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ry existed. Such transfer amounted to noth-, tank and pump, and the nearly new set of ing, and plaintiff in error is not entitled to harness, as described in plaintiff's petition, recover thereon, as defendants in error had which was then of the reasonable market "not received or collected" usury.

value of $600; that he purchased all of said [4] Besides, plaintiff in error in purchasing property on December 2, 1916, from his cothe Ford car from Wood had assumed to pay defendant M. L. Moore, for $600 cash, withthe notes executed by Wood to Bailey, and he out any notice, constructive or actual, of any is not in an attitude to plead usury, as his claim to, interest in, or lien upon such propliability arises from the assumption of the erty by any other person whatsoever; that notes. Building Ass'n v. Hay, 23 Tex. Civ. he was a bona fide purchaser thereof for App. 98, 56 S. W. 580; Association v. Wi-value; that said property was on the date nans, 24 Tex. Civ. App. 544, 60 S. W. 825; of his purchase, and had continuously thereVaughn v. Association, 36 S. W. 1013; Connor tofore, since prior to November 6, 1916, been v. O'Donnell, 55 Tex. 167; 39 Cyc. p. 931, IV. the property of said M. L. Moore, used, control

Under the facts in this case, we are of the led, and possessed by him, and that neither opinion the court was fully justified in direct- on November 6, 1916, nor at any other time, ing a verdict for the defendant in error, and did said Moore execute a mortgage on the the judgment is affirmed.

same; that he had no knowledge of the execution by Arthur Day and M. L. Moore of

the note sued upon, or of the execution by WUNSCHEL v. FARMERS' STATE BANK Arthur Day of the mortgage which plaintiff OF BURKBURNETT et al.

sought to foreclose upon said property; and (No. 1352.)

that the defendant Arthur Day at no time (Court of Civil Appeals of Texas. · Amarillo. had any right, title, or interest in said propMay 29, 1918.)

erty to mortgage. He reconvened for dam

ages for the levy of the writ, prayed for posCHATTEL MORTGAGES Om 150 (1) - RECORD

NOTICE.

session of the property, and judgment for his The record of a chattel mortgage, made by damages for the wrongful sequestration. Deone who is not the owner of the property, is fendant Moore filed no answer. Arthur Day not constructive notice to one dealing with the answered that he executed the notes and owner.

mortgage, but that he was a minor, and was Appeal from District Court, Wichita Coun-only 17 years of age when he executed the ty; Edgar Scurry, Judge.

same, that, he received none of the proceeds Suit by the Farmers' State Bank of Burk- of the notes or mortgage, and that the burnett against Max Wunschel and others. horses, named Gingger and Charlie, were Judgment for plaintiff, and the named de his own horses. fendant appeals. Affirmed in part, and re

There are other pleadings in the record not versed and rendered in part.

necessary to be set out here. It was agreed Martin & Oneal, of Wichita Falls, for ap- in open court that appellant purchased the pellant. R. E. Huff, of Wichita Falls, for ap- horses, Sam and Coley, and the Studebaker pellees.

wagon, oil tank, pump, and set of new harHALL, J. Appellee bank instituted this ness from M. L. Moore, in good faith, without suit against Arthur Day, M. L. Moore, and actual notice of the bank's mortgage or claim appellant, Wunschel, praying for judgment on said property. It was further agreed that against Day and Moore on six promissory at the time of the execution of the writ of notes, dated November 6, 1916, executed by sequestration upon said property appellant them, and seeking the foreclosure of a chat- was in possession of it in Archer county, tel mortgage executed by Arthur Day at the and that his actual damages, by reason of the same time to secure the above-described levy of the writ of sequestration and depriv

The mortgage contains a description ing him of the use of his said team, amountof two wagons, two sets of harness, two ed to $30. cows, and four horses, two of the horses de- In reply to special issues submitted, the scribed as follows: "Two black horses nam- jury found that the defendant Day was not ed Sam and Coley.” It is alleged that the 21 years of age when the notes and mortmortgage was duly filed for registration; gage were executed; that he did not repthat appellant, Wunschel, had purchased and resent to the bank that he desired to purhad in his possession the two horses, named chase the property mortgaged by him, or Sam and Coley, and the wagon and set of any portion of it, with the proceeds of the harness first described in the mortgage. A note, nor did he represent that he already writ of sequestration was issued by plaintiff owned other property discribed in the mortand levied upon said horses and wagon. gage, and desired to obtain the loan with the

Appellant answered that on the date of the security of the property being purchased and filing of the suit he had the two horses, Sam with what he already owned; that he did not and Coley, the Studebaker wagon, with oil represent to the bank that he was 21 years

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old at the time of executing said notes; that, S. C. 308, 53 S. E. 641; Bradford v. Lembke, the officers of said bank did not believe him 118 S. W. 159 ; Fish Furniture Co. v. Reliato be 21 years of age; that a person of or- ble Storage & Van Co., 187 Ill. App. 6. dinary prudence would not have believed him It has been stated in this court that the to be 21 years of age; that the horses, Sam property purchased by Wunschel has been and Coley, and the Studebaker wagon, with sold by the bank, and that its value was oil tank and pump, and the set of harness $600. It is therefore ordered that the judgpurchased by Wunschel, were in the posses- ment of the court below be affirmed, except sion of defendant Moore from November 6, in so far as it decrees a foreclosure of the 1916, the date of the mortgage, up to and at chattel mortgage lien upon the property purthe time the defendant Wunschel purchased chased by Wunschel. In this particular the them on December 2, 1916. The court fore- judgment is reversed, and here rendered that closed the mortgage upon the property own- appellant, Max Wunschel, recover of appellee ed by defendant Wunschel. Wunschel alone bank the sum of $600 being the value of the appealed.

mortgaged property, together with interest Upon the findings Wunschel moved the thereon from the date of the levy of the writ court for judgment in his favor. This mo- of sequestration, and that he recover the furtion was overruled, and this ruling is the ba- ther sum of $30 damages for the wrongful sis of the first assignment of error. The prop-levy of said writ together with his costs. osition under this assignment is that, if Affirmed in part, and reversed and renderArthur Day did not represent to the agent ed in part. of plaintiff that he intended to buy the property from defendant Moore, and not only the HUFF, C. J., not sitting, being absent in title to said property, but also the possession Austin, sitting with committee of judges of same, remained in Moore from the time of passing on writs of error for Supreme Court. the making of the mortgage by Day to the time of the sale of the property by Moore to Wunschel, and Wunschel was the purchaser of INGRANDO v. GULF, C. & S. F. RY. CO. said property from Moore for a valuable con

et al. (No. 366.) sideration, in good faith, without actual no

Beaumont. tice of the bank's claim to a mortgage upon (Court of Civil Appeals of Texas. the same, by reason of the mortgage executed

May 17, 1918. Rehearing Denied June

5, 1918.) by Day, then Wunschel took the title and possession of said property clear of any in- 1. WATERS AND WATER COURSES 124 cumbrance upon same in favor of said bank,

MANDATORY INJUNCTION.

Where a railroad dug a ditch upon its own and was entitled to judgment in his favor, property, and the whole damage to land of an clearing said property of said claim by plain- adjoining owner could be repaired completely, tiff bank, and for damages for the wrongful and a revetment constructed which would presequestration of the same. This proposition not entitled to mandatory injunction to compel

vent further damage, such adjoining owner was submits the only question necessary to be the railroad to restore to its former natural surconsidered. The law with reference to this face a washout in his land. question is stated in 11 C. J. p. 540, 8 228, as 2. WATERS AND WATER COURSES Om119(4)

RAILROADS-RIGHT TO DRAIN. follows:

A railroad had a right by digging a ditch “The record of a mortgage of personal prop- on its own property to drain the right of way, erty made by one who is not the owner of the thereby maintaining its tracks in the interest property is not constructive to one dealing with of the public, and, so far as an adjoining owner the owner.”

was concerned, had a legal right to continue And in 5 R. C. L. pp. 413, 414, $ 40, the rule the ditch on the property of some one else so is announced in this language:

as to connect with a gully, so that if a washout

resulted from maintenance of the ditch, legally "The weight of authority is that a mortgage constructed, the only question to determine in on personal property, made by one who was not the owner's suit against the railroad is one of the owner of the property, or executed by the negligent maintenance and damage. owner in a fictitious name, although placed on record, is not constructive notice to any one Error from District Court, Harris County : dealing with the owner in his true name. The Wm. Masterson, Judge. reason of the rule is that such conveyances in fictitious name lie outside of the chain of title,

Suit by 1. Ingrando against the Gulf, and therefore impart no notice. So, where a Colorado & Santa Fé Railway Company ang mortgagee advances money to the person in pos- others. To review judgment for defendants, session of the property, he is not obliged to look

plaintiff brings error. Affirmed. for mortgages on his interest in the property in any fictitious name, nor in the name of any one J. M. Gibson, of Houston, for plaintiff in acting for him."

error. Andrews, Streetman, Burns & Logue See Beaumont Rice Mills v. Bridges, 45 Tex. of Houston, and Terry, Cavin & Mills, of Civ. App. 439, 101 S. W. 511; Mackey v. Cole, Galveston, for defendants in error. 79 Wis. 426, 48 N. W. 520, 24 Am. St. Rep. 728; New England National Bank v. North- BROOKE, J. This suit was brought by western National Bank, 171 Mo. 307, 71 S. W. plaintiff in error, I. Ingrando, by petition 191, 60 L. R. A. 256; Brayton v. Beall, 73 ) for a mandatory injunction against the de

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

fendants in error to compel said defendants, that is, for permanent injuries thereto, the to fill and restore to its former natural sur-measure of which would be the difference, if face condition a gully or washout that had any, between the reasonable market value of

said property before and after the alleged dambeen formed in plaintiff's premises, which age or injury; and the plaintiff, in the opinion were situated adjoining the defendant rail- of the court, not being entitled to the remedy road and right of way, and to enjoin them of injunction as prayed for; and it appearing

from the face of plaintiff's petition that his from permitting said gully to remain unre- claim for use of rent on said land as claimed paired, so as to prevent future washing away is below the jurisdiction of the court-you are of plaintiff in error's property. Plaintiff

Plaintiff therefore instructed to return a verdict for

the defendant."
also asked for damages by loss of rents. It
seems in this case the railway company dug

It seems that there was a trial amend-
a ditch on its own property, connecting with ment, which was as follows:
a natural draw which led to the bayou, and

“Comes now the plaintiff, and by leave of said ditch or the draw at no point touched trial amendment to his first amended original

the court first had and obtained files this his the property of Ingrando, and as a matter petition herein, to wit: The plaintiff amends of fact Ingrando did not own the property said petition by withdrawing therefrom in the in question at the time the ditch was dug, thereof all of the language which reads as fol

concluding paragraph of same and at the end but the property was untouched by either the lows: 'And, that if mistaken in this, he have ditch or the draw, and if affected by washing damages for the full value of the depreciation later, it is a question whether or not the in the market value of said premises in the ditch had anything to do with it. If, however, tiff hereto to abandon his claim in said original,

sum of $900,' it being the intent of the plainit did, it was only by reason of the fact that petition for any depreciation in the market

. water washed the banks along which it flow- value of said premises by reason of said washed to such an extent as to cause damage. out or ditch.' " The ditch seems to have been dug by the

In opposition thereto, it is insisted that the railway company upon its own property allegations of plaintiff's petition must be perhaps at some time prior to 1911, and was taken as conclusive that there was no irrepupon property partly adjacent to that which arable damage to the land and property of later was purchased by Ingrando, and it plaintiff, such as would entitle him to the repermitted the surface water to flow through lief by way of mandatory injunction as praythe ditch into the natural draw, which leded for. to the bayou. The fact that the ditch ex- The testimony of F. W. Bobbitt is that tended somewhat beyond the property of the the ditch cut by the railroad must have railway company, in order to connect it with been cut in 1909 or 1910, that he was in the draw, does not alter the case, in so far as charge of those matters from 1911 on, and Ingrando is concerned, for the reason that that the ditch was in existence when he there is no complaint that the ditch was entered the employment of the Houston Belt at any place dug upon the land of said In- & Terminal Railway Company in 1911. Bobgrando. The defendants filed a joint answer, bitt made a drawing, showing the construcdemurring generally to plaintiff's petition, tion of the ditch on the property of the railwith a general plea of not guilty and special way company, and connecting with a draw, defense of the statute of limitation of two

as he calls it, which was in existence at the years. After the evidence was heard, the time the ditch was dug, making a channel plaintiff moved the court to submit the ques- for the surface water to pass into Bray's tion on special issues, and defendants moved bayou. The ditch itself can be traced backthe court for a peremptory charge.

The ward to the railroad right of way, and the court overruled the motion of plaintiff to sub-witness testified that at no point in the conmit the special issues requested, and sustained struction of the ditch would it touch the propthe motion of the defendants, and gave a erty of Ingrando, and further testified that peremptory charge to the jury to find for the he estimated the cost of the work referred defendants. The verdict of the jury was ren-to to be about $280.50 for the filling and $15 dered in accordance with said instruction. for the revetment. Two witnesses familiar Plaintiff filed a motion for new trial, which with real estate values testified in the case, was overruled. Plaintiff excepted and gave one of them testifying that he was in the notice of appeal, and the cause is properly real estate business, acquainted with real before this court by transfer from the First estate values in and about the Luke Moore district at Galveston, by order of the Su- league in Harris county, that he had been preme Court.

upon the Ingrando property not far from It seems that the first assignment of error Bray's bayou, near the Santa Fé bridge, and has been passed. The second assignment, that he was acquainted with the market

, however, is insisted upon, which calls in ques- value of property in the vicinity. He estition the action of the lower court as being mated the market value of the land at about error in giving the following charge to the $100 and the house at about the same amount. jury, instructing them to find a verdict for He testified that the washout which he obdefendant, as follows:

served on the property, which he visited a “Gentlemen of the jury, in this case the short while before the trial, would depreciate plaintiff in open court having announced that the value only about 25. he waived the claim of damage to his property,

The other witness testified that he was

1

acquainted with the Ingrando property, and, verting the water from the ditch along its that he had visited it at the request of the right of way out to the fence upon plaintiff's defendant's attorneys, and he estimated the property, and that if the ditch be permitted total valuation, including the house, at about to remain in its present condition, it will $500, the land being worth about $500 per continue to wash, and that a railway comacre. He stated that if the washout had pany is bound to take in consideration, not seriously cut into the property, it would pro- only the existing situation of the land, but portionately depreciate the value, but he future changes therein that would be caused testified thať upon his inspection the wash- by a drain, and, further, the evidence shows out had not done any damage to it, and had that the owner of the land adjacent to the caused no depreciation in the market value railroad right of way has been injured, and of it.

that this injury will probably continue in [1] Considering the damage was such as the future. could be deemed irreparable in its nature, On the contrary, it is urged that the obthese witnesses state that the whole damage struction of the surface water or an alteracould be repaired completely, and that a re- tion in the flow of it affords no cause of acvetment could be constructed which would tion in behalf of a person who may suffer prevent further damage. Therefore, if it loss or detriment therefrom against one who

. be conceded that the railway company dug does no act inconsistent with the due exerthe ditch, plaintiff abandoned his claim for cise of dominion over his own soil. This damages, and, in our opinion, the court ap- suit is predicated upon the theory that the propriately instructed the jury peremptorily ditch in and of itself, even though constructto return a verdict for appellees, and denied ed on the property of the railway company, the injunction. In this connection, it may constituted an illegal thing violating the be appropriate to quote the language of the rights of Ingrando and entitling him to the Supreme Court in the case of Barnett v. injunction. The cases of Wellborn v. WellMatagorda Rice & Irrigation Co., 98 Tex. born, 185 S. W. 1041, and Walenta v. Wolter, 355, 83 S. W. 801, 107 Am. St. Rep. 636, as 186 S. W. 873, were decided by the Court of follows:

Civil Appeals at San Antonio, and involve “There is no such thing known to the law the principles relied upon. A quotation as a right to any particular flow of surface made by the court in the latter case from water, jure naturæ.

* If the right to run in its natural channels was annexed to sur-| the decision in Gramann-Eicholtz, 36 Tex. face water as a legal incident, the difficulties Civ. App. 309, 81 S. W. 756, is as follows: would be infinite indeed. Unless the land

“Under the common-law rule, which seems should be left idle, it would be impossible to to prevail in this state, one may protect his enforce the right in its rigor; for it is obvious own property from the effects of surface waevery house that is built and every furrow ter percolating or flowing through or over it, that is made in a field is a disturbance of such and this without reference to the effect it right. If such a doctrine prevailed, every ac- may have on his neighbor's land. Booker v. clivity would be and remain a watershed, and McBride, 16 Tex. Civ. App. 348, 40 S. W. most low ground become reservoirs. It is cer- 1031.” tain that any other doctrine but that which the law had adopted would be altogether im

It is also urged by appellees that, even practicable."

though the plaintiff would otherwise have While the plaintiff in error seeks to bring been entitled to an injunction, in view of the

' his case under article 4643, Vernon's Sayles' lapse of time subsequent to the digging of Civil Statutes, relating to injunctions, we the ditch in 1909 or 1910, any right to enare cited to the case of G. H. & S. A. Ry. Co. join the maintenance of said ditch was lost, v. De Groff, 110 S. W. 1006, as supporting and in no event could there be a right of his contention. We find that the Supreme action other than for damages. Court has overruled in this case, the opinion Ingrando himself testified: being reported in 102 Tex. 433, 118 S. W.

“I do not tell the jury there was no washing 138, 139, 21 L. R. A. (N. S.) 749, in which tember on, due to a ditch in that vicinity. I

there in 1910, the latter part, say from Sepopinion Judge Brown lays down the proposi- do not tell the jury there was no washing in tion that where the damage could be ascer- 1911 due to a ditch in that vicinity. I mean tained and recompensed fairly upon a mone- there was no washing. 1912 was the start of tary consideration, there was not such in- don't remember exactly the time, but it was be

the washing due to a ditch in that vicinity. I jury as would justify an injunction. In ad-ginning to start.” dition, it might be well to say that this case Tobe Wilson, who lives in a house adjacent does not come within the statute relating to to the one owned by Ingrando, testified: the duties of railway companies as to con

"This ditch connected with that railroad right struction of sluices and drains underneath of way, and the property they brought it across the roadbed, but is entirely different from was my fenced property, but I don't knowthe cases arising under that statute.

they got out of it some way-the railroad comIt is earnestly insisted, however, that it pany fenced it in. I don't know exactly how

near it come to my property, but about 100 was error for the court below, in view of the feet, maybe 120 feet, something like. It didn't evidence, to have withdrawn the case from touch the lot that Mr. Ingrando owns next to the jury, and it is argued that the evidence me when it was first cut; it went kind of

south of both of our properties. There was a discloses that plaintiff's lot had been very ditch run right into the road, and all this going badly washed by reason of defendant's di- into there, it commenced washing. It didn't touch Mr. Ingrando's property when it was first would warrant this court in reversing and cut. I disremember how long after it was cut remanding the cause. before it formed a wash, somewhere about 1913. This wash started in the ditch, and then that

The judgment of the court, therefore, in sliding clay kept caving back."

our opinion should be affirmed. It is so or

dered. He further testified: "There was washing back up there in the vicinity of Mr. Ingrando's property before 1913. The point that I told Mr. Gibson about is what I am speaking about. I won't undertake to say CAMERON v. WILLIAMS. *(No. 358.) how long the ditch had been there." He further testified that the railroad con

(Court of Civil Appeals of Texas. Beaumont.

May 22, 1918. Rehearing Denied nected the ditch with an old gully, which ran

June 5, 1918.) back toward Ingrando's house.

He says,

1. BILLS AND NOTES O 476(2) with reference to this gully:

ACTION

PLEADING. "The gully, I reckon, was there before the

In an action on notes, answer setting up bayou got there. I reckon it has been there contemporaneous oral agreement for future desince the bayou is there. I reckon what made termination of the amount to be paid, and althe bayou made the gully. That gully has been leging that it was found that only a small part always there."

of the notes was to be paid, was not a good [2] It is further urged by defendants in plea of failure of consideration, but was an error that, the plaintiff having abandoned attempt to vary the notes by parol. his claim for damages, predicated upon the 2. LIMITATION OF ACTIONS C 63—OFFSETS. depreciation in the market value of his prop- and they agreed that on dissolution of the part

Where defendant gave notes to his partner, erty, and having asserted only his right to nership the amount due him should be remitted an injunction, the court appropriately refus- from the notes, and more than four years after ed the injunction upon the hypothesis that dissolution suit was brought on the notes, the to grant and enforce the injunction prayed agreement was no defense, but in the nature of

a set-off, and barred. for would relatively cause more injury to the railway company and the public inter- Appeal from District Court, Harris Counests served by it than to the plaintiff, should ty; Chas. E. Asher, Judge. the injunction be denied, and they argue that Action by C. S. Williams against H. S. there is no sufficient basis to determine just Cameron. Judgment for plaintiff, and dewhat effect upon the railway company's fendant appeals. Affirmed. property in the vicinity a closing of the ditch

G. P. Dougherty, of Houston, for appellant. in question would have. If there was such L. C. Kemp, of Houston, for appellee. an amount of surface water passing off of the railroad right of way through this ditch

BROOKE, J. as to cause serious damage to plaintiff's prop- Eleventh district court of Harris county on

This suit was filed in the erty, to the extent that same would be deem- January 25, 1917, by C. S. Williams, as plained irreparable, it would logically follow that tiff, against H. S. Cameron, as defendant. A such water handled through a ditch else-jury was demanded by defendant, but on the where would have a similar effect, and that trial of the cause and before the conclusion the railroad had a right to drain its right of thereof, by agreement of parties, the jury way, thereby maintaining the highway of

was waived, and all issues of fact, as well as commerce in the interest of the public. of law, were submitted to the court. The There is nothing in the record as to what method could be adopted by the railroad case went to trial on March 7, 1917, and a company other than such ditch as the one judgment was rendered in favor of the plainin question to properly drain the right of tiff and against the defendant for the sum of

$912.80, and all costs of suit. The suit was

. way in the vicinity. The railroad had a right to dig this ditch on its own property, $456.90 each, both dated November 27, 1912, and in so far as this plaintiff was concern- | $456.90 each, both dated November 27, 1912, ed, it had a legal right to continue the ditch executed and delivered by plaintiff to defendon the property, of some one else so as to ant, and due and payable 60 and 90 days aftconnect with the gully in question. If, there

er date, respectively, bearing 8 per cent. infore, the washing of plaintiff's land resulted terest from date, and containing a clause profrom the maintenance of this ditch, which viding for 10 per cent. attorney's fees. The was legally constructed, the only question to defendant answered by plea of four-years determine would be one of negligent main- statute of limitation, and alleged that the tenance and damage.

two promissory notes sued on by plaintiff We have carefully considered this record were executed without any consideration of in the light of the photographs, the diagram any kind or character. prepared by the engineer showing the situa

The court sustained exceptions to defendtion of the land and condition of the proper- ant's answer, setting up facts connected with ty, the pleadings of the respective parties, and surrounding the execution of the notes and the testimony admitted, and the action sued on, upon the ground that parol evidence of the court, and we are of opinion that no i could not be admitted to show that the considsubstantial injustice has been done, such as eration had failed, for the reason that said

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