pellee claims to have shown right to recover. As he failed to show such a right, the judgment of the lower court will be reversed and judgment here rendered for appellants. Reversed and rendered.

2. But, if the plaintiff showed that Edwards was the common source, he failed to show that his title from him was the superior one. Without any objection, the deed of trust and the deed made in the enforcement of it were admitted in evidence, and no defects in those proceedings are set up or relied on, but plaintiff seeks to avoid their effect by showing himself to be an innocent purchaser from Edwards' heirs. He produces nothing tending to show title in Edwards or his heirs, except the fact that Foster, Ludlow & Co., by taking a deed of trust from Edwards, admitted him to own the land embraced in it. He bought upon this as his only evidence of title, and yet claims to be an innocent purchaser without notice of the claim of the only persons against whom such evidence could be used. These papers would furnish no evidence of title in Edwards against any one but persons claiming through them. While the record of the deed of trust may not have charged plaintiff with notice of itself, or of the sale under it by Corwin, his actual knowledge of its existence, and of the other circumstances stated above, was enough to put a prudent man on inquiry, and the slightest inquiry would, it seems to us, have led to knowledge of the fact that the land had been sold and bought by Foster, Ludlow & Co. He failed to make inquiry from the very sources suggested by the circumstances within his knowledge. Those circumstances were amply sufficient to charge him with notice of the sale under the deed of trust. Another reason why we think he cannot be considered an innocent purchaser is that he has parted with no consideration on the faith of the purchase. The dollar paid was merely nominal, and none of the services were rendered before he received notice of the claim of defendants. When testifying, during the trial, he stated that he had then rendered some of the service, but not that he had done so before he knew of defendants' adverse claim under the Corwin deed, or before suit was brought, and his own pleadings show that, in bringing suit, he relied on that deed to show common source. The views we have expressed render it unnecessary to consider the numerous other points raised in briefs of appellants, as they

NOEL v. CITY OF SAN ANTONIO.1 (Court of Civil Appeals of Texas. Nov. 13, 1895.)

MUNICIPAL CORPORATION — LIMITATION OF POWER TO CONTRACT - CONTRACTING BY ORDINANCE-ESTOPPEL.

1. Const. art. 11, § 5, provides that no debt shall be created by any city, unless at the same time provision shall be made to collect annually a sufficient sum to pay the interest thereon, and to create a sinking fund of at least 2 per cent. thereon. Held, that a contract whereby a city executed its notes, payable annually for 10 years at 6 per cent. interest, in payment for the construction of garbage furnaces, was void, no provision having been made for the payment of annual interest and the creation of a sinking fund, and though bonds had been sold six years previously for the purpose, among others, of erecting such furnaces, there was no evidence that any part of the moneys thereby realized remained in the treasury.

2. A city is not liable for an improvement erected according to contract, where the contract was made in violation of a constitutional provision.

3. Under a city charter providing that the city council shall have control of the city and its finances, and shall exercise its powers by ordinance, the city cannot enter into a contract for the construction of an improvement involving deferred payments of a large amount, except by ordinance; and the council cannot, by motion, authorize the mayor to bind the city to such contract.

4. A city is not estopped from denying its liability for an improvement constructed under a contract made in violation of a constitutional provision.

Appeal from district court, Bexar county; R. B. Green, Judge.

Action by Henry M. Noel against the city of San Antonio on a contract for the construction of certain improvements. Defendant had judgment, and plaintiff appeals. Affirmed.

Chas. W. Ogden and Clark, Summerlin & Fuller, for appellant. R. B. Minor, for appellee.

FLY, J. On November 21, 1893, appellant filed this suit, seeking to recover of the city of San Antonio the sum of $13,000. The basis of the suit was a contract entered into between one W. H. Garretson and appellee for the construction of two furnaces to be used for the destruction of city garbage. It was alleged that the city agreed to pay for the furnaces the sum of $13,000, in 10 notes, each for $1,300, 1 payable annually for 10 years, each bearing 6 per cent. interest from date of acceptance of the furnaces. A full compliance with the terms of the contract was alleged on the part of Garretson; that the

1 Rehearing denied.

notes had been transferred to appellant on April 4, 1893,-being on the date of the execution of the contract, and before any work done on the furnaces. A failure to pay the debt was alleged. In a supplemental petition it was alleged that on the date of the contract the city of San Antonio had in its treasury $15,000, the amount of money arising from the sale of bonds theretofore made for the purpose of erecting two garbage furnaces, and that the 10 notes represented said garbage fund; that it had been set apart for said purpose; and that appellant had no interest in the question of the validity of the bonds, as the money was in the treasury when the contract was made. It was also alleged that the issuance of the bonds was authorized by the vote of the taxpayers, and that provision had been made to pay the interest on the same, and to create a sinking fund of 2 per cent. thereon. Appellee filed a general demurrer, special exceptions, and answer. The cause was tried before a jury, and a verdict instructed for appellee.

During the course of the trial, appellant attempted to introduce evidence of the adoption of a resolution on February 28, 1887, by the city council, setting forth that steps should be taken to erect garbage furnaces; of the authority given the mayor on March 18, 1887, to order a special election to obtain authority to issue $150,000 worth of 5 per cent. bonds, the proceeds to be used in erecting a city hall, courthouse, and jail, two garbage furnaces, rock crushers, street rollers, and street-sweeping machines; to show that the election took place on April 30, 1887, and resulted in authority being given for the issuance of the bonds; to show authority given for the printing, engraving, and sale of the bonds; and to show that the garbage fund was credited with $15,000, and that it still had to its credit a large part of the fund in March, 1889. The following is an excerpt from the minutes of the city council: "April 30, 1893. W. H. Garretson proposing to build two garbage furnaces for $13,000, and run same for 30 days, which was indorsed by Dr. Menger and committee on health and sanitation. The motion of Alderman Elmendorf that it be accepted, and the mayor authorized to enter into contract for same, was adopted by unanimous vote." The contract on which the suit was based, ordinances providing for taxes to pay the interest and create a sinking fund on the bonded debt of the city for the years from 1887 to 1893, inclusive, and an ordinance permitting the aldermen, in certain contingencies, to elect one of their number mayor pro tempore, were also offered in evidence. The whole of the testimony was objected to for the following reasons, to wit: "(1) Because there is no proof that any provision was made, at the time the alleged contract between the city and Garretson was entered into, for the levying of a tax to provide a sinking fund for, and to pay the interest on, the debt alleged to have been created

by the making of said alleged contract, as is required by the constitution of the state. (2) This contract appears on its face to have been, subsequent to its execution and delivery, altered, in that the stipulation as to the capacity of the furnaces is changed, or the cost of the same changed, from the original amount of $5,000 for one crematory furnace to $13,000 for two crematory furnaces, and also altering the stipulation as to the time in which a given quantity of garbage should be cremated, namely, from twelve hours to twenty-four hours for the same quantity of garbage; and, if not changed in that regard, it is in that respect so contradictory as to be void for uncertainty. (3) Because there is no proof of authority from the city council of the city of San Antonio to the mayor, or acting mayor, who is stated to have executed this contract, for the making of the same, because the pretended authority of the city council is shown to have been given by motion, whereas it is required by the charter that the power of the council in this matter should be exercised by ordinance. (4) Because there is no proof that at the time of the issuance, or at the time of the sale, of the bonds issued for the purpose of constructing the garbage furnaces, any provision was made for the levying of a tax to provide a sinking fund for and pay the interest on the debt created by the issuance or sale of said bonds." The court overruled all the objections but the third, which was sustained; and, appellant declining to proceed further, a verdict was instructed for appellee. The only testimony introduced, or which was attempted to be introduced, besides that enumerated, was that of W. H. Garretson, who swore that he was the man with whom the contract was made, and that the interlineations of which complaint was made in the objections to the rejected testimony were made before the contract was signed. There was no evidence that the furnaces were ever completed as contracted for. We quote the following from the contract that was rejected as testimony: "And the party of the second part agrees, in consideration of the faithful performance herein made by said party of the first part, and upon the satisfactory test of said furnace as hereinbefore provided, to pay for the said furnace the sum of ($13,000.00) thirteen thousand dollars, payable as follows: In ten notes, payable annually, for the amount of ($1,300.00) thirteen hundred dollars each, bearing six per cent. interest from acceptance, payable at San Antonio Nat. Bank. Interest payable annually."

The constitution (article 11, § 5) provides that "no debt shall ever be created by any city, unless at the same time provision be made to assess and, collect annually a sufficient sum to pay the interest thereon, and to create a sinking fund at least two per cent. thereon." It is further provided, in section 7, that "no debt for any purpose shall ever be incurred in any manner by any city or

county, unless provision is made at the time of creating the same for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent. as a sinking fund." While the first and last portions of section 7 refer to counties and cities on the coast of the Gulf of Mexico, the portion above quoted has been held to refer to each and every city and county in Texas. City of Terrell v. Dessaint, 71 Tex. 770, 9 S. W. 593. The language of the above constitutional provisions is too plain to require explanation or construction, and too positive to admit of evasion. In unambiguous terms, it is provided that on the creation of any debt, in any manner, by any city or county, provision must be made at the time of its creation for the annual interest and 2 per cent. sinking fund. Says Judge Gaines; in the Dessaint Case, above quoted: "The language is general and unqualified, and we find noth. ing in the context to indicate that the framers of the constitution did not mean precisely what is said; that is, that no city should create any debt without providing by taxation for the payment of the sinking fund and interest." Does the rejected testimony indicate that this constitutional rule was complied with in making the contract that forms the basis of this suit? We are of the opinion that it fails to do so. On the 4th of April, 1893, the contract was signed by Garretson and French, the acting mayor of San Antonio; and there is no pretense that it was a cash transaction, based on money theretofore raised on bonds voted by the taxpayers, but it is provided that the debt of $13,000 shall be paid in 10 annual payments, evidenced by promissory notes in the sum of $1,300 each, and bearing interest at the rate of 6 per cent. per annum. The whole transaction was independent of, and without reference to, any sums that may have been realized from the sale of bonds issued in 1887,-six years before the contract was executed. If, as contended by appellant, it was a contract based on money then in the treasury, why give those interest-bearing evidences of debt, payable so long in future? A cash transaction, providing for the consideration to be paid in 10-year payments, with a good rate of interest, would be an absurdity and a contradiction of terms. As before stated, there is no connection whatever shown by the evidence between the bonds issued in 1887 and the contract made in 1893, and, if at that time there was a dollar of the money realized from bonds in the city treasury, it does not appear in the record. We do not mention the latter fact as having controlling influence on our decision, for, if it had been shown that the money realized from the sale of the bonds for garbage furnaces was in the treasury, we hold that it would not render valid a contract in which the consideration was evidenced by notes due on 10 yearly payments, no action being taken at the time to meet the constitutional provision

as to interest and sinking fund. If a contract made six years after the issuance of bonds, and made without any apparent reference whatever to the bonds, can be upheld by proof of provision having been made at some time for the payment of the interest and the creation of a sinking fund for the whole city debt, then the constitutional provisions embodied in sections 5 and 7 are vapid and unprofitable declarations, that utterly fail to attain the object intended. Money may have been, and doubtless was, raised by the sale of bonds to erect garbage furnaces, and may have been expended for that purpose, but the contract shows upon its face that it was never contemplated that the furnaces in question should be paid for out of it.

But it is urged that the contract is an executed one, the furnaces having been built according to the terms of the contract, and equity and good conscience require that the city pay for them, although the contract was made in violation of the constitution. We have seen no authority that would sustain such a proposition. In the case of City of San Antonio v. French, 80 Tex. 575, 16 S. W. 440, a contract might be implied to pay the rent of a house used by the city, because the city had the authority to make the contract. The consideration was to be paid out of current funds. "It may be," says the opinion, "that when a municipal corporation has received the benefit of a contract which it had the power to make, but which was not legally entered into, it may be compelled to do justice and to pay the consideration, or at least pay for what it received." This ruling is based on the ground that in such cases the law will imply a contract, and it is held that on no other state of facts will the implication arise. The implication can never arise that a contract was made that is violative of the constitution. Berlin Iron Bridge Co. v. City of San Antonio, 62 Fed. 882; City of Bryan v. Page, 51 Tex. 532; Zottman v. San Francisco, 20 Cal. 96. None of the authorities cited by appellant militate against the position taken by this court. It is provided in section 42 of the charter that "the city council shall have the care, management and control of the city and its property and finances; and shall have power to enact and ordain any and all ordinances not repugnant to the constitution and laws of this state, and such ordinances to alter, modify or repeal, and shall have power by ordinance." And then follow sections from 43 to and including 102, enumerating the different powers and duties of the city government. Each of these sections is controlled by and connected with section 42, above quoted, which prescribes the manner in which the powers and duties enumerated in each section must be performed,-as much so as though it were inserted before each of them. The mode prescribed is by ordinance, and, being expressly prescribed, a resolution or motion will not be held equivalent to the ordinance. 1 Dill. Mun. Corp. §

307, and note; McGavock v. City of Omaha (Neb.) 58 N. W. 543; Board v. De Kay, 148 U. S. 591, 13 Sup. Ct. 706. The authority for entering into the contract must be found, if at all, in one or more of the sections from 43 to 102; and, unless the contract with appellant was entered into by ordinance, it must perforce be held invalid. Says Chief Justice Marshall, in Head v. Insurance Co., 2 Cranch, 127: "The act of incorporation is to them an enabling act. It gives them all power they possess. It enables them to contract, and, when it prescribes to them a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated." Section 220 of the charter prescribes the form for all ordinances, as follows: "The style of the ordinances shall be: 'Be it ordained by the city council of the city of San Antonio.'" This charter provision is as essential to the validity of the city ordinances as the enacting clause to the validity of the statutes. The position assumed does not inhibit, nor in any manner interfere with, the payment of the current expenses of the city by motion or resolution, but is an enunciation of the proposition that under the provisions of the charter the municipal authorities of the city of San Antonio cannot enter into a valid contract for the expenditure of large sums of money, evidenced by interestbearing promissory notes of the city, running for a great length of time, in violation of the demands of its charter. Recurring to the proposition that the city is estopped, the contract having been executed, from setting up its invalidity, it may be said that as a general rule the doctrine of estoppel applies alike to corporations and individuals. But it cannot be applied to render valid and binding a contract that the corporation was prohibited from making. The application of the doctrine of estoppel to municipal corporations is confined to cases in which they have the power to contract. But where "the act undertaken was, in and of itself, ultra vires of the corporation, no act of that body can have the effect to estop it to allege its want of power to do what was undertaken." Bigelow, Estop. 466, 467; State v. Murphy (Mo. Sup.) 31 S. W. 784; Union Depot Co. v. City of St. Louis, 76 Mo. 393; Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co., 118 U. S. 290, 6 Sup. Ct. 1094; Green Bay & M. R. Co. v. Union Steamboat Co., 107 U. S. 98, 2 Sup. Ct. 221; Davis v. Railroad Co., 131 Mass. 258. The charter of the city of San Antonio was granted for the public good, and every duty enjoined, obligation required, and power granted are expressed in that instrument, the whole being governed and controlled by the constitutional provisions on the subject. The contract entered into with appellant was in violation of the constitution and the charter, and the municipal authorities had no power to make it. Having entered into the invalid and illegal contract, it was the duty

of the city council to rescind and repudiate it at the earliest moment. It may be that justice "moved with a leaden heel," but the act, though tardy, was right when at last done. When the council tries to perform this act of justice to the municipality, their attempt is claimed to be the basis for a suit against the corporation. We do not believe that the breach of such a contract can form the basis for any right of action. "To hold," says the supreme court of the United States in Thomas v. Railway Co., 101 U. S. 85, "that this can be done, is, in our opinion, to hold that any act done under a void contract makes all its parts valid, and that, the more you do under a contract forbidden by law, the stronger the claim to its enforcement in the courts." The nonenforcement of the contract may be a hardship upon the appellant, but it is one that he brought upon himself. He voluntarily entered into a contract which he knew, or at least is charged with knowing, was unconstitutional and void, and has not placed himself in a position to obtain redress at the hands of the courts. The judgment will be affirmed.

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

TINSLEY V. ANDERSON.1 (Court of Civil Appeals of Texas. Nov. 13, 1895.)

OFFER TO BUY LAND-BREACH OF CONTRACTPRINCIPAL AND AGENT.

Plaintiff, who was authorized to sell certain land for the owners (his compensation to be any excess of a specified price), procured a written offer from defendant to purchase the same at a price in advance of that fixed by the owners; but defendant refused to comply with his contract, though the owners of the land executed to him a deed thereof. There was nothing to indicate that the land, at the time of the default, was not worth the sum which defendant agreed to pay. Held not to show any relation of principal and agent, so as to render defendant liable for the difference between the fixed price and the amount which the latter agreed to pay. Tinsley v. Dowell, 26 S. W. 946, 87 Tex. 23, followed.

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

Action by James Anderson against Thomas Tinsley on a contract to purchase land. From a judgment for plaintiff, defendant appeals. Reversed.

Simpson & Onion, for appellant. Webb & Finley, for appellee.

FLY, J. This suit is founded upon the following contract: "San Antonio, Texas, August 26th, 1890. To James Anderson, 11 E. Houston St., San Antonio: I hereby offer to you the sum of two hundred and seventy-five dollars per acre for twenty-five acres in a square body to be taken out of the

1 Rehearing denied.

northwest corner of the upper Gideon Lee tract, the northwest corner of said square body to be two hundred varas from the junction of the west line of said Lee tract with the line of the old city grant, and to have said west line the west boundary line of said square body, as per map. Payment to be made as follows: One third cash down, balance in equal installments in one and two years, with eight per cent. interest. The title to said twenty-five acres to be delivered to me perfect. This offer to remain in force ten days from this date." This was signed by appellant. It is alleged "that, at the time defendant made said offer, he understood that plaintiff expected to procure said land for him at two hundred and forty dollars per acre, and that plaintiff would receive, as compensation for his services, the sum of thirty-five dollars per acre on said twenty-five acres of land, and defendant agreed that plaintiff should receive said compensation; that, in pursuance of said offer, plaintiff procured said land for defendant, and, before the expiration of ten days from said August 26, 1890, notified him that said offer was accepted; that defendant knew that said land was owned by J. V. Dignowity, C. W. Ogden, J. H. James, and Dan Sullivan, and that the title thereto would come from said owners; that, immediately after said offer, plaintiff, on behalf of the defendant, began negotiations with said owners for the purchase of said land, and they, at the special instance and request of plaintiff, made, executed, and delivered to defendant, upon the terms proposed by him and accepted by plaintiff, a deed conveying a good and perfect title to said land, whereby defendant promised and became liable to pay plaintiff said sum of eight hundred and seventy-five dollars."

This is a plain declaration on a contract to purchase land, and the liability of the appellant is based on his failure to carry out the terms of the contract. Appellee did not own the land, but was acting for the owners in the sale of it. It is neither alleged nor proved that appellee had been made and constituted the agent of appellant to buy the land, and that he was to receive, as remuneration for his services, the sum of $35 per acre, but the written contract shows that it was a mere naked offer to buy land at a certain price. The contract must be looked to as the culmination of the wishes of the parties, and it certainly does not indicate that the relation of principal and agent existed between the parties. We can see no material difference between this case and that of Tinsley v. Dowell (Tex. Civ. App.) 24 S. W. 928, and 87 Tex. 23, 26 S. W. 946. The facts in that case show that Rogers and wife owned certain outlots in the city of Austin, which Dowell was authorized to sell. Dowell was to receive for his services 22 per cent. commissions and all above a stated price. Tinslev agreed to buy the land from

Dowell for a sum $900 above the price fixed by Rogers. Tinsley failed to comply with his contract, although Rogers and wife were ready and willing to execute the deed to him. Dowell sued for the excess over the limit. In the case before us, Dignowity and others owned certain land in the city of San Antonio, which Anderson was authorized to sell, and his compensation was to be all that he obtained in excess of $240 per acre. Anderson made a contract of sale with Tinsley at a price exceeding that fixed by the owners in the sum of $875. Tinsley failed to comply with his contract, although the owners of the land executed a deed to the land to him. Anderson sued for the excess over the price fixed by the owners of the land. In both cases there was nothing to indicate that the land at time of default was not of value equal to the value agreed to be paid by Tinsley. The Dowell Case is decisive of this, and to it we refer for the law applicable to the facts before us.

The former opinion in this case was delivered (28 S. W. 121) before the opinion in the case of Tinsley v. Dowell had been rendered by the supreme court, and the question of Anderson's right to maintain a suit on the contract was not questioned at that time, but the defense was based on other grounds altogether. The case as presented at that time assumed the right of appellee to recover on the contract under a proper state of facts. Our former opinion is in conflict with the Tinsley-Dowell Case, and was followed by the district judge, and the responsibility for his rulings must rest on our opinion. We are of opinion that the judgment should be reversed, and the cause remanded.

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

BROWN et al. v. O'BRIEN.

(Court of Civil Appeals of Texas. Nov. 7, 1895.)

ADVERSE POSSESSION-FIVE-YEARS STATUTE-IN

CLOSURE-VOID ADMINISTRATOR'S
DEED ESTOPPEL.

1. To sustain a claim of adverse possession, under the five-years statute, to a tract inclosed with others into one pasture, it was not nec essary to show payment of taxes on, or deed for, any other of the tracts inclosed in the pasture.

2. The inclosure and use of part of a tract are sufficient to sustain an adverse claim to the entire tract under the five-years statute.

3. The fact that in defendant's chain of title there was an administrator's certificate of sale, which was void, will not defeat a plea of limitations under the five-years statute.

4. Certain female plaintiffs, when minors, inherited an interest in a land certificate, and married before the commencement of the possession under which defendant claimed title to the land by limitations. Plaintiffs offered a deed, which was read in evidence by consent, executed in a foreign state, by the guardian of taid minors, conveying said certificate, before