before maturity of the debt. The statute did not authorize the city to make interest on the whole amount payable annually, when the installments were not due. The interest upon each installment can be collected only when the installment falls due. It was error in the district court and in the court of civil appeals to give judgment for the interest on the entire assessment. Although we would not ordinarily take notice of an error not assigned, yet, when the duty devolves upon this court to enter such judgment as the district court should have entered, an erroneous judgment will not be entered because the point of objection has not been assigned. It is ordered that judgment be entered in favor of the city of Paris, against E. S. Connor, that the first installment of the assessment made against the property described was done on the 24th day of February, 1891, to wit, the sum of $24.67, and that the lien of said city of Paris upon the said lot be, and the same is, foreclosed; said sum of $24.67 to bear interest at the rate of 8 per cent. per annum from the 24th day of February, 1891. It is further ordered that E. S. Connor have judgment against the city of Paris for the costs of the court of civil appeals and of this court, and that the city of Paris recover of E. S. Connor the costs of the district court.

DILLINGHAM v. CRANK et al. (Supreme Court of Texas. June 4, 1894.) ACTION FOR PERSONAL INJURIES-INSTRUCTIONSTELEPHONE WIRE OVER RAILROAD TRACK-LIABILITIES OF Receiver,

1. In an action by a brakeman against the receiver of the H. railroad company, against the C. and F. railroad companies, and against a telephone company, for personal injuries caused by being thrown from a box car by a wire of the latter company over the F. company's track, the receiver claimed and gave evidence that plaintiff was in the employ of and was paid by the C. company, while plaintiff gave evidence that he was in the receiver's employ; and the court charged that if plaintiff was in the receiver's employ, and was also in the employ of the C. railroad.-"in other words," if he was in the joint employ "of the abovenamed parties,"-and was injured while working along the F. railroad, and such last-named road was leased to such receiver, then, if plaintiff was in the employ of the C. railroad and received injury, it would be immaterial in this case. Held, that such charge did not withdraw from the jury the question whether, at the time of the accident, plaintiff was in the employ of the latter company.

2. The court properly refused to charge that, if, at the time plaintiff was injured, he was working for and being paid by the C. railroad company, and not for defendant receiver, the jury should find for the receiver, and that "the question is, for whom was he at work, and in whose pay was he when he received his injuries?"-since such charge put undue stress on the question whether, at the time of his injury, plaintiff received payment for his services from the receiver or such railroad company.

3. Since the accident occurred on the track of a road leased to the receiver, and it was

his duty to furnish a safe track, he was liable to any one injured by his failure to do so, whether the person injured was in his employ or not.

4. It appearing that the telephone wire was located and used before the railroad was constructed under it, the receiver was not entitled to judgment over against the telephone company for the amount of plaintiff's damage, in the absence of some contract or appropriate proceedings condemning the right of way under the wire, and conferring the right to entail on the telephone company the burden of elevating its lines at the point of intersection.

Error from court of civil appeals, fifth supreme judicial district.

Action by John T. Crank against the Southwestern Telegraph & Telephone Company, Charles Dillingham, receiver of the Houston & Texas Central Railway Company, the Ft. Worth & New Orleans Railway Company, and the Texas Central & Northwestern Railway Company, to recover damages for personal injuries caused by the negligence of defendants. There was a judgment of the court of civil appeals (27 S. W. 38) affirming a judgment against defendants Dillingham, receiver, and the Southwestern Telegraph & Telephone Company, and defendant Dillingham brings error. Affirmed.

Head & Dillard, for plaintiff in error Dillingham. John W. Wray, for defendant in error Southwestern Telegraph & Telephone Company. Randell & Wolfe, for defendant in error Crank.

GAINES, J. This is a writ of error to the court of civil appeals from a judgment affirming a judgment of the district court in favor of defendant in error Crank, against the plaintiff in error and the Southwestern Telegraph & Telephone Company, also made a defendant in error in this court. Crank, the plaintiff below, made both Dillingham, as receiver, and the telephone company, parties defendant, and recovered jointly against both. The suit was for damages for personal injuries. At the time when the alleged injury occurred, Dillingham was receiver of the property of the Houston & Texas Central Railway Company, and was operating, in connection with the main line of that company's road, a branch extending from Garrett, through Waxahachie, to Ft. Worth. This branch consisted of two sections of railroad, one of which belonged to the Central Texas & Northwestern Railroad Company, of which Dillingham was president, and the other to the Ft. Worth & New Orleans Railroad Company. The latter was leased to Dillingham, as receiver of the Houston & Texas Central. Before the accident occurred, the plaintiff was employed upon the Houston & Texas Central's main line as a brakeman, but at the time of the accident had been put to work in the same capacity on the Garrett & Ft. Worth branch. In the city of Waxahachie the Ft. Worth & New Orleans Company had a spur track, which, at the time mentioned, was used only for the purpose of

switching. This track passed under a wire belonging to the defendant telephone company. The plaintiff, being upon the top of a box car belonging to a train which was being driven over this track, and being then in discharge of his duty, was caught by the wire, and thrown from the car and injured. The defendant Dillingham sought upon the trial to evade liability by showing that, at the time of the accident, the plaintiff was not in his employment as receiver, but in the employment of the Central Texas & Northwestern Railroad Company. He offered evidence tending to show that the plaintiff, while working on the branch road, was paid by the last-named company. On the other hand, the plaintiff testified that he was at the time in the service of the receiver, and was paid from the same car from which he received pay while working on the main line. His coemployes on the train at the time of the accident also testified that they were, at the time of the accident, in the employment of the receiver. They were the receiver's own witnesses. Upon this issue the trial court gave the following instruction: "If plaintiff was in the employment of Charles Dillingham, receiver of the H. & T. C. Railroad, and was also in the employment of the Central Texas and Northwestern Railway Company,-in other words, if you believe that plaintiff was in the joint employment of the above-named parties,-but you also believe that plaintiff was injured while working along the Fort Worth and New Orleans Railway, and you believe that such last-named road had been leased to said Dillingham as receiver aforesaid, then, if plaintiff was in the employment of the Central Texas and Northwestern Railway, and received injury, it would be immaterial in this case." In the application for the writ of error, it is complained that the court of civil appeals erred in not holding this charge erroneous; and in the same connection it is also complained that that court should have sustained an assignment to the effect that the trial court erred in refusing to give the following instruction: "If you believe from the evidence that, at the time the plaintiff was injured, he was working for and being paid by the Central Texas and Northwestern Railway Company, and not for this defendant, as receiver of the Houston and Texas Central Railway Company, you will find in favor of Charles Dillingham, even though you may believe upon other days he did work for and was paid by Charles Dillingham. The question is, for whom was he at work, and in whose pay was he, at the time he received his injuries?" It is claimed that the charge which was given by the court withdrew from the jury the question whether, at the time of the accident, the plaintiff was in the employment of the Central Texas & Northwestern Railroad Company; but we do not think that such is its proper construction. It was the evident intention to instruct the jury that

it was unimportant that the plaintiff was in the service of the company last mentioned, provided he was in the employment of the receiver at the same time. This is a correct proposition of law. If he was in the employment of both the company and the receiver, and was performing a joint service for both, both owed him the duty of furnishing a safe track. Railway Co. v. Dorsey, 66 Tex. 148, 18 S. W. 444; Railway Co. v. Jones, 75 Tex. 151, 12 S. W. 972. The instruction complained of was a part of the general charge, and in the general charge the right of the plaintiff to recover is predicated upon a finding by the jury that he was at the time of the accident in the employment of the receiver.

The charge which was asked by the receiver, and which was refused by the trial court, was objectionable, for the reason that it puts undue stress upon the question whether, at the time of his injury, the plaintiff received payment for his services from the receiver or from the Central Texas Company. He may have been in the service of the receiver, and may at the same time have been paid by that company. If, in fact, in the receiver's service, it was immaterial who paid him. If the plaintiff received his pay from the railroad company, this was a fact to be considered by the jury in determining whether or not he was then in the employment of the receiver; but it was not a controlling fact in determining the ultimate question of the liability of the receiver, provided it was found from all the evidence that he was in the receiver's service. But the instruction which was refused was objectionable on still another ground. The accident occurred on a track belonging to the Texas & New Orleans Railroad Company. The road of the last-mentioned company was leased to Dillingham, as receiver of the Houston & Texas Central Company, and was operated by him as such receiver. It was his duty to furnish a safe track, and he was liable to any one who was injured by his failure to discharge that duty, whether the person injured was his employe or not. The instruction requested in effect denied this liability. If it had been given, it would have been the duty of the jury to find a verdict for Dillingham, without reference to the fact that the accident was caused by a defective track, which it was his duty to maintain in a safe condition.

The receiver claimed in his answer that, if the plaintiff was entitled to recover, the telephone company was primarily liable for the injury, and prayed that, in the event of a recovery against him, he should have judgment for the amount over against his codefendant. The evidence in relation to this matter was that the telephone line was established before the railroad was constructed at the point where the lines intersected. A pole which supported the wire next to the track of the railroad had been broken in two,

and one of the pieces had been set up in place of the original pole, with a splice at the upper end, in order to increase its height. There was testimony that the wire at the place of repair was of the average height of the wire throughout the line; but upon this point there was a conflict. The repair was made about 12 months before the accident; but, if there was any testimony to show whether the railroad had been then constructed or not, we have not found it in the very voluminous statement of facts found in the transcript. The brief for plaintiff in error does not refer us to any such testimony. The telephone line being established when the track of the railroad company was constructed, it is to be presumed that it was rightfully so established; and we are of opinion that the railroad company had no right to demand that the telephone company should elevate its wire, in the absence of some contract or of appropriate proceedings condemning the right of way under the wire, and conferring the right to entail upon the telephone company the burden of elevating its line at the point of intersection.

In such

a case, we see no ground for the claim of the receiver that his negligence was merely passive, while that of the telephone company was active; or, in other words, that the telephone company was primarily negligent, and that he was only secondarily or incidentally negligent. If it had been shown that, when the railroad was constructed, the wire was sufficiently high to permit brakemen upon the top of box cars to pass under it in a standing position, and that, after the track was constructed, the wire was lowered, so as to make it dangerous to the employes of the receiver, then we would have had a different case. The charge of the court upon this branch of the case was quite favorable to the plaintiff in error. We find no error in the judgments, and they are affirmed.

OPENHEIMER v. ROBINSON et al. (Supreme Court of Texas. June 27, 1894.) JUDGMENT LIEN-INDEX-PURCHASER AT EXECU TION SALE - PRESUMPTION AS TO COMMUNITY PROPERTY-NOTICE FROM RECORDS.

1. An index of a justice's judgment in the name of the plaintiffs as "D. & A. Openheimer," the index in the name of defendant being correct, makes the judgment a lien on defendant's land under a statute requiring that the index shall show the name of each plaintiff. 26 S. W. 320, reversed.

2. Where property deeded to a wife during the marriage was sold under an execution on a judgment creating a valid lien against the community property, the presumption that such property was community property is conclusive in favor of a purchaser at the execution sale who had no notice of other facts. Cooke v. Bremond, 27 Tex. 457, followed.

3. The record of a deed executed by a husband and wife reciting that the property was the wife's separate property was not notice of such fact to a purchaser on execution under a judgment against the husband for a community

debt, if the execution was levied prior to the record of the deed.

4. When the record on appeal recites that evidence was excluded on a certain ground, it will be presumed that it was excluded only on such ground, unless there is something to show another valid ground for its exclusion.

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

Action by Jesse Openheimer against George C. Robinson and others. From a judgment of the court of civil appeals (26 S. W. 320) affirming the judgment of the district court, plaintiff brings error. Reversed.

James Raley, for plaintiff in error. Lewy & West and Barnard & McGown, for defendants in error.

BROWN, J. Openheimer sued Robinson to recover certain lots in the city of San Antonio. Robinson vouched in F. R. Lubbock and his wife, Mary E. Lubbock, his vendors. Upon trial by the court, judgment was rendered for defendants, which was affirmed by the court of civil appeals. The findings of fact by the court of civil appeals are meager, and we copy the findings of the district court so far as they relate to the issues involved.

D. & A. Openheimer recovered a judgment in the justice court of Bexar county against F. R. Lubbock, upon which execution was issued within less than 12 months from the date of the judgment. "On the 6th day of July, 1888, an abstract of the judgment in the above styled and numbered cause was properly recorded in Bexar county, Texas, being indexed in the firm name of D. & A. Openheimer v. F. R. Lubbock, and not in the individual names of the parties of firm." The findings of fact de not show whether the judgment was indexed in the name of the defendant or not. As the court below found that the judgment would have conveyed the title of F R. Lubbock and Robinson if it had been the community property of Lubbock and wife, we presume that the index was in Lubbock's name also. Execution was issued and levied upon the lots in controversy, as the property of F. R. Lubbock, on the 16th day of January, 1891. Jesse Openheimer, not a member of the firm which recovered the judgment, bought the lots at the sale under the execution, which was regularly made. He paid the purchase money, and received a deed from the officer making the sale. court makes no finding that Openheimer paid the purchase money, but, looking to the statement of facts, we find that the uncontroverted evidence establishes that he did. "(6) On the 17th day of February, 1890, F. R. Lubbock contracted with James Raley for the property involved in this suit. The consideration to be paid to Raley was a note of $500, executed by Mrs. M. E. Lubbock alone, payable to the order of James Raley, and F. R. Lubbock directed James Raley to make the Ideed direct to Mrs. M. E. Lubbock. (7) The deed was made in accordance with the di

The

rections of F. R. Lubbock, and his wife executed the note alone. (8) Mrs. M. E. Lubbock had considerable separate estate, while her husband, F. R. Lubbock, had nothing, and it was understood between James Raley and M. E. Lubbock and F. R. Lubbock at the time said note was executed that Mrs. M. E. Lubbock was to pay the note out of her separate funds, and the property purchased was to be the separate estate of Mrs. M. E. Lubbock. (9) The entire transaction between Lubbock and Raley was managed by F. R. Lubbock, and, when the papers had been executed, F. R. Lubbock took the deed to his wife, and gave it to her, declaring that it was executed to her at his request, and that he wanted her to accept it as a payment to that extent upon what he was indebted to her. F. R. Lubbock was indebted at that time to his wife in a sum largely in excess of the value of the property conveyed to her by James Raley. (10) On the 5th day of April, 1890, Mrs. M. E. Lubbock, joined by her husband, conveyed the property in controversy to George C. Robinson, the consideration being the assumption by said Robinson of the payment of the note executed by Mrs. M. E. Lubbock, and the further sum of $500 paid to Mrs. Lubbock in cash oy said Robinson. The court of civil appeals held that the index of the record of the abstract of judgment did not comply with the statute, and that there was no lien fixed. The judgment was recovered in the name of D. & A. Openheimer, and the index, under "plaintiffs," was the same. The statute requires that the index shall show the name of each plaintiff and each defendant in the judgment. Any one looking at the index would understand that the plaintiffs were D. Openheimer and A. Openheimer, just as if the names had been written separately. Reference is made to Pierce v. Wimberly, 78 Tex. 187, 14 S. W. 454, and Gin Co. v. Oliver, 78 Tex. 184, 14 S. W. 451. Neither of these cases sustains the ruling of the court in this case. In each of those cases only the firm name was given, which was not in a form to show the given names of the partners. A substantial compliance with the statute is requisite, but in this case a strict compliance was had. Each partner's given name was shown by the index. The court erred in this ruling. The index was sufficient.

If it be conceded that the lots were, in fact, the separate property of M. E. Lubbock, the question still remains as to what effect the facts constituting that right have upon the plaintiff's title. In order to determine this question, we must look at the case from the standpoint of a man about to purchase at execution sale under a judgment holding a valid lien as against the community property of Lubbock and wife. Thus viewing the facts, they are that F. R. Lubbock and M. E. Lubbock were husband and wife. During the marriage the lots were conveyed by deed to M. E. Lubbock; and after the lien of the judg ent attached, but before the levy of exe

cution, F. R. Lubbock and M. E. Lubbock conveyed the land to George C. Robinson, the wife being privily examined under the statute in the form required for conveying her separate property. Aside from the conveyance to Robinson, the law presumed that the lots were the community property of Lubbock and wife, and subject to the judgment against him. As to the plaintiff, who purchased without notice of other facts, and paid a valuable consideration, this presumption becomes conclusive. Cooke v. Bremond, 27 Tex. 457. This court has followed the case cited until it has become too well settled to be questioned, no matter what might be a decision if it were an original question in this case. What effect, if any, did the conveyance by Lubbock and wife to Robinson have on plaintiff's purchase? He did not claim under this deed, but was a stranger to it. If it had recited that it was the separate property of Mrs. Lubbock, it would not have been binding on him nor notice to him. Devl. Deeds, § 1279. Plaintiff was not bound to look to the chain of title beyond the point where the lien of the judgment attached, and he would not be charged with notice of the record of instruments executed subsequent to that date. If, however, the deed was notice of its existence, then what does it prove? Under the law as the record stood, the lots were the community property of Lubbock and wife. A conveyance of property in which the wife joins does not tend to prove that it is her separate estate. Although unnecessary, it is not unfrequently the case that a wife is called upon to sign deeds for community property as a matter of precaution simply. In a case like this, where the title stood in the wife's name, any prudent buyer would have her signature to a deed; otherwise, his title on record would not be a complete chain, and in all future cases of sale the question of identity between the grantee in the deed with the person signing the subsequent conveyance would require proof to show the relation of husband and wife and the time of marriage. This deed could not serve to give notice of the claim to the property as separate estate of the wife. The record shows that the plaintiff bought under a judgment having a valid lien as against F. R. Lubbock, and that the lots were the community property of F. R. Lubbock and M. E. Lubbock, and plaintiff's title, under these facts, was superior to the title of Robinson.

Plaintiff offered to prove that he had no notice of the claim of M. E. Lubbock that the lots were her separate property, which was objected to because it was immaterial, and the court sustained the objection. Counsel for defendants in error insist that there might have been another reason for excluding the evidence. It is possible that such might be the case, but this court will presume that counsel in the court below made the proper objection, and that the bill of exceptions recites the truth, unless there was some

thing to show another valid ground for excluding the evidence, which does not appear. The judgment was rendered May 27, 1887, and the first execution was issued on the 20th day of June, 1887, less than a year from the date when the judgment was rendered. The claim of defendant in error that the lien was lost by failure to issue execution within a year is not supported by the record. Rev. St. art. 3160. Because of the errors indicated in the opinion, the judgments of the district court and the court of civil appeals are reversed, and this cause is remanded to the district court for trial in accordance with this opinion.

FREEMAN v. McANINCH et al.
(Supreme Court of Texas. June 7, 1894.)
RES JUDICATA.

Where the issue presented by the pleadings was whether the land in suit was included in the survey under which plaintiff claimed, or in that under which defendant claimed, evidence is not admissible, in a subsequent suit between the same parties, to show that only the issue of boundary, and not that of title, was determined, as a decision of the former issue necessarily involved a decision of the latter. 24 S. W. 922, reversed.

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

Action by John D. Freeman against J. F. McAninch and others to recover for a breach of a writ of error bond executed by defendants McAninch and Daniel McCray as principals, and by defendants Elisha Allen and W. S. Miller as sureties, and conditioned that defendants McAninch and McCray would abide the decision of the supreme court, and deliver possession to plaintiff of land for which he obtained judgment in the trial court, in event such judgment was affirmed. Action by McCray against Freeman to recover certain land. Action by McCray against Freeman and another to enjoin Freeman from executing a writ of possession of land in McCray's possession. The actions were tried together. There was a judgment for Freeman, for $32.50, against McCray and McAninch as principals, and against Miller and Allen as sureties; and the judgment further recited that McCray was entitled to the land for which he sued, free from a writ of possession, and that Freeman was perpetually enjoined from acting under the writ. From a decision of the court of civil appeals (24 S. W. 922), Freeman brings error. Reversed.

Peeler & Peeler, for plaintiff in error. W. S. Holman, for defendants in error.

STAYTON, C. J. On December 7, 1878, John D. Freeman brought an action against J. F. McAninch and Daniel McCray to recover a tract of land, containing 6221⁄2 acres, -part of one-third of a league of land orig inally granted to Joseph Washington. The v.27s.w.no.2-7

petition was in the usual form of petitions in actions of trespass to try title, and described the land sued for by metes and bounds. Defendants demurred to the petition; pleaded not guilty, limitation of three and ten years; set up title in themselves to part of the land, giving description of that which each claimed, under a survey made by virtue of certificate issued to George Allen. They also pleaded in estoppel acts of D. C. Freeman, and claimed value of improvements made in good faith. The cause was tried before a jury, and, upon a verdict for plaintiff, judgment was rendered in his favor for all the land sued for, which in the judgment was described as in the petition. From that judgment, defendants prosecuted a writ of error to the supreme court, where the judgment was affirmed. Defendants in that action seek in this to avoid the effect of that judgment, as an adjudication of the title to all the land described in the petition and judgment; and Daniel McCray now asserts title to 134 acres of the land embraced in that judgment, to which he asserts title through a conveyance made by D. C. Freeman pending that action. In the view taken of the case, it is not necessary to inquire whether D. C. Freeman had power, under the will of the mother of John D. Freeman, to convey to McCray, nor whether he assumed to convey, his interest in the particular tract.

On the trial in the district court, evidence was admitted for the purpose of avoiding the effect of the former judgment; and on appeal it was held by the court of civil appeals that such evidence was admissible, one judge dissenting. The pleadings and judgments in the former action were offered in evidence, and it was shown that the court instructed the jury that plaintiff had shown title to the Washington survey, and defendants to the Allen, and that the question for their decision was whether the land sued for was within the boundaries of the former, in which event they were informed that plaintiff was entitled to a verdict, but that

otherwise the verdict should be for the defendants. Over objection of plaintiff in error, the court permitted one of the attorneys for defendants in the former action to state that "he was present, and conducted the trial of said cause on the part of said defendants; that after introducing what evidence was introduced in said cause for defendants, and before the argument of said cause, he spoke to D. C. Freeman (the father of John D. Freeman), who was present in court, and representing said John D. Freeman, and made an agreement with said D. C. Freeman and the attorneys of John D. Freeman, who were conducting the trial of said cause on the part of John D. Freeman, in open court, and in the presence of the court, to the effect 'that the only question involved in cause was one of boundary between the Washington and Allen surveys;' he does not remember that the attention of