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lees for the title and possession of the land clothed it with all the rights of possession sued for. But it was further ordered: which a tenant in common might claim.

[4] We come, then, to the consideration of the next question: Did the court err in concluding, as a matter of law, that the appellant, being a railway corporation, could not acquire by adverse possession the fee-simple title to the land occupied as a right of way? The conclusion of the court upon this proposition appears to be based upon section 17 of article 1 of our state Constitution. That part applicable is as follows:

"That the defendant, by paying into the registry of the court for the plaintiffs $991.75 within 30 days from the date this judgment becomes final, with 6 per cent. interest thereon from date until paid, shall thereupon be entitled to hold and use said right of way, the same as if it had lawfully condemned same; otherwise the judgment above in favor of the plaintiffs to said strip of land shall remain in full force and effect."

It is contended by the appellant that the court erred in holding that Mrs. Merrifield, by taking under the will, relinquished her or destroyed for or applied to public use with"No person's property shall be taken, damaged fee-simple title to her community share in out adequate compensation being made, unless the property, and was thereafter entitled only by the consent of such person; and, when takto an estate for life. This construction limit-en, except for the use of the state, such compensation shall be first made, or secured by a deposit of money."

ed the interest conveyed to appellant's predecessor by Mrs. Merrifield's deed to an estate which expired at her death.

This provision against taking private property for a public use has reference to the [1] The first question, then, to be consider- taking of private property by the state, or ed is: Did the court err in the construction through some of its authorized agencies or placed upon the will? In cases of this char- corporations, under the power of eminent acter, in order for the wife to be put to an domain. Norris v. City of Waco, 57 Tex. 635. election, the intent of the husband to dispose "Taking" property, as used in the section of of her community interest must be clear and the Constitution referred to, includes the explicit. Where the language used is am- permanent subjection of such property to a biguous and leaves it uncertain as to whether public easement, as well as to a transfer of the testator is referring only to his own in- the fee-simple title. G., C. & S. F. Ry. Co. terest or intends to include that which be- v. Lyons, 2 Willson, Civ. Cas. Ct. App. § 139. longs to his wife, the instrument should be Hence, if this provision of the Constitution considered as referring to that interest which prohibits railway corporations from acquirthe testator might lawfully dispose of. Car- ing the fee-simple title to property by limitaroll v. Carroll, 20 Tex. 743; Haley v. Gate-tion or prescription, it would for the same wood, 74 Tex. 281, 12 S. W. 25; Rogers v. reason prohibit them from acquiring a perTrevathan, 67 Tex. 406, 3 S. W. 569; 1 Pome-manent easement. The acquisition of either roy Eq. Jur. §§ 472, 493. would amount to a "taking" of private property within the meaning of the Constitution. It also follows that, if this provision of the Constitution bars railway companies from acquiring property by limitation for right of way purposes, because they may invoke the state's right of eminent domain and condemn land, municipalities having the same authority should also be subject to the same restriction. The following cases, however, show that counties may acquire such rights to establish highways over private property by limitation, notwithstanding they are authorized to condemn land for that purpose: Click v. Lamar Co., 79 Tex. 124, 14 S. W. 1048; City of Austin v. Hall, 93 Tex. 596, 57 S. W. 563. In the trial below the court recognized that the railway company could acquire title to an easement over the land in controversy by prescription, and submitted to the jury those issues. In doing this he recognized as correct the principle of law which warranted the submission of the issues relating to the acquisition of the title itself by adverse possession, if the evidence was sufficient.

Our conclusion is that the undisputed evidence in this case establishes the right of the appellant to a permanent easement to the extent of an undivided one-half interest in so much of the strip of land as is contained in the Sharrock survey. Mrs. Merrifield

[2] In the instrument here under consideration the testator designates the property disposed of by no particular name or specific description. He simply refers to it as "the property," "the property which I now possess," "all my estate," "all my property, both real and personal," "my estate," "my whole estate." The will makes it clear that the testator intends to give to his wife during her natural life all of his estate, passing it to his children or heirs after her death. In the absence of language more specific, we must presume that Merrifield was referring to that which was in fact his property-his community interest in the estate. Sauvage v. Wauhop (Tex. Civ. App.) 143 S. W. 260; Haby v. Fuos (Tex. Civ. App.) 25 S. W. 1121; Moss v. Helsley, 60 Tex. 432; Gibony v. Hutcheson, 20 Tex. Civ. App. 581, 50 S. W. 648. We also refer to the cases previously cited.

[3] It follows from this conclusion that the conveyance executed by Mrs. Merrifield invested the Chicago, Texas & Mexican Central Railway Company with an undivided interest to at least a permanent easement in so much of the right of way as was included in the Sharrock survey. This made the appellant, as successor to that company, a tenant in common with Brandenburg, to the extent

dren, of the fee in these tracts of land, and she had no authority to convey for a time extending beyond her life any rights to any specific portion of the property. Her interest being undivided, her deed conveying a permanent easement or the title to any described portion, such as the right of way, would be void as to her co-owners. But her grantee acquired such rights as she had in the land, to the extent described in the conveyance, and became a tenant in common with the children upon her death. As such tenant her grantee could assert all the rights belonging to a co-owner as to possession, and would be entitled, in a partition, to have this particular land set apart to it, if this could be done without injustice to the other joint owners.

Whether or not the appellant acquired any rights in the Sharrock survey by adverse possession must be determined by the rules applicable to tenants in common. Honea v. Arledge, 56 Tex. Civ. App. 296, 120 S. W. 508. [5] What has been said relative to Mrs. Merrifield's conveyance applies only to the Sharrock survey. That portion of the land in controversy which lies in the Bledsoe survey belongs to the appellees, unless the appellant has acquired some rights by prescription. Whether or not that has been ac

complished is an issue of fact to be determined by the jury. All of the findings upon that issue made by the jury were favorable to the appellant, except as to the exclusiveness of its possession. The title and right of possession of the entire strip 100 feet wide through both tracts being involved, we cannot say the court erred in not instructing a general verdict for the appellant. It may be that appellees are entitled to recover the title, but not the possession. We think the court erred in making the retention of the possession by the appellant dependent upon the payment of the value of all of the strip of land. That disposition of the case ignored the rights which appellant acquired through the conveyance from Mrs. Merrifield.

The judgment will therefore be reversed, and the cause remanded for another trial.

KEY et al. v. KEY. (No. 7139.) (Court of Civil Appeals of Texas. May 2, 1914. Rehearing Denied May 23, 1914.)

Dallas.

and general control in probate matters over the
county court, the district court has original ju-
istratrix guilty of mismanagement of the estate,
risdiction of a suit by heirs against an admin-
and fraudulently converting a part thereof, and
neglecting for many years to settle the same,
and praying for a determination of title as to
dent and for an accounting and partition.
the community property of the estate of dece-

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 469, 471-475, 478; Dec. Dig. § 198.*]

1. PLEADING (§ 214*)-DEMURRER OR PLEA TO JUBISDICTION-ADMISSIONS.

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TALBOT, J. This suit was instituted by the appellants against the appellee, R. L. Key individually and as administrator of the estate of R. C. Key, deceased. It is alleged, in substance, that the appellants and appellee are the surviving heirs of the said R. C. Key, and as such are the joint owners in fee simple of two tracts of land, which are described, situated in Navarro county, Tex., aggregating 214 acres; that the appellee, R. L. Key, was appointed administrator of the estate of the said R. C. Key, deceased, in 1877; that said administration was still pending, but that there was no necessity therefor, as there were now no debts against said estate; that appellee had made to the county or probate court but two reports, showing the condition of said estate, since his appointment in 1877, and that he had been guilty of gross negligence and mismanagement of the property of said estate; that during his administration he had not kept any account of the fruits, revenues, and rents arising from the property in his possession, and that he had appropriated and fraudulently converted the same, amounting to about $8,000, to his own use; that there was due the estate at the time of appellee's appointment collectible accounts amounting

Defendant, demurring or pleading to the jurisdiction of the court, admits the facts charged in plaintiff's petition to be true, and only denies that they present a case within the jurisdiction of the court.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*] 2. COURTS (§ 198*)-JURISDICTION-PROBATE JURISDICTION.

Under Const. art. 5, § 8, conferring on the district court original jurisdiction of suits for trial of title to land, and appellate jurisdiction

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 378, 4022; Dec. Dig. § 155.*]

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

Action by W. A. Key and others against R. L. Key individually and as administrator of R. C. Key, deceased. From a judgment and remanded. for defendant, plaintiffs appeal.

Reversed

W. J. Weaver and Simkins & Simkins, all of Corsicana, for appellants. McClellan & Prince and Neblet & Rice, all of Corsicana, for appellee.

commencement of this suit."

to the sum of $2,000, but that through his | petition, cultivating, using, and enjoying the
negligence to collect the same, or because of same for a period of 10 years, after plaintiffs'
cause of action accrued and before the com-
fraudulently leaving out said accounts from
mencement of this suit; that all causes of ac-
his report filed and the conversion and em- tion set out in plaintiffs' petition for the re-
bezzlement of the same by him, the estate covery of personal property or for a personal
has been deprived of that amount. Appel-
judgment against this defendant accrued more
lants further charge that on or about the than 2 years and more than 4 years before the
10th of December, 1869, R. C. Key, the de-
ceased, bought, for a cash consideration paid
by him 10 acres of land, a part of the Rob-
ert Finney headright survey, in Navarro
county, Tex., which was inventoried by ap-
pellee as a part of the estate of the said R.
C. Key, and that appellee, as administrator
of said estate, applied to the county court
of Navarro county for authority to sell said
land to satisfy a fraudulent and fictitious
debt, which appellee claimed sa estate
owed him, amounting to $661.16, with inter-
est; that in February, 1888, the court heard
said application, and ordered the property
to be sold; that no report of the sale of said
property was ever reported to the court, and
that appellee has suppressed all evidence as
to its disposition, and is now attempting to
cheat, defraud, and deprive the estate of
said property as an asset. Appellants fur-
ther allege that since the death of Mrs.
Mariah Key, the wife of R. C. Key, and who
died April 30, 1912, the defendant, who was

in possession, has been asserting title in
himself to at least one-half, if not all, of
said property belonging to the community
estate of R. C. Key and his wife, Mariah
Key; that said assertion of title in himself
is antagonistic to the rights of these plain-

tiffs in and to said property; that they had,
since the death of Mrs. Mariah Key, de-
manded of the defendant a partition, and an
accounting for the use of said property, but
that he has failed and refused to comply
with said demand, and is now asserting a
claim to said property which is hostile to
[2] While the district courts of this state,
the claim of these plaintiffs. The prayer of
since
the petition is that the court adjudicate and probate laws of 1876, which left out
the adoption of the Constitution
only the issue of title as to the community the words, "original jurisdiction," have only
property of the estate of R. C. Key, but that
if the court should think it advisable to
settle and adjudicate all issues raised, then
they pray for an accounting and partition,
etc. Appellee, R. L. Key, interposed a gen-
eral demurrer to the petition, and excepted
thereto, because it appeared therefrom that
the district court was without jurisdiction to
try the cause for the reason that appellants
had alleged that the defendant was the ad-
ministrator of the estate of R. C. Key and
wife, Mariah Key, and that the property
sued for was still undergoing administra-
tion in the probate court. He then inter-
posed a general denial, and pleaded that he
was not guilty of the wrongs and trespasses
and injury complained of, and put himself
upon the country. Defendant further aver-
red that:

an appellate jurisdiction and general con-
trol over probate courts, as shown by article
5, § 8, of that instrument, yet by this same
article and section, original jurisdiction and
general control over executors, administra-
tors, guardians, and minors, under such reg-
ulations as may be prescribed by law, is con-
ferred upon district courts. And in Cheval-
lier v. Wilson, 1 Tex. 160, where the Consti-
tution invested the district courts with orig-
inal jurisdiction and control over executors
and administrators in the same language as
does our present Constitution, it is said that
this grant of jurisdiction is complete, sub-
ject to legislative regulations, and is not im-
paired because these regulations have not
been made. In Long v. Wortham, 4 Tex.
382, and reaffirmed in Giddings v. Steele, 28
Tex. 733, 91 Am. Dec. 336, it was held, under
the clause of the Constitution giving orig-

"He now has and has had peaceable and adverse possession by an actual inclosure of the

Defendant also alleged that "he has made valuable and permanent improvements on the lands and tenements sued for during the time he has had possession thereof, and has regularly paid taxes thereon for 35 years,. improvements and taxes aggregating the sum of $1,679.71," and prayed judgment for same, and that said sum be fixed as a lien on the land in his favor in the event plaintiff recover the land or any part thereof. On October 21, 1913, the defendant's general demurrer to plaintiffs' petition, under which the defendant excepted to the jurisdiction of the court to hear and consider the matters alleged in plaintiffs' said petition, was sustained and the cause dismissed. From this judgment the plaintiffs appealed.

[1] Appellants' first assignment of error
complains of the action of the trial court in
sustaining the defendant's demurrer, and
presents the controlling question arising on
the appeal. It is too well settled to require
the citation of authorities that defendant's
demurrer or plea to the jurisdiction of the
district court admitted the facts charged in
plaintiffs' petition to be true, but denied
that they presented a case that would give

jurisdiction to that court in an original ac-
tion. The question, then, is, Do the facts

alleged by plaintiffs show a cause of action
of which the district court had original
jurisdiction to hear and determine? That
this question should receive an affirmative
answer is, we think, clearly established by
the laws and decisions of our state.

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unquestionably the proper court to adjudicate the question. And, even where the title to personal property or the construction of a will is involved, it is proper to invoke the jurisdiction of the district court, as the more appropriate tribunal for the adjudication of the question. Little v. Birdwell, 21 Tex. 597, 73 Am. Dec. 242.

This view of the case makes it unnecessary to consider the other assignments.

tors, etc., that the district court might sus- | by adverse possession and limitation of ten pend any executor and appoint a receiver, years. In such a case the district court is with power to sue and collect a note given to an executor in his representative capacity. In Dobbin v. Bryan, 5 Tex. 276, it was decided that the district courts have jurisdiction to investigate and arrest a fraudulent combination which might result in destroying the estate or to the injury of those interested in the faithful administration of the estate; that from its organization the probate court, being so limited in its jurisdiction, cannot well investigate the facts constituting the fraud, and that the same difficulty would arise in the investigation of and executing trusts. In Smith v. Smith, 11 Tex. 102, the jurisdiction of the district court to hear and determine a suit by an heir, pending administration in the probate court, to establish the property of the estate, and to obtain a partition and distribution, was upheld, and the court, after stating that it was held in Dobbin v. Bryan, supra, that fraudulent combination had always been a fruitful source for the exercise of equity jurisdiction, said:

The judgment is reversed, and the cause remanded.

"There can be no doubt but both fraud and trusts would authorize the exercise of original jurisdiction by the district court."

In this case it is further said that in Newson, Guardian, v. Chrisman, 9 Tex. 113, the previous decisions of the Supreme Court were reviewed and sustained upon the grounds of the general equity jurisdiction of the district court, independent of the fifteenth section of the judicial department of the Constitution. In Rogers v. Kennard, 54 Tex. 30, referring to the case of Smith v. Smith, supra, it is said:

"In that case the chancery jurisdiction of the district court was clearly maintainable on the grounds of breach of trust and fraud, and because the probate court was inadequate to grant the appropriate relief."

The facts and circumstances of delay, fraud, and trust, appealing for the exercise of the general equity jurisdiction in the case of Smith v. Smith, were but little, if any, stronger than those alleged in the case at bar; and, upon the authority of that and other cases referred to, we think appellee's demurrer to appellants' petition should have been overruled.

MECHANICS' & TRADERS' INS. CO. v.
DAVIS. (No. 5340.)

(Court of Civil Appeals of Texas. Austin.
April 8, 1914. Rehearing Denied
May 13, 1914.)

1. INSURANCE (§ 328*)-FORFEITURE-CHANGE IN INTEREST.

Under the clause of a fire policy voiding it in the event of any change in the interest, title, or possession of the subject-matter of in surance, insured having, before the fire, without knowledge of or notice to the insurer, taken in partners in his business, received part of the purchase price, and put one of the purchasers in possession, it is immaterial that he retained a lien on the goods for balance of purchase money, or that after the fire he settled with his partners, and paid back part of the purchase money.

[Ed. Note.-For other cases, see Insurance Cent. Dig. §§ 794-822, 825; Dec. Dig. § 328.*] 2. INSURANCE (§ 335*)-FORFEITURE-FAILURE TO TAKE INVENTORY.

An invoice of goods bought during three months, some time before issuance of a fire policy, does not satisfy a provision of the policy that it shall become void, if a complete, itemized inventory be not taken within a certain time, unless one has been taken within a certain time prior to the policy.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 852, 853; Dec. Dig. § 335.*]

Appeal from McLennan County Court;· George N. Denton, Judge.

Action by R. E. Davis against the Mechanics' & Traders' Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Wm. Thompson and Will C. Thompson, both of Dallas, for appellant. J. D. Willis, of Waco, for appellee.

[3, 4] But again, the jurisdiction of the district court, in our opinion, is clearly maintainable on the ground that the title to the lands described in appellants' petition was involved. As shown in our statement RICE, J. This suit was brought by apof the case appellants alleged, in substance, pellee against appellant to recover for a loss that they and appellee, as the heirs of R. sustained by fire to a stock of electrical fixC. Key, deceased, were the joint owners in tures, supplies, and fittings covered by a polfee simple of the lands mentioned in their icy of insurance issued by it to him. The petition, and that appellee, who was in ac- defense urged, after a general denial, was tual possession thereof, was denying their failure on the part of appellee to comply right and asserting an adverse and hostile with the iron-safe clause in the matter of claim to all of said property. In his an- taking, preserving, and presenting after the swer to appellants' suit the appellee con- fire the inventories required by the policy, tested their title and set up title in himself and in failing to keep a set of books, showing

a complete record of business transactions,, Insurance Co. v. Insurance Co., 144 N. Y. and that appellee was not the sole and un- 195, 39 N. E. 78, 26 L. R. A. 591, 43 Am. conditional owner of the property insured, St. Rep. 749; Bacot v. Insurance Co., 96 in that he had sold a two-thirds interest Miss. 223, 50 South. 732, Ann. Cas. 1912B, therein prior to said fire, and that a change 262; Robinson v. Insurance Co. (Ky.) 53 had thereby taken place in the interest, title, S. W. 660. and possession of the subject of insurance, in violation of the terms of the policy. A jury trial resulted in a verdict and judgment in behalf of appellee in the sum of he retained a lien to secure part of the $829.60, from which this appeal is prose-purchase money on said property. Assurance cuted. Co. v. Bank, supra. The legal title, by reason of the sale, immediately vested in his partners, and they could have enforced the This being true, contract as against him. there was a complete change in the interest, title, and possession of the property. Nor is it material that subsequent to the fire he had a settlement with his partners, by which he paid back to them part of the purchase money received, because after the fire he could do nothing that would defeat appellant's right to insist on a forfeiture on account of such breach of the contract by him. Hence it must be held to have avoided the same under the provisions thereof above quoted.

[1] Appellant requested, and the court refused to give, a peremptory instruction to find in its favor, and this refusal is made the basis of several assignments of error, among them the fifth, because, among other reasons, the undisputed evidence showed that a change had taken place in the interest, title, and possession of the subject-matter of insurance, in that on December 9, 1912, appellee sold to G. H. Peters and R. S. Martin an equal partnership interest with him in the goods covered by the contract declared upon, accepting a part of the consideration of such sale, and placing one of said parties in charge of the Waco stock, the goods here involved.

This was a complete, and not an executory, contract of sale as contended by appellee, nor is it material, as he contends, that

[2] It is also urged by the first assignment that, where the contract of insurance stipulates that a complete itemized inventory shall be taken within 30 days after the issuance thereof, unless one had been taken within 12 calendar months prior thereto, the policy becomes void, and no subsequent loss can be recovered thereunder. The policy contains the following provisions:

The law seems to be well settled that, under a policy of fire insurance providing for the avoidance thereof in case of change of interest, title, or possession in the subject of insurance, that no recovery can be had thereon in the event of loss, where such change has taken place. The policy contained a clause, in substance, to the effect that, unless otherwise provided by agreement indorsed thereon, it should become void in the event of any change, other than by death of the insured, in the interest, title, or possession of the subject-matter of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured or otherwise. The uncontradicted evidence showed that prior to the fire appellee had sold a two-third interest in his business to G. H. Peters and R. S. Martin, accepting a part The policy was issued August 19, 1912, at of the consideration therefor, and placing the which time appellee had been in business The first inventory former in charge of his Waco house, of less than 12 months. which appellant had no notice or knowledge. was taken in November, 1912. It is contendWe think this sale was in direct violation ed, however, on the part of appellee that of the contract of insurance, and defeats ap- there was an inventory taken in April bepellee's right to recover thereunder. See fore the policy was issued; but this contenInsurance Co. v. Ransom, 61 S. W. 144; As- tion is not supported by the record, because surance Co. v. Bank, 18 Tex. Civ. App. 721, the paper that he contends was an inven45 S. W. 737; Foundry Co. v. Assurance Co., tory merely had incorporated therein the 135 Mich. 467, 98 N. W. 9, 3 Ann. Cas. 707; invoice of goods purchased during the months Drennen v. Assurance Co. (C. C.) 20 Fed. 657; of April, May, and a part of June. This is Insurance Co. v. Riker, 10 Mich. 279; Malley not such a complete, itemized inventory as v. Insurance Co., 51 Conn. 222; Osborn v. the law contemplates. See Fire Ins. Co. v. Insurance Co., 151 Ill. App. 126; Card v. Adams, 158 S. W. 231; Nat. Union Fire Ins. Insurance Co., 4 Mo. App. 424; Royal Ins. Co. v. Walker, 156 S. W. 1095; Dorroh v. 3o. v. Martin, 192 U. S. 149, 24 Sup. Ct. 247, Insurance Co., 104 Tex. 199, 135 S. W. 1165, 48 L. Ed. 385; Widincamp v. Insurance and cases cited; Id., 126 S. W. 616, and Co., 4 Ga. App. 759, 62 S. E. 478; Insurance cases cited; German Ins. Co. v. Bevill, 126

"First. The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and within twelve months of the last preceding inventory, if such has been taken. Unless such inventory has been taken within twelve calendar months prior to the date of this policy, and together with a set of books showing a complete record of business transacted since the taking of such inventory, is on hand at the date of this policy, one shall be taken within thirty days after the date of this policy, or, in each and either case, this entire policy shall be null and void."

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