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Pearl and San Jacinto streets, as the prop- Appeal from district court, Hunt county; erty of defendant in error, and was adver- E. W. Terlune, Judge. tised for sale thereunder by said constable Action by D. W. Allison and others against for the 7th day of November, 1893. On No- Eliza Pitkin and others. From the judgment, vember 3, 1893, defendant in error filed a pe- plaintiffs appeal. Reversed in part and aftition in the district court of Dallas county, firmed in part. Tex., alleging that the lot so levied upon was

Williams & Butts, for appellants. Sherrill a part of his homestead, and that he was the

& Hefner, for appellees. head of a family, and resided with said family on said lot, and had no other home, and

Conclusions of Fact. prayed for a writ of injunction to restrain plaintiff in error and said constable from sell- RAINEY, J. The land in controversy in ing said property under and by virtue of this suit was patented to W. S. Todd, assaid execution, levy, and advertisement. On signee, in 1857, and said Todd deeded the November 2, 1893, before the petition was land to Horrace W. and G. W. Pitkin in 1859, filed, Hon. R. E. Burke, district judge, grant- through whom the appellees claim. The pated a temporary restraining order as prayed ent recited that the land was situated in for. Defendant (plaintiff in error) filed a

a Fannin county, when, as a matter of fact, it general demurrer and general denial, and was situated in Hunt county, Tex. In 1888, pleaded specially that the property levied up- W. S. Todd and wife, Eliza, being dead, on, and the sale of which was therein sought George T. and Charles S. Todd, as heirs of to be enjoined, was not used by plaintiff as W. S. Todd and wife, Eliza, by warranty a homestead, but that same was rented by deed sold the land to W. C. Nail, which deed plaintiff for purposes entirely inconsistent recited a cash consideration of $5,000, but in with homestead use, and that same had for fact said George T. and Charles S. Todd only a number of years prior to the date of said received the sum of $500 in payment of their levy been so rented and occupied by others, interest in the land. W. C. Nail, in 1888, to tbe exclusion of plaintiff and all of his deeded the land to John A. Warren, warfamily, for whose support he was responsible, ranting the title thereto, and reciting a conand that same was part of a large, valuable sideration of $5,500. In 1889, John A. Warblock of ground owned by plaintiff, exceeding ren, by warranty deed, conveyed the land to in value, exclusive of improvements, the sum W. C. Gamble, reciting a consideration of of $5,000. Plaintiff, by way of supplemental $6,000, but in fact there being only $3,000 of petition, filed a general demurrer and general the consideration paid. In May, 1890, W. C. denial to defendant's answer. Plaintiff also Gamble borrowed from the W. C. Belcher excepted to so much of defendant's answer as

Land Mortgage Company the sum of $2,700, set up the value of the property owned by and to secure the payment of same executed Ray, and claimed by him as exempt, wlich a deed of trust on the land in controversy, exception the court sustained, over defend

under which deed of trust the land was sold, ant's objection. Upon the trial below the

and the trustee in the deed of trust on Aucourt perpetuated the injunction, from which

gust 6, 1891, deeded the same to the W. C. an appeal is taken.

Belcher Land Mortgage Company, the conThere were no conclusions of law filed by

sideration paid at the sale being $2,000, which the court below. The evidence, and the judg

was credited on said indebtedness. All of the ment of the court thereon, justify the conclu

foregoing instruments were duly recorded in sions that at the time of the levy upon the

Hunt county, Tex., and all of them, except lot in controversy the defendant in error W.

the deed by virtue of the sale under said deed A. Ray was the head of a family; that the

of trust, were recorded prior to July 28, 1891, lot in question was a part of his homestead,

the time when the muniments of title to apand as such was exempt from forced sale; pellees Pitkin were recorded in Hunt county, and that the injunction was properly granted

which was more than a year after the appeland perpetuated. The judgment is affirmed.

lant 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 surALLISON et al. v. PITKIN et al.

vey improved 15 or 20 acres near his south

line, and by mistake inclosed 7 acres of the (Court of Civil Appeals of Texas. Nov. 23, 1895.)

survey in controversy. At the time this land PURCHASE OF LAND - POSSESSION AS NOTICE

was put in cultivation one Cummins was actLIABILITY OF REMOTE WARRANTOR.

ing as agent of the Fiser survey, and for sev1. Part of P.'s land was inclosed with part

eral years all of the cultivated land was of another person's land, and rented by one who rented as the land of the Fiser survey. Subwas the agent of both to the same tenant, who sequently, in about 1879 or 1880, Cummins cultivated all the inclosed land. Held, that the possession of the tenant was notice to purchas

was also appointed by the Pitkins as agent ers of P.'s land of his claim thereto.

to look after their survey. Cummins then 2. While a warrantor may show by parol, had the lines of the Francis survey run and as against his immediate grantee, that the consideration was less than that recited in his deed,

duly marked, and he then discovered that he cannot show it as against a remote grantee

seven acres of the land in cultivation were purchasing without notice.

situated on the survey in controversy, which is the Francis survey. For a while after dis- the deed. Looking to other authorities, we covering it, he, being agent of both the Fiser find that, “as a general rule, the consideraand Francis surveys, rented the land in lump, tion clause in a deed to lands is open to exwithout notifying the tenants that the land / planation, but in an action on a covenant of belonged to two different parties. He col. warranty, brought by one to

to whom the lected the rents, and accounted to the differ- grantee in the deed has conveyed, the grantee ent owners therefor. There was no fence is not at liberty to show the consideration segregating the two surveys until 1890, which paid for the land to be less than the sum exwas not until after appellant mortgage com- pressed in the deed." 3 Sedg. Dam. § 965; pany had acquired its lien upon the land. Loan Co. v. Bonner, 91 Ill. 114; Shorthill v. The improved land on the Fiser and Francis Ferguson, 44 Iowa, 249; Greenvault v. Davis, surveys was inclosed in a common inclosure 4 Hill (N. Y.) 643. The deeds made by the as one farm. The houses were on the Fiser Todds and Warren, respectively, expressed survey, but the tenants were instructed to a consideration as paid for the land greater also look after the Francis survey, and pre- than that actually received by them, and vent depredation on the timber. In 1890 the greater than the consideration paid by the improved land on the survey in controversy mortgage company when it purchased. The was not cultivated. The tenant who culti- evidence fails to show that the mortgage vated the farm on the Fiser survey of that company had notice of the considerations paid year used that part of the land in controversy to the Todds or to Warren; therefore the for a pasture. It was generally known in court erred in refusing the instruction asked, the neighborhood that the land in contro- for the said mortgage company would be enversy belonged to the Pitkins. The posses- titled to recover of said warrantors for the sion of the land in the manner indicated was full amount paid by it for the land, unless, sufficient notice to the mortgage company, at the tim» it purchased, it had notice of the and those under whom it claims, that the consideration actually paid said warrantors Pitkins were adverse claimants of the land. when they sold. This rule we think just and

equitable. Parties purchasing land have he Conclusions of Law.

right to rely on the covenants of warranty Under the evidence the possession of the of remote as well as immediate vendors, and, land by the tenants renting through cum- when recitals are made in the deed, the parmins, who was the agent of the Pitkins, ties making them should be estopped from was sufficient to warrant the jury in finding contradicting them as against parties purchasthat such possession was notice to the moct- ing without notice of secret equities that may gage company, and those under whom said

exist between the original parties. The judgcompany claims, of Pitkins' ownership of

ment is reversed as to George T. and Charles the land at the date of their respective pur- S. Todd and John A. Warren, and affirmed as chases. Brownsen v. Scanlan, 59 Tex. 222; to Eliza and G. W. Pitkin. 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

SEVIER v. TURNER et al. appellants in reference to Pitkins' possession, (Court of Civil Appeals of Texas. Nov. 30, as the main charge fully covered the law on

1895.) that point. The judgment is affirmed as to JUDGMENT BY DEFAULT-ANSWER Filen. Eliza and G. W. Pitkin, appellees.

The court has no power to render a judg.. On the other branch of the case appellant ment against defendant by default when an mortgage company requested the court to in- answer is on file, and it is error to refuse to struct the jury, in effect, that the considera

set aside such judgment on defendant's motion,

though the fact of the answer being filed is not tion expressed in the warranty deeds of its called to the court's attention on the proceedremote vendors was conclusive as to the ing to set it aside. amount received by them for the land, which

Error from district court, Hill county; J. was refused. It is well settled in this state

M. Hall, Judge. that the measure of damages on a warranty

Trespass to try title by Ellen F. Turner as between the immediate parties to the deed

and others against George W. Sevier. There is the amount of purchase money paid, with

was a judgment for plaintiffs, and defendant legal interest thereon. In such a case the

brings error. Reversed.
consideration expressed in the deed is not
conclusive, but parol evidence is admissible

E. P. Anderson, for plaintiff in error,
to show what the true consideration is. We
have been cited to no decision in this state, nor FINLEY, J. This is a suit of trespass to
have we been able to find any, where the right try title to a small tract of land,---really a
to show by parol what the true consideration boundary suit,--filed September 21, 1893. Oc-
was, when different from that expressed in the tober 2, 1893, the defendant answered by
deed, was allowed when a vendee was suing general demurrer, exception raising the issue
a remote vendor, and had no notice of the of jurisdiction, general denial, and plea of
consideration other than that expressed in not guilty. The answer appears to have

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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

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

below doubtless rendered judgment by de- the sum admitted to be due on the adjustment

fault under the impression that no answer made would be paid without suit, and that for had been filed, and it is not made to appear this reason suit was not brought within the that the fact of the answer's being filed was time prescribed, then, under well-settled princicalled to the attention of the court on the ples applicable to such cases, this action may proceeding to set aside the judgment. The be maintained, even on the policies, after the record before us is in a very confused state, expiration of the time therein prescribed.” but we think it sufficiently appears that a This language is quoted with approval in Steel judgment by default was not authorized, v. Insurance Co., Bk. 38, Lawy. Co-Op. Ed., U. under the circumstances, and therefore the S. Sup. Ct. 1065, and in Insurance Co. v. Tocourt erred in not setting the judgment aside. bey (Tex. Civ. App.) 30 S. W. 1111. In 2 The judgment is reversed, and the cause re- May, Ins. (30 Ed.) § 488, it is said: "But this manded for a trial upon the merits.

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 bear

ing on the insured, and works a forfeiture, MUTUAL RESERVE FUND LIFE ASS'N when upheld, the courts will not require very V. TOLBERT.

stringent evidence in order to defeat its appli(Court of Civil Appeals of Texas. Oct. 26, cation. A positive act of the company, in1895.)

tended to induce postponement, is not necesACTION OX LIFE INSURANCE POLICY -- WAIVER OF sary. And, where the evidence upon this point CONDITION-PLEADING-EVIDENCE

is conflicting, waiver is a question of fact, for -SUFFICIENCY.

the jury. Mere silence, however, is no waiver, 1. In an action on a life policy providing for suit within one year from assured's death,

though it may be evidence thereof to go to a the petition alleged quibbling over unimportant jury. * * * Nor, as we have just seen, is the defects in the proofs, leading plaintiff to under

mere pendency of negotiations in good faith. stand that the matter would be adjusted when

If, however, they are not prosecuted in good such defects were oured, with a fraudulent intent to allow such year to expire. Held, that faith, or are made the occasion of delay,--a rethe petition showed a waiver by defendant of sult to which the insurers mainly contribute, such condition in the policy. 2. The evidence showed that defendant's ob

by holding out hopes of an amicable adjustjections to the proofs of loss furnished were such

ment, whereby the insured is led to feel a that it would be hard to attribute to it any false security,---this is a waiver. So, if the deother motive than the fraudulent purpose of al- lay, for any cause, be attributable to the inlowing such year to expire; that in addition to repeated letters written by defendant, demand

surers, and the insured be not in fault. Thus, ing purely formal changes in the proofs of in Ames v. Insurance Co., 14 N. Y. 254, where death, without intimating dissatisfaction with the policy provided that suit must be brought the merits of the claim, defendant's vice presi

within six months from the day of the loss, dent stated to plantiff's agent that plaintiff had the blanks necessary to be filled up, and, if they

and that the insurers should have ninety days were intelligently filled, he had no doubt that after proofs were furnished within which to the matter could be arranged. Held, that the

pay, the proofs of loss were delivered to the evidence was sufficient to establish a waiver of the condition in such policy.

defendants some nine days after the fire. They

were then retained, without objection, for Appeal from district court, Wilbarger county; eighty-five days, when suggestion was made G. A. Brown, Judge.

by the insurers that further proof was necesAction by J. R. Tolbert, administrator of

sary, which further proof was furnished in the estate of W.M. Mulligan, deceased, against

seven days more. No further objections were the Mutual Reserve Fund Life Association, on

made. By the delay, however, the time witha mutual life insurance policy. From a judg in which the plaintiff had a right to demand ment for plaintiff, defendant appeals. Af

payment did not arrive till after the time limfirmed.

ited for bringing suit. The defendants had West & Smith, for appellant. Hall & Tol- thereby secured an extension of time within bert, for appellee.

which to pay the loss, and put it out of the

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.

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 con. tended 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

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. ALfirmed.

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

STEPHENS, J. This appeal is from a second verdict and judgment, affirming the valid. ity 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: Value of goods.

$562 50 Cash

43 00 Interest

221 25

Total

$826 75 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

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. Reversed.

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

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

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

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