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of the message, the negligent failure to deliver it in a reasonable time, and the damages to Mrs. Motley arising from such failure. It alleged that, if the message had been delivered in proper time, she could and would have arrived at her father's home in Texas in time to be present at the funeral of her father; and, further, that "if the message had been delivered within a reasonable time, or at any time during the succeeding day, she could and would have telegraphed to her brother that she was on the way, and that the funeral could and would have been postponed to await her arrival."

The plaintiff in error presents a number of objections to the judgment which have been so frequently decided adversely to its contention that we do not feel called upon to give them further attention. A number of objections are presented to the charge of the court, upon the ground that it had the effect to authorize the jury to find against the defendant without regard to the question of negligence on its part in failing to deliver the message, and numerous extracts from the charge are given to show this to be its effect. A charge must be viewed from the standpoint of the jury, and considered with reference to the probable effect of the charge, as a whole, upon the minds of a jury desirous of obeying the instructions of the court. The first paragraph of the charge states clearly the couditions and circumstances under which Mrs. Motley could recover, and makes the recovery depend upon the fact that the "failure to deliver the message was caused by the negligence of the defendant, its agents or employes." In the sixth clause of the charge the jury were told, in substance, that, in order to entitle plaintiffs to recover, they must establish by a preponderance of the evidence the facts and circumstances which entitled them to recover. The second charge defined negligence, and we think that the jury must have understood that they could not find for plaintiffs unless negligence was proved. The evidence is conclusive as to the negligence of the defendant. It is not denied by defendant's employes, and no injury could have resulted to it from the charge in that particular. other conclusion could have been rendered upon that issue.

No

The court charged the jury as follows: "I charge you that if you believe from the evidence that, had Mrs. Motley received the telegram within a reasonable time after it was delivered to defendant's agent at Bonham, she could and would have arrived at her father's home in time for the funeral, or that she could and would have telegraphed to members of her father's family, and that they would have delayed the funeral, and that by that means she would have been enabled to have arrived, and would have arrived, before the funeral, then you may find that the nondelivery of the telegram caused her failure to be present at the funeral." Plaintiff in error assigns as error the giving

of this charge, and the overruling of a special exception to the petition, which presented the same question. The charge, in effect, told the jury that if the plaintiff in error negligently failed to deliver the message in a reasonable time, and that, if it had been delivered, the plaintiff Mrs. Motley could not have reached her father's home before the funeral; yet, if it had been properly delivered, the plaintiff would and could have sent a message to the family that she was on her way, and if the funeral would have been postponed for her arrival, by which she would have arrived in time to be present at the funeral, the defendant would be liable in damages, because she was deprived of the opportunity to have the funeral postponed, and was thereby prevented from being present thereat. In Telegraph Co. v. Linn (decided at this term) 26 S. W. 490, this court held that a telegraph company cannot be held liable for damages growing out of the failure to secure the postponement of a funeral by reason of the failure to deliver a message announcing the sickness of a relative. It is not necessary to repeat the reasons given or the authorities cited in that case. It is decisive of the question. In the present case the damages are still more remote than in the case cited. The evidence shows that, if the message had been delivered in due time, Mrs. Motley or her husband would have sent a message to her brother that she had started, the message would have been sent to Collie Neighbors, the brother, at Bonham, care of B. Saunders, who would have sent it to Collie Neighbors, 14 miles from Bonham, and Collie Neighbors would have postponed the funeral to await the arrival of his sister. The unknown contingency of Mrs. Motley's determining upon the course of sending the message, when no answer was called for, is still to be followed by the act of Saunders in forwarding the message 14 miles to a man whose mind is to act upon it at last, and who might or might not have concluded to postpone the funeral services. Thus the independent action of three different individuals, widely separated from each other, must intervene between the negligence of the telegraph company and the result. Such damages cannot be recovered under the well-settled rules of the law. The court erred in giving the charge, and in overruling the special exception to the petition, which presented the same objection. That Mrs. Motley could and would have reached the home of her father in time to be present at the funeral, if the message had been delivered in a reasonable time, is not established by the evidence with that degree of conclusiveness which will justify this court in holding that, if the objectionable charge had not been given, the jury must, in a proper discharge of their duty, have returned the same verdict. The judgments of the district court and the court of civil appeals are reversed, and the cause is remanded to the district court for further trial.

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A vendor's lien must, as against a subsequent mortgage, be shown on the land records like a mortgage; so where a deed showed a vendor's lien, and thereafter a release from the vendor was recorded, a subsequent innocent mortgagee would hold against the vendor's lien, though the purchase-money note was assigned before maturity, there being no record of the assignment of the lien.

Error from court of civil appeals of fourth supreme judicial district.

Action by Martin Moran against W. E. Wheeler and others on a note, and to foreclose a vendor's lien. A judgment allowing plaintiff a personal judgment only against one of the defendants was affirmed by the court of civil appeals (26 S. W. 297) and plaintiff brings error. Affirmed.

Marshall Fulton, for plaintiff in error. Wright & Summerlin, J. B. Davies, and C. Von Carlowitz, for defendants in error.

BROWN, J. Plaintiff in error sued W. E. Wheeler, as maker, and Franz Bernhardt, Henry Kensing, and Max B. Mayer, indorsers, and the Land Mortgage Bank, as subsequent incumbrancer, to recover judgment upon the note hereafter set out, and to foreclose the lien of said note. The suit was discontinued as to Bernhardt and Kensing. Judgment was rendered in favor of Mayer, because suit had not been brought within the time required by law to hold him liable as indorser. Wheeler made no answer. The Land & Mortgage Bank answered that the land was mortgaged to it to secure a loan of $25,000 made to Wheeler, without notice of plaintiff's lien. The court rendered judgment against Wheeler for the amount of the note, refusing to foreclose the lien as against the Land & Mortgage Bank. Moran appealed, and the court of civil appeals affirmed the judgment of the district court.

The facts, so far as necessary to an understanding of the point involved, are these: Kensing sold to Wheeler two surveys of land, described in the note below, and took two promissory notes, one of which was sued upon, and is as follows: "$400.00. Mason, Texas, May 24th, 1884. On or before May 24th, 1886, I promise to pay to the order of Henry Kensing the sum of four hundred dollars, with interest, at the rate of ten per cent. per annum, from date hereof until paid, for value received. This note is given in part payment for survey No. 111, G., C. & S. F. R. R. Co., containing 320 acres, and survey No. 123, H., E. & W. T. R. R. Co., containing 588 acres of land, in Mason county, Texas, this day deeded to W. E. Wheeler; and for the payment hereof, together with the interest thereon, according to the tenor and reading thereof, a vendor's lien is acknowledged; and, in

case of legal proceedings on this note, I agree to pay ten per cent. of the amount as attorney's fees. Witness my hand, at Mason, this 24th day of May, 1884. W. E. Wheeler." Kensing made a deed to Wheeler of the same date, reciting the notes, and retaining a vendor's lien upon the land, which was duly re corded. The note was by Kensing indorsed, and delivered to Max B. Mayer, for value, who, for value, indorsed and delivered it to plaintiff, both indorsements being before its maturity. October 20, 1886, Kensing, without the knowledge or consent of plaintiff, executed and delivered to Wheeler an instrument in writing, in which he acknowledged the payment of the two notes, and released the vendor's lien on the land described in his deed and notes. At the time the release was executed, the plaintiff owned the note sued upon. The release was acknowledged and recorded in the proper records of Mason county on the 29th day of October, 1886; and on the 27th day of June, 1887, the Land & Mortgage Bank, a foreign corporation, authorized to do business in Texas, loaned to W. E. Wheeler $25,000, taking his note and a mortgage on a large number of tracts of land, embracing those described in the note. which was duly acknowledged and recorded in Mason county, on the same day. The Land & Mortgage Bank had no notice of the note, except as appeared in the record of the deed from Kensing to Wheeler, and the re lease thereof.

The plaintiff in error presents the case to this court upon three propositions, which may be expressed in one; that is, the court erred in holding that the Land & Mortgage Bank, by its deed of trust, acquired a lien upon the land superior to that of the vendor's lien note in the hands of the plaintiff. The transfer of the note sued upon carried with it the vendor's lien upon the land, and the recital in the deed from Kensing to Wheeler was notice to the Land & Mortgage Bank that all of the purchase money had not been paid, and that the note sued upon had been executed to secure it. The question to be determined is, did the release of the lien upon the land, made by Kensing after plaintiff had acquired the note, protect the Land & Mortgage Bank, and give it priority, it having parted with its money to Wheeler upon the faith of the release, and without any notice that Kensing had transferred the note? There is a conflict between two claimants, who are equally free from any intentional wrong, and without any knowledge of the wrong that was perpetrated by Kensing. The conflict must be settled by a resort to the principles of law, which, though sometimes seemingly in conflict, can generally be reconciled upon sound reason. The note sued upon is negotiable, which, in the hands of the plaintiff, was not subject to any equities existing between Kensing and Wheeler. But this does not protect it against equities arising in favor of subsequent purchasers without notice, for a

valuable consideration. For example, if the note had been in the form that it is, but there was no recital in the deed as to the purchase money being unpaid, the plaintiff's rights against Wheeler to enforce the lien would have been the same; but in that case, if another person purchased the land or took a mortgage for it for valuable consideration, without notice, the lien could not be enforced as against such subsequent purchaser. Hence its negotiable quality does not govern as to the lien, but the law of notice becomes the controlling rule for determining the rights of the parties. It therefore becomes important to inquire what is the law of notice as applied in this case.

It is claimed that, as the deed from Kensing to Wheeler gave notice to the Land & Mortgage Bank that a note had been given for the purchase money, it should have sought out the owner, and learned the truth as to its payment. In the first place, the owner of the note had the right to release the lien without having the note paid, and, the release appearing upon the record, the Land & Mortgage Bank had the right to rely upon the title as it appeared of record. The existence of the lien was the material point for it to ascertain; it was not concerned about the payment if the lien was released. However, it is equally the duty of a subsequent purchaser or mortgagor to seek for the owner of the note, as in case of a mortgage, as in this case; and we have seen that such a duty is not imposed by law. The record showed that Kensing was the owner of the note. His release, executed and solemnly acknowledged, was upon record, declaring that the notes were paid and the lien released. If application had been made to him, what more could he have said than this? If inquiry had been pushed beyond this, then to whom would it have gone for information? What limit would be placed to the scope of a search? It would be palpably unreasonable to require such a fruitless inquiry. In so far as it retained a lien upon the land to secure its payment, the note was substantially a mortgage, as mortgages are regarded in this state; that is, a security for the debt. 1 Jones, Mortg. § 222; Kirk v. Williams, 24 Fed. 442; Dingley v. Bank, 57 Cal. 467. Considered as a note, it was not within the statute authorizing the record of instruments. But as a mortgage it was entitled to registration, and must be recorded in order to affect subsequent innocent purchasers without notice, and for a valuable consideration, if not mentioned in the deed. Saunders v. Hartwell, 61 Tex. 679; Brown v. Thompson, 79 Tex. 61, 15 S. W. 168. In Henderson v. Pilgrim, 22 Tex. 464, one Means and his wife conveyed land to another Means, a brother. Notes were given for the purchase money, and a mortgage and deed of trust were executed to secure their payment. The notes were negotiable, and the vendor transferred them and the mortgage to a third party, giving a written as

It

signment of the mortgage. Subsequently the vendor (the mortgagee) released the mortgage and trust deed, declaring that the notes had been paid. Pilgrim and Stewart bought the land from the mortgagor, after the release of the mortgage, and paid a valuable consideration, having no notice of the assignment of the mortgage or transfer of the notes. was held that the purchasers took a title as against the assignee of the mortgage because it was not recorded, the assignment being held to be an instrument authorized to be recorded under our statute. The opinion is well sustained by authorities, of which we cite Smyth v. Insurance Co., 84 N. Y. 589; Philips v. Bank, 18 Pa. St. 399; Ogle v. Turpin, 102 Ill. 148; Bowling v. Cook, 39 Iowa, 200; Ladd v. Campbell, 56 Vt. 529; and Welch v. Priest, 8 Allen, 165. Some states have held a contrary doctrine, but generally the decisions are based upon the fact that the laws of those states do not authorize the recording of such assignments. Dixon v. Hunter, 57 Ind. 278; Watson v. Investment Co., 12 Or. 474, 8 Pac. 548. The case of Henderson v. Pilgrim settles the law in this state that assignments of mortgages must be recorded in order to affect subsequent purchasers without notice, for a valuable consideration. We now come to inquire as to the effect of the principles established by the decision upon assignments of vendor's lien notes which secure the lien in terms. In Henderson v. Pilgrim the court said: "We are of opinion that an assignment of a mortgage is a lien affecting the title to land; * written contract in relation to land; an agreement; an instrument of writing of and concerning land," within the meaning of our registry laws, such as ought to be recorded, to make it effectual against subsequent purchasers, for a valuable consideration, without notice. "If an assignment of a mortgage, because it conveys a lien upon land, is required to be recorded, how can it be said that an assignment of a vendor's lien note, which conveys the same character of lien, should not be? The conclusion is irresistible that they are to be governed by the same rule, and both must be recorded for the same reason. It does not matter that the assignment may not have been in writing, although in this case the written transfer of the note effected the transfer of the lien at the same time. A mortgage may be transferred by parol, and in fact, in this state, passes with the transfer of the debt, without other evidence of right. It would be an inconsistent proposition to say that a written transfer not recorded would not affect subsequent purchasers, but that a transfer by parol would affect their interests. It is the policy of the law to require that all matters affecting the title to lands should be placed upon public records, so that one who seeks to purchase it may safely judge the validity of the title. When a purchaser who seeks to buy land has examined the records of titles, and finds noth

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ing to indicate that there is an adverse claim, and he is not in possession of any facts that would put him upon inquiry as to any matter not of record, he has the right to presume that any person claiming an adverse right would have placed the same upon record, and that there is none. But in this instance the case is stronger for the Land & Mortgage Bank, for it appeared that the person in whom the adverse claim had existed had released it, and there was nothing to notify him that any other person had become entitled to the lien. It was within the power of the plaintiff to have taken a written assignment of the vendor's lien, and to have placed it upon record, as the law required, and thus to have secured himself against the acts of the original owner of the lien. The Land & Mortgage Company had no such opportunity for guarding against the wrong; and it must be held that he who neglects the performance of a duty enjoined, or the exercise of a privilege granted for his security, must suffer the loss, rather than one who was not in position to secure that protection. There was no error in the judgments of the district court and the court of civil appeals, and both judgments are affirmed.

CLARK et al. v. GREGORY et al. (Supreme Court of Texas. June 27, 1894.) DESCRIPTION IN MORTGAGE-PAROL EVIDENCE TO EXPLAIN-PARTIES ON FORECLOSURE-PARTNERSHIP DEBTS.

1. Where the description in a mortgage describes two tracts of land with equal certainty, and purports to convey only one, parol evidence is not admissible, where the instrument comes collaterally in question, to show that it was the intention of the parties to convey both tracts, as such evidence does not explain the mortgage, but enlarges it.

2. Where a purchaser of mortgaged premises under an attachment sale is not made a party to a subsequent action to foreclose the mortgage, the decree is a nullity as to him.

3. Where two firms agree to indorse notes for each other, to enable each other to borrow money, the debt of the sureties on a note made in pursuance of the agreement is a partnership debt.

Error from court of civil appeals of second supreme judicial district.

Action by Clark & Plumb against Gregory, Cooley & Co. and others. From a judgment of the court of civil appeals (26 S. W. 244) affirming the judgment of the district court, plaintiffs bring error. Reversed.

Bomar & Bomar, for plaintiffs in error Clark & Plumb. Hunter, Stewart & Dunklin, for defendants in error.

GAINES, J. This was a statutory action of trespass to try title, brought by the plaintiffs in error against defendants in error and others, for the recovery of two tracts of land in Archer county, surveyed and patented by virtue of a certificate granted to Virginia Beatty. There was a judgment for defend

ants in error in the trial court, which was affirmed upon appeal by the court of civil appeals. 26 S. W. 244.

All parties claim under E. F. & W. S. Ikard, the plaintiffs in error, under a sheriff's sale made by virtue of a judgment against the Ikards, foreclosing an attachment lien; the defendants in error, under a sale by virtue of a decree foreclosing both a mortgage upon the land, and also an attachment lien upon it, in the same proceeding. The mortgage of de fendants in error was prior to the levy of the attachment under which plaintiffs in error claim, but the levy of their own attachment was subsequent thereto. If the sale under the decree foreclosing the mortgage passed the title to the land, the judgment in favor of defendants in error is correct; otherwise, it ought to be reversed. One difficulty in the case grows out of the description in the mortgage. The property which the mortgage purports to convey consists of eight tracts of land described as lying in Archer county. The description, so far as it relates to the property in controversy, is as follows: “7th. Virginia Beatty survey, lying in what is known as the Ikard pasture, in Clay and Archer counties." It was shown by the evidence that there were two surveys in Archer county and in the Ikard pasture in the name of Virginia Beatty,-one of 1,065 acres, and the other of 218 acres. The description in the mortgage is an accurate description, as far as it goes, of each of the two surveys; and if it had been the intention of the mortgagors to give a lien upon the one, and not upon the other, it would have been a typical instance of a latent ambiguity, for the explanation of which parol evidence would have been admissible. But such was not the case. It was not the contention of defendants in error that the mortgage referred to one of the surveys only, but that it was the intention of the parties to include both. The parol evidence introduced by them in explanation of the instrument tended to support this claim, and to show that while the mortgage was intended to cover both of the Virginia Beatty surveys, by reason of a mutual mistake, one alone was mentioned. The mortgage operated so as to give a lien upon one of the tracts, provided the intention had been to convey either one, and not the other. But, since it described only one Virginia Beatty survey, it could, under no possible circumstances, without a reformation, be made to include both. Where the description in a conveyance fits equally either of two things, and one is intended, parol evidence as to which of the two was intended removes the ambiguity, and is therefore legitimate. The deed, in such a case, is sufficiently descriptive to convey the thing, and the parol testimony is merely admissible in order to distinguish the thing conveyed. But where there are two tracts of land, to either of which the same description applies, and a deed purports to convey one of them by such

description, and it is proposed to show, by parol testimony, not that the intention was to convey one, in particular, but that it was to convey both, the offer is not to remove an ambiguity, and to identify a thing that has actually been conveyed, but it is to enlarge the operation of the instrument, and to make it convey two tracts of lands, contrary to the expressed intention to convey one only. This is not evidence to explain a deed. It is simply evidence to add to its terms, and to make it convey more than it purports to convey. Parol evidence is not admissible for such a purpose, where the instrument comes collaterally in question. The remedy. is to bring an action to reform the conveyance, upon the ground of mutual mistake; and we see no good reason why, under our practice, a mortgage may not be so reformed and foreclosed in the same suit, provided, always, that in the meantime rights have not been acquired by third parties which would preclude such reformation.

From the statement of facts in the record, it does not appear whether or not in the suit to foreclose the mortgage, there was any attempt to rectify the mistake in the instrument. It does appear, Lowever, that there was a decree foreclosing the mortgage upon the land in controversy in this suit,-presumably upon, both the Virginia Beatty surveys. Since, without pleading the mistake, and proving it upon the trial, such a judgment could not have been properly rendered, it would seem that, in the state of the record before us, we ought to assume that this was done. But the suit to foreclose the mortgage was not instituted until October, 1890, at which time the land had been sold under the judgment in the attachment suit of the Gainesville National Bank v. Curtis & Atkinson et al., under which the plaintiffs in error claim. That sale conveyed the legal title to the land, even admitting that the mortgage constituted a valid lien upon it. In order, therefore, to foreclose the mortgage, the holder of that title was a necessary party to the foreclosure suit. Whether the plaintiffs in error, or their immediate vendors, held the title at the time the proceedings to foreclose were instituted, the record does not show. But it is unimportant, since neither of them were made parties to that suit, and the decree is therefore a nullity as to them. Morrow v. Morgan, 48 Tex. 305.

It is urged, however, that the land in controversy was the partnership property of E. F. & W. S. Ikard; that the debt upon which the Gainesville National Bank sued out the attachment was the individual debt of the two partners; and that for that reason the attachment of the defendants in error upon an admitted partnership debt, although junior in point of time, ought to prevail against it. There was testimony tending strongly to show that there was an agreement between Curtis & Atkinson, on the one part, and E. F. & W. S. Ikard, on the other, that the two

firms would become sureties for each other, to enable each other to borrow money, and that in pursuance of this arrangement the note to the Gainesville National Bank was given by Curtis & Atkinson as principals, and with the names of E. F. Ikard and W. S. Ikard as sureties. If such were the facts, we are of opinion that the note evidenced a partnership debt. But if the debt of the Gainesville National Bank, for which the land was attached and sold, was not a partnership debt of the firm of E. F. & W. S. Ikard, we are not prepared to say that it would make any difference. The land belonged to the two Ikards, and the debt was the debt of both, and it seems to us the sale under the decree foreclosing the attachment passed the title of both. It may be that it could have been enjoined at the instance of the firm, or of either of them, or of their firm creditors, or that, after it was made, it may have been set aside, in the interest of the creditors of the partnership. But we think it too late to raise the question in a collateral action of this character.

For the reasons stated, we think the court below erred in admitting evidence as to the intention of the parties to the mortgage, and in giving judgment for the defendants in error. The right of defendants in error in this suit, if they have any, is to allege the mistake in the mortgage, and to ask its reformation and enforcement against the land. We see no reason why this may not be done, except that plaintiffs in error may be bona fide purchasers, a question upon which, in the state of the record, we decline to give an opinion. The judgment must be reversed, and, under the circumstances, we deem it just to remand the cause for a new trial, and it is so ordered.

FORD et al. v. FORSGARD et ux. (Supreme Court of Texas. June 27, 1894.) HOMESTEAD-LEASE OF PORTION OF BUILDING.

Where the owner of a building rents the lower front part, and lives in the rear and second story, the whole building is, as his homestead, exempt from execution. 25 S. W. 445, reversed.

Error from court of civil appeals of third supreme judicial district.

Suit by S. J. Forsgard and wife against Dan Ford and others. From a judgment of the civil court of appeals modifying the judgment of the district court, plaintiffs bring erReversed.

ror.

Robertson & Davis, for plaintiffs in error. Baker & Prendergast, for defendants in error.

BROWN, J. This suit was instituted in the district court of McLennan county to enjoin the sale by Dan Ford, sheriff of said county, of one-half of lots 4 and 5, and all of lots 10, 11, and 12, in block No. 2 in the city of Waco. Mary A. Hanna recovered a judgment against S. J. Forsgard for $4,182.30, and defendants T.

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