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(218 S.W.)

Etta M. Fryckberg, as administratrix and individually, Nueces River Irrigation Company, and Hollice, Donna, and Eleanor Fryckberg, minors, answered by demurrers and

the lien upon lands of Nueces River Irriga- | property by the order, judgment, and decree of tion Company, thereby making her claim the county court of Nueces county, Texas, sitsuperior. In the alternative prayed that ting in probate in said estate of J. W. Fryckplaintiffs' lien should only operate upon the berg, deceased, and that no attempt was in said land, and not upon the improvements there- cause made to have said land set apart or declared to be a homestead and that no claim on, and that the land be released upon the thereto was in said court asserted. They spepayment of the value of the land. cially denied any waiver of or discharge of the vendor's lien and as to the Nueces River Irrigation Company, they denied that said Scott examined or recommended the acceptance of the title to said corporation other than as subject to the lien outstanding and unsatisfied for the unpaid purchase money, and they pleaded in this connection that the promoters and organizers of the Nueces River Irrigation Company, at the time of the promotion and after the organization and incorporation, well knew and understood that there was outstanding and unsatisfied a valid and subsisting lien upon said lands and premises for the unpaid purchase money thereof and said corporation acquired the title to said land subject to any rights outstanding and existing in the owner and holder of said lien, and they further alleged that not only was said lien for the unpaid purchase money but that the deed of trust evidencing the lien was, in writing, executed and acknowledged by J. W. Fryckberg, the husband of said Etta M. Fryckberg, and that no homestead rights could exist or have been acquired against said lien."

"specially excepted to and filed a plea to the jurisdiction of the court, specially excepted and pleaded the four-year statute of limitation to the vendor's lien note, specially excepted and pleaded that this suit was a collateral attack on the proceedings of the probate court, specially excepted and pleaded the statute of frauds, that this was a suit to hold a married woman personally responsible, who signed as surety for a pre-existing debt of her husband, and pleaded the five-year statute of limitation as to the fiveacre tract of land in the name of Nueces River Irrigation Company. All of which exceptions were by the court overruled.

"And, specially answering, these defendants charged: That the deed of trust and note given on the homestead tract was and is void, and as to a lien on various other and sundry properties, that the assets should be marshaled, and that the deed of trust and note was executed as, intended for, and accepted by plaintiffs' decedent, as a complete discharge and satisfaction of the original vendor's lien, and was a full and complete settlement of accounts to that date, and that said original lien was thereby waived, discharged, released, and annulled in its entirety, by taking said independent security, of shares of stock, and Mrs. Fryckberg's signature as surety; also pleaded estoppel as to the fiveacre tract of land in name of Nueces River Irrigation Company as against plaintiffs' decedent, who was an attorney and passed upon and recommended the title to said land."

Appellees filed a

The judgment was for $10,593, with interest from November 27, 1914, until paid at the rate of 8 per cent. per annum in favor of appellees, establishing the lien on the lands, and in favor of Mildred Seaton on her cross-action against Nueces River Irrigation Company for $8,973.40, with 8 per cent. interest from January 27, 1919, and for foreclosure of a lien on a certain tract in controversy. The appellants have appealed their case, and are here upon separate assignments and briefs, but practically the same errors are assigned, except in so far as Mildred Seaton in her brief has raised questions ap

[1] The first to third assignments question the jurisdiction of the district court to entertain this suit to adjudicate the matters therein on the alleged ground that the county court alone had the exclusive original jurisdiction to classify and determine the superiority of claim and enforce liens incident thereto. That proposition is generally true because, being a court of exclusive jurisdiction in regard to administration of estates, it is yet a court of limited jurisdiction.

"supplemental petition in answer to the amend-plicable to her alone.
ed answer of the defendants Etta M. Fryckberg,
individually and as administratrix, the Fryck-
berg minors, and Nueces River Irrigation Com-
pany, which consisted of a general demurrer,
general denial, and a special answer to that
portion attempting to plead homestead, in which
plaintiffs averred that the indebtedness due was
for the unpaid purchase money on the lands and
premises described in plaintiffs' petition; that
their decedent, G. R. Scott, was the owner and
holder by a valid written transfer, duly record-
ed, of the vendor's lien, and legally entitled to
the land and premises to secure the full and
final payment of said indebtedness; that said
sum of money was unpaid and unsatisfied, and
the vendor's lien outstanding and unsatisfied to
secure the payment thereof, and that neither said
Etta M. Fryckberg nor the minors could or did
acquire any homestead in the 200 acres of said
land, or in any part of said land, as against
said unpaid purchase money.

"They further specially answered that the claim had been allowed, adjudicated, and established as a valid, subsisting, and unsatisfied claim for the unpaid purchase money on said

The district court, too, in some cases, has jurisdiction relating to estates of deceased persons when legal or equitable rights are required to be adjudicated and the powers of the county court are inadequate to adjudicate the same and administer complete relief. In fact, no court of equity in the world, chancery or otherwise, possesses the broad and comprehensive powers to administer equity as the district courts of this state under the Constitution and laws. Sub

ject to the limitations prescribed by our stat- [ take cognizance against the administratrix, utes it is:

"Authorized to hear and determine any cause which is, or may be, cognizable by courts, either of law or equity, and to grant any relief which could be granted by said courts, or either of them." Art. 1712, R. S.

And see the many citations under that article in Vernon's Sayles' Civil Statutes.

to compel a sale of the land under that judgment and bring it before it, preliminary thereto, these very alleged adverse claimants and adverse interests, all proper subjects to be brought into one proceeding in the district court, where full and adequate relief may be had and administered between all of them, and upon each of them, and in respect

ance.

to each of their claims and cross-claims [2] The appellees in no wise have denied or attacked the jurisdiction of the county court did, by leaving to the ultimate and against each other, respecting, as the district probate court; they affirmed it both by going final jurisdiction right of disposition and enin and then causing the decree of the dis-forcement of the claim to and through the trict court certified to it, for final disposition. It was there their claim was estab- county probate court, and to that end certilished against the estate and their lien fixed fied its judgment to that court for observon the land securing it. They requested the adminisratrix to sell the land to pay it. They sought her removal because she refused to obey the court, but the court refused to grant that. Appellees exhausted all their remedies in that court before appealing to the equity powers of the district court for relief.

The very defenses set up of alleged prior liens and adverse interests in the land by other persons, and the attacks made against the approved claims established by the county probate court, demonstrate the need of the broad equity powers of a court of equity.

The matters adjudicated here could not have been so adjudicated in the probate court for there was no procedure whereby third parties might be interpleaded, and made to set up claims to be passed upon. It may be that appellants could have gone in the county court voluntarily, having an interest in the subject-matter, and had all the issues disposed of, but we do not see how appellees could have required their appearance. Their action demonstrates on its very face those issues could be determined between them only through the broad powers of the district court. Perhaps appellees felt there was no appeal from the action of the administratrix in refusing to execute the order, because the court granted all applications to compel a sale. An appeal from the order of the court in refusing to remove the administratrix does not seem to have been an adequate remedy, as the trial would be de novo on that question alone, and all other issues would still be undecided. For instance, the

alleged refusal upon the part of the administratrix, among other reasons, that said property had not been sold because the estate did not hold title to all of it, and that as to other portions of said property there were other claimants of liens, rights, interests, or title, of same character, which had not been determined, was to deny appellees very valuable rights. This is no reason for an administratrix to disobey the order of the court. Such questions are ordinarily to be determined by the court for itself having charge of such estate. But it states a very good reason why the district court should

law in this state to avoid a multiplicity of [3] It has always been the policy of the suits, and when possible settle in one suit such issues as could not have been settled in 3207; R. S. 1911, arts. 1705, 1706, 1712; Canthe probate court. R. S. 1911, arts. 3206,

non v. McDaniel, 46 Tex. 306; National Guar

anty Loan & Trust Co. v. Fly, 29 Tex. Civ. App. 533, 69 S. W. 231; Hume v. Perry, 136 S. W. 594; Phillips v. Watkins Land Mortgage Co., 90 Tex. 195, 38 S. W. 270, 470; George v. Ryon, 94 Tex. 317, 60 S. W. 427; raine v. Ashe (Sup.) 191 S. W. 565; Lauraine Ralston v. Stainbrook, 187 S. W. 415; Lauv. Masterson, 193 S. W. 710; Lauraine v. 209 S. W. 483. As said in Lauraine v. MasVaughan, 193 S. W. 712; Slavin v. Greever, terson, 193 S. W. 711;

"The nature of the case, as disclosed by the foregoing statement, was such that the powers of a probate court were inadequate to grant the defendant in error the full relief to which he was entitled, and it is well settled that in such cases the district court can properly be called upon to exercise its equity powers and grant adequate relief. Cannon v. McDaniel, 46 Tex. 303; George v. Ryon, 94 Tex. 317, 60 S. W. 427; National Guaranty Loan & Trust Company v. Fly, 29 Tex. Civ. App. 533, 69 S. W. 231; Stewart v. Webb, 156 S. W. 537."

In the case of Lauraine v. Ashe (Sup.) 191 S. W. 566, opinion by Chief Justice Phillips, speaking of the jurisdiction conferred by the Constitution, the court said:

"Jurisdiction for the transaction of 'all business appertaining to deceased persons, ***! is by the Constitution conferred upon the county court in broad and general terms. But the equity jurisdiction of the district court is conferred by the same instrument in terms equally broad. While it is customary to speak of the jurisdiction of the county court over matters relating to estates of deceased persons under administration as 'exclusive,' and the entire current of our judicial decisions is to carefully protect the jurisdiction of that court over such matters, as it ought to be, yet it is plainly recognized that questions may arise affecting estates in regular course of administration, requiring, for illustration, the adjustment of equities, for the settlement of which the probate

(218 S.W.)

[4] The allowance of the claim and its es

tablishment was a judgment of a court of competent jurisdiction and cannot be collaterally attacked. There was no appeal taken from it, nor contested by any creditor, the appellants, or any one asserting an adverse claim in the county court. None of the appellants here appeared before the probate court to set up any adverse claims, or to contest its allowance or have their rights passed upon.

jurisdiction of the county court is inadequate, | the purpose for which said note was given. and in such cases, notwithstanding the admin- Said deed of trust contained a declaration that istration, resort may be had to the equity pow- the property formed no part of any property ers of the district court for the determination claimed by them as exempt from forced sale, of those questions, the judgment to be perform- and disclaimed and renounced any claim thereed through the probate court. This is a juris- to, and specifically designated as their homediction auxiliary and ancillary to that of the stead Annex No. 1 to Nueces River Irrigation probate court. In some extraordinary instances Park of said lands, but expressly stated that, it may be corrected. It is to be exercised only as above recited,' it had not been paid for." in special cases, but it nevertheless exists. Cannon v. McDaniel, 46 Tex. 303; George v. Ryon, Administrator, 94 Tex. 317, 60 S. W. 427; Western, etc., Mortgage Co. v. Jackman, Adm'r, 77 Tex. at page 626, 14 S. W. 305; Groesbeck v. Groesbeck, 78 Tex. 669, 14 S. W. 792; Pomeroy's Eq. Jur. vol. 3, § 1154, pp. 2283-2294. * * *To make our ruling plain, it is to be understood that only the probate court has jurisdiction to sell for the payment of debts the property of a decedent upon whose estate administration has been commenced or is pending. Rogers v. Kennard, 54 Tex. 30; Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486; Atchison v. Smith, 25 Tex. 228. Our holding is made with clear reference to the want of such power in the district court. As applied to the character of case last discussed, where, notwithstanding a pending administration, the jurisdiction of the district court may be availed of for the settlement of questions affecting the estate which the powers of the probate court are inadequate to determine, this is also the rule. The judgment in such a case is to be performed through the probate court, and if a sale of property is necessary to its performance it must be made by that court. Cannon v. McDaniel, supra. An attempted exercise of this power by the district court is not here involved; nor, with administration upon the estate of Mrs. Allen commenced, is it to be assumed that its exercise will be attempted. The present case concerns alone a jurisdiction which is entirely distinct from such power, and which, from aught that here appears, may be properly exercised by the district court."

[5] The lien here asserted by appellant Mildred Seaton is inferior to that of appellees. She was also the notary who took the acknowledgments to the Instrument. The note of G. R. Scott was for the renewal and extension of a balance due for the purchase money, and a vendor's lien preserved and continued in effect recited both in the note and deed of trust to G. R. Scott. Warhmund v. Merritt & Metcalf, 60 Tex. 27; Berry v. Boggess, 62 Tex. 237.

There was no pleading or proof that would have justified the court to order the sale of the remainder of the land before sale of the portion which Mildred Seaton, appellant, claims should be last sold to protect her alleged claim. The claim of appellees had been allowed as a secured claim on the note dated May 19, 1911, shown to have been a renewal and extension of the lien for purchase money. The basis of which claim was

Now the facts in regard to this transaction the transfer of the note dated March 24, 1911,

are:

“About July 1, 1907, C. J. Allen conveyed to J. W. Fryckberg by warranty deed certain lands out of the Herrera grant, in Nueces county, Texas, including what was subsequently known as the Nueces River Irrigation Park, and as part of the purchase money therefor said Fryckberg executed and delivered to said Allen his note of that date in the principal sum of $15,437.33, numbered 3, and maturing three years after due, payable to said Allen or order, and providing for interest and attorney's fees, and retaining the vendor's lien on said lands and premises to secure the payment thereof, and in said deed the vendor's lien was also expressly retained. Subsequently, on March 24, 1911, for a recited consideration of $12,451.73, said note and said lien were in writing transferred and assigned to G. R. Scott by the said C. J. Allen. On May 9, 1911, J. W. Fryckberg and Etta M. Fryckberg executed and delivered to G. R. Scott their note in the sum of $9,270, which recited that it was secured by a deed of trust on 372 acres of land in Nueces River Irrigation Park, with all the water rights and privileges to which said lands were entitled, and said deed of trust fully described said note and

filed for record May 31, 1911, duly recorded, while the Mildred Seaton note was dated December 30, 1913, secured by a deed of trust, dated February 3, 1915.

We have carefully considered all the assignments touching the jurisdiction of the court, the plea of limitations as to the vendor's lien note, the question of personal liability of Mrs. Fryckberg, waiver of liens, homestead claim, and all other assignments, including additional ones raised by appellant Seaton. We cannot see the slightest reason to question the good faith and right of G. R. Scott to acquire the note he did for himself.

[6] We think it was proper in the first place for appellees to have exhausted their remedy in the county court before appealing to the equitable powers of the district court to try out in that court all those disputed issues that were disposed of, peculiarly within the equitable powers of that court, and certify that decree to the county court for its observance and ultimate disposition; such court having the first jurisdiction of all matters connected with that estate. We see no

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In an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) by a widow, as administratrix, for the benefit of heirs and minor children a judgment which awarded damages in favor of the widow and a minor son, but denied all recovery to a minor daughter who had married shortly after the death of her father, is error necessitating reversal of the entire judgment and a remand, for rule 62a is not applicable, the issue of negligence being a single one applicable to all of the beneficiary plaintiffs jointly, and not singly. 3. DEATH 42 ALL BENEFICIARIES MUST JOIN IN ACTION UNDER FEDERAL EMPLOYERS' LIABILITY ACT.

LEVY, J. The appellant brought the suit for damages in her behalf as the wife and for the minor children of W. Frank Davis, deceased, under the federal Employers' Liabil ity Act (U. S. Comp. St. §§ 8657-8665). W. Frank Davis was a locomotive fireman on the appellees' interstate train, and was killed in the derailment and wreck of the locomotive. The trial resulted in a verdict of the jury as follows:

"We, the jury, find for the plaintiff and assess the damages as follows: For Mrs. Gertrude Davis, $5,500; for Elmer Davis, $2,500; for Mrs. Catherine Hamilton, blank dollars-making a total of $8,000.

"Richard Fowler, Foreman."

The court submitted the case to the jury in a charge authorizing a recovery in the event of a finding, of negligence on the part of the defendants in having a low joint in the track or in having defective ties that caused the track to spread. The evidence showed that the deceased was 43 years old and had a life expectancy of 26 years. At the time of his death he was a locomotive fireman and extra engineer, earning from $175 to $220 a month. Mrs. Davis was the wife and Elmer Davis a minor son of 11 years of age, and Catherine Davis was a daughter 14 years old. Catherine Davis married Mr. Hamilton about 4 months after the death of her father. The uncontroverted proof showed that the two children were living with their parents and were wholly dependent upon the deceased for support at the time of his death, and that the deceased looked after them and took much interest in the welfare

and training of his children.

[1-3] The first assignment of error is that the court should have granted a new trial, because the verdict of the jury finding that the daughter, Catherine, was not entitled to recover any damages was contrary to and unThe daughter supported by the evidence.

some

was entitled, we think, to recover amount up to the date of her marriage. The

In a death action under the federal Employ-assignment of error therefore should, we coners' Liability Act (U. S. Comp. St. §§ 8657S665), all beneficiaries must be joined in a single suft, and thus the question of negligence vel non must be determined as to all.

clude, be sustained. And it is further determined that this error necessitates a reversal of the entire judgment and remanding the cause for another trial; for we think rule 62a (149 S. W. x) is not applicable in this

Appeal from District Court, Harrison case. The issue of amount of damages to County; P. O. Beard, Judge.

Action by Mrs. Gertude Davis, as administratrix, against Pearl Wight, receiver, and others. From a judgment denying part of the relief sought, plaintiff appeals. Reversed

and remanded.

the minor daughter is not the only controThere is the issue of negligence inversy. volved, which is not a severable controversy in the case. All the beneficiaries are required by law to be joined in one suit, and the issue of negligence vel non in the suit is a single one applicable for recovery to all the

Jones, Sexton, Casey & Jones, of Marshall, beneficiary plaintiff's jointly, and not singly. for appellant.

Prendergast & Prendergast and Hall, Brown & Hall, all of Marshall, for appellees.

Therefore only one judgment can be entered in the case. Railway Co. v. Crowder, 157 S. W. 281.

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

(218 S.W.)

SMITH V. ROBERTS. (No. 1568.)

(Court of Civil Appeals of Texas. Jan. 14, 1920.)

1. EVIDENCE

Amarillo.

8. ESTOPPEL 112-FACTS TO BE PLEADED WITH CERTAINTY.

The particular facts relied upon as consti tuting estoppel should be pleaded with reasonable certainty.

134-SIMILAR ACTS ADMISSI-9. LANDLORD AND TENANT 139(4)-LAND

BLE TO SHOW INTENT.

When the intention with which an act is done is in issue, evidence of other acts of the party is admissible, but such acts must be of a similar nature and so connected with the transaction under consideration in point of time that they may be regarded as part of the system.

2. APPEAL AND ERROR 1050 (2)—ADMISSION OF EVIDENCE OF UNRELATED ACT OF DEFENDANT PREJUDICIAL ERROR.

In action against landlord for wrongful entry and destruction of crops, admission of evidence of landlord's refusal to release plaintiff's mortgage on plaintiff's payment of mortgage debt, where the release of the mortgage was not in issue, was prejudicial error. 3. LANDLORD AND TENANT

CREATED BY CONTRACT.

17-RELATION

The relation of landlord and tenant ordinarily grows out of the contract between the parties, but the landlord or tenant may by their acts or declarations or conduct be estopped from denying the relationship in cases where there is no contract.

4. LANDLORD AND TENANT 80(1)-LESSOR

NOT ESTOPPED FROM DENYING RIGHTS OF

SUBLESSEE AS TO LAND NOT COVERED BY

ORIGINAL LEASE.

LORD NOT NEGLIGENT IN FAILING TO KNOW
THAT TENANT CULTIVATED OTHER LAND THAN
THAT RENTED.

Landiord plowing up and destroying crop on
lands claimed by tenant will not be constructive-
ly charged with negligence in failing to know
that his tenant has violated the rental contract
by taking charge of land he never rented.
10. LANDLORD AND TENANT 17-EVIDENCE
INSUFFICIENT ΤΟ SHOW RATIFICATION BY
LANDLORD OF SUBLEASE AS TO LAND NOT
LEASED TO ORIGINAL TENANT.

Lessor, by consenting to assignment of lease or subleasing of land by lessee who was in possession and cultivating lessor's land other than that covered by lease, did not ratify the subleasing of land in lessor's possession so as to tenant with sublessee as to such land, without be estopped to deny relationship of landlord and actual knowledge that lessee was in possession of and was cultivating land not covered by lease.

11. LANDLord and TENANT 139(5)—MEAS

URE OF DAMAGES FOR WRONGFUL DESTRUC-
TION OF CROP STATED.

In action in tort against landlord for wrongful entry and for wrongful destruction of growing crop, the proper measure of damages is the value of the crop just as it stood upon the ground at the time and place of its destruction. 12. LANDLORD AND TENANT 139(5) -EVI

DENCE OF MARKET VALUE OF COTTON CROP
DESTROYED INADMISSIBLE IN ABSENCE OF
EVIDENCE AS TO EXPENSE OF GROWING AND
PLACING ON MARKET.

Lessor, by consenting to the assignment of lease or subleasing of land by lessee cultivating land of lessor other than that covered by lease without lessor's knowledge, was not estopped from denying the relationship of landlord and tenant with assignee or sublessee as to such Iland not covered by lease, regardless of wheth- In action for wrongful destruction of cotton er he used reasonable diligence to ascertain crop, evidence as to market value of cotton durwhether the land being cultivated was that cov-ing the subsequent fall was inadmissible, in abered by lease; he being estopped only if he actually knew lessee was in possession and cultivating land not rented.

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sence of evidence as to the expense of maturing, preparing, and placing the crop on the market.

Appeal from District Court, Terry County; W. R. Spencer, Judge.

Action by J. A. Roberts against J. R. Smith, Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Roscoe Wilson, of Lubbock, and J. S. Kendall, of Brownfield, for appellant.

G. E. Lockhart, of Tahoka, for appellee.

HUFF, C. J. Roberts sued Smith, alleging that Smith resided in Knox county, and rented to one J. H. Bailey 160 acres on some part

7. ESTOPPEL 52-ELEMENTS OF ESTOPPEL of section 100, situated in Terry county, for

BY CONDUCT STATED.

To constitute an estoppel by conduct there must be a false representation to or a concealment of material facts from a party ignorant of the matter with the intention that such party should act thereon, and such party must be induced thereby to act.

which Bailey was to deliver one-third of all grain and one-fourth of all cotton raised on said land during the year 1917; that Bailey sold the lease or contract, with the work and crop started thereon, to Roberts, after having first secured the consent of Smith, the

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

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