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Hutcheson & Hutcheson, all of Houston, for corner by the federal court at Galveston in appellee.

the case of Harris v. Wilson, referred to in

this description. The trial court sustained GRAVES, J. This is a boundary suit, in- this theory of the case, refused to admit any volving the true location on the ground of the evidence of the possible location of the west west line of the lower A. Miles tract in the line of the Miles at any other or different Harris & Wilson two-league grant in Harris place than 1,062 varas west from its northcounty, Tex.; appellants owning upon the east corner, and submitted to the jury the west and appellee upon the east of that line. sole question as to whether this northeast Appellee, who was plaintiff below, sued appel- corner was located on the ground as claimed lants for a part of this A. Miles tract, de- by the one or the other of the litigants. Upscribing it in his petition as follows: on the jury's answering that they found it

"Beginning at an iron stake set in the south located where appellee claimed it to be, judgside of the Wallisville road, the same being the ment was entered in his favor against appelnorthwest corner of the A. Miles tract of land, and the northeast corner of the James T. D. lants for the land sued for, from which they Wilson tract, as the same was described and prosecute this appeal. set apart to the said James T. D. Wilson by

The appellants contended below, and tendecree of the Circuit Court of the United States dered voluminous evidence in support of it, in the suit of Glenn M. Harris v. James T. D. Wilson et al., C. L. 1476, which decree is re- that the location of the disputed line which corded in Volume 49, page_68, of the Deed separated their land from appellee's—that is, Records of Harris county, Texas, which said the west line of the lower A. Miles tract-was corner is the beginning corner of the land herein sued for, and which said beginning corner is not at all dependent upon the location of its 1,062 varas west from the northeast corner, northeast corner, but by the very muniments being located on the east line of the Harris & of his title, as well as by the judgment of the Wilson two-league grant about 100 feet north federal court in Harris v. Wilson, invoked of the northwest corner of the John Brown league on the east line of the said Harris & and relied upon by appellee, was made deWilson survey, and the said northeast corner pendent upon two other well-known tracts in being marked by a stake set in said east line the Harris & Wilson two leagues, namely, at a point where the Wallisville road crosses same, and also marked by a wire fence, which what were designated as “the 160-acre recorner is at said stake in said road.

serve" and the C. C. Norton or Knowslar "Beginning at said iron stake as fixed for 19242 acres; that therefore the only fact isthe northwest or beginning corner of the land herein sued for, as described above, plaintiff's sue submitted to the jury was wholly imwest line runs thence south with the east line material, and its determination had nothing of the tract decreed and set apart to James T. to do with the main issue in the case, which D. Wilson by the decree above referred to and parallel with the east line of the Harris & Wilson survey, as above described, and 1,062 varas "Where is the dividing line between the lower therefrom, for a distance of 2,474.3 varas, or A. Miles and the lower Franklin or Wilson 6,873 feet, at which a stake is set for corner tract?'' marking the southwest corner of the tract herein sued for, said corner also being the northeast corner of the Norton or Knowslar tract

The court having rejected their contention as the same is described in the Deed Records and excluded all their proffered evidence, of Harris county, Texas, in Book D, page 169, charges, and other tendered means of havconveying said tract to C. C. Norton, and which corner is also an interior corner of the James ing them passed upon by the jury, they duly T. D. Wilson tract as set apart and described preserved their right to complain through exin said decree of the federal court above re- ceptions and otherwise, and have by approferred to, which said corner is 618 varas east priate assignments and procedure here propof the northwest corner of the Norton or Knowslar tract, and 1,062 varas west of the east line erly invoked this court's authority to review of the Harris & Wilson two league grant; that action. thence running east, parallel with the Wallis- We think the position of appellants was ville road and with the north line of the A.

art erred. In Miles tract, a distance of 150 varas, for the correct, and that the trial southeast corner of this survey; thence north, aid of a clearer appreciation of the issues parallel with the west line of this tract here- raised, we attach a map of the subdivision of tofore described, to the north line of the A. the Harris & Wilson survey made in 1861 by Miles tract on the Wallisville road; thence west, with the south line of the Wallisville road, its then owners, B. C. Franklin and A. Miles, to the northwest corner of this tract, the place by J. L. Latham, his attorney in fact, showof beginning."

ing the “160-acre reserve" at the junction of His contention was that the location of the the two railroads, and the C. C. Norton or land he sued for was dependent alone upon Knowslar 19242 acres at the lower end on the location on the ground of the northeast Buffalo Bayou, and between what are elsecorner of this A. Miles tract, which it was where herein referred to as the lower A. asserted was in fact where his quoted de- Miles and B. C. Franklin, or Wilson, tracts; scription placed it; that such was the only the land sued for in this suit lay in the northfact issue in the case, and that the length west corner of this lower A. Miles, in the of the north line, or the width, of the A. Miles form of a long, narrow parallelogram, 150 tract, had been conclusively settled and ad- varas east and west by 2,474.3 varas north judicated to be 1,062 varas from its northeast and south, the approximate position of which

was:

LINE

BY

SUBDIVISION

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we have taken the liberty of indicating on the 8 according to a prior plat and survey made map by dotted lines of our own.

by Darius Gress, aggregating 115142 acres, and 77 acres lying in the rear of these lots, surveyed by F. Jacob Rothaus on April 22,

1839. With the Norton tract having been R.D.WESTCOTT

thus conveyed and described 22 years before, 6 80 ACRES

when they later came in 1861 to partition and segregate to each his part of their res maining holdings, and to first set apart the 160 acres reserved for continuing common ownership, as one of the bases upon which

to make division of the balance, they thus described the reserve tract:

"In order to ascertain the beginning, run a AUGUSTUS MILES

line parallel with the back line of the said two B.C. FRANKLIN

leagues from or through the point where the

lines of the Tyler Railroad and the Gentry or L.J. LATHAM

New Orleans Railroad cross or intersect each

other, to the west line of the said two leagues, ATTY. IN FACT

on this line 1,680 varas east of said boundary line is the beginning point; thence south 5371, varas, establish a

corner; thence east S10 varas; thence north 1,075 varas, establish corner; thence west 840 varas, establish a corner; thence south to the place of beginning."

This brings us to what we deem the deci. sive feature of this record; for these two joint owners, Franklin and Miles, having thus set apart the 160-acre reserve and tied

it to the meeting point of the two railroads SRESERVED

crossing it, which was surely no uncertain 680 VRS.

anchorage, then further provided in the deed 160 AC

that the remainder of the land should be di. DIVISION LINE

vided into two divisions, to be known as the first and second divisions, and that the di.

viding line between the two divisions should A.MILES

begin at the southwest corner of the reserve, B.C.FRANKLIN

and should then run east to the east bound

ary line of the original grant, the land lying LULLATHAM

south of the line to be known as “Division No. 1," and the land lying north of the line to be known as “Division No. 2." The land lying south of the division line, being tract

No. 1, was to be subdivided into two tracts, 420 vs.

as follows: C.C.

Beginning at a point on said division line NORTON

(south line of 160-acre reserve extended east),

from which a line drawn south will strike the 1921/2

northeast corner of the 19214 acres conveyed to C. C. Norton as aforesaid. That portion of the land herein before described held now in common which lies south and west of said diri. sion line is set apart to Benjamin C. Franklin, to be held by him henceforth in severalty and separate ownership. That part or portion of

said land south and east of said division and Back in 1839 these two joint owners, as subdivision lines is set apart to Augustus Miles, their first conveyance of any of the property, to be henceforth held by him in severalty and had sold to C. C. Norton his 1921/2 acres, which

separate ownership.” subsequently passed to Knowslar, and then, As is indicated on the above map, the by this subdivision of 1861, which was also a east part of division No. 1 was assigned to partition by deed between them, they had Miles, and has since been known as the lower divided the balance of the survey between Miles tract, to distinguish it from a tract themselves according as their names appear awarded to Miles out of the north end of the upon this copied map, except that the "160- survey, or division No. 2, and the west part acre reserve" and also a small 20-acre tract of division No. 1 was awarded to Franklin, in the southeast corner of the survey, the lat- and has since been known as the lower ter not sufficiently material here to require Franklin tract, and later on as the Wilson further mention, were left in common owner- tract. ship for future disposition. By their joint The location upon the ground of the line deed to Norton, in describing this 1924 acres, so referred to in this partition deed as the they had tied it to the east side of Buffalo Ba- line dropped south from such a point on the you, reciting that it comprised lots 6, and division line as to strike the northeast corner

NEWORLEANS R.R.

SUBDIVISJON LINE

BY

R.R.

RESERVE 20 ACRES

AC

HOUSTON

of the C. C. Norton 1921,2 acres is the west, in the judgment for the purpose of describline of the lower A. Miles tract, and consti- ing the tract awarded to Wilson, having no tutes the main, if not indeed the sole, issue greater, if indeed it was of equal dignity in this case. That this definite, accurate, and with others of such calls, and that appellants original call for it in appellee's title furnish- were not precluded and estopped from showed the proper criterion for its actual location, ing a different location and distance. So we have no doubt; and this, despite the concluding, we sustain appellants' first two recitation as to 1,062 varas appearing in ap- assignments, reading as follows: pellee's description of the tract he sued for,

"The court erred in ruling and holding that because the evidence disclosed that there was the judgment in the case of Harris v. Wilson not in the title to the Miles tract, nor in any et al. conclusively fixed and established the conveyance or muniment of title into and un- northwest corner and the west line of the low

er or southern A. Miles tract of land at a disder which appellee claimed, any call placing tance of 1,062 varas from the northeast corner the west line of that tract, or of his land, at of the said A. Miles tract, and that the said 1,062 varas from its east line; and that the call for distance of 1,062 varas was an adjudi

cation as to distance between the east and west only way that call for 1,062 varas got into lines of the said A. Miles tract, and that the his chain of title was by appropriating it defendants were cstopped and precluded from from the decree of the federal court in the showing that the west line of the A. Miles tract, Harris v. Wilson Case, above mentioned, or, its northwest corner, was located at any which judgment was rendered April 7, 1890. plaintiff's chain of title, and the conveyances

other point on the ground than 1,062 varas; But that recitation, as there used, was not to him, and the decrees of the court to which in description of the A. Miles tract, out of he was a party, calling for said corner to be which appellee claimed, but of another and at a point from which a line dropped south

would fall upon the northeast corner of the different tract, the one there adjudicated to Norton or Knowslar tract. James T. D. Wilson, lying north and west of “The court erred in refusing to permit the the Miles, and described, so far as material, defendants to offer any cvidence as to where the

northwest corner of the A. Miles tract and as follows:

the west line of the miles tract were located “Beginning at the S. W. corner of the 160- upon the ground, or offer any evidence as to acre reserve tract in the said two-league grant; where the Norton or Knowslar tract of land thence east to the S. E. corner thereof; thence was located; the evidence in this case and the north to the center of the Texas & New Orleans | deeds and conveyances to plaintiff, and the deRailroad track; thence northeastwardly, along crees and plats in the case of Harris v. Wilson said railroad track, to its intersection with and in Jones, Guardian, v. J. C. Hutcheson et Hunting Bayou in the east line of said two- al., showing and calling for the northwest corleague grant; thence south, along the east line ner of the Miles tract to be located at a point of said two-league grant, to the N. E. corner of on a dividing line from which a line dropped the A. Miles tract; thence west 1,062 varas to south would fall upon the northeast corner of the N. W. corner of said Miles tract; thence the Norton or Knowslar tract." south to the N. E. corner of the C. C. Norton or Knowslar 19242-acre tract."

Upon the same considerations, we must The court, however, in that decree, did not likewise sustain those further assignments stop with that description, but went further, challenging a similar holding of the trial and made the partition of 1861 between court with reference to the conclusive charFranklin and Miles, and the above-copied acter of descriptive calls, to the same pracsubdivision map thereto attached, as much a tical effect, contained in the judgment in this part of its judgment as if that agreed divi- last-mentioned case of Jones, Guardian, v. sion had been originally made by such judg- Hutcheson, also invoked by appellee as bement. James T. D. Wilson, to whom the ing res adjudicata upon the question of the tract just referred to was adjudged, was the location of the west line of his land. Wood predecessor of appellants in title to the land v. Cahill, 21 Tex. Civ. App. 38, 50 S. W. 1071; in lower B. C. Franklin tract lying west of Goodson v. Fitzgerald, 135 S. W. 696; Steuthe dividing line between it and the lower soff v. Jackson, 40 Tex. Civ. App. 328, 89 S. Miles tract and north and west of the C. C. W. 447; Thatcher V. Matthews, 101 Tex. Norton tract, but not to any land within this 122, 105 S. W. 317; Maddox v. Fenner, 79 last-mentioned tract.

Tex. 290, 15 S. W. 237. If the legal effect In these circumstances, we think that the of the two judgments was not such as appelcall selected by appellee out of the other calls lee contends it was, and did not amount eicontained in the description of the lands ther to a conclusive adjudication or an estopawarded J. T. D. Wilson in the decree in the pel against appellants, then his contention case of Harris v. Wilson, and which call from in this court that estoppel arose from alleg. the east line of the Harris & Wilson survey ed agreements as to the position of these disread, “Thence west 1,062 varas to the north- puted lines must likewise fall, because based west corner of said Miles tract," etc., was and dependent upon the same recitations in not an adjudication that the northwest cor- those judgments. There was no independent ner and the west line of the Miles tract were issue of agreed boundary lines involved in located 1,062 varas from the east line of the the trial in the court below, since that court, Miles tract, nor that the distance between by its previously recited action, took all oththe east and west lines of the Miles tract was er issues than the location of the northeast 1,062 varas; but, on the contrary, that such corner of the lower A. Miles tract, that one call was only a descriptive term among the necessarily included, from the jury. many other descriptive elements employed Since the first two assignments present the

controlling question in the case, the deter- penses in the performance thereof; that apmination of which disposes of the merits of pellee had agreed to pay the reasonable valthis appeal, it becomes unnecessary to dis- ue of his time in the performance of said cuss in detail the great number of remain services and the expenses which he had ining assignments. We have, however, care curred. The value of his time and the fully read and considered them all, and co amount of expenses incurred were alleged. clude that, if they point out any material An exception to the counterclaim was suserrors not disposed of in our conclusions upon tained upon the ground that the items therethe assignments sustained, they are not such of were unliquidated demands, and could not as are likely to occur upon another trial. be set off against the plaintiff's demand. The We deem it proper to further say, however, items claimed in set-off were not unliquidatthat throughout this opinion we have spokened. McCarty v. Squyres, 34 S. W. 356; De of the dividing line between the lower Frank- June v. Brubaker, 5 Tex. Civ. App. 79, 24 S. lin and Miles tracts as being the line in dis-W. 79; Bank v. Lynch, 6 Tex. Civ. App. 590, pute between the parties, under the view 25 S. W. 1042; Snelling v. Koerner, 27 S. W. that the north line of the lower Miles was 887. not really in dispute, since its location wa The court erred in sustaining he excepfixed by the partition deed and plat of 1861 | tion. Reversed and remanded. as being coincident with the south line of the reserve 160 acres, and, if it was, that the location of the west line of this Miles tract in the only way that could properly be done HEMMAN V. JANSSEN OSTERTAG would necessarily locate it also.

MFG. CO. (No. 813.) For the errors indicated, the judgment is (Court of Civil Appeals of Texas. El Paso. reversed, and the cause remanded.

March 14, 1918. Rehearing Denied
Reversed and remanded.

March 28, 1918.)
APPEAL AND ERROR 1161-ASSIGNMENT-
CONFESSION OF ERROR.

Where appellant assigns error to the trial McKINNEY V. SOUTHWESTERN LIQ

court's failure to file findings of fact and conOUR CO. (No. 816.)

clusions of law, request therefor having been (Court of Civil Appeals of Texas. El Paso. made by appellant, and appellee confesses error, March 14, 1918.)

the assignment will be sustained. SET-OFF AND COUNTERCLAIM 35(1)-LIQ- Appeal from El Paso County Court; E. B.

UIDATED ITEMS-VALUE OF TIME AND Ex. McClintock, Judge.
PENSES.

Suit by the Janssen Ostertag ManufacIn suit on a note, where defendant counterclaimed for plaintiff's breach of agreement to turing Company against Nelson Hemman. pay defendant the reasonable value of his time From a judgment for plaintiff, defendant apin the performance of certain services and the peals. Reversed and remanded. expenses which he incurred, the value of defendant's time and the amount of expenses in- Harrington & Bridgers, of El Paso, for apcurred being alleged, the trial court erred in

pellant. McKenzie & Loomis and W. E. sustaining exception on the ground that the Loose, all of El Paso, for appellee. the items were unliquidated demands. Appeal from El Paso County Court; E. B.

WALTHALL, J. This suit was filed by McClintock, Judge.

appellee against appellant under allegations Suit by the Southwestern Liquor Company that appellant and C. A. Bartels were coagainst B. F. McKinney. From a judgment partners and doing business under the tradefor plaintiff, defendant appeals. Reversed

name of Now Manufacturing Company, and and remanded.

based its suit upon an account for merchanP. E. Gardo Hudspeth & Harper, and L. dise sold by it to said company. App A. Dale, all of El Paso, for appellant. A. R. covered judgment on a trial before the court Grambling, Juan Smith, and Beall, Kemp & without a jury. Nagle, all of El Paso, for appellee.

Appellant assigns error to the court's fail

ure to file findings of facts and conclusions HIGGINS, J. Appellee sued appellant up- of law, request that such findings and conon a promissory note. By cross-action, ap- clusions be filed having been made by appelpellant set up a counterclaim arising out of lant. Appellee confesses error in the mata breach of contract. It was alleged by Mc- ter complained of. Kinney that he had performed certain sery- The assignment is sustained, and the case ices for appellee and incurred certain ex- is reversed and remanded.

re

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plaintiff to foreclose its lien, the proof having KAHN V. J. W. CARTER MUSIC CO. shown that there was a balance due of $30, (No. 333.)

and the testimony of defendant being that he (Court of Civil Appeals of Texas. Beaumont. was ready and willing to pay said amount. March 7, 1918.)

This assignment must be sustained. There

seems to be no controversy about the amount SEQUESTRATION C1-CHATTEL MORTGAGES

due, and the only controversy in

ne case FORECLOSURE-NECESSITY.

Where a purchaser of a musical instrument as to whether or not the instrument itself gave a chattel mortgage for the unpaid balance was a chattel mortgage. Without setting out of the price, the seller cannot sequester the property, but to obtain possession in event of the instrument in hæc verba, we are of non payment must foreclose the lien of the opinion that the same was security for the mortgage.

unpaid purchase money on the victrola afore Appeal from Harris County Court; W. E. said, and that the lien thereon should have Monteith, Judge.

been foreclosed by the court until the balance Suit by the J. W. Carter Music Company of the purchase money was paid. against H. E. Kahn, begun in justice court,

The second assignment complains that the and appealed by defendant to county court. court erred in rendering judgment for the From a judgment of the county court for title and possession of the property in controplaintiff, defendant appeals. Reversed and versy, because the undisputed proof in this remanded.

cause showed that the only claim that plain

tiff had against said property was a chattel Meek & Kahn, of Houston, for appellant. mortgage lien for a balance due of $30, and Andrews, Streetman, Burns & Logue, of

plaintiff had never foreclosed a chattel mortHouston, for appellee.

gage thereon in any court of competent juris

diction, and that the instrument relied on by BROOKE, J. The J. W. Carter Music Complaintiff being a chattel mortgage in terms, pany was the owner of a victrola and sold as well as according to the understanding of the same to Mrs. L. E. Allen, who was former- the parties, the court was in error in awardly Miss Alice Bond, reserving a chattel mort. ing judgment for the title and possession of gage lien upon said instrument. Mrs. Allen said property in controversy, instead of reafterward sold said instrument to H. E. quiring plaintiff to establish what indebtedKahn, who at the time of the purchase had

ness was due him, and in failing to grant a knowledge of the fact that there was $30 foreclosure of the lien retained to secure balance due upon said instrument. Kahn not the payment thereof. This assignment must only had this knowledge by inspection of the also be sustained. Hughes v. Smith, 61 Tex. mortgage records, but he also had personal Civ. App. 443, 129 S. W. 1142. knowledge from the president of the J. W. Car

For the errors complained of, the cause is ter Music Company, who informed him of the reversed and remanded for a new trial, in balance due. On the 16th day of October, accordance with this opinion. 1915, the Carter Music Company filed this suit against the appellant and Mrs. L. E. Allen for the title and possession of said victrola and prayed judgment for the title FIDELITY LUMBER CO. et al. v. EWING and possession of same. On the day of filing

et al. (No. 284.) the suit the Carter Music Company sued out (Court of Civil Appeals of Texas. Beaumont. a writ of sequestration, wherein they alleged

Jan, 2, 1918. Rehearing Denied that they were the owners of the victrola and

March 20, 1918.) entitled to the possession thereof. The appel- 1. JUDGMENT Ow433-ACTION TO SET ASIDElant, H. E. Kalın, replevied said property. A

“PRIVITY." trial was had in the justice court on the 18th

In an action of trespass to try title to 320

acres of land, warrantors, who were vouched in, day of January, 1916, in which the court believing plaintiffs' representations that they rendered a judgment in favor of the Carter were the sole heirs of the land in controversy, Music Company, the court finding that the paid them $5,000 therefor, upon which the court said company was the owner of said property, in the warranted owners and releasing the war

entered its compromise judgment vesting title and entitled to the possession thereof. Upon rantors from further liability on their warranty. appeal to the county court the same judgment Later suit was instituted by other heirs, and it was had. Notice of appeal was given, and in appeared that plaintiffs in the former suit had

title to but 132 of the 320 acres. The warrantdue time the appeal was perfected.

ed owners, defendants in the former suit, sued The first assignment of error is that to set the compromise judgment aside as havthe court erred in holding as a matter of law ing been procured by fraud and through mistake. that the instrument executed by Alice Bond Held, plaintiffs in the instant suit were in priv

ity with defendants therein, plaintiffs in the was not a chattel mortgage, and the judgment former action, "privity" being defined as "a of the court was erroneous in awarding the connection or bond of union between parties plaintiff the title to and possession of the as to some particular transaction; mutual or

successive relationship to the same right of property in controversy, and the court also

property.” further erred in not declaring said instrument

[Ed. Note.-For other definitions, see Words to be a chattel mortgage, and compelling and Phrases, First and Second Series, Privity.]

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