Leach & Templeton, for appellant. Sam A. Leake and A. J. Gates, for appellees.

RAINEY, J. Upon reconsidering the evidence in this case, we are of the opinion that our former holding was error, and that the evidence is not sufficient to support the judgment of the court below. The allegation of plaintiff's petition is "that, before said notes became due, they were placed by said H. M. Ball in the hands of defendant, Will Rash, as a collateral security, to secure Rash, Smith & Co. against the payment of a note signed by them for accommodation with said H. M. Ball to First National Bank at Sulphur Springs, Texas, for money loaned said Ball by said bank; * * that defendant was present at the time of said transfer by said Ball to plaintiffs, and then and there stated to plaintiffs that he held possession of said notes, and that as soon as said bank note made by said Ball, and signed by Rash, Smith & Co. with him, for his accommodation, was paid off, he, defendant, Rash, would deliver said notes to plaintiffs." der these allegations, the payment of the note due the bank was a condition precedent to a recovery by plaintiffs, and the burden of showing payment was on them. This they failed to do. Plaintiffs having failed to show the payment of the note due the bank, they were not entitled to recover, and the judgment must be reversed, and the cause remanded. The other errors assigned are without merit.

Un

CITY OF DALLAS v. MILLER et al. (Court of Civil Appeals of Texas. May 23, 1894.)

HARMLESS ERROR MUNICIPAL CORPORATIONS SEIZURE OF PRIVATE PROPERTY WITHOUT FIRST PAYING THEREFOR-DAMAGES-CONSTITUTIONAL LAW.

1. In an action to recover damages for an unlawful appropriation of land, the admission of plaintiffs' oral statement that they owned the land, if error, was harmless where there was other evidence sufficient to show plaintiffs' ownership.

2. Plaintiffs' property jutted out into the street five feet further than did that of owners on either side of them, and was fenced in. Defendant city's mayor directed the fence to be removed, which was done, and the space of five feet converted into a sidewalk. Such action was duly reported to the city council, and acquiesced in by it. Held, that the action of the city council manifested an intention to appropriate the property to public use, and that, having taken private property for public use without first paying therefor, defendant must respond in damages.

3. Where a city wrongfully appropriates land without first paying therefor, the damages for which it is liable are an obligation arising from tort, and not from contract, and such obligation is not within Const. art. 11, §§ 5, 7, requiring a city council, at the time of creating a debt against the city, to provide for the levying and collecting a tax to pay interest and provide a sinking fund.

4. Where plaintiffs' land is appropriated by defendant city for public use without first pay

ing therefor, and plaintiffs elect to sue for damages, a judgment comp ling defendant to pay for the land, and vesting title thereto in defendant, will not be disturbed where plaintiffs make no objection, though the court should have decreed to defendant an easement in the land.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by F. W. Miller and another against the city of Dallas to recover damages for a wrongful appropriation of land. From a judgment for plaintiffs, defendant appeals. Affirmed.

A. P. Wozencraft and M. Trice, for appellant. G. G. Wright and Y. B. Dowell, for appellees.

Conclusions of Fact.

RAINEY, J. The city of Dallas, appellant, is a municipal corporation, duly incorporated under a special act of the legislature of the state of Texas. On April 23. 1890, acting within the scope of its authority, its council passed the following ordinance: "A resolution directing and requir ing the chief of police to abate and remove obstructions and nuisances, and encroachments in, upon, along, or across sidewalks. streets, alleys, avenues, and highways of the city. * * Be it resolved by the city council of the city of Dallas, that the chief of police be, and is hereby, authorized, empowered, and directed, and it is hereby made his duty, to proceed without delay to abate 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 hereafter be erected or established by any person or persons whomsoever without the authority of the said council, in, upon, along. or across any of the sidewalks, streets, avenues, alleys, or highways within the city of Dallas; and for that purpose he shall have power, and it is hereby made his duty, to use and employ all proper and necessary force or assistance. Be it further resolved, that it is hereby made the duty of the chief of police and other police officers of the city of Dallas to see that any and all ordinances of the city prohibiting the obstruction of the sidewalks, streets, alleys, and highways thereof be strictly enforced, and to report any and all violations hereafter committed of such ordinance or ordinances by any person or persons, whether by hereafter erecting any such obstruction or by maintaining any such obstructions heretofore erected. Be it further resolved, that it is hereby made the duty of the mayor to enforce the provisions of this resolution, and whenever it shall come to his knowledge that any sidewalk, street, avenue, alley, or highway within the city of Dallas is obstructed or encroached upon, as aforesaid, he shall direct the chief of police to remove or abate said obstructions or encroachments without delay, and said chief of police shall thereupon

proceed so to abate and remove the same. Be it further resolved, that whenever the chief of police shall abate or remove any obstruction or encroachment, as aforesaid, under the provisions of this resolution, such abatement or removal shall be made at the cost of the party who shall have erected, established, or maintained said obstruction or encroachment; that the chief of police shall keep an exact account of such cost and expense, and deliver the same to the city attorney, whose duty it shall be to proceed to collect the same by suit or otherwise." And the chief of police made the following report, dated May 7, 1890, and the following action was taken upon it by said council: "Hon. Mayor and City CouncilGentlemen: In accordance with a resolution passed by your honorable body, and acting under instructions of the mayor, I have moved the fence of Mr. Miller, on Bryan street, and house on Holland, and fence on Snodgrass street, belonging to Dr. Hughes. The cost of moving the house is $15.00, which I ask your honorable body to pay. Respectfully submitted, J. C. Arnold, Chief of Police." "Alderman Gannon moved that said account be allowed, and the city secretary instructed to draw warrant for $15.00. Carried." The property in question was owned by plaintiffs, and occupied by them as a homestead at the time of the trespass, and had been so owned and occupied for several years prior thereto. The property jutted out into the street about 5 feet further than adjoining property, and the lot was 77 feet and 8 inches wide. During the year 1890 the chief of police of Dallas, acting in pursuance of said ordinance, and under the instructions of the mayor, forcibly removed the front fence of plaintiffs, and set it back, so that the line of the sidewalk in front of plaintiffs' property would be the same as that of the sidewalks on that side of the street on each side of plaintiffs' property. The strip thus appropriated has been used as a sidewalk ever since. The evidence was conflicting as to the amount of damage, but there was sufficient evidence to warrant the court in finding the sum of $513.20.

Conclusions of Law.

Appellant's first and second assignments of error complain of the action of the court in permitting the introduction of certain testimony over objections: First, in allowing M. H. Miller, one of the plaintiffs, to testify that he was the owner of the land in controversy; second, in allowing a deed to the property to Fannie W. Miller, one of the plaintiffs, to be introduced in evidence, without proving the genuineness of the signatures to said deed. The evidence shows that appellant's chief of police, acting under said ordinance, and under instructions of its mayor, wrongfully and forcibly took possession of plaintiffs' property, and appropriated it to the use of the public for a sidewalk. The evidence further

shows that plaintiffs were in actual and exclusive possession of the property, and had been for years prior thereto, of which appellant's officers were cognizant. Appellant was a trespasser, and, being such, it was responsible for the damage done to plaintiffs by reason of the wrongful taking of the strip of land. Under such circumstances, the proof of actual and exclusive possession of the land by plaintiffs gives them the prima facie right to recover for the damage done; and the only way for appellant to escape liability to plaintiffs for the value of the land taken would be to show that some person other than plaintiffs owned the land. If this was shown, plaintiffs could only recover the damage done to their possession, but could not recover the value of the land appropriated. Appellant made no effort to show title in a third party. There was sufficient testimony on the point at issue, besides the testimony complained of, to warrant a recovery by appellees; and the admission of said testimony, if error, was not injurious to appellant. Therefore we conclude the first and second assignments of error were not well taken. Railway Co. v. Cullers, 81 Tex. 382, 17 S. W. 19, and cases cited; City of East Dallas v. Barksdale, 83 Tex. 117, 18 S. W. 329.

Appellant insists that the action of the chief of police was without authority, and the city was not bound thereby, because the land had not been taken possession of or used by the city for a sidewalk, or for any other purpose. This contention, in our opinion, is not supported by the facts of this case. The ordinance of the city council directed its chief of police to "abate any and all fences, houses, buildings, and other structures, obstructions, and encroachments whatsoever now or heretofore erected or established * * *in, upon, along, or across any of the sidewalks, streets, avenues, alleys, or highways within the city of Dallas; and for that purpose he shall have power, and it is hereby made his duty, to use and employ all proper and necessary force or assistance." It further required the mayor to "direct the chief of police to remove or abate said obstructions or encroachments without delay, and said chief of police shall thereupon proceed so to abate and remove the same." The property of appellees jutted out into the street five feet further than did the property of owners on either side of them, and it was fenced. The mayor instructed the chief of police to remove the fence, which was done, and the space of five feet was converted into a sidewalk. This action was duly reported to the city council by the chief of police, and his action in the premises was acquiesced in by said council. The property so appropriated has been used as a sidewalk by the public ever since, and appellees have been deprived of its use and control as their private property. The city never disclaimed the right to use said property as a sidewalk, unless its answer in this suit, denying its liability for the

The

acts of its mayor and chief of police, may be considered a disclaimer. The property of appellees, jutting into the street as it did, was an obstruction to public travel, and the city of Dallas had the right, under its charter, to remove the obstruction by legal condemnation proceedings. This its agents saw proper not to adopt, but proceeded illegally to appropriate the property of appellees to public use, which made them trespassers. Although trespassers, they were acting within the scope of the powers of the city to appropriate private property to public uses under its authority, but in an illegal manner. city council had authority to open, widen, and improve streets. The exercise of this power by its officers, under its authority, though done in an illegal way, renders the city liable for damages for any injury done by them in the execution of such powers. We are of opinion that the action of the city council manifested an intention to appropriate the property to public use. "No especial formality is required by law to manifest the intention to apply the property to public use, though certain formalities are indispensable to a legal condemnation. The intention may be presumed from the fact that the city authorities, claiming to exercise the right, did actually take and appropriate the property to the public use, without disclaiming that such was their purpose." City of East Dallas v. Barksdale, 83 Tex. 117, 18 S. W. 329. Mr. Dillon, in his work on Municipal Corporations (section 971), in discussing the liability of municipal corporations under circumstances similar to those governing this case, says: "If, in exercising its power to open or improve streets, or to make drains and sewers, the agents or officers of a municipal corporation, under its authority or direction, commit a trespass upon or take possession of private property without complying with the charter or statute, the corporation is liable in damages therefor. In such cases, also, an action will lie against a city corporation by the owner of land through which its agents have unlawfully made a sewer, or for trees destroyed and injury done by them." The language used by Garrett, J., in Barber v. City of East Dallas, 83 Tex. 147, 18 S. W. 438, we think is applicable to this case. He says: "The transaction out of which the defendant's liability grew was one within the general power 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 one, growing out of the exercise of powers conferred upon the defendant by law; and, although the law prescribed the manner in which property may be condemned and taken for the use of a street, the failure of the defendant to follow the method pointed out by law does not change its liability for whatever damage the plaintiff's property may have sustained." The constitution prohibits the taking or damaging of private property

for the use of the public without first rendering compensation therefor. Appellees' property was taken by the agents of appellant in utter disregard of this fundamental right, and appellant must respond in damages therefor.

The appellant contends that the judgment is erroneous, in that it requires appellant to pay a debt for which there was no provision made at the time of its creation for levying and collecting a tax to pay the interest and provide a sinking fund. This is an obligation that arises, not by contract, but by tort, and does not fall within the purview of article 11, §§ 5, 7, of the constitution, which requires the city council, at the time of creating a debt against the city, to provide for the levying and collecting a tax to pay interest and provide a sinking fund. The city council did not intentionally create this obligation, but by the wrongful acts of its agents the law fixes its liability, and it cannot claim that the creation of its liability in such a manner is ultra vires, and thereby escape the payment of this claim. If such responsibility could be thus avoided, no recovery could ever be had against a municipal corporation for the tortious acts of its agents. The law having fixed the liability, the city council should devise ways and means for its payment.

The only other contention of appellant which we deem necessary to notice is embraced in its fourth assignment of error, which is as follows: "The court erred in rendering judgment compelling defendant to pay plaintiffs for the land described in said judgment, and divesting the title to said land out of plaintiffs and vesting the same in defendant, because there was no pleading that would justify such a judgment." This assignment is not well taken. The court should have decreed to the city an easement over the land, but, instead, the judgment decrees the title to the city. It was optional with appellees to sue for the land or sue for damages. They elected to sue for damages, and, as they are entitled to recover for the value of the property so appropriated, the city was entitled to the use and control of the land for street purposes; and, as there is no complaint on this score by appellees, the judgment will not be disturbed. City of East Dallas V. Barksdale, supra. The judgment of the court below is affirmed.

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 thereto a certified 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 until he 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 why 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 aforesaid 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.

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.

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 error. 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 to 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.

CARTER et al. v. ACKER et al. (Court of Civil Appeals of Texas. June 20, 1894.)

TRESPASS-ACTION AGAINST SHERIFF-FRAUDULENT CONVEYANCE.

In an action against a sheriff for the wrongful levy of an execution on goods in the possession of S., as the property of S. & R., and claimed by plaintiffs, it appeared that the goods were purchased by plaintiffs at a sale under an attachment against S. & R. There was evidence that, before such sale, plaintiffs' agent told S. to raise what money he could; that he did so, and turned over to such agent $400; that plaintiffs furnished the balance necessary for the purchase; and that S., at the time of the sale, went to persons who were there to bid on the goods, and told them not to bid, as he was interested in buying them in as cheaply as possible. Held, that it was not error to submit to the jury the issue as to whether plaintiffs sold the goods to S. & R. or to S., or purchased them for the benefit of such parties, with the purpose of defrauding the creditors of S. & R.

Appeal from district court, Delta county; E. W. Terhune, Judge.

Action by Carter Bros. & Co. against George W. Acker, sheriff, and others, to recover damages for the wrongful levy of an execution in favor of C. M. Henderson & Co. on a stock of goods as the property of Steen & Riggs, and claimed by plaintiffs. From a judgment for defendants, plaintiffs appeal. Affirmed.

J. A. B. Putman and Crawford & Keasler, for appellants. L. L. Wood, for appellees Henderson & Co.

LIGHTFOOT, C. J. This is a suit brought by appellants against the sheriff of Delta county and his bondsmen and A. J. Nichols for damages for wrongfully levying an execution in favor of C. M. Henderson & Co. upon a stock of goods in Cooper, at the instance of Nichols, attorney for Henderson & Co.; said goods being in the possession of A. M. Steen, and claimed by appellants. There was a verdict and judgment for defendants, and under the testimony, in accordance with such verdict and judgment, we find the following conclusions: (1) That, in the fall of 1888, Steen & Riggs, merchants in Cooper, failed in business, and were attached by creditors. Their stock of goods was sold at public sale under the attachment proceedings, and the agent of appellants, before such sale, made an arrangement with A. M. Steen, a member of the firm of Steen & Riggs, whereby they furnished all the money they could get up (about $400), and appellants furnished the balance, and bought in the stock at the sale, for Steen & Riggs, at $4,713.17. An agreement in writing was then entered into between appellants, on one side, and Steen & Riggs and A. M. Steen, on the other, whereby the latter executed their note to appellants for the full amount of their indebtedness, including the price paid for the goods

at the sheriff's sale, and also transferred to appellants, as collateral security, their notes and accounts, amounting to largely more than the debt, and agreed to collect them for appellants' account until their debt was paid; and A. M. Steen was to take charge of the goods, and run the business in the name of appellants, and after taking out enough "for a living," and to pay the expenses of running the business, the balance should be sent to appellants, to be applied as a credit upon the note until it was paid. The transaction was entered into, and the business run in the name of appellants, for the purpose of shielding the property from the creditors of Steen & Riggs, who were the real owners of the goods. (2) That the note given by Steen & Riggs to appellants about the time of the purchase by appellants of the goods from the sheriff was intended to represent the entire indebtedness of Steen & Riggs to them. (3) That, at the time of the levy of the execution of C. M. Henderson & Co. upon the goods, they were the property of Steen & Riggs, and subject to such levy. (4) That appellants really had no interest in the goods at the time of the levy, and that appellees were not liable for damages in this suit for such levy. (5) That after the levy there was a final settler.ent between Steen & Riggs and A. M. Steen, on the one side, and appellants, on the other, whereby the latter accepted certain notes and accounts in payment of the balance due appellants.

1. The court did not err in the third paragraph of its charge, as claimed in appellants' first assignment, in submitting the issue as to whether appellants Carter Bros. & Co. sold the goods to Steen & Riggs or A. M. Steen, or purchased them for the benefit of such parties. There was ample testimony upon which to base such charge, and it was clearly submitted. A. M. Steen testified that before the sale the appellants' agent told him to get up what money he could, which he did, turning over to such agent about $400; that witness, at the sale, went to Hubbard and other friends who were there to bid on the goods, and tried to get them not to bid on them, as he was interested in buying them in as cheaply as possible. The whole testimony points irresistibly to the conclusion that the goods were bought in at the sale under an agreement or understanding that the purchase was for the benefit of Steen & Riggs.

2. We think it useless to follow up in detail the numerous assignments of error upon the charge of the court. We have carefully examined the charge, and believe it to be a full, fair, and clear presentation of the issues involved. The questions of law are elementary, and the verdict and judgment are fully sustained by the facts. We do not think there can be a doubt, from the evidence, even of appellants' witnesses, that the goods were the property of Steen & Riggs at