pillsbury, ex

sustained by the decision of our supreme hibiting a chain of title, alleged to be supe

court in Howard v. Masterson, 77 Tex, 41, rior to that of defendants, from the same

13 S. W. 635. This leads to an affirmance of source. Neither party undertook to deraign

the judgment appealed from, and it will, title from the state. The record does not dis- therefore, be unnecessary for us to consider close under which title the defendants en- the merits of the respective titles of the partered into possession, but on the trial they

ties in the chain emanating from Pillsbury disclaimed holding under Pillsbury. The

as a common source. Aprellees' claim under court below concluded that the evidence fail- the Belchers seems to have been the oldest ed to show that defendants claimed exclu- one asserted by them, and it may be the prin. sively under a common source with plaintiffs, cipal one relied upon, and appellants have and entered judgment in their favor, from

shown no right superior to this. The judgwhich this appeal is prosecuted.

ment of the court below will be in all things

affirmed. Affirmed. Opinion. Where both parties claim title to the land in controversy under a common source, it is well settled, both by statutu and decisions,

JACKSON et al. v. WALDSTEIN et al. that the plaintiff need only exhibit the supe

(Court of Civil Appeals of Texas. June 13, rior title therefrom to entitle him to judg

1894.) ment. This is a rule both useful and conven

SALE OF LAND-Bona FIDE PURCHASERS-Evi. ient when applied in a proper case, and is

1. Where persons claim under equitable t. not to be lightly disregarded. It does not,

tles, the burden is on the one claiming under however, possess the dignity of an estoppel, the later title to show the facts constituting it a and preclude the parties from asserting any

superior one.

2. A land certificate being personal propother title. On the contrary, either of the

erty, the general rule is that a purchaser ao

quires no better title thereto than his vendor "Rehearing denied.



3. A purchaser of a land certificate who Hume, the defendants Jackson, Crane, and takes it for an antecedent debt is not a bona

Frost, and the interveners, the heirs of J. J. fide purchaser. 4. The fact that a purchaser of a land cer

Waldstein, rest their claims upon equitable tificate had no “actual knowledge" of a prior titles. The interveners' title is the oldest, equitable title does not make him a bona fide and therefore the burden was upon the other purchaser, as he may have had notice of facts

claimants to show all the facts essential to sufficient to put him upon inquiry. 5. A vendor's only title to the land sold

constitute a superior equitable title. rested upon the fact that the land was located 2. Appellant Jackson contends that he under a duplicate certificate, the original of should have recovered the land (1) because which once belonged to him. At the time of the sale, he told his vendee that he did not know

his vendor, W. F. Cummings, was an innowhether he had sold the certificate or not, as cent purchaser of the duplicate certificate he had owned and sold a great many. The con- under which the land was patented; (2) besideration for the sale was inadequate. Held, that the vendee was not a bona fide purchaser.

cause he (Jackson) was an innocent purchas6. C. and T. entered into an agreement to

er from Cummings; and (3) because, his purchase whatever title B. had to land in vendor, Cummings, having procured the duTexas, to prosecute all litigation necessary to plicate certificate, and caused its location be perfect the title, and, after selling the same, to reimburse T. the money furnished by him to pay

fore it was barred, and he having taken the B., and divide the remainder. Before the under- land from Cummings in satisfaction of debt taking was completed, H. bought T.'s interest now barred, it would be inequitable to alin the enterprise, and agreed to furnish the

low the owner of the original certificate to money necessary for its completion. Held, that what knowledge C. had concerning the defects

recover the land. A land certificate is perin B.'s title to the lands purchased, which would sopal property, and the general rule is that a be imputed to T., was to be imputed to H. also. purchaser of such property acquires no betAppeal from district court, Travis county;

ter title than his vendor had (Dodge v. Litter, J. H. Robertson, Judge.

73 Tex. 319, 11 S. W. 331); but, without restAction by J. L. Hume against J. H. Jack-ing our decision on this ground, it must be son and others, and L. Waldstein and others

held that Cummings was not an innocent intervene. There was a judgment for in

purchaser. He testified that he could not terveners, and Jackson and others appeal.

remember whether he paid money for the Affirmed.

certificate, or received it as compensation for J. L. Hume brought this suit against J. H.

services previously rendered. If the latter Jackson and others to recover 640 acres of

was the consideration,-and the burden rest. land, situated in Roberts county, and patent

ed upon Jackson to show that Cummings ed to the Buffalo, Bayou, Brazos & Colorado

paid a consideration,-he was not such an inRiver Railroad Company. The heirs of J. J.

nocent purchaser as equity protects. WatWaldstein intervened, and made themselves kins v. Edwards, 23 Tex. 447; Steffian v. parties plaintiff, claiming the land as against

Bank, 69 Tex. 513, 6 S. W. 823. And for the all other parties. A trial was had before

same reason, if no other, Jackson was not the court, without a jury, and judgment ren

an innocent purchaser for value. He bought dered for the interveners. We do not think

the land from Cummings in payment of an the findings that appellants Jackson and

antecedent debt. But there is another reaHume had no notice when their rights ac

son why Jackson cannot claim protection, crued are sustained by the evidence. The

either under the general rule as to innocent statement of facts shows that, when they

purchasers, or because of a superior equity, bought, they had no knowledge of the Wald

resulting from the facts that his vendor, stein title; but, as we understand the law, a

Cummings, procured the grant from the gov. want of knowledge does not necessarily sig

ernment before the certificate was barred, nify a want of notice. Nor does the evidence

and that Jackson's debt, in payment of which sustain the findings that the transfers named

he purchased the land, is barred. To have in the second and third findings contained

entitled him to such protection, it was necescovenants of warranty. With these modifi

sary for him to show that his right to the cations, the conclusions of fact filed by the

land was acquired without notice of the trial court are sustained by the evidence,

Waldstein title. The only evidence in the and, as thus modified, this court adopts said

statement of facts tending to show a want conclusions of fact.

of notice on Jackson's part is the following:

"It was agreed that Jackson, at the time he Hewlett & Von Rosenberg, A.J. Gibson, and

bought from Cummings, had no actual knowlFred Carleton, for appellants. R. C. Walker, edge of the Waldstein title.” Notice of a for appellees.

fact may exist without actual knowledge of

the fact. In Wethered v. Boon, 17 Tex. 143, KEY, J. (after stating the facts). 1. The it is said: "Notice may be either actual or land in question was patented to the Buffalo, constructive. The former is said to exist Bayou, Brazos & Colorado River Railroad where the party to be affected by it is proved Company, whose rights are now held by the to have had actual knowledge of the fact; defendant the Galveston, Harrisburg & San where the knowledge of it is brought directAntonio Railway Company, which company ly home to him by the evidence. Of this has filed a disclaimer, and asserts no right there is no pretense in the present case. Or to the land. The real litigants, the plaintiff, there may be constructive notice, as when

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