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of the message, the negligent failure to deliv- of this charge, and the overruling of a special er it in a reasonable time, and the damages to exception to the petition, which presented the Mrs. Motley arising from such failure. It al- same question. The charge, in effect, told leged that, if the message had been delivered the jury that if the plaintiff in error negliin proper time, she could and would have ar- gently failed to deliver the message in a rearived at her father's home in Texas in time sonable time, and that, if it had been delivto be present at the funeral of her father; ered, the plaintiff Mrs. Motley could not have and, further, that "if the message had been reached her father's home before the funeral; delivered within a reasonable time, or at any yet, if it had been properly delivered, the time during the succeeding day, she could plaintiff would and could have sent a mesand would have telegraphed to her brother sage to the family that she was on her way, that she was on the way, and that the funer- and if the funeral would have been postponed al could and would have been postponed to for her arrival, by which she would have arawait her arrival."

rived in time to be present at the funeral, the The plaintiff in error presents a number of defendant would be liable in damages, be objections to the judgment which have been cause she was deprived of the opportunity to so frequently decided adversely to its conten- have the funeral postponed, and was thereby tion that we do not feel called upon to give prevented from being present thereat. In them further attention. A number of objec- Telegraph Co. v. Linn (decided at this term) tions are presented to the charge of the court, 26 S. W. 490, this court held that a telegraph upon the ground that it had the effect to au- company cannot be held liable for damages thorize the jury to find against the defendant growing out of the failure to secure the postwithout regard to the question of negligence ponement of a funeral by reason of the failon its part in failing to deliver the message, ure to deliver a message announcing the sickand numerous extracts from the charge are ness of a relative. It is not necessary to regiven to show this to be its effect. A charge peat the reasons given or the authorities cited must be viewed from the standpoint of the in that case. It is decisive of the question. jury, and considered with reference to the In the present case the damages are still probable effect of the charge, as a whole, up- more remote than in the case cited. The on the minds of a jury desirous of obeying evidence shows that, if the message had been the instructions of the court. The first para- delivered in due time, Mrs. Motley or her graph of the charge states clearly the coudi- busband would bave sent a message to her tions and circumstances under which Mrs. brother that she had started, the message Motley could recover, and makes the recov- would have been sent to Collie Neighbors, the ery depend upon the fact that the "failure to brother, at Bonham, care of B. Saunders, deliver the message was caused by the negli- who would have sent it to Collie Neighbors, gence of the defendant, its agents or em- 14 miles from Bonham, and Collie Neighbors ployes.” In the sixth clause of the charge the would have postponed the funeral to await jury were told, in substance, that, in order to the arrival of his sister. The unknown conentitle plaintiffs to recover, they must estab- tingency of Mrs. Motley's determining upon lish by a preponderance of the evidence the the course of sending the message, when no facts and circumstances which entitled them answer was called for, is still to be followed to recover. The second charge defined negli- | by the act of Saunders in forwarding the gence, and we think that the jury must have message 14 miles to a man whose mind is to understood that they could not find for plain- act upon it at last, and who might or might tiffs unless negligence was proved. The evi- not have concluded to postpone the funeral dence is conclusive as to the negligence of the services. Thus the independent action of defendant. It is not denied by defendant's three different individuals, widely separated employes, and no injury could have resulted from each other, must intervene between the to it from the charge in that particular. No negligence of the telegraph company and the other conclusion could have been rendered result. Such damages cannot be recovered upon that issue.

under the well-settled rules of the law. The The court charged the jury as follows: "I court erred in giving the charge, and in overcharge you that if you believe from the evi- ruling the special exception to the petition, dence that, had Mrs. Motley received the tel- which presented the same objection. That egram within a reasonable time after it was Mrs. Motley could and would have reached delivered to defendant's agent at Bonham, the home of her father in time to be present she could and would have arrived at her fa- at the funeral, if the message had been dether's home in time for the funeral, or that livered in a reasonable time, is not estabshe could and would have telegraphed to lished by the evidence with that degree of members of her father's family, and that conclusiveness which will justify this court they would have delayed the funeral, and in holding that, if the objectionable charge that by that means she would have been ena- had not been given, the jury must, in a proper bled to have arrived, and would bave ar- discharge of their duty, have returned the rived, before the funeral, then you may find same verdict. The judgments of the district that the nondelivery of the telegram caused court and the court of civil appeals are reher failure to be present at the funeral.” versed, and the cause is remanded to the disPlaintiff in error assigns as error the giving | trict court for further trial.

case of legal proceedings on this note, I MORAN V. WHEELER et al.

agree to pay ten per cent of the amount as (Supreme Court of Texas. June 27, 1894.)

attorney's fees. Witness my hand, at Mason, VENDOR's Liex-ASSIGNMENT OF PURCHASE-MON

this 24th day of May, 1884. W. E. Wheeler." EY NOTE RELEASE BY VENDOR INNOCENT Kensing made a deed to Wheeler of the same MORTGAGEE.

date, reciting the notes, and retaining a venA vendor's lien must, as against a subse- dor's lien upon the land, which was duly requent mortgage, be shown on the land records like a mortgage; so where a deed showed a

corded. The note was by Kensing indorsed, vendor's lien, and thereafter a release from the

and delivered to Max B. Mayer, for value, vendor was recorded, a subsequent innocent who, for value, indorsed and delivered it to mortgagee would hold against the vendor's lien,

plaintiff, both indorsements being before its though the purchase-money note was assigned before maturity, there being no record of the

maturity. October 20, 1886, Kensing, withassignment of the lien.

out the knowledge or consent of plaintiff, ex

ecuted and delivered to Wheeler an instruError from court of civil appeals of fourth supreme judicial district.

ment in writing, in which he acknowledged Action by Martin Moran against W. E.

the payment of the two notes, and released Wheeler and otlters on a note, and to fore

the vendor's lien on the land described in his

deed and notes. At the time the release was close a vendor's lien. A judgment allowing plaintiff a personal judgment only against

executed, the plaintiff owned the note sued one of the defendants was affirmed by the

upon. The release was acknowledged and court of civil appeals (26 S. W. 297) and

recorded in the proper records of Mason plaintiff brings error. Affirmed.

county on the 29th day of October, 1886; and

on the 27th day of June, 1887, the Land & Marshall Fulton, for plaintiff in error.

Mortgage Bank, a foreign corporation, auWright & Summerlin, J. B. Davies, and C.

thorized to do business in Texas, loaned to Von Carlowitz, for defendants in error. W. E. Wheeler $25,000, taking his note and

a mortgage on a large number of tracts of BROWN, J. Plaintiff in error sued W. E. land, embracing those described in the note, Wheeler, as maker, and Franz Bernhardt, which was duly acknowledged and recorded Henry Kensing, and Max B. Mayer, indorsers, in Mason county, on the same day. The and the Land Mortgage Bank, as subsequent Land & Mortgage Bank had no notice of the incumbrancer, to recover judgment upon the note, except as appeared in the record of the note hereafter set out, and to foreclose the deed from Kensing to Wheeler, and the relien of said note. The suit was discontinued lease thereof. as to Bernhardt and Kensing. Judgment The plaintiff in error presents the case to was rendered in favor of Mayer, because suit this court upon three propositions, which may had not been brought within the time re- be expressed in one; that is, the court erred in quired by law to hold him liable as indorser. holding that the Land & Mortgage Bank, by Wheeler made no answer. The Land & its deed of trust,'acquired a lien upon the land Mortgage Bank answered that the land was superior to that of the vendor's lien note in mortgaged to it to secure a loan of $25,000 the hands of the plaintiff. The transfer of the made to Wheeler, without notice of plaintiff's note sued upon carried with it the vendor's lien. The court rendered judgment against lien upon the land, and the recital in the deed Wheeler for the amount of the note, refusing from Kensing to Wheeler was notice to the to foreclose the lien as against the Land & Land & Mortgage Bank that all of the purMortgage Bank. Moran appealed, and the chase money had not been paid, and that the court of civil appeals affirmed the judgment note sued upon had been executed to secure of the district court.

it. The question to be determined is, did the The facts, so far as necessary to an under- release of the lien upon the land, made by standing of the point involved, are these: Kensing after plaintiff had acquired the note, Kensing sold to Wheeler two surveys of protect the Land & Mortgage Bank, and give land, described in the note below, and took it priority, it having parted with its money two promissory notes, one of which was sued to Wheeler upon the faith of the release, and upon, and is as follows: "$400.00. Mason, without any notice that Kensing bad transTexas, May 24th, 1884. On or before May ferred the note? There is a conflict between 24th, 1886, I promise to pay to the order of two claimants, who are equally free from Henry Kensing the sum of four hundred dol- any intentional wrong, and without any lars, with interest, at the rate of ten per cent knowledge of the wrong that was perpeper annum, from date hereof until paid, for trated by Kensing. The conflict must be value received. This note is given in part settled by a resort to the principles of law, payment for survey No. 111, G., C. & S. F. R. which, though sometimes seemingly in conR. Co., containing 320 acres, and survey No. flict, can generally be reconciled upon sound 123, H., E. & W. T. R. R. Co., containing 588 reason. The note sued upon is negotiable, acres of land, in Mason county, Texas, this which, in the hands of the plaintiff, was not day deeded to W. E. Wheeler; and for the pay- subject to any equities existing between ment hereof, together with the interest there. Kensing and Wheeler. But this does not on, according to the tenor and reading there- protect it against equities arising in favor of of, a vendor's lien is acknowledged; and, in subsequent purchasers without notice, for a valuable consideration. For example, if the signment of the mortgage. Subsequently the note had been in the form that it is, but there vendor (the mortgagee) released the mortgage was no recital in the deed as to the purchase and trust deed, declaring that the notes had money being unpaid, the plaintiff's rights been paid. Pilgrim and Stewart bought the against Wheeler to enforce the lien would land from the mortgagor, after the release of have been the same; but in that case, if an- the mortgage, and paid a valuable consideraother person purchased the land or took a tion, having no notice of the assignment of mortgage for it for valuable consideration, the mortgage or transfer of the notes. It without notice, the lien could not be enforced was held that the purchasers took a title as as against such subsequent purchaser. Hence against the assignee of the mortgage because its negotiable quality does not govern as to it was not recorded, the assignment being the lien, but the law of notice becomes the held to be an instrument authorized to be recontrolling rule for determining the rights of corded under our statute. The opinion is the parties. It therefore becomes important well sustained by authorities, of which we to inquire what is the law of notice as ap- cite Smyth v. Insurance Co., 84 N. Y. 589; plied in this case.

Philips v. Bank, 18 Pa. St. 399; Ogle v. Tur. It is claimed that, as the deed from Ken- pin, 102' Ill. 148; Bowling v. Cook, 39 Iowa, sing to Wheeler gave notice to the Land & 200; Ladd v. Campbell, 56 Vt. 529; and Mortgage Bank that a note had been given for Welch v. Priest, 8 Allen, 165. Some states the purchase money, it should have sought have held a contrary doctrine, but generally out the owner, and learned the truth as to the decisions are based upon the fact that the its payment. In the first place, the owner laws of those states do not authorize the reof the note had the right to release the lien cording of such assignments. Dixon v. Hunwithout having the note paid, and, the re- ter, 57 Ind. 278; Watson v. Investment Co., lease appearing upon the record, the Land & 12 Or. 474, 8 Pac. 548. The case of HenderMortgage Bank had the right to rely upon the son v. Pilgrim settles the law in this state title as it appeared of record. The existence that assignments of mortgages must be reof the lien was the material point for to corded in order to affect subsequent purchasascertain; it was not concerned about the ers without notice, for a valuable considerapayment if the lien was released. However, tion. We now come to inquire as to the efit is equally the duty of a subsequent pur- fect of the principles established by the dechaser or mortgagor to seek for the owner of cision upon assignments of vendor's lien the note, as in case of a mortgage, as in this notes which secure the lien in terms. In Hencase; and we have seen that such a duty is derson v. Pilgrim the court said: “We are of not imposed by law. The record showed that opinion that an assignment of a mortgage is Kensing was the owner of the note. His re- a lien affecting the title to land; lease, executed and solemnly acknowledged, written contract in relation to land; * was upon record, declaring that the notes an agreement;

an instrument of were paid and the lien released. If applica- writing of and concerning land," within the tion had been made to him, what more could meaning of our registry laws, such as ought he have said than this? If inquiry had been to be recorded, to make it effectual against pushed beyond this, then to whom would it subsequent purchasers, for a valuable considhave gone for information? What limit eration, without notice. "If an assignment of would be placed to the scope of a search? It a mortgage, because it conveys a lien upon would be palpably unreasonable to require land, is required to be recorded, how can it be such a fruitless inquiry. In so far as it re- said that an assignment of a vendor's lien tained a lien upon the land to secure its pay- note, which conveys the same character of ment, the note was substantially a mortgage, lien, should not be? The conclusion is irreas mortgages are regarded in this state; that sistible that they are to be governed by the is, a security for the debt. 1 Jones, Mortg. same rule, and both must be recorded for the § 222; Kirk v. Williams, 24 Fed. 442; Ding- same reason. It does not matter that the asley V. Bank, 57 Cal. 467. Considered as a signment may not have been in writing, alnote, it was not within the statute authoriz- though in this case the written transfer of the ing the record of instruments. But as a note effected the transfer of the lien at the mortgage it was entitled to registration, and same time. A mortgage may be transferred must be recorded in order to affect subse- by parol, and in fact, in this state, passes quent innocent purchasers without notice, and with the transfer of the debt, without other for a valuable consideration, if not mentioned evidence of right. It would be an inconsistin the deed. Saunders v. Hartwell, 61 Tex. ent proposition to say that a written transfer 679; Brown v. Thompson, 79 Tex. 61, 15 S. not recorded would not affect subsequent purW. 168. In Henderson v. Pilgrim, 22 Tex. chasers, but that a transfer by parol would 464, one Means and his wife conveyed land to affect their interests. It is the policy of the another Means, a brother. Notes were given law to require that all matters affecting the for the purchase money, and a mortgage and title to lands should be placed upon public deed of trust were executed to secure their records, so that one who seeks to purchase it payment. The notes were negotiable, and may safely judge the validity of the title. the vendor transferred them and the mort. When a purchaser who seeks to buy land has gage to a third party, giving a written as- examined the records of titles, and finds noth


ing to indicate that there is an adverse claim, ants in error in the trial court, which was and he is not in possession of any facts that affirmed upon appeal by the court of civil apwould put him upon inquiry as to any matter peals. 26 S. W. 244. not of record, he has the right to presume All parties claim under E. F. & W. S. Ikard, that any person claiming an adverse right -the plaintiffs in error, under a sheriff's sale would have placed the same upon record, and made by virtue of a judgment against the that there is none. But in this instance the Ikards, foreclosing an attachment lien; the case is stronger for the Land & Mortgage defendants in error, under a sale by virtue Bank, for it appeared that the person in of a decree foreclosing both a mortgage upon whom the adverse claim had existed had re- the land, and also an attachment lien upon it, leased it, and there was nothing to notify in the same proceeding. The mortgage of de him that any other person bad become en- fendants in error was prior to the levy of titled to the lien. It was within the power of the attachment under which plaintiffs in erthe plaintiff to have taken a written assign- ror claim, but the levy of their own attachment of the vendor's lien, and to have placed ment was subsequent thereto. If the sale unit upon record, as the law required, and thus der the decree foreclosing the mortgage passto have secured himself against the acts of ed the title to the land, the judgment in fathe original owner of the lien. The Land & vor of defendants in error is correct; otherMortgage Company had no such opportunity wise, it ought to be reversed. One difficulty for guarding against the wrong; and it must in the case grows out of the description in be held that he who neglects the performance the mortgage. The property which the mortof a duty enjoined, or the exercise of a priv- gage purports to convey consists of eight ilege granted for his security, must suffer the tracts of land described as lying in Archer loss, rather than one who was not in position county. The description, so far as it relates to secure that protection. There was no er- to the property in controversy, is as follows: ror in the judgments of the district court and "7th. Virginia Beatty survey, lying in what the court of civil appeals, and both judg- is known as the Ikard pasture, in Clay and ments are affirmed.

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 CLARK et al. v. GREGORY et al.

the other of 218 acres. The description in (Supreme Court of Texas. June 27, 1894.) the mortgage is an accurate description, as DESCRIPTION IN MORTGAGE - PAROL EVIDENCE TO

far as it goes, of each of the two surveys; EXPLAIN-PARTIES Ox FORECLOSURE-PARTNER- and if it had been the intention of the mort. SUITP DEBTS.

gagors to give a lien upon the one, and not 1. Where the description in a mortgage

upon the other, it would have been a typical describes two tracts of land with equal certainty, and purports to convey only one, parol

instance of a latent ambiguity, for the exevidence is not admissible, where the instru- planation of which parol evidence would ment comes collaterally in question, to show have been admissible. But such was not the that it was the intention of the parties to con

case. It was not the contention of defendvey both tracts, as such evidence does not explain the mortgage, but enlarges it.

ants in error that the mortgage referred to 2. Where a purchaser of mortgaged prem- one of the surveys only, but that it was the ises under an attachment sale is not made a

intention of the parties to include both. The party to a subsequent action to foreclose the mortgage, the decree is a nullity as to him.

parol evidence introduced by them in expla3. Where two firms agree to indorse notes

nation of the instrument tended to support for each other, to enable each other to borrow this claim, and to show that while the mortmoney, the debt of the sureties on a note made in pursuance of the agreement is a partnership

gage was intended to cover both of the Virdebt.

ginia Beatty surveys, by reason of a mutual

mistake, one alone was mentioned. The Error from court of civil appeals of second supremo judicial district.

mortgage operated so as to give a lien upon Action by Clark & Plumb against Gregory,

one of the tracts, provided the intention bad Cooley & Co. and others. From a judgment of

been to convey either one, and not the other.

But, since it described only one Virginia the court of civil appeals (26 S. W. 241) affirming the judgment of the district court,

Beatty survey, it could, under no possible plaintiff's bring error. Reversed.

circumstances, without a reformation, be

made to include both. Where the description Bomar & Bomar, for plaintiffs in error in a conveyance fits equally either of two Clark & Plumb. Hunter, Stewart & Dunklin, things, and one is intended, pa rol evidence as for defendants in error.

to which of the two was intended removes

the ambiguity, and is therefore legitimate. GAINES, J. This was a statutory action The deed, in such a case, is sufficiently de of trespass to try title, brought by the plain- scriptive to convey the thing, and the parol tiffs in error against defendants in error and

testimony is merely admissible in order to others, for the recovery of two tracts of land distinguish the thing conveyed. But where in Archer county, surveyed and patented by there are two tracts of land, to either of virtue of a certificate granted to Virginia which the same description applies, and a Beatty. There was a judgment for defend- 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 decrec 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 de cree 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 deut, 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 error. Reversed.

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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