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2. JUDGMENT 461(5) ACTION TO SET , Mrs. Alice A. Mahon and her husband, S. A. ASIDE-EVIDENCE.

Mahon, H. L McCorkle, Ashley W. Cullum, In action to set aside a compromise judg: Jr., Thos. Marvin Cullum, Jr., and Alice ment for fraud and mistake, evidence held to show fraud and mistake.

Louise Cullum, minors, by their next friend, 3. COVENANTS O130(4) BREACH OF WAB- A. W. Cullum, and A. M. Cullum in his own RANTY-DAMAGES.

right, John T. Baldridge, Mrs. Miranda The measure of damages in a suit upon gen: Grantham, a feme sole, Mrs. Jennie Ercaneral warranty of title to land is the purchase money, with interest at the legal rate from date brack, W. W. Ercanbrack, Mrs. D. P. Foster, of payment.

a feme sole, Mrs. Rachael Barrett, R. B. 4. COVENANTS Om 130(7) BREACH OF WAR- Barrett, and W. W. Baldridge, brought an RANTY-DAMAGES.

Where title to only a part of land sold un- action of trespass to try title against der general warranty of title fails, the vendor Thompson Bros. Lumber Company, a private is liable upon his warranty for damages bear- corporation, to recover an undivided oneing the same proportion to the whole purchase money as the value of the part as to which title half interest in a tract of 640 acres of land, fails bears to the whole premises, estimated at situated in said Tyler county, Tex., patentthe prices paid.

ed to Marinda Hyde by the state of Texas, 5. COVENANTS Cw130(7) BREACH OF WAR- on May 5, 1887, and described in the land RANTY-DAMAGES.

In an action of trespass to try title to 320 office of the state of Texas by patent No. acres of land, warrantors, who were vouched 165, volume 46, abstract No. 825, which in, believing plaintiffs' representations that they land was described by metes and bounds in were the sole heirs of the land in controversy, the petition. Afterwards plaintiffs amended paid them $5,000 therefor, upon which the court entered its compromise judgment vesting title their petition suggesting the death of S. A. in the warranted owners and releasing the Mahon, one of the plaintiffs, and making the warrantors from further liability on their war- Fidelity Lumber Company, a private corporanty. Later suit was instituted by other heirs, ration, a party defendant. They prayed for and it appeared that plaintiffs in the former suit had title to but 132 of the 320 acres. The judgment establishing their title to the half warranted owners, defendants in the former suit, interest sued for, and for partition. sued to set the compromise judgment aside as

Thompson Bros. Lumber Company anhaving been procured by fraud and through mistake. As to the warrantors, the court granted swered by a general denial and plea of not warrantees the relief only of canceling the re- guilty, and vouched in S. F. Carter and J. lease, in the former judgment, of warrantor's lia- P. Carter as warrantors, alleging in subbility in excess of $5,000. Held error, for, haying by payment of the $5,000 obtained title to stance that the Emporia Lumber Company, but 132 of the 320 acres for the warrantees, war a corporation, by its written deed, had conrantors were entitled to release of only 132 / 3 20 veyed the tract of land in controversy, and of their warranty liability for the purchase money with interest, and not to the extent of $5,- other lands, to J. L. Thompson, Hoxie H. 000 thereof absolutely.

Thompson, and Alexander Thompson, the 6. JUDGMENT 461(3) ACTION TO SET grantors of Thompson Bros. Lumber Com- . ASIDE-EVIDENCE.

pany, with general warranty of title, and In action to set aside compromise judgment that S. F. and J. P. Carter, being the owners releasing plaintiff's warrantors from liability, evidence held to show the amount of purchase of the entire capital stock of the Emporia price paid the warrantors.

Lumber Company, did, after the dissolution 7. JUDGMENT Cw461(3) ACTION TO SET of said company, bind themselves in writing ASIDE-EVIDENCE.

to perform the obligations of warranty conIn action to set aside compromise judgment as having been procured by fraudulent represen- tained in the deed from said company to the tations of plaintiffs in such former suit as to three Thompsons above named, as said land their title, inducing purchase by defendants was purchased and paid for on the basis of therein, evidence held to show that such defend- $3 per thousand feet of standing timber ants did not purchase a "chance of title."

thereon, and that there was a growth of such Appeal from District Court, Tyler County; timber thereon aggregating 4,000,000 feet, W. R. Blackshear, Judge.

for which the defendants, grantors, paid the Action by the Fidelity Lumber Company Carters $12,000; that thereafter the said and others against Presley K. Ewing and Thompsons conveyed by deed the land in others. From judgment for defendants, controversy and the timber thereon to deplaintiffs appeal. Reversed and rendered in fendant Thompson Bros. Lumber Company; part, and in part remanded.

and that the covenant of warranty in the Baker, Botts, Parker & Garwood, of Hous- deed from the Emporia Lumber Company ton, for appellants. Matthews & Browning, and the warranty and guaranty of title of of Lampasas, Minor & Minor, of Beaumont, S. F. and J. P. Carter was transferred to and Presley K. Ewing, of Houston, for ap and inured to the benefit of the defendant pellees.

Thompson Bros. Lumber Company.

Defendants S. F. and J. P. Carter answerBROOKE, J. At the July term, 1912, of ed by general denial and plea of not guilty, the district court of Tyler county, in a cer- and vouched in the American Exchange Natain cause pending in said court, and num- tional Bank of Dallas, Royal A. Ferris, and bered on its docket 3197, Presley K. Ewing, A. V. Laue, as warrantors of the title of

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

their vendee, the Emporia Lumber Compa-, patented to the heirs of Marinda Hyde May 5, ny, to said 640 acres, alleging in substance 1887, by the state of Texas, and described by that the said bank, acting through said Fer- and recorded in the land office of the state of

patent No. 165, volume 46, abstract No. 825, ris as president, and the said Lane as cash- Texas; said 640 acres are described by field ier, had deeded said land to the Emporia notes in said patent, to wit.' (Here follows Lumber Company, and had received as the desoription by metes and bounds.) purchase price thereof the sum of $2,720, The court, in said judgment, further deand asked that, in the event the plaintiffs creed that, the Carters having protected the should recover the half interest sued for, title of their vendees, they be released from they have judgment over against the Amer any further liability to Thompson Bros. Lumican Exchange National Bank on its cove-ber Company and E. B. Parker on account nant of warranty for $1,360, being one-half of the covenants of warranty contained in of the amount received by said bank for said the deed from Emporia Lumber Company to 640-acre tract. They also vouched in Edwin the Thompsons, by which they became bound B. Parker, alleging in substance that the by the covenants of warranty contained in Thompson Bros. Lumber Company, in Janu- said deed from the Emporia Lumber Comary, 1907, had executed to said Parker a pany to said Thompsons which were pleaddeed of trust wherein it conveyed to him a ed in the answer of said Carters. It is furlarge number of tracts of land, including the ther decreed as between the Carters and the tract sued for, which was made to secure American Exchange National Bank that, the the payment of bonds issued by said lumber Carters having paid said sum of money to company in the sum of $500,000, of which acquire plaintiffs' title, they have judgment a large amount remained unpaid, and at the against said bank for the sum of $1,413.90, same time transferred and assigned said which sum having been paid in open court contract of warranty or guaranty of the the bank was adjudged to be released from Carters, described in the answer of Thomp- any further liability to any of the defendants son Bros. Lumber Company, to said Parker on the covenants of warranty contained in for the benefit of the holders of said bonds, the deed from said bank to the Tyler County

Land & Lumber Company. and for this reason the Thompson Bros. Lumber Company was not entitled to recover

June 26, 1914, the Fidelity Lumber Comagainst them on said contract of warranty pany, a corporation, J. L. Thompson, Hoxie

H. Thompson, Alexander Thompson, Thompor guaranty, but that, should the court hold otherwise, then they prayed for such judg. and Edwin B. Parker, trustee, brought this

son Bros. Lumber Company, a corporation, ment as would prevent them from being held suit against Presley K. Ewing, Mrs. Alice A. liable to both Thompson Bros. Lumber Com- Mahon, a feme sole, H. L. McCorkle, Ashley pany and the said Edwin B. Parker, trustee. w. Cullum, Jr., Thos. Marvin Cullum, Jr.,

Defendant Fidelity Lumber Company an. Annie Louise Cullum, A. W. Cullum, Mrs. swered by general denial and plea of not Miranda Grantham, a feme sole, Mrs. E. P. guilty. Under the pleadings above outlined, judg-W. W. Ercanbrack, Mrs. Rachael Barrett, R.

Foster, a feme sole, Mrs. Jennie Ercanbrack, ment was entered reciting, in effect:

B. Barrett, and John T. Baldridge, all of That it appearing to the court that, since the whom were plaintiffs in cause No. 3197, S. answer of the defendants S. F. and J. P. Car- F. Carter, J. P. Carter, American Exchange ter was filed, they, the said Carters, had enter- National Bank of Dallas, S. M. Johnson, W. ed into a compromise of the suit with plaintiffs, and had purchased the land in controversy from A. Johnson, Minnie L. Massie and her husthem, and had paid them therefor the sum of band, James S. Jassie, and Charles Bald$5,000, and that by a supplemental petition they ridge, said cause being numbered on the had pleaded their rights under said purchase and compromise; and that it further appearing docket of said court 3305; and thereafter, that said S. F. and J. P. Carter are the remote on the 7th day of January, 1916, amended warrantors of defendant Fidelity Lumber Com- their petition wherein they sought to have pany, “who holds such title as it may have heretofore held through a chain of title in which is the judgment above referred to set aside a deed from the said S. F. Carter and J. P. and annulled upon the ground of fraud upon Carter to those through whom it claims, which the part of all the plaintiffs in cause 3197, contained a covenant of general warranty of except the plaintiff Presley K. Ewing, wheretitle, and that said compromise and purchase inures to the benefit of said Fidelity Lumber Com- by the defendants therein were induced to pany, which, by reason of said fact, is entitled enter into the agreed judgment under the to judgment for said land: It is therefore by belief that the plaintiffs, except the plaintiff the court, considered, ordered, and adjudged Presley K. Ewing, who had purchased the that the plaintiffs take nothing by their suit, and that all of the defendants go hence without interest of certain of the plaintiffs, were all day, and that the Fidelity Lumber Company the heirs of Marinda K. Hyde, the original do have and recover of and from the plaintiff's grantor; and on the further ground of mutuherein (naming all of them), and that the defendants S. F. and J. P. Carter and the Thomp- al mistake between all the plaintiffs and deson Bros. Lumber Company be divested of the fendants that said plaintiffs, including those title and possession of the land described in whose interests were owned by said Ewing, plaintifs' amended petition, which is an undivided half of the tract or survey of land de

were all of such heirs; and after setting up scribed as follows: ‘All that certain 640-acre the institution of the former suit No. 3197, survey of land situated in Tyler county, Texas, l in July, 1912, above referred to, and the pleadings of the parties, and after setting, the entry of said judgment, the only heirs out in full the judgment hereinabove refer- of said Marinda Hyde. red to, further alleged:

Plaintiffs further allege that the decree That said judgment was never submitted in cause No. 3197 should be annulled because for approval to the Fidelity Lumber Com- entered as a result of the mutual mistake pany, Thompson Bros. Lumber Company, and on the part of all of the defendants to said to the Thompsons, or either of them, or to cause, and of all the plaintiffs, and especialthe attorneys representing them in said ly the plaintiff Presley K. Ewing; that the cause, and that they did not authorize the parties plaintiff to said cause were the only entry of said judgment, and did not learn of surviving heirs of Marinda Hyde, and as the terms and provisions thereof until after such were entitled to recover all the land the institution of a certain suit styled San- sued for in said case, and that all of the deford R. Houghston et al. against Fidelity fendants and plaintiffs, and especially the Lumber Company et al. in the District Court plaintiff Presley K. Ewing, in good faith, of the United States for the Southern Dis- based upon depositions taken in the case, the trict of Texas, at Beaumont, and that, as ex parte affidavits of plaintiffs, and represoon as they learned of the entry of said sentations made to them by the plaintiffs and judgment and the terms thereof, they prompt- their attorneys, that plaintiffs therein were ly repudiated the same as being wholly un- all of the heirs of Marinda Hyde, and so authorized by them or either of them, but believing, agreed to and acquiesced in the that, if mistaken in this, then the judgment entry of said judgment. above referred to was acquiesced in by plain- Plaintiffs further alleged that, if mistaken tiffs under the understanding that the plain- in the foregoing allegations, then that the tiffs in cause No. 3197 constituted all of the judgment in cause No. 3197 should be annulsurviving heirs of Marinda Hyde, and were led for the reason that plaintiffs in said the only persons having any right or title to cause (other than Presley K. Ewing) and the undivided half of said 640-acre survey their attorneys well knew at the time said sued for therein, and upon such understand- depositions were taken in said cause, at the ing that the $5,000 was paid to plaintiffs as time the affidavits were made as to the heirs stipulated in the decree. That such facts of Marinda Hyde, and at the time of the enwere made to appear in said cause by the try of said decree, that the plaintiffs named depositions of certain of the plaintiffs in the in said suit were not the only surviving heirs said suit, and by certain affidavits of plain- or vendees of said heirs of Marinda Hyde, tiffs furnished to Judge J. C. Matthews, at- and notwithstanding their knowledge of such torney for S. F. and J. P. Carter, upon the fact they willfully, knowingly, and falsely, truth of which the defendants therein (and and by means of said depositions and affithe plaintiff Presley K. Ewing) relied in davits and statements made by their attoragreeing to said settlement. That the only ney, the defendant S. M. Johnson, repreissue in said cause No. 3197 was a question sented to said defendants in said case and of heirship under said Marinda H it be- their attorney that plaintiffs in said case ing uncontroverted that, if the plaintiffs were the only heirs or vendees of heirs of therein were all of the heirs of said Marinda Marinda Hyde, and were the only persons Hyde, they were entitled to recover an un- entitled to any right, title, or interest in the divided one-half interest of the land sued land in controversy, and that said represenfor.

tations were made to induce the entry of the Plaintiffs further alleged that on the 29th decree in said cause and so resulting in the of October, 1913, Sanford R. Houghston and defendants and their counsel being deceived others instituted a suit in the United States and misled thereby. District Court for the Eastern District of Plaintiffs further alleged that they were Texas, at Beaumont, against the plaintiffs informed and believed, and so charged, that he ein to recover the Marinda Hyde survey the defendant H. L. McCorkle, the defendas heirs of said Marinda Hyde, said cause ant Mrs. D. P. Foster, and the daughter of being numbered D. L. 461, in which a judg- the said Mrs. D. P. Foster, whose name is ment was entered by the court on April 8, to the plaintiffs unknown, informed the said 1914, decreeing that the plaintiffs in said S. M. Johnson, one of the defendants heresuit and said judgment were not parties to the in, and who was one of the attorneys for suit of Presley K. Ewing et al., No. 3197, and plaintiffs in cause No. 3197 at the time that awarding them - acres of land in said the depositions of one or all of them were Marinda Hyde survey, and that plaintiffs taken and prior to the entry of the decree herein had no intimation until the filing of in said cause, that the parties named as said suit in the United States District Court plaintiffs in cause No. 3197 were not the that the plaintiffs in cause No. 3197 were not only heirs of Marinda Hyde or of the venthe sole and only heirs of Marinda Hyde dees of said heirs; that they informed said as represented at the time said judgment Johnson that the children of said Mrs. D. was entered; that thereupon plaintiffs be- P. Foster's sisters, to wit, Colliers, were al. gan an investigation, and ascertained that so heirs of said Marinda Hyde, and ought the parties who were plaintiffs in cause No. to be included in the list of plaintiffs who 3197 are not, and were not at the time of were advised by said Johnson that the Col

as

liers had nothing to do with said cause; ed to or acquiesced in by said defendants that there were in fact six of the Collier in said cause. children, who all resided within a short dis- Plaintiffs further alleged that said $5,000 tance of Mrs. D. P. Foster; that the said so paid in cause No. 3197 was paid under H. L. McCorkle informed said Johnson that the belief that same was paid in the acquihis mother had several sisters living in sition of the title under plaintiffs in that Mississippi, and that he was sure they all suit of 320 acres of land, and not 140 acres, had children, and they all ought to be made as has since developed was done; that said parties plaintiff to said suit; that said $5,000 was paid in consideration of 320 Johnson informed the said McCorkle that acres of land, and the judgment was made he had advertised for said heirs, but that and entered under a mistaken statement of he could not locate them, and that they facts, these plaintiffs and defendants in were not necessary parties to the suit. said other case Lelieving that the Fidelity

Plaintiffs further alleged that, notwith- Lumber Company, by said decree being veststanding the fact that the said s. M. John- ed in 320 acres of the Marinda Hyde surson had such information from the sources vey by virtue of said judgment, paid the referred to, he nevertheless knowingly with consideration by said misunderstanding of held such information from the defendants the case as aforesaid, and they pleaded a

failure of and the court at the time of the entry of

consideration additional said judgment, and willfully represented to grounds for relief.

Defendant W. A. Johnson answered by the defendants and their attorneys, and to the plaintiff Presley K. Ewing, that the par- general demurrer and special exceptions, ties named as plaintiffs in said case were plea of general denial, and specially admitthe only heirs of Marinda Hyde or the ven- ted some and denied some of the allega

tions of plaintiffs' petition; his pleading as dees of said heirs, and that defendants were thereby deceived and misled, and induced a whole being tantamount to a general de

nial. He interposed a cross-action against to agree or acquiesce in the decree entered

the plaintiffs in this suit, in which he sought in said cause.

for himself and his codefendants to recover Plaintiffs further alleged that, by reason of said mutual mistake or the false and the title and possession of the 320 acres of

land in controversy. fraudulent representations and willful sup

All the other defendants answered, but, pression of the facts by the plaintiffs (except Presley K. Ewing), the decree was en with the exception of Presley K. Ewing, tered in said cause No. 3197 divesting the urged only such defenses as could have been title to said 320 acres out of the plaintiffs proved under a general denial in so far as and vesting it in the defendant Fidelity the issues herein presented are concerned.

However, the defendant S. M. Johnson, anLumber Company, the defendants in good

swering for himself and his codefendants, faith believing that plaintiffs in said cause Mrs. Alice A. Mahon, H. L. McCorkle, Ashwere all of the true heirs of said Marinda ley W. Cullum, Jr., Thomas Marvin Cullum, Hyde or the vendees of such Hyde, and had Jr.

, Annie Louise Cullum, A. W. Cullum, title to said land, but that it now develops John T. Baldridge, Mrs. Miranda Grantham, that plaintiffs in said cause No. 3197 in

Mrs. D. P. Foster, Mrs. Jennie Ercanbrack truth and in fact had title to only 140 acres and W. W. Ercanbrack, Mrs. Rachael Barof said land, the title to approximately 180 rett, R. B. Barrett, and W. W. Baldridge,

thereon being outstanding in other whom he represented as attorney in fact, heirs of Marinda Hyde, and that by rea- interposed a cross-action against the plainson of said mutual mistake or said false tiffs, to recover the land in suit in the event and fraudulent representations the defend the court should set aside the judgment renants Carters and the American National Ex-dered in cause No. 3197. change Bank of Dallas agreed to said judg.

The defendant Ewing, in addition to a ment and did pay to plaintiffs in said cause general denial, and affirmative allegations of the sum of $5,000 as stipulated and recited facts which were probably proper under a in said decree, and said sum would not have general denial, further alleged that the parbeen paid except upon their reliance on the ties purchasing from the plaintiffs in said truth of said representations of plaintiffs compromise suit purchased and bargained and their attorneys; and further that, by by compromise in effect for a quitclaim of reason of said mutual mistake or said false such title or interest as such plaintiffs might and fraudulent representations, it was stip- have had by chance of a half interest in the ulated in said judgment that upon the pay- Marinda Hyde survey, and nothing more,

and ment of said sum of $5,000 the said Carters that if the attorney, Silas M. Johnson, knew and the American Exchange National Bank of outstanding heirs of Marinda Hyde, or should be released from all further liabil-caused any suppression of such fact, same ity upon their covenants of warranty to was with the actual knowledge and with the said land, and that but for the reliance of concurrence of said purchasers, through the defendants upon said representations re- their attorney, with the intention to take a leasing said parties from their covenants of chance, which he alleged is commonly done said warranty would not have been consent-I in similar transactions, of such outstanding

acres

heirs asserting or not successfully asserting | such former suit in and to an undivided adverse claims, or of their interests not be- half interest, being 320 acres of the Marinda ing sufficient to reduce the benefits of the Hyde survey, but finds that so much of said purchasers below what in any event would former judgment as adjudicates the absolute be required; and, further, that the market discharge of S. F. Carter and J. P. Carter and real value of the interests of such pur- and the National Exchange Bank of Dal. chasers actually by said compromise judg- las (now the American National Exchange ment of the plaintiffs therein was equal to Bank of Dallas), the warrantors of title, upor greater than the price paid therefor in on the payment of $5,000, instead of their settiement, and said purchasers have thereby discharge to the extent of such payment, was suffered no damage by such purchase, having entered by mutual mistake of all the parby such compromise gotten as much or more ties affected thereby, and in so far should than the market or real value than they paid be canceled and annulled so as to allow the for it.

plaintiff Fidelity Lumber Company the benHe further alleged that the part of the efit of said warranties applicable to said unsaid compromise judgment relative to dis divided 320 acres in excess of the $5.905 charge of alleged liability under the war- paid, but that, it appearing to the court that ranties of title was separate and distinct, of the Fidelity Lumber Company actually aca different subject matter, and between dif- quired from plaintiffs in said former suit by ferent parties from the compromise part be- said judgment at least an undivided 145 tween the plaintiffs therein and their pur- acres of said undivided 320 acres of said chasers, and with neither such warranty lia- Hyde survey, in either event exceeding in real bilities nor the scope or extent of such were and market value at the time the amount the plaintiffs in said former suit concerned, that was paid on said warranties, said and that, if the provision in the compromise judgment in so far is not disturbed, but conjudgment as to release from the warranties firmed, and that consequently plaintiffs herewas improper, relief may be had as to it in have suffered no damage or prejudice in so as to remove the prejudice therefrom as that behalf if such payment is allowed only between the parties thereto. without inter- as a credit on said warranty liabilities, the ference with said compromise purchase as court being of opinion that such result would between the plaintiff's therein and their pur- afford the plaintiffs all equity to which they chasers, and that such should be done it are entitled. the plaintiffs are otherwise entitled to re

It was therefore decreed by the court that lief.

the plaintiffs Fidelity Lumber Company, J. He further answered by cross-complaint L. Thompson, Hoxie H. Thompson, Alexanagainst all the other parties to the suit, al- der Thompson, Thompson Bros. Lumber Comleging that, if said compromise judgment be pany, and E. B. Parker, trustee, take nothset aside, then he and his coplaintiffs in said ing by their suit against the defendants hereformer suit, including Silas M. Johnson and in who were plaintiffs, or in the right of W. A. Johnson, who were defendants in this plaintiffs, in said former suit No. 3197, to suit, are the owners in fee simple, and enti- ivit, Presley K. Ewing, Silas M. Johnson, w. tled to the possession of an undivided half A. Johnson, Mrs. Alice A. Mahon, H. L. Mcof the alleged Marinda Hyde survey in dif- Corkle, Ashley W. Cullum, Jr., Thomas Marferent interests as among themselves, and in vin Cullum, Jr., and Alice or Annie Louise that event the adverse claim thereto of the Cullum, minors, and their father, A. W. Culother parties to the suit is without right, and lum, John T. Baldridge, Mrs. Miranda Grantthe same is by them wrongfully withheld, ham, Mrs. Jennie Ercanbrack, W. W. Ercanto great damage of the defendant and said brack, Mrs. D. P. Foster, Mrs. Rachael Barco-owners; and he prayed that, in the event rett. R. B. Barrett, and the heirs of w. w. the court should set aside said compromise Baldridge, deceased, to wit, Minnie L. Masjudgment, then that the court adjudge re

sie and her husband, James S. Massie and covery of the premises in controversy to

Charles Baldridge. It was further decreed him and his said coplaintiffs in the former that said judgment of, to wit, February 15, suit, including Silas M. and W. A. Johnson, 1913, in cause No. 3197, so far as it disas their interests may appear.

charges the defendants S. F. Carter and J. The case was tried before the court with P. Carter, and the American National Exout a jury, who, upon the conclusion of the change Bank of Dallas, from said warranty evidence, entered judgment in substance that liabilities absolutely as concerns said undithe plaintiffs herein (appellants) are not en- vided 320 acres of said Marinda Hyde surtitled to any relief from the defendants who vey instead of to the extent only of their were the plaintiffs in cause No. 3197, enti- payment of $5,000, be in so far canceled and tled Presley K. Ewing and others against annulled, and that the plaintiff the Fidelity Thompson Bros. Lumber Company, as against Lumber Company have its action or actions the final judgment which the court rendered to recover of and from the defendants S. F. therein on February 15, 1913, wherein the Carter and J. P. Carter and the American Fidelity Lumber Company acquired all the National Exchange Bank of Dallas the balright, title and interest of the plaintiffs in ance of their liabilities on their respective

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