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March, 1914, and delivered to said A. C. payable. semiannually, and said deed and Schwarz Construction Company. On said note expressly provided for a vendor's lien date the A. C. Schwarz Construction Com-contract, and said note expressly provided pany executed a written transfer, conveying that failure to pay any installment of princisaid notes and the lien securing same to B. pal or interest when due thereon should at Deutsch, and said transfer was duly ac- the election of the holder thereof mature knowledged on the 14th day of March, 1913, same. On the 15th day of May, 1913, Amelie and filed for record on the 15th day of March, Schwarz and Leopole Schwarz executed a 1913, and recorded in volume 576, p. 392, written transfer, conveying said note and of the records of deeds, etc., of Dallas coun- the lien securing same on said property to ty, Tex.

George A. Titterington, and said transfer Default was made in the payment of the was duly acknowledged, as required by law, semiannual interest due on said notes on, and filed for record on the 21st day of May, to wit, the 14th day of September, 1913, and 1913, and recorded in volume 583, p. 38, recB. Deutsch thereafter declared said notes ords of deeds, etc., of Dallas county, Tex., and due and requested the trustee, A. C. Moser, said note was duly indorsed by said Amelie to sell said property after default had been Schwarz and Leopole Schwarz, and made made in the payment of said semiannual payable to George A. Titterington, without interest. That Tom F. Lewis was requested recourse on them. That $30 was paid on by B. Deutsch to prepare notices of sale of said note and credited on same on July 22, said property under said trust agreement, 1913. That George A. Titterington had no and said A. C. Moser, trustee, called at the notice or knowledge of the sale of said propoffice of Tom F. Lewis, and signed said notic-erty under said deed of trust, until several es, and requested said Lewis to post one days after trustee's sale, and after said of said notices at the courthouse door in property had been sold and the deed executed the city and county of Dallas, Tex., and by the trustee on or about November 10, post the other two of said notices in public 1913, he went to see B. Deutsch and offered places in Dallas county, Tex. That said to redeem said property for his said sale and Lewis posted one of said notices at the court- to pay B. Deutsch the amount of his notes house door in Dallas county, Tex., and one and interest and costs of sale, but said B. on the Hutchins Road in Dallas county, and Deutsch refused to accept same and claimed one on the White Rock Road in Dallas county, that he was the owner of said property. Said and all of said notices were duly signed by George A. Titterington made no further insaid A. C. Moser, trustee, and all of said quiry as to whether or not said interest had notices were posted more than 20 days prior been paid on said three notes described in to the 4th day of November, 1913, but said said mechanic's and builder's lien contract, trustee did not know where said other two at the time same became due on September notices were posted, and said notices duly 14, 1913, except prior to said date he inquired stated the time, place, and manner of making of W. F. Smith if said Smith would pay said said public sale, and said sale was made by interest, and was led to believe by said A. C. Moser at the courthouse door in the Smith that said interest would be paid when city and county of Dallas, Tex., on the 4th due. day of November, 1913, between the hours The prayer of the plaintiff's petition was of 10 o'clock a. m. and 4 o'clock p. m.

That that the deed made by Moser as trustee be said trustee, A. C. Moser, duly made said canceled; that plaintiff be allowed to pay off sale of said property at said time and place the indebtedness due the defendant Deutsch, and executed a trustee's deed conveying together with the expenses of the trustee's said property to B. Deutsch, who bid in said sale; and that plaintiff's junior lien on the property at said sale, and said trustee's deed property involved be foreclosed. was duly acknowledged on the 4th day of The court held, as a matter of law, that November, 1913, and filed for record on the the sale by A. C. Moser, trustee, was valid; 4th day of November, 1914, and duly recorded that defendant Deutsch by his purchase at in volume 598, p. 39, of the records of trustees' said sale acquired a good title to the property deeds, etc., of Dallas county, Tex. That on in controversy; and that the plaintiff, Titthe 12th day of May, 1913, Leopole and terington, had no right to redeem the same Amelie Schwarz executed a deed conveying or to foreclose his lien thereon. said property to W. F. Smith, and said Smith The first assignment of error shows the assumed the payment of said three notes appellant's contention and presents the only described in said mechanic's and builder's question for our decision. This assignment lien contract, and executed a note of even is as follows: date therewith for the sum of $485 payable “The court erred in rendering judgment to the order of Amelie Schwarz, and due and against plaintiff and in favor of defendant B. payable in monthly installments of $15 each, redeem 'the property from the trustee's sale

Deutsch, and in refusing to allow plaintiff to the first installment being due on or before which was made to B. Deutsch by the payment June 12, 1913, and one installment due on or to him of his debt and interest up to the time before the 12th day of each and every month of tender; the evidence showing that said de

fendant had a first and superior valid lien thereafter until paid, and said note bearing against the land described in plaintiff's petition interest at the rate of 8 per cent. per annum, under mechanic's lien and trust deed, in which Tex.)

TITTERINGTON V. DEUTSCH

281

there was a power of sale, upon default, given that such sales shall be made at public vento A. C. Moser as trustee to sell the land cov- due in the county where the real estate is sitered thereby only after having given public notice of the time and place of sale in the

man- uated between the hours of 10 o'clock a. m. ner and form and length of time prescribed by and 4 o'clock p. m. of the first Tuesday in any the statutes of Texas for the sale of real estate month, after giving at least 20 days' notice under deeds of trusts. And it further appear: thereof by posting written notices thereof ing that in foreclosure and sale to said defendant the said notices were not posted by said trus- in three public places in the county, one of tee; that he turned over to T. F. Lewis--a which notices shall be posted at the courtstranger to said mechanic's lien and trust deed house door of said county. That the evithe posting of said notices; and that said A. C. Moser did not select the places where said dence was sufficient to show a compliance notices were to be and were posted, and did not with the terms of the deed of trust and the direct the posting of any one of such notices, the statutes referred to, in giving notice of and did not know where any one of them was the sale at which the defendant purchased, posted, except that he told said Lewis to post one at the courthouse door at Dallas, Tex.; we have no doubt. Indeed, similar sales the evidence further showing that plaintiff had under practically the same state of facts and held a valid and subsisting unpaid debt and have been upheld by decisions of our appellien against the same property second_and inferior to that so held by defendant B. Deutsch; late courts. Roe v. Davis, 142 S. W. 951; and the evidence further showing that the prop- Id. (Sup.) 172 S. W. 708; Walker v. Taylor, erty was worth at least $1,600."

142 S. W. 31; Adams v. Zellner, 174 S. W. The validity of the notes and mechanic's 933. That the trustee, Moser, did not spelien, in its nature a deed of trust authoriz- cifically name the places where two of the ing the trustee, A. C. Moser, to sell the prop- notices of the sale should be posted, does erty therein described upon default in the not materially affect the question and dispayment of the principal or interest of the tinguish the case from those above cited. notes held by the defendant Deutsch, is not He did direct that one of said notices be questioned; and, as shown by our conclu- posted at the courthouse door of Dallas sions of fact, default was made in the pay- county, Tex., and that the other two be postment of the installment of interest which ed in public places in said county, and that became due September 14, 1913. After such these instructions were literally complied default, the defendant Deutsch declared the with is not denied. The deed of trust pronotes due and payable and requested his vided that the sale should be made upon such attorney, T. F. Lewis, to prepare notices of public notice thereof as is prescribed by the the sale of the property covered by the deed statutes for the sale of real estate under of trust and requested the trustee, Moser, such instruments, and among the things preto call at the office of the said Lewis and scribed is that the notices shall be posted sign said notices. The notices were pre- in three public places of the county. The pared, and the trustee called and signed notices of the sale in this instance were them as requested. The trustee, Moser, then so posted, and hence we hold that both the requested Mr. Lewis to post said notices as terms of the deed of trust and the statutes provided for in the deed of trust, and this were met and complied with. he did. The trustee, Moser, directed that The cases cited expressly hold that it is one of the notices be posted at the courthouse not necessary, in cases of this character, door of Dallas county, Tex., and knew that that the trustee should personally post the direction was complied with. He directed notices, but that this may be delegated to that the other two notices be posted in two an agent, and we can see no good reason for other public places in Dallas county, and holding that, notwithstanding this is true, this was done, but the trustee, Moser, did the "public places” at which such several not himself know at what places they were notices be posted, other than the courthouse posted. The trust agreement, with power door of the county, should be named by the of sale, provided that:

trustee or the sale will be held to be void. “The deed made by said trustee shall be prima If the opinion in the case of Meisner v. Tayfacie evidence of the trust, of all recitals as to default in the payment of said notes or inter- lor, 56 Tex. Civ. App. 187, 120 S. W. 1014, est, the request to the trustee to sell, to adver- embraces such a holding, the same was not tisé such sale, the proceedings at such," etc.

necessary to a decision of that case, is not The question then is: Was the sale by the an authoritative expression upon the questrustee, Moser, and at which the defendant tion, and has not been followed in subsequent Deutsch bought, invalid and should have cases of the appellate courts of this state. been set aside because the said Moser did In our opinion the selection of the places by not in person post the notices of said sale? the trustee named in a deed of trust inThe deed of trust under which the sale volves no such element of judgment or diswas made provided, as has been seen, that cretion as requires either the posting of the the trustee should sell after having given notices of sale by the trustee in person or public notice of the time and place of sale the naming by him, in the event he commits in the manner and form and length of time the performance of that duty to another, of prescribed by the statutes of Texas for the the places where such notices shall be posted. sale of real estate under deed of trust, and The terms of a deed of trust requiring the the manner prescribed by the statutes of this tion and belief H. was entitled thereto and they state for the sale of real estate is, in our tendered the money into court and made H. à opinion, satisfied when the notices thereof information and belief that H. was entitled to

. have been posted as required, whether post the commission did not show such partiality as ed by the trustee in person or by some per- prevented defendants from interpleading H., son selected by him to perform that service, be fair and impartial, it is also his duty to dis

since, while it is the duty of a stakeholder to and without regard to whether such person close to the court all facts possessed in referso selected was instructed to post the notices ence to the matters in issue, and the remedy at certain designated public places.

Such of interpleader is so beneficial and so just that is the effect of the holdings in the cases any reasonable doubt as to a party's right to

an interpleader will be resolved in his favor. cited above, and especially in the case of

[Ed. Note. For other cases, see Interpleader, Adams v. Zellner, supra, decided by this Cent. Dig. $$ 47, 51; Dec. Dig. 23.] court, and in Walker v. Taylor, decided by 2. EVIDENCE On 317-HEARSAY-ADMISSIBILthe Court of Civil Appeals for the Fourth ITY. District. In Adams v. Zellner, one of the

In an action against brokers who employed

plaintiff to assist them in selling lands in which notices was posted by the trustee at the they interpleaded H. with whom they had a simcourthouse door in Hill county, one was ilar arrangement, one of the defendants testified mailed to some one at Whitney, and the that H. brought the purchaser into the office, other to some one at Hubbard or Itasca, tiff had sent him in with the purchaser, and that

that defendant asked him whether or not plainwith the request in each instance that the H. stated that he had not, but that he brought notice be posted. It does not appear that the purchaser himself, and that thereupon despecific directions accompanied the notices fendant told H. that he would pay him half of

the commission to close the deal. Held, that that they be posted in places named by the this testimony was obviously hearsay

and inadtrustee, and, notwithstanding this, it was missible. held that the evidence justified a finding of [Ed. Note.-For other cases, see Evidence, compliance with the law and terms of the Cent. Dig. 88 1174–1192; Dec. Dig. 317. deed of trust. In Walker v. Taylor, supra, 3. APPEAL AND ERROR Omw 1050 - HARMLESS it is correctly said that:

ERROR-ADMISSION OF EVIDENCE. "The strictness required in following the evidence tending to sustain H.'s claim to the

Even though there was other competent terms of the power granted by the deed of trust commission, it could not be said that the admisis to protect the property of the mortgagor, and sion of such evidence was harmless, as it could when he is satisfied no one else can with rea- not be told how much importance the jury atson complain.”

tached to such evidence, and hence, though there There is no one complaining in this case was no statement of facts, the admission of such except the appellant, a junior lien holder, evidence could not be regarded as harmless. and there is no evidence of collusion or Error; Cent. Dig. $g 1068, 1069, 4153-4157,

[Ed. Note.--For other cases, see Appeal and fraud to prevent the collection of his debt 4166;' Dec. Dig. @ 1050.] by means of the security he held. On the

4. EVIDENCE On 314 – HEARSAY EVIDENCE contrary, so far as the record discloses, the

ADMISSIBILITY. makers of the deed of trust in question and Except in cases of pedigree, relationship, all others at interest, except appellant, were marriage, death, age, and boundaries, hearsay

evidence is inadmissible. and are fully satisfied with the steps taken

[Ed. Note.-For other cases, see Evidence, by the trustee in making the sale to the de- Cent. Dig. $$ 1168–1173; Dec. Dig. 314.) fendant Deutsch. Our conclusion is that the 5. APPEAL AND ERROR Cwm 688 PRESUMPdistrict court correctly held that the notices TIONS IN SUPPORT OF JUDGMENT-OMISSIONS of the sale under which the defendant FROM RECORD. Deutsch claims the property in controversy sel in stating in his argument that plaintiff

Though the language of defendants' counwere duly posted as required by the deed of was a liar was severe and might under certain trust in question and the statutes of this circumstances constitute serious error, it could state, and that, as there is no other question not be said that it was error, where there was raised which requires a reversal of the case, have been reasonably deducible from the evi

'no statement of facts, as counsel's remark may the judgment of the district court should be dence. affirmed, and it is, accordingly, so ordered. [Ed. Note.-For other cases, see Appeal and Affirmed.

Error, Cent. Dig. $8 2894–2896; Dec. Dig. Ons 688.]

Appeal from County Court, Kaufman PULKRABECK v. GRIFFITH & GRIF

County; James A. Cooley, Judge.
FITH. (No. 7385.)

Action by John Pulkrabeck against Grif(Court of Civil Appeals of Texas. Dallas. fith & Griffith. From a judgment for defendJune 19, 1915. Rehearing Denied ant, plaintiff appeals. Reversed and reOct. 16, 1915.)

manded. 1. INTERPLEADER 23—GROUNDS-PARTIAL

Woods & Morrow and Huffmaster & HuffITY OF STAKEHOLDER.

In an action against brokers who employed master, all of Kaufman, for appellant. Terry plaintiff to assist them in selling farm lands in & Brown, of Kaufman, for appellee. à certain county, they alleged that they had made a similar agreement with H., that on a certain sale a commission was due either plain

RASBURY, J. There is no statement of tiff or H., and that according to their informa-i facts in the record of this cause, but it does Tex.)

PULKRABECK V. GRIFFITH & GRIFFITH

283

appear from the pleading that by mutual, that "the remedy is so beneficial and so just agreement appellees employed appellant to that any reasonable doubt as to his right to assist them in selling certain farm lands in an interpleader will be resolved in his favor." Kaufman county for which appellees were | Nixon v. New York Life Ins. Co., 100 Tex. agents. By the agreement appellees were to | 251-262, 98 S. W. 380, 99 S. W. 403. See, divide their commissions with appellant on also, Rochelle et al. v. Pacific Express Co., all sales made to customers introduced, pro- 56 Tex. Civ. App. 142, 120 S. W. 543. The cured, or brought to appellees by the efforts rule being as stated and so highly favored of appellant. Other provisions of the agree- by courts, we do not think that appellees ment need not be detailed. After the agree- should be denied the right to have the rival ment was reached, appellant sued appellees claimants to the commissions adjust their alleging generally that he had earned $250 claims in one suit, merely because appellees under his agreement with appellees, which assumed the position in their pleading based they refused to pay. Appellees, in answer

Appellees, in answer upon information and belief that Holick was to the suit, admitted the agreement, and al- entitled to the commissions. Such pleading leged in addition that it made a similar does not, in our opinion, constitute such paragreement with one Holick and others, but tiality as will prevent the application of the had not made an exclusive agreement with rule. The pleading at most is but the exany one; also, that a sale of certain of the pression of an opinion. Other portions of the lands was made to one Kovar upon which pleading are clear in the statement that apthere was due either appellant or Holick the pellees do not know who earned the commissum of $80, and that according to appellees' sions, but are willing to pay to whomsoever information and belief Holick was entitled is entitled thereto and for that purpose tenthereto. The money was tendered into court ders the money into court. While it is clearand Holick made a party to the suit. Hol- ly the duty of a stakeholder to be fair and ick intervened in the suit, either voluntarily impartial, it is also his duty to disclose to or in response to citation, and alleged a con- | the trial court all facts possessed in refertract with appellees similar in all respects ence to matters in issue, and to do so is not with the one between appellant and appellees in law a showing of partiality. and that he was the procuring cause of the [2-4] The fifth and ninth assignments of sale to Kovar since it was through his efforts error attack the action of the court in adthat the sale had been consummated. There mitting certain testimony. By bill of excepwas trial by jury to whom the court sub- tion it is shown that while the trial of the mitted two special issues of fact: The first case was in progress T. B. Griffith, one of being, “Was the plaintiff John Pulkrabeck the appellees, was permitted over objection the procuring cause of the sale of the 151- of appellant, after he had testified that apacre tract to Martin Kovar by Charles C. pellant had not in any manner contributed to Cobb by reason of any aid or assistance ren

n- the sale of the land, to further testify: dered by him to the said defendants Griffith

"Holick brought Kovar into my office, and I & Griffith?” and to which the jury answered stated to Holick that I wanted to know whether "No." The second being, “Was the interven- or not Pulkrabeck had sent him in with Kovar, er John R. Holick the procuring cause of commission to close the deal, and he stated he

* * * and if not I would pay him half the the sale of the 151-acre tract of land to Mar- had not, that he brought him himself. I theretin Kovar by Charles C. Cobb by reason of upon told him that I would pay him half of the any aid or assistance rendered by said John commission to close the deal." R. Holick to the said defendants Griffith & Appellant was not present when the conGriffith?” and to which the jury answered versation took place between the witness, “Yes." Upon the jury's findings judgment appellee, and intervener, Holick. Appellant was rendered that appellant take nothing by contends that the evidence detailed was hearhis suit against appellees and that interven- say and self-serving and hence inadmissible. er Holick recover of appellees the sum of We concur in the contention. The testimony $80, and from which judgment this appeal was obviously hearsay (Ross et al. v. Mosis taken.

kowitz, 95 S. W. 86), and its effect was [1] The second, third, and fourth assign- clearly to support the contention of both apments of error challenge the right of appel- pellees and intervener that the latter was lees to interplead Holick in the suit on the the procuring cause of the sale. Save in ground that there is no privity of contract cases of pedigree, relationship, marriage, between appellant and Holick and on the death, age, and boundaries, hearsay evidence ground of the partiality of appellees. While is inadmissible. The fact, as contended by we are not unmindful of the rule invoked by appellees, that a statement of facts is not the assignment, it has nevertheless been held in the record, will not support a finding that by our Supreme Court that, “under our the admission of the evidence was harmless. blended system, where law and equity are Even though there was a statement of facts administered by the same court, and the which disclosed other competent evidence rights of all parties to the suit in the sub-tending to sustain intervener's claim, we ject-matter thereof may be adjudicated and would yet be unable to say that the hearsay fully protected,” a defendant is entitled to evidence was harmless. Appellees assumed ted the debt. Occupying such a position, it is dence held not to sustain a finding that it was difficult to say exactly how much importance intended by decedent that a daughter of his the jury would attach to the statement of riage to her mother, should be treated as his

his appellees that Holick had said that appel- own and have a child's interest in his estate, lant had in no way contributed to the sale so as to be entitled to take in case of intesof the property to Kovar. Certainly we can- tacy or testament equally with his own chil

dren. not say it was harmless, particularly in view

[Ed. Note.-For other cases, see Adoption, of the further fact that appellees had testi- Cent. Dig. & 11; Dec. Dig. Om6.] fied that they had received no assistance 4. ADOPTION Om 6-PLEADING - INTEREST OF from appellant in the sale of the lands.

ADOPTED CHILD. [5] In reference to the alleged misconduct

In such action, where no such contract of of counsel in stating in argument before the adoption was pleaded, but only a promise to jury "that old John Pulkrabeck was a liar," of his marriage with the child's mother by ex

adopt and performance by decedent on the day it may be conceded that the language was ecuting and filing an instrument of adoption severe, and might under certain circumstanc-whereby she became his legal heir, proof that

decedent had intended that the adopted child, es constitute serious error if permitted, at under whom plaintiffs claim, should have the the same time, in the absence of a statement same interest in his estate as his own children, of facts, we cannot say in this case that it could not properly become the basis of a judgwas. Unlike the admission of hearsay evi- ment in plaintiffs' favor. dence, it may be that if all the evidence was Cent. Dig. 11; Dec. Dig. Om6.]

[Ed. Note. For other cases, see Adoption, before us the remark of counsel could be reasonably deducible therefrom.

Appeal from District Court, Galveston The remaining assignments of error have County; Robt. G. Street, Judge. been carefully considered and in our opin

Action for partition by Thomas W. Masterion fail to disclose reversible error, and for son and others against John W. Harris and that reason are overruled.

others. Judgment for defendants, and plainBecause of the action of the trial court in tiffs appeal to the Court of Civil Appeals, admitting the evidence of the witness Grif- which certified questions, answered by the

174 S. W. 570. Affirmed. fith, the judgment is reversed, and the cause Supreme Court. remanded for another trial not inconsistent 'D. D. McDonald, of Galveston, and Maswith the views expressed herein.

terson & Masterson, of Houston, for appelReversed and remanded.

lants. Edward F. Harris, Harris & Harris, and P. A. Drouilhet, all of Galveston, and W. H. Newton, of San Antonio, for appellees.

MASTERSON et al. v. HARRIS et al. McMEANS, J. Appellants, plaintiffs in (No. 5852.)

the court below, brought this suit against (Court_of Civil Appeals of Texas. Galveston. appellees, defendants, for partition of the June 25, 1915. Rehearing Denied property of the estates of John W. Harris, Oct. 7, 1915.)

deceased, Annie P. Harris, deceased, and 1. APPEAL AND ERBOR 1195 – RULES OF Rebecca P. Harris, deceased, alleging that DECISION-STATE SUPREME COURT. The answers to questions propounded by

appellants and appellees owned in undivided the Court of Civil Appeals to the Supreme interests the property of the three estates Court are conclusive upon the Court of Civil in the proportions set out in the petition. Appeals.

The case was tried before the court without [Ed. Note.-For other cases, see Appeal and a jury, and resulted in a judgment for deError, Cent. Dig. $$ 4661-4665; Dec. Dig. Om 1195.]

fendants from which the plaintiffs have 2. WILLS Om 230_WITHHOLDING FROM PRO

appealed. BATE-AGREEMENT BETWEEN HEIRS-ESTOP- This case was submitted to this court on PEL.

December 21, 1911. Thereafter, after mature The agreement between the widow and the consideration, we concluded to certify to the children of a testator, whose will contained a devise of $3,000 to plaintiff's mother for the Supreme Court two questions raised by apeducation of her children, conditioned upon the pellants by appropriate assignments of error, widow's acceptance of the will in lieu of her a decision of which we then thought would community interest, to withhold it from probate practically settle the case, and we see no and to take agreed shares of the estate, at which time the plaintiff's father stated that reason now for changing the conclusion then the other parties might do as they pleased and reached. The statement of the case emnot consider his children, and the ratification braced in our certificate is a sufficiently of such agreement by acting thereunder for 21 clear statement of the issues presented by years up to the widow's death, did not estop them from claiming title under the will after the pleadings of the parties and the facts it had been probated at the instance of pur- proved at the trial, and we now here adopt chasers of realty from the estate.

and copy the same as a part of this opinion: [Ed. Note.-For other cases, see Wills, Cent.

"The plaintiffs are the sole devisees under Dig. $8 555-559; Dec. Dig. 230.)

the will of Mrs. Annie Masterson, who died in 3. ADOPTION 6- EVIDENCE — INTEREST OF 1900, leaving a will duly probated (except that ADOPTED CHILD.

one of the plaintiffs is sole beneficiary under In an action for partition of the estates of the will of one of such devisees). Of the de a decedent, his wife, and their daughter, evi-/fendants, John.W. Harris and Mrs. Cora Dav

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