matter what the purpose of the said Iiams | thoroughly discussed by the opinion in that was in making the sale, to convey the chil- case. There was a dissenting opinion in the dren's right and interest therein inherited case, and a writ of error was denied by the from their mother. Supreme Court. So that we think we must hold that this question was finally settled by that decision, and it is not necessary to devote further time to its consideration. We conclude, therefore, that the judgment of the district court should be affirmed. HEDRICK v. MATTHEWS. Nov. 26, 1919.) (No. 1598.) 1. APPEAL AND ERROR 781(6)-DISMISSAL ON SHOWING OF SETTLEMENT BY PARTIES. Where parties have actually settled or agreed on terms of settlement of the matters in shown in the Court of Civil Appeals, the appeal dispute pending an appeal, and the fact is should be dismissed, having become moot. 2. APPEAL AND ERROR DOES NOT DEFEAT JURISDICTION ACQUIRED BY FILING BOND. 19-SETTLEMENT [1-3] The property was the community property of Frank W. Iiams and his wife, and upon the death of the wife the children inherited her interest therein. The surviving husband, however, had the right to dispose of the entire community interest in the property for the purpose of paying community debts. When this power exists, the only limitation that the courts impose upon its exercise is that of good faith. The purchaser at a sale of community property, made by the survivor, is bound to ascertain that the (Court of Civil Appeals of Texas. Amarillo. facts exist that confer the power of sale on the survivor. Having ascertained that such facts do exist, he may assume that the survivor is acting in good faith in making the sale, provided, of course, that he has no notice or the facts surrounding the sale are not sufficient to excite inquiry that the power is being exercised for some ulterior purpose. So that ordinarily, the purchaser, in order to defend his title, against the claims of the wife's heirs, is only bound to show the existence of community debts at the time of his purchase. These general conclusions are sup-diction of an appeal when appellant filed his The Court of Civil Appeals acquired jurisported by the following authorities: Johnson supersedeas bond with the clerk of the county v. Harrison, 48 Tex. 266; Sanger Bros. V. court, and settlement of the matters in dispute Heirs of Moody, 60 Tex. 96; Crawford v. by the parties would not defeat such jurisdicGibson, 203 S. W. 375; Cage v. Tucker's tion. Heirs, 14 Tex. Civ. App. 316, 37 S. W. 180; Cruse v. Barclay, 30 Tex. Civ. App. 211, 70 S. W. 358. In the case before us it was shown that community debts existed and were a specific charge on the particular tract of land that was sold; as a result of the sale the obligation due the state was discharged, though it is not shown whether the other debt was paid out of the proceeds of the sale or not. The purchaser, however, did not have to see to the application of the proceeds. The facts do not show that the sale was made in fraud of the heirs. These facts warranted the court in finding that the defendants had discharged the burden that the law imposed on them in order to uphold the sale. Morgan v. Lomas, 159 S. W. 869, and Jones v. Harris, 139 S. W. 69, in addition to authorities already cited. [4] The case of Jones v. Harris, supra, is authority on the second proposition urged by appellant, as stated, to the effect that the conveyance by Iiams passed only such interest as the husband himself had to the property. The facts in this case are very similar to those in the case of Jones v. Harris. In the deed in that case the surviving husband, as in this case, conveyed "all my right, title and interest" in the land, and it was decided that such deed conveyed the entire interest that Jones and his deceased wife had in the land. The contention urged by appellant as to the effect of this deed was 3. APPEAL AND ERROR 1127-CONSIDERA TION OF AFFIDAVITS IN OPPOSITION TO MO- If the issue made on the question of settlement by the parties affected the jurisdiction of the Court of Civil Appeals under Vernon's Sayles' Ann. Civ. St. 1914, art. 1593, it could consider, to determine the fact of jurisdiction only, the affidavits presented by appellant in opposition to appellee's motion to affirm on certificate. 4. APPEAL AND ERROR 1127 AGREEMENT TO SETTLE NOT CONSIDERED WHERE JURISDICTION HAS ATTACHED. Jurisdiction of the Court of Civil Appeals having attached when appellant filed his supersedeas bond with the clerk of the county court, and the issues tried below being pending, the court will not consider the question whether there has been an agreement to settle between the parties, though appellant in his affidavits in opposition to appellee's motion to affirm on certificate states facts tending to show such an agreement. Appeal from Hartley County Court; J. H. Phillips, Judge. Action by J. E. Matthews against F. M. Hedrick. Judgment for plaintiff, and defendant appeals. On motion by appellee to affirm on certificate. Motion granted. J. N. Browning, of Amarillo, for appellant. (216 S.W.) "Hedrick says he is willing to pay the costs of the suit at Channing if you will drop the judgment you have against him." HALL, J. This is a motion by appellee, [ card from appellant to his attorney, stating filed under Vernon's Sayles' Civil Statutes, that appellee had agreed to withdraw his art. 1610, to affirm a judgment rendered judgment claim and to let the matter stand. against appellant in the county court of Hart- An affidavit of the county clerk of Hartley ley county. The transcript filed in this court county is also attached, in which he states shows the amount of the judgment to be that on or about the 15th of August, 1919, $SS. In addition to a copy of the judgment, appellee came into his office and asked if the transcript also contains a copy of the appellant had paid the costs in the case, saysupersedeas bond, filed with the clerk of the ing that he and appellant had agreed to settle court below. The clerk certifies that no tran- the matter in controversy between them, and script of the record for appeal had been made that he would surrender his judgment when because none had been ordered by the appel- appellant complied with his agreement to pay lant. Appellant contests the motion to af- the costs of the suit. At that time appellant firm, stating that he abandoned his appeal had paid the $124.69 costs and advised affiant after filing the supersedeas bond upon advice that he and Matthews had reached an agree of counsel that it would be cheaper to com- ment and settlement of their suit and requestpromise the same; that on account of the ed affiant to take no further action toward litigation between the parties their personal appealing the case. Appellee has filed in this relations were unpleasant, and he employed court his reply to appellant's contest of the one Williams, a mutual friend to bring about motion to affirm, in which the allegations of a compromise of the matter in dispute; that appellant are denied. Attached to this denial through the said Williams he proposed to is the affidavit of appellee, stating in subappellee that appellant would pay all the costs stance that, in the early part of the second in the county court, abandon his appeal and week of August, Williams approached him all claims of every nature, if appellant would at Hartley, saying that Hedrick wanted to relinquish his rights under the judgment ren- settle the suit. Affiant replied, "All right, I dered in the county court; that through the have been willing to settle any time." Wilsaid Williams appellee submitted to appel-liams then stated to affiant: lant a counter proposition, to the effect that he would accept appellant's proposition if appellant would pay off a note upon which suit had been filed against appellee in the justice court in Amarillo, and in which suit a writ of garnishment had been issued, and served on appellant, and would also pay the costs of the justice court at Amarillo; that appellant declined to accept the counter proposition, whereupon appellee agreed to appellant's proposition as originally outlined; that appellant then wrote his attorney at Amarillo, informing him of the compromise agreement, and thereafter, believing that a compromise had been actually made, and acting in good faith, he obtained a certified bill of costs from the county clerk of Hartley Affiant further states that he sent a mucounty, paying all of the costs except a bal- tual friend, F. A. Cox, to see appellant, who ance of $14.45, which was withheld until returned and told affiant that Hedrick had appellant's attorney had time to investigate agreed to settle upon appellee's terms; that certain items amounting to that sum, and later an execution was issued against affiant notify appellant whether or not they were out of the justice court at Amarillo, on the legal charges; that soon afterwards appel- judgment rendered against Hedrick. There lant's attorney sent appellee a written agree- is also attached an affidavit by Williams, statment of compromise, which appellee stated ing that Hedrick requested him to see appelwould be submitted to his own attorney be- lee in regard to compromising this suit; that, fore signing it; that since said time appellant so far as he knew, the parties never reached has never been notified as to what would be or made any settlement of the matter; that done with reference to such writing, but, be- Hedrick handed him a written statement lieving that appellee would abide by his which he requested Matthews to sign in setagreement to compromise, he directed his at- tlement, and Matthews said he would see his torney to take no further steps toward pros- attorneys before signing it. Shortly thereaftecuting the appeal; that he had about one er, Matthews told affiant he would not sign the month from the date of the compromise paper, and that he communicated that fact to agreement in which to perfect his appeal, Hedrick in a day or two. There is further atwhich would have been done but for his belief tached an affidavit by one of the attorneys that the matter had been settled. There is for appellee, showing his correspondence with attached to the affidavit of contest a post appellant's attorney, stating that Mr. Mat The affidavit further states: "I told him that I would not do this, but further told him I had been sued at Amarillo for something like $50, and if Hedrick would pay off the amount of the note sued on and the costs of the suit, and pay all costs accrued in the my lawyers would approve it, I would settle. I county court of Hartley county, in this suit, and discussed the matter with my attorneys, and they told me they would submit the matter to appellant's attorney at Amarillo." thews would not accept the settlement of- the question of whether there has been an fered by appellant and his attorney, but agreement to settle. suggesting that, if the suit at Amarillo was The motion to affirm on certificate is paid off by appellant, he thought this suit granted. could be settled. There is attached the carbon copy of a letter from appellee's attorney to appellant's attorney at Amarillo, stating that Matthews was in his office and agreed to Affirmed. STREET et al. (No. 8179.) (Court of Civil Appeals of Texas. Dallas. GAGES DELIVERED ON CONDITION. accept the settlement previously submitted J. I. CASE THRESHING MACH. CO. ▼. by the writer to appellant's attorney and had said that appellant had accepted appellee's proposition and the case had been settled on the terms stated in the former letter. This letter instructs appellant's attorney to get the pote sued on in Amarillo, mark it paid, and 1. BILLS AND NOTES 64-NOTES And Mortsend it with a statement, of the justice of the peace, showing that the case had been dismissed and the costs paid; to send also a written statement showing that this case had been settled, signed by appellant and his attorney, and showing that appellant had paid all the costs of this suit. These would be filed with the county clerk and the appeal stopped. Where notes and mortgage for purchase price of engine were delivered by defendant buyer on til plaintiff seller demonstrated engine to decondition that they should not be effective unfendant's satisfaction, and defendant accepted it in writing, held that notes and mortgage never became effective, where defendant did not accept the engine, but notified plaintiff that he would not do so. MACHINERY BOUGHT. In suit on notes given for price of engine and separator, and to foreclose mortgages securing the notes, held that return of engine and its acceptance by plaintiff seller constituted a rescission. 3. CONTRACTS-274 WHAT CONSTITUTES To rescind a contract is not merely to terminate it, but to abrogate and undo it from the beginning, and rescission necessarily involves a repudiation of the contract and a refusal of the moving party to be further bound by it. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Rescission.] Error from District Court, Dallas County; W. F. Whitehurst, Judge. [1-4] Appellant is making no effort to file 2. SALES 128-RESCISSION BY RETURN OF his record on appeal in this court, but is contesting appellee's right to an affirmance upon the ground that the suit had been compromised and an agreement to settle entered into between the parties. The fact of compromise and settlement is denied by appellee. Where parties have actually settled or agreed upon terms of settlement of the matters in dispute pending an appeal, and that fact is shown in this court, the appeal should be dismissed (Fielder Lumber Co. v. Gamble, 179 S. W. 522; Knights of Maccabees of the World v. Parsons, 182 S. W. 672); but we have no such case before us. According to the affidavits of the appellee and his witnesses, the minds of the parties have not met even upon an agreement to settle. This court acquired jurisdiction when appellant filed his supersedeas bond with the clerk of the county court. A settlement would not defeat the jurisdiction so acquired; but, upon a showing here that the parties had actually settled all matters involved, this court would dismiss the appeal, not because we had no further jurisdiction, but because the questions involved in the appeal had become moot. If the issue made upon the question of settlement affected the jurisdiction of this court, we could, under Vernon's Sayles' Civil Statutes, art. 1593, consider the affidavits presented for the purpose of determining the fact of jurisdiction only. Seiter v. Smith, 105 Tex. 205, 147 S. W. 226. The matters set up by appellant and supported by the affidavits attached to his reply, contesting the motion to affirm, might be urged in support of a motion to file his record on appeal; but he seeks no such relief. Since the jurisdiction of this court has attached and the issues tried below are pending, we must decline to decide Suit by the J. I. Case Threshing Machine Company against W. G. Street and another. Judgment for defendants, and plaintiff brings error. Affirmed. See, also, 188 S. W. 725. Spence, Havin & Smithdeal, of Dallas, for plaintiff in error. Cockrell, Gray, McBride & O'Donnell, of Dallas, and Reeder & Reeder and J. B. Dooley, all of Amarillo, for defendants in error. RAINEY, C. J. Appellant brought this suit against appellees Street and Creamer to recover against Street as maker and Creamer as guarantor upon two sets of notes, one set dated January 30, 1913, and the second set dated July 1, 1913, and to foreclose a mortgage given by Street and wife covering one 40 horse power gas tractor engine to secure the first set of notes, and to foreclose (216 S.W.) another mortgage given to secure both sets the engine and get it in shape to develop the of notes covering the same engine and a sep-rated horse power, and that Street stated that arator and appurtenances. he would not care to be bothered further with Defendant answered by demurrer and gen-ed that it would put in new bearings and rings the engine. That the company then representeral denial, and specially that in the engine and leave same on Creamer's farm, and requested Street to try the engine once more when he had time and inclination so to do. That the company did put in the bearings and rings and made other repairs, leaving the engine on Creamer's farm, where it stood until November 1, 1913, at which time Street made known to the company that he had some ensilage to put up, and could test the engine in that work, and the company requested him so to do. That upon this test being made the engine failed to develop sufficient power to run the ensilage cutter, whereupon the company sent its experts to the engine, who worked on it and requested Street to continue to use the engine and make further report to the company, which Street agreed to do, but with like results, which he reported to the company, and at its request removed the engine back to Creamer's farm, where the company requested that the engine remain, and that the company would put the engine in good repair by the next spring, and wished Street again to test the engine in pulling plows in both sod and cultivated land. That Street notified the company that he did not care to be bothered with the engine unless he could have the company's assurance that it would furnish him a new engine in the spring, having power to pull the plows as had been represented, and if he had such assurance that he could get contracts for plowing, and that the company advised Street that if he would get such contracts that the company would fur "Plaintiff in error represented to Street that the engine was a full 40 horse power engine, and would develop 40 horse power on the belt and 20 horse power on the drawbar, and would pull plows enough to cut a strip of land as wide as the engine-about 8 feet-plowing the ground 10 inches deep, at an average speed of 21⁄2 miles per hour, and that the company proposed to take the engine out to D. M. Creamer's farm near Amarillo, and there demonstrate its said representations as to the capacity of the engine if Street would thus sign the written order for the engine and the notes and chattel mortgage first above described, and also procure Creamer to sign a contract guaranteeing their payment, and deliver the papers to the company, but to become effective and binding only in the event and on condition that the company would demonstrate that the engine had the power and would do the work that the company represented it had and would do. That Street accepted this proposition, and signed the order for the engine and the notes and chattel mortgage, and procured Creamer's signature to the guaranty contract, but left all of these documents with plaintiff company upon the express agreement aforesaid, and that the delivery thereof was conditioned and would not be binding upon either defendant until plaintiff in error by actual use and operation of engine in the field demonstrated the power and capacity of the engine to be in accordance with its representations. That upon the first dem-nish a new engine to pull the plows if it failed onstration at. Creamer's farm the engine did not develop the power and capacity as had been represented, but that plaintiff in error requested Street to continue the use of the engine, and that it would repair and adjust the engine and make it do the work as represented, and requested Street then to sign a written acceptance of the engine, which he then refused to do and did not do; but that, relying upon the promises and statements of the company as being true and made in good faith, he (Street) later in the spring of 1913 undertook to use the engine for the purpose of plowing, and found that it did not develop the 40 horse power, and did not have power to pull plows as represented by the company, of which he then notified the company, which sent its experts to test the engine, who stated that the failure of the en gine to develop the rated horse power was on account of defective oiling process, which the company would promptly correct, and would either make the engine develop the horse power and do the work as represented or would furnish Street with another engine which would do so, and requested him to retain and continue to use the engine with the plows, and Street agreed to this proposition; but that the company, through its experts, could not and did not make the engine develop the rated horse power and do the work as the company had guaranteed it would do, and that Street then demanded the company to take the engine and furnish him with a new one, but that the company requested that the engine remain at Creamer's farm, and stated that it would yet discover the defects in to make the engine in question develop the power it had represented. That Street assented to this proposition, and, relying thereon, did make contracts for plowing in the spring of 1914, and in the spring the company, having done considerable repair work on the engine, assured Street that same was in good condition and would develop the horse power as represented, and requested him to go forward with the engine in carrying out his plowing contracts, which Street undertook to do, but found that the engine still did not have the power as represented by the company enough to pull the plows, and thereupon demanded that the company furnish him with another engine that would do so, but that the company neither made the engine in question develop the necessary horse power, nor furnished him with a new engine, but requested him to keep it, assuring him that it would continue working on the engine until it developed the full represented horse power, which Street did at a great cost of time, labor, and consumption of oil, gasoline, etc., and in May or June of 1914 he notified the company that he would make no further effort to test the engine, whereupon the company proposed to him to furnish him a Case separator with attachments if he (Street) would procure threshing contracts and use the engine in that work, but that he stated to the company that he would not accept the engine for any purpose. The company stated that it would guarantee that the engine would pull and operate the threshing machine to its capacity, and that it would furnish to him a Case Company separa of the engine to develop the rated horse power and the capacity which the company had represented it would do, and again averred that after the tests aforesaid he, at the instance and request of the company, returned the machinery to the company, which accepted it, and further he alleged that at the time he signed the notes and agreements in connection with the threshing machinery he also signed a written order therefor on the company's forms, but same did not speak the truth, and was not intended by either party thereto to be a binding obligation, but it was agreed that same was merely a formal matter for the accommodation of the company in keeping its records, and that on the 15th of January, 1915, by mutual agreement, all the contracts were rescinded and the machinery returned to the company, which accepted same in satisfaction of all obligations evidenced by the notes and guaranty contracts. "Plaintiff in error, plaintiff below, answered by supplemental petition, which, after certain special exceptions not necessary to be further noticed, contained a general denial and special matters of replication," and the failure of defendant in complying with certain provisions of the different writings held by plaintiff claimed to be binding on defendant and not complied with by defendant. That plaintiff had not accepted the return of the engine in rescission of said contract of sale of which defendant was notified," etc. tor and guarantee to make the engine operate, it to its capacity or furnish Street with a new engine that would do so if he (Street) would go forward and procure threshing contracts and use the outfit, whereupon Street advised the company that he would not accept the engine and become obligated to pay the notes that he had left with the company until he knew by test made by himself that the engine would operate the threshing machine to its capacity. That the company, then proposed to furnish him with a separator under a similar agreement that had been made as to the engine if he would sign the notes-which he did sign therefor-and also sign a written order for the separator and a chattel mortgage thereon securing the notes, and procure Creamer to sign another guaranty of the notes, and leave same with the company on condition that same were not to become binding unless the company was successful in making the engine operate the separator to its full capacity, or, in the event of its failure so to do, it would deliver to Street a new engine that would so operate the threshing machine, and upon this condition the order, notes, chattel mortgage and guaranty were signed and left with the company, and accordingly Street received the threshing rig and began to use it, whereupon the engine again failed to develop power enough to pull the machine to its full capacity, and this was made known to the company, which sent experts, who overhauled the engine, and requested Street again to try it in operating the threshing machine, which he did, but same failed to develop sufficient power to pull the machine to more than half its capacity, when Street made these facts known to the company, and also made known his threshing contracts, and requested the company to furnish him a new engine as it had contracted to do, which the company failed and refused to do, stating its intention to again overhaul and adjust the engine, assuring Street that it would certainly be able to make it develop the rated power, and requested him to continue the use of the engine pending further adjust ments, which he did, and proceeded with his threshing contracts as best he could with the defective engine until the month of January, 1915, during which time the engine never developed sufficient power to operate the machine, although the company's experts frequently worked on it, and that on or about the 10th of January, 1915, the company discontinued all efforts to make the engine work, and refused to which issue was answered in the affirmafurnish Street with a new engine, but requested tive and also answered that the engine did him either to accept, in writing, the machinery not possess said power, which is supported and make payment therefor or cease operating by the evidence. The counter proposition of it and return it to the company, whereupon Street discontinued all use of the machinery appellee applies, which is: The case was submitted to a jury upon special issues; upon return of answers to same the court rendered judgment for defendant, and plaintiff appealed. The material allegations of defendant's the findings of the jury warrant the judganswer are supported by the evidence, and ment of the court. [1] The following issue, among others, was submitted to the jury: "Do you find at the time of the execution of the notes and mortgage in reference to the tractor engine that plaintiff made an agreement with the defendant that said notes were not to become binding until the plaintiff company should demonstrate to the satisfaction of the defendant that the engine was capable of producing 20 horse power on the drawbar and 40 horse power on the belt?" strates that the chattel has certain qualities or capacities and same is accepted in writing by the prospective buyer, there is no sale and no liability is incurred on such notes until such demonstration is made and such acceptance obtained." and returned it to the company at Amarillo, "Where notes are delivered in the amount of when and where the company accepted it. the proposed purchase price of a chattel, but "Defendant Street, by cross-action, sought to on the condition that same shall not become recover against the company large damages-effective until the prospective seller demonalleged lost profits because of the failure of the engine to operate as represented. Defendant Street further answered that if he 'be mistaken as to the legal effect of the facts hereinbefore alleged,' and if it should be true that the notes, guaranties and contracts aforesaid were delivered to the company under such conditions as to become binding upon the defendants, then he pleaded a total failure of consideration of the notes because of the failure Street never accepted the engine but notified plaintiff that he would not do so, unless plaintiff would make it do the work; hence |