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LIGHTFOOT, C. J. I respectfully dissent Action by H. M. Lary, administrator, from the views expressed in the foregoing against H. W. Young & Son. There was a opinion, for the following reasons:

judgment for defendants, and plaintiff brings 1. Because the landlord's lien is valid, and error. Reversed. can be enforced without regard to the dis

Tarlton & Morrow, 'for plaintiff in error. tress warrant.

McKinnon & Carlton, for defendants in error. 2. Under the facts of this case, as disclosed in the record, it does not appear that the

LIGHTFOOT, C. J. This was an action tenant had ever terminated his tenancy, of trespass to try title brought by W. H. or given notice to his landlord of such in

MeDonald in the district court of Hill county, tention, before the filing of plaintiffs' petition to recover a lot in the town of Hillsboro, and to foreclose the landlord's lien.

was prosecuted in the name of H. M. Lary, 3. The hotel furniture upon which the lien administrator of W. H. MeDonald, deceased. was claimed remained upon the rented premi: There was a judgment below for defendants, ses, was in the hotel, was never removed H. M. Young & Son, from which this writ of therefrom, nor does it appear to have been error is prosecuted. About February 2, 1885, in any way disturbed by the officer who Emerson, Talcott & Co. and H. W. Young & levied the distress warrant, up to the time Son entered into the following written con-. the petition to foreclose the lien was filed; tract: and although the tenant, under such circum

“Articles of agreement made and entered stances, might not have been personally pres- into this 2d day of February, 1885, by and ent in the hotel, yet, under the authority of between Emerson, Talcott & Co., of RockMeyer v. Oliver, 61 Tex. 584, I do not be

ford, Ill., of the first part, and H. W. Young lieve that the tenant had ceased to occupy & Son, of Hillsboro, county of Hill, state of the rented premises for more than one month Texas, of the second part, witnesseth: That, before the petition to foreclose the lien was

for and in consideration of the promises made filed. In that case it was held that the pos- by said second party to faithfully carry out session of the officer with the goods of the

the provisions contained in this agreement, tenant was the possession of the tenant.

the party of the first part hereby appoint 4. In this case there was a serious question said second party their agent for the sale of as to whether the citation had not, in fact,

the wagons ordered herein, or which may been issued by the justice of the peace at the hereafter be ordered during the season endtime the distress warrant was sued out; but, ing January 1st, next, to be sold in the folwhether it had or had not been issued, there

lowing territory, and no other, without special was eertainly no lack of diligence on the part permission, and that said first party agrees of the landlord in filing the petition and

to make no other agency in the same terripressing the suit to foreclose the lien. I re- tory during the said season. Hillsboro. gard the right of the landlord to such lien a

"Newton's wagons, with double box, spring substantial legal right, and not dependent seat, brake, feed box, and bows complete. F. upon any technical or strained construction

O. B. at Batavia, Ill. of the statute. See Bateman v. Maddox, 86

Price Tex. 552, 26 S. W. 51. Such rights should

Style Dash.

Depth of Style of

Boxes. Hounds. not be denied where the landlord has been guilty of no laches, but has pressed his claim 24

$51 00 with the utmost diligence.

I respectfully dissent from the opinion and 2 (61234) Cotton boxes for 28% wagon & 3 in. wag. judgment of the majority of the court.

(31 in.) Set axle woods for 234

& 3 in. wag. "In consideration whereof the said second party accepts such agency for the sale of

the above-described wagons, and agrees not LARY v. YOUNG et al.

to sell, or be interested in the sale of, any (Court of Civil Appeals of Texas. Sept. 19, other wagons used for like purposes while 1894.)

this agreement is in force. The said second APPLICATION OF CREDITS-INSTRUCTION-NECES- party agrees to deliver no wagon to purchasBITY FOR REQUEST.

er without first securing payment in cash, or 1. Where a person indebted on an open ac- a well-secured and collectible note, payable count also owes a debt which constitutes a lien on his land, the creditor, in the absenee of any

to the first party, and further agrees to remit specific appropriation of money due the debtor to first party, at Dallas, Texas, the wholesale by him, may apply it on the open account; and cash price for each wagon sold for cash withthe debtor cannot subsequently claim a different appropriation, to the detriment of a pur

in ten days from the first day of the month chaser under the lien debt.

succeeding date of such sale, and, when call2. When a written contract is unambiguons, ed on for settlement of account for the seaits construction is for the court. 3. The failure of the ccurt to submit a cer

son, to turn over to the first party the whole tain issue to the jury cannot, in the absence of

number of notes taken for time sales, said a request for such charge, be complained of for notes to bear 10% interest from date; to acthe first time on motion for a new trial.

count for wagons sold on time; and notes Error from district court, Hill county; J. to be on blanks furnished by and payable to M. Hall, Judge.

said first party, and to become due not later

No. Size.

at Fao tory.

1 13 1

3 in.

58 00 56 00 4 00 4 00

than November 1st, 1885. Payment of such said two wagons the note of said H. W. notes to be guarantied by indorsement of Young & Son for $110, due November 1, 1885, said second party, who hereby promise to with a deed of trust to secure the same on take up promptly, 60 days after maturity of said town lot. The note not having been same, any and all notes not paid by the mak- paid at maturity, the lot was sold under the

It is further agreed that each wagon deed of trust, and bought at the sale by sold on time shall be represented by a note Emerson, Talcott & Co., who sold the same at the usual retail price for such wagon, and for $250 to W. H. McDonald, intestate of that any wagon not so represented shall be plaintiff in error. The record does not show considered as having been sold for cash, and that McDonald knew anything about the money for same due and payable to said transaction between Emerson, Talcott & Co. first party on demand; and, if any are sold and Young & Son. It was claimed by defor part cash and part notes, the cash, ex- fendents in error that at the time of the sale cept the freight part on wagon, to be remit. of the lot under the deed of trust they had ted to first party at same time as if the whole sufficient commissions in the hands of Emerpayment had been in cash. The wagons son, Talcott & Co. to pay off the $110 note named herein are now delivered at Hillsboro, and release the deed of trust. It was shown and all freight and other charges paid by by the testimony, and not controverted, that, said second party. Second party agrees also at the time of the sale under the deed of to protect the wagons from the weather, and trust, Emerson, Talcott & Co., or their agent, to insure them in name of, and loss, if any, had in their hands some notes which had payable to, first party, and send insurance been placed there by Young & Son, as the polier to first party. It is also agreed that purchase price for wagons sold under said the wagons may be shipped by the first party contract; said notes being against various between 188- and 188, or, not being able to parties, and indorsed by Young & Son, and do so between the dates named, to ship as said notes embracing the amounts going to soon thereafter as practicable, and, further, the company, and also the commissions of that any wagons ordered in addition to above Young & Son. shall be settled for as per price, terms, and 1. The following charge was given by the conditions of this contract. Said second court to the jury, which was objected to by party further agrees that the said first party plaintiff in error, and the objection properly may at any time revoke this contract for presented by his first assignment of error: nonfulfillment or violation of any of its pro- If you believe fom the evidence that under visions on the part of the second party, and the contract between Emerson, Talcott & Co. that all wagons remaining unsold, and all and H. W. Young & Son, said Emerson, Talthe notes and the money taken for wagons cott & Co. were to furnish said H. W. Young sold, shall be deemed the property of said & Son with wagons at a certain stipulated first party, with undisputed right to take price, and that said Young & Son were to possession of same at any time, and without sell the same for cash or on a credit, and take any claim thereon by said second party or notes for them, if any sold upon time, and by any other persons, by reason of any act were to indorse said notes, and send same done or promise made by said second party, to said Emerson, Talcott: & Co. or to their until a sufficient amount in cash has been agent, J. M. Wendelkin, and said Young & paid to said first party to cover the amount Son were to receive a certain per cent. upon then due for wagons furnished to and sold the payment of each of said notes as comby said second party for account of said first missions for their services in making sale party. It is further agreed that the com- of said wagons, and shall believe that said mission earned by the sale of the goods fur- Young & Son had sold wagons so provided nished under this contract shall be that sum them, and had remitted to said Emerson, received for sales in excess of the wholesale Talcott & Co. or their said agent the notes, inprice charged for same by first party. When dorsed by them, said Young & Son received the full amount due first party has been paid for the sale of wagons, and shall further be. them in cash from the cash sales and from lieve from the evidence that said notes, or collections made by first party on the notes, any one of them, or more than one of them, •the balance shall be turned over to second had been paid to said Emerson, Talcott & party in full of their commission, except that Co. or their said agent at the time of the sale the interest on the notes shall go to first of the land sold by said plaintiff acting as a party. In testimony whereof the said party trustee as aforesaid, so that at the time of of the first part and the party of the second said sale there was due said Young & Son, as part have hereunto set their hands the day commissions upon the notes so paid, if any, and year first above written. Emerson, an amount suflicient to pay off and discharge Talcott & Co. Per Shive. H. W. Young & the note executed by Young & Son for the Son."

ers.

sum therein named; that by agreement be. About January 10, 1885, H. W. Young & tween the parties the said company or its Son purchased the lot in controversy, and in agent had the right to pay off said note with part payment for the same exchanged two amount of such sum as commissions then in wagons furnished to them by Emerson, Tal- the hands of said company or its agent; and cott & Co., and gave to them for the price of that the amount of said commissions, if any,

was at said time in the hands of Emerson, the absence of any specific appropriation of Talcott & Co. or their agent,-then, if you so such credit to the $110 lien debt, the creditor believe from the evidence, you will find for would have the right to appropriate it to the defendants." This charge was erroneous, either debt, and Young & Son could not suband calculated to mislead the jury. The con- sequently be heard to claim a different aptract between the parties was in writing, propriation, to the detriment of a purchaser and its terms easily understood; and, from under the lien debt, if he bought upon a clear the testimony of the parties themselves, it is record, without notice of the arrangements evident that upon the material points they between the debtor and creditor. Willis v. all understood it alike: (1) The goods were | McIntyre, 70 Tex. 34, 7 S. W. 594. billed to Young & Son at the wholesale prices, 2. Plaintiff in error, under his third assignand they were to make, as their profits, the ment, complains of the following charge: difference between such wholesale prices and "But, on the other hand, if you believe from the prices at which they might sell. (2) In the evidence that by the terms of the concash sales, Young & Son were allowed to de tract between Emerson, Talcott & Co. and duct their profits out of each sale, and were said Young & Son, said Young & Son were to remit only the wholesale price directly to sell wagons furnished them by said comto Emerson, Talcott & Co. (3) In sales on pany, and to receive notes for such wagons credit, or for part cash and part on credit, as were sold on a credit, and that said notes, they were to send the whole amount of both after having been indorsed by said Young cash and notes to Emerson, Talcott & Co. & Son, were to be sent to said Emerson, Tal(4) All notes were to be indorsed by Young cott & Co., or their said agent, and that by & Son, were to be payable not later than No- the terms of said contract no commission vember 1, 1835, and if not paid in sixty days arising from the sales was due and payable after maturity they were then to be taken to said Young & Son until all the notes sent up and paid promptly by Young & Son. (5) by them to said company or its said agent When the full amount due to Emerson, Tal- had been paid off, and shall further believe cott & Co., at the wholesale prices for the from the evidence that said company or its wagons, was paid, the balance, whether mon- said agent had in possession, at the time of ey or notes, or both, was the property of the sale by said sheriff under authority of Young & Son. There was no evidence of any said deed of trust, notes which had not been contract by which Young & Son were to get paid off, then you cannot find for defendants any fixed per cent. upon sales, nor did they under their plea of payment.” This charge have any right to deduct from each separate is objectionable upon the ground that, in atsale their profits, except in sales made entire- tempting to present the view of plaintiff in ly for cash. There is no testimony in the rec- error of the case, it presents the written conord showing or tending to show that at the tract, which is plain in its terms, for the contime of the sale of the lot in controversy struction of the jury, and in doing so places there had been any settlement between Em- upon plaintiff in error the burden of showing erson, Talcott & Co. and Young & Son upon therefrom that no commissions were due to this contract, or that all the notes turned in Young & Son "until all the notes sent by by the latter and guarantied by them have them to said company or its said agent bad been settled, or that under such a settlement been paid off," when, by the plain terms of there would have been an amount due to the written contract, which should have been them sufficient to pay off and discharge the construed by the court, “when the full amount $110 note. The charge, as given, seems to due first party [Emerson, Talcott & Co.) has construe the contract to mean that, upon the been paid them in cash from the cash sales collection of each separate note, Young & and from collections made by first party on Son could immediately claim their profits the notes, the balance shall be turned over or commissions upon that particular sale, to second party [Young & Son)," etc. Young and if, by agreement of the parties, the & Son were not to wait until all the notes company had the right to pay off said note were collected by Emerson, Talcott & Co. out of such commissions, that whenever before they should get their profits from the a sufficient amount should be realized upon notes, but they were to wait until the full such notes to thus give Young & Son a credit amount due to Emerson, Talcott & Co. had. large enough to liquidate the $110 note, it been paid them in cash from such sales and was the duty of the company to so apply it, collections, and the balance should then be even though there might remain on hand a turned over to Young & Son. large amount still due Emerson, Talcott & 3. Under the fourth assignment, which is Co. for notes unpaid or for wagons unac- upon the court's overruling the motion for counted for under the terms of the contract. new trial, plaintiff in error attempts to raise We do not thus construe the contract made the question of error in the court's refusal by the parties. But even if Young & Son at to submit to the jury the issue as to whether the time of the sale had a credit in the hands McDonald was an innocent purchaser. It of Emerson, Talcott & Co., which they had does not appear from the record that plaindirected paid on their indebtedness, if Young tiff in error requested any charge submit. & Son were indebted for wagons on general ting that issue. In the absence of any ataccount and also for the $110 lien debt, in tempt to procure the court to submit the

issue, or a refusal of the court to submit it, for plaintiff, from which defendants appeal. plaintiff in error cannot be heard to com- Reversed. plain for the first time on a motion for new

G. G. Kelley, W. S. Brooks, and Hume & trial.

Kleberg, for appellants. A. B. Peticolas, 4. The counsel for defendants in error, in

E. Hawes, and Willie, Campbell & Ballinger, their able brief, contend that the questions

for appellee. presented by plaintiff in error are not material, for the reason that, certain deeds in GARRETT, C. J. J. W. Brown filed his plaintiff's chain of title being void for want original petition of trespass to try title in the of sufficient description of the lot, it was the district court of Wharton county on March duty of the court below to have charged 17, 1885, to recover of the appellants a certhe jury to find a verdict for defendants, and tain tract of land, described in the petition that this court should affirm the judgment as one-fourth league No. 12, known as the below, as the result could not have been "Seth Ingram League,” on the San Bernard otherwise. We cannot agree with this posi- river, as well as by metes and bounds, which tion. It is conceded that the lot is properly embraced only land wholly within the Seth described in the petition. After describing Ingram league. Plaintiff also averred that it by metes and bounds, giving the number he and those persons under whom he claimed, of lot and block and street, it says, “Being claiming to have good and perfect right and the same property conveyed to Young, Mar- title to the land, had held peaceable, contintin & Co. by G. V. Rawls, by deed recorded uous, exclusive, and adverse possession therein book 12, page 541, Hill County Deed Rec- of for a period of more than 25 years before ords." The description in the deed of trust, the entry of defendants, and prayed that a while not so full and clear, yet describes surveyor be appointed, and ordered to make the lot as situated on South Waco street a survey marking the lines, and showing (which is admitted to be South Main street), what part of plaintiff's land the defendants in the town of Hillsboro, in said county and had fenced, etc. The defendants were claimstate, being the same house and lot deeded ing a tract of land adjoining plaintiff's land, to Young, Martin & Co. by G. V. Rawls and situated in the Edwards league. On Ocwife. This deed to Young, Martin & Co. tober 22, 1885, plaintiff and defendants, by by Rawls and wife was introduced in evi- their attorneys, entered into a written agreedence, and described the land as set out in ment, which, in addition to stipulations for a the petition. This testimony was certainly survey of the land, as to the surveyor's resufficient to allow the case to go to the jury, port, and as to record evidence, contained the and the court would not have been justified following: “It is hereby agreed that there is in instructing a verdict for defendants in no conflict of title in this case, but merely a error upon that point. For the errors indi- question of boundary; that plaintiff owns his cated above the judgment is reversed, and land in the Ingram league, No. 12, by valid the cause remanded for a new trial.

title, and defendants own their land in the Edwards league by valid title, and the subject of the dispute is to fix the true dividing

line between said two leagues, which is the TAYLOR et al. v. BROWN.

boundary between plaintiff and defendants." (Court of Civil Appeals of Texas. Sept. 13,

Also: "Either party may plead and prove the 1894.)

laws of limitation, good faith, and valuable TRESPASS TO TRY TITLE-EVIDENCE-LIMITATIONS

improvements, so far as applicable or rele-INTERRUPTION OF STATUTE.

vant, and also value of use and occupation 1. In trespass to try title the parties stip- and damages.” April 24, 1891, plaintiff filed ulated that the sole issue was the location of a second amended original petition, in which the boundary line between two leagues in which their lands were respectively located, but re

he claimed title to the land by the statute of served the right to plead and prove the statute

limitation of five and ten years, but in deof limitations as far as applicable. Held, that scribing the same the calls for distance to evidence of title by limitation to the land in dis

the southwest and to the northwest were expute was admissible. 2. In trespass to try title, where an amend

tended beyond the original calls, and were ed petition is filed, including land not included not limited by the southwest boundary of the in the original petition, the running of the stat league as in the original petition. The de ute of limitations as to such additional lands

fendants answered that there was no conflict was not interrupted by the filing of the original petition.

of title, but of boundary only, between the 3. In trespass to try title, where defendant parties, the issue being the location of the shows possession under a deed from some of the

dividing line between the Ingram and Edheirs to the land, and a subsequent partition, in which the identical land was allotted him, there

wards leagues,-plaintiff's land lying in the is privity of title between the deed and the par. Ingram and defendants' land in the Edwards. tition, which will support a plea of the five They also pleaded facts with reference to years' limitation.

the fixing of the line claimed by defendants, Appeal from district court, Wharton coun- by which they averred plaintiff was estopped ty; T. S. Reese, Judge.

to claim a different line; the statute of five Trespass to try title by J.W. Brown against years' limitation; and improvements in good W. T. & S. T. Taylor. There was judgment faith.

new

It is shown by the evidence that on Decem- was had, includes land clearly not included ber 4, 1866, plaintiff and one Williains bought in the original petition. It ineludes, in ad. from E. D. Galbraith the one-quarter of a dition to the land described therein, all of league allotted to Nancy Thompson in the par- the land recovered to the southwest of the tition of the Seth Ingram league, which was Ingram southwest boundary, the latter de described in the deed as in plaintiff's original scription extending the lines running southpetition. Galbraith bought from Nancy west several hundred varas, and ignoring the Thompson in 1857. After Galbraith bought, call for the Ingram southwest boundary, and he cleared a field on the southwest end of the extending several hundred varas beyond it. tract, and put it in cultiration, and the fence | As to so much of the land described in the wa the southwest side of this field is the line second amended original petition as lay beto which plaintiff claims. Defendants, claim- yond the boundary, the cause of action was ing land on the Edwards league, in 1883, pro- a

one. The evidence showed that cared a surveyor to run out the league line, Brown claimed the old field fence as the and in accordance with this survey moved boundary in claiming to the boundary; up their fence, and took in their inclosure hence his claim was such as would be requi. about 97 acres of the old Galbraith field, site to support the statute of limitations.

which had been in the possession of plaintiff There was not sufficient evidence to support - and his vendor for more than 20 years. De- the plea of estoppel. fendants have remained in possession of that For the error of the court in holding that portion of the old Galbraith field fenced in the statute of five-years limitation, which had by them ever since 1883 under a deed duly commenced to run in favor of the defendants, recorded, having paid all taxes. The case was interrupted by plaintiff's original petiwas tried below without a jury. The court tion, the judgment of the court below will rendered judgment for the land in controver- be reversed, because the full term of five sy, up to the old field fence, in favor of plain. years ran before the filing of the second titr, upon his title by limitation, holding that amended original petition. This view of the

the filing of plaintiff's original petition inter- case makes it at last one of boundary, as far ropted the statute of limitations running in as presented by the record, for the limitation

favor of the defendants. Upon the question running in favor of defendants was interof boundary the trial judge found that he rupted by the original petition as to all the was unable to ascertain the boundary, but land included in the Ingram league. But as that it was not nearer the old Galbraith the court failed to ascertain the boundary field fence, to which plaintiff recovered, than the cause must be remanded for another 50 varas.

trial. Reversed and remanded. Complaint is made here of the admission of evidence by the court below to prove title

On Rehearing. in plaintiff by limitation, it being claimed In giving our reasons for reversing the that he is precluded from doing so by the judgment of the court below in this case, agreement between the parties above men- we did not deem it necessary to discuss the tioned, it being contended that the agreement two questions presented in the motion for rerestricts the issues to one of boundary. It hearing as having been passed over by this is true that the first part of the agreement court in the opinion. appears to make the restriction as contended, 1. The evidence with regard to the deposbut when construed with the latter part, with iting with the clerk of the pleading styled respect to limitation, its force is only to re- "First Amended Original Petition” utterly hieve the parties from the necessity of prov- fails to show that it was done within five ing up title to the lands claimed by them years from the time defendants took posseswithin the respective leagues. The lan- sion of the land under their deed from J. H. guage of the reservation as to limitation is Shapard, and the finding of the court below to "prove the laws of limitations” as far as that there was no satisfactory evidence to applicable. While proof of lapse of time in justify its being considered as a paper filed connection with possession to a boundary, and in the case could not have been otherwise. acquiescence therein, is admissible to prove 2. Defendants claimed the land under a boundary, still there is no fixed period of lim- deed from J. H. Shapard executed September itation that would do so, and the laws of 2, 1883. The defendant W. T. Taylor testilimitation are not applicable to a question of fied: "I went into possession of this portion boundary. So there was no error in receiv. under my deed from Shapard, and have held ing the evidence to show that the plaintiff possession under this deed ever since, hay. had title by limitation. It was authorized ing always claimed the identical land conby the pleading, and was not in contraven- veyed to me by Shapard. I bought onetion of the agreement.

third of the Edwards league from the heirs, But the court erred in holding that the and also the one hundred acres from Mr. statute of limitation already in operation in Shapard; but afterwards it was found that favor of the defendants was interrupted by in the first partition of the league, made be the filing of the original petition. The de- fore my purchase from Shapard and from scription contained in the second amended this heir, -that one heir was left out,-and -original petition, upon which the recovery since this suit was brought there has been

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