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after extensive research, and contains cita- | By simply notifying the bank not to pay the tion of the following authorities:

"Chapman v. N. O. Gaslight & B. Co., 4 La. Ann. 153; Smith v. Cres. City & Co., 30 La. Ann. 1378; Factors' & Ins. Co. v. Marine, etc., Co., 31 La. Ann. 149; Reid v. Commercial Ins. Co., 32 La Ann. 546; Pitot v. Johnson et al., 33 La. Ann. 1286; De St. Romes v. Levee Steam Cotton Press, 34 La. Ann. 419; Woodhouse v. Insurance Co., 35 La. Ann. 238; Fee v. N. O. Gaslight Co., 35 La. Ann. 413; Ribet v. Bataille et al., 35 La. Ann. 1171; Mineral, etc., Co. v. Deblieux & Letory, 40 La. Ann. 155, 3 South. 726; Kern v. Day, 45 La. Ann. 74, 12 South. 6; State v. N. O. Cotton Exchange, 114 La. 324, 38 South. 204."

It has frequently been held that the owner of stock in a corporation can maintain a suit against the corporation to compel the issuance to him of certificates of stock as evidence of his ownership, and may join in that suit those parties who claim or assert ownership. This is announced in Marshall on Corporations (1902) 844, 321, from which the following paragraph is quoted in State v. Bank of Baton Rouge, supra:

"When certificates of stock have been transferred under a forged assignment and power of attorney, or when they have been lost or stolen, without negligence, after having been indorsed or assigned in blank, and have been transferred to the finder or thief, the true owner may recover the certificate from the transferee, or any subsequent transferee; or he may join him in a suit against the corporation to compel a transfer, or retransfer, on its books, according to the circumstances; or he may maintain an action for conversion against the transferee to recover the value of the stock even after the latter has sold and transferred the same to another. But the owner of shares which have been transferred by the corporation on its books under a forged power of attorney has no right of action against a bona fide purchaser of the shares, who purchased not the original certificates, but a new certificate issued by the corporation." 2 Cook on Corporations (7th Ed.) §§ 358, 359; 7 Ruling Case Law, §§ 185-187.

We conclude that a cause of action against defendant bank was alleged, and Orfila was a proper party.

one.

check, his legal rights would be preserved, and this had already been accomplished If the bank, after notice, paid the check, it became liable for the amount to the maker of the check. No cause of action against the bank was alleged.

In the case at bar, it is a certificate of stock that is lost. A simple order of the appellant will not prevent or authorize the bank to refuse to issue a duplicate certificate to the holder of the original. On the contrary, the bank can be compelled by suit to issue a duplicate to the holder of the original. Then again, if appellant is the real owner of the certificates lost, as he alleged, he can compet the issuance of duplicates to himself by suit against the bank.

Orfila and Rosenfield were proper parties to this suit, because it was alleged that one or both had unlawful possession of the lost certificates. They did not deny this.

We conclude that the court erred in its or der sustaining Orfila's plea of privilege and in transferring the cause to the district court of Webb county, Tex.

The judgment of the trial court is reversed, and the cause remanded for trial in Kleberg county, Tex.

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In action by bank on note, an answer demanding accounting and alleging agreement of payee to deposit with plaintiff bank moneys realized upon sale of lands in which maker was interested, such moneys to be applied on note, held to state good defense as against general demurrer; such agreement being part of same transaction with the execution of the note, and not objectionable as tending to vary terms of note.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1503-1507, 1555.] 2. BILLS AND NOTES 459-ACTION-JOINDER-CROSS-DEFENDANTS.

It will doubtless be contended by counsel for appellee Orfila that the foregoing is in direct conflict with the opinion of the Third Court of Civil Appeals, speaking through Justice Rice in the Thos. Goggan & Bros. Morrison Case, 163 S. W. 119. We do not think defended under agreement with payees for deIn action by bank on note, where maker there is any conflict. The allegations in that posit with plaintiff bank of moneys realized case are entirely different from those in the from sale of lands out of which note was to be case before us, which clearly and substantial-paid, the payees of such note were proper parties to be impleaded as cross-defendants. ly distinguishes the Morrison Case from this [Ed. Note.-For other cases, see Bills and The facts alleged in the Morrison Case Notes, Cent. Dig. §§ 1424–1433.] disclose a suit by Morrison in Cameron county to cancel a contract of purchase from Goggan Bros. of Galveston county and an in-ty; W. W. McCrory, Judge. junction to prevent the bank, which had its Action by the First National Bank of Port business domicile in Cameron county, from Lavaca against L. Seabrook and another. paying a check drawn by Morrison against Judgment for plaintiff, and defendants aphis deposit in the bank in favor of Goggan peal. Reversed and remanded. Bros. It was held that the check passed no funds until presented, and that the drawer had entire control of the payment of the check prior to its acceptance by the bank.

Appeal from District Court, Calhoun Coun

See, also, 171 S. W. 247.

R. L. Daniel, of Victoria, for appellants. Wilson & Hamilton, of Port Lavaca, for ap pellee.

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

FLY, C. J. Appellee sued L. Seabrook and J. J. Randle on a promissory note for $1,500. Appellants answered admitting the execution of the note, but further answered as follows:

"These defendants say that at the time of the execution of said note, prior thereto and subsequent thereto, that these defendants and W. C. Noble and Willett Wilson of Calhoun county, Tex., were engaged in the purchase, subdivision, and sale of several tracts of land situated in Calhoun county, Tex., and adjoining the town of Port Lavaca, Tex., portions of which are now known as Oak Grove Heights addition and the Groom's addition to said town; and also another tract consisting of 304 acres out of the A. Esparza grant, situated in said county, fully described in the deed from Wilson and Noble to Gottlieb Remmele and Minnie Remmele, dated May 30, 1912, and recorded in volume Y, pages 367 and 368, Deed Records of Calhoun county, Tex.

"That the note herein sued upon grew out of and is part of a transaction between these defendants, the said W. C. Noble and Willett Wilson, and the said First National Bank of Port Lavaca, which acted in said transaction by and through the said W. C. Noble, its cashier, and Willett Wilson, its president, which transaction was a part of and connected with the pur; chase, sale, subdivision, and development of said subdivisions and said lands above referred to. "That after purchasing said lands and making considerable improvements and expenditures on the same in the subdividing and preparing the same for market and selling the same as town lots and otherwise, that the said Willett Wilson and W. C. Noble represented to these defendants that they owed the said Wilson and Noble the sum of $1,500, being their portion of the expenses incurred in making said improvements on said lands and in advertising and preparing said lands for sale, and the said Wilson and Noble presented the note herein sued upon to these defendants for their signature representing to them that they (defendants) were indebted to the said Wilson and Noble in said amount.

"That while said note appears as payable to the First National Bank of Port Lavaca, that as a matter of fact the same represents and was given for an indebtedness that the said Wilson and Noble claimed these defendants were due to them, and these defendants allege and believe that the same is still the property of and belongs to the said W. C. Noble and Willett Wilson, and that said bank in fact has no interest whatever therein.

"That after the acquisition of said property now constituting Grove Heights addition and the Groom's addition, and the 30-acre tract above referred to, and the conveyance of some portions thereof to the purchasers, the said W. C. Noble and Willett Wilson induced these defendants to convey said property to them, and in consideration of which they agreed to enter into a written contract showing the relation of all the parties to said property, as well as their interest therein, which contract they agreed to immediately execute, and said Wilson and Noble further agreed with these defendants that they would at a very early date, which is now long past, convey to these defendants a onefourth undivided interest each in and to said property, which was in fact the interest owned by these defendants, and to which they were justly entitled.

land situated in the Oak Grove Heights addi-
tion or the Groom's addition, or any parcel of
land acquired by them and herein mentioned,
should be deposited in the First National Bank
of Port Lavaca in the name of J. J. Randle, spe-
cial account, and all vendor lien notes and other
securities received from such source and belong-
ing to said parties should also be deposited and
held by said bank in the same manner.
"And that all funds and notes which repre-
sented the proceeds of sales already made by
these defendants or by said Wilson and Noble
should also be deposited in said bank. And it
was further agreed by and between all of said
parties that the first money received from the
sale of any of said lots or parcels of real estate
should be deposited in said bank as aforesaid,
and applied by said bank to the payment and dis-
charge of the note herein sued on, and the said
W. C. Noble and Willett Wilson, in whom the
title to said property was vested by these de-
fendants, agreed to undertake to see that said
money and funds were so deposited and applied
upon said note, and said bank agreed and ac-
cepted the promise and obligation and under-
taking of the said Wilson and Noble to see that
said moneys and funds were so deposited and
applied upon the payment of said note as col-
lected.

"These defendants say that said bank and the said W. C. Noble and Willett Wilson were parties to said agreement; that in fact said bank acted in the premises by and through the said Noble and Wilson, who were cashier and president respectively of said bank; and that said bank agreed to the arrangement made between these defendants and the said Wilson and Noble, and was a party to said agreement and arrangement.

"These defendants further say that said bank received the funds arising from the sale of various portions of said property, both moneys and vendor lien notes, which came into its hands after said agreement and understanding, and after the execution of said note and during the existence of said agreement and understanding and during the existence of the note herein sued upon, which moneys and notes are hereinafter more particularly set out.

"These defendants say that in pursuance to said agreement, there has been numerous sums of money and numerous vendor lien notes passed into the hands of the said Wilson and Noble who had agreed with these defendants and with said bank to deposit the same in said bank under the agreement hereinbefore set out, and these defendants believe and allege that said money was so received and deposited in said bank, and said notes received and collected by said bank, the same amounting to a large sum, the exact amount of which these defendants are unable to tell for the reason that the said Willett Wilson and W. C. Noble and said bank have handled and controlled the same and collected said notes, and have not rendered these defendants any account thereof, and have each failed and refused to account to these defendants for the same or render any account thereof to these defendants, and these defendants have no means of ascertaining the exact amount of money which has been collected and paid into said bank by the said Wilson and Noble, or collected by the said Wilson and Noble under and by virtue of the agreement aforesaid, to which said bank was a party."

A general demurrer was sustained to the answer, and the court rendered judgment for appellee for the amount evidenced by the note.

"That at the time of the execution of said note, it was agreed between these defendants, W. C. Noble and Willett Wilson, acting for [1, 2] If the facts set out in the answer themselves, and said bank, which acted in said are true, a good defense was presented to transaction by and through its president and the claim of appellee. The alleged agreecashier aforesaid, which was within the scope of their authority as such officers, that the ment in no wise varied or sought to vary the proceeds of all the sales of lots or parcels of terms of the note. It merely showed an

agreement of all the parties that Noble and Wilson would deposit with appellee sums to be obtained from the sale of certain lands, in which appellants owned an interest, and that the said sums were to be applied to the payment of the note. The deposits were made, but none of the money was applied to the debt. That money was a payment on the note under the agreement. Noble and Wilson were proper parties. Adams v. Bank, 178 S. W. 993. The answer may have been open to attack through special exceptions, which, however, we do not decide, but it was good as against a general demurrer. The agreement set up in the answer was a part of the same transaction with the execution of the note, and showed a good de

fense.

This is a second appeal of this case; the judgment on the former appeal having been reversed on account of the disqualification of the trial judge. 171 S. W. 247. The judgment from which this appeal was taken was rendered by a special judge,

The judgment is reversed, and the cause remanded.

W. T. CARTER & BRO. et al. v. COLLINS
et al. (No. 68.)

(Court of Civil Appeals of Texas. Beaumont.
Oct, 26, 1916. Rehearing Denied Nov.
23, 1916.)

1. BOUNDARIES 37(1) - SUFFICIENCY OF
EVIDENCE-CONFLICTING SURVEYS.

A verdict finding no conflict between surveys held sustained by the evidence. [Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 184-189, 192, 194.]

2. BOUNDARIES 3(1)-DESCRIPTION-RELATIVE IMPORTANCE.

While ascertaining the surveyor's intention is the primary object in locating boundaries, it is a rule of evidence that calls for natural objects, artificial objects, and distance and course rank in the order given.

[Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 3, 5.]

3. BOUNDARIES

FICIAL OBJECTS.

3(3)-DESCRIPTION-ARTI

In a boundary location calls for natural or artificial objects prevail over those for course and distance only when they can be identified with reasonable certainty.

[Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 6-19.]

4. ADVERSE POSSESSION

115(5) - SUFFICIENCY OF EVIDENCE-HOSTILE CHARACTER OF POSSESSION. Where the wife of the record owner's lessee lived on the land after her husband's death, but did not claim title by adverse possession in a former suit to eject her, and certain of her children testified that she did not dispute her lessor's title, her hostile holding was a jury question.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 314, 697, 699, 700.]

5. LANDLORD AND TENANT ~56(1)—HOSTILE HOLDING-LESSEE'S FAMILY.

Where the children of the record owner's lessee continued to live upon the land until date

of suit, they continued to hold under the lease
although the original lessee had died.
[Ed. Note.-For other cases, see Landlord
and Tenant, Cent. Dig. § 124.]
6. ADVERSE POSSESSION 80(2)-COLOR OF
TITLE-DEEDS-SUFFICIENCY OF DESCRIP-

TION.

Under a statute requiring registration of the deed under which a claim by adverse possession is made, a deed not describing the land in fact nor according to the field notes claimed to be applicable thereto is insufficient.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 464, 465.]

7. ADVERSE POSSESSION 97-EXTENT OF

POSSESSION-TRESPASSER.

Where the record owner's lessee resided upon the land, such lessee had constructive possession of the entire tract, and a trespasser could only disseise the true owner to the extent of his actual possession.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 537-541.] 8. APPEAL AND ERROR 1070(2)—HARMLESS ERROR-VERDICT-INCONSISTENT ANSWERS.

Where a record owner's lessee had construcjury answers, regarding the adverse possession tive possession of an entire tract, inconsistent by a trespasser of a small portion, are immaterial, where such possession was claimed to establish title by adverse possession to the entire tract.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4232, 4233.]

9. PARTITION 4-ACT OF PARTIES-POWER OF ATTORNEY.

A power of attorney from one owning an undivided interest in property to the other part owner, in which the grantor described himself as the owner of a certain part thereof, is insufficient to establish a partition, where it is not shown that the power was accepted or acted on.

[Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 6-12.]

10. APPEAL AND ERROR ~843(2)—NECESSITY OF DECISION.

Where appellees are the record owners of claim of title by adverse possession. real estate, it is unnecessary to pass upon their

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3331.]

110(4)-PLEAD

11. ADVERSE POSSESSION
ING POSSESSION-SUFFICIENCY.
A plea of adverse possession of an entire
tract and a specific portion thereof is insufficient
to raise the question regarding another specific
portion.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 644, 645.]

Appeal from District Court, Polk County; L. B. Hightower, Sr., Judge.

Trespass to try title by V. A. Collins, Robert Dunham, and Mrs. Mary Colville against W. T. Carter, E. A. Carter, and Jack Thomas, a copartnership doing business under the name of W. T. Carter & Bro. and ThompsonTucker Lumber Company. Judgment for plaintiffs, and defendants appeal. Affirmed.

S. H. German, of Livingston, and Townes & Vinson and Baker, Botts, Parker & Garwood, all of Houston, for appellants. W. D. Gordon, V. A. Collins, and Thos. J. Baten, all of Beaumont, and J. L. Manry, of Livingston, for appellees.

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

It is conceded that the appellants have title to the Escobeda league, and the appellees have the record title to the Colville league, except the Handley 320 acres and the 1,000vara strip, and that the Escobeda is an older grant than the Colville.

CONLEY, C. J. This was an action of tres- | recover the Tom Kinard 140-acre tract by pass to try title brought by appellees, V. A. virtue of the statute of limitation? Collins, Robert Dunham, and Mrs. Mary Colville, against W. T. Carter & Bro., a partnership composed of W. T. Carter and E. A. Carter and Jack Thomas, and also against the Thompson-Tucker Lumber Company, a private corporation, to recover all of the Thomas Colville league of land in Polk county, save and except a strip 1,000 varas wide by 5,000 varas long off of the southwest portion of the league, known as the "1000-vara strip." The title to a tract of 320 acres known as the "Handley tract" in the east corner of the Colville league, claimed by appellants in their answer, was conceded to be in appellants, and judgment was accordingly rendered in their favor, and that tract is therefore not involved in this appeal. Appellants, in addition to their pleas of general denial and not guilty, disclaimed any interest in or title to the Thomas Colville league, save and except whatever part thereof might be included within the following boundaries, the same being referred to as the Bartolo Escobeda league of land, title to the said Bartolo Escobeda being issued on the 22d day of June, 1835, and which they described as follows:

"Beginning_at_the most northern corner of the Lowry T. Hampton league survey, from which a white oak 20 inches in diameter bears south 47 east 8 varas distant and another white oak 18 inches in diameter bears south 12 west 7 varas distant; thence north 45 east 5,000 varas to a corner from which a pine 15 inches in diameter bears south 80 east 4 varas, and a black oak 15 inches in diameter bears north 2% west 11.1 varas distant; thence north 45 west 5,000 varas to a corner, from which a cotton wood 14 inches in diameter bears north 14 east 13.2 varas distant, and a black oak 20 inches in diameter bears south 80% west 9.1 varas distant; thence south 45 west 5,000 varas to corner; thence south 45 east 5,000 varas to the beginning, containing one league of 4,428 acres of land."

In the solution of the issues involved, the first question presented for consideration is, Do the Escobeda and the Colville leagues conflict? The jury found that they do not conflict. But the appellant contends: First, that the undisputed evidence showed that the two leagues were located in conflict, except as to the 1,000-vara strip off of the southwest portion of the Colville league; and second, that it was therefore error to submit the issue of conflict to the jury, as was done by the trial court; and, third, that the findings of the jury that the two leagues were not in conflict is contrary to the undisputed evidence, or, at least, contrary to the great preponderance of the evidence, and should therefore be set aside.

These contentions are embraced in appellants' first five assignments of error. The ultimate effect of these assignments is to raise the question that the verdict of the jury on the issues of boundary is not supported by the evidence, and that the charge of the court submitting such issues is not sustained by the facts of the case, and we will discuss the subject from such viewpoint, without treating seriatim each assignment of error found in the brief.

as

The Bartolo Escobeda league was originally surveyed by S. C. Hirams, the field notes bearing date March 31, 1835, same being as follows:

"XBD Title June 30, 1835, Vol. 20, p. 583, Polk Co. XBD V 83.

As to the land included within the above boundary, the appellants pleaded title by legal conveyances from the sovereignty of the soil, and also pleaded 3, 5 and 10 years' stat-2 surveyed for Lowry T. Hampton mound and utes of limitation. The case was tried with a jury, and was submitted on special issues, upon the answers to which the court entered judgment in favor of appellees for all of the Colville, except the Handley 320-acre tract, and the 1,000-vara strip above referred to. In due time appellants filed their motion for a new trial, which was overruled, and an appeal was perfected to this court.

The principal questions to be determined upon this appeal are as follows: First. Do the Escobeda and Colville leagues conflict? Second. If they do not conflict, have the appellants perfected title to the Colville land by virtue of the statutes of limitation, under deeds and muniments of title describing the identical land? Third. If the Escobeda and Colville leagues do not conflict, and appellants are not entitled to recover under their pleas of limitation, are not appellants entitled to

Bartolo Escobeda on the east side of Trinity on "Field notes of a league of land surveyed by the branch of the Neches called the Big Sandy. Beginning at the northwest corner of league No. stake, from which a black oak 20 inches in diameter bears south 47 deg. east 8 varas dist. also a white oak 18 inches in diameter bears south 12 deg. west 7 varas distant, thence north 45 deg. east 2430.3 varas Big Sandy running south 15 varas wide, 5000 varas, made a mound and planted a stake, from which a pine 15 inches in diameter bears south 80 deg. east, 4 varas distant; also a black oak 15 inches in diameter bears north 21⁄2 deg. west 11.1 varas distant. Timber, Pine, oak, elm, hackberry and hickory, undergrowth cane, sassafras and myrtle, some overflow and the land on the west side rich and fertile, but on the east mostly poor sandy land; thence north 45 deg. west 580.5 varas, pine 20 inches in diameter, line tree, 5000 varas, mound and stake, third corner, from which an elm 14 inches in diameter bears north 14 deg. east 15.2 varas distant, also a black oak 20 inches in diameter bears south 80 deg. west 9.1 varas distant. Timber principally pine, undergrowth myrtle, cypress and paw paw; thence south 45 deg. west 385 varas, pine 18 inches in diameter, line tree 543.5 varas, black oak 18 inches in diameter, line tree, 4250 varas Big Sandy, 5000 varas mound and stake, fourth corner, timber pine, oak, hickory, and

hackberry, undergrowth, myrtle, peach and cane, land generally rich and fertile. Thence south 45 deg. east 5003.5 varas, fell 4% varas south of the place of beginning, timber of a good quality, pine, oak, magnolia, beech and land rich, north 45 deg. west on true line, 5003.5 varas to the fourth corner, containing one league, about 7 labors of good farming land.

"S. C. Hirams, Surveyor,

"March 31, 1835." This surveyor surveyed the Juan Falcon on the same day. The Thomas Colville was surveyed on June 24, 1835. The Lowry T. Hampton on March 14, 1835, the A. Wiley on June 24, 1835, the Henry Cone on the day of 1835, the A. Emanuel on June 24, 1835, and the F. Castanado on June 1, 1835. These are all adjoining surveys and their location, as well as other matters hereinafter referred to are shown on the following

map:

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"Field notes of a League of Land surveyed for Thomas Colville on Big Sandy. Beginning at the S W corner of a league surveyed for Doctor Cone.

"Thence: N 45 E 340" Branch bears S 10E 580" branch bears $ 25 E, 1195" Spring branch bears S 80 E 3280' Creek 8 varas wide bears S 10 E 5000" 2nd corner from which a pine 30 in di bears N 30 W 9 varas dist also a White Oak 8 in di bears N 33 E 13.1 varas dist. Oak, ash, hickory, sugartree, magnolia and some pine timber. Undergrowth Cane, dogwood & Myrtle, Land fertile.

"Thence S 45 E 830" Big Sandy, 900" Big Sandy again, 999" Big Sandy again 8 varas wide Bears South 2180" beautiful spring, 2980" trace leading from the lower village on Trinity to the prairie or Alabama Village on the Naches, 4096" creek 3 varas wide bears S 40 E, 4910 spring

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