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Action by R. Hoffman against P. T. Hickman and wife to try title. From a judgment for plaintiff, defendants appeal. Affirmed.
S. H. Lumpkin, for appellants. Lockett & Kimball, for appellee.
FLY, J. Appellee sued Hickman and wife to try title to two tracts of land, one containing 400 acres of land, the other 1,14212 acres, in Bosque county. It was alleged that 50 acres were in cultivation, and there was a claim pleaded of $5 per annum per acre rents for the cultivated land and 50 cents per annum per acre for the 1,49212 acres remaining. It was answered that in January, 1893, appellants had recovered a judgment against one J. A. Story, through whom appellee claimed the 1,14212-acre tract, for $2,750, and other sums in the hands of referees, and that the basis of said judgment was part of the purchase money for said 1,14212 acres of land, and that the judgment was still in full force and effect, and that appellee had full knowledge of the judgment. It was further answered that appellee claimed the 400-acre tract through a deed from C. Voss; that the said tract was the homestead, and separate property of the wife, S. D. Hickman; that when she signed and acknowledged the deed conveying the land to Voss she did so under the representation that $4,800 cash was to be paid to her or her husband, and a debt and lien for $2,200 assumed, for the land, and that she instructed her husband not to deliver the deed until that consideration was paid; that the debt and lien for $2,200, which was a charge against the 400 acres of land, was not paid by said Voss. Fraud on the part of the husband was alleged, and that appellants had never surrendered possession of the premises, but were in possession and holding the same was alleged, and that Voss and appellee had full notice of both the fraud and the possession. There was a verdict for appellee for the land and for $997 for rents for 2 years, 7 months, and 28 days, at the rate of $2 per acre per annum on 140 acres in cultivation, and $100 per annum for the remaining 1,49212 acres.
We draw the following conclusions from the statement of facts: On December 5, 1890, P. T. Hickman and his wife, S. D. Hickman, by a deed which was duly acknowledged, conveyed to J. A. Story the 1,14212-acre tract of land, which deed was recorded on December 6, 1890. On January 21, 1891, the same land was by warranty deed conveyed by J. A. Story and wife, Mary Story, to C. Voss, which was duly acknowledged on same day, and filed for record on January 23d, and on January 24, 1891, duly recorded. On January 16, 1891, appellants conveyed the 400-acre tract in controversy to C. Voss, and the deed of conveyance was duly acknowledged and recorded, the recitals showing a consideration of $4,800, and the assumption of the payment of a debt of $2,200 to J. & R. L. Brown,
secured by a mortgage on the said land. On October 3, 1891, both tracts were conveyed by deed properly acknowledged and recorded from C. Voss to L. Voss, and on January 5, 1892, the same land was conveyed by L. Voss to R. Hoffman, the appellee. Appellee was a bona fide purchaser of the land in controversy without notice of any claim that appellants, or either of them, may have had to the land; and paid a full consideration for the same. Both C. Voss and L. Voss paid the full purchase money for the land, in good faith, without notice of any equities held by appellants.
The first assignment claims error in the action of the court in sustaining a special exception to that part of the answer setting up the judgment against J. A. Story, and asking a foreclosure of the vendor's lien on the 1,14212 acres of land. We are of the opinion that the action of the court was not erroneous. The copy of the judgment against Story, attached as an exhibit to the petition, shows that the vendor's lien was not fore. closed against the land, and the judgment could have had no possible bearing upon the matters in issue before the court. If it had been shown that appellee was cognizant of the recitals in the judgment, it would have affected him with notice only that appellants had a claim aganist J. A. Story for a money demand, and that certain money in the hands of Koss, Barry, and N. Massey was a part of the proceeds of the wool from sheep in controversy, and that appellants were entitled to it. The petition, answers, charge, and judgment in the case of the appellants against Story were all introduced in evidence, and an inspection of the original and supplemental petitions show that appellants were not seeking in the Story suit to foreclose a vendor's lien, but to recover certain trust funds in his hands arising from the sale of lands and from certain sheep. Had the action of the court been erroneous, it could not have injured appellants, as the testimony fails to support the allegations in the petition in this cause. The authorities cited have not the slightest applicability to the case presented by the record. C. Voss purchased the land from Story long before the suit was instituted by Hickman and wife against Story, and, whatever may have been the allegations in the petitions or the recitals in the judgment, they could not have affected his status of innocent purchaser, and a good title would have passed from Voss to Hoffman, even though the latter had full notice of the judgment against Story. Wallace v. Campbell, 5+ Tex. 90.
The second assignment of error is without merit. If it were shown that the deed executed by Mrs. Hickman to C. Voss was procured by fraud on the part of her husband, the evidence clearly indicates that neither Voss nor appellee had any knowledge of or participated in the fraud, and it is not an
open question in this state that, having given 0. T. Holt and Walton & Hill, for appelan adequate consideration for the land, they lant. Fisher & Townes, Geo. F. Pendexter, would not be affected by the fraud. Hartley
Hartley and A. S. Burleson, Dist. Atty., for the State. v. Frosh, 6 Tex. 208; Shelby V. Burtis, 18 Tex. 644; Wiley v. Prince, 21 Tex. 637; Wil- KEY, J. This is a proceeding, in the naliams v. Pouns, 48 Tex. 146; Kocourek v. ture of a quo warranto, in which a judgMarak, 54 Tex. 205; Davis v. Kennedy, 58 ment was rendered forfeiting the charter of Tex. 517; Pierce v. Fort, 60 Tex. 464; Webb the City Water Company. There is no statev. Burney, 70 Tex. 322, 7 S. W. 811; Stall- ment of facts. The action of the trial court ings v. Hullum, 79 Tex. 421, 15 S. W. 677. in overruling appellant's plea in abatement, The testimony showing that the Hickmans urging that a receiver previously appointed had by regular transfers conveyed the land, by another court, and in possession of apand that appellee had no notice of any equi- pellant's tangible property, was a necessary ties of Mrs. Hickman that might attach to party to this suit, is the only question about the land, and being ignorant of any fraud which any member of this court had any that may have been perpetrated upon her,
doubts. We certified that question, and the possession of the land by the Hickmans supreme court held that said receiver was would not be sufficient to fix notice upon not a necessary party. 32 S. W. 1033. On appellee. Hurt v. Cooper, 63 Tex. 362; Hei- the other questions involved, the court bedenheimer v. Stewart, 65 Tex. 321; Love v.
low filed conclusions of fact and law. The Breedlove, 75 Tex. 649, 13 S. W. 222. If it former are acquiesced in by the parties and be held that the office of possession in the adopted by us. The latter are disputed by matter of notice is to put the purchaser upon
appellant, but we think they are correct, and inquiry, still it has no effect in determining
here insert them as expressing our views, what the inquiry shall be, or to whom it shall
viz.: be addressed. Eylar v. Eylar, 60 Tex. 315.
1. That, while it is true the said City WaAppellee not only examined the title papers
ter Company comes within the class denomfrom the Hickmans, but inquired as to the
inated by our statutes as private corporapossession of the land, and was told that a
tions, its business and the purposes for man was on it who would leave in the spring.
which it was incorporated are of such public It was in evidence that Voss permitted Hick
character as to make it a quasi public corman to remain on the land as his tenant.
poration, subject to be governed by the rules We are of the opinion that the allegations
of law applicable to such corporations. Fos
ter v. Fowler, 60 Pa. St. 27; Lumbard v. do not sustain the amount found by the jury for rents, and the appellee, having signified
Stearns, 4 Cush. 62; Burden v. Stein, 27 Ala. in his brief his willingness to remit any ex
104; Kane v. Mayor, etc., of Baltimore, 15
Md. 240; Gardner v. Village of Newburgh, cess that might appear to this court, a remittitur of $463 will be entered, and the judg
2 Johns. Ch. 162; Wayland v. Commissioners,
4 Gray, 500; Haugen v. Water Co. (Or.) 28 ment, as reduced, affirmed.
Pac. 246; Mor. Priv. Corp. $8 1114, 1129; 1 Beach, Corp. $$ 2, 3; Waterworks v. Schottler, 110 U. S. 354, 4 Sup. Ct. 48; Gibbs v.
Gas Co., 130 U. S. 396, 9 Sup. Ct. 553; City CITYWATER CO. V. STATE.
of Rushville v. Rushville Natural Gas Co. (Ind. (Court of Civil Appeals of Texas. Dec. 11,
Sup.) 28 N. E. 856; Rev. St. arts. 629, 630; 1895.)
Acts 22d Leg. Assem. p. 172.
2. That the failure to elect directors or QUASI PUBLIC CORPORATIONS-WATER COMPANIES -FORFEITURE OF CHARTER.
officers, or hold any meetings of directors or 1. A corporation organized to supnly a city
officers, or perform any corporate act, for with water is a quasi public corporation, sub
nearly eight years, and the attempted sale ject to the rules of law applicable to such cor- and surrender of all its property to another porations.
corporation, rendering itself incapable of per2. The failure of a water company to elect directors or officers, or to hold any meetings, or
forming its corporate duties, must be regardto perform any corporate act, for nearly eight ed as willful violations of corporate duties, years, and an attempt to sell and surrender all and sufficient grounds to entitle the state to. its property to another corporation, is a willful a forfeiture of its charter. State v. Southviolation of corporate duties, entitling the state to demand a forfeiture of its charter.
ern Pac. Ry. Co., 24 Tex. 131; 4 Am. & Eng. 3. The fact that another company is fur
Enc. Law, 304; Railway Co. v. Morris, 67 nishing the people with water, as the pretended Tex. 692, 4 S. W. 156; East Line & R. Co. y. successor to such corporation, will not deprive State, 75 Tex. 434, 12 S. W. 690. the state of the right to demand a forfeiture.
3. The fact that the Austin Water, Light Appeal from district court, Travis county; & Power Company is furnishing the citiJames H. Robertson, Judge.
zens of Austin and vicinity with water, as. Proceedings, in the nature of a quo war- the pretended successor to the City Water ranto, by the state of Texas to forfeit the Company, cannot be held to deprive the state charter of the City Water Company. From of the right to forfeit the charter of the City a judgment of forfeiture, defendant appeals. Water Company for willfully failing to perAffirmed.
form its corporate duties, and willfully attempting to sell all its corporate property, , out qualification, the general rule that the and delivering the possession of same to the hirer of a horse for one purpose or journey, pretended purchaser, which disabled it to who deviates from the bailment contract by perform the duties it owed to the public. using it for a different purpose or on a longer
4. That under the facts of this case, the journey, is liable, in case of accident, for its charter of the City Water Company ought loss, though not otherwise at fault. Sims v. to be declared forfeited, and judgment will Chance, 7 Tex. 561; Mills v. Ashe, 16 Tex. be rendered for the plaintiff accordingly. 301; Willis v. Harris, 26 Tex. 141. In a reNo reversible error has been pointed out, and cent Georgia case, however, somewhat anthe judgment will be affirmed. Affirmed. alogous to this it was held that this rule is
inapplicable, notwithstanding the technical conversion involved in the unauthorized ex
tension of the contemplated journey, if it apSPENCER v. SHELBURNE.
pears that the extra distance did not cause (Court of Civil Appeals of Texas. Nov. 30,
or materially contribute to the injury, and
that the horse died, without other fault of the 1895.)
hirer, after his return with it, within the INSTRUCTIONS-PROVINCE OF JURY
limits of his contract. Farkas v. Powell (Ga.) An instruction, in an action for negligently driving to death a horse
hired of plaintiff, 12 Lawy. Rep. Ann. 397, and cases cited in on the issue of negligence, to find against defend- notes, 13 S. E. 200. This qualification of ant if the "horse became sick or exhausted on the rule, we think, should be observed upthe journey, and the defendant pursued his journey, and the horse died in consequence,
on another trial. We also suggest that a was a charge on the weight of evidence.
finding be had upon both issues, or, at least,
that the verdict indicate the ground of reAppeal from county court, Cooke county; covery. Whether the deviation from the con. J. E. Hayworth, Judge. Action by M. R. Shelburne against J. W.
tract was sufficiently covered by the general Spencer to recover damages for negligently allegation of conversion to warrant the sub
mission of that ground of recovery, we need driving to death a horse hired of plaintiff,
not decide, as this objection may be easily and for conversion. From a judgment for
cured by amendment. It may be, also, that plaintiff, defendant appeals. Reversed.
the qualification suggested should be pleaded Blanton & Wright, for appellant. Claude in avoidance of the alleged technical converWeaver, for appellee.
sion. On account of the error in the charge
first considered, the judgment is reversed and STEPHENS, J. Suit for damages by ap- the cause remanded. pellee against appellant for the latter's negligently driving to death the hired horse of the former. Conversion, also, was alleged. In submitting the issue of negligence, the
HALLEY et al. y. FONTAINE. court instructed the jury to find against ap
(Court of Civil Appeals of Texas. Nov. 28, pellant if the "horse became sick or exhausted
1895.) on the journey, and the defendant pursued | TRESPASS to Try Title – INSUFFICIENT DESCRIPhis journey, and the horse died in conse
TION -- INTERESTS NOT ADVERSE quence" thereof. This was clearly a charge
BONA FIDE PURCHASER. on the weight of the evidence, and the er
1. A petition in trespass to try title to reror assigned thereto requires the judgment
cover “a tract of land” described as "327 acres,
* * * being part of a 640-acre tract” patto be reversed. Whether a man of ordinary ented to a certain person, insufficiently describes prudence, under the same circumstances, the land. would have driven a horse as this one was
2. Nor will such description be cured by refdriven was exclusively a question for the
erence to another deed, in which the description
was as indefinite as that given in the petition. jury, there being no law declaring it to be 3. Though plaintiff and defendants claimed negligence per se to drive a sick or exhaust- an interest of 327 acres
in the same 640-acre ed horse. Authorities need not be cited to .
tract, plaintiff cannot recover, as against de
fendants, in the absence of evidence that each sustain a proposition now so well settled in claimed the same land. this state.
4. Plaintiff, who had actual knowledge of In view of another trial, the charge--also
the existence of a deed of trust, though he was
not chargeable with notice of the record therecomplained of-upon the other issue will be
of, is not a bona fide purchaser, as against denoticed. Appellee contended that appellant fendants, who claimed under said trust deed, took a more extensive journey than was con- particularly as plaintiff's only evidence of title templated when the horse was hired, which
in his grantor was the fact that defendants accontention the evidence of the latter tended
cepted the deed of trust from said grantor, and
as he had only paid a nominal cash consider tion to rebut. The horse took the colic on the re- for his deed, and the services he agreed to renturn part of the journey, within the limits of
der therefor were not, in fact, performed before the contract, and died soon after its return
he knew of defendants' claim. to appellee. Whether or not this was due to Appeal from district court, Galveston counthe alleged extension of the journey beyond ty; William H. Stewart, Judge. the scope of the contract was also a contro- Trespass to try title by Sidney T. Fontaine verted issue. The charge submitted, with- against R. B. Halley, who vouched in George B. Zimpleman, his warrantor. Plaintiff had of the parties in that county.
Second. A judgment, and defendants appeal. Reversed. deed from Dennis Corwin, sheriff of Travis
Appellee sued Halley in trespass to try ti-county, of date February 15, 1878, reciting tle to recover a “tract of land," of which the the execution of the foregoing deed of trust only description given in the original peti- | by Edwards; the refusal of Burke, the trustion is the following: "32742 acres in Gal- tee, to act; the giving of 20 days' notice of veston county, state of Texas, being a part time and place of sale by himself, as sherof a 640-acre tract patented to Charles Bige- iff of said Travis county; a sale by him of low, Foster, Ludlow & Co. by virtue of cer- all said lands at public auction at the southtificate 19/237, and being situated about east corner of block 70 in the city of Austin twenty miles noris west of Galveston city." for cash, and purchase by Foster, Ludlow & Halley vouched in George B. Zimpleman, his Co. at $11.57; and conveying land as dewarrantor. A supplemental petition was scribed in the deed of trust, supra.
The subsequently filed by plaintiff, alleging that southeast corner of block 70 in Austin, was defendants were estopped from denying his by law made the place for sneriff's sales. title because they claimed to derive title Third. Deed, dated April 27, 1878, from F. through a deed of trust from L. E. Edwards, B. Foster to G. B. Zimpleman, conveying all deceased, of date July 18, 1876, and recorded his interest in the lands of the firm of Fosin Galveston county, the book ind page of ter, Ludlow & Co., of which both parties the record being stated, and the supplemen- were members. Fourth. Deed, dated May tal petition states that a copy of this deed 7, 1878, from B. C. Ludlow, the other memand the foreclosure thereof is filed in the ber of said firm, to G. B. Zimpleman, of same cause. A general demurrer to the petition effect as the last above mentioned. Fifth. was overruled, and a trial was had; the Deed, dated February 23, 1893, from G. B. court rendering judgment for plaintiff for the Zimpleman to R. B. Halley, conveying the "title and possession of the land described whole of the 610-acre tract, patented under in the petition, being an undivided three hun- certificate No. 19/237 for $2,346.66, paid in dred and twenty-seven and a half acres of cash and notes for the same amount. Sixth. land, out of a six hundred and forty acre Deed, dated February 23, 1893, from parties tract, patented to George Hull, assignee of proven to be the heirs at law of L. E. EdCharles Bigelow, by certificate No. 19/237, wards to plaintiff, Fontaine, reciting a consituated in Galveston county, and about sideration of $1 paid, and other consideratwenty miles northwest of the city of Gal- / tions, conveying three tracts of land in Galveston." Judgment was rendered, in favor veston county, containing in all 72112 acres, of defendant Halley, against his warrantor, among them the land described as follows: Zimpleman, for purchase money paid, and “32712 acres, Galveston county, located and both defendants have appealed.
patented to Charles Bigelow by virtue of The plaintiff undertook to show that both certificate No. 19/237, situated 20 miles N. parties claimed the same land, under L. E. W. of Galveston city; Foster, Ludlow & Co., Edwards as their common source of title, assignees.” Plaintiff proved that he paid to and that he held the superior title from that the heirs of Edwards the $1 recited in the source. For this purpose, he offered the fol- deed, and that the other consideration recitlowing: First. A deed of date July 18, 1876, ed was his undertaking to clear up the title by which L. E. Edwards conveyed to G. of such heirs to other lands in various parts Bacon Burke, trustee, all his interests in of the state, which are said by him to be certain tracts of land in the counties of Lla- quite extensive, and to require a large no and Galveston, located and patented "by amount of labor and expense.
. There was no virtue of the following certificates," describing evidence, however, that he had rendered any them, and among them the following: “Cer- of these services before he received notice of tificate No. 19/237, issued to Charles Bige- the adverse claim of the defendants, but low, 32712 acres, situated 20 miles N. W. of there is testimony that he had not. Before the city of Galveston.” This deed was made taking the deed from Edwards' heirs, he had to secure a note executed on same day by actual knowledge of the deed of trust from Edwards to Foster, Ludlow & Co. for $1,000, Edwards to Foster, Ludlow & Co., which payable at 6 months, bearing 12 per cent. was on record in Galveston county, autheninterest, payable monthly, and provided that ticated for record by the trustee, Burke, as a in case of nonpayment of interest, and of subscribing witness, but did not actually principal when due, the trustee, or, should know of the deed from Corwin to that firm, he fail, or refuse, or be unable to act, the which was not on record in Galveston counsheriff or deputy sheriff of Travis county, is i ty, but was on record in Llano county. He empowered to sell the lands at public auc- knew, however, that Zimpleman had been a tion for cash, after first giving 20 days' no- member of that partnership, and that he tice in public of time and place of sale, and was claiming other lands embraced in the to execute to purchaser a warranty deed. deed of trust from Edwards, and in the deed This deed of trust fixed no place at which from Corwin to them. He made no inquiry the sale should be made, but, in addition to of the Edwards heirs or of Zimpleman, nor the provision for sale by sheriff or deputy sought from any other source than the recsheriff of Travis county, recited the residence / ords of Galveston county and of the land: office, to ascertain whether or not there had cated balance (say, 655 acres) certificate No. ever been a sale under the deed of trust, 23 for 1280 acres issued to Charles Bigelow, but says that, from his knowledge of Ed- June 8, 1841." (7) Deed, dated June 18, 1874, wards, he believed the debt had been paid, from E. W. Shands, trustee, to Foster, Ludand was of the opinion that no legal sale low & Co., conveying same as in last precould be made under the deed of trust, be- ceding. (8) Deed, dated January 5, 1884, cause it had been proven up for record by from Albert Hull and others, reciting themthe trustee. He admitted that, when he selves to be the heirs of George Hull, to W. bought, he thought Foster, Ludlow & Co. H. Green, conveying all their right, title, and would probably sue on a note, or sue him interest to certificate No. 23, properly defor the land, but that they could only hold scribed, and all lands located by virtue therehim for such proportion of the note as the of, reciting previous conveyance by Albert value of the land he purchased bore to the Hull, as administrator, to Alexander Hyde, value of all the lands included in the deed and that this conveyance is made to cure deof trust, and that, if he had to pay this, it fects therein. No evidence was offered to would still be a good trade for him, and that show that the makers of this deed were the he bought, "as any other business man
heirs of George Hull. would have bought, when he saw a good thing." The plaintiff also introduced in evi
T. H. Ball and Mott & Armstrong, for apdence, for the purpose of showing common pellants. S. T. Fontaine, for appellee. source, as stated by him, a chain of title running from the original grantee of the WILLIAMS, J. (after stating the facts). certificate, Charles Bigelow, down to Fos- | 1. The plaintiff showed no title in Edwards, ter, Ludlow & Co. With this chain of title under whom he claims, unless evidence of Edwards was in no way connected, by any title in him, as against defendants, is furevidence offered on either side. The same nished by the fact that they claim under him. instruments were afterwards offered and re- In order to entitle plaintiff to recover, upon lied on by defendants as their chain of title, the ground that Edwards was common as were the deed of trust from Edwards, the source, he should have shown that he and the deed from Corwin, the deeds from Foster defendants were claiming the same interest and Ludlow to Zimpleman, and from the lat- under Edwards, and that his title, proceeding ter to Halley. These instruments were all from such source, was the superior one. We introduced for defendants without objection are of the opinion that he failed on both from plaintiff.
points. As is seen from the description givThe chain of title, under which defendants en in his petition, he identified no land. He claimed, was as follows: (1) Patent, dated does not sue for an undivided interest, as the June 3, 1874, to George Hull, assignee of court below, in its judgment, seems to have Charles Bigelow, for the 640 acres in ques- assumed, and does not so describe the tract tion, by virtue of certificate No. 19/237, un- which he claims that it may be identified and located balance of headright certificate No. possession delivered. His supplemental peti23, issued by the board of land commission- tion does not undertake to cure this defect, ers to Charles Bigelow, June 8, 1841. (2) but merely refers to the deed of trust alleged Transfer, dated in 1848, from Charles Bige- to be on file to show that both parties are low to George Hull, for said certificate No. elaiming the same land, without further iden23. (3) Transfer, dated May 6, 1870, from tifying it. The general demurrer should have Albert Hull, reciting himself to be the ad- been sustained. A petition, in trespass to try ministrator, in Massachusetts, of George title, which does not give a sufficient descripHull's estate, to Alexander Hyde for certifi- tion to enable the court to deliver possession, cate No. 23 for 1280 acres of unlocated land. is not sufficient. If it were permissible for As contained in the record, this instrument the court, in aid of the pleadings, to look to gives no further description of the certificate the deed of trust, which the pleader says he transferred. The transfer purports to have had filed, that does not help the matter, as been made in Massachusetts, and recites the the description therein is quite as indefinite residence of all the parties, as well as of the as that given in the petition. Of course, deceased, George Hull, to have been in that if the land were, as assumed by the court, destate. No evidence was offered of the death scribed as an undivided interest of 32742 of Hull, the appointment of the administrator, acres in the 640-acre tract, which is sufficientaor of any authority in him to convey the ly designated, that would be a good descripcertificate. (4) Power of attorney, dated Feb- tion. But this is not done, either in the peruary 25, 1871, from Alexander Hyde to J. tition or in the deed of trust, and this error P. Newcomb, giving power to sell certificate runs through the whole case. The plaintiff No. 23, properly described. (5) Deed, dat- claims an interest of 32742 acres in the 640ed November 11, 1872, from Alexander Hyde, acre tract from the heirs of Edwards. The by Newcomb, attorney in fact, to W. H. defendants claim an interest of 32712 acres Green, for said certificate No. 23, properly in the same tract under Edwards himself. described. (6) Deed, dated March 25, 1874, No evidence is offered to show what interfrom W. H. Green to E. W. Shands, for use est Edwards actually had in the land at the of Foster, Ludlow & Co., conveying "unlo- | time of either conveyance, and the result is