by his own hand. It is a stubborn fact, which must be considered in the determination of the issue. As before stated, there can be no question as to its existence and authenticity. It was addressed to John Stuart, the secretary for the company for which Hayward worked, and the friend who had given him employment. It requested Stuart to telegraph Sam Allen, of Houston, Tex., a man who was also his friend, something which, under the circumstances, must necessarily be of his death. We need not inquire why he had ceased to be a man, or what sworn vow he had broken, except to say that this language is not consistent with the theory that the morphine was taken accidentally. The verdict was contrary to the evidence, and against the manifest weight of the evidence.

With a view to another trial, we have examined the remaining assignments of error, and are of the opinion that the court erred in admitting the testimony of Stedman that there was nothing to indicate that Hayward had the least intention of taking his own life, as shown by defendant's bill of exception. Such statement was a conclusion of the witness, based on the assumption that he knew what actions would have indicated such an intent. It cannot be said to be a shorthand statement of a fact. Also the second paragraph of the charge was erroneous, because there was no evidence to authorize the submission to the jury, as an issue, the state of mind in which the deceased took the morphine, if he took it. In other respects the charge was correct. The defendant not only assumed the burden of proof to show that the assured died by his own hand from morphine administered with suicidal intent, but the burden of proof was properly upon it to sustain this defense. It was not shifted by the introduction of the verdict at the coroner's inquest, although, in the absence of any other testimony on that issue, the verdict at the inquest would be sufficient prima facie to show death by suicide. The judgment of the court below will be reversed, and the cause remanded.

1. Where a brakeman in the employ of a receiver of a railroad company is injured, without fault on his part, by being thrown from a freight car by a telephone wire which the telephone company negligently allows to hang too low over the railway track, and the receiver and telephone company know, or by ordinary care and diligence might know, the condition of such wire, both the receiver and telephone company are liable to such brakeman for the damages sustained.

2. Where, in such case, it appears that the

telephone wire was located and used before the railroad was constructed under it, and that no notice was given the telephone company by the receiver of such railroad company to remove the wire, the receiver cannot recover the full amount of damages over against the telephone company, since it was the duty of the receiver to keep such railroad tracks in a reasonably safe condition for his employes.

3. Where an employe of the receiver of a railroad company goes, by the latter's direction, to work on the line of another railroad company, which is under the control of the receiver as lessee, the fact that such employe was paid by another company under some arrangement between it and the receiver does not relieve the receiver from liability to such employe for injuries received by reason of the receiver's negligence.

Appeal from district court, Grayson county. Action by John T. Crank against the Southwestern Telegraph & Telephone Company, Charles Dillingham, receiver of the Houston & Texas Central Railway Company, the Ft. Worth & New Orleans Railway Company, and the Texas Central & Northwestern Railway Company, to recover damages for personal injuries caused by the negligence of defendants. From a judgment for plaintiff against defendants Dillingham, receiver, and the Southwestern Telegraph & Telephone Company, such defendants appeal. Affirmed.

Head & Dillard, for appellant Dillingham. John W. Wray, for appellant Southwestern Telegraph & Telephone Company. Randell & Wolfe, for appellee.

LIGHTFOOT, C. J. The following statement is substantially correct: Appellee was in the employ of certain railway companies hereinafter named. In his amended pleading, filed July 15, 1891, in said cause, he made Charles Dillingham, receiver of the Houston & Texas Central Railway Company, the Ft. Worth & New Orleans Railway Company, the Texas Central & Northwestern Railway Company, and the telephone company joint defendants. He alleged his employment as brakeman on a construction train, and further alleged that he was in their general employment and service, and also of defendant Central Texas & Northwestern Railway, and while so engaged in the scope of his duties, and while standing on the top of a moving box car on or about July 16, 1890, in the city of Waxahachie, Ellis county, Tex., he collided with a telephone wire where the same crossed said Ft. Worth & New Orleans Railway, and was thrown to the ground, and permanently and painfully injured, etc. Appellee charged that the consequences were produced (1) by the gross negligence of defendants' railways and said receiver "in running and causing to be run, and permitting, said train of cars on said railway track under said wires, which were too low for a train to pass with safety to those upon it, and constructing, operating, and maintaining said railway under said wire, and permitting Rid wire to be too low; (2) by the gross negligence and want of ordinary care on the part

of the telephone company in placing, keeping, using, and maintaining said wire over and too near said railway track, regardless of the safety," etc., "and in the improper construction and want of repair of said wires;" (3) The joint wrong consisted in such want of proper construction and want of repair of the telephone wires, and the operation of the train on the railway track, and the condition of the track, etc., "that the condition of the line of wire and railway was known to the defendants, or could have been known," etc., but was unknown to appellee. Defendant Dillingham's amended answer consisted ofFirst, general demurrer; second, general denial; third, that appellee had notice of the condition of the wire, and assumed all risks therefrom, and was guilty of contributory negligence in not avoiding injury; fourth, that, if the appellee sustained injury through the negligence of either of the defendants, it was through the negligence of the telephone company in constructing and maintaining its wire too low, and permitting one of its wires to become loose and hang down, as alleged in plaintiff's petition. He prayed, in case judgment was rendered against him, that he have judgment over against defendant telephone company. Defendant telephone company's amended answer consisted-First, of general demurrer; second, special exception, contending there was no joint injury shown, no cooperation, etc., as to the injury and supposed acts of negligence, to make defendants jointly liable, etc.; third, a general denial; fourth, notice of the condition of the wire, and the assumption by appellee of the risks and hazards incident to his employment; fifth, contributory negligence on the part of appellee, on account of his knowledge of the condition of the wire, and means of knowledge at hand, and his failure to exercise that degree of care that an ordinarily prudent man would exercise under like circumstances, whereby he proximately contributed to his supposed injuries; sixth, defendant's plant | in said Waxahachie was erected and constructed as long experience had demonstrated was fit and proper, and as similar systems are and have been erected; that the plant was in the lawful use of the street upon which it was erected, and was so built and constructed as not to incommode the traveling public in the legitimate and lawful use of said street; that the wire had been erected in 1883, and defendant since that time used all reasonable effort, and such as is ordinarily used, to keep said wire in condition, as was incumbent upon defendant. It further answered, if the wire was too low to permit a person standing upon the top of a box car to pass safely underneath, it had no knowledge thereof; and, answering pleading of its codefendant Dillingham for judgment over and against it, it demurred generally to said receivers' pleadings, and, for plea in bar, said it made all of the allegations embraced in the proceeding plea in bar a part

of its answer to said receiver's plea, and, in addition thereto, said further that said railway was constructed long subsequent to defendant's line of wire and plant in said city; that it was constructed and erected with due care, and so as not to incommode the public in the use of the streets, and that it had no knowledge that the wire was too low, if such was the fact; that its codefendants had used and operated the line of railway underneath said wire for about five years without murmur or objection; that the managers of said railway and employes had peculiar means of knowledge by reason of the fact that they continually operated their train underneath the wire, and knew of its condition, and that defendant telephone company was without knowledge of any character that said wire was too low, if it was, and, if too low, defendant railways ought to have notified appellant telephone company. Defendants Central Texas & Northwestern and Ft. Worth & New Orleans Railways filed pleas in abatement, special demurrers reaching the question of jurisdiction of the district court of Grayson county, also touching the question of a joint wrong, insisting there was not such as would authorize a joint cause against all the defendants' general denial and special plea in bar, in substance such as their codefendant Dillingham had filed September 30, 1891. A trial before a jury resulted in a verdict and judgment in favor of the last two named defendants on their plea in abatement, and in favor of appellee against defendants Charles Dillingham, receiver, and the Southwestern Telegraph & Telephone Company, for the sum of $6,500, denying judgment over against the telephone company in favor of defendant Dillingham. From this judgment both the defendant Dillingham, receiver, and the telephone company have appealed.

The facts, as found by us under the evidence, are substantially as follows: At the time of the injury, July 16, 1890, appellee, John T. Crank, was a brakeman on a construction train which was hauling iron and cross-ties, and unloading them on the Ft. Worth & New Orleans Railway, which was being repaired, controlled, and operated by Charles Dillingham, receiver of the Houston & Texas Central Railway Company, under and by virtue of a lease to him as such receiver from the Ft. Worth & New Orleans Railway Company. Appellee had been employed by the receiver for some time, and was sent under the directions of his agents, to work on the Ft. Worth & New Orleans Railway line. Appellee had never been on that line before the day of the injury. As the train was crossing one of the streets in Waxahachie, appellee was standing on a box car, which was his place of duty as a brakeman, and it ran under a telephone wire belonging to appellant Southwestern Telegraph & Telephone Company, and which was hanging too low across said track, and thereby appellee, without any fault or contributory neg

suit was instituted in which the receivership was granted, the improvement company was indebted to the Land Mortgage Bank of Texas, and executed two deeds of trust, with power of sale, on certain of its real property, to secure such indebtedness. (3) An application was made to the court by the receiver for an order to sell all the tangible property of the Laredo Improvement Company free from liens, and the Land Mortgage Bank, as one of the lien holders, was made a party to the proceeding, and citation was issued to it on the 25th day of November, 1891, to show cause why such sale should not be made. The application for such sale showed that there were various liens on divers pieces of property, and receiver's certificates which were liens on specific property in such certifi cates mentioned. (4) The Land Mortgage Bank appeared in obedience to the order of court, and set up the debts and liens mentioned, and by cross bill prayed judgment for its debt and foreclosure of its liens. In its cross bill it recognized the power of the court to issue receiver's certificates and make them liens, but denied its right to make such liens and the costs of the receivership prior to its liens. (5) On the 6th day of February, 1892, the court granted the order of sale prayed for by the receiver, and entered judgment for the lien creditors, with a foreclosure of their respective liens, the judgment for the Land Mortgage Bank being for $31,000, with a foreclosure of its lien. The receiver's certificates and expenses of the receivership were declared to be a lien superior to those of the lien creditors, and the amount due on the certificates and the expenses of the receivership were charged pro rata (the amount against each parcel of property to be determined by the price it sold for) against the property ordered sold. This order was not excepted to by the Land Mortgage Bank. (6) In March, 1892, all the property of the improvement company was sold in pursuance to the order of the court, and brought $166,703.65. At such sale the Land Mortgage Bank bid in the property, upon which it had a lien for $26,300. The total expense of the receivership, costs, fees, back taxes, betterments, and operating expenses of the electric railroad, all charged as first liens under the decree of sale, amounted to $14,355.75, of which amount it was ascertained that the Land Mortgage Bank was liable for $4,525.84 as its pro rata share, according to the terms of said decree, which amount was paid by said bank. The terms of sale were one-third cash, and the balance secured by notes; but, by authority of the court, the Land Mortgage Bank's bid was credited on its judgment, and a deed to the property, free from incumbrances, was made to it by the receiver. (7) At the date of the decree there were no assets in the hands of the receiver other than the property ordered sold, all of which was incumbered by liens, except the liability of stockholders on un

paid stock subscriptions. But it was not then known by the Land Mortgage Bank what amount, if any, could be collected by the receiver on such subscriptions, though he expected to collect a large amount, and up to May 1, 1893, he had collected thereon about $20,000. The amount of unsecured indebtedness of the Laredo Improvement Company amounts to about $600,000. All expenses of collecting by suit or otherwise have, since the sale of its property, been paid out of collections from stockholders, but the amount of such expenses does not appear from the record. The assessment ordering the receiver to collect the amount due on stock was made May 10, 1892, and the first collections were made in October, 1892. (8) The unsecured creditors had no interest in the lien property except the equity of redemption, and, up to date of the sale, all expenses incurred at their instance in the receivership were incidental to the lien property, and incurred in its preservation and management. The receiver had charge of the property covered by the Land Mortgage Bank's lien from the 6th of January, 1891. to the 1st day of April, 1892, and collected the rents, which were more than sufficient to pay the taxes and insurance on that particular property. The receivership is still pending.

Conclusions of Law.

The doctrine of subrogation rests on the principle of equity, and privity of contract is not necessary to its support. Gans v. Thieme, 93 N. Y. 232; Cottrell's Appeal, 23 Pa. St. 294. It requires (1) that the person seeking its benefit must have paid a debt due to a third party before he can be substituted to that party's rights; and (2) in doing this he must not act as a mere volunteer, but on compulsion, to save himself from loss by reason of a superior lien or claim on the part of the person to whom he pays the debt, as in cases of sureties, prior mortgages, etc. Sandford v. McLean, 3 Paige. 117; Insurance Co. v. Middleport, 124 U. S. 549, 8 Sup. Ct. 625. These requisites have been met by appellee in this case. It paid debts due the holders of the receiver's certificates, and due for costs and expenses incident to the receivership. About this there can be no question, for the property upon which it had a lien to secure the debts due it from the improvement company sold for $4,700 less than the amount due. It would have therefore been entitled to the entire proceeds of the sale-$26,300-had it not been compelled by the decree of the court to pay the $4,525.84, which was adjudged a superior lien on the property, to save itself from loss by reason of such superior lien. Therefore it was subrogated to the right of the parties to whom the $4,525.84 was paid, which was to have the amounts due them on receiver's certificates, etc., paid by the Laredo Improvement Company. The appel

lee was not concluded from asserting this right by the decree of sale which established a lien on the property superior to appellee's. Instead of being concluded by it, its right of subrogation emanates from such decree. The decree simply determined that there was a lien on the property superior to that of the Land Mortgage Bank, which was ascertained in accordance with the decree to be $4,525, and by it to this extent, but no further, was the appellee concluded. When the mortgage bank discharged the lien, its right of subrogation attached, and, as such, existed without reference to whether or not a sufficient sum to discharge it would ever be realized from other assets of the insolvent corporation. When a sum sufficient to reimburse the mortgage bank was collected from the stockholders, as is shown, upon which there was no lien superior to that paid off by the appellee, it was entitled to an order of the court requiring the receiver to reimburse it out of such amount. Clifford v. Campbell, 55 Tex. 246. The appellee by a cross assignment of error complains of the court's not granting an order for $4.525.84, the amount prayed for, instead of $3,000. It appears from the record that all expenses of collecting by suit or otherwise have been paid out of collections from stockholders' liabilities, but the amount of such expenses is not in any way shown. In the absence of such showing we must presume that there was no error in the trial court's not granting an order for the full amount. Affirmed.

SURVEYS-PAROL EVIDENCE TO VARY-ADMISSIONS IN PLEADINGS.

1. Where the field notes in a survey call for the corners and lines of surrounding surveys, and contain no inconsistent calls, parol evidence that a different survey was made is inadmissible to control the calls.

2. In trespass to try title, where defendant by his answer admits that the field notes of the survey of plaintiff's land as set forth in the complaint are correct, he cannot introduce the testimony of the surveyor that a certain rock called for in the field notes as being on the line of an adjoining survey is not on such line.

3. Defendant's plea of "not guilty" did not remove the admission that the field notes were correct, and he is bound by that admission.

Appeal from district court, Maverick county; Walter Gillis, Judge.

Action of trespass to try title by J. Owen and others against F. H. Hartz. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. M. Goggin and I. L. Martin, for appellant. Winchester Kelso and Clark, Fuller & Garner, for appellees.

FLY, J. This is an action of trespass to try title, brought by appellees, to 320 acres

of land in Maverick county, who alleged that appellant had placed a patent on land owned by them. Appellant answered by general and special demurrers, and by special plea alleging that there is no conflict between the land owned by appellees and that owned by appellant, and that the field notes in appellees' petition describing their land are correct. This answer was verified by affidavit. The case was tried without a jury, and judgment rendered in favor of appellees.

The cause of this suit is a conflict between survey No. 8, owned by appellees, and survey No. 351⁄2 owned by appellant. The survey of No. 8 was made on October 14, 1881, and was an older one than survey 351⁄2. The field notes of the land claimed by appellees are as follows: "Beginning at a stake and stone set in ground for southwest corner of number five (5) and northwest corner of this survey; thence east with the south line of number five (5) at 41 varas cross arroyo, at 149 varas do., at 360 varas top of hill, at 901 varas cross arroyo, at 928 varas cross arroyo, 945 varas stake and stone set or planted in ground for northeast corner of this survey, from which a mesquite 4 inches bears south 70° east 52 varas; thence south 1,404 varas, to a stake and stone planted in ground, being southeast corner of this survey; thence west at 148 varas cross arroyo, at 228 varas a do., at 244 varas same, at 739 varas a drain, at 1,337 varas stake and stone mound on east line of survey number 34, and 165 varas from its southeast corner; thence north, with east line of number 34, at 84 varas pass stone set in ground, and marked U. S. 1875, at 507 varas stone mound, being northeast corner of No. 34, Fitch's well tower bears N. 66 E.; nence east, with the south line of number 35, one hundred and fifty-two varas to the southeast corner of number 35; thence north at 36 varas cross wagon road, at 381 varas do., at 672 varas northeast corner of No. 35; thence west with north line of No. 35 at 408 varas cross gully, at 662 varas cross wagon road, at 710 varas a large stone mound on north line of No. 35, cross bears S. 85° 40′ W., southeast corner of No. 36; thence north with east line of No. 36 125 varas, stake and stone mound, southwest corner of P. S. Waters survey; thence east with his south line 950 varas, stake and mound its southeast corner; thence north with his east line 100 varas to the beginning." These field notes are admitted by appellant in his sworn plea to be correct, and, if correct, there can be no vacancy between survey No. 8 and the surveys surrounding it, and, as the patent was issued on the basis of a vacancy, the title of appellant by his own admission must fail. There is no latent ambiguity in the calls of survey No. 8, but they are plain calling for the corners and lines of the surrounding surveys, and parol testimony was not permissible to vary the calls made in the survey. There is no pretense that the calls are not the ones