entitled to be placed in the condition that they would have been had appellant performed his contract. If he had performed it, he would have paid $20 for its use, and have returned the property in good condition. The verdict of the jury allows interest from the time the property was injured, but this error is not complained of here. The court having instructed the jury that appellees could not recover unless the apparatus was destroyed by the negligence or carelessness of appellant's agent, who hauled from Meridian to Iredell, its charge that they could not recover if the injuries were caused by inevitable accident in transit to Iredell could not prejudice the appellant; for in no event were appellees allowed to recover if the injuries were not caused by the negligence of appellant's servant. We cannot see how the statement of appellees' counsel, complained of in appellant's fifth assignment of error, could have in any way injured the appellant. The evidence of negligence was sufficient to warrant the verdict. There is no error complained of that requires a reversal of the judgment, and it is affirmed.

WELTMAN et al. v. AUGUST et al. (Court of Civil Appeals of Texas. Nov. 27, 1895.)

LANDLORD AND TENANT-RIGHTS OF ASSIGNEE OF LEASE.

Where a lessee builds show windows in such manner as would make them part of the realty if built by the owner, but, by agreement with the owner, the lessee has the right to remove them, an assignee of the lease is entitled to their use for the unexpired term without compensation to his lessor.

Appeal from Tarrant county court; Robert G. Johnson, Judge.

Action by A. & L. August against Weltman Bros. for the value of the use of show windows. Judgment was rendered for plaintiffs, and defendants appeal. Reversed.

R. J. Boykin, for appellants. John W. Wray, for appellees.

NEILL, J. This suit was brought by the appellees, A. & L. August, in a justice's court, against the appellants, Weltman Bros., and D. E. Hirshfield, to recover $199, the alleged value of certain show windows. In that court judgment was rendered against the plaintiffs, the appellees here. They appealed to the county court, where the case was tried without a jury, and judgment rendered in their favor. From that judgment we have this appeal

On the 1st of October, 1891, George C. Hudgins leased to J. A. Thomas a certain storeroom in the city of Ft. Worth for the term of three years. This lease was assigned to A. & L. August. In November, 1892, they assigned it to Weltman Bros., by the following written indorsement thereon: "We

hereby transfer and assign the within leaseto Weltman Bros.; said Weltman Bros. to pay Geo. C. Hudgins the sum of one hundred and five dollars, and A. & L. August agreeing to pay twenty dollars per month. [Signed] A. & L. August." Weltman Bros. continued in possession until February, 1894, paying the rent as stipulated in the assignment, when, with the consent of Hudgins, they assigned it to A. L. Hirshfield. When both of these assignments were made, there were in and affixed to the storeroom three show windows, which would have been part of the realty had they been constructed by the owner of the premises. But they were placed there under agreements with the owner that they might be removed, etc., which made them the personal property of appellees. The legal effect of the written transfer above quoted passed the right to the use of the windows, with the room to which they were affixed, to Weltman Bros., for the unexpired term of the lease, and the assignment of Weltman Bros. passed such right to Hirshfield. This legal right could not be changed or controverted by parol evidence, and the court erred in admitting and considering it for that purpose. Eliminating such evidence from the record, and giving that which alone should have been considered its proper weight, the judgment should have been for the appellants, without prejudice to appellees' right to remove their windows upon the expiration of the lease; and as the cause was tried without a jury the judgment of the county court is reversed, and such judgment is here rendered as should havebeen in that court. Reversed and rendered for appellants.

REICHSTETTER et al. v. BOSTICK. (Court of Civil Appeals of Texas. Nov. 27, 1895.)

INSTRUCTIONS-FAILURE TO REQUEST.

A party who fails to ask for more explicit instructions cannot complain because they were not given.

Appeal from district court, Hood county; J. S. Straughan, Judge.

Trespass to try title by C. H. Bostick against John Reichstetter and another. Sam Davidson intervened, and, from a judgment for plaintiff, he and defendant Reichstetter appeal. Affirmed.

N. L. Cooper and Estes & Keith, for appellants. Thos. T. Ewell and John J. Hiner, for appellee.

FLY, J. Appellee brought this action, against Reichstetter and Snelson, in trespass to try title to certain land, a part of the Alexander O'Brien 1,280-acre survey, in Hood county. Snelson disclaimed any interest in the land. Sam Davidson afterwards intervened, alleging that appellee claimed the land through a deed of trust made to him by Reich

On

stetter, which appellee had never accepted, and that he had obtained from Reichstetter a deed of trust on the land to secure a debt due him by Reichstetter, and that the lien given by the same had been foreclosed on the land. There was a verdict in favor of Bostick. The testimony shows that, on December 29, 1890, Reichstetter executed to D. C. Cogdell, as trustee, a deed of trust on the land in controversy, to secure appellee in the payment of certain debts due him, and authorizing the trustee to sell the land in case of default of payment. This instrument was properly acknowledged and filed for record on the day of its date. On January 1, 1891, appellee, who was not present when the instrument was executed, learned of it and accepted under it. The debt due appellee was not paid, and on March 1, 1892, the land was sold by the trustee, and bought by appellee, and the deed from the trustee was properly acknowledged and recorded. January 5, 1891, several days after the execution and acceptance of the deed of trust to Cogdell, Reichstetter executed a deed of trust on the same land to secure Davidson in the payment of a promissory note for $3,337.58. The only subject of dispute in this case is as to whether the deed of trust given by Reichstetter to Bostick was accepted by the latter before the execution of the deed of trust to Davidson. Bostick swore positively that he accepted the deed of trust on January 1, 1891. There is testimony that tends to contradict this statement; but the question was one of fact, and has been resolved by the jury in favor of appellee, and we are not called upon to disturb the verdict. There is no merit whatever in the assignments of error urged against the charge. If appellants desired more explicit instructions on the subject of acceptance of the deed of trust, they should have asked for them. No error has been pointed out in the charge. The judgment is affirmed.

AWARD-WAIVER-JUDGMENT.

1. An owner of land taken by a railroad company in condemnation proceedings, by accepting payment of the award, waived his right to a trial of objections to the award previously filed by him, though the company entered the land before payment, without having deposited the amount of the award in court.

2. The fact that the receipt for the award stated that the payment was "upon the claim" of the owner for damages did not establish an agreement that the payment should not affect the owner's right to a trial of his objections to the award.

3. A judgment vesting a right of way over land in a railroad company, "for all necessary railway purposes," should, in the interest of the owner, be corrected, so as to limit the exercise of the easement to the purposes defined in Rev. St. art. 4216.

Appeal from Tarrant county court; Robert G. Johnson, Judge.

Proceeding by the Chicago, Rock Island & Texas Railway Company against the Ft. Worth Ice Company to condemn land. Judgment for petitioner, and defendant appeals. Reformed and affirmed.

Hogsett & Orrick, for appellant. Capps & Canty and N. H. Lassiter, for appellee.

JAMES, C. J. The first and second assignments are without merit. Apart from the waiver of irregularities or defective pleading which results from the acceptance by appellant of the sum awarded by the commissioners (Elliott, Roads & S. p. 207), we are of opinion that the petition for condemnation sufficiently indicates the purpose for which the strip described was sought to be taken, viz. for a right of way necessary to enable appellee to construct and maintain its railway. The first step in the history of this proceeding was an injunction, sued out by appellant on June 17, 1895, restraining appellee from entering upon its property. Thereupon the application to condemn was filed in the county court, which resulted in an award to appellant of $1,900 for the right in the land sought by appellee. On July 10, 1893, appellee moved in the district court, in which the injunction had been sued out, to vacate the same, exhibiting the proceedings had in the county court, and averring that it had tendered, and did now tender, to appellant the amount of said award, and that the tender had been refused. On July 11, 1893, the motion was heard, and the restraining order vacated. Previous to this, on July 5, 1893, appellant had filed objections to the award of the commissioners. In January, 1894, appellant made a motion in the injunction suit in the district court, alleging that the railway company had withdrawn its offer of said sum of money, that the same was not in court, and that appellant had applied to the officers of appellee, signifying its willingness to accept the same, and that the officers had refused to pay it, and asked the court to renew the restraining order. Thereupon the railway company brought the money into court, and appellant accepted same, and, to use the language of the statement of facts, "in the presence of said district court" executed the paper which is as follows: "The Ft. Worth Ice Company v. Chicago, Rock Island & Tex. Ry. Co. (No. 7,825.) Received of the Chicago, Rock Island & Texas Ry. Co. $1,900.00, payment upon the claim of the Ft. Worth Ice Company and the Traders' National Bank for damages to the right of way to the land mentioned in the above suit; the said $1,900.00 being the money tendered into court by said railway company on the above cause, and mentioned in the pleadings, and being the amount awarded by the commissioners appointed by the county judge in the condemnation proceedings. Hogsett & Orrick, Attorneys for the Ft. Worth Ice Co., The Nat. Bank of Fort Worth, by J.

Y. Hogsett, V. P." The railway company had taken possession of the premises immediately after the order vacating the injunction. Upon the trial in the county court, jury was waived, and plaintiff, by supplemental petition, pleaded the facts above stated; and the court held that the appellant, by accepting the amount of the commissioners' award, waived its right to further prosecute its objections, and entered judgment accordingly. The third and fourth assignments specify this as error. Our constitution provides that no property shall be taken for public use unless adequate compensation shall be first made or secured by a deposit of money. Article 1, § 17. In the case of Railroad Co. v. Clark (Mo. Sup.) 24 S. W. 157, upon which, and several other cases therein discussed, appellant relies, the statutes provided for the payment to the clerk of the amount assessed, for the party in whose favor the same was assessed, whereupon it should be lawful for the company to enter into possession of the property. It was there held that, such payment being for the owner, he could receive it without impairing his right to prosecute an appeal. Our law is different, and provides that the deposit is security only for payment to the owner. Hence, the case cited is not applicable. It does not decide what would be the effect of demand and acceptance of such deposit, where the deposit is not for the use of the owner, but security merely. In this case, however, there was no deposit made in the county court before possession was taken by the condemning party, and the opinion in Twombly v. Railway Co. (Tex. Civ. App.) 31 S. W. 81, where the deposit had been so made, is not upon the precise facts before us. Still, we believe there is no difference in the applicability of the same principle to both cases. The reasons given in said opinion seem to us to be sound. We are of opinion that the owner has no right to receive the award, and, while holding same, prosecute objections thereto. See Elliott, Roads & S. p. 277, and cases cited. His right to have the matter tried is based upon his objecting to the award of the commissioners, and he cannot accept the award and be considered in the position of objecting to it. The positions are wholly inconsistent. His right is in the nature of an election. The fact that the railway company may have entered upon the premises without payment or deposit has no effect whatever upon the question. So far as the award of the commissioners was concerned, the owner had a right to accept it, as well out of court as through a deposit, and after objections as well as before they were entered. It will, doubtless, not be denied that an acceptance of the amount of the award, prior to the filing of objections, would be a bar to a prosecution of objections. Can a party file objections, then accept the award, and be in any better position? We think not. The case would be otherwise, however, if the award was paid and received with the understanding between the parties

that it should not affect the owner's right to a trial of his objections. Such is said to be the case here. The receipt which was given by appellant states that the payment was upon the claim for damages. But it does not appear that this receipt was given to or taken by appellee, or embodies any agreement of appellee. The evidence is that the appellant asked a revival of the injunction upon the ground that appellee had withdrawn its offer to pay the award, and upon the ground that appellant was willing to accept the same, and had demanded it of appellee, who had refused to pay it. All that appellee did on that occasion was to bring the money demanded into court, when appellant accepted it. The receipt appears to have been drawn by appellant, and left as a paper in the cause, and does not appear to have been the result of any arrangement or agreement between the parties as to the effect of the payment. These facts, in connection with the demand then and previously made, and the expression of appellant's willingness to accept the award, make the record such that it fails to show that appellee agreed that the payment of the award should not affect appellant's right to proceed with the case in the county court. The court did not err in its sustaining this defense.

The judgment vests an easement "in and to, and over and across, and upon the property in controversy" for all necessary railway purposes. This, in reality, adjudges a "right of way" over the premises, although that expression is not used. Objection is made to the language, "for all necessary railway purposes." Our statute (article 4216) forbids or restricts the use of the right of way as to certain purposes, and the language of the judgment is, we think, too broad to be consistent with the statute. The judgment entered may, so far as the owner is concerned, authorize the use of the right of way for purposes which the statute, in the interest of the owner, does not permit, when the land is taken by condemnation. Lumber Co. v. Harris, 77 Tex. 23, 13 S. W. 453. The right obtained by the condemnation, under the pleadings and award in this case, is the use of the premises for the purposes of a right of way, as the same is defined by statute, and in this particular the judgment will be modified. Reformed and affirmed.

NELSON v. WALKER et al. (Court of Civil Appeals of Texas. Nov. 27, 1895.)

APPEAL-HARMLESS ERROR.

Where the competent evidence would have warranted no other verdict than that rendered, error in the admission of evidence is not ground for reversal.

Appeal from Bosque county court; W. B. Thompson, Judge.

Action by Walker Bros. & Co. against C. O.

Nelson. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. A. Gillette, for appellant.

NEILL, J. The appellees sued appellant in the county court upon a verified account for $250 and interest thereon. A judgment was rendered upon a verdict in appellees' favor for the amount claimed, from which judgment Mr. Nelson has appealed. The only assignments of error complain of the admission, over appellant's objections, of certain testimony offered by appellees. If the evidence objected to had been excluded, the remaining evidence disclosed by the record would have been not only sufficient to support the verdict, but would have warranted no other than that found. Therefore, as the testimony complained of could not have affected the verdict, it is unnecessary for us to determine whether or not the evidence objected to should have been excluded; for, however the question might be decided, it would still be our duty to affirm the judgment, which is accordingly done.

STATE ex rel. BAUMUNK v. GOETZ et al. (Supreme Court of Missouri, Division No. 2. Dec. 17, 1895.)

FRAUDULENT CONVEYANCE-CHANGE OF POSSESSION -DEMURRER TO EVIDENCE-OBJECTIONS

TO PLEADING-WAIVER.

1. Where plaintiff's evidence is prima facie insufficient for a recovery, a demurrer to the evidence should be sustained.

2. Objections to the sufficiency of an answer should be raised in the court below.

3. An insolvent debtor sold to plaintiff his goods, which were capable of speedy removal, but retained possession for two days thereafter, and was apparently carrying on business as before the sale, with the same business sign, until the goods were seized under attachment. Held, that the sale was fraudulent as to creditors of the seller.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by the state, on the relation of George P. Baumunk, against Charles W. Goetz and others, on an attachment bond. From an order sustaining a demurrer to his evidence, relator appeals. Affirmed.

Henry Boemler, for appellant. Fisse & Kortjohn, for respondents.

BURGESS, J. On July 25, 1893, and for some time prior thereto, one Michael Kraemer was engaged in the business of constructing cement and granitoid sidewalks in the city of St. Louis. He then owned, and had in his possession, and employed in his business, a number of wagons, buggies, horses, harness, and a variety of tools, necessary for its operation, as well, also, as cement, granitoid, and sand. In front of his place of business there was a sign, "German Cement Company." On the afternoon of the 27th day of July, 1893, the sheriff of the city v.33s.w.no.2-11

of St. Louis, under writ of attachment sued out in aid of an action on a note brought by the defendant Charles W. Goetz against the said Michael Kraemer, levied upon and seized the said personal property. On the 29th day of July, George P. Baumunk, the relator herein, claimed the said property as his own, and thereafter, on the same day, the defendant Charles W. Goetz and his codefendants executed an indemnity bond, and delivered the same to the sheriff of the city of St. Louis, and thereafter the said property was sold by the sheriff under an order of sale made by one of the judges of the circuit court of the city of St. Louis. This action is prosecuted by plaintiff as the owner of the property on the indemnifying bond, he claiming to have purchased the property from Kraemer on the 25th day of July, 1893. The petition contains the usual averments in such cases, alleging ownership of the property at the time of its seizure and sale by the sheriff under the writ of attachment, its value, etc. Defendants, in their answer, denied each and every allegation in the petition. At the conclusion of the evidence on the part of plaintiff, defendants interposed a demurrer thereto, which was sustained by the court, and judgment rendered rendered for defendants. Plaintiff appealed.

We think it well settled in this state that, in case plaintiff's evidence shows that he is prima facie entitled to recover, he is entitled to have his case go to the jury, and that, under such circumstance, it is error to sustain a demurrer to the evidence; but, on the other hand, it is equally as well settled that if the evidence fails to show him prima facie entitled to recover, and a demurrer thereto is interposed by defendant, it should be sustained. As to the evidence in this case we shall have something to say later on.

Plaintiff insists that if defendants desired to show that the sale of the property and the bill of sale thereto from Kraemer to him was fraudulent as to the latter's creditors, and that he (plaintiff) was a party to the fraud, it was the duty of defendants to have set up those facts by answer, and that the trial court should have so held. Even if this position be correct (which we by no means concede), the position in this case is untenable, for the very obvious reason that the court was given no opportunity to pass upon that question, and did not, in fact, pass upon it. No evidence was offered by defendants, and no point is made on any evidence elicited by them from plaintiff's witnesses on cross-examination. There was no action of the trial court to which any objection was made and exception saved which is urged before this court, and therefore nothing to be passed upon with respect to the sufficiency of the It was good until declared other

wise by the court.

The question then recurs as to whether the evidence showed the sale to be fraudulent as

to the creditors of Kraemer. question as to his indebtedness and insolvency at the time plaintiff claims to have purchased the property, but it is insisted by him that he was a bona fide purchaser, and that under section 5178, Rev. St. 1889, he

was entitled to a reasonable time after his purchase within which to take possession of the property, its nature and condition being considered, which was a question that should have been submitted to the jury, under proper instructions. What is "reasonable time" is a question of fact when the evidence is conflicting as to the character and condition of the property, and the length of time necessary for its delivery, and it is only where the facts are undisputed, and the evidence substantially all one way, that it becomes a question of law. The undisputed evidence in this case is that Kraemer remained in possession of the property for two days after the sale to plaintiff, before it was seized by the sheriff under the attachment, and that the same sign was kept up as before, although the property was of such a character that but a very short space of time would have been necessary for its delivery, and such a change of possession as contemplated by the statute. In such circumstances it has been held that actual possession of the property must not only be taken within a reasonable time after the sale, but that the change. when taken, must be continuous, open, and notorious. Claflin v. Rosenberg, 42 Mo. 439; Burgert v. Borchert, 59 Mo. 80; Lesem v. Herriford, 44 Mo. 323; Stern v. Henley, 68 Mo. 263. In Wright v. McCormick, 67 Mo. 426, it was held that, when it is shown from the undisputed facts in proof that the change of possession is not in compliance with the mandates of the statute, it should be declared fraudulent by the court as a matter of law. That case was followed and approved in Stewart v. Bergstrom, 79 Mo. 524. There was no such change of possession of the property in this case, as required by statute, and the court correctly held the sale to be fraudulent as a matter of law. Finding no reversible error in the record, the judgment is affirmed.

GANTT, P. J., and SHERWOOD, J., con

cur.

HILL et al. v. KINGSLAND. (Supreme Court of Missouri, Division No. 2. Dec. 17, 1895.) APPEAL-REVIEW.

A judgment in a law action tried by the court, where no objections were made and exceptions saved to any ruling of the court, and no instructions were asked or given, will not be reviewed.

Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Ejectment by William P. Hill and others

Ejectment for the possession of the following described tract or parcel of land, lying in the city of St. Louis and state of Missouri: "Twenty-five feet of the south end of lot No. 20 of George Townsend's subdivision of West Cabanne Place, of city block 4,539. Said lot having a length of one hundred (100) feet by a width of twenty-five (25) feet, and being bounded on the north by property of defendant. south by Clemens Place, east by lot nineteen (19), and west by lot twentyone (21) of said block." The defenses set up in the answer are: First, a general denial; second, plea of the statute of limitations; third, estoppel, predicated on the ground that the land was dedicated to the public by L. D. Cabanne, under whom both parties claim. The cause was tried by the court, a jury being waived. There was judgment for defendant, from which plaintiffs appealed.

W. H. Clopton, for appellants. Jos. E. Merryman, for respondent.

BURGESS, J. (after stating the facts). No objections were made and exceptions saved by plaintiffs to any ruling of the court below during the trial of the cause, nor were any instructions asked or given; and, the action being one at law, there is nothing before us for review. It has been uniformly held by this court that under such circumstances it will not undertake to review the judgment of the trial court, holding the finding and judgment to be conclusive on us. Thies v. Garbe, 88 Mo. 146; Parkinson v. Caplinger, 65 Mo. 290; Harrison v. Bartlett, 51 Mo. 170; Wilson v. Railroad Co., 46 Mo. 36; Gould v. Smith, 48 Mo. 43; Douglass v. Orr, 58 Mo. 573; McHugh v. Meyer, 61, Mo. 334; Hammons v. Renfrow, 84 Mo. 332. It is impossible to tell upon what theory the case was decided. The judgment is affirmed. GANTT, P. J., and SHERWOOD, J., con

cur.

BARRETT v. BAKER et al. (Supreme Court of Missouri. Dec. 10, 1895.) VENDORS AND PURCHASERS-NOTICE-EQUITABLE LIEN-BONA FIDE PURCHASERS.

A stranger to the title, at the landowner's request, executed to him a deed of trust on the land, which was recorded, to secure a note payable to the owner, who negotiated the note. Held, that a purchaser of the land, having actual knowledge of the existence of the deed of trust, who merely required the owner to enter a satisfaction thereof of record, without the production of the note or deed of trust, took with notice of and subject to the equitable lien of the assignee of the note. Brace, C. J., and Gantt, J., dissent.

In banc. Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Action by George W. Barrett against