RAINEY, J. This is an action for damages brought by appellee, Crawford, against appellant, Marsalis. Appellee alleged that he purchased of appellant two promissory notes made one Cromwell to M. A. Coates, said notes being secured by a vendor's lien upon certain land. He further alleged that, at the time he purchased said notes, Marsalis made certain representations about the title, condition, situation, and value of the land, and the amount that had been paid thereon, which induced appellee to make the purchase of the notes; that said representations so made were false, which was unknown to appellee at the time, and he thereby suffered damages. Appellant answered by general denial, and, specially, that said notes were purchased by the Dallas Land & Loan Company from M. A. Coates for a valuable consideration, without any knowledge on its part, or that of appellant, that they were not the first and only lien on the land for which they purported to have been executed; that when appellee purchased the notes he was told by appellant that he knew nothing about the property, but that his attorneys had examined the title, and found it good; that appellant refused to indorse the notes, telling appellee that he must take them as they were, and further, that said notes were secured by deed of trust on the land; that appellee had the land sold under said deed of trust, and bid in for the full value of the notes, thereby releasing the makers of the notes and the indorsers thereof from any liability thereon, and thereby put it out of his power to place appellant in the position he was before appellee purchased them, and by reason thereof fully exonerated and released appellant from all liability, if any he was ever under, which is denied.

The trial court, in its charge, recited at considerable length the substance of the allegations of plaintiff's petition, but failed to state the defenses set up by defendant. The court also failed to instruct the jury on the issues raised by defendant's pleadings and proof. Where the issues raised are properly presented by the court in the body of the charge, it is not necessary in all cases to recite the pleading; but, when the pleadings of plaintiff are recited, the issues raised by the pleadings of the defendant should also be recited, and a failure to do so would be such error as would give undue prominence to the plaintiff's contention in the case, unless the omission was corrected by a proper charge subsequently given covering the omission, which was not done in this case.

Appellant insists that, if appellee was mis

led by representations made by him, such representations were innocently made, he not knowing them to be false, and that therefore he is not liable. This is not sound as a legal proposition. The rule is well settled that, "as affecting the right of a vendee to compensation for a misrepresentation as to the subject of the sale, there is no distinction between misrepresentations made knowingly or by mistake. A false representation, however innocently made, if damage fol lows, will give the injured party a right to compensation." Watson v. Baker, 71 Tex. 739, 9 S. W. 867. If Marsalis made the representations as alleged, and they were false, and Crawford believed the same, and was induced thereby to purchase the notes, and suffered damages therefrom, he would be entitled to recover, however innocent Marsalis was in his statements, unless Crawford afterwards, by his acts, has precluded a recovery. Here arises the controlling question in the case: Did Crawford, by his act of purchase of the land at the trustee's sale, preclude his right to damages, if any, that had accrued up to that time? In order to answer this question properly, it will be necessary to understand the facts proven in this connection. It seems from the evidence that Crawford purchased the notes of Marsalis on or about August 13. 1888. At that time there was a prior vendor's lien on the land for $650, the deed evidencing such lien being then of record, having been recorded August 18, 1886. The $650 was due by M. A. Coates to his vendor, E. D. Coates. On August 15, 1888, two days after Crawford purchased the notes from Marsalis, E. D. Coates instituted suit against M. A. Coates in the district court of Dallas county, seeking to recover the land from M. A. Coates; but neither Cromwell, who bought the land from M. A. Coates, Seay, trustee, nor Crawford were made parties to said suit. The cause was tried in December following, and resulted in a judgment in favor of E. D. Coates against M. A. Coates for the land in question. Crawford (appellee), in his testimony, says: "When the first installment of interest fell due [which was January 26, 1889], I looked up Cromwell [the maker], and finally found out he could make no payment, and I found out that he was a worthless fellow, without means. I then went to see the land myself, and found it about eight miles from Mesquite. I found a house on it, but it was a common one, and found that all of the land was not in cultivation, as it had been represented to me,-only a small part thereof [being in cultivation]; and I found on the land one E. D. Coates, who said that he claimed the land himself, and that there was a case pending in court brought by him against M. A. Coates for the land. When the sheriff, as substitute trustee, made the sale of the land, this E. D. Coates was present, and forbade the sale, and bid on it the sum of $200, and I then bid the full amount of the two

notes, then amounting to $1,605." Crawford, on cross-examination, further testified that, when he went to see the land, E. D. Coates told him about the lien for $650; that suit had been brought on in the district court of Dallas county to recover the land because the notes had not been paid; and that, "just as soon as could be after that, I had the land sold by the sheriff under the trust deed. At the trustee's sale I think there was one bid of $400, and then I bid the full amount due on the notes. Deed was made me by the sheriff, which bears date April, 1889. I cannot be positive, but it must have been after this deed was made to me that I went out and looked at the land, and had the conversation with E. D. Coates stated above." From the testimony of Crawford, there was a period of about nine months intervening between the purchase of the notes by him and the sale of the land under the deed of trust. It is evident that during that time Crawford had visited the land, was informed of E. D. Coates' claim, the amount of the lien, and the bringing of the suit. He also had an opportunity to inspect the land, which, according to his statements, he did do, and found that the representations made by Marsalis were not true. Notwithstanding all these facts having been brought to his knowledge, he had the land advertised and sold under the deed of trust, he becoming the purchaser at such sale, having bid the full amount of the principal and interest due on the notes. Conceding the representations were made by Marsalis as claimed by Crawford, and that Crawford did rely on them, and was justified in so doing, at the time he purchased the land, still we are of opinion that he could not rely on them in bidding in the land. He was put upon notice, actual as well as constructive, as to its condition and incumbrance; and when he bid at the sale the full amount of the notes, and received a deed for the land, he thereby accepted it in full satisfaction of the notes, and, in contemplation of law, his claim was fully paid off and discharged. Marsalis sold Crawford the notes, and not the land. His warranty, if any, went only to the extent that the land was sufficient to pay the notes. This warranty has in no sense failed. The notes have been paid in full. By the conduct of Crawford, the maker and indorser of the notes were released, and Marsalis was thereby exonerated from any liability that may have accrued by reason of his representations. We are therefore of the opinion that the court erred in failing to give a charge covering this phase of the case, the attention of the court having been called thereto by a special charge requested by counsel for appellant, and which was refused by the court.

Several assignments of error are made to the charge of the trial judge, and to his action in refusing to give special charges asked by appellant. Appellee objects to these as

signments being considered by this court, because such were not made grounds in the motion for new trial, and cites quite an array of authorities in support of his position, none of which, we think, goes to the extent claimed. The only authority known to us that supports this contention of appellee is the case of Hammond v. Garcia, decided by the court of civil appeals of Texas, which asserts the broad doctrine that no assignment of error will be considered by this court unless the objection urged therein was made a ground of the motion for new trial in the court below. 25 S. W. S23. We do not think this a correct construction of the statutes and the rules made by the supreme court for the government of this and the district courts. Besides, such a construction is in direct conflict with the rule announced in Clark v. Pearce, SO Tex. 150, 15 S. W. 787. In that case, after stating "that, before it can be claimed that there is error in the ruling of the court upon the sufficiency of the evidence to support the finding of the jury, the action of the court upon the matter should be invoked by a motion for a new trial which states specifically the grounds for which the verdict is sought to be annulled," Stayton, C. J., who rendered the opinion for the court, says: "In regard to the rulings of the court upon exceptions to the pleadings, the admission of evidence, and the giving or refusal of instructions, a different rule prevails. Having once acted, it is not to be presumed that the judge will change his ruling; and hence, in order to appeal from such action, it is not necessary that it be made ground for a new trial, but it is always optiona! and proper to do so." The judgment is reversed, and the cause remanded.

ADAMS et al. v. DiGNOWITY et al.1 (Court of Civil Appeals of Texas. March 21, 1894.) LAND BELONGING TO CITY VALIDITY OF SALEPRESUMPTIONS-POWER OF COUNCIL COMMITTEE.

Trespass to try title by H. B. Adams and another against James V. Dignowity and others. There was a judgment for defendants, and plaintiffs appeal. Affirmed.

Simpson & James and George C. Altgelt, for appellants. Ogden & Harwood and Peter Shields, for appellees.

NEILL, J. This is a suit in trespass to try title, brought by H. B. Adams and E. D. L. Wicks against James V. Dignowity, Dan Sullivan, and Sam Johnson, to recover a parcel of ground now in the corporate limits of the city of San Antonio, which is described as "that lot number 9, range 2, district 1, which contains fifteen and onehalf acres, bounded as follows: Beginning at the southeast corner of lot No. 6, range 2, district 1, being a stake set in the north line of the Railroad reserve; thence north, 20° east, 700 76/100 varas, with the east line of lot No. 6, to a stake set at the intersection of this line with the east line of the Old Two-League city grant; thence south, with said Old Two-League grant line, 745 74/100 varas, to a stake set on the line of the Railroad

reserve; thence north, 70° west, 255 60/100 varas, with north line of said Railroad reserve, to place of beginning. The said lot number 9 being a triangular piece of land, having its apex near the old Seguin road, and bounded west by said lot number 6, east by that lot number 9, range 2, district 1, which contains 125 acres, and is north of the Railroad reserve." Pending

the suit, E. D. L. Wicks died, and his heirs were made parties plaintiff. The defendants Dignowity and Sullivan answered by a plea of not guilty, and the defendant Johnson entered a disclaimer. The cause was tried on the 5th day of October, A. D. 1892, before the court without a jury, and resulted in a judgment in favor of the defendants, from which the plaintiffs appealed.

Conclusions of Fact.

First. On the 26th day of February, 1845, the mayor of the city of San Antonio, by authority of its common council, and Thomas J. Devine entered into a contract by which Devine agreed to act as the legal adviser and general counsel of the city, and agreed with the mayor to undertake and perform all legal business appertaining to said city which it might be necessary for him to do, when required by the mayor. The mayor, for and in behalf of the city, agreed to pay him an annual fee of $100, and a sum of money equivalent to one-eighth of the value of the property recovered in a suit to be instituted by said Devine, in behalf of the city, for the recovery of that land then claimed by San Antonio, and within its ancient limits, saving and excepting two leagues then in the undisputed possession of the city, and that, upon the successful termination of the suit relative to the lands,

the city should employ a surveyor to survey the lands included within the disputed limits, and owned by the city of San Antonio, which tract was to be surveyed in lots of 100 acres, marking the corners of said lots with stakes, and numbering the beginning corner of each and every lot with the numerals upon the stakes of 1, 2, 3, 4, 5, etc., and entering upon a book to be provided him by the corporation a plat of the tract surveyed, with the lots designated thereon, and marked by the numerals aforesaid, which plat should be executed and returned to the office of the corporation within three months from the date of final settlement of the suit. That upon the return of such plat and survey the city should advertise for sale a portion of the land so recovered, and the sale to take place within three months from the date of the return of the survey. Such sale should not be of a less portion than one-fourth of the lands. That an appraiser should be appointed by the corporation, who should, in connection with an appraiser to be appointed by Devine. appraise all the lands recovered as aforelands surveyed as said,-appraising all aforesaid in separate tracts,-and return their appraisements under their hands and seals, which appraisements should be entered upon each lot numbered upon the plat aforesaid according to its number. That upon the return and entry of such appraisements the corporation should issue drafts to the amount of one-eighth of the appraised value of said tract, the drafts to be in sums of $100, payable to Thomas J. Devine or bearer, and receivable in payment of all dues or debts accruing to said corporation. That upon the sale of the lots as provided the proceeds should be appropriated to the liquidation of the claim of said Devine. That after the sale Devine should be at liberty to enter by writing his name upon the lots numbered and appraised in said book, which had been offered or advertised for sale, and a deed made to him of all lots so advertised for sale that then may have been unsold at time of his entering the same; liberty having been given him to enter as many as would amount to the value of his fee remaining unpaid at time of entering the

same.

Second. The suit contemplated by the contract was instituted in behalf of the city by Thomas J. Devine, and prosecuted by him. to final judgment in the supreme court, recovering possession and establishing the city's title to the land sued for. The result of the suit being known to the city council, it, on the 23d day of January, 1852, duly authorized and required F. Giraud, city surveyor, "to proceed forthwith to survey and lay off all that tract of land lately recovered by the decision of the supreme court of Texas in favor of the city of San Antonio, in compliance with the requisition of the contract made and entered into February 26,

Third. On April 26, 1852, the city council accepted a proposition made to it by Devine to modify and change the contract of 1845 so as to permit the city surveyor to survey the land recovered into such sized tracts as he might deem most advantageous to the city.

Fourth. Francis Giraud, city engineer, surveyed and laid off the land, and returned a map or plat thereof which was acted upon by the city council, and sales made thereby. So much of his map as is applicable to the premises in controversy is here shown:

money paid cash on the day of sale, and balance bearing interest from that day at the rate of 8 per cent. per annum until paid, for a time not exceeding 50 years, payable semiannually, with a lien on the lots and improvements thereon. It was also "resolved that the committee of three, composed of Alderman A. A. Lockwood, Jno. S. McChillan, and J. A. Urrutia, be and is hereby ap pointed, whose duty it shall be to regulate the mode of sale,-designating the portion of property to be sold, the manner of advertisement, the form of deeds to be executed by the city to the purchasers, and the style of

The dotted lines are the lines of the two leagues that were not involved in the suit brought by Devine,-the land recovered in said suit being outside of said lines, and ad joining the two leagues.

Fifth. After the lots had been surveyed by the city engineer, Thomas J. Devine proposed to the council that one-half of the property, after being appraised according to the terms of the contract, should be advertised 60 days, and sold for one-fifth cash, the balance on a credit of 50 years, and that one-half of the cash received on the day of sale be paid to him, and for the scrip issued to him as per agreement to bear 8 per cent. interest. This proposition was accepted by the council on August 26, 1852, and the council then ordered "that there should be exposed for sale at public outcry at the city hall door in the city of San Antonio, on the 2nd Monday in November next, and each succeeding day until sold, after having been advertised sixty days in public prints and otherwise, one entire half of the lands recovered by the city of San Antonio

by a

late decision of the supreme court, laid off and surveyed, as heretofore provided, in lots containing four to one hundred acres, as per plat to be seen in city hall," and that the

script to be issued to the city attorney in compliance with the contract, all of which shall be submitted to the board for ratification by report." On motion the mayor was added to the committee.

Sixth. At a meeting of the council on September 5, 1852, the following resolution was approved, viz.: "The committee who were appointed to draft a form of advertisement, and make arrangements to sell the city lands, beg to report the accompanying document, marked 'Form of Advertisement,' for adoption. They recommend its adver tisement in the following papers: San Antonio Ledger and Western Texan, Victoria Ledger, * [a number of these papers

are named], the Texas papers to be published until day of sale, and forward bills to Ledger office for settlement. The other papers to publish within 10 days of sale. The committee recommend that the property be sold in alternate blocks of lots each, with the privilege of the purchaser of buying adjoining lots at appraised value, if no more be offered. The committee recommend the printing of 500 handbills, copies of the above advertisements, in Spanish and German, for distribution. The committee recommend the appointment of appraisers

according to terms of the contract with T. J. | Devine. The committee recommend the appointment of a committee of three to superintend the sale. The committee asks to be discharged. A. A. Lockwood, chairman of committee, and the secretary ordered to forward copy for publication to the various papers as in said report." The advertisement reported by the committee and adopted by the council was not offered in evidence by either party.

Seventh. On November 4, 1853, the following report of the committee to regulate the sale was received and adopted by the city council, viz.: "The committee to whom was referred the decision of the manner of selling the city property would recommend the offering for sale every four alternate lots, commencing at No. 35, range No. 1, district No. 2, and that it be discretionary with a committee to be appointed to order sale of any other lots that purchasers may require during the progress of the sale." "The mayor, Urrutia, and Huffmeyer a committee to superintend the sale, and the said committee, with the exception of the mayor, receive $2 per diem during the discharge of such duties."

Eighth. The land in controversy is shown by the following plat of a survey made by Lock for the appellants:

It is the triangle within the dotted lines, with its apex near the Seguin road, and is bounded west by lot 6, east by line of the Two-League grant, and south by railroad reserve; the line of the Two-League grant being always well known, and established on the ground; the west boundary line of lot 6 being the west boundary line of lot 9 as surveyed by and on the plat of F. Giraud, as before stated and indicated.

Ninth. The original plaintiff, E. D. L. Wickes, died on May 30, 1892, since the institution of this suit, intestate. There has been no administration, nor necessity therefor, upon his estate. And the plaintiff, Eugenia A. Thompson Wickes, Sallie C. Wickes, Caroline E. Scranton (wife of George H. Scranton), Julia A. Swart, Albert L. Wickes, Annah Belle Burns (wife of Zenos Burns), and Rebecca B. Mather (wife of W. D. Mather) are his heirs at law.

Tenth. The chain of title under which appellants claim the land in controversy consists: (1) Of a deed duly recorded from the city of San Antonio to H. B. Adams and E. D. L. Wicks, whereby said city, in consideration of $120 09/100 paid into its treasury, conveyed in fee simple to said Adams and Wickes "all that certain tract or parcel of land lying and being in the state of Texas, county of Bexar, in the city tract