On

Pearl and San Jacinto streets, as the property of defendant in error, and was advertised for sale thereunder by said constable for the 7th day of November, 1893. On November 3, 1893, defendant in error filed a petition in the district court of Dallas county, Tex., alleging that the lot so levied upon was a part of his homestead, and that he was the head of a family, and resided with said family on said lot, and had no other home, and prayed for a writ of injunction to restrain plaintiff in error and said constable from selling said property under and by virtue of said execution, levy, and advertisement. November 2, 1893, before the petition was filed, Hon. R. E. Burke, district judge, granted a temporary restraining order as prayed for. Defendant (plaintiff in error) filed a general demurrer and general denial, and pleaded specially that the property levied upon, and the sale of which was therein sought to be enjoined, was not used by plaintiff as a homestead, but that same was rented by plaintiff for purposes entirely inconsistent with homestead use, and that same had for a number of years prior to the date of said levy been so rented and occupied by others, to the exclusion of plaintiff and all of his family, for whose support he was responsible, and that same was part of a large, valuable block of ground owned by plaintiff, exceeding in value, exclusive of improvements, the sum of $5,000. Plaintiff, by way of supplemental petition, filed a general demurrer and general denial to defendant's answer. Plaintiff also excepted to so much of defendant's answer as set up the value of the property owned by Ray, and claimed by him as exempt, which exception the court sustained, over defendant's objection. Upon the trial below the court perpetuated the injunction, from which an appeal is taken.

There were no conclusions of law filed by the court below. The evidence, and the judgment of the court thereon, justify the conclusions that at the time of the levy upon the lot in controversy the defendant in error W. A. Ray was the head of a family; that the lot in question was a part of his homestead, and as such was exempt from forced sale; and that the injunction was properly granted and perpetuated. The judgment is affirmed.

ALLISON et al. v. PITKIN et al. (Court of Civil Appeals of Texas. Nov. 23, 1895.)

PURCHASE OF LAND - POSSESSION AS NOTICE LIABILITY OF REMOTE WARRANTOR.

1. Part of P.'s land was inclosed with part of another person's land, and rented by one who was the agent of both to the same tenant, who cultivated all the inclosed land. Held, that the possession of the tenant was notice to purchasers of P.'s land of his claim thereto.

2. While a warrantor may show by parol, as against his immediate grantee, that the consideration was less than that recited in his deed, he cannot show it as against a remote grantee purchasing without notice.

Appeal from district court, Hunt county; E. W. Terhune, Judge.

Action by D. W. Allison and others against Eliza Pitkin and others. From the judgment, plaintiffs appeal. Reversed in part and affirmed in part.

Williams & Butts, for appellants. Sherrill & Hefner, for appellees.

Conclusions of Fact.

RAINEY, J. The land in controversy in this suit was patented to W. S. Todd, assignee, in 1857, and said Todd deeded the land to Horrace W. and G. W. Pitkin in 1859, through whom the appellees claim. The patent recited that the land was situated in Fannin county, when, as a matter of fact, it was situated in Hunt county, Tex. In 1888, W. S. Todd and wife, Eliza, being dead, George T. and Charles S. Todd, as heirs of W. S. Todd and wife, Eliza, by warranty deed sold the land to W. C. Nail, which deed recited a cash consideration of $5,000, but in fact said George T. and Charles S. Todd only received the sum of $500 in payment of their interest in the land. W. C. Nail, in 1888, Ideeded the land to John A. Warren, warranting the title thereto, and reciting a consideration of $5,500. In 1889, John A. Warren, by warranty deed, conveyed the land to W. C. Gamble, reciting a consideration of $6,000, but in fact there being only $3,000 of the consideration paid. In May, 1890, W. C. Gamble borrowed from the W. C. Belcher Land Mortgage Company the sum of $2,700, and to secure the payment of same executed a deed of trust on the land in controversy, under which deed of trust the land was sold, and the trustee in the deed of trust on August 6, 1891, deeded the same to the W. C. Belcher Land Mortgage Company, the consideration paid at the sale being $2,00, which was credited on said indebtedness. All of the foregoing instruments were duly recorded in Hunt county, Tex., and all of them, except the deed by virtue of the sale under said deed of trust, were recorded prior to July 28, 1891, the time when the muniments of title to appellees Pitkin were recorded in Hunt county. which was more than a year after the appellant mortgage company had acquired and fixed its lien upon the land. The land in controversy adjoins the Fiser survey on the south. In 1876 the owner of the Fiser survey improved 15 or 20 acres near his south line, and by mistake inclosed 7 acres of the survey in controversy. At the time this land was put in cultivation one Cummins was acting as agent of the Fiser survey, and for several years all of the cultivated land was rented as the land of the Fiser survey. Subsequently, in about 1879 or 1880, Cummins was also appointed by the Pitkins as agent to look after their survey. Cummins then had the lines of the Francis survey run and duly marked, and he then discovered that seven acres of the land in cultivation were situated on the survey in controversy, which

Conclusions of Law.

Under the evidence the possession of the land by the tenants renting through Cummins, who was the agent of the Pitkins, was sufficient to warrant the jury in finding that such possession was notice to the mortgage company, and those under whom said company claims, of Pitkins' ownership of the land at the date of their respective purchases. Brownsen v. Scanlan, 59 Tex. 222; Bowles v. Brice, 66 Tex. 725, 2 S. W. 729; Wickes v. Lake, 25 Wis. 71; Webb, Record Title, §§ 233, 234.

There is no error in the charge of the court, nor in refusing the special charges asked by appellants in reference to Pitkins' possession, as the main charge fully covered the law on that point. The judgment is affirmed as to Eliza and G. W. Pitkin, appellees.

On the other branch of the case appellant mortgage company requested the court to instruct the jury, in effect, that the consideration expressed in the warranty deeds of its remote vendors was conclusive as to the amount received by them for the land, which was refused. It is well settled in this state that the measure of damages on a warranty as between the immediate parties to the deed is the amount of purchase money paid, with legal interest thereon. In such a case the consideration expressed in the deed is not conclusive, but parol evidence is admissible to show what the true consideration is. We have been cited to no decision in this state, nor have we been able to find any, where the right to show by parol what the true consideration was, when different from that expressed in the deed, was allowed when a vendee was suing a remote vendor, and had no notice of the consideration other than that expressed in

Looking to other authorities, we find that, "as a general rule, the consideration clause in a deed to lands is open to explanation, but in an action on a covenant of warranty, brought by one by one to whom the grantee in the deed has conveyed, the grantee is not at liberty to show the consideration paid for the land to be less than the sum expressed in the deed." 3 Sedg. Dam. § 965; Loan Co. v. Bonner, 91 Ill. 114; Shorthill v. Ferguson, 44 Iowa, 249; Greenvault v. Davis, 4 Hill (N. Y.) 643. The deeds made by the Todds and Warren, respectively, expressed a consideration as paid for the land greater than that actually received by them, and greater than the consideration paid by the mortgage company when it purchased. The evidence fails to show that the mortgage company had notice of the considerations paid to the Todds or to Warren; therefore the court erred in refusing the instruction asked, for the said mortgage company would be entitled to recover of said warrantors for the ful amount paid by it for the land, unless, at the tim› it purchased, it had notice of the consideration actually paid said warrantors when they sold. This rule we think just and equitable. Parties purchasing land have the right to rely on the covenants of warranty of remote as well as immediate vendors, and, when recitals are made in the deed, the parties making them should be estopped from contradicting them as against parties purchasing without notice of secret equities that may exist between the original parties. The judgment is reversed as to George T. and Charles S. Todd and John A. Warren, and affirmed as to Eliza and G. W. Pitkin.

JUDGMENT BY DEFAULT-ANSWER FILED.

The court has no power to render a judg-. ment against defendant by default when an answer is on file, and it is error to refuse to set aside such judgment on defendant's motion, though the fact of the answer being filed is not called to the court's attention on the proceeding to set it aside.

Error from district court, Hill county; J. M. Hall, Judge.

Trespass to try title by Ellen F. Turner and others against George W. Sevier. There was a judgment for plaintiffs, and defendant brings error. Reversed.

E. P. Anderson, for plaintiff in error.

FINLEY, J. This is a suit of trespass to try title to a small tract of land,—really a boundary suit,-filed September 21, 1893. October 2, 1893, the defendant answered by general demurrer, exception raising the issue of jurisdiction, general denial, and plea of not guilty. The answer appears to have

been filed on said 2d day of October, 1893. On October 3, 1893 (appearance day), judgment by default was rendered against the defendant, and in favor of plaintiffs,-that they recover the land, etc. There is no statement of facts contained in the record. Defendant filed a motion and amended motion to have the judgment set aside, both of which were overruled. The defendant has prosecuted a writ of error from said judgment, and assigned errors. It appears from the motion to set aside the judgment that on the day the judgment was entered the parties to the suit entered into a written agreement staying the proceedings in the cause, in order to effect a compromise. The court below doubtless rendered judgment by default under the impression that no answer had been filed, and it is not made to appear that the fact of the answer's being filed was called to the attention of the court on the proceeding to set aside the judgment. The record before us is in a very confused state, but we think it sufficiently appears that a judgment by default was not authorized, under the circumstances, and therefore the court erred in not setting the judgment aside. The judgment is reversed, and the cause remanded for a trial upon the merits.

MUTUAL RESERVE FUND LIFE ASS'N v. TOLBERT. (Court of Civil Appeals of Texas. Oct. 26, 1895.)

ACTION ON LIFE INSURANCE POLICY-WAIVER OF CONDITION-PLEADING-EVIDENCE -SUFFICIENCY.

1. In an action on a life policy providing for suit within one year from assured's death, the petition alleged quibbling over unimportant defects in the proofs, leading plaintiff to understand that the matter would be adjusted when such defects were cured, with a fraudulent intent to allow such year to expire. Held, that the petition showed a waiver by defendant of such condition in the policy.

2. The evidence showed that defendant's objections to the proofs of loss furnished were such that it would be hard to attribute to it any other motive than the fraudulent purpose of allowing such year to expire; that in addition to repeated letters written by defendant, demanding purely formal changes in the proofs of death, without intimating dissatisfaction with the merits of the claim, defendant's vice president stated to plantiff's agent that plaintiff had the blanks necessary to be filled up, and, if they were intelligently filled, he had no doubt that the matter could be arranged. Held, that the evidence was sufficient to establish a waiver of the condition in such policy.

Appeal from district court, Wilbarger county; G. A. Brown, Judge.

Action by J. R. Tolbert, administrator of the estate of W. M. Mulligan, deceased, against the Mutual Reserve Fund Life Association, on a mutual life insurance policy. From a judgment for plaintiff, defendant appeals. Affirmed.

West & Smith, for appellant. Hall & Tolbert, for appellee.

HEAD, J. This suit was instituted January 10, 1893, by appellee, as administrator of W. M. Mulligan, deceased, to recover upon a $1,000 life insurance policy issued by appellant. The only question we have found it necessary to consider is the sufficiency of the pleading and evidence to sustain the finding of the court that appellant had waived that clause of the policy which provides that "no action at law or suit in equity shall be maintained hereon, or recovery had, unless such action or suit is commenced within one year from the date of the death of said member." In Insurance Co. v. McGregor, 63 Tex. 404, it is said: "If the course of conduct pursued by the appellant was such as to induce the appellee to believe that the sum admitted to be due on the adjustment made would be paid without suit, and that for this reason suit was not brought within the time prescribed, then, under well-settled principles applicable to such cases, this action may be maintained, even on the policies, after the expiration of the time therein prescribed." This language is quoted with approval in Steel v. Insurance Co., Bk. 38, Lawy. Co-Op. Ed., U. S. Sup. Ct. 1065, and in Insurance Co. v. Tobey (Tex. Civ. App.) 30 S. W. 1111. In 2 May, Ins. (3d Ed.) § 488, it is said: "But this condition, like all others intended for the benefit of the insurers, may be waived by them; and as the condition is a harsh one, in its bearing on the insured, and works a forfeiture, when upheld, the courts will not require very stringent evidence in order to defeat its application. A positive act of the company, intended to induce postponement, is not necessary. And, where the evidence upon this point is conflicting, waiver is a question of fact, for the jury. Mere silence, however, is no waiver, though it may be evidence thereof to go to a jury. *** Nor, as we have just seen, is the mere pendency of negotiations in good faith. If, however, they are not prosecuted in good faith, or are made the occasion of delay,-a result to which the insurers mainly contribute, by holding out hopes of an amicable adjustment, whereby the insured is led to feel a false security,-this is a waiver. So, if the delay, for any cause, be attributable to the insurers, and the insured be not in fault. Thus, in Ames v. Insurance Co., 14 N. Y. 254, where the policy provided that suit must be brought within six months from the day of the loss, and that the insurers should have ninety days after proofs were furnished within which to pay, the proofs of loss were delivered to the defendants some nine days after the fire. They were then retained, without objection, for eighty-five days, when suggestion was made by the insurers that further proof was necessary, which further proof was furnished in seven days more. No further objections were made. By the delay, however, the time within which the plaintiff had a right to demand payment did not arrive till after the time limited for bringing suit. The defendants had thereby secured an extension of time within which to pay the loss, and put it out of the

power of the plaintiff to successfully maintain a suit commenced within six months after the loss occurred. To the same effect is Curtis v. Insurance Co., 1 Biss. 485, Fed. Cas. No. 3,503, where it is said that, if the conduct of the insurers during the negotiations is such that the insured may reasonably believe that they intend to pay them, delay is excusable, otherwise not." When tested by these authorities, which we approve, we have no hesitation in pronouncing appellee's pleading amply sufficient to show a waiver by appellant of the provision in the policy referred to above. It alleges with unusual distinctness and particularity the conduct of appellant in quibbling over unimportant defects in the proofs of death, and its refusal to be satisfied with those furnished on account thereof, at the same time leading appellee to understand that the matter would be adjusted when these defects were cured, all of which was averred to have been fraudulently done to allow this time to expire. We also conclude that the evidence was sufficient to sustain the finding establishing the truth of these allegations. In fact, some of the objections interposed by appellant to the proofs furnished were so exceedingly flimsy (such, for instance, as repeatedly demanding "exemplified" instead of "certified" copies, and refusing to explain its understanding of the difference between the two) that it would be hard to attribute to it any other motive than the one charged in appellee's pleading. But in addition to the repeated letters written by appellant demanding purely formal changes in the proofs of death, without intimating dissatisfaction with the merits of the claim, we find in the record a letter from John H. Carr, to whom the claim was sent for adjustment in New York, dated April 15, 1892, in which the following statement is made: "Mr. Baldwin [appellant's vice president] says that you have the blanks necessary to be filled up, and, if they [are] intelligently filled, he has no doubt that the matter can be arranged here, but that the proofs already in are imperfect in several particulars, many of the blanks not being filled." This letter was admitted in evidence without objection, and its statements are uncontradicted. We think it can hardly be contended that such statements as these, made by the vice president of an insurance company, who has the matter in charge at its home office, were not sufficient to induce the belief that the claim would be paid without suit, as soon as the objections to the proofs should be removed.

We find no reversible error in the rulings of the court upon the rejection of evidence offered by appellant to show the appointment of several temporary administrators previous to appellee. The briefs fail to advise us of the materiality of this proffered evidence, in its bearing upon the issues upon which the case was decided, and we have been unable to discover it. The proofs furnished by appellee's predecessors seem to have been as unsatisfactory to appellant as those furnished by appel

lee, and it will be observed that payment was not to be made until "ninety days after acceptance of satisfactory evidence to the association of the death of said member." No attempt seems to have been made by appellant to sustain its charges of fraud on the part of Mulligan in obtaining the insurance. We conclude that all of appellant's exceptions to appellee's pleading were properly overruled, and that the court did as we would have done, in holding that appellant had waived the requirement of suit within one year from the death of the member. The judgment appealed from is affirmed.

RAHL et al. v. FERGUSON. (Court of Civil Appeals of Texas. Dec. 7, 1895.)

APPEAL-SUFFICIENCY OF EVIDENCE.

Testimony of the owner of goods seized under execution against his vendor that the stock at the time of his purchase, which was only a short time before the seizure, was worth a certain amount, and that the total of his sales since his purchase was a certain sum, is sufficient to sustain, as to the value of the goods, a verdict for 10 per cent. less than the difference between the value at the time of the purchase and the amount of the sales.

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

Action by Charles Ferguson against John E. Rahl and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

S. H. Lumpkin, for appellants. L. C. Alexander, for appellee.

STEPHENS, J. This appeal is from a second verdict and judgment, affirming the validity as to appellee of an alleged fraudulent sale to him by one Archer, of a stock of liquors in Morgan, Tex. The sale was made November 17 (Saturday), 1888, and, on November 21st following, King & Fordtran, to whom Archer was indebted, caused the property to be seized under attachment by their coappellant, Constable Rahl, as the property of Archer. Rahl had judgment over against them for the amount found by the jury against him, to wit:

This sale was evidently fraudulent on the part of Archer, as against his creditors, but whether appellee had or was chargeable with notice thereof was a contested issue, upon which we must hold that the verdict in his favor is not so against all the evidence, as contended by appellants, as to warrant us in disturbing it. The amount of the verdict, also, we must hold to be sustained by the evidence. While appellee did not testify directly to the amount and value of the property on the day of the levy, he did testify to the

amount and value thereof ($641.50) on the day of his purchase, and also showed the amount of cash sales ($43) between that day and the date of the levy. Appellants offered no testimony to rebut the prima facie case of value thus made. These conclusions overrule the first, seventh, eighth, and ninth assignments of error.

The tenth complains of the court's refusal to allow the testimony of a deceased witness, as set forth in the agreed statement of facts in the former appeal, to be read to the jury. The attorney of appellants, however, was permitted to reproduce this evidence, and they therefore had the benefit thereof on the trial.

The other assignments in the brief all relate to the giving and refusing of charges, but we find no merit in any of them. They are consequently overruled, and the judgment affirmed.

CITY OF BELTON v. CENTRAL HOTEL CO.

(Court of Civil Appeals of Texas. Dec. 18, 1895.)

MUNICIPAL CORPORATIONS-ACTION TO ABATE

NUISANCE-WHEN MAINTAINED.

An incorporated city can maintain an action to abate a nuisance caused by the emptying of a private sewer into a creek running through the city, without regard to trespass on the city's property, or that of any citizen.

Appeal from district court, Bell county; W. A. Blackburn, Judge.

Action by the city of Belton against the Central Hotel Company to enjoin defendant from using a certain sewer constructed by it. From a judgment sustaining a special exception to the petition, plaintiff appeals. versed.

Re

James Boyd and W. K. Sanders, for appellant.

COLLARD, J. We think the court below erred in sustaining appellee's special exception to appellant's petition. The special exception sustained is in these words: "The petition does not show that any property of the city of Belton is injured or damaged by any acts complained of against the defendant, and the same does not show any property or right of any citizen in the water of Nolan creek, or any lands over which the same flows." The petition shows that the city of Belton is incorporated under the general laws of the state, being a city of more than 1,000 inhabitants, and, as such corporation, is officered by the usual officers required for its existence and operation; that defendant (appellee) is a private corporation, also incorporated under the general laws of the state, under the name of the "Central Hotel Company of Belton." The petition charges that defendant has constructed, and now in use, several large buildings for hotel purposes, where a large number of people daily assemble, and stay from

day to day, during the year, and where board and lodging are furnished; that it has constructed, and now in use, one large sewer pipe or main, leading from defendant's several hotel buildings, running across a public street (Pearl street) in the city of Belton, and through which sewer pipe all the filth, human excrement from the sinks and many privies, situated in and around defendant's hotel buildings, slops, wash suds from the wash rooms, kitchen, and all refuse matter accumulated in and around said hotel buildings, are conveyed, daily and continuously, into the bed of Nolan's creek, thus accumulating, daily and continuously, a large deposit of filth, human excrement from the privies, sinks, and soap suds from the wash rooms, and slops from the kitchen, and other refuse matter from said hotel buildings, into Nolan's creek, thus causing said creek, that was heretofore pure, and was used for natural purposes for man and beast, to become impure in and for a great distance around said deposit, offensive to the nostrils of the citizens of the city of Belton, and that the stench arising from said deposit so as to, and does, seriously interfere with the comfortable enjoyment of the property and homes of the inhabitants of the city of Belton, and that the same is hurtful and unwholesome to each and all the inhabitants of the city of Belton, and that said deposit has caused the waters of said Nolan's creek to become impure, and unfit for the natural use of both man and beast; that the sewer pipe was constructed over and across a public street of the city without its authority or consent, and that the said deposits have become a public and private nuisance, and that the further continuous use by defendant of the sewer in discharging said accumulations into the creek will work an irreparable injury to plaintiff, and that plaintiff has no adequate remedy at law to abate the same. Prayer for injunction, restraining defendant from the further use of the sewer for the purposes named. To state it briefly, the suit is one by the city of Belton, incorporated, to abate a nuisance created and kept by defendant, which is injurious to the citizens of the city. We have no doubt that an incorporated city in this state has the power to abate a nuisance of the character described in the petition in this case, and this without regard to trespass upon the city's property, or that of any citizen, by the nuisance complained of. If the nuisance exist in the city, the city, as a municipal corporation, has the right to abate it. This question was elaborately discussed, and the authorities collated, by Chief Justice Fisher in the case of City of Llano v. Llano County (decided by this court) 5 Tex. Civ. App. 132, 23 S. W. 1008. It was there held that an incorporated city could maintain the action to abate a nuisance, to prevent the continuance by the county of a jail and offensive cesspool upon a public square dedicated for a county courthouse. We refer to that case as decisive of the question in this case.

The