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tion, but we thought that they were neutra-, by the general laws of the state, nonresident lized by other portions thereof. In this we aliens are entitled to recover the benefits prohave concluded that we were in error. In

vided by the Workmen's Compensation Act. paragraph 30 of appellant's petition she al

Appeal from District Court, Galveston leges that:

County; Clay S. Briggs, Judge. "She had no knowledge of any of the said

Suit under the Workmen's Compensation fraudulent pretended deeds, mortgages, and Act by Gustava Vickstrom and another, as transfers (which were set forth with great par- | the surviving mother and sister of Peter ticularity in previous portions of her petition!, | Vickstrom, deceased, to obtain compensation or their meaning, until just before filing this suit, as aforesaid, and that she signed the Strat- for his death, opposed by C. Flanagan & ton deed under the representations and belief Sons, employer, and by the Southwestern that they were all valid debts and liens (which Surety Insurance Company, successo is denied in other portions of her petition), but if she had known the true circumstances, she surer. Demurrer to the petition overruled, would not have signed such deed."

and judgment for plaintiffs, and both surety While the petition is very lengthy and companies appeal. Affirmed. somewhat involved, after a careful review of Andrews, Streetman, Burns & Logue, of the same we think the trial court erred in Houston, for appellants. H. C. Hughes, of sustaining the general demurrer thereto. Galveston, for appellees. We think it better that all of the issues herein should be tried together, for which

GRAVES, J. This case presents but a sinreason our former judgment herein is set gle question, and, very broadly stated, that is: aside, and the judgment of the trial court Are nonresident aliens entitled to recover the is here reversed as an entirety, and this benefits provided by the Texas Workman's cause is remanded for a new trial.

Compensation Act? Reversed and remanded.

Peter Vickstrom suffered accidental injuries while in the course of his employment by C. Flanagan & Sons, at Port Arthur, Tex.,

from which he later died. His employers at SOUTHWESTERN SURETY INS. CO. et al. the time were subscribers, and carried an inV. VICKSTROM et al. (No. 7549.)

surance policy for the benefit of their em(Court of Civil Appeals of Texas. Galveston. ployés under the terms of the act, issued by March 20, 1918. Rehearing Denied March

Rehearing Denied March appellant Southwestern Surety Insurance 28, 1918.)

Company; this company subsequently quit 1. ALIENS Om14, 16–PROPERTY RIGHTS

business, all its assets and liabilities being STATUTE.

Acts 5th Leg. c. 70, carried forward into taken over by its coappellant, Southern SureVernon's Sayles' Ann. Civ. St. 1914, art. 15, ty Company. Compensation up to the time of providing that no alien shall acquire title to or his death, aggregating $145.20, was paid own any land in the state except as otherwise

Vickstrom. After his death, liability to pay provided, but that they shall have such rights as to personal property as are accorded citizens any further compensation was denied, priof the United States by the laws of the na- marily upon the ground that the claimants tion to which the alien shall belong, or by trea- were nonresident aliens, and were neither ties of such nation with the United States, ex; beneficiaries under the Texas Compensation cept as the same may be affected by the act and the general laws of the state, is cumulative, Act, nor otherwise entitled under the laws of and not restrictive of the common and gen- Texas to receive its benefits. These claimeral laws of the state, permitting aliens to in- ants were appellees, Gustava and Irene Vickherit personal property and to sue therefor. 2. ALIENS

strom, his mother and sister, respectively, Om 10-PROPERTY RIGHTS-STATUTE.

who then sued appellants in the Tenth disUnder such statute the provisions of the trict court, at Galveston, setting up the facts state laws must first be looked to in determin- stated, and claiming the compensation preing the rights which would, in any event, accrue to an alien, regardless of whether or not scribed in the act as the legal beneficiaries of his own country grants reciprocal rights to cit- the deceased, Peter Vickstrom, their petition izens, and if it did and accorded more, the showing upon its face that they were resistate laws, in the absence of restrictive provi- dents of the Grand Duchy of Finland, Russia. sions, express or implied, would ipso facto expand to comprehend the additional benefits al. The appellants first replied by general demurlowed by that of the alien's domicile.

rer, which being overruled, they then special3. MASTER AND SERVANT O361 - WORK | ly alleged that the plaintiffs were nonresi

MEN'S COMPENSATION ACT-RIGHT OF NON- dent aliens, and that, being citizens of a forRESIDENT ALIENS.

Under the Workmen's Compensation Act eign country and residing therein, they were (Acts 33d Leg. c. 179 [Vernon's Sayles' Ann. not beneficiaries, and not entitled to the comČiv. St. 1914, arts. 5246h-5246zzzz]), not ex- pensation, because citizens of the United cluding nonresident aliens from recovering the States were not accorded like privileges in benefits thereby provided, and under Acts 5th Leg. c. 70, carried forward into Vernon's their country. The trial court, after susSayles' Ann. Civ. St. 1914, art. 15, giving aliens taining a demurrer to this last-mentioned alsuch rights to personal property as are ac- legation and specifically ordering that no corded citizens of the United States by the nation to which the alien may belong, or by trea proof of it be admitted or considered for ties, etc., except as the same may be affected / any purpose, heard the case, and rendered

9

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

was

judgment for the appellees against both sure-, plea of alienage is not favored in law. Anusy companies for $726 and interest, reciting tasakas v. Contracting Co., 51 Wash. 119, 98

Pac. 93, 21 L, R. A. (N. S.) 267, 130 Am. St. that it was the aggregate compensation to Rep. 10'89, 8 Neg. & Com. Cas. 67; Hanrick v. them under the terms of the statute in ques- Hanrick, 61 Tex. 604, 605. Article 15 of Vertion at $13.20 per week, or 60 per cent. of his non's Sayles' Civil Statutes, relating to aliens, average weekly wages, arising by reason of has no application whatever to the Workman's

Compensation Act, and in no event can be conPeter Vickstrom's death, and accruing from strued to limit, abridge, or deny the rights of the date thereof to the date of the judgment, aliens to the benefit and the right to inherit and providing that any right to sue for such under said Compensation Act.” further sums as might thereafter become due

Without intending to approve every exshould not be prejudiced thereby. From that pression therein, we think this general conjudgment both surety companies have ap-clusion of the court below correct. pealed.

Moreover, since the policy of our general No complaint is made here that one of the laws has undoubtedly been not to discrimiappellees, being a sister of the deceased em- nate against nonresident aliens, in relation ployé was not as such a legal beneficiary un- to personal rights, and since our compensader the Compensation Act, but, as first stated, tion act itself does not expressly disqualify the sole contention presented in different them, it seems to us the only pertinent informs under the various assignments is that quiry left is whether or not their rights as they could not recover on account of being such are abridged by the provisions of ar

The nonresident aliens. We accordingly treat all ticle 15, Revised Statutes of Texas. the assignments as one, and determine the present form of that article is as follows: single question presented. The position of

"Article 15. Alien Ownership of Lands Inappellants is that, appellees having admitted of the United States shall acquire title to or

hibited. No alien or person who is not a citizen themselves to be nonresident aliens, since own any lands in the state of Texas, except the allegation that the laws of their home as hereinafter provided; but he shall have and

enjoy in the state of Texas such rights as to country, the Duchy of Finland, Russia, did personal property as are or shall be accorded not accord to residents of the United States to citizens of the United States by the laws of and of Texas the same rights in personal the nation to which such alien shall belong, or property as appellees claimed in this suit by the treaties of such nation with the United property as appellees claimed in this suit States, except as the same may be affected by must be taken as true, under the court's ac- the provisions of this title and the general laws tion in sustaining the demurrer to it, appel- of the state.” lees were concluded as a matter of law, could Appellees maintain that this exact language not become legal beneficiaries under the Com- has never been enacted by the Legislature, pensation Act, and were also barred by the but was without authority added by the coditerms of our statute relating to aliens. Arti- fiers in 1895; that, since the act of 1891 was cle 15, Revised Statutes of 1911. The trial held unconstitutional in Gunter v. Mortgage court's conclusion of law upon the issue thus Co., 82 Tex. 496, 17 S. W. 840, the rights of raised was as follows:

aliens in personal property were thus left "The fact that the plaintiffs in this case are in the codification of 1879, or upon the act

dependent either upon the statute appearing aliens constitutes no bar to their recovery, since neither under the Workman's Compensa- of 1854. The trial court seems to have parttion Act, nor under the general law of this ly adopted this view, and to have concluded state, are they denied the right to inherit. The that, as the codification of 1879 made no cause or causes of action arising in their favor under the Workman's Compensation Act con- specific mention of personal property, the stitute personal property, and both under this act of 1854 really constitutes the present law act and the common law and general laws of upon the subject. While the latter statute this state aliens may inherit same regardless contains practically the same language with of whether similar rights are accorded citizens of this country in the country or countries of reference to personal property as the present such aliens. Acts of 1913, page 429, § 8, part one, we do not regard the question of wheth1; article 5246kk, Vernon's Sayles' Civil Stat; er the one or the other is now the official act utes 1914; article_2461, Vernon's Sayles. Civil of the Legislature as material here, and do Statutes 1914; Franco-Texas Land Co. v. Chaptive (Sup.) 3 S. W. 31; McGovern v. Rail- not decide it, because we think the rule of way Co., 235 U. S. 389, 35 Sup. Ct. 127, 59 L. construction would be the same in either Ed. 283; Caliendo's Case, 219 Mass. 498. 107

contingency. N. E. 370; Vujic v. Youngstown Sheet & Tube Co. (D. C.) 220 Fed. 290 ; State ex rel. Crook

[1, 2] Appellants insist, however, that the ston Lbr. Co. v. District Court, 131 Minn. 27, language of article 15 plainly limits and re154 N. W. 509. Where there is no provision in stricts the rights of nonresident aliens touchthe Compensation Act denying benefit of such to ing personal property in Texas to such only aliens, resident, or nonresident, such aliens stand upon the same footing as citizens of this state, as are accorded our citizens by the laws of and are entitled to full benefits of such act. Brad the alien's country; but we are unable to berry on Workman's Compensation, vol. 1, p. agree with them, and here quote with ap582; Bonthron v. Light & Fuel Co., 8 Ariz. 129, 71 Pac. 941, 61 L. R. A. 563, specially in point: proval this further portion of the trial Anustasakas v. Contracting Co., 51 Wash. 119, court's conclusions of law: 98 Pac. 93, 21 L. R. A. (N. S.) 267, 130 Am. "The act of 1854, page 98, which purports to St. Rep. 1089; Romano v. Brick & Pipe Co., be carried forward in article 15, Vernon's 125 Iowa, 591, 101 N. W. 437, 68 L. R. A. 132, Sayles' Civ. Stat., appears to be the only en

rights of aliens as to personal property. But, ers intended for these rights to be entirely
this statute can have no possible application, controlled by the law of the aliens' domicile,
because the Supreme Court of this state has but rather that our own should dominate iu
held that the act of 1854 is cumulative and not
restrictive in its operations. Under the com- the manner just stated. That construction
mon law and general laws as well of this state, would seem to us much more consonant with
aliens are and have always been entitled to in the progressive and liberalized spirit of the
herit personal property in this state and to sue times, and would leave no room for such in-
for same. Franco-Texas Land Co. v. Chaptive,
3 S. W. 31; 2 Corpus Juris, 1069." With full justice as might follow the adoption of the
knowledge of this statute relating to rights rule contended for by appellants. Under
of aliens, the Supreme Court in the Chaptive their view, an insurance company might first
Case decided in December, 1886, there was no
question of the right of aliens to hold and sue insure the employés of a subscriber against
for personal property in this state. As stated accidental injuries suffered during the course
by the Supreme Court in Hanrick v. Hanrick, of their employment in the unrestricted man-
61 Tex. 604: “If the Legislature had intended ner prescribed in our Compensation Act, re-
to adopt an entirely new and exclusive policy
abrogating that which had prevailed from the ceive and accept the profits of that insurance
organization of the Republic, it seems that we in the premium paid it therefor, and then re-
might as well anticipate that such intent would fuse payment on the policy because the law
be expressed in plain and unmistakable terms. of Russia, which happened to be the home
How very appropriately that intent might have
been expressed by simply adding to the second of the assured's beneficiaries, did not have a
section, "and in no other manner, or other compensation statute, or other legal provi.
equivalent expression.' But there is no such sion, under which citizens of Texas could
expression used in the act as would necessarily
imply that the intention was to make it exclu recover like benefits.
sive and restrictive. But for another reason

While that elusive something termed "the
said statute is not applicable; because, by the legislative intent" may be somewhat like Eu-
very terms of article 15, Vernon's Sayles' Civ. gene Sue's Wandering Jew, whose vanishing
Stat., the operation of such article is expressly
denied when affected by the general laws of coattails are often seen turning corners just
the state. The general law of the state regu- ahead, but whom you never meet face to
lating and governing the payment of compensa- face, still we are unwilling to wholly aban-
tion under the Workman's Compensation Act don the effort to attain it, as we feel would
contains no limitation or provision whatever
denying to aliens the benefits of such act. It be the result here of accepting the construc-
is, moreover, a matter of common knowledge tion contended for by appellants.
and a part of the judicial history of the state It is apparent from the conclusions stated
that the right of aliens, resident and nonresi. that all assignments must be overruled, and
dent, to inherit under the statutes of descent
and distribution, as well as those regulating the judgment below affirmed, and that order
wills, has been recognized and upheld as to per- has been entered.
sonal property, without question.”

Afirmed.

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In construing this statute of 1854, which, as we have stated, did not materially differ

STROBURG v. WALSH. (No. 5853.)

. in its provisions concerning personal property from the present article 15, the Supreme

(Court of Civil Appeals of Texas. Austin.

Feb. 20, 1918. Rehearing Denied Court in the Hanrick Case, after so declar

March 27, 1918.) ing it to be an enlarging and not a restrict- 1. EVIDENCE 460(4) PAROL EVIDENCEing act, further declared that, under it, aliens AIDING CONTRACT DESCRIPTION OF LAND. would have such rights in real property as

Oral testimony, while inadmissible to supour laws allowed, unless the laws of their ply a total want of description of land con

tracted for, is admissible to make more certain own country were more liberal, in which lat- an imperfect description in the contract; that ter event our statutes would yield to those is to identify the subject-matter, where the of the foreign country. Hanrick v. Han-contract furnishes the key to such identification, rick, 61 Tex. 596. In other words, the pro- A. county," and the oral testimony showing he

it describing it as vendor's “553-acre farm in visions of our law must first be looked to owned in such county a farm of that size, less in determining the rights which would in 2 acres which he had conveyed for school purany event accrue to an alien, regardless of poses, and that he owned no other land in that whether or not his own country granted re-2. SPECIFIC PERFORMANCE 116–ProOF OF

county.

2. ciprocal ones to our citizens; but if it did,

TITLE-WAIVER OF ISSUE. and then went further and accorded more That defendant, in suit for specific performthan we had first provided for, our law, in ance of his contract to buy lots, waived the the absence of restrictive provisions, express that though 'pleading the general denial, he did

issue of title, is sufficiently shown by the facts, or implied, would ipso facto become expand- not allege as a defense want of title; did aled until it comprehended the additional bene- lege that he never made the contract, but simfits allowed by that of the foreigner's domi- ply signed it on the agreement that it should

not be delivered, and should not take effect, excile.

cept on a third person making an agreement, [3] These considerations apply, with equal which he failed to do; permitted plaintiff to force, we think, to the provisions of present testify without objection that he had good title ; article 15, concerning the rights of aliens as and while receiving the abstract, provided for

by the contract, never had it examined, and to personal property. We cannot think with never claimed it did not show good title in the surety companies here that our lawmak- plaintiff.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

3. SPECIFIC PERFORMANCE On96 - TENDER | a farm answering to the description given of OF DEED BEFORE SUIT. Plaintiff before bringing suit for specific that it was all of the 640-acre survey No. 5

the same in the sketch above referred to; performance need not tender a deed, which he pleads

and testifies he was at all times ready in the name of Hooper and Wade, located and willing to make, defendant having repudiat- by virtue of certificate No. 13, and patented ed the contract, on the ground that he never to John N. Lyle, assignee, October 30, 1876, made it, rendering it useless to make tender.

by patent No. 304, vol. 25, conveyed to appelAppeal from District Court, Travis Coun- lant by L. Blaschka, January 24, 1906, as ty; Geo. Calhoun, Judge.

appears from the deed records of Archer Suit by Ed. J. Walsh against J. A. Stroburg. county, Tex., vol. 38, p. 361, except about 87 Judgment for plaintiff, and defendant ap- acres thereof which had been lost by limitapeals. Affirmed.

tion prior to the purchase thereof by appel

lant. A. 0. Sandbo, Jno. E. Shelton, and White, Cartledge & Graves, all of Austin, for ap- of title, which he never had examined, and

Appellee furnished appellant an abstract pellant. Hart & Patterson, Dickens & Dickens and D. J. Pickle, all of Austin, for appel- which he has never returned. Appellant nev

er made any objection to appellee's title, lee.

and did not in his answer herein point out Findings of Fact.

any objection to such title. Shortly after JENKINS, J. On March 19, 1915, appel- the contract was signed, appellant sought lant and appellee entered into the following to change the same by requesting appellee written contract:

to substitute a house and lot in Austin for “Ed. J. Walsh will buy of Dr. Stroburg his a number of the lots. Appellee refused io 553-acre farm in Archer county, at $35 per acre, concede to this request. In addition to examounting to $19,355 ; and Dr. Stroburg will ceptions and a general denial, appellant in take of Ed. J. Walsh the following lots in the Walsh addition, near the dam on the Colorado his answer repudiated the contract, alleging river, west of Austin, amounting to $20,355, to that the same was to take effect only on conbe figured at $19,355, as follows: * * * [Here dition that one F. H. Smith would trade his follows a list of the lots, giving number of each lot, the size of same, the number of the block house and lot in Austin for some of said in which the same is situated, and the price lots, and that Smith had refused to make of each). Both parties to furnish abstracts up such trade. to date, guarantee good title, pay all taxes to

The case was submitted on special issues, January 1, 1915, and possession of the different tracts at closing of deal; deal to be closed as and the jury found against appellant on this soon as possibly can be done. Said Ed. J. and all other issues submitted. The court Walsh will also furnish Dr. Stroburg a sepa- rendered judgment for specific performance, rate printed abstract for each lot as soon this possibly can be done after closing the deal, divesting title out of appellant to the 551 one abstract being furnished now to Dr. Stro- acres of land, and vesting the same in apburg for examination.

pellee, and that appellant be required to ac“Witness our hands in triplicate, at Austin, cept a warranty deed to the lots. Texas, this 19th day of March, 1915.

“J. A. Stroburg:
"Ed. J. Walsh."

Opinion.
The Dr. Stroburg mentioned in said con-

Appellant has filed 30 assignments of ertract and the J. A. Stroburg who signed the

ror. Appellee has filed objections to the same are one and the same person. Prior consideration of 22 of these, upon the ground to signing said contract, and pending nego- that they are too general to meet the requiretiations in reference thereto, appellant had ments of the statute and rules in reference to furnished appellee an ink sketch of his land, assignments. Taken in connection with the showing the same to be in a parallelogram, propositions and statements thereunder, we containing 553 acres, all level, 440 acres in think that the assignments objected to are cultivation, 113 acres in pasture, and show- sufficiently specific and we therefore overing the location thereon of two houses, two

rule said objections. barns, a large tank, a well, and a schoolhouse.

Some 20-odd of appellant's assignments On the margin of this sketch was written in pencil, “27 miles S. E. of Wichita and the propositions raise substantially the

following issues : Falls, 5 miles east of Dundee, the nearest station, black sandy loam, about 400 acres

(1) That the petition does not sufficiently In cultivation.” Appellee, prior to signing describe the land as to which specific perthe contract, had gone to Archer county and formance is sought. looked at the land.

(2) That the contract is not sufficiently The oral testimony identified the land men-certain as to the land to be conveyed by apioned in the contract to be conveyed by ap- pellant to form the basis for a decree for pellant. It was in substance that appellant specific performance. owned 553 acres of land in Archer county, (3) That it was error to admit oral testiTex., less two acres that he had conveyed mony to identify said land. for school purposes, and that he owned no (4) That the oral testimony, taken in conother land in said county; that the land was nection with the written contract, is insuffi

cient to support a judgment for specific per- i to make more certain the imperfect descripformance.

tion given in the contract. Thus, if the con1. Our findings of fact dispose of point tract in Jones v. Carter, supra, had been to No. 4, supra.

convey a piece of land supposed to be 40 2. The petition sets out the contract, and acres owned by him in a named survey, it contains other averments of description. It would have been permissible to prove that is sufficient, if the contract is not void for Carter owned a certain 40 acres in said suruncertainty, and if oral testimony is admis- vey, and that he owned no other land theresible to aid the description of the land men- | in. Such a description would have been retioned in the contract.

garded as certain under the maxim, "That [1] 3. That oral testimony is admissible, is certain which can be made certain." " in a proper case, to identify the subject-mat- Brainard v. Jordan, 60 S. W. 784; Taffinder ter of a contract is too well settled to re- v. Merrell, 95 Tex. 101, 65 S. W. 177, 93 Am. quire the citation of authorities in support St. Rep. 814; Morrison v. Dailey (Sup.) 6 S.

( of the proposition. A conveyance of land, W. 427; Bitner v. Land Co., 67 Tex. 341, 3

, or a contract to convey the same, may con- S. W. 301; Ryan Lumber Co. v. Ball, 177 S. tain a minute and accurate description of W, 232; Hughes v. Adams, 55 Tex. Civ. App. the land, and yet it may, and in many cases 197, 119 S. W. 134; Slaughter V. City of would, require oral testimony to identify Dallas, 101 Tex. 315, 107 S. W. 48; McAmanthe land. For example, a deed to a lot may us v. Orkney, 91 Tex. 35, 40 S. W. 715 ; Cun

; describe the same as lot No. 2, in block No. yus v. Lumber Co., 20 Tex. Civ. App. 290, 48 15, in Austin, Tex., as shown by the map of S. W. 1106; Beaton v. Fussell, 166 S. W. said city, giving volume and page where 458; Anderson v. Hall (Mo.) 188 S. W. 81; same is recorded, and yet such deed would Bates v. Harris, 144 Ky. 399, 138 S. W. 276, not convey to any one not familiar with 36 L. R. A. (N. S.) 154; Bateman v. Hopkins, such city any idea as to the location of such 157 N. C. 470, 73 S. E. 133, Ann. Cas. 1913C, lot. But no one denies that its location 642; Crotty v. Effler, 60 W. Va, 258, 54 S. E.

v. might be proven by the oral testimony of any 345, 9 Ann. Cas. 770; Keepers v. Yocum, 84 one who was familiar with the location of Kan. 554, 114 Pac. 1063, Ann. Cas. 1912A,

. such lot. The same would be true if the lot 748; Waring v. Ayres, 40 N. Y. 357; Head v. was described as being located at the inter- Sanders, 189 Ala. 443, 66 South. 621; Burns

; section of certain named streets, or if a tract v. Witter, 56 Or. 368, 108 Pac. 129; Lente v. a

v of land was described with reference to cer- Clarke, 22 Fla. 515, 1 South. 149. Such betain natural or artificial monuments.

ing the law, we overrule all of appellant's Of the four points above mentioned, it re- assignments of error involving the issue of mains to consider only whether the contract uncertainty as to the contract sued upon, in the instant case is a proper one for the and the admission of oral testimony in refadmission of oral testimony to identify the

erence to the same. tract of land therein mentioned. It has

[2] Appellant contends, under an approbeen the recognized law since the day of Lord Bacon that a patent ambiguity cannot should not have been rendered for appellee,

priate assignment of error, that judgment be cured by oral testimony. That is to say, for the reason it was not shown that he had where the terms or subject-matter of a writ- title to the lots described in the contract, ten contract do not appear upon the face of and also for the further reason that appellee the instrument, and no reference is made did not prior to filing suit tender appellant therein to anything else from which the

a warranty deed to the lots described in the same might be ascertained, no evidence will

contract. be admitted to aid in rendering certain that

Where a party to a contract to purchase which the contract leaves in doubt. For

lands refuses to comply with the contract, example, if the contract be to convey, “piece for the reason that the vendor cannot make of land supposed to be 40 acres,” here there a good title and alleges such fact in his anis nothing to indicate what 40 acres is to be

swer, the burden is on the plaintiff to show conveyed, and no reference is made to any title. Upton v, Maurice, 34 S. W. 642; 36 Cyc. thing which if followed up by oral testimony 694, 695. Appellant did not plead want of would show what land was intended to be

title in appellee. Whether or not, under conveyed. This is a patent ambiguity, and our form of pleading, the general denial in the contract is void. Jones v. Carver, 59

a suit for specific performance puts in issue Tex. 294.

the plaintiff's title need not be decided in Oral testimony is not admissible to prove the instant case, for the reasons: First, ap the terms of a contract required by law to

, be in writing, or which the parties have put pellee testified, without objection, that he in writing, but such evidence is admissible had good title to the lots, and there was no

In the second to apply the terms of the contract to the sub- evidence to the contrary. ject-matter; that is to say, to identify such place, while the failure to plead want of subject-matter where the contract itself fur- title in appellee may not of itself be a waivnishes the key to such identification. In er of proof of title, yet taken in connection other words, such is not admissible to supply with the further fact that appellee set up a a total want of description, but is admissible specific reason why the contract should not

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