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furnished defendant company in the manner, to avoid the bond on its plea that the same provided for by the terms of the bond. “It is further agreed that sufficient facts ex
was procured by misrepresentations of mateist, as alleged by defendant, to constitute a com- rial facts which constituted a legal fraud, plete avoidance of liability on the fidelity bond; appellant has cited Johnson V. American provided the employer's statement heretofore National Life Ins. Co., 134 Ga. 800, 68 S. E. referred to is admitted in evidence and considered by the court, but not otherwise, but c. 731, Southern Life Ins. Co. v. Hill, 8 Ga. H. Bencini personally did not know the answers App. 857, 70 S. E. 186, and Southern Life in said statement were untrue at the time he Ins. Co. v. Logan, 9 Ga. App. 503, 71 S. E. signed the same, but was legally chargeable with 742, all by the Supreme Court of Georgia; such knowledge.
"It is further agreed that the plaintiff, waiv- Bow yer v. Continental Casualty Co., 72 W. ing all other objections to its admissibility, ob- Va. 333, 78 S. E. 1000, by the Supreme Court jects to the admission and consideration by the of West Virginia; Coleman v. Retail Lumbercourt of the employer's statement' upon the sole ground, to wit: first, that the fidelity bond men's Ins. Association, 77 Minn, 31, 79 N. hereto attached and sued on in this case, was w. 588, by the Supreme Court of Minnesota; not accompanied by said 'employer's statement,' and Carrigan v. Mass. Benefit Ass'n (C. C.) or any written, photographic, or printed copy 26 Fed. 230. We shall quote from Johnson
, thereof, nor was said fidelity bond accompanied by the application hereto attached, nor any v. Amer. Nat. Life Ins. Co., the case first written, photographic, or printed copy thereof; cited, in order to show the statute, there and, second, that the fidelity bond was not ac- construed and the reasoning advanced: companied by any statement of any kind or character but was delivered just as it appears effect of the act of August 17, 1906 (Acts 1906,
"The principal question involved is as to the hereto attached and made a part hereof.
"It is further agreed that the defendant of- p. 107). It declares that: “From and after the fers in evidence in connection with other facts passage of this act all life and fire insurance agreed to exist the said employer's statement, policies issued upon the life or property of perand urges its admission and consideration by sons within this state, whether issued by comthe court.
panies organized under the laws of this state "It is further agreed that the employer's or by foreign companies doing business in this statement is material and admissible in evidence state, which contain any reference to the apunless excluded on the grounds stated in para: laws, or other rules of the company, either as
plication for insurance, or the constitution, bygraph six hereof. In the event it should be held that plaintiff's objections to the introduc- forming part of the policy or contract between tion of the employer's statement are well taken, the parties thereto, or having any bearing on then plaintiff's admissions as above recited are
or not to be considered for any purpose, but in to said policy a correct copy of said application the event plaintiff's objections are not well signed by the applicant, and of the by-laws retaken then said agreements and admissions
ferred to; and unless so attached and accomherein contained shall be considered for all pur- laws shall be received in evidence either as part
panying the policy, no such constitution or byposes.
“It is further agreed that nothing herein shall of the policy or as an independent contract in be construed as a waiver of the right of ap- terested in the said policy; nor shall such ap
any controversy between the parties to or inpeal, and that both plaintiff and defendant reserve the right to object and except to the ac- plication or by-laws be considered a part of the tion and ruling of the court in the admission policy or contract between such parties. This and consideration, or in the exclusion of the act provides that, where a reference is made said 'employer's statement, as well as the right in the policy of insurance to the application, a to object and except to and to appeal from any the policy, and unless this is done, such applicajudgment rendered in this cause upon this agree- tion shal' not be considered a part of the polment, or any judgment, decree, or order of the court of whatsoever nature that may be here icy or contract between such parties. But this after made.
does not exclude an insurance company from **It is further agreed that the plaintiff, if en- showing that the policy was procured by fraud titled to recover at all under this agreement,
and misrepresentation. is entitled to recover against defendant the sum
"To consider the application as a part of the of $5,000 with interest thereon from the 1st contract of insurance, and as forming a warday of June, 1912, at the rate of 6 per cent. ranty or covenant, treats the policy as a valid per annum, together with all costs of suit; and contract and sets up one of its terms. To seek that defendant, if entitled to judgment in its to set aside or repudiate the policy as having favor upon this agreement, is entitled to judg- been obtained by fraud is to set up that there ment that plaintiff take nothing against defend- was no
valid and binding contract of insurant and that it go hence without day and re- The legislative enactment, which declares that,
The two things are entirely different. cover of plaintiff all costs of suit."
under certain circumstances, an application for  It is a general rule that, if one is in- insurance mentioned in the policy shall not be duced to become a surety or guarantor for considered a part of the policy or contract beanother through material misrepresentations tween the parties, does not prohibit one of such
parties from showing that, whatever the conof fact, such contract of the surety or guar-tract was, it was procured by the fraud of the antor will thereby be rendered invalid and other." the obligor will be discharged from liability That decision was cited with approval thereon; and this is true even though such and followed in the two other cases decided misrepresentations are honestly made with by the Supreme Court of Georgia. Bowyer no intention to deceive or defraud. Cul-/ v. Continental Casualty Co., supra, was a bertson v. Blanchard, 79 Tex. 491, 15 S. W. suit against the casualty company upon a 700; Benton v. Kuykendall, 160 S. W. 443; policy of insurance, and in which suit the Bank of Hardinsburg & Trust Co. v. Ameri- company pleaded certain false statements can Bonding Co. of Baltimore, 153 Ky, 579, made by the insured in his application for 256 S. W. 398, 12 R. C. L. p. 335 et seq. the policy, which induced its execution and In support of its contention that in order | delivery; said false statements being plead
ed both as a breach of warranty and as a tions; but, in case that fraud can be shown, fraud which vitiated the policy. In that they shall be held to be warranties.
In no case, as in the present suit, an objection case, however, shall the policy be subject to was sustained by the trial court to the in- fraudulent is contained in the written applicatroduction of the written application for the tion indorsed upon or attached to the policy policy, because it was not attached to the when issued. It undoubtedly seemed fair to the policy and was therefore not admissible by in his possession, during his lifetime, such
Legislature that the policy holder should have virtue of a statute of the state reading as statements or representations which might be follows:
claimed, after his death, to have been fraudu"In all policies of insurance issued against lent, so that he might know, or could be held to loss by fire, made by companies chartered by or know, what the contract was which he had endoing busines in this state, no condition shall
tered into. * * * be valid unless stated in the body of the policy ates all contracts, and that any contract which
“Complainant's solicitor urges that fraud vitior attached thereto."
provides for removing the defense of fraud is In discussing the objection to such evi- void as against public policy; and numerous dence, the court held that by virtue of that tion. In the instant case, it is not a question of
authorities are cited in support of this contenstatute it was not admissible as forming a the contract being against public policy, but part of the contract of insurance, but said rather what the Legislature of this state has further:
declared its policy to be. What is public poli
су? The term has frequently been used in a “Though inadmissible to prove statements of loose, vague, and inaccurate sense. We may, the insured as a warranty or part of the policy, however, safely say that, when we speak of the because not attached to it, the application was public policy of this state, we mean the law admissible, together with other evidence, to of the state, whether found in its Constitution, prove fraud in the procurement of the policy. the statutes, or the judicial records. People v. A false statement made in the application for Hawkins, 157 N. Y. 1, 51 N. E. 257, 42 L. R. a policy is none the less false because made A. 490, 68 Am. St. Rep. 736; 32 Cyc. 1251. therein; and, if it is an element or fact in a A statute of the state must be respected unless scheme of fraud to procure the issuance of a it is in conflict with the Constitution of the policy, under circumstances under which it state or the Constitution of the United States. would not be issued if the insurer had been ad-Whitfield v. Ætna L. Ins. Co., 205 U. S. 489, vised of the true situation, it stands upon the 27 Sup. Ct. 578, 51 L. Ed. 895. same footing as if made in any other paper or "The people having spoken through their repway."
resentatives in the Legislature, and having preThe case of Coleman v. Retail Lumber-scribed what an insurance company must do in men's Ins. Assn was to the same effect and order to make a defense because of fraud, that involved a statute similar to that of this comes the public policy of the state.
requirement being a part of the law, it be
The Legstate referred to above. Carrigan v. Mass. islature did not say that the company should Benefit Ass'n, supra, is to the same effect, not defend for fraud perpetrated in obtaining and in that case the statute which was the insurance, but did say that, if the company
wishes to make this defense, it must attach the basis of the objection urged to the introduc- application containing the alleged fraudulent tion of the application for the policy, like statement to the policy. If the company desires our own statute, required that the applica- to do business in this state, it must do it subtion for the policy be attached thereto, and ject to such valid and reasonable regulations as
the state may determine to. prescribe.” further provided that:
To the same effect are the following cases, “Unless so attached and accompanying the policy no such application * * ** shall be in which substantially the same reasoning received in evidence, in any controversy between was advanced: Considine V. Metropolitan the parties to, or interested in, the said policy, Life Ins. Co., 165 Mass. 462, 43 N. E. 201; nor shall such application *'* * * be considered a part of the policy or contract between Corson v. Iowa Mut. Fire Ins. Ass’n, 115 such parties.”
Iowa, 485, 88 N. W. 1086; Wheelock v. Home
Life Ins. Co., 115 Minn. 177, 131 N. W. 1081; Appellee has cited many decisions squarely in conflict with those relied on by appellant Biermann v. Guaranty Mut. Life Ins. Co., 142 and which, we think are sustained by bet- Iowa, 341, 120 N. W. 963; Coats v. Camden ter reasoning. The case of New York Life Fire Ins. Ass'n, 149 Wis. 129, 135 N. W. 524. Ins. v. Hamburger, reported in 174 Mich.
Counsel for appellant stress the fact that 257, 140 N. W. 512, decided by the Supreme by the statute of this state noted above no Court of Michigan, involved the construction penalty is provided for a failure to attach of a statute reading:
a copy of the application to the policy of in“No policy of life insurance shall be issued in surance; in other words, the statute contains this state, unless the same shall contain the no provision to the effect that if the applifollowing provisions : * * * Fourth, a pro- cation is not attached it shall not be admissivision that all statements made by the insured, ble in evidence in support of any defense shall, in the absence of fraud, be deemed representations and not warranties, and that no such predicated upon statements contained therestatement shall avoid the policy unless it is in. In some of the decisions cited by apcontained in a written application and a copy pellant the statutes involved contained proof such application shall be indorsed upon or visions to that effect, but in all of them the attached to the policy when issued."
statements contained in the applications were In discussing that statute the court said : held to be admissible on the broad ground “A careful study of the language of the sec- that if untrue, and if they induced the istion convinces us that innocent misstatements or omissions to answer on the part of the ap- suance of the policy, then the policy was reason have no legal effect whatever, upon them. Inasmuch as they could not be prover the general theory that fraud vitiates all for the reasons already stated, the defense is contracts because against public policy. In not sufficient in law upon the face of it." the following cases statements contained in See, also, Arnold v. New York Life Ins. the application for the policies sued on were Co. (Tenn.) 177 S. W. 78. likewise held inadmissible in evidence to sus- In the case of American Nat. Ins. Co. v. tain pleas of fraud in the procurement of the Briggs, 156 S. W. 909, and Southern Union policies under statutes very similar to our Life Ins. Co. v. White, 188 S. W. 266, by
own statute, and in which no penalty was Courts of Appeals of our own state, it was • prescribed for failure to attach the appli- held that a life insurance policy containing a
cation to the policy, as required by the stat clause of incontestability after a period of utes.
two years, in compliance with the requireIn the case of Schuler v. Metropolitan Life ment of our statutes, could not be avoided by Ins. Co., 191 Mo. App. 527, 176 S. W. 274, in proof that it was procured by fraudulent which the company sought to avoid the pol- misrepresentations of fact by the insured icy for fraudulent misrepresentations made which induced its execution. in the application, the court, after referring  It is quite clear that article 4951 of to the statute which required the substance our Statutes requires all policies of the of the application, upon which a policy is character now in suit to be accompanied by a issued and which is made a part of the con- copy of the application therefor and of all tract of insurance to be attached to or in- questions asked and answers given thereto dorsed on the policy, used the following lan- upon which the policy is issued. Failure to guage:
comply with that statutory requirement cer"But it is argued that this section of our stat- tainly deprives the insurance company of ute carries with it no specific penalty. The
some rights it would otherwise have. That answer is, that the statute requires the thing to be done. One cannot, failing to obey the one of the rights so lost would be that of law, claim any right founded on that disobedi- the insurer to say that statements so made ence. By failing to attach the policy or its by the insured constitute a part of the consubstance, defendant, under the law, lost what- tract is not denied by appellant. ever benefit it might seek under the applica: the further inference obtains that the Legis
We think tion.
We are not holding that the failure to attach the application or its substance to lature, in enacting the statute, intended that the policy nullifies the policy. What we do a failure of the insurer to comply with the höld is that this absence bars defendant from mandate of the statute deprives it of the using it against plaintiff. It follows that when plaintiff introduced the policy, its execution ad-further defense as to such misrepresentamitted payment of premiums admitted, the death tions, inducing the issuance of a policy, as of the insured admitted, and plaintiff being the are made in good faith, and in ignorance of beneficiary, that defendant should not have been their falsity, and with no intention to de permitted to introduce the application and its certificates to sustain a defense of misrepre-ceive or defraud the insurer, although such sentations."
misrepresentations so made would constitute In the case of Archer v. Equitable Life what is sometimes inaptly designated as a Assur. Soc. of United States, 218 N. Y. 25, “fraud in law,” or “legal fraud,” which, in 112 N. E. 434, the company pleaded that the the absence of the statute, would vitiate the policy was void because procured by fraudu- policy. 1 Elliott on Contracts, § 375; 20
; lent misrepresentations contained in the ap
Cyc. 9. plication. The statute invoked to sustain
If the insurer is permitted to take advanan objection made to the introduction of the tage of misrepresentations which are not application upon the defense of fraud re made a par of the contract of insurance,
' quired such an application to be attached to but which constitute a mere legal fraud as the policy, but prescribed no penalty for distinguished from an intentional fraud, then failure so to do. In
In discussing that statute such a defense would accomplish the same the court said:
result as if such misrepresentations were le"In the requirements that the policy should gally made a part of the contract of insurcontain the entire contract and that all state- ance and a breach of the contract in that ments purporting to be made by the insured respect were urged as a defense, for the shall in the absence of fraud be deemed representations and not warranties," the Legislature same evidence would support either of those enacted, through implication, that all state- defenses and with the same effectiveness. ments made by the assured shall be purported Whether or not a defense based upon misby, or made to appear upon, the face of the representations made with intent to cheat policy, *
* the defense designated 'Third' averred that the policy was issued by the de- and defraud is also precluded by the statute fendant in reliance upon statements, repre- is 'a question not presented for our determi. sentations, and answers of the insured pertain- nation, and which we shall not attempt to ing to his previous medical history and family decide, since it was agreed by the parties record and to his physical condition at and prior to the date of his application for the that the misrepresentations in question were policy, which were fraudulently not full and not made with such intent, but were honest fair, and effected concealments material to the mistakes on the part of the insured. risk, and the defendant relied upon them as made. The statements, representations, and an
 We are of the opinion further that alswers were not incorporated in the policy. This though the "employer's statement" was not, defense could be established only by proof of strictly speaking, the application for the pol
icy, yet we think that the questions asked, contract for the erection of a building thereon, and answers thereto shown therein are such or the consideration, such deed of trust, though questions and answers a copy of which was duly executed by both husband and wife, does questions and answers a copy of which was not create a lien on the homestead under Verrequired by the statute to accompany the non's Sayles' Ann. Civ. St. 1914, art. 5631, policy, since the policy was issued for the or Const. art. 16, § 50. benefit of the employer, and in reliance upon 3. HOMESTEAD Om 99-MORTGAGE-SECURITY his answers to questions propounded to him
FOR NOTE-INVALIDITY. by the insurance company for the purpose of payment of a note given by husband and wife
A deed of trust on a homestead to secure determining whether or not it would issue to their contractor to erect a building is inthe policy. In fact, according to appellant's valid where there is no contract in writing for contention the statements of the employer, cured on the note is, afterwards used to improve
the work and material, though the money serather than the statements contained in the the homestead. application of Scales, were
the inducing 4. MECHANICS' LIENS 62 - HOMESTEAD cause of the issuance of the policy.
MATERIALMAN-STATUTE. For the reasons indicated all assignments
There can be no lien upon a homestead acof error are overruled, and the judgment of 1914, art. 5631, by a materialman who furnished
, . the trial court is affirmed.
material for a building erected thereon, not to Affirmed.
the owners of the homestead, but to the builder whò contracted with the owners, unless such ma
terialman has complied with the statute. CONNER, C. J., not sitting.
5. MECHANICS' LIENS Om 86—NOTES TO MA
TERIALMAN-RIGHT OF CONTRACTOR.
A contractor to erect a building is not en
titled to a lien to secure notes given by the DUNKLIN, J. In the opinion rendered on owners of the land, not to him, but to a materialoriginal hearing, we inadvertently said that man. it was agreed by the parties that the misrep- 6. MECHANICS' LIENS 62–LIEN OF MAresentations of the insured which induced TERIALMAN-HOMESTEAD. the issuance of the policy were honest mis- the contractor to erect a building on homestead
A mere reference to the contract between takes on his part and with no intention to land and the owners of the homestead, in the defraud. The agreement of counsel with re- deed of trust given to a materialman, did not spect to that issue is copied in our original create a lien in favor of the materialman against
the homestead. opinion and is as follows:
"C. H. Bencini, personally, did not know the Appeal from District Court, Tarrant Counanswers in said statement were untrue at the ty; Ben M. Terrell, Judge. time he signed the same, but was legally charge
Suit by W. E. Herring,
Herring, as guardian, able with such knowledge." We construed the agreement as meaning
against A. C. Barber and others. From a
judgment for defendants Barber, plaintiff that in making the statements in controversy
appeals. Reversed and rendered. C. H. Bencini had no intention to defraud the insurance company, and that if he had
E. H. Ratcliff and A. W. Christian, both no such intention necessarily his motive in of Ft. Worth, for appellant. A. J. Clenden, making them was honest, even though he of Ft. Worth, S. C. Padelford, of Cleburne, was legally chargeable with knowledge of the and Ike A. Wynn, of Ft. Worth, for appelfact that they were untrue. That, and no lees. more, was what we meant by our reference to the agreement criticized in the motion and BUCK, J. In 1910 Geo. M. Herring and above mentioned.
wife contracted with J. Thomas Franklin to With this correction of our former opinion construct for them a house on a certain lot the motion for rehearing is overruled.
owned by them. On June 29, 1910, they enMotion overruled.
tered into a written contract, duly acknowledged, with Franklin, from which contract the following quotations are taken:
"Said improvements and all labor and maHERRING V. BARBER et al. (No. 8803.) terial therefor shall be constructed, erected, (Court of Civil Appeals of Texas. Ft. Worth. built and finished in accordance with the plans March 2, 1918. On Rehearing,
and specifications made for same in writing by April 6, 1918.)
the parties hereto, duplicate copies of which
are in the possession of each of the parties, and 1. MECHANICS' LIENS 73(2)-HOMESTEAD- to which reference is now here made, and said
improvements and the material and labor for In the absence of express agreement, persons same are to be furnished and delivered and conwho furnish labor or material to the contractor structed at the sole cost and expense of said to erect a building on a homestead have no lien contractor, J. Thomas Franklin. And the of any character, and if there is an express said improvements shall be delivered as aforeagreement that the contractor shall have a lien said by said contractor on or before said date, on the homestead, it will not create a lien, un- free and clear of any and all liens and incumless the requirements of Vernon's Sayles' Ann. brances for or on account of any labor or maCiv.'St. 1914, art. 5631, are complied with.
terial furnished for same, except as hereinafter 2. MECHANICS' LIENS Om73(2)--HOMESTEAD, provided, to wit: Two promissory notes for the DEED OF TRUST.
sum of $600 each, with interest at 10 per cent. Where husband and wife give a deed of trust per annum of even date herewith and due three on their homestead, which does not show the years after date, which said notes shall be a
first lien on said property; and 25 notes due Franklin completed the house and the same in monthly installments of $40 each, beginning was accepted by Herring on September 15,
, one month after the last of the above 25 notes, 1910. It was admitted as part of the agreed all bearing interest from maturity at the rate of facts that at the time of the execution by the 10 per cent. interest per annum, and providing Herrings of the various instruments hereinthat the failure to pay any one of such install- above described that the lot or tract of land ments shall mature each and all of said notes. And in consideration of the undertaking and mentioned was the homestead of Herring and faithful performance by the said contractor of his family; that both Geo. M. Herring and his part of this contract, the said George M. wife died prior to the institution of this suit; Herring and wife hereby agree and bind them that W. E. Herring, appellant, had been duly selves, their heirs and assigns, to pay to the said contractor, his heirs and assigns, the full appointed as guardian of the estate of the sum of two thousand two hundred and forty- minor children of said Geo. M. Herring and nine dollars ($2,249), to be paid as follows, to wife, and had duly qualified as such; that installments, beginning August 1, 1910, 25 of the 26 promissory notes, aggregating $1,049, said installments being evidenced by promissory executed by Herring to Franklin, and all innotes for the sum of $40 each, and one for the terest thereon, had been duly paid and satissum of $49, executed by the said George M. Her-fied. ring, payable to the said J. Thomas Franklin, with interest from maturity at the rate of 10
This suit was instituted by W. E. Herring, per cent. per annum, and it is agreed that said as guardian, against Jarrell, as trustee, and notes shall be a second lien on said property, individually against A. C. Barber and R. S. subject to a lien of $1,200 in favor of Barber Barber, who constituted the Barber Lumber Lumber & Mill Company."
& Mill Company, to cancel the deed of trust The contract further provided that should aforementioned, and to remove cloud from the Herrings fail to pay the $1,049, or any title.. Defendants answered by general depart thereof, when due, the same should murrer, general denial, and pleaded in reconbear interest at 10 per cent. per annum, and vention and as a cross-action against the provided for attorney's fees and the reserva- plaintiff, as guardian, for recovery on the two tion of a "statutory lien" on the real estate notes of $600 each, given by Herring to the and improvements to secure the debt. It Barber Lumber & Mill Company, and for was further provided that should the Her- foreclosure of a mechanic's lien and deed of rings fail to pay the $1,049 to said contract- trust lien alleged to be held against the propor, "and any corporation or other person erty in controversy. By supplemental petishould pay same, or any part thereof, at the tion plaintiff pleaded that the property inrequest of said Geo. M. Herring and wife, volved was the homestead of Geo. M. Herring all the rights, liens and remedies under this and family at the time of the execution of the contract shall inure to the benefit of such alleged deed of trust, and denied that any corporation or other persons so paying said mechanic's or builder's lien was held by the sum, or any part thereof." On same date, by Barber Lumber & Mill Company, and denied written transfer, duly acknowledged, Frank- that Franklin had transferred and assigned lin assigned to the Barber Lumber & Mill to said Lumber & Mill Company any mechanCompany in consideration of $1,049 paid the ic's or builder's lien, and alleged that the con26 promissory notes heretofore mentioned, tract between Franklin and Herring provided "together with mechanic's, contractor's, and that Franklin could not assign any lien rematerialmen's lien upon the real estate and served without the consent of Herring and improvements thereon, hereinbefore describ- wife, and alleged that no such consent had ed."
On same date Herring and wife ex- been given. It was further pleaded that said ecuted and acknowledged a deed of trust to assignment in no event operated as a transfer I. W. Jarrell, trustee, on the described real of any lien held by Franklin, except to secure estate, in trust, to secure the payment of the 26 notes aggregating $1,049, all of which two notes, of even date, executed by Geo. M. had been fully paid and satisfied. Herring, payable to Barber Lumber & Mill It was further pleaded that at no time did Company, each in the principal sum of $600, Herring and wife enter into any contract due three years after date. It was provided with the Barber Lumber & Mill Company for in this instrument that:
the furnishing of material or the performance “Said two notes to be a prior and superior lien of labor on their homestead. Wherefore they upon said property, and the following described prayed as in their original petition. The notes to be second and subsequent thereto; 25 cause was submitted to the court, without the notes for the sum of $40 each, and one note for the sum of $49, all dated June 29, 1910, aid of a jury, and from a judgment in favor
* each of said notes executed by Geo of the Barbers for the amount of the two M. Herring and payable to J. Thomas Frank- $600 notes, with accrued interest, amounting lin.”
to $1,387.05, plaintiff has appealed. A. C. Among the covenants on the part of the Barber was the only living witness who tesHerrings in this instrument contained were tified in the trial court, the other evidence that they had a good perfect title in fee sim- consisting of the admitted facts heretofore ple to the land conveyed, and the right to ex- recited, and the introduction of the several ecute the instrument, and that they had done instruments in writing heretofore mentioned. no act or thing to incumber said property, Barber, after identifying the various instru. and that there were no incumbrances thereon. ments introduced, testified that Franklin