the proceeds to his own use and benefit, and will not account to appellee for his landlord's share. It was further alleged that appellee's interest in the crops and his security therefor "is in danger of being lost, removed, and materially injured," and "is not safe in the hands of" appellant. It was upon these allegations, and without any hearing or notice to appellant, that the receiver was appointed and the injunction granted where by all of appellant's crops of whatsoever nature, and all of his work stock, were taken from him and placed in the hands of a receiver, with power to dispose of all of it summarily upon such terms as his judgment approved; and appellant was ordered to turn over the properties, together with all the proceeds of the property disposed of, to the receiver, and was restrained from interfering in any manner with the acts of the receiver. [7] It is without hesitation that we have reached the firm conclusion that the trial judge erred in appointing a receiver, and especially in according him such broad powers as to enable him to so expeditiously dissipate the estate, without giving appellant an opportunity to be heard. The object in appointing receivers is to preserve and conserve property, not to destroy or dissipate or dispose of it. [8] And, when an estate is placed in the custody of a receiver, it should be preserved intact until the rights of the claimants thereto are determined by orderly process, unless, indeed, the property is of such perishable rature that it will disintegrate, or waste, or depreciate in value, in which event only should the receiver be authorized to place it under the hammer pending adjudication. [9] The necessity for appointing a receiver without notice to the adverse party should be shown by allegations of specific facts, and not by general conclusions of the applicant, as was sought to be done here. Even if the conclusions of appellee in this case had been sufficiently specific to show the facts stated, those facts are not deemed sufficient to warrant the unseemly haste evidenced in those proceedings, and did not negative the existence of any alternative, but less drastic and destructive, relief available to appellee, as should have been done. This is plainly true as to the cotton and other crops, and, as there were no allegations that appellant was about to remove or dispose of his horses and mules so as to place them beyond the reach of the litigants, there appears to be no excuse for seizing them, or at least so hastily removing them to a distant county and selling them out under the hammer. a court has no more power than any other court to condemn a man unheard and to dispossess him of property prima facie his, and hand over its enjoyment to another on an ex parte claim for it. It should therefore exercise extreme caution in the appointment of receivers on ex parte applications, and be careful that a proper case is presented before it acts, and it should not be done without notice to the party whose property is to be affected, except in cases of the greatest emergency, demanding immediate interference of the court." And, after observing that the rule is not inflexible, but yields to imperative necessity for an ex parte appointment to prevent irreparable loss, the same authority declares that "Moreover, it has been held that a receiver court has the powers to grant a temporary rewill not be appointed without notice when a straining order without notice, and the same is ample to protect the property until notice is given and the application for a receiver heard and determined." [10] The rule is clearly stated in Tardy's Smith on Receivers (2d Ed.) § 731: "The rule in respect to ex parte appointments of receivers may be stated as follows: A receiver may be appointed without notice where the defendant is beyond the jurisdiction of the court or cannot be found, or where some ment before the giving of notice necessary to emergency is shown rendering the appointprevent imminent and irreparable injury, waste. destruction, or loss, or when notice itself will jeopardize the delivery of the property over which the receivership is to be extended. The situation must be such as to be of such imperious necessity that it requires immediate action and of a character that no other protection can be accorded to the plaintiff. The power to make such appointments should not be exercised in doubtful cases, or where sufficient protection could be afforded in some other way, such as, for instance, by means of and the application for a receiver heard and an injunctional order until notice can be given determined." This pronouncement of the rule is in accord with the decisions in Texas. Solomon v. Mathews (Tex. Civ. App.) 238 S. W. 307; Bingham v. Graham (Tex. Civ. App.) 220 S. W. 105. Tested by the rule stated, the court below was not warranted in this case in appointing a receiver upon an ex parte hearing without notice to the defendant. No facts were alleged, no conclusions of the pleader, even, were asserted, which indicated a probability that appellant could or would gather and dispose of the cotton or other crops, or any appreciable part of them, within a period so The rule is well stated in 23 R. C. L. P. brief as to preclude notice to the defendant 28, that and a hearing upon the application, or that "Courts of equity are adverse to interfering the defendant contemplated the sale, removex parte, and will not ordinarily entertain an al, or disposal of the mortgaged horses and application for the appointment of a receiver, mules. It is obvious that the purpose of the except upon notice to the adverse party. Such extraordinary relief prayed for could have 1 (288 S.W.) The order appealed from will be reversed, and judgment is here rendered that the receivership be vacated, and the injunction dissolved, at the cost of appellee in both courts. On Motion for Rehearing. We did not intend in the original opinion to decide the merits of the order directing issuance of attachment for appellant, as appellee appears to construe that opinion. The fact was mentioned only as an incident of the summary proceeding, by which appellant, without being given any sort of notice or hearing, was at least temporarily deprived of his liberty and property. Nor did we find as a fact that the receiver had actually sold appellant's horses and mules in accordance with the authority given him in response to his application. We simply suggested that, if he continued to be as diligent after as he was before obtaining the order, he must have sold the live stock by the time the appeal was determined. been fully accomplished by issuance and serv-, will not hesitate to revise such actions when ice upon the defendant of a temporary re- the record clearly shows an abuse of that straining order prohibiting him from disturb-discretion. We think this is such a case, ing the status of the property or disposing of made obvious by the record. it until a hearing could have been had upon the application for both the injunction and the appointment of a receiver. Certainly notice of such restraining order and of the impending hearing could have been gotten to the defendant within the same period occupied by the receiver in reaching appellant's premises and demanding possession of his property, notwithstanding the somewhat startling celerity with which the receiver got on the ground and demanded possession of the property. By this simple means of a temporary restraining order, as distinguished from a temporary injunction, and at a numinal cost to the litigants, the property of appellant could have been held intact and its status fully preserved until notice could be given appellant, and he be given an opportunity to present his defenses to the wholesale charges made against him, and be heard concerning his rights in the matter. Whereas, by the course taken, appellant, without notice, without opportunity to defend himself or his property or his rights, was required to surrender the whole of the fruits of his year's labor, as well as all his work stock; was arrested and carried to a distant county to answer a charge of contempt because he acted in disregard of an injunction and receivership proceeding of which it appears he had had no previous notice; and, still without notice to him, his live stock was taken from his farm, removed to a distant county, and there disposed of at forced sale, because, forsooth, such course was, in the receiver's "opinion," "best for the receiver." These things were done without notice to appel-sonably harsh remedy resorted to by appellee. lant, all within a period of less than a week; and there has been added to his debt, if the proceedings are upheld, all the costs of such proceedings, including the receiver's expenses, commissions, and fees. We sustain ap pellant's second proposition, but overrule his remaining propositions upon the ground that they have become immaterial to this decision. [11] While it is true that the granting of injunctions and the appointment of receivers are matters largely within the discretion of trial courts, yet nevertheless appellate courts In his motion for rehearing appellee goes beyond the record presented in the transcript, and denies that such sale had been made. If we take cognizance of matters occurring subsequent to the taking of the ap peal, then it appears that the receiver as a matter of fact sold the live stock to appellee on September 29th for the sum of $935, and his motion for confirmation of the sale is pending. The probable sale was mentioned in the original opinion, not as having a controlling or even material effect upon the decision, but as another incident to the unrea [12] In his motion for rehearing appellee sets out a series of additional facts, by reason of which it is argued that the trial court was justified in appointing the receiver with the powers given him in this case. But none of these additional facts were set out in the application for the appointment of the receiver; they are without support in the record; and can have no effect in the determination of the appeal. Appellee's motion for rehearing is overruled. judgment should have been for plaintiff for all KYLE v. HIGGINBOTHAM et al. (No. 7022.)* of land disclaimed. (Court of Civil Appeals of Texas. Austin. Appeal from District Court, Dallas Coun 1. Vendor and purchaser 349-Petition, in suit on bond to perfect title, need not conform to rules of pleading applicable in suit on general warranty. Petition, in suit on bond agreeing to perfect known defects in title, held not demurrable for failure to conform to rules with reference to pleading in suits on general covenants of warranty. 2. Vendor and purchaser 349-Petition for recovery on bond to perfect title for loss of sale of oil lease need not allege land was sold as oil bearing. Petition for recovery on bond to perfect title, alleging damages sustained in loss of sale of oil lease, because of defect, need not allege that land was sold as oil bearing, since oil is an interest in land and within contemplation of parties at time of sale. 3. Vendor and purchaser 349-Allegation, in suit on bond to perfect title, held sufficient to show attempt to minimize damages from loss of sale of oil lease by reason of defects. Allegation, in suit to recover on bond to perfect title, for damages for loss of sale of oil lease, that plaintiff, at time of sale of lease, did not know title had not been perfected held sufficient as against contention that there was no endeavor to prevent or minimize damages. 4. Damages 62(4)—On learning of breach of contract, ordinary care must be used to prevent further damage. One learning of breach of contract, which will result in injury or damage, must use ordinary care to prevent further injury or damage therefrom. 5. Damages 208 (7)—Question of ordinary care to prevent further damages, after learning of breach of contract, is ordinarily for jury. Suit by Mrs. G. F. Kyle against J. M. Higginbotham and others, wherein defendant filed a cross-action, on which nonsuit was subsequently taken. Judgment sustaining a general demurrer and dismissing the suit, and plaintiff appeals. Judgment reformed in part, and in part reversed and remanded. Etheridge, McCormick & Bromberg, of Dallas, and J. W. Stitt, of Fort Worth, for appellant. Read, Lowrance & Bates, of Dallas, for appellees. BLAIR, J. The principal question presented by this appeal is whether the trial court erred in sustaining a general demurrer to appellant's petition and dismissing the suit upon her refusal to amend. Her amended petition, on which the trial was had, alleged, in substance, that on October 1, 1914, appellees conveyed to George F. Kyle by three separate warranty deeds three tracts of land, aggregating about 235 acres, in Eastland county, Tex.; that Kyle gave notes, aggregating $11,000, in part payment of the land; that Kyle's attorney refused to approve or pass the titles to the land as well vested in appellees, and that they could not furnish Kyle a good and marketable record title as they were obligated to do; that, as an inducement to Kyle to accept the deeds and deliver his notes, appellees executed and delivered to Kyle their personal bond, on February 17, 1915, in the sum of $5,000, conditioned that they would diligently proceed at their own expense to perfect the title to the extent that the abstract and records thereof would disclose a good and merchantable title in Kyle, subject only to the purchase-money notes, within six months, if suits were not required, and within two years, if suits were required; that Kyle, relying upon the representations and the assurance of the bond, accepted the deeds and delivered his said notes to appel. lees; that Kyle died in 1916, leaving his es tate to his widow, Mrs. G. F. Kyle, the appellant, who, in 1919 undertook to and did contract to sell to a certain named party an oil and gas lease on one tract of the land for the sum of $4,500 in cash; that the purchas er's attorney refused to pass or approve appellant's title because of defects, which the bond obligated appellees to perfect and which defects were specially pleaded; that, although appellees had represented to Kyle that they had perfected the titles, it develJudgment in favor of defendant on dis-oped at the time of the sale of the oil and claimer to land on which plaintiff sought to gas lease that they had done practically nothquiet title constituted fundamental error, since ing towards fulfilling their bond obligations; Question of ordinary care to be used by one learning of breach of contract, which will result in injury or damages, in order to prevent further injury or damages, usually is for jury. 6. Dismissal and nonsuit 19(1)—Permitting nonsuit on cross-action seeking recovery on purchase-money notes held error, where plaintiff asked cancellation of part of notes and alleged willingness to pay balance. Permitting nonsuit on cross-action, in suit on bond to perfect title seeking recovery on purchase-money notes, held error, where plaintiff asked that notes be canceled to extent of damages under bond and averred willingness to pay balance due on notes. 7. Quieting title 52-Rendering judgment in favor of one disclaiming interest in land to which plaintiff sought to quiet title held funda mental error. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (288 S.W.) and that because of such nonperformance ap- | murrers to particular theories or grounds uppellant had lost the proceeds of the sale of on which appellant sought judgment and will the oil and gas lease to her damages in the be so considered. Gin Co. v. Bank (Tex. Civ. sum of $4,500, for which she prayed judg- App.) 279 S. W. 886. ment; and, further, that the $4,500 be applied in cancellation of the purchase-money notes held by appellees; and for general relief. Appellees filed an answer which consisted of a general demurrer, several special exceptions, and a cross-action against appellant upon all the unpaid notes given as purchase money for the land, and for a foreclosure of the purchase-money lien securing them. The trial court sustained the general demurrer, or the several general demurrers, upon the following grounds: (1) That Kyle purchased the land and accepted the deeds and the bond sued upon with full knowledge of the alleged defects in title. (2) That the petition did not allege failure of title, in whole or in part, to any of the three tracts of land. (3) That no fatal or material defects in titles were alleged, but mere conclusions of law unsupported by any particular facts. (4) That the petition negatives the fact that either Kyle or appellant had been evicted from the land. (5) That appellant did not ask for a rescission. By supplemental petition, appellant alleged that three of the purchase-money notes were due October 1, 1921; that before their maturity, as was her custom in former years without objection, she sent appellees her check in payment of these notes and interest, which appellees returned to her, with the statement that the check was not legal tender; whereupon she made legal tender, but (6) That the petition seeks a recovery on the appellees refused it upon the ground that it bond for damages alleged to have been suscame too late, since they had declared all tained for the loss of the sale of an oil and notes due and payable under the accelera- gas lease on the 224-acre tract; that there tion of payment clause, and had placed them was no allegation that the land was sold in the hands of attorneys for collection and as oil bearing, or on a representation that for foreclosure of the lien securing them, it was oil bearing, or that it was within which would be done unless this suit was abandoned by appellant; that she did not dismiss the suit; and that by reason of the nonperformance of the bond obligations by appellees the consideration for the notes had failed to the extent of her damages under the bond; and she prayed that the unpaid notes be canceled to that extent, and tendered payment of any balance due on the notes. Thereafter, on January 7, 1924, appellees took a nonsuit on their cross-action on the purchase-money notes, over the protest and objection of appellant. Appellant then amended her original petition, but not her supplemental petition, and, in addition to the matters pleaded as herein before set out, alleged in the alternative that, by reason of the failure of consideration of the unpaid notes to the extent of her damages for nonperformance of the bond, a cloud was cast upon her title, which she prayed be removed by a cancellation of said notes to the extent of her damages. Appellees filed an amended answer, consisting of a general demurrer and several special exceptions, but omitted therefrom their cross-action on the purchase-money notes. the contemplation of the parties that the purchaser or his successor in title would attempt to sell an oil and gas lease thereon; and that the damages sought are special damages, too remote and speculative, and represent a loss of profit sustained on a collateral contract subsequently made affecting a matter not within the knowledge or contemplation of the parties to the original contract of sale or bond. (7) That the petition did not allege that appellant endeavored to prevent or minimize her damages by suing the purchaser of the oil and gas lease for specific performance of his contract or for damages for a breach thereof. Neither ground upon which the action of the trial court is based is sustained. [1] In sustaining the general demurrer to the petition, the court necessarily took the view that the collateral contract and bond, upon which appellant sued, added nothing to the general covenants of warranty in the deeds conveying the land to her predecessor in title, and that therefore the rules with reference to pleadings in suits upon general covenants of warranty in deeds should apply. That is, with reference to grounds 1 to 5, both inclusive, the court held that, since the A hearing was had September 30, 1924, and three deeds conveyed Kyle the land by genappellees' general demurrer and several of eral covenants of warranty and were exetheir special exceptions were sustained, and cuted contracts, before appellant could reappellant's suit dismissed. But, since the sist the payment of the purchase-money notes general demurrer to appellant's petition was because of defects in the title, she must alsustained, the sustaining of what are desig-lege that she was ignorant of such defects nated special exceptions becomes immaterial. at the time of the execution and delivery of However, some of them are but general de- the deeds, that the titles were wholly defec tive, or that there were outstanding titles in, 9 S. W. 677; Earle v. Marx, 80 Tex. 39, 15 S. others, or that vendors clearly had no titles, W. 595. With the exception of the suit in or that the titles were such as exposed her to the first case cited, the suit in each case was the dangers, or, in fact, the certainty of evic- upon the covenants of warranty in the deed tion, then she would not be compelled to pay and furnishes no authority in this case, the notes, but after eviction might seek her where the suit is upon the collateral conremedy on the general covenants of warranty tract and bond to provide abstracts showing in the deeds. The court also applied the rule good and merchantable record titles. In the with reference to an offer to rescind the con- Frantz-Masterson Case, supra, and upon tract of sale before appellant would be per- which appellees principally rely, the suit was mitted to remain in possession and delay to enjoin a trustee's sale of the land in satispayment of the notes. faction of the purchase-money notes until vendor had complied with his collateral agreement or contract, executed simultaneously with the execution and delivery of the deed, and by, which he agreed to meet and correct all the objections to the title pointed out by the attorney of vendee; and, with reference to the collateral agreement, the Court of Civil appeals held: "This agreement, if it could modify to any extent the rule laid down in Cooper v. Singleton and the other cases cited above, was not sufficient, in view of the state of the pleadings, to authorize the court by injunction to prevent the collection of all the notes, while the plaintiffs in error at the same time withheld from while thus holding possession postpone indefithe vendors the possession of the land, and nitely any efforts of defendants in error to collect the whole or any portion of the amount of said notes." "Incline to think the plaintiffs were entitled to stay collection of purchase money until defendant complied with agreement to perfect title." But we have reached the conclusion that these rules are clearly aside the mark and have no application to appellant's suit upon the collateral contract and bond of appellees to perfect, within a fixed time, the known and acknowledged defects of the record titles, and upon failing to do so to respond in damages to the extent of $5,000. In fact, the very nature and purpose of the collateral contract and bond was to take the transactions specified therein from out of the rule or rules applied by the court. Certainly, appellant could not have alleged ignorance of the defects when the purpose of the collateral contract and bond was to point them out and make provision for remedying them. The trouble was not with the actual titles to the land, but was with reference to the record titles, as disclosed by the abstracts, and the suit is simply one to recover damages for a breach of the collateral contract and In that case, the Supreme Court granted a bond to perfect the record titles, without re-writ of error, with the following notation: gard to the covenants of warranty in the deeds, except in so far as the contract and bond are collateral thereto. It may be true, as asserted by appellees, that the bond only undertook to require them to do that which the covenants of warranty in the deeds obligated them to do; but that fact did not prevent the parties from further contracting that those covenants should be fulfilled in a specific manner and within a specified time, and for damages for failure to perform the contract. But whether the general covenants of warranty in the deeds required vendors to furnish abstracts showing good and merchantable record titles is not a material question here, since by written contract and bond they have agreed to do so. It is also immaterial whether the defects specified in the contract and bond are frivolous or of no material consequence, since there is no rule of law prohibiting men from making frivolous and inconsequential contracts. However, we hold that the defects alleged and contracted to be remedied are not frivolous or inconsequential. In support of the action of the trial court, contemplation of the parties when the sale appellees cite the following cases: Frantz v. Masterson (Tex. Civ. App.) 133 S. W. 740; Cooper v. Singleton, 19 Tex. 260, 70 Am. Dec. 333; Carson v. Kelley & Sweatt, 57 Tex. 379; Ogburn v. Whitlow, 80 Tex. 239, 15 S. The cause was then settled and dismissed by agreement of the parties before further action by the court. The notation supports our view of this case, and we will not discuss the Court of Civil Appeals' opinion further than to say that, if it is in conflict with our decision here, we must respectfully refuse to follow it. [2] Neither do we sustain the sixth ground upon which the general demurrer was sustained. The deeds conveyed all the right, title, and interest that appellees had in the land to Kyle. Oil is an interest in land. It is an interest capable of being separated from other interests and sold. The contract and bond obligated appellees to perfect the record titles to all interests in and to the land conveyed, and to pay damages for failure to perform the obligation; and, since oil is an interest, it was therefore within the was made. For the same reason, the damages arising from the loss of the sale of an oil lease on the land are not too remote or speculative, for such damages were within the contemplation of the parties when they |