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 1,1422 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 1,4922 acres remaining. It was answered that in January, 1893, appellants had recovered a judgment against one J. A. Story, through whom appellee claimed the 1,1422-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 1,1422 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 1,4922 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 1,1422-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,

On

secured by a mortgage on the said land. 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 1,1422 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 foreclosed 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, 54 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 [ an adequate consideration for the land, they would not be affected by the fraud. Hartley v. Frosh, 6 Tex. 208; Shelby v. Burtis, 18 Tex. 644; Wiley v. Prince, 21 Tex. 637; Williams v. Pouns, 48 Tex. 146; Kocourek v. Marak, 54 Tex. 205; Davis v. Kennedy, 58 Tex. 517; Pierce v. Fort, 60 Tex. 464; Webb v. Burney, 70 Tex. 322, 7 S. W. 841; Stallings v. Hullum, 79 Tex. 421, 15 S. W. 677. The testimony showing that the Hickmans had by regular transfers conveyed the land, and that appellee had no notice of any equities of Mrs. Hickman that might attach to the land, and being ignorant of any fraud that may have been perpetrated upon her, possession of the land by the Hickmans would not be sufficient to fix notice upon appellee. Hurt v. Cooper, 63 Tex. 362; Heidenheimer v. Stewart, 65 Tex. 321; Love v. Breedlove, 75 Tex. 649, 13 S. W. 222. If it be held that the office of possession in the matter of notice is to put the purchaser upon inquiry, still it has no effect in determining what the inquiry shall be, or to whom it shall be addressed. Eylar v. Eylar, 60 Tex. 315. Appellee not only examined the title papers from the Hickmans, but inquired as to the possession of the land, and was told that a man was on it who would leave in the spring. It was in evidence that Voss permitted Hickman to remain on the land as his tenant. We are of the opinion that the allegations do not sustain the amount found by the jury for rents, and the appellee, having signified in his brief his willingness to remit any excess that might appear to this court, a remittitur of $463 will be entered, and the judgment, as reduced, affirmed.

CITY WATER CO. v. STATE. (Court of Civil Appeals of Texas. Dec. 11, 1895.)

QUASI PUBLIC CORPORATIONS-WATER COMPANIES -FORFEITURE OF CHARTER.

1. A corporation organized to supply a city with water is a quasi public corporation, subject to the rules of law applicable to such corporations.

2. The failure of a water company to elect directors or officers, or to hold any meetings, or to perform any corporate act, for nearly eight years, and an attempt to sell and surrender all its property to another corporation, is a willful violation of corporate duties, entitling the state to demand a forfeiture of its charter.

3. The fact that another company is furnishing the people with water, as the pretended successor to such corporation, will not deprive the state of the right to demand a forfeiture.

Appeal from district court, Travis county; James H. Robertson, Judge.

Proceedings, in the nature of a quo warranto, by the state of Texas to forfeit the charter of the City Water Company. From a judgment of forfeiture, defendant appeals. Affirmed.

O. T. Holt and Walton & Hill, for appellant. Fisher & Townes, Geo. F. Pendexter, and A. S. Burleson, Dist. Atty., for the State.

KEY, J. This is a proceeding, in the nature of a quo warranto, in which a judgment was rendered forfeiting the charter of the City Water Company. There is no statement of facts. The action of the trial court in overruling appellant's plea in abatement, urging that a receiver previously appointed by another court, and in possession of ap pellant's tangible property, was a necessary party to this suit, is the only question about which any member of this court had any doubts. We certified that question, and the supreme court held that said receiver was not a necessary party. 32 S. W. 1033. On the other questions involved, the court below filed conclusions of fact and law. The former are acquiesced in by the parties and adopted by us. The latter are disputed by appellant, but we think they are correct, and here insert them as expressing our views, viz.:

1. That, while it is true the said City Water Company comes within the class denominated by our statutes as private corporations, its business and the purposes for which it was incorporated are of such public character as to make it a 'quasi public corporation, subject to be governed by the rules of law applicable to such corporations. Foster v. Fowler, 60 Pa. St. 27; Lumbard v. Stearns, 4 Cush. 62; Burden v. Stein, 27 Ala. 104; Kane v. Mayor, etc., of Baltimore, 15 Md. 240; Gardner v. Village of Newburgh, 2 Johns. Ch. 162; Wayland v. Commissioners, 4 Gray, 500; Haugen v. Water Co. (Or.) 28 Pac. 246; Mor. Priv. Corp. §§ 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 of Rushville v. Rushville Natural Gas Co. (Ind. Sup.) 28 N. E. 856; Rev. St. arts. 629, 630; Acts 22d Leg. Assem. p. 172.

2. That the failure to elect directors or officers, or hold any meetings of directors or officers, or perform any corporate act, for nearly eight years, and the attempted sale and surrender of all its property to another corporation, rendering itself incapable of performing its corporate duties, must be regarded as willful violations of corporate duties, and sufficient grounds to entitle the state to a forfeiture of its charter. State v. Southern Pac. Ry. Co., 24 Tex. 131; 4 Am. & Eng. Enc. Law, 304; Railway Co. v. Morris, 67 Tex. 692, 4 S. W. 156; East Line & R. Co. v. State, 75 Tex. 434, 12 S. W. 690.

3. The fact that the Austin Water, Light & Power Company is furnishing the citizens of Austin and vicinity with water, as the pretended successor to the City Water Company, cannot be held to deprive the state of the right to forfeit the charter of the City Water Company for willfully failing to perform its corporate duties, and willfully at

4. That under the facts of this case, the charter of the City Water Company ought to be declared forfeited, and judgment will be rendered for the plaintiff accordingly. No reversible error has been pointed out, and the judgment will be affirmed. Affirmed.

SPENCER v. SHELBURNE. (Court of Civil Appeals of Texas. Nov. 30,

1895.)

INSTRUCTIONS-PROVINCE OF JURY

An instruction, in an action for negligently driving to death a horse hired of plaintiff, on the issue of negligence, to find against defendant if the "horse became sick or exhausted on the journey, and the defendant pursued his journey, and the horse died in consequence,' was a charge on the weight of evidence.

Appeal from county court, Cooke county; J. E. Hayworth, Judge.

Action by M. R. Shelburne against J. W. Spencer to recover damages for negligently driving to death a horse hired of plaintiff, and for conversion. From a judgment for plaintiff, defendant appeals. Reversed.

Blanton & Wright, for appellant. Claude Weaver, for appellee.

STEPHENS, J. Suit for damages by appellee 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 court instructed the jury to find against appellant if the "horse became sick or exhausted on the journey, and the defendant pursued his journey, and the horse died in consequence" thereof. This was clearly a charge on the weight of the evidence, and the error assigned thereto requires the judgment to be reversed. Whether a man of ordinary prudence, under the same circumstances, would have driven a horse as this one was driven was exclusively a question for the jury, there being no law declaring it to be negligence per se to drive a sick or exhausted horse. Authorities need not be cited to sustain a proposition now so well settled in this state.

In view of another trial, the charge-also complained of-upon the other issue will be noticed. Appellee contended that appellant took a more extensive journey than was contemplated when the horse was hired, which contention the evidence of the latter tended to rebut. The horse took the colic on the return part of the journey, within the limits of the contract, and died soon after its return to appellee. Whether or not this was due to the alleged extension of the journey beyond the scope of the contract was also a controverted issue. The charge submitted, with

hirer of a horse for one purpose or journey, who deviates from the bailment contract by using it for a different purpose or on a longer journey, is liable, in case of accident, for its loss, though not otherwise at fault. Sims v. Chance, 7 Tex. 561; Mills v. Ashe, 16 Tex. 301; Willis v. Harris, 26 Tex. 141. In a recent Georgia case, however, somewhat analogous to this it was held that this rule is inapplicable, notwithstanding the technical conversion involved in the unauthorized extension of the contemplated journey, if it appears that the extra distance did not cause or materially contribute to the injury, and that the horse died, without other fault of the hirer, after his return with it, within the limits of his contract. Farkas v. Powell (Ga.) 12 Lawy. Rep. Ann. 397, and cases cited in notes, 13 S. E. 200. This qualification of the rule, we think, should be observed upon another trial. We also suggest that a finding be had upon both issues, or, at least, that the verdict indicate the ground of recovery. Whether the deviation from the contract was sufficiently covered by the general allegation of conversion to warrant the submission of that ground of recovery, we need not decide, as this objection may be easily cured by amendment. It may be, also, that the qualification suggested should be pleaded in avoidance of the alleged technical conversion. On account of the error in the charge first considered, the judgment is reversed and the cause remanded.

HALLEY et al. v. FONTAINE. (Court of Civil Appeals of Texas. Nov. 28, 1895.) TRESPASS TO TRY TITLE - INSUFFICIENT DESCRIPTION-INTERESTS NOT ADVERSEBONA FIDE PURCHASER.

1. A petition in trespass to try title to recover "a tract of land" described as "327 acres, * * * being part of a 640-acre tract" patented to a certain person, insufficiently describes the land.

2. Nor will such description be cured by reference to another deed, in which the description was as indefinite as that given in the petition.

3. Though plaintiff and defendants claimed an interest of 327 acres in the same 640-acre tract, plaintiff cannot recover, as against defendants, in the absence of evidence that each claimed the same land.

4. Plaintiff, who had actual knowledge of the existence of a deed of trust, though he was not chargeable with notice of the record thereof, is not a bona fide purchaser, as against defendants, who claimed under said trust deed, particularly as plaintiff's only evidence of title in his grantor was the fact that defendants accepted the deed of trust from said grantor, and as he had only paid a nominal cash consideration for his deed, and the services he agreed to render therefor were not, in fact, performed before he knew of defendants' claim.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Trespass to try title by Sidney T. Fontaine against R. B. Halley, who vouched in George

B. Zimpleman, his warrantor. Plaintiff had judgment, and defendants appeal. Reversed. Appellee sued Halley in trespass to try title to recover a "tract of land," of which the only description given in the original petition is the following: "3271⁄2 acres in Galveston county, state of Texas, being a part of a 640-acre tract patented to Charles Bigelow, Foster, Ludlow & Co. by virtue of certificate 19/237, and being situated about being situated about twenty miles northwest of Galveston city." Halley vouched in George B. Zimpleman, his warrantor. A supplemental petition petition was subsequently filed by plaintiff, alleging that defendants were estopped from denying his title because they claimed to derive title through a deed of trust from L. E. Edwards, deceased, of date July 18, 1876, and recorded in Galveston county, the book and page of the record being stated, and the supplemental petition states that a copy of this deed and the foreclosure thereof is filed in the cause. A general demurrer to the petition was overruled, and a trial was had; the court rendering judgment for plaintiff for the "title and possession of the land described in the petition, being an undivided three hundred and twenty-seven and a half acres of land, out of a six hundred and forty acre tract, patented to George Hull, assignee of Charles Bigelow, by certificate No. 19/237, situated in Galveston county, and about twenty miles northwest of the city of Galveston." Judgment was rendered, in favor of defendant Halley, against his warrantor, Zimpleman, for purchase money paid, and both defendants have appealed.

The plaintiff undertook to show that both parties claimed the same land, under L. E. Edwards as their common source of title, and that he held the superior title from that source. For this purpose, he offered the following: First. A deed of date July 18, 1876, by which L. E. Edwards conveyed to G. Bacon Burke, trustee, all his interests in certain tracts of land in the counties of Llano and Galveston, located and patented "by virtue of the following certificates," describing them, and among them the following: "Certificate No. 19/237, issued to Charles Bigelow, 3271⁄2 acres, situated 20 miles N. W. of the city of Galveston." This deed was made to secure a note executed on same day by Edwards to Foster, Ludlow & Co. for $1,000, payable at 6 months, bearing 12 per cent. interest, payable monthly, and provided that in case of nonpayment of interest, and of principal when due, the trustee, or, should he fail, or refuse, or be unable to act, the sheriff or deputy sheriff of Travis county, is empowered to sell the lands at public auction for cash, after first giving 20 days' notice in public of time and place of sale, and to execute to purchaser a warranty deed. This deed of trust fixed no place at which the sale should be made, but, in addition to the provision for sale by sheriff or deputy sheriff of Travis county, recited the residence

of the parties in that county. Second. A deed from Dennis Corwin, sheriff of Travis county, of date February 15, 1878, reciting the execution of the foregoing deed of trust by Edwards; the refusal of Burke, the trustee, to act; the giving of 20 days' notice of time and place of sale by himself, as sheriff of said Travis county; a sale by him of all said lands at public auction at the southeast corner of block 70 in the city of Austin for cash, and purchase by Foster, Ludlow & Co. at $11.57; and conveying land as described in the deed of trust, supra. The southeast corner of block 70 in Austin, was by law made the place for sneriff's sales. Third. Deed, dated April 27, 1878, from F. B. Foster to G. B. Zimpleman, conveying all his interest in the lands of the firm of Foster, Ludlow & Co., of which both parties were members. Fourth. Deed, dated May 7, 1878, from B. C. Ludlow, the other member of said firm, to G. B. Zimpleman, of same effect as the last above mentioned. Fifth. Deed, dated February 23, 1893, from G. B. Zimpleman to R. B. Halley, conveying the whole of the 640-acre tract, patented under certificate No. 19/237 for $2,346.66, paid in cash and notes for the same amount. Sixth. Deed, dated February 23, 1893, from parties proven to be the heirs at law of L. E. Edwards to plaintiff, Fontaine, reciting a consideration of $1 paid, and other considerations, conveying three tracts of land in Galveston county, containing in all 7211⁄2 acres, among them the land described as follows: "3272 acres, Galveston county, located and patented to Charles Bigelow by virtue of certificate No. 19/237, situated 20 miles N. W. of Galveston city; Foster, Ludlow & Co., assignees." Plaintiff proved that he paid to the heirs of Edwards the $1 recited in the deed, and that the other consideration recited was his undertaking to clear up the title of such heirs to other lands in various parts of the state, which are said by him to be quite extensive, and to require a large amount of labor and expense. There was no evidence, however, that he had rendered any of these services before he received notice of the adverse claim of the defendants, but there is testimony that he had not. Before taking the deed from Edwards' heirs, he had actual knowledge of the deed of trust from Edwards to Foster, Ludlow & Co., which was on record in Galveston county, authenticated for record by the trustee, Burke, as a subscribing witness, but did not actually know of the deed from Corwin to that firm, which was not on record in Galveston county, but was on record in Llano county. He knew, however, that Zimpleman had been a member of that partnership, and that he was claiming other lands embraced in the deed of trust from Edwards, and in the deed from Corwin to them. He made no inquiry of the Edwards heirs or of Zimpleman, nor sought from any other source than the records of Galveston county and of the land