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to Peter Beard, the appellee. The second execution issued on said judgment against Callaway & Wilson as a firm and against Henry B. Wilson individually on October 29, 1894, and under it the lot in controversy in this suit was levied upon, and on December 4, 1894, the same was sold by the constable, at which sale the appellant, G. F. Hamilton, became the purchaser. The appellee, Peter Beard, brought this suit of trespass to try title against G. F. Hamilton on December 12, 1894, to recover said lot. Hamilton filed a plea of not guilty, and the case went to trial on the 16th of January, 1895, before the court without a jury, and the court gave judgment that Peter Beard recover the lot in controversy from G. F. Hamilton, to which judgment he excepted, and gave notice of appeal, and on January 23, 1895, he filed his appeal bond and assignments of error, and brought the case to the court of appeals.

We find the following as the facts shown by the record:

"Plaintiff read in evidence without objection a deed from H. B. Wilson and his wife, Sue R. Wilson, to Peter Beard, dated October 15, 1894, conveying to Peter Beard, in consideration of $125, all of lot number eight (8) in block H in the Bouldin addition to the city of Austin, Tex., as shown by Plat Book No. one (1), page No. seventy-one (71), on file in the office of the county clerk of Travis county, Texas." Here plaintiff rested his cause.

Defendant's evidence was as follows: "Defendant read in evidence the following judgment rendered in the justice court of precinct No. 3, Travis county, Texas, in cause No. 893, which judgment was as follows: 'George F. Hamilton vs. Callaway & Wilson. No. 893. This cause being called for trial on the 30th day of November, A. D. 1886, the plaintiff appeared in person and by attorney, and announced "Ready." The defendant Henry B. Wilson, of the above firm of Callaway & Wilson, having been served with citation in this cause, appeared in person and by his attorney, and says nothing in bar of plaintiff's action, but admits and consents that judgment may be entered against the defendants in this cause for the sum of $73.84, besides all costs of suit; and it appearing to the court that said amount of $73.84 is due plaintiff at this date from the defendants, after allowing all offsets to plaintiff's demands, it is therefore ordered and decreed by the court that the plaintiff, George F. Hamilton, do have and recover of and from defendants, Walter P. Callaway and Henry B. Wilson, comprising the firm of Callaway & Wilson, and against the defendant Henry B. Wilson individually, for the sum of seventy-three and 84/100 ($73.84) dollars, with interest thereon from this date until paid at the rate of eight per cent. per annum, besides all costs of suit, and for all which execution may issue

against said parties and be levied upon the property of said firm, or upon the individual property of the said Henry B. Wilson, who was served with process in this cause.'

"(2) Defendant next read in evidence the first execution issued in the above case of George F. Hamilton vs. Walter P. Callaway and Henry B. Wilson, No. 893, from the justice court of precinct No. 3 of Travis county, Texas, issued on the 11th day of December, 1886, by Fritz Tegener, justice of the peace of precinct No. 3 of Travis county, Texas, for the sum of $73.84 and costs of suit, and the return of the constable thereon, which showed that the execution came into his hand on the same day it was issued, and returned 'Not satisfied.'

"(3) Defendant next read in evidence the citation issued by the justice of the peace on November 15, 1886, in the above cause, No. 893, of George F. Hamilton vs. Callaway & Wilson, which citation commanded the officer to summons Henry B. Wilson, of the firm of Callaway & Wilson, composed of Henry B. Wilson and Walter P. Callaway, who were partners doing business in Travis county, Texas, under the firm name of Callaway & Wilson, to be and appear be fore the justice of the peace at his office in Travis county, Texas, on the last Monday in November, 1886, to answer the complaint of George F. Hamilton in an action of debt on an open account for $87.40; and defendant also read in evidence the return of the constable on this citation, which showed that the same was executed by the constable on the 17th day of November, 1886, by delivering to the defendant H. B. Wilson in person, on that day, a true copy of the citation.

"(4) Defendant next read in evidence the abstract of the judgment as recorded in Book No. 2, page 333, of the Judgment Lien Records of Travis county, Texas, in above cause, No. 893, which was as follows:

""The State of Texas, County of Travis. I, J. A. Stuart, justice of the peace, precinct No. 3, within and for the county and state aforesaid, do certify that in said justice court, Fritz Tegener being then the justice of the peace, on the 30th day of Nov., 1886, in the cause No. 893, of George F. Hamilton, Plaintiff, vs. Walter P. Callaway and Henry B. Wilson, Defts., the said George F. Hamilton recovered a judgment against the said Callaway & Wilson for the sum of seventythree and 84/100 dollars, with interest at the rate of eight per cent. per annum, and all costs of suit, amounting to $4.25; the whole amount whereof is due and unpaid. In witness whereof I hereto place my hand, this 27th day of June, A. D. 1890. J. A. Stuart, Justice of the Peace, Precinct No. 3, Travis County, Texas.

"Filed for record at 12:45 p. m., June 28, 1890, and recorded the 28th day of June, A. D. 1890, at 1:05 o'clock p. m.'

"(5) Defendant next read in evidence the

original abstract of above judgment in case No. 893, which was recorded in Judgment Lien Record Book No. 2, page 333, and from which said record was made, and which is an exact copy of the above set out judgment. Defendant also read in evidence the certificate thereto attached, made by Frank Brown, county clerk of Travis county, Texas, which showed that said abstract of judgment was filed for record in his office on the 28th day of June, A. D. 1890, at 12:45 p. m., and duly recorded and indexed the 28th day of June, A. D. 1890, at 1:05 o'clock p. m., in the Records of said County of Travis, Texas, in Book No. 2, page 333.

"(6) Defendant next read in evidence from Volume 1 of the Judgment Lien Index Record of Travis County, Texas, the following index, recorded in the alphabetical list of W's, which was as follows, to wit: No. Plaintiff. Book. Page 893. Wilson, H. B., et al. Geo. F. Hamilton. 2

Defendant.

333

333

"Defendant also read in evidence from the said Volume 1 of the Judgment Lien Index Record of Travis County, Texas, the following index, recorded in the alphabetical list of C's, which was as follows, to wit: No. Defendant. Plaintiff. Book. Page 893. Callaway, W. P., et al. Geo. F. Hamilton. 2 "(7) Defendant next read in evidence the second execution issued in said cause No. 893, issued on the 29th day of October, 1894, against Walter P. Callaway and Henry B. Wilson, composing the firm of Callaway & Wilson, and against Henry B. Wilson individually, for the sum of $73.84, bearing 8 per cent. interest per annum, besides all costs of suit, which execution commanded the officer to make said amounts out of said firm, or out of the said Henry B. Wilson individually; and the said execution was issued in favor of George F. Hamilton, and it fully described the judgment.

"(8) Defendant next read in evidence the return on the said last-named execution, which return showed that the constable received the execution on the 1st day of November, 1894, and executed it on the 1st day of November, A. D. 1894, by levying on lots Nos. 7 and 8 in block H of Bouldin addition to the city of Austin, Travis county, Texas, according to the plat of said addition recorded in Plat Book 1, page 71, in the office of county clerk of Travis county, Texas, and on the 1st day of November, A. D. 1894, by advertising the same to be sold before the courthouse door of Travis county, Texas, on the first Tuesday in December, A. D. 1894, it being the 4th day of December, A. D. 1894, by having notice of time, place, and terms of sale published in the English language once a week for three consecutive weeks immediately preceding such sale in the Austin Daily Statesman, a newspaper published in said county; and on the said first Tuesday in December, A. D. 1894, before the courthouse door, as aforesaid, and within the hours prescribed by law for con

stable sales, sold said premises at public vendue to G. F. Hamilton for the sum of $70.00. he being the highest bidder for said property, and it further showed that the cost that accrued by virtue of the levy and sale was $16.15, and the execution was returned 'Not satisfied.'

"(9) The defendant next read in evidence the deed of the said constable, J. M. Davis, dated December 4, 1894, conveying to George F. Hamilton, by virtue of said constable sale, in ordinary form, lots No. 7 and 8 in block H of Bouldin addition to the city of Austin, Travis county, Texas, according to the plat of said addition recorded in Plat Book 1, page 71, in the office of the county clerk of Travis county, Texas, said lots each being 502 feet by 150 feet, which deed was properly acknowledged and recorded in Travis county, Texas, on the 7th day of December, 1894, in the Sheriff's Deed Record of said County of Travis in Book No. 110, page 48." Here defendant rested his case.

Plaintiff, in rebuttal, offered and read in evidence from the above-mentioned Volume 1 of the Judgment Lien Index Record of Travis County, Texas, the following index, recorded in the alphabetical list of H's, as follows, to wit:

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The appellant's case depends upon the validity of his judgment lien. The judgment. rendered by the justice court was against the firm of Callaway & Wilson and against Henry B. Wilson, a member of the firm. The abstract of the judgment, which was certified by the justice of the peace, and which was recorded in the judgment lien records,. does not show that a judgment was obtained against the firm or copartnership of Callaway & Wilson, or against H. B. Wilson individually. For this reason we hold that the record did not create a lien. Anthony v. Taylor, 68 Tex. 405, 4 S. W. 531; Gullett Gin Co. v. Oliver, 78 Tex. 184, 14 S. W. 451. Judgment affirmed.

DENECAMP et al. v. TOWNSEND.1 (Court of Civil Appeals of Texas. Oct. 2, 1895.)

APPEAL-STATEMENT OF FACTS-MOTION TO STRIKE -SUBROGATION-VENDOR'S LIEN.

1. A motion by appellee to strike out appellant's brief, because of an imperfect or erroneous statement of facts, will not be entertained.

2. An appellee who objects to the appellant's statement of facts should set forth his objections in his brief, and upon a submission of the case the statement of appellant will be investigated to ascertain whether the objections are well founded.

1 Rehearing denied.

On the Merits.

A vendor's lien note, secured on maker's homestead, having been indorsed by the payee to a third party, plaintiff, at the instance of the maker and payee, paid the note when due, and in lieu thereof took another note for a like amount, secured on the same premises. Held, that plaintiff, though he had notice that the property was a homestead, would be subrogated to the rights of the indorsee, so that he could enforce the note against the homestead, if such indorsee was a bona fide purchaser for value.

Appeal from district court, Bexar county; S. G. Newton, Judge.

Action by R. K. Townsend against Adolph Denecamp and another. From a judgment for plaintiff, defendants appeal. Reversed.

Clark, Summerlin & Fuller, for appellants. Vernor & Robinson, for appellee.

On Motion of Appellee to Strike Out Appelpellants' Brief.

FLY, J. Appellee files a motion to strike out the brief of appellants, alleging that their statement of the facts of the case is incorrect, and not supported by the statement of facts. A number of alleged erroneous statements are specified, and to verify the same would require a thorough examination of the statement of facts, and entail upon the court an. amount of labor that could never have been contemplated or intended in the adoption of the amended and new rules. The object in passing rules is uniformity in practice; a clear presentation of the issues; aid to the courts in arriving at correct conclusions and expediting business. Whether rule 30 will assist in attaining these ends or not, that must have been its object. If motions like the one we are contemplating could be entertained, the rule will be an obstruction, rather than an aid, in judicial investigation. It is clear that the rule does not contemplate any such course, for it provides a way to correct errors when the appellee may be dissatisfied with the statement made by appellant in his brief. It provides: "This statement will be accepted by the court, as true, unless the appellee or defendant in error shall object to it and point out wherein such statement is incorrect, when the court will examine the record to ascertain which statement is sustained by the record." The object of the new rule, it would seem, is to obviate the necessity of an investigation of the statement of facts by the court when there is no dispute about the facts. It is true that in the same rule authority is given the court to strike out briefs that do not comply with the rules, but it does not contemplate the striking out of a brief on account of an imperfect or erroneous statement of the facts, upon the motion of the appellee or defendant in error. The proper practice would be to set forth the objections to the statement in the brief of appellee, and upon a submission of the case the statement of facts will be investigated to ascertain whether or not the objections are well founded. In the case of flagrant violations of the rules in re

gard to the statement of the facts, or in any other particular, the court will of its own motion take such action as may be necessary. The motion to strike out the briefs is overruled.

On the Merits.

(Nov. 6, 1895.)

JAMES, C. J. The judgment, we think, should be reversed. The case is one in which we should not refer to the facts further than is necessary to indicate the reasons for the reversal. There are two transactions, both of which may be material in arriving at the rights of the parties. In reference to the transaction whereby the appellee Townsend became an interested party, there was some evidence, which it was proper for the jury to consider, upon the issue of whether or not he had notice of the fact of homestead when he advanced his money. The other transaction, by which Inselman became the holder of the vendor's lien note that had been given by Wahrmund to Denecamp, and which note had been indorsed to Inselman by Denecamp, and in Wahrmund's possession when Inselman obtained it, may have come into Inselman's hands as an innocent purchaser for value. If it did, it is unquestionable that In selman could have enforced it against the homestead; and it is also clear that Townsend, even if he had notice of the fact that the note had been given in fraud of the homestead, could have purchased it from Inselman, and been entitled to enforce it. The evidence is that, when this note became due, Townsend, at the instance of Wahrmund, the maker of the note, and Denecamp, the payee, paid it off, taking in lieu of it another note for like amount, purporting to be secured by a vendor's lien on the same premises. Standing alone, this latter transaction may not have been valid, but if Inselman had become vested with a right to enforce the note he bought, as a vendor's lien on the property, it is our opinion that Townsend, when his money went to pay off the note, was in equity subrogated to the rights of Inselman. If the evidence had made it clear that Inselman was an innocent purchaser of the note, and took it on the faith that the lien existed, we should not hesitate to affirm the judgment, because it would then be immaterial whether or not Townsend had notice that the property was a homestead. The evidence shows that Inselman gave value for the note, and he testified that he knew nothing about the matter of homestead; but, from all the testimony, we are not able to say, as matter of law, that he was imposed upon by the pretended lien. We think there were facts and circumstances which made it proper to submit, also, this question to the jury. We conclude, therefore, that the issue of Inselman's good faith should be submitted to the jury, and, if found adversely, that then the case will depend on the question of good faith on the part of Townsend. Townsend. Reversed and remanded.

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1. In an action against a city, allegations in the petition that defendant unlawfully caused the gravel to be excavated from the streets around plaintiffs' land and from a portion of the lots, and hauled the same away, for the purpose of grading the streets in other parts of the city, are insufficient in not showing that the gravel taken was below the grade of the street.

2. Under the constitutional provision that no person's property shall be taken, "damaged,' or destroyed for or applied to a public use without adequate compensation being made, where a city, in grading streets, leaves large and dangerous holes in the streets, it is liable to owners of abutting lots for damages, if any, to such lots.

3. Where a city, in grading streets, leaves large and dangerous holes in the streets, and also in abutting lots, the measure of damages is the market value of the lots immediately before and immediately after the excavations were made.

4. In an action against a city, allegations "that by reason of the excavations made on plaintiffs' property and in streets contiguous thereto plaintiffs have never been able to find a purchaser therefor," are bad, since such damages are speculative, and too remote.

5. In an action against a city for damages to lots caused by holes left in grading a street on which they abut, the opinion of a witness as to the necessity of grading such street is inadmissible.

The

the streets around their land and from a portion of the lots in said blocks, and hauled the same away for the purpose of filling up and grading its streets in other parts of the city, and that by reason of the large amounts of gravel unlawfully and negligently taken and hauled from their property they had been damaged in the sum of $2,000. This allegation of damages was sought to be established by proving the value of the gravel taken from the lots and contiguous streets. The foregoing allegations were specially excepted to by the defendant upon the ground that they state no cause of action. overruling of this exception is assigned as error. Although the fee to a street may be in the adjoining lot owner, a city grading the street has the right to take from any portion of it the gravel or other material situated above the grade line, and use the same in improving or repairing that or any other of its streets, and without compensation to the owners of the property abutting on the portion of the street from whence the gravel or other material may be taken. 2 Dill. Mun. Corp. (4th Ed.) § 656a, note; Id. § 687, note 2; Id. §§ 688, 689, and notes. And it has been held that if the city does not desire the soil for the purpose of filling in other streets, and the adjoining owner does not remove it, the city may sell and dispose of it in any way it may deem proper. Id. § 689; Griswold v. Bay City, 35 Mich. 452. The petition does not show that the gravel was taken below the grade level of the street, nor that it was not done in the course of

Appeal from district court, Bexar county; grading the street. In the absence of such S. G. Newton, Judge.

Action by Thomas W. Mullaly and others against the city of San Antonio to recover damages to lots caused by excavations on the same and in the streets contiguous thereto, and for the value of gravel taken therefrom by defendant. From a judgment for plaintiffs, defendant appeals. Reversed.

R. B. Minor, for appellant. C. A. Keller, for appellees.

NEILL, J. This suit was brought by the appellees against the appellant to recover damages for alleged injuries to certain blocks of land situated within the corporate limits of the city by reason of alleged excavations upon the same and in streets contiguous thereto, and for the value of gravel alleged to have been carried away by appellant from said blocks and streets. The city of San Antonio answered by special exceptions and by specific denials of the material allegations in the petition. The cause was tried before a jury, and resulted in a judgment of $2,500 in plaintiffs' favor, from which this appeal is prosecuted.

The plaintiffs alleged in their petition that the defendant had unlawfully and negligently caused the gravel to be excavated from

1 Rehearing denied.

allegations, it will not be inferred that the taking was wrongful. We are of the opinion, therefore, that the exception to the part of the petition alleging damages for removing gravel from the streets and using it in grading another should have been sustained, and that the error of the court in overruling it was prejudicial to the appellant.

The petition also states "that defendant unlawfully and negligently caused the gravel to be excavated from said streets and from a portion of the lots in said blocks, and hauled the same away for the purpose of filling up and grading its streets in other parts of said city; that said excavations have been made in such manner as to leave large and dangerous holes in said streets and lots, several feet deep, which were frequently filled with stagnant water, etc.; that by reason of the excavations so unlawfully and negligently made as aforesaid by defendant upon plaintiffs' property and the surrounding streets, and the dangerous and impassable condition in which streets have been left by said defendant, the market value of plaintiffs' property has greatly depreciated, to the further sum of ten thousand dollars." Defendant's fifth special exception is: "Defendant specially excepts to said petition in so far as plaintiffs therein seek to recover damages by reason of defendant's

having made and left excavations and holes in certain of its streets, because said petition contains no allegations of negligence on the part of defendant in so doing, and because defendant has a legal right to excavate and leave excavations in its streets if not negligent in so doing." The appellant complains of the court's overruling this exception. The contention of appellant, as set out in its proposition, is: "The defendant city is not liable in damages to plaintiffs for injury to their property resulting from excavating or cutting down adjoining streets to proper grade line (of which the city is the exclusive judge) in the course of grading the streets of the city, in the absence of negligence on its part in the manner of making the excavations; nor in such case is it liable for leaving excavations and holes, though dangerous, in the streets for a reasonable time, in the absence of negligence on its part in so doing." If it should be conceded that this proposition is correct, we hardly think the portion of the pleading complained of is obnoxious to it; for the pleading alleges that the acts complained of were unlawfully and negligently done, by reason whereof the streets bounding plaintiffs' lots were left in a dangerous and impassable condition, to the great damage of their property. If such damage through negligence were the sole ground of appellees' right of recovery, we think negligence is sufficiently averred. But we cannot assent to the proposition that in this state damages to one's property, caused by the grading by a city of its streets adjacent, are not recoverable. Whatever may be the law in those states whose constitutions provide that private property shall not be taken for a public use without adequate compensation being first made to the owner, the law in Texas and in other states whose organic law, like ours, prescribes that "no person's property shall be taken, damaged, or destroyed for or applied to a public use without adequate compensation being made," is that, if the property is "damaged," though there is no actual taking, compensation for such damages can be recovered. Cooper v. City of Dallas, 83 Tex. 239, 18 S. W. 565; City of Ft. Worth v. Howard (Tex. Civ. App.) 22 S. W. 1059; Lewis, Em. Dom. § 223; O'Brien v. City of Philadelphia (Pa. Sup.) 24 Atl. 1047; City of Bloomington v. Pollock (Ill. Sup.) 31 N. E. 146; Brown v. City of Seattle (Wash.) 31 Pac. 314. In the cases from this state, cited above, it is held that an abutting owner is entitled to damages for change of street grade, although it had never before been established, made in improving the street and placing it on proper grade. The measure of damages, as was held by the trial court, in such cases is the difference between the market value of the property immediately before and immediately after the acts causing the injury. If the damage results from the projection of work in the street on its established grade, the inv.33s.w.no.2-17

jury is, of course, permanent. But if, in the progress of grading the street, it is left unfinished, and in a dangerous condition, such condition, if it affects the value of abutting property, if permitted by the city to continue for a considerable length of time, may be considered by the jury in estimating the value of the property before and after the acts causing the injury. It follows from the rule as to the measure of damages that the court did not err in admitting evidence to prove the value of the property immediately before and immediately after the excava tions were made. If the city contemplated completing the grading commenced by the excavations within a reasonable time, and if, when finished, their alleged dangerous condition would have been obviated, it was incumbent upon the city to prove it in diminution of damages.

We think that the allegation in the petition "that by reason of the excavations made on plaintiffs' property and in streets contiguous thereto plaintiffs have never been able to find a purchaser therefor" is speculative in its nature, and too remote to constitute an element of damages; and that the exception to the allegation should have been sustained.

We do not think that the opinion of the witness that there was no necessity for grading the streets adjoining plaintiffs' property "except at the margins" was admissible in evidence. It was the province of the city to pass upon the necessity of grading the street, and its exercise of the authority cannot be called in question, except in an action where an abuse of such authority is alleged and made the basis of an action.

On account of the errors indicated, the judgment of the district court is reversed, and the cause remanded.

JAMES, C. J., entered his disqualification, and did not sit in this case.

HICKMAN et ux. v. HOFFMAN.1 (Court of Civil Appeals of Texas. Nov. 27, 1895.)

VENDOR AND PURCHASER-BONA FIDE PURCHASERS -EFFECT OF POSSESSION AS NOTICE.

1. One who buys land from a bona fide purchaser takes it free from existing claims, though he may have had notice thereof at the time he purchased.

2. Where a vendee of land, by deed from husband and wife, conveyed it to plaintiff, who examined the title papers, and was ignorant of any fraud practiced on the wife, the fact that the vendors were in possession at the time plaintiff purchased was insufficient to charge him with notice, he having been told that the land would shortly be vacated.

Appeal from district court, Bosque county; J. M. Hall, Judge.

1 Rehearing denied.

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