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Leach & Templeton, for appellant. Sam ing therefor, and plaintiffs elect to sue for damA. Leake and A. J. Gates, for appellees. ages, a judgment comp lling defendant to pay

for the land, and vesting title thereto in de

fendant, will not be disturbed where plaintiffs RAINEY, J. l'pon reconsidering the evi.

make no objection, though the court should dence in this case, we are of the opinion that have decreed to defendant an easement in the

land. our former holding was error, and that the evidence is not sufficient to support the judg- Appeal from district court, Dallas county; ment of the court below. The allegation of R. E. Burke, Judge. plaintiff's petition is “that, before said notes Action by F. W. Miller and another against became due, they were placed by said H. M. the city of Dallas to recover damages for a Ball in the hands of defendant, Will Rash, wrongful appropriation of land. From a as a collateral security, to secure Rash, judgment for plaintiff's, defendant appeals. Smith & Co. against the payment of a note Affirmed. signed by them for accommodation with said

A. P. Wozencraft and M. Trice, for apH. M. Ball to First National Bank at Sul

pellant. G. G. Wright and Y. B. Dowell, for phur Springs, Texas, for money loaned said

appellees. Ball by said bank; * * that defendant was present at the time of said transfer by

Conclusions of Fact. said Ball to plaintiffs, and then and there

RAINEY, J. The city of Dallas, appelstated to plaintiffs that he held possession of

lant, is a municipal corporation, duly insaid notes, and that as soon as said bank note

corporated under a special act of the legmade by said Ball, and signed by Rash,

islature of the state of Texas. On April 23, Smith & Co. with him, for his accommoda

1890, acting within the scope of its authortion, was paid off, he, defendant, Rash,

ity, its council passed the following ordiwould deliver said notes to plaintiffs." Un

nance: "A resolution directing and requirder these allegations, the payment of the

ing the chief of police to abate and remove note due the bank was a condition prece- obstructions and nuisances, and encroachdent to a recovery by plaintiffs, and the bur

ments in, upon, along, or across sidewalks. den of showing payment was on them. This

streets, alleys, avenues, and highways of the they failed to do. Plaintiffs having failed

city. * * Be it resolved by the city to show the payment of the note due the

council of the city of Dallas, that the chief bank, they were not entitled to recover, and

of police be, and is hereby, authorized, em. the judgment must be reversed, and the powered, and directed, and it is hereby made cause remanded. The other errors assigned his duty, to proceed without delay to abate are without merit.

any and all fences, houses, buildings, and other structures, obstructions, and encroachments whatsoever now or heretofore erected

or established, or which may at any time CITY OF DALLAS V. MILLER et al. hereafter be erected or established by any (l'ourt of Civil Appeals of Texas. May 23, person or persons whomsoever without the 1894.)

authority of the said council, in, upon, along, HARMLESS ERROR MUNICIPAL CORPORATIONS - or across any of the sidewalks, streets, ave

SEIZURE OF PRIVATE PROPERTY WITHOUT FIRST nues, alleys, or highways within the city of
PAYING THEREFOR-DAMAGES -CoxstiTUTIONAL
Law.

Dallas; and for that purpose he shall have 1. In an action to recover damages for an

power, and it is hereby made his duty, to unlawful appropriation of land, the admission use and employ all proper and necessary of plaintiffs' oral statement that they owned force or assistance. Be it further resolved, the land, if error, was harmless where there was other evidence sufficient to show plaintiffs'

that it is hereby made the duty of the chief ownership.

of police and other police officers of the city 2. Plaintiffs' property jutted out into the of Dallas to see that any and all ordinances street five feet further than did that of owners

of the city prohibiting the obstruction of on either side of them, and was fenced in. De fendant city's mayor directed the fence to be

the sidewalks, streets, alleys, and highways removed, which was done, and the space of five

thereof be strictly enforced, and to report feet converted into a sidewalk. Such action any and all violations hereafter committed was duly reported to the city council, and ac

of such ordinance or ordinances by any perquiesced in by it. Held, that the action of the city council manifested an intention to appro

son or persons, whether by hereafter erectpriate the property to public use, and that, ing any such obstruction or by maintaining having taken private property for public use any such obstructions heretofore erected. without first paying therefor, defendant must respond in damages.

Be it further resolved, that it is hereby made 3. Where a city wrongfully appropriates

the duty of the mayor to enforce the proviland without first paying therefor, the damages sions of this resolution, and whenever it for which it is liable are an obligation arising

shall come to his knowledge that any side. from tort, and not from contract, and such obligation is not within Const, art. 11, 88 5, 7,

walk, street, avenue, alley, or highway with requiring a city council, at the time of creating in the city of Dallas is obstrurted or ena debt against the city, to provide for the levy- croached upon, as aforesaid, he shall direct ing and collecting a tax to pay interest and pro

the chief of police to remove or abate said vide a sinking fund. 4. Where plaintiffs' land is appropriated by

obstructions or encroachments without dedefendant city for public use without first pay. lay, and said chief of police shall thereupor proceed so to abate and remove the same. shows that plaintiffs were in actual and exBe it further resolved, that whenever the clusive possession of the property, and had chief of police shall abate or remove any been for years prior thereto, of which appelobstruction or encroachment, as aforesaid, lant's officers were cognizant. Appellant was under the provisions of this resolution, such a trespasser, and, being such, it was responabatement or removal shall be made at the sible for the damage done to plaintiffs by cost of the party who shall have erected, reason of the wrongful taking of the strip of established, or maintained said obstruction land. Under such circumstances, the proof or encroachment; that the chief of police of actual and exclusive possession of the land shall keep an exact account of such cost by plaintiffs gives them the prima facie right and expense, and deliver the same to the to recover for the damage done; and the oncity attorney, whose duty it shall be to pro- ly way for appellant to escape liability to ceed to collect the same by suit or other- plaintiffs for the value of the land taken wise.” And the chief of police made the fol- would be to show that some person other lowing report, dated May 7, 1890, and the than plaintiffs owned the land. If this was following action was taken upon it by said shown, plaintiffs could only recover the damcouncil: “Hon. Mayor and City Council- age done to their possession, but could not Gentlernen; In accordance with a resolu- recover the value of the land appropriated tion passed by your honorable body, and Appellant made no effort to show title in a acting under instructions of the mayor, I third party. There was sufficient testimony have moved the fence of Mr. Miller, on on the point at issue, besides the testimony Bryan street, and house on Holland, and complained of, to warrant a recovery by ap fence on Snodgrass street, belonging to Dr. pellees; and the admission of said testimony, Hughes. The cost of moving the house is

if error,

was not injurious to appellant. $15.00, which I ask your honorable body to Therefore we conclude the first and second pay. Respectfully submitted, J. C. Arnold, assignments of error were not well taken. Chief of Police.” “Alderman Gannon moved Railway Co. v. Cullers, 81 Tex, 382, 17 S. W. that said account be allowed, and the city | 19, and cases cited; City of East Dallas v. secretary instructed to draw warrant for $15.- Barksdale, 83 Tex. 117, 18 S. W. 329. 00. Carried.” The property in question was Appellant insists that the action of the owned by plaintiffs, and occupied by them chief of police was without authority, and as a homestead at the time of the trespass, the city was not bound thereby, because the and had been so owned and occupied for land had not been taken possession of or used several years prior thereto. The property by the city for a sidewalk, or for any other jutted out into the street about 5 feet fur- purpose. This contention, in our opinion, is ther than adjoining property, and the lot not supported by the facts of this case. The was 77 feet and 8 inches wide. During the ordinance of the city council directed its chief year 1890 the chief of police of Dallas, act- of police to "abate any and all fences, housing in pursuance of said ordinance, and un- es, buildings, and other structures, obstrucder the instructions of the mayor, forcibly tions, and encroachments whatsoever now or removed the front fence of plaintiffs, and heretofore erected or established set it back, so that the line of the sidewalk upon, along, or across any of the sidewalks, in front of plaintiffs' property would be the streets, avenues, alleys, or highways within same as that of the sidewalks on that side the city of Dallas; and for that purpose he of the street on each side of plaintiffs' prop- shall have power, and it is hereby made his erty. The strip thus appropriated has been duty, to use and employ all proper and necused as a sidewalk ever since. The evidence essary force or assistance." It further re was conflicting as to the amount of damage, quired the mayor to “direct the chief of pobut there was sufficient evidence to warrant lice to remove or abate said obstructions or the court in finding the sum of $513.20. encroachments without delay, and said chief

of police shall thereupon proceed so to abate Conclusions of Law.

and remove the same." The property of apAppellant's first and second assignments of pellees jutted out into the street five feet furerror complain of the action of the court in ther than did the property of owners on eipermitting the introduction of certain testi- ther side of them, and it was fenced. The mony over objections: First, in allowing M. mayor instructed the chief of police to re H. Miller, one of the plaintiffs, to testify that move the fence, which was done, and the he was the owner of the land in controversy; space of five feet was converted into a sidesecond, in allowing a deed to the property to walk. This action was duly reported to the Fannie W. Miller, one of the plaintiffs, to be city council by the chief of police, and his acintroduced in evidence, without proving the tion in the premises was acquiesced in by genuineness of the signatures to said deed. said council. The property so appropriated The evidence shows that appellant's chief of has been used as a sidewalk by the public police, acting under said ordinance, and un- ever since, and appellees have been deprived der instructions of its mayor, wrongfully and of its use and control as their private propforcibly took possession of plaintiffs' proper- erty. The city never disclaimed the right to ty, and appropriated it to the use of the pub- use said property as a sidewalk, unless its anlic for a sidewalk. The evidence further swer in this suit, denying its liability for the

* in, acts of its mayor and chief of police, may be for the use of the public without first renderconsidered a disclaimer. The property of ap- ing compensation therefor. Appellees' proppellees, jutting into the street as it did, was erty was taken by the agents of appellant in an obstruction to public travel, and the city utter disregard of this fundamental right, and of Dallas had the right, under its charter, to appellant must respond in damages therefor. remove the obstruction by legal condemna- The appellant contends that the judgment tion proceedings. This its agents saw prop- is erroneous, in that it requires appellant to er not to adopt, but proceeded illegally to pay a debt for which there was no provision appropriate the property of appellees to pub- made at the time of its creation for levying lic use, which made them trespassers. Al- and collecting a tax to pay the interest and though trespassers, they were acting within provide a sinking fund. This is an obligathe scope of the powers of the city to appro- tion that arises, not by contract, but by tort, priate private property to public uses under and does not fall within the purview of arits authority, but in an illegal manner. The ticle 11, 88 5, 7, of the constitution, which re. city council had authority to open, widen, quires the city council, at the time of creatand improve streets. The exercise of this ing a debt against the city, to provide for the power by its officers, under its authority, levying and collecting a tax to pay interest though done in an illegal way, renders the and provide a sinking fund. The city councity liable for damages for any injury done cil did not intentionally create this obligation, by them in the execution of such powers. but by the wrongful acts of its agents the We are of opinion that the action of the city law fixes its liability, and it cannot claim council manifested an intention to appropri- that the creation of its liability in such a ate the property to public use. "No especial manner is ultra vires, and thereby escape the formality is required by law to manifest the payment of this claim. If such responsibilintention to apply the property to public use, l'ity could be thus avoided, no recovery could though certain formalities are indispensable ever be had against a municipal corporation to a legal condemnation. The intention may for the tortious acts of its agents. The law be presumed from the fact that the city au- having fixed the liability, the city council thorities, claiming to exercise the right, did should devise ways and means for its payactually take and appropriate the property to ment. the public use, without disclaiming that such The only other contention of appellant was their purpose." City of East Dallas v. which we deem necessary to notice is emBarksdale, 83 Tex. 117, 18 8. W. 329. Mr. braced in its fourth assignment of error, Dillon, in his work on Municipal Corpora- which is as follows: "The court erred in rentions (section 971), in discussing the liability dering judgment compelling defendant to pay of municipal corporations under circumstan- plaintiffs for the land described in said judg. ces similar to those governing this case, says: ment, and divesting the title to said land out "If, in exercising its power to open or improve of plaintiffs and vesting the same in defendstreets, or to make drains and sewers, the ant, because there was no pleading that agents or officers of a municipal corporation, would justify such a judgment." This asunder its authority or direction, commit a signment is not well taken. The court should trespass upon or take possession of private have decreed to the city an easement over property without complying with the charter the land, but, instead, the judgment decrees or statute, the corporation is liable in dam- the title to the city. It was optional with .ages therefor. In such cases, also, an action appellees to sue for the land or sue for dam

will lie against a city corporation by the own- ages. They elected to sue for damages, and, er of land through which its agents have un- as they are entitled to recover for the value

lawfully made a sewer, or for trees destroyed of the property so appropriated, the city was . and injury done by them." The language entitled to the use and control of the land for used by Garrett, J., in Barber v. City of East street purposes; and, as there is no complaint Dallas, 83 Tex. 147, 18 S. W. 438, we think on this score by appellees, the judgment will is applicable to this case. He says: "The not be disturbed. City of East Dallas v. transaction out of which the defendant's lia

Barksdale, supra. The judgment of the court bility grew was one within the general power below is affirmed, of the city to open streets, and would imply a corporate liability if the constitution had not created it in special terms. Although in the nature of a tort, the liability is a fixed

COLLINS et al. v. SANGER et al. one, growing out of the exercise of powers

(Court of Civil Appeals of Texas. June 20, conferred upon the defendant by law; and,

1894.) although the law prescribed the manner in FRAUDULENT CONVEYANCES ACTION TO SET

Aside-PARTIES-ASSIGNMENT FOR BENEFIT OF which property may be condemned and tak

CREDITORS. en for the use of a street, the failure of the

1. In a suit by creditors of an insolvent to defendant to follow the method pointed out set aside preferences made by the insolvent in by law does not change its liability for what- a trust deed, and to adjudge the conveyance ever damage the plaintiff's property may

an assignment, the beneficiaries under the deed

are necessary parties. have sustained." The constitution prohibits

2. An instrument executed by an insolvent the taking or damaging of private property which conveys his property to a trustee, to be

September 22, 1892, J. J. Collins filed his report of his disposition of the property under order of the court. October 6, 1892, defendants' motion to dissolve the injunction, and general and special exceptions, were by the court overruled, to which defendants excepted; and upon the trial of the case the court found for the plaintiffs, and decreed that the said instrument of writing executed by D. T. Huffhines to J. J. Collins, as aforesaid, be declared to be an assignment, and that said Collins qualify as assignee of said Huffhines, and proceed as under the law of Texas relating to assignments for the benefit of creditors, to which judgment the defendants excepted, and in open court gave notice of appeal to this court. The complainants were creditors embraced in class B. The mortgagor and trustee named in said instrument were defendants. The creditors in class A, who were preferred, in order of payment, to class B, were not made parties to the suit.

C. Moorman, R. M. Vaughan, and Morris & Crow, for appellants. Smith & Wear and McKinnon & Carlton, for appellees.

sold, and the proceeds to be applied in payment of certain preferred creditors, and directing that any surplus be returned to the grantor, is a mortgage, and not a general assignment.

3. The burden of proving that a trust deed for the benefit of creditors, valid on its face, is in fact a general assignment, is on the parties claiming it to be an assignment.

Appeal from district court, Hill county; J. M. Hall, Judge.

Suit by Sanger Bros. and others against J. J. Collins, and another to set aside a trust deed for the benefit of preferred creditors. There was a judgment for plaintiffs, and defendants appeal. Reversed.

On May 31, 1892, D. T. Huffhines, of Hill county. Tex., executed a deed of trust conveying to J. J. Collins, of said state and county, as trustee, a stock of goods, wares, and merchandise, store and office furniture and fixtures, in Hillsboro, Tex., to secure certain preferred creditors therein mentioned (marked Schedule A), in amounts aggregating about $2,533.55, and, after paying in full said creditors named in Schedule A, should there remain money enough, to secure certain other creditors therein designated (Schedule B), in amounts aggregating about $1,385, and directing that any property remaining of the proceeds thereof, after paying said debts, should be returned to said D. T. Huffhines. On June 2, 1892, appellees presented their original petition to the judge of the district court in and for Hill county, attaching there. to a certitied copy of the deed of trust as part of said petition, and alleging that, while said instrument of writing on its face was in the form of a deed of trust, as a matter of fact and law, said instrument was a deed of assignment for the benefit of creditors; praying that a writ of injunction be issued restraining said J. J. Collins, trustee, from disposing of said property uutil be had qualified under the law as assignee, and that said instrument be declared an assignment. Said writ of injunction was granted until cause was shown wliy said writ should not be granted as prayed for in the petition; and on June 3, 1892, said petition was filed with the clerk of the district court of Hill county, and said writ, as prayed for and ordered by the court, was issued and served on defendants. June 4, 1892, appellants answered by motion to dissolve, and general and special exceptions and general denial, and specially pleading that the afcresaid instrument was intended as a trust deed, and not an assignment. On June 11, 1892, defendants' motion to dissolve the injunction was heard and overruled, and the previous order granting the injunction continued in force, except so much was vacated as restrained the said Collins from disposing of said property; and he was ordered to enter into a $3,000 bond, and dispose of the property, and make report of the proceeds to the next term of court.

ror.

FINLEY, J. (after stating the facts). The defendants demurred to plaintiffs' petition, upon the ground that it appeared therefrom that the creditors in class A were necessary parties to the suit. The court overruled the exception, and this action is assigned as er

In a suit to set aside the preferences made in a conveyance and adjudge the conveyance to be a general assignment, under the statute, to be administered without preferences, those named as preferred creditors in the instrument are necessary parties to such suit. Hudson v. Elevator Co., 79 Tex. 401, 15 S. W. 385. The exception should have been sustained, and the ruling of the court was error.

The judgment of the court declaring the instrument to be a general assignment, to be administered under the statute, is challenged. The instrument of conveyance, upon its face, possesses all the elements of a mortgage given to secure the payment of certain debts. The burden of showing the instrument be an assignment rested upon the plaintiffs. The evidence was wholly insufficient to show that the conveyance was other than what it purported to be. Such conveyances as the one under consideration, in form and fact, are uniformly held by our courts to be mortgages, and not assignments regulated by our statutes. Preston v. Carter, 80 Tex. 388, 16 S. W. 17; Watterman v. Silberberg, 67 Tex. 100, 2 S. W. 578; Hudson v. Elevator Co., supra; Foreman v. Burnette, 83 Tex. 396, 18 S. W. 756. The judgment of the court below is reversed, and here rendered for appellant.

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at the sheriff's sale, and also transferred to CARTER et al. v. ACKER et al.

appellants, as collateral security, their notes (Court of Civil Appeals of Texas. June 20,

and accounts, amounting to largely more 1894.)

than the debt, and agreed to collect theni TRESPASS-ACTION AGAINST SHERIFF-FRAUDO

for appellants' account until their debt was LENT CONVEYANCE.

paid; and A. M. Steen was to take charge In an action against a sheriff for the of the goods, and run the business in the wrongful levy of an execution on goods in the name of appellants, and after taking out possession of S., as the property of S. & R., and claimed by plaintiffs, it appeared that the

enough "for a living,” and to pay the exgoods were purchased by plaintiffs at a sale penses of running the business, the balance under an attachment against S. & R. There should be sent to appellants, to be applied was evidence that, before such sale, plaintiffs'

as a credit upon the note until it was paid. agent told S. to raise what money he could; that he did so, and turned over to such agent

The transaction was entered into, and the $400; that plaintiffs furnished the balance business run in the name of appellants, for necessary for the purchase; and that S., at the

the purpose of shielding the property from time of the sale, went to persons who were there to bid on the goods, and told them not to

the creditors of Steen & Riggs, who were bid, as he was interested in buying them in as

the real owners of the goods. (2) That the cheaply as possible. Held, the was not er. note given by Steen Riggs to appellants ror to submit to the jury the issue as to wheth

about the time of the purchase by appellants er plaintiffs sold the goods to S. & R. or to S., or purchased them for the benefit of such par

of the goods from the sheriff was intended ties, with the purpose of defrauding the cred- to represent the entire indebtedness of Steen itors of S. & R.

& Riggs to them. (3) That, at the time of Appeal from district court, Delta county;

the levy of the execution of C. M. HenderE. W. Terhune, Judge.

son & Co. upon the goods, they were the Action by Carter Bros. & Co. against

property of Steen & Riggs, and subject to George W. Acker, sheriff, and others, to re

such levy. (4) That appellants really had cover damages for the wrongful levy of an

no interest in the goods at the time of the execution in favor of C. M. Henderson & Co.

levy, and that appellees were not liable for on a stock of goods as the property of Steen

damages in this suit for such levy. (5) That & Riggs, and claimed by plaintiffs. From

after the levy there was a final settler:ent a judgment for defendants, plaintiffs appeal.

between Steen & Riggs and A. M. Steen, on Affirmed.

the one side, and appellants, on the other,

whereby the latter accepted certain notes J. A. B. Putman and Crawford & Keasler, and accounts in payment of the balance due for appellants. L. L. Wood, for appellees appellants. Henderson & Co.

1. The court did not err in the third para

graph of its charge, as claimed in appellants' LIGHTFOOT, C. J. This is a suit brought first assignment, in submitting the issue as by appellants against the sheriff of Delta to whether appellants Carter Bros. & Co. county and his bor Ismen and A. J. Nichols sold the goods to Steen & Riggs or A. M. for damages for wrongfully levying an exe- Steen, or purchased them for the benefit of cution in favor of C. M. Henderson & Co. such parties. There was ample testimony upon a stock of goods in Cooper, at the in- upon which to base such charge, and it was stance of Nichols, attorney for Henderson & clearly submitted. A. M. Steen testified that Co.; said goods being in the possession of before the sale the appellants' agent told A. M. Steen, and claimed by appellants. him to get up what money he could, which There was a verdict and judgment for de he did, turning over to such agent about fendants, and under the testimony, in ac- $100; that witness, at the sale, went to Hubcordance with such verdict and judgment, bard and other friends who were there to we find the following conclusions: (1) That, bid on the goods, and tried to get them not in the fall of 1888, Steen & Riggs, mer- to bid on them, as he was interested in buychants in Cooper, failed in business, and ing them in as cheaply as possible. The were attached by creditors. Their stock of whole testimony points irresistibly to the goods was sold at public sale under the at. conclusion that the goods were bought in at tachment proceedings, and the agent of ap- the sale under an agreement or understand. pellants, before such sale, made an arrange- ing that the purchase was for the benefit of ment with A. M. Steen, a member of the Steen & Riggs. firm of Steen & Riggs, whereby they fur- 2. We think it useless to follow up in de nished all the money they could get up tail the numerous assignments of error upon (about $400), and appellants furnished the the charge of the court. We have carefully balance, and bought in the stock at the sale, examined the charge, and believe it to be a for Steen & Riggs, at $1,713.17. An agree- full, fair, and clear presentation of the isment in writing was then entered into be- sues involved. The questions of law are eletween appellants, on one side, and Steen & mentary, and the verdict and judgment are Riggs and A. M. Steen, on the other, where- fully sustained by the facts. We do not by the latter executed their note to appel- think there can be a doubt, from the evilants for the full amount of their indebted. dence, even of appellants' witnesses, that the ness, including the price paid for the goods goods were the property of Steen & Riggs at

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