* by B. C. Cage, the judgment disposing of, Vance, 92 Tex. 428, 49 S. W. 516. No reathis part of the litigation cannot be so re- son why she did not have the power to creformed here as to avoid the necessity of re- ate such a trust and deprive herself of such manding the case otherwise than for the a right has been suggested. If she might purposes of the partition to be made. have done so, and we think she might, then clearly she did do so; for a right on her part to have a partition as sought during the life of the trust is not only inconsistent with the power conferred upon the trustee by the deed, but also is inconsistent with the intention of the parties to it as declared in the trust agreement when they stipulated that the interests of Mrs. Perry and Mrs. Frank in the property described in the deed should be conveyed "at once and continue in trust to J. N. Groesbeeck, Sr., as trustee, for a term of six years after Henry S. Groesbeeck shall reach his majority," and, as further shown by the provision so carefully made for a successor in the trust, in the event of the death of said J. N. Groesbeeck, Sr., during the time it was to continue. The trust was an active one, and was based upon a consideration inuring to each of the parties to it. Each of them had a right, we think, to insist that it should be carried out according to its terms, free of a right on the part of either of the other parties to it during its life, to exercise or have a court to exercise any power over the property inconsistent with the powers conferred upon the trustee. To permit any one of the parties against the wish of any other one of them to have a partition of the property during the life of the trust we think clearly would be inconsistent with their intention as evidenced by their agreement, and would operate to interfere with an exercise by the trustee of the powers conferred upon him. Therefore we are of the opinion that the judgment is erroneous in so far as it decreed a partition of the lands conveyed to J. N. Groesbeeck, Sr., as trustee. By cross-assignments, appellees J. N. Groesbeeck, Sr., and Mrs. Frank attack the judgment as erroneous, in so far as it is in favor of Mrs. Perry for a partition, and in so far as it adjudged a recovery in favor of appellants against Mrs. Frank of the sum of $400 on account of the Anderson county land, and in so far as it undertook to revive as against Mrs. Frank the debts and mortgages made to secure same representing the $1,767 indebtedness canceled by appellants as a part of the consideration for the conveyance to them of the lands described in Mrs. Frank's said deed to them of April 26, 1909, canceled and annulled by the decree. [6] The contention as to the part of the judgment which provides a recovery by appellants against Mrs. Frank of $400 on account of the Anderson county land should not, we think, be sustained. By her conveyance of that land she, in effect, appropriated its value to her own use, and equity, we think, therefore would require her to restore to appellants its value, as found by the jury. The contention that the judgment is erroneous in so far as it attempted to revive the debts and mortgages referred to has in effect been disposed of by the ruling made that her deed to appellants should be canceled only on the condition that she pay to appellants a sum equal to the aggregate of those debts as found by the jury. Of course, appellants are not entitled to have such a payment made to them, and also to have the debts and mortgages revived. [7] It appears that a partition was sought by Mrs. Perry, not only of the lands conveyed in trust to J. N. Groesbeeck, Sr., but also of certain other lands. As to such other lands, the record discloses no reason why she was not entitled to have a partition made as prayed for. Whether she was entitled to a partition of the lands conveyed by her and the other parties to the trust deed to J. N. Groesbeeck, Sr., depends upon the effect which should be given that deed when considered in connection with the trust agreement in accordance with which it was made. If the effect of that deed was to pass to said J. N. Groesbeeck, Sr., during the time specified in it an exclusive right to manage, sell, or otherwise dispose of it for the purpose of the trust the interest of Mrs. Perry and Mrs. Frank in the property it conveyed, and to deprive them during that time of a right to exercise any power over or with reference to it inconsistent with such a right in said J. N. Groesbeeck, Sr., then it should be held that Mrs. Perry was not entitled to a partition of that property during the life of the trust. Monday v. The judgment will be reversed, and the cause will be remanded for a new trial in accordance with the rulings we have made. BECKHAM et al. v. SCOTT et al. (Court of Civil Appeals of Texas. Dallas. Dec. 23, 1911.) 1. BILLS AND NOTES (§ 534*)-STIPULATIONS FOR ATTORNEY'S FEES-CONSTRUCTION. A stipulation in a note for 10 per cent. attorney's fees, in the event of suit thereon, is not a mere contract for indemnity, but binds the absence of plea and proof that such amount the maker to pay the attorney's fees fixed, in is unreasonable. [Ed. Note.-For other cases, see Bills and Notes, Dec. Dig. § 534.*] 2. COURTS (§ 91*)-CONTROLLING DECISIONS. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 325, 326; Dec. Dig. § 91.*] Where a note stipulates for attorney's fees in the event of a suit thereon, it is only necessary that a suit is brought thereon to entitle the holder to recover the amount so stipulated as attorney's fees, in the absence of any effort to show that it is unreasonable; for the court will take cognizance of the fact that suit is brought, and that the note is being collected by law. 3. BILLS AND NOTES (§ 534*)-ACTIONS-AT- | notes has a provision for attorney's fees, TORNEY'S FEES. and the second and third notes provide that if the first note is not paid at maturity it matures, at the option of the holder, all of said notes. The said Scott alleges that there was a failure to pay the first note at maturity, and suit is brought on all three of said notes. Suit was filed by said Scott on March 7, 1910, for the full amount of the three notes, claiming interest and attorney's fees. On June 6, 1910, J. J. Beck (Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947; Dec. Dig. 8 534.*] 4. BILLS AND NOTES (§ 129*)-MATURITY-ham drew his check on his personal account ELECTION OF HOLDER. Where each of a series of notes provides that on the failure to pay one at maturity the whole series shall mature at the option of the holder, it is a sufficient showing of the exercise of the option to allege, in the absence of anything to the contrary, the exercise by the holder of the option, and to show that formal demand was made for the payment of the note after its maturity and refusal to pay, and that the notes were then placed with an attorney for collection; and, after formal demand and refusal of payment, a suit may be brought on all the notes. [Ed. Note.-For other cases, see Bills and Notes, Dec. Dig. § 129.*] 5. VENDOR AND PURCHASER (§ 253*)-VENDOR'S LIEN NOTES-FORECLOSURE. Notes executed by a purchaser for the price of land and the deed, retaining a vendor's lien, when made contemporaneously, are parts of the same contract and form one entire agreement; and the court must construe the contract to carry out the intentions of the parties, notwithstanding any clerical errors and omissions in the notes. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 637-648; Dec. Dig. § 253.*] 6. CONTRACTS (§ 147*)-CONSTRUCTION-INTENTION OF PARTIES. A contract must be read in accordance with the intentions of the parties, notwithstanding clerical errors and omissions; and a party will be held to that meaning which he knows the other party to the contract understood the contract to mean. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. § 147.*] Appeal from District Court, Limestone County; H. B. Daviss, Judge. Action by J. N. Scott against J. J. Beckham and John Keys, in which other parties were vouched in by defendant Beckham, for the purpose of settling their interest. From a judgment for plaintiff, defendants Beckham and Keys appeal. Affirmed. Doyle & Jackson, for appellants. W. A. at the bank of Prendergast, Smith & Co., of Mexia, Tex., for the sum of $992, and gave it to the cashier of the bank, and requested him to send the money to Mr. L. E. Eubank, the district clerk of Limestone county, to be deposited with said clerk for the payment of the note maturing January 2, 1910. The clerk received the letter, inclosing a deposit slip for $992, which was afterwards paid over to Mr. Keeling, one of plaintiff's attorneys, as a credit on the notes sued on. The notes were given as part of the purchase money of 195 acres of land out of the Alex Whitaker survey, in Limestone County, and described by metes and bounds in the petition, the consideration in said deed being $600 cash and the three notes here sued on; and both the deed and the notes specially retain the vendor's lien on said land to secure said notes. On January 8, 1909, said John Keys and wife conveyed said land to J. J. Beckham; the consideration expressed in the deed being $3,000 cash. On January 2, 1909, when Scott deeded said land to Keys, he was a widower, and other parties were vouched in by Beckham, for the purpose of settling their interest, if any, in the land. These parties all disclaim, and judgment was rendered as to them in favor of Beckham, and they need not be noticed further in this matter, as no complaint is made as to them by any one. On February 2, 1911, the case was tried before the court without a jury, and judgment rendered in favor of plaintiff for the full amount of the notes sued on, with all interest, attorney's fees, and costs; the judgment being for $1,790.52, principal and interest, after allowing the $992 as a credit, and for $279.05, attorney's fees on the whole amount, with a foreclosure of vendor's lien on land described in plaintiff's peti Keeling and C. S. Bradley, for appellee J. N. tion, and all cost. The court, on the disScott. BOOKHOUT, J. This is a suit, brought by J. N. Scott against J. J. Beckham and John Keys, to recover on three promissory notes executed by John Keys to J. N. Scott for the sum of $800 each, dated January 2. 1909, and one due January 2, 1910, one January 2, 1911, and one January 2, 1912, each bearing 8 per cent. interest per annum, interest payable annually, and each of said claimer of the heirs of Mrs. Scott, rendered judgment in favor of Beckham as against them. To the judgment rendered against John Keys and J. J. Beckham, they excepted, gave notice of appeal, filed their supersedeas bond, and bring the case here for review. [1] It is assigned that the court erred in rendering judgment for the plaintiff for $279.05 attorney's fees, being 10 per cent. of the principal and interest on the notes sued on, because the 10 per cent. attorney's •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 142 S.W.-6 fees mentioned and specified in said notes | filed, and then a sufficient amount was not was a contract of indemnity and not of sent to the clerk of the court to pay the agreed damages; and there is no allegation first note and the interest on the three notes in the petition that plaintiff was to pay his due. After all efforts to make payment had attorneys said sum, or any other sum, for ceased, demand was made upon the maker their services, or that the 10 per cent. stipu- of the notes, John Keys, at his place of busilated in said notes for attorney's fees, and ness, and the notes were presented to him which forms the basis of this judgment, was for payment about the last of February, 1910, reasonable; and there was no evidence, ei- and payment was refused. March 17, 1910, ther that the plaintiff had paid his attorneys plaintiff filed his amended petition on the any sum for their services, had promised to notes, demanding payment thereof, and allegpay them any amount, or that the sum stipu- ing that plaintiff had exercised his option to lated in the notes, and which forms the basis mature all of said notes. On February 17, of this judgment, was reasonable. 1911, plaintiff filed his second amended original petition, alleging the several demands for payment of the notes on March 8, 11, and 13, 1910, and alleging the maturity, by its own terms, of the second note, and the exercise by him of the option in said notes to declare all of said notes due, and seeking to recover the amount of said notes, principal, interest, and attorney's fees. The proposition presented is that attorney's fees stipulated in notes are contracts of indemnity, and not for agreed damages, and before attorney's fees can be recovered the plaintiff must allege, and the proof show, that he had paid, or had agreed to pay, his attorneys the amount stipulated in said note, or that the same would be a reasonable fee for said services. The petition alleges that each of said notes provides for 10 per cent. additional to the principal and interest, to be added as attorney's fees in the event of suit upon said notes; that the second and third maturing of said notes provide each that, in the event the first maturing of said notes should not be paid at maturity, then the holder and owner of the said notes, at his option, should have the right to declare all of said notes due and payable and collect the same; that said notes, and each of them, was given in part payment for and are secured by a vendor's lien retained upon the hereinafter-described real estate; that the first and second maturing of said notes are now long since past due, and are wholly unpaid, and, although demand has been duly made of the maker of the same, that he has heretofore failed and refused, and still fails and refuses, to pay the same, or any part thereof, except as hereinafter stated; that after said first note matured, and after said defendant had failed and refused to pay the same, the plaintiff exercised his said right to do so, and declared each of said notes due and payable, and placed them in the hands of the attorneys, whose names are signed hereto, for collection and suit; that suit is now here brought upon said notes, and each of them; and hence the provisions in said notes for 10 per cent. attorney's fees have become and are exigible. Note 2 provides: "Should I default to pay note and interest No. 1, then I agree that all three notes become due at the option of said Scott. This is note No. 2." Note No. 3 provides: "Should I fail to pay note No. 1 or No. 2 at maturity, then I agree that this note No. 3 becomes due by such default at the option of said Scott, or bearer of the said notes." The first of the notes to mature was due January 2, 1910. No effort was made to pay this note until The proposition contended for by appellants cannot be sustained. It was decided adversely to them by the Supreme Court, in the case of Bank v. Robinson, 135 S. W. 372, in answering a certified question whether the court should include the 10 per cent. attorney's fees in the judgment, where it was provided for in the contract and alleged in the petition that it had been placed in the hands of an attorney for collection, and the proof showed that it was so placed; but there was no agreement with the attorney shown as to his fee. The court said: "Clearly it seems to us by the terms of the note that the provision for attorney's fees is treated, and by the parties considered, as in the nature of costs, and such promise to pay attorney's fees is fixed as a contract of indemnity. So considered, it contains an obligation of the maker of the note to pay the cost of collection, and at the same time fixes the amount thereof at 10 per cent. of such obligation. In such case, in the absence of plea and proof that such a per cent. is unreasonable and unconscionable, the court is authorized to act upon the amount of such fees as agreed upon by the parties, and enter judgment accordingly." A similar holding was made by this court in the case of Bank v. Smith, 9 Tex. Civ. App. 540, 30 S. W. 678. In that case Judge Finley, speaking for the court, said: "The different phases of the defense set up to the 10 per cent. attorney's fees constitute no legal bar to a recovery upon that portion of the contract, and plaintiff's exceptions thereto should have been sustained. The contract in express terms provided for the payment of an additional sum of 10 per cent. for attorney's fees, if collected by law, or placed in the hands of an attorney for collection. The parties had the legal right to so contract, and upon the happening of the contingency upon which the stipulated attorney's fees were made to depend the ob Tex.) BECKHAM v. SCOTT It ditional as attorney's fees, should this note al sum became a part of the sum due. would not affect the legality of the demand have to be collected by law," each of the Whitaker survey. If it were true, as alleged by defendants, that notes expressly retained "a lien on 195 acres the provision was inserted in the contract of land, part of the Alex. for the sole benefit of plaintiff, and not with in Limestone county, Tex., deed to which any purpose of paying that amount for the from said Scott to me is of even date hereservice of an attorney. If the plaintiff could with." The deed from Scott to Keys was and did obtain the service of an attorney introduced in evidence by plaintiffs, which free, that fact would not relieve defendants deed recites the notes as a part of the conof their obligation. For the general princi-sideration for the deed, and specially retains ples applying to this obligation, see the fol- a vendor's lien on the property conveyed to secure the payment of these notes. The lowing authorities: Martin Brown Co. v. Perrill, 77 Tex. 199 [13 S. W. 975]; Stansell notes and this deed having been executed v. Cleveland, 64 Tex. 660; Simmons v. Ter- contemporaneously and between the same rell, 75 Tex. 275 [12 S. W. 854]; Morrill v. parties, and relating to the same subject, Campbell v. NicholHoyt, 83 Tex. 59 [18 S. W. 424, 29 Am. St. are parts of the same contract and form Rep. 630]; Kendall v. Page, 83 Tex. 131 [18 one entire agreement. S. W. 333]; Miner v. Bank, 53 Tex. 559; son (App.) 18 S. W. 135; Warren v. Osborne, Durst v. Swift, 11 Tex. 273; Yetter v. Hud- 97 S. W. 851; Howards v. Davis, 6 Tex. 180; son, 57 Tex. 604; Eakin v. Scott, 70 Tex. Dunlap v. Wright, 11 Tex. 602, 62 Am. Dec. Wallis v. Beauchamp, 15 Tex. 305; 442 [7 S. W. 777]." Such was also the hold- 506; Saunders v. Hartwell, 61 Tex. 688; Eping of this court in the case of Moore v. See, also, Lanier v. pinger v. McGreal, 31 Tex. 150. Brown, 89 S. W. 310. Jones (Sup.) 136 S. W. 255. In the Campbell Case, supra, suit was brought upon a note and to foreclose a contemporaneously executed mortgage. The note did not provide for interest, but the mortgage provided for 12 per cent. interest on the debt. The trial court gave judgment for the debt and legal interest, but excluded the mortgage from evidence because of the vari [2] The holding of this court in the case of Hassell v. Steinmann, 132 S. W. 948, was based on the case of O'Connell v. Rugely, 48 Tex. Civ. App. 456, 107 S. W. 151, and similar holdings by the Courts of Civil Appeals, cited in that opinion, and not upon any holding by the Supreme Court. The cases cited in Hassell v. Steinmann, not being in accordance between the note and mortgage, and with the decisions of the Supreme Court, cannot be considered authority. [3] When a note stipulates for a certain amount to be added as attorney's fees, in the event it has to be collected by law, or is sued on, it is only necessary that suit should be brought thereon, in order to entitle plaintiff to recover the amount so stipulated as attorney's fees, where no effort is made to show such amount to be unreasonable. The court takes cognizance of the fact that suit is brought, and that the contract is being collected by law. [4] Where it is shown, as in the instant case, that each of a series of notes provides that upon the failure to pay one at maturity the whole series shall mature at the option of the holder of them, and, upon the maturity of one, it is not paid, it is a sufficient showing of the exercise of such option, in the absence of anything to the contrary, to allege the exercise by the holder of such option, and to show that formal demand was made for payment of the first note after its maturity and refusal to pay, and that the notes were then placed with an attorney for collection; and, after formal demand and refusal of payment, a suit is then brought on all the notes. [5] In addition to the stipulation in the first note, agreeing “to pay 10 per cent. ad refused a foreclosure. Upon appeal this judgment was reversed and rendered for the principal and 12 per cent. interest on the note and foreclosure of the lien. [6] A contract must be read in accordance with the intentions and understanding of the parties, notwithstanding clerical errors and omissions; and a party will be held to that meaning which he knew the other party to the contract understood the contract to mean. While there are clerical errors and omissions in the notes, it is clear from their terms, taken in connection with the recitations in the deed from Scott to Keys, the contract evidenced a promise to pay 10 per cent. additional on the principal and interest of the notes as attorney's fees, if collected by suit. John Keys had the deed before him, as well as the notes, when he signed them, and knew that the one in express terms provided for, and the other gave, an express lien to secure the payment of 10 per cent. attorney's fees, if suit should be brought upon the contract. It was the court's duty to construe the contract so as to carry out the intentions of the parties to it. San Jacinto Oil Co. v. Ft. Worth L. & P. Co., 41 Tex. Civ. App. 293. 93 S. W. 176. The court properly construed the notes and contract. It follows from the above remarks that the judgment must be affirmed. SANDERS STATE BANK v. HAWKINS et al. (Court of Civil Appeals of Texas. Texarkana. Dec. 7, 1911.) 1. OFFICERS (§ 114*)—JUDICIAL AND QUASI JUDICIAL OFFICERS-PERSONAL LIABILITY. To hold a judicial or quasi judicial officer personally liable in a private action, it must appear that he transcended the limits of his power, but as long as he remains within the scope of his legal authority he is not liable, notwithstanding his motive; but, where an officer is influenced by improper or malicious motives in exceeding his authority, he is liable for the wrong inflicted. [Ed. Note.-For other cases, see Officers, Cent. Dig. §§ 187-192; Dec. Dig. § 114.*] 2. OFFICERS (§ 114*)-ACTION FOR EXCEEDING POWERS. A petition, in an action for private damages against a judicial or quasi judicial officer for exceeding the limits of his legal powers, must state facts showing a usurpation of authority, and that such usurped authority was knowingly assumed, or assumed in pursuance of improper or malicious motives. [Ed. Note.-For other cases, see Officers, Dec. Dig. § 114.*] 3. PLEADING (§ 214*) - DEMURRER-ADMIS SIONS. A demurrer to a petition admits the truth of all the material facts alleged, but it does not admit mere conclusions of the pleader. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 527; Dec. Dig. § 214.*] 4. PLEADING (§ 8*)-CONCLUSIONS. An allegation, in a petition by a domestic banking corporation against the Commissioner of Banking and a bank examiner for wrong fully closing the bank, that the officers acted without authority of law is a mere conclusion of the pleader; and whether or not they usurped their authority must be determined by measuring what they are charged with doing by what the law permits them to do. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 12-282; Dec. Dig. § 8.*] 5. EVIDENCE (§ 83*)-PERFORMANCE OF OFFI CIAL DUTY-PRESUMPTIONS. Where the conduct of an officer is attacked as in excess of authority, and there are any conditions under which he may exercise the powers assumed, the court will presume, in support of the validity and regularity of his acts, that such conditions existed and formed the basis of his official conduct, and this presumption must be indulged in in favor of the regularity of an officer's conduct when he is sought to be held civilly liable for damages sustained by a private party. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 105; Dec. Dig. § 83.*] 6. BANKS AND BANKING (§ 17*) — REGULATION-PUBLIC OFFICERS-POWERS. that the only resources of a bank were its stock, a large part or all of which had been invested in other property, the bank, to hold loaned to private parties, and the remainder the Superintendent and the examiner civilly liable in damages for closing the bank, must allege facts disclosing that they exceeded the authority conferred by law. [Ed. Note.-For other cases, see Banks and Banking, Dec. Dig. § 17.*] Appeal from District Court, Bowie County; P. A. Turner, Judge. Action by the Sanders State Bank against W. E. Hawkins and another. From a judgment of dismissal, plaintiff appeals. Affirmed. Hart, Mahaffey & Thomas, for appellant. Jewel P. Lightfoot, Atty. Gen., Jno. W. Brady, Asst. Atty. Gen., A. S. Hawkins, and Wm. E. Hawkins, for appellees. HODGES, J. The appellant brought this suit against the appellees to recover damages which it claims to have sustained by reason of the closing of its banking house and the suspending of its banking operations by the appellees, while they were claiming to act under the law regulating state banks and trust companies. The petition alleges that the appellant was duly incorporated under the laws of Texas, during the year 1909, as a state bank; that it thereafter received a permit from the proper authority to engage in the banking business with its domicile and place of business in De Kalb, Bowie county, Tex.; that it had a paid-up capital stock of $10,000. The petition then proceeds as follows: "That continuously from the date when the plaintiff first began business up to the 23d day of March, 1910, it did a banking business in compliance with and by authority of its charter and such certificate so issued to it, and that, on the 23d day of March, 1910, the plaintiff was a solvent and going bank, and that its business and affairs were so managed and conducted, so that in no degree were the safety or security of its depositors, creditors, or stockholders jeopardized. That on said date the resources of the plaintiff consisted of divers and sundry sums of money due it from other solvent banks and bankers in the total sum of $3,000, cash on hand, $225, and loans due it from solvent persons, $7,000, making the total amount of its resources, outsides of fixtures, stationery, etc., $10,250. That on the date aforesaid the liabilities of the plaintiff consisted alone of $10,000, its capital stock, and $225 due the state banking board. The act of 1905 (Laws 1905, p. 489), authorizing the supervisor of banking to close a bank when, from an examination, it is discovered that the bank is insolvent, or that its continuance in business will seriously jeopardize its depositors and creditors, requires the Superintendent of Banking, to close a bank when, in his opinion, from a personal examination, the bank is insolvent, or its continuance unsafe to depositors and creditors; and where an examiner, after examining a bank, makes a report to the Superintendent which and county, was well located, had just fairreveals such conditions, and recommends the ly entered upon its business career. That closing of the bank, the Superintendent, if its standing and credit were good in the approving the report, must close the bank, "The plaintiff further alleges that it was then and there located in a prosperous town and in that respect is clothed with judicial financial world, and that its name and standfunctions; and where an examiner reported ing were good in the community where it |