dence strongly tending to show that Littlejohn's agency for plaintiff in error had terminated at the time he issued the policy sued upon, the trial court had a right to believe Littlejohn when, as a witness, he testified that his agency had not then terminated. As his testimony was sufficient to support the finding involved in the judgment to the contrary of the insistence of plaintiff in error, it is not for this court to say that the finding was opposed by a preponderance of the evidence and therefore wrong. The question for an appellate court is not whether findings of a trial court complained of "are supported by a preponderance of the evidence, but it is whether or not there is evidence to support them." Wells v. Yarbrough, 84 Tex. 660, 19 S. W. 865; Koehler v. Cochran, 19 Tex. Civ. App. 196, 47 S. W. 394. As we construe the answer, it was merely a denial by plaintiff in error that Littlejohn was its agent at all. Defendant in error overcame that defense by proof showing that Littlejohn was its agent to issue policies at the time he issued the one in question. Had plaintiff in error defended on the ground that Littlejohn exceeded his authority as its agent when, in violation of its instructions not to issue policies on farm property, he issued the one sued upon, defendant in error would have been called upon to plead the facts constituting the estoppel, and doubtless he would have done so. We have found nothing in the record showing defendant in error to have had any knowledge of the limitation on Littlejohn's authority prior to the time the letter advising him that plaintiff in error would not issue policies on farm property was offered in evidence at the trial. It seems to us it would be unreasonable to hold, under the circumstances, that the case is within the rule invoked. We think it should be held, instead, that it is within the exception to the rule, and that the failure of defendant in error to plead the facts showing the estoppel proven is not a reason why the judgment should be reversed. It [3, 4] In a letter dated January 12, 1912, plaintiff in error advised Littlejohn that "the International will not write farm property under the new management." It is not doubted that the effect of this letter, as between plaintiff in error and Littlejohn, was to deprive the latter of the right he had before he received it to issue policies of the former on farm property. But the fact that Littlejohn, because of the restriction in the [5] We do not think it should be said to letter referred to, was without authority to have conclusively appeared that Littlejohn issue the policy sued upon, is not a reason was without authority to issue policies of why it should be held that plaintiff in error plaintiff on property in Panola county. was not liable thereon; for it appears that is true that it appeared that he was plaintiff defendant in error at the time he dealt with in error's agent "at Marshall," but we do Littlejohn was ignorant of the restriction not think that meant he could not issue its on his authority. Defendant in error there- policies on property elsewhere than in that fore had a right to assume that Littlejohn, city. And plaintiff in error does not contend being empowered by plaintiff in error to it did, but insists his authority was reissue its policies, was authorized to issue the stricted to the issuance of its policies on one in in question; and plaintiff in error property in Harrison county. The contention should be held to be estopped from assert- is based on correspondence between plaining to the contrary. 1 Clark & Skyles on tiff in error's secretary at Ft. Worth and LitLaw of Agency, §§ 196, 206, 207, 208, 451; 1 tlejohn at Marshall, showing that Littlejohn Cooley's Briefs on Law or Ins. p. 347. Plain- in applying for appointment as agent of tiff in error, as we understand it, does not plaintiff in error to issue its policies on farm contend that the law is otherwise. Its con- property assured it that the class of risks tention is that the estoppel against it was he would write would be "among the best not available to defendant in error because planters in Harrison county;" that it rehe did not plead it. Undoubtedly the genUndoubtedly the gen-plied as follows: eral rule is that facts relied upon to establish an estoppel must be pleaded. Insurance Co. v. Bank, 17 Tex. Civ. App. 477, 43 S. W. 831; Swayne v. Insurance Co., 49 S. W. 518; Rail v. Bank, 3 Tex. Civ. App. 557, 22 S. W. 865. But, it seems, the rule does not apply where the party asserting the estoppel has not had an opportunity to plead it. Abbott's Trial Brief, pp. 1640, 1644; Schurtz v. Colvin, 55 Ohio St. 274, 45 N. E. 527. Here defendant in error alleged that the policy was issued by plaintiff in error "by and through its agent A. C. Littlejohn." The answer of plaintiff in error to the allegation was as follows: "At the present time we have no representative in your city. If you would take the agency of our company we would endeavor to care for such country business as would comply with our requirements, namely, owner, occupancy, brick flues and unincumbered. We would also take small lines on barns and contents not to exceed 25 per cent. of our line on dwellings and contents. If you would like to have the agency of our company on this basis, and would also give us some good city business to offset this country business without making us a specialty farmwriting company, I would be glad to plant with you." That Littlejohn replied: "I will be pleased to accept the agency for your company along the lines outlined by your"Defendant denies that A. C. Little- self. Please therefore furnish me with bond and john was its agent, and denies that he had au- contract, also register and policies, and any oth And on testimony of one Pillet, the acting secretary of plaintiff in error, as follows: "In all cases the authority of the agents of International Fire Insurance Company was limited to their own town and probably to suburbs adjoining. If in any case the authority was greater than that, special permission would have to be given, in writing, by the company. No authority was extended in any case to an agent to operate outside of his county." Pillet, it will be noted, did not pretend to know anything about the authority conferred upon Littlejohn further than was shown by the correspondence set out above. His testimony in that respect had reference to the custom of his company in appointing agents and defining their authority. We do not think the trial court was bound to believe and find that the custom was observed when Littlejohn was appointed, but think he had a right to determine the question from the showing made by the correspondence. So determining it, we think the trial court might reasonably have found as he did. It will be noted that in the letter appointing Littlejohn agent no restriction was placed on his authority as to the location of property to be insured by policies he might issue. If the restriction as claimed existed by force of the contract of agency as evidenced by the correspondence, it must have been because of the assurance in the letter of Lit held to have defeated a right on the part of defendant in error to recover on the policy as he did. For it appears from the record that defendant in error dealt with Littlejohn on the faith of his being what his possession of plaintiff in error's policies indicated him to be, to wit, its agent with authority to issue its policies, and in complete ignorance of any restriction on his authority as such agent. The judgment is affirmed. MCLEMORE v. BICKERSTAFF et al. * (Court of Civil Appeals of Texas. Texarkana. 1. JUDGMENT 256 - CONFORMITY TO SPE- Under Rev. St. arts. 1986, 1990, 1994, providing that a special verdict shall be conclusive as to the facts found, and that the court must conform his judgment thereto, the court must conform its judgment to the special findings of the jury. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. 256.] 2. DEEDS 66-DELIVERY-EVIDENCE-QUES TION FOR JURY. Whether a deed was delivered, held, under the evidence, for the jury. Dig. 88 127, 633; Dec. Dig. 66.] 3. MORTGAGES 139 - ABSOLUTE DEED AS A mortgagee holds only a lien, which is merely a legal right to have recourse on the mortgaged property to satisfy his claim in case of default, and on condition broken he must foreclose, and the fact that the mortgage is evidenced by a deed, absolute on its face, does not change the rule. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 278; Dec. Dig. 139.] CHASER 228-ABSOLUTE DEED -TRANS- One obtaining a conveyance from a grantee in a deed, absolute in form, but in fact a mortgage, acquires no title, unless he is a purchaser for value and without notice that the deed was a mortgage. One claiming title by estoppel must plead and prove the facts creating an estoppel. tlejohn applying for the appointment that the class of risks he would write, if appoint-4. MORTGAGES 139 VENDOR AND PURed, "would be among the best planters in Harrison county." It seems to us there would be as good reason for construing this assurance as operating to deny Littlejohn authority to issue plaintiff in error's policies on farm property to others than the [Ed. Note. For other cases, see Mortgages, "best planters" in Harrison county, as for Cent. Dig. §§ 278, 728; Dec. Dig. 139; Venconstruing it as operating to deny him au- dor and Purchaser, Cent. Dig. §§ 495-501; Dec. Dig. 228.] thority to issue such policies only on proper-5. ESTOPPEL 107-TITLE BY ESTOPPEL — ty in Harrison county. We think the trial PLEADING AND PROOF. court might reasonably have concluded that plaintiff in error in the letter appointing Littlejohn its agent did not intend that the general authority thereby conferred upon him to act for it in the issuance of its policies on farm property was to be construed as so limited as to locality, by Littlejohn's letter applying for the agency, as to deny him authority to issue such policies on farm property outside of Harrison county. But if we are wrong about this, and if it should be said that it conclusively appeared that Littlejohn was without authority to issue the policy in question because the property ING. covered by it was in Panola county, we do not think his lack of authority should be [Ed. Note. For other cases, see Estoppel, Cent. Dig. § 297; Dec. Dig. 107.] 6. ESTOPPEL 58- EQUITABLE ESTOPPEL ELEMENTS. An equitable estoppel cannot be invoked except to protect the party claiming its benefit from damage or loss resulting if the true facts must point to some injury he will sustain if the should control, and one invoking the estoppel true facts control. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 144, 145; Dec. Dig. 58.] 7. ESTOPPEL 21-DEEDS-ACTS CONSTITUT in fact a mortgage, signed as a witness a deed A grantor in a deed, absolute in form but by the grantee to a third person. The third For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes came effective; (3) that Bickerstaff and his children have held peaceable and adverse possession of the land in controversy continuously since January 29, 1889. Upon those findings the court entered a judgment in favor of the defendants in error. The first assignment presented is as follows: "The court erred in rendering judgment for defendants and in overruling plaintiff's motion for judgment in his favor, notwithstanding the findings of the jury." [1] It is not denied that the findings of the jury justified, if they did not demand, a judgment in favor of the defendants in error. But it is argued that the state of the evidence was such that the court should have ignored those findings and entered up a judgment in favor of the plaintiff in error. It has long been the settled law in this state that when a jury has been impaneled to try the issues of fact, the court is required to conform his judgment to the jury's findings. Rev. Civ. Stat. 1911, arts. Error from District Court, Franklin Coun- 1986, 1990, 1994; Ablowich v. Bank, 95 Tex. ty; H. F. O'Neal, Judge. Trespass to try title by J. T. McLemore against Savannah Bickerstaff and others. There was a judgment for defendants, and plaintiff brings error. Affirmed. A. L. Burford, of Texarkana, and R. T. Wilkinson, of Mt. Vernon, for plaintiff in error. Dinsmore, McMahon & Dinsmore, of Greenville, and R. E. Davenport, of Chickasha, Okl., for defendants in error. 431, 67 S. W. 79; Clark & Loftus v. Pearce, 80 Tex. 151, 15 S. W. 787; Western Union Tel. Co. v. Mitchell, 89 Tex. 444, 35 S. W. 4; Scott v. Farmers' & Merchants' Nat'l Bank (Civ. App.) 66 S. W. 493; Fant v. Sullivan (Civ. App.) 152 S. W. 521. [2] We might rest the affirmance of this judgment upon the disposition made of this assignment, for none of those remaining are presented in a manner which entitles them to consideration; but the plaintiff in error insists that the judgment is fundamentally HODGES, J. This suit was instituted in erroneous because of the insufficiency of the the form of an action of trespass to try title evidence to support it. Conceding, for the by the plaintiff in error against the defend- sake of argument, that the absence of suffiants in error, to recover a tract of land situ- cient evidence to support a judgment is an ated in Franklin county. J. B. Bickerstaff error apparent upon the face of the record is the common source of title, and the de- which may be considered without an assignfendants in error are his children and only ment, we think the appeal is without merit. heirs. The plaintiff in error deraigns title The evidence shows that in 1889 Bickerstaff through a deed from Bickerstaff to D. F. was the owner of the land in controversy, McLemore executed on January 29, 1889, together with two other tracts. and a conveyance from D. F. McLemore to need of money, and procured a loan from himself executed in 1896. Among other de- D. F. McLemore and made the deed of Janfenses interposed by the defendants in error uary 29, 1889, for the purpose of securing was a plea of limitation, based upon 10 McLemore in the loan advanced. In 1891 years' adverse possession. J. B. Bickerstaff McLemore executed a deed reconveying this remained in possession of the property until tract, and other lands not here involved, to his death, which occurred a short time be- Bickerstaff. There was considerable dispute fore the institution of this suit, and after as to whether or not this deed was ever dehis death some of his children have con- livered. McLemore admitted its execution, tinued to occupy the premises. The case but says that it was the understanding that was submitted to the jury upon special is- the deed was to be delivered when Bickersues, and the following findings of fact made: staff paid the debt; that he failed to do (1) That the deed from Bickerstaff to D. F. this, and the deed never had been delivered. McLemore in 1889, though absolute in form The deed was produced on the trial as comand purporting to convey the land in fee ing from the custody of D. F. McLemore. simple, was intended by the parties to be Savannah Bickerstaff, one of the defendants only a mortgage to secure McLemore in an in error, testified: That her father at his indebtedness due him from Bickerstaff; (2) death left a number of papers relating to his that a deed executed by D. F. McLemore in business, which she turned over to Mr. DayApril, 1891, reconveying the land in contro- enport, his attorney. Before doing this versy to Bickerstaff, was delivered and be- she looked over them and found an instru ment in the form of a deed, which related to the land in controversy, and to which J. B. Bickerstaff and D. F. McLemore were parties. She did not recollect the date, but did recall that it also had a certificate of acknowledgment from S. M. Speer. Davenport testified that Miss Bickerstaff brought to his office a number of her father's deeds and papers, which were examined by him. One of them, according to his description, appeared to be the deed from D. F. McLemore to J. B. Bickerstaff, reconveying the land in controversy. This deed mysteriously disappeared from his office the very day it was brought to him. That an issue of fact regarding the delivery of the deed of 1891 was presented and determined by the jury in favor of the defendants. This alone is sufficient to defeat the plaintiff's right of recovery. they were given merely to prevent plaintiff in error from disposing of the land. The notes were afterwards returned to him, and D. F. McLemore afterwards made a will, devising the land to all of his children in equal portions. We then have the situation of a grantee who paid no consideration, and who had notice that his grantor had no right to convey, insisting upon a title by estoppel. The evidence shows that the deed from D. F. McLemore to the plaintiff in error was signed by Bickerstaff as a witness, but was acknowledged before a notary public by the grantor. There was also evidence tending to show that Bickerstaff received a credit on his debt due to D. F. McLemore equal to the sum recited in the deed. It is insisted that these facts are sufficient to create an estoppel against the heirs of Bickerstaff, notwithstanding the notice to the plaintiff in error and his failure to pay a valuable consideration for the transfer. [3-5] But if it should be assumed, as the plaintiff in error contends, that the deed from D. F. McLemore in 1891 was never in [6] There are at least two satisfactory reafact delivered, there is ample evidence in the sons why these facts do constitute an estoprecord, about which there appears to be lit- pel. First, because an equitable estoppel tle or no dispute, which shows that the chain cannot be invoked except for the purpose of of title upon which the plaintiff in error protecting the party claiming its benefit from relies is insufficient to support his claim of some damage or loss which might result if ownership. It was admitted in the argu- the true state of the facts should control the ment before this court that the deed from determination of the controversy. The party Bickerstaff to McLemore executed in 1889 who invokes estoppel must be able to point was only a mortgage, as found by the jury. to some injury he will sustain, if the truth Under a well-established rule in this state is told. Here the plaintiff in error parted the mortgagee acquires no estate in or title with no consideration, and can lose nothing to the mortgaged property which he may con- if it be shown that he got no title. The only vey to another. He holds only a lien, which injury of which he can complain is the failis merely a legal right to have recourse on ure to obtain something for nothing. The the mortgaged property for the satisfaction of fact that in the transaction Bickerstaff may his debt in case of default. He cannot suę have secured a benefit, in the nature of a and recover the property in the event the credit on his debt, does not alter the situacondition is broken, but must seek a fore- tion. An estoppel is interposed, not because closure of his lien and a sale of the property. one party has received a benefit from the The fact that the mortgage is evidenced by a transaction, but because another may be indeed absolute upon its face does not alter the jured. The rules governing estoppel are not rule. Mann v. Falcon, 25 Tex. 274; Edring- to be confused with those which govern ratiton v. Newland, 57 Tex. 627; Wiggins v. fication. Wiggins, 16 Tex. Civ. App. 335, 40 S. W. 645, and cases cited. It follows, then, that if D. F. McLemore had no title to convey, the plaintiff in error acquired none by the conveyance made to him in 1896, unless he occupied the position of a purchaser for value and without notice that the deed under which his grantor held was only a mortgage. Stafford v. Stafford, 29 Tex. Civ. App. 73, 71 S. W. 984; 1 Jones on Mort., § 808. One who claims title by estoppel must plead and prove the facts which create an estoppel. There is in the evidence no pretense that the plaintiff in error was ignorant of the true character of the deed from Bickerstaff to D. F. McLemore; and, according to his own testimony, he paid no consideration for his conveyance. His deed recited a consideration of $3,500 to be paid in two installments, but he admits that it was never the intention of [7] The second reason is, because the plaintiff in error apparently knew as much about the legal status of the title to the land as did Bickerstaff. Wortham v. Thompson, 81 Tex. 348, 16 S. W. 1059. The fact that Bickerstaff signed the deed to the plaintiff in error as a witness, standing unexplained, tends merely to show that he consented to the transaction. It does not imply that he encouraged or advised it. We may assume as true that all of the parties believed that D. F. McLemore had the legal title to the land and could convey it to another, and that they desired to accomplish that particular end; it would still be nothing more than a mistake of law. It would not follow that Bickerstaff would be guilty of a wrong such as to preclude him or his heirs from thereafter stating the truth about the transaction. [8] If the deed under which D. F. McLe the other. tion it remained a mortgage, and no subse- | cretion should then be regulated by the balance quent parol agreement of the parties could of inconvenience or injury to the one party or alter its legal character. Keller v. Kirby, 34 Tex. Civ. App. 404, 79 S. W. 82; Ullman v. Devereux, 46 Tex. Civ. App. 459, 102 S. W. 1163; Hart v. Eppstein, 71 Tex. 752, 10 S. W. 85. Cent. Dig. §§ 305, 306, 357-371; Dec. Dig. 4. EXECUTION 172 - TEMPORARY INJUNC- In a suit to restrain an execution sale and to remove an abstract of a judgment as cloud creditor' had notice of the rights of a purchaser on title, evidence held to show that execution under an unrecorded deed sufficient to justify granting of a temporary injunction and refusal to dissolve it. Cent. Dig. 88 519-539; Dec. Dig. 172.] [Ed. Note.-For other cases, see Execution, Appeal from District Court, Cherokee County; L. D. Guinn, Judge. Action by C. H. Hill and others against H. M. Whitaker and another. From an order refusing to dissolve a temporary injunction, defendants appeal. [9] A conveyance by a mortgagee out of possession passes nothing. Perkins v. Sterne, 23 Tex. 561, 76 Am. Dec. 72; 1 Jones on Mort. § 808. The law will impute a knowledge of these rules as much to the plaintiff in error as to any other party to the transaction. There is nothing in the record to indicate that he was ignorant of them. The evidence also shows that Bickerstaff remained in the undisturbed possession of the land from a period antedating the deed of 1889 till his death, and that he appropriated the rents and revenues to his own use; that afterward his children continued to occupy the premises and to make the same use of them. While the evidence shows that Bickerstaff paid the taxes, he seems to have rendered the property for taxation in the name of McLely in Smith county. In consideration of more. During the time he remained in possession he sold and conveyed portions of the land included in McLemore's deed. The finding of the jury that the defendants in error had completed the bar of limitation is not without support. For reasons not necessary to state we have passed over several tenable objections urged by the defendants in error against the consideration of this case on its merits. Affirmed. Mrs. Rosa P. Osburn, one of the appellees, owned 254.8 acres of the Jose Maria Procella survey, situated partly in Cherokee and part $1,008.40 paid to her by C. H. Hill, another one of the appellees, and the execution and delivery to her by him of his four promissory notes for $250 each, payable February 13, 1914, 1915, 1916, and 1917, respectively, Mrs. Osburn conveyed the land to said Hill by a general warranty deed dated February 13, 1913. The deed was not filed for record in Cherokee county until April 7, 1915. The notes made by Hill were secured by the ven There is no error in the judgment, and it dor's lien retained on the land. Before any is affirmed. WHITAKER et al. v. HILL et al. (No. 1511.) 1. JUDGMENT 788-LIEN-RECORDING. A judgment creditor may, notwithstanding an unrecorded deed by the debtor to a third person, acquire a lien on the land by complying with Vernon's Sayles' Ann. Civ. St. 1914, arts. 5614-5616, relating to judgment liens, or by levy of execution without knowing and without being chargeable with notice of the third person's title under articles 6827, 6828, and may, under article 6824, subject the land to his judg ment. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1368, 1369; Dec. Dig. 788.] 2. JUDGMENT 769-LIEN-RECORDING AND DOCKETING JUDGMENT-INDEX. The indexing of the abstract of a judgment duly recorded is, under Vernon's Sayles' Ann. Civ. St. 1914, arts. 5614-5616, indispensable to the creation of a lien. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1327; Dec. Dig. 769.] of them had matured Mrs. Osburn assigned the notes and her claim on the land to secure the payment thereof to D. F. Wilkinson, another one of the appellees. The note due February 13, 1914, was paid by Hill at its maturity. The others, except interest which had accrued thereon, had not been paid at the time the order appealed from was made. March 29, 1915, appellant H. M. Whitaker, having on February 11, 1915, obtained judgment against Mrs. Osburn for the sum of $1,500, filed an abstract thereof in the office of the county clerk of Cherokee county, where 200 acres of the land was situated, and had same recorded. April 7, 1915, an alias execution previously issued on the judgment was levied on the 200 acres in Cherokee county by Forest Reagan, sheriff, who is the other appellee. Thereupon Mrs. Osburn, Hill, and Wilkinson commenced this suit against Whitaker and the sheriff to restrain the latter from advertising and selling the land and to have the cloud cast on the title of Hill thereto by the recording of the abstract and levy of the execution removed. The appeal is from an order made by the judge in vacation May 18, 1915, refusing to dissolve a temporary injunction he had granted May 1, 1915, The court, in granting a temporary injunction or refusing to dissolve it, should require a restraining the sheriff from proceeding furcase of probable right and probable danger to ther under the execution pending a trial of the right without the injunction, and its dis- the cause on its merits. 3. INJUNCTION 136, 163-TEMPORARY INJUNCTION-GRANTING OR DISSOLVING. |