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(218 S.W.) the lien upon lands of Nueces River Irriga-s 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. Fryck. plaintiffs' 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 de

clared to be a homestead and that no claim on, and that the land be released upon the thereto was in said court asserted. bey spepayment of the value of the land.

cially denied any waiver of or discharge of the Etta M. Fryckberg, as administratrix and vendor's lien and as to the Nueces River Irrigaindividually, Nueces River Irrigation Com-tion Company, they denied that said Scott expany, and Hollice, Donna, and Eleanor amined or recommended the acceptance of the Fryckberg, minors, answered by demurrers title to said corporation other than as subject and

to the lien outstanding and unsatisfied for the

unpaid purchase money, and they pleaded in “specially excepted to and filed a plea to the this connection that the promoters and organjurisdiction of the court, specially excepted and izers of the Nueces River Irrigation Company, pleaded the four-year statute of limitation to

at the time of the promotion and after the orthe vendor's lien note, specially excepted and ganization and incorporation, well knew and pleaded that this suit was a collateral attack on understood that there was outstanding and unthe proceedings of the probate court, specially satisfied a valid and subsisting lien upon said excepted and pleaded the statute of frauds, that lands and premises for the unpaid purchase this was a suit to hold a married woman per- money thereof and said corporation acquired sonally responsible, who signed as surety for a

the title to said land subject to any rights outpre-existing debt of her husband, and pleaded standing and existing in the owner and holder the five-year statute of limitation as to the five- of said lien, and they further alleged that not acre tract of land in the name of Nueces River only was said lien for the unpaid purchase monIrrigation Company. All of which exceptions ey but that the deed of trust evidencing the were by the court overruled.

lien was, in writing, executed and acknowledged “And, specially answering, these defendants by J. W. Fryckberg, the husband of said Etta charged: That the deed of trust and note given M. Fryckberg, and that no homestead rights on the homestead tract was and is void, and as could exist or have been acquired against said to a lien on various other and sundry proper: lien." ties, that the assets should be marshaled, and that the deed of trust and note was executed as, intended for, and accepted by plaintiffs' dece The judgment was for $10,593, with indent, as a complete discharge and satisfaction of terest from November 27, 1914, until paid the original vendor's lien, and was a full and at the rate of 8 per cent. per annum in favor complete settlement of accounts to that date, of appellees, establishing the lien on the and that said original lien was thereby waived, lands, and in favor of Mildred Seaton on her discharged, released, and annulled in its en: cross-action against Nueces River Irrigation tirety, by taking said independent security, of shares of stock, and Mrs. Fryckberg's signature Company for $8,973.40, with 8 per cent. inas surety; also pleaded estoppel as to the five- terest from January 27, 1919, and for foreacre tract of land in name of Nueces River closure of a lien on a certain tract in conIrrigation Company as against plaintiffs' de- troversy. The appellants have appealed their cedent, who was an attorney and passed upon case, and are here upon separate assignments and recommended the title to said land."

and briefs, but practically the same errors Appellees filed a

are assigned, except in so far as Mildred

Seaton in her brief has raised questions ap“supplemental petition in answer to the amend- plicable to her alone. ed answer of the defendants Etta M. Fryckberg,

[1] The first to third assignments question individually and as administratrix, the Fryckberg minors, and Nueces River Irrigation Com- the jurisdiction of the district court to enterpany, which consisted of a general demurrer, tain this suit to adjudicate the matters theregeneral denial, and a special answer to that in on the alleged ground that the county portion attempting to plead homestead, in which court alone had the exclusive original jurisplaintiffs averred that the indebtedness due was diction to classify and determine the supefor the unpaid purchase money on the lands and riority of claim and enforce liens incident premises described in plaintiffs' petition; that thereto. That proposition is generally true their decedent, G. R. Scott, was the owner and because, being a court of exclusive jurisdicholder by a valid written transfer, duly recorded, of the vendor's lien, and legally entitled to tion in regard to administration of estates, the land and premises to secure the full and it is yet a court of limited jurisdiction. final payment of said indebtedness; that said The district court, too, in some cases, has sum of money was unpaid and unsatisfied, and jurisdiction relating to esta tes of deceased the vendor's lien outstanding and unsatisfied to persons when legal or equitable rights are secure the payment thereof, and that neither said required to be adjudicated and the powers Etta M. Fryckberg nor the minors could or did of the county court are inadequate to adacquire any homestead in the 200 acres of said judicate the same and administer complete land, or in any part of said land, as against

relief. In fact, no court of equity in the said unpaid purchase money.

“They further specially answered that the world, chancery or otherwise, possesses the claim had been allowed, adjudicated, and estab- broad and comprehensive powers to adminlished as a valid, subsisting, and unsatisfied ister equity as the district courts of this claim for the unpaid purchase money on said state under the Constitution and laws. Sub

ance.

ject to the limitations prescribed by our stat-stake cognizance against the administratris, utes it is:

to compel a sale of the land under that judg. “Authorized to hear and determine any cause

ment and bring it before it, preliminary which is, or may be, cognizable by courts, either thereto, these very alleged adverse claimants of law or equity, and to grant any relief which and adverse interests, all proper subjects to could be granted by said courts, or either of be brought into one proceeding in the disthem." Art. 1712, R. S.

trict court, where full and adequate relief

may be had and administered between all of And see the many citations under that ar- them, and upon each of them, and in respect ticle in Vernon's Sayles' Civil Statutes.

[2] The appellees in no wise have denied to each of their claims and cross-claims 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 adminisratris to sell the land to pay it. law in this state to avoid a multiplicity of

[3] It has always been the policy of the They sought her removal because she refused suits, and when possible settle in one suit to obey the court, but the court refused to such issues as could not have been settled in grant that. Appellees exhausted all their remedies in that court before appealing to the 3207; R. S. 1911, arts. 1705, 1706, 1712; Can

the probate court. R. S. 1911, arts. 3206, equity powers of the district court for relief.

non v. McDaniel, 46 Tex. 306; National GuarThe very defenses set up of alleged prior anty Loan & Trust Co. v. Fly, 29 Tex. Civ. liens and adverse interests in the land by App. 533, 69 S. W. 231; Hume v. Perry, 136 other persons, and the attacks made against

S. W. 594; Phillips v. Watkins Land Mort. the approved claims established by the coun- gage Co., 90 Tex. 195, 38 S. W. 270, 470; ty probate court, demonstrate the need of the George v. Ryon, 94 Tex. 317, 60 S. W. 427; broad equity powers of a court of equity. raine v. Ashe (Sup.) 191 S. W. 565; Lauraine

Ralston v. Stainbrook, 187 S. W. 415; LauThe matters adjudicated here could not have been so adjudicated in the probate court for Vaughan, 193 S. W. 712; Slavin v. Greever,

v. Masterson, 193 S. W. 710; Lauraine v. there was no procedure whereby third par- 209 S. W. 483. As said in Lauraine v. Masties might be interpleaded, and made to set up claims to be passed upon. It may be

terson, 193 S. W. 711: that appellants could have gone in the coun "The nature of the case, as disclosed by the ty court voluntarily, having an interest in foregoing statement, was such that the powers the subject matter, and had all the issues of a probate court were inadequate to grant the disposed of, but we do not see how appellees defendant in error the full relief to which he could have required their appearance. Their was entitled, and it is well settled that in such action demonstrates on its very face those cases the district court can properly be called

upon to exercise its equity powers and grant issues could be determined between them adequate relief. Cannon v. McDaniel, 46 Tex. only through the broad powers of the dis- 303; George v. Ryon, 94 Tex. 317, 60 S. W. trict court. Perhaps appellees felt there was 427; National Guaranty Loan & Trust Comno appeal from the action of the administra- pany v. Fly, 29 Tex. Civ. App. 533, 69 S. W. trix in refusing to execute the order, be- 231; Stewart v. Webb, 156 S. W. 537.” cause the court granted all applications to compel a sale. An appeal from the order of In the case of Lauraine v. Ashe (Sup.) 191 the court in refusing to remove the admin- S. W. 566, opinion by Chief Justice Phillips, istratris does not seem to have been an ade speaking of the jurisdiction conferred by the quate remedy, as the trial would be de novo Constitution, the court said: on that question alone, and all other issues would still be undecided. For instance, the

“Jurisdiction for the transaction of 'all busi

ness appertaining to deceased persons, alleged refusal upon the part of the admin. is by the Constitution conferred upon the counistratrix, among other reasons, that said ty court in broad and general terms. But the property had not been sold because the es-equity jurisdiction of the district court is contate did not hold title to all of it, and that ferred by the same instrument in terms equally as to other portions of said property there broad. While it is customary to speak of the were other claimants of liens, rights, inter- jurisdiction of the county court over matters ests, or title, of same character, which had relating to estates of deceased persons under not been determined, was to deny appellees administration as 'exclusive,' and the entire very valuable rights. This is no reason for current of our judicial decisions is to carefully an administratrix to disobey the order of the matters, as it ought to be, yet it is plainly rec

protect the jurisdiction of that court over such court. Such questions are ordinarily to be ognized that questions may arise affecting esdetermined by the court for itself having tates in regular course of administration, recharge of such estate. But it states a very quiring, for illustration, the adjustment of good reason why the district court should equities, for the settlement of which the probate

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(218 S.W.) jurisdiction of the county court is inadequate, I 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 po 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.

[4] The allowance of the claim and its esRyon, Administrator, 94 Tex. 317, 60 S. W. 427; Western, etc., Mortgage Co. v. Jackman, tablishment was a judgment of a court of Adm'r, 77 Tex. at page 626, 14 S. W. 305; competent jurisdiction and cannot be colGroesbeck v. Groesbeck, 78 Tex. 669, 14 S. W. laterally attacked. There was no appeal tak792; Pomeroy's Eq. Jur. vol. 3, § 1154, pp. en from it, nor contested by any creditor, the 2283-2294.

To make our ruling plain, appellants, or any one asserting an adverse it is to be understood that only the probate claim in the county court. None of the apcourt has jurisdiction to sell for the payment of pellants here appeared before the probate debts the property of a decedent upon whose court to set up any adverse claims, or to estate administration has been commenced or is

contest its allowance or have their rights pending. Rogers v. Kennard, 54 Tex, 30;

passed upon. Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486;

[5] The lien here asserted by appellant Atchison v. Smith, 25 Tex. 228. Our holding is made with clear reference to the want of Mildred Seaton is inferior to that of appelsuch power in the district court. As applied | lees. She was also the notary who took the to the character of case last discussed, where, acknowledgments to the instrument. The notwithstanding a pending administration, the note of G. R. Scott was for the renewal and jurisdiction of the district court may be avail- extension of a balance due for the purchase ed of for the settlement of questions affecting money, and a vendor's lien preserved and the estate which the powers of the probate continued in effect recited both in the note court are inadequate to determine, this is also the rule. The judgment in such a case is to be and deed of trust to G. R. Scott. Warhmund performed through the probate court, and if a

v. Merritt & Metcalf, 60 Tex, 27; Berry v. sale of property is necessary to its performance Boggess, 62 Tex. 237. it must be made by that court. Cannon v. Mc There was no pleading or proof that would Daniel, supra.

An attempted exercise of this have justified the court to order the sale of power by the district court is not here involved: the remainder of the land before sale of nor, with administration upon the estate of the portion which Mildred Seaton, appellant, Mrs. Allen commenced, is it to be assumed that claims should be last sold to protect her its exercise will be attempted. The present alleged claim. The claim of appellees had case concerns alone a jurisdiction which is entirely distinct from such power, and which, from been allowed as a secured claim on the note aught that here appears, may be properly exer

dated May 19, 1911, shown to have been a cised by the district court."

renewal and extension of the lien for pur

chase money. The basis of which claim was Now the facts in regard to this transaction the transfer of the note dated March 24, 1911,

filed for record May 31, 1911, duly recorded,

while the Mildred Seaton note was dated "About July 1, 1907, C. J. Allen

conveyed to J. W. Fryckberg by warranty deed certain December 30, 1913, secured by a deed of lands out of the Herrera grant, in Nueces trust, dated February 3, 1915. county, Texas, including what was subsequent We have carefully considered all the as. ly known as the Nueces River Irrigation Park, signments touching the jurisdiction of the and as part of the purchase money therefor said court, the plea of limitations as to the venFryckberg executed and delivered to said Allen dor's lien note, the question of personal liahis note of that date in the principal sum of bility of Mrs. Fryckberg, waiver of liens, $15,437.33, numbered 3, and maturing three homestead claim, and all other assignments, years after due, payable to said Allen or order, including additional ones raised by appellant and providing for interest and attorney's fees,

Seaton. and retaining the vendor's lien on said lands

We cannot see the slightest reason and premises to secure the payment thereof, to question the good faith and right of G. R. and in said deed the vendor's lien was also ex Scott to acquire the note he did for himself. pressly retained. Subsequently, on March 24, [6] We think it was proper in the first 1911, for a recited consideration of $12,451.73, place for appellees to have exhausted their said note and said lien were in writing trans- remedy in the county court before appealing ferred and assigned to G. R. Scott by the said to the equitable powers of the district court C. J. Allen. On May 9, 1911, J. W. Fryckberg to try out in that court all those disputed and Etta M. Fryckberg executed and delivered issues that were disposed of, peculiarly withto G. R. Scott their note in the sum of $9,270: in the equitable powers of that court, and which recited that it was secured by a deed of trust on 372 acres of land in Nueces River certify that decree to the county court for its Irrigation Park, with all the water rights and observance and ultimate disposition; such privileges to which said lands were entitled, and court having the first jurisdiction of all matsaid deed of trust fully described said note and ters connected with that estate. We see no

are:

TO

FOR

ACTION

UNDER

WHERE

issue of fact that would require a finding of LEVY, J. The appellant brought the suit the jury that could have brought about a for damages in her behalf as the wife and different result.

for the minor children of W. Frank Davis, deBecause of a peremptory instruction given ceased, under the federal Employers' Liabilby the court, we have very carefully ex-ity Act (U. S. Comp. St. $8 8657-8665). W. amined the record, and find no reversible Frank Davis was a locomotive fireman on the error, and overrule all the assignments, and appellees' interstate train, and was killed in affirm the judgment of the court.

the derailment and wreck of the locomotive. Affirmed.

The trial resulted in a verdict of the jury as follows:

“We, the jury, find for the plaintiff and as

sess the damages as follows: For Mrs. Gertrude DAVIS v. WIGHT et al. (No. 2205.) Davis, $5,500; for Elmer Davis, $2,500; for

Mrs. Catherine Hamilton, blank dollars-making (Court of Civil Appeals of Texas. Texarkana. a total of $8,000. Jan. 28, 1920. Rehearing Denied

“Richard Fowler, Foreman." Feb. 5, 1920.)

The court submitted the case to the jury 1. DEATH 18(3) MINOR DAUGHTER, in a charge authorizing a recovery in the

THOUGH MARRIED, ENTITLED DAMAGES event of a finding, of negligence on the part UNDER FEDERAL EMPLOYERS' LIABILITY ACT of the defendants in having a low joint in FOR FATHER'S DEATH.

the track or in having defective ties that A minor daughter who married a few caused the track to spread. The evidence months after the death of her father, 'a loco- showed that the deceased was 43 years old motive fireman, is, where the railroad is liable and had a life expectancy of 26 years. At under the federal Employers' Liability Act (U. the time of his death he was a locomotive S. Comp. St. 88 8657-8665), entitled to some damages at least up to the time of her marriage, fireman and extra engineer, earning from and the denial of any recovery is error.

$175 to $220 a month. Mrs. Davis was the

wife and Elmer Davis a minor son of 11 years 2. APPEAL AND ERROR Cw1173(1)—JUDGMENT of age, and Catherine Davis was a daughter

FEDERAL EMPLOYERS LIABILITY ACT MUST BE REVERSED

14 years old. Catherine Davis married Mr.

Hamilton about 4 months after the death of ONE BENEFICIARY WAS IMPROPERLY DENIED DAMAGES.

her father. The uncontroverted proof showIn an action under the federal Employers' ed that the two children were living with Liability Act (U. S. Comp. St. 88 8657-8665) by their parents and were wholly dependent a widow, as administratrix, for the benefit of upon the deceased for support at the time of heirs and minor children a judgment which his death, and that the deceased looked after awarded damages in favor of the widow and a

them and took much interest in the welfare minor son, but denied all recovery to a minor and training of his children. daughter who had married shortly after the death of her father, is error necessitating re

[1-3] The first assignment of error is that versal of the entire judgment and a remand, for the court should have granted a new trial, berule 62a is not applicable, the issue of negli- cause the verdict of the jury finding that the gence being a single one applicable to all of daughter, Catherine, was not entitled to rethe beneficiary plaintiffs jointly, and not singly. cover any damages was contrary to and un

The daughter 3. DEATH 12 – ALL 'BENEFICIARIES MUST supported by the evidence. JOIN IN ACTION UNDER FEDERAL EMPLOYERS'

was entitled, we think, to recover LIABILITY ACT.

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. $8657- clude, be sustained. And it is further deter8665), all beneficiaries ust be joined in a single mined that this error necessitates a reversal suft, and thus the question of negligence vel non of the entire judgment and remanding the must be determined as to all,

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. 0. Beard, Judge.

the minor daughter is not the only controAction by Mrs. Gertude Davis, as adminis- versy. There is the issue of negligence intratrix, against Pearl Wight, receiver, and volved, which is not a severable controversy others. From a judgment denying part of in the case. All the beneficiaries are required the relief sought, plaintiff appeals. Reversed by law to be joined in one suit, and the is

sue of negligence vel non in the suit is a and remanded.

single one applicable for recovery to all the Jones, Sexton, Casey & Jones, of Marshall, beneficiary plaintiffs jointly, and not singly. for appellant.

Therefore only one judgment can be entered Prendergast & Prendergast and Hall, in the case. Railway Co. y. Crowder, 157 S. Brown & Hall, all of Marshall, for appellees. W. 281.

some

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

NOT

ESTOPPED

OF

(218 S.W.)

8. ESTOPPEL 112-FACTS TO BE PLEADED SMITH v. ROBERTS. (No. 1568.)

WITH CERTAINTY,

The particular facts relied upon as consti (Court of Civil Appeals of Texas. Amarillo.

tuting estoppel should be pleaded with reasonJan. 14, 1920.)

able certainty. 1. EVIDENCE w134–SIMILAR ACTS ADMISSI- 9. LANDLORD AND TENANT 139(4)-LANDBLE TO SHOW INTENT.

LORD NOT NEGLIGENT IN FAILING TO KNOW When the intention with which an act is THAT TENANT CULTIVATED OTHER LAND THAN done is in issue, evidence of other acts of the THAT RENTED. party is admissible, but such acts must be of a Landlord plowing up and destroying crop on similar nature and so connected with the trans- lands claimed by tenant will not be constructiveaction under consideration in point of time ly charged with negligence in failing to know that they may be regarded as part of the sys- that his tenant has violated the rental contract tem.

by taking charge of land he never rented. 2. APPEAL AND ERROR E1050 (2)—ADMISSION 10. LANDLORD AND TENANT O17—EVIDENCE

OF EVIDENCE OF UNRELATED AOT OF DEFEND INSUFFICIENT TO SHOW RATIFICATION BY ANT PREJUDICIAL ERROR.

LANDLORD OF SUBLEASE AS TO LAND NOT In action against landlord for wrongful en LEASED TO ORIGINAL TENANT. try and destruction of crops, admission of evi Lessor, by consenting to assignment of lease dence of landlord's refusal to release plaintiff's or subleasing of land by lessee who was in mortgage on plaintiff's payment of mortgage possession and cultivating lessor's land other debt, where the release of the mortgage was not than that covered by lease, did not ratify the in issue, was prejudicial error.

subleasing of land in lessor's possession so as to

be estopped to deny relationship of landlord and 3. LANDLORD AND TENANT Omw17-RELATION

tenant with sublessee as to such land, without CREATED BY CONTRACT.

actual knowledge that lessee was in possession The relation of landlord and tenant ordi- of and was cultivating land not covered by narily grows out of the contract between the lease. parties, but the landlord or tenant may by their acts or declarations or conduct be estopped from 11. LANDLORD AND TENANT Cw139(5)–MEASdenying the relationship in cases where there

URE OF DAMAGES FOR WBONGFUL DESTRUCis no contract.

TION OF CROP STATED,

In action in tort against landlord for wrong. 4. LANDLORD' AND TENANT Em 80(1)—LESSOR ful entry and for wrongful destruction of growFROM DENYING RIGHTS

ing crcp, the proper measure of damages is the SUBLESSEE AS TO LAND NOT COVERED BY

value of the crop just as it stood upon the ORIGINAL LEASE.

ground at the time and place of its destruction. Lessor, by consenting to the assignment of lease or subleasing of land by lessee cultivating 12. LANDLORD AND TENANT Cw139(5) -Eviland of lessor other than that covered by lease

DENCE OF MARKET VALUE OF COTTON CROP

DESTROYED INADMISSIBLE IN ABSENCE without lessor's knowledge, was not estopped

OF from denying the relationship of landlord and

EVIDENCE AS TO EXPENSE OF GROWING AND tepant with assignee or sublessee as to such

PLACING ON MARKET. land 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 ac sence of evidence as to the expense of maturing, tually knew lessee was in possession and culti- preparing, and placing the crop on the market. vating land not rented. 5. ESTOPPEL Cw52–MUST BE BASED ON AC

Appeal from District Court, Terry County ; TIVE OR CONSTRUCTIVE FRAUD.

W. R. Spencer, Judge. The ground on which estoppel proceeds is Action by J. A, Roberts against J. R. Smith, active or constructive fraud on the part of the Judgment for plaintiff, and defendant apperson sought to be estopped.

peals. Reversed and remanded. 6. LANDLORD AND TENANT 79(2)-LESSEE'S Roscoe Wilson, of Lubbock, and J. S. Ken

ASSIGNEE AND SUBTENANT REQUIRED To dall, of Brownfield, for appellant.
KNOW TERMS OF LEASE UNDER WHICH LESSEE

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

No assignee of a lease or subtenant can be heard to say that he was ignorant of the terms

HUFF, C. J. Roberts sued Smith, alleging on which the lessee held possession.

that Smith resided in Knox county, and rent

ed to one J. H. Bailey 160 acres on some part 7. ESTOPPEL Qw52—ELEMENTS OF ESTOPPEL of section 100, situated in Terry county, for BY CONDUCT STATED.

which Bailey was to deliver one-third of all To constitute estoppel by conduct there grain and one-fourth of all cotton raised on must be a false representation to or a concealment of material facts from a party ignorant of said land during the year 1917; that Bailey the matter with the intention that such party sold the iease or contract, with the work and should act thereon, and such party must be crop started thereon, to Roberts, after havinduced thereby to act.

ing 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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