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landlord, and appellee, Roberts, thereafter to prejudice the jury. We believe the assignwent into possession and finished planting ment should be sustained. the crop; that on August 9, 1917, appellant, The fourth assignment will be overruled. Smith, unlawfully and without consent of We think a sufficient predicate was estabappellee entered said premises and took pos- lished to authorize the reproduction of the session thereof, ejecting appellee therefrom, letter introduced by the official stenographer and proceeded to plough up and destroy ap- from his notes taken at a former trial. pellee's crop, and replant it to his own use; The fifth assignment asserts error in a rethat the crop would have been worth at the quested charge and issues given by the court time of gathering $1,500, after deducting at the request of the appellee. It will be the necessary expenses in gathering and perceived from the statement of the pleadings marketing, etc.; that, if he was mistaken as appellee recovered upon an alleged unlawful to its actual value, it was reasonably worth entry and destruction of the growing crop on $375 to prepare the ground for cultivation and a leasehold. The 160 acres alleged to have to plant it, giving the items of work neces- been rented by Bailey is not described, nor sary and seed for planting; also seeking is the quarter described upon which the crop punitory damages. The appellant answered was growing further than 160 acres “on some by general denial and specially that in dis- part of said section 100.” The uncontroverted regard of the rental contract, Bailey and evidence is that appellant rented to Bailey Roberts ploughed and planted land not rented 160 acres out of the northwest quarter of to them and without appellant's knowledge the section and that the crop growing was or consent, and alleged other matters not on the northeast quarter of the section. Apnecessary to set out. Upon special findings pellee Roberts testifies that Bailey told him by a jury, judgment was entered for $875. that he had rented the northwest quarter of

The first assignment of error complains of the section and at that time he did not know the action of the court in overruling appel- whether appellant knew the crop was on the lant's motion for a continuance. We find northeast quarter and until he sent a plat of no such error on the part of the court as will the land. It appears that Smith wrote a require a reversal of the case, and, as the letter in reference to a request by Roberts matter will not likely occur upon another to give his (Smith's) consent to Roberts to trial, we will not further discuss the question. buy Bailey out. After this, Roberts wrote,

[1, 2] The third assignment complains of wanting the land fenced, or something of the admission of evidence to the effect that that kind, and in response to this appellant appellant recorded a chattel mortgage, which requested a plat of the land. Upon receipt appellee had executed in Knox county, before of this, he says for the first time he learned removing to Terry county, and which he had that Bailey and Roberts were occupying the paid off, and as a result thereof appellee was northeast quarter of the section. He there. unable to borrow money in Terry county up upon went to Terry county, and after aron certain property covered by the mortgage; riving there negotiations were entered into that appellant refused to release the mort to adjust the matter, appellant claiming he gage because the appellee refused to settle an

would much rather leave the northeast quaramount claimed by appellant as due him as

ter in grass than to have had Bailey plough rent on what is termed the Warren bale of it up, and denies that he ever agreed to per. cotton, grown upon appellant's land in Knox mit appellant to retain the crop, but says county. This evidence was evidently admit- that he permitted him to take 180 acres out ted to show the animus of appellant towards of another tract; appellee, however, contendappellee in trespassing on the land in Terry ing differently. It does not appear to be the county. The two transactions are not re

contention of either, after appellant went to lated. As we understand the rule, when the Terry county, that he ever recognized the intent with which an act is done is an issue, right of , appellee to the land, but stated he resort to other acts of the party to ascertain would take it and plough it up and put in his real purpose may be introduced; but such a feed crop himself, which he did. Appellee acts must be those of a similar nature and claims that he never relinquished his claim, so connected with the transaction under con

and testifies that he told appellant if he sideration in point of time, etc., as that they did as he threatened there would be a law. may all be regarded as part of the system. suit. At the request of appellee, the plaintiff Blum v. Gaines, 57 Tex. 135. If the release below, the trial court submitted the following of the mortgage had been made an issue and

charge and issues : the facts relative thereto been gone into, it

“Gentlemen of the jury, at the request of the might have developed that appellant was en- plaintiff, I give you in charge the following spetirely justified in not releasing the chattel cial charge, and special issue No. 1, to wit: mortgage. Appellant could not have been ex-1, given to you in the court's main charge, you

“In arriving at an answer to special issue No. pected to meet a charge of bad motive in are instructed that if the defendant, J. R. Smith, that case on the trial of this. The effect of rented the northwest quarter of survey 100 to the evidence admitted in this case would be J. H. Bailey, and that said Bailey with or with

(218 S.W.) out the consent of the said J. R. Smith put said ( ceeds is active or constructive fraud on the farm in northeast quarter of said section, the part of the person sought to be estopped. said Bailey being in possession of the land, pre- Burleson v. Burleson, 28 Tex. 383. The apparing the land for cultivation, and the said de pellant states he did not know that Bailey fendant could have ascertained such fact with had entered upon other land than that rented. reasonable diligence, then you are instructed that in law the said defendant would be es

If that is true, he should not be held to have topped from setting up that plaintiff was on the waived the contract which had been made or wrong land. So bearing in mind the foregoing be estopped from asserting that he did not instruction, I submit to you the following spe- rent the land in question. We think there cial issues, to wit:

was nothing calling on him to exercise dili"Special Issue No. 1 (requested by the plain- gence. It would seem he had the right to tiff): Did the defendant, J. R. Smith, use rea. rely on his contract with Bailey. Johnston sonable diligence in ascertaining the fact that J. H. Bailey had not broke up the farm in the

V. Kleinsmith, 33 Tex. Civ. App. 236, 77 S. northwest part of said section and had broke W. 36. “No assignee of a lease or subtenant it out in the northeast part of said section? can be heard to say that he was ignorant of Answer yes or no.

the terms on which the lessee held posses"Special Issue No. 2: Did the defendant, J. sion." Forrest v. Durnell, 86 Tex. 647, 26 S. R. Smith, give the plaintiff his consent to pur. W. 481. In this case Roberts admits he knew chase the lease and crop from J. H. Bailey? when he purchased from Bailey that Smith Answer yes or no."

had not rented that quarter to Bailey. He The jury answered the first issue in the was not, therefore, induced to buy because negative and the second in the affirmative. of a rental contract or any act on the part It is asserted by propositions under this as- of Smith inducing him thereto. It would signment: (1) That estoppel must be pleaded seem to us, knowing that fact, he should and proven; (2) the landlord has the right have notified Smith of the land he was ne to presume the tenant will enter upon the gotiating to buy from Bailey. He evidently land rented and not violate the contract and knew Smith was at a distance and in anis not charged with notice of the breach of other county. To constitute an estoppel by the contract until he has actual knowledge conduct, there must be a false representation thereof; (3) a subtenant is charged with the to, or a concealment of material facts from, knowledge of the terms of the lease, and the a party ignorant of the matter and with the lessor is not required to use reasonable dili- intention he should act thereon, and he must gence to see that the lessee and subtenant have been induced thereby to act. Blum v. are charged with the knowledge of the terms Merchant, 58 Tex. 400. The pleadings in of the lease, and the lessor is not required this case simply set up the relation of landto use reasonable diligence to see that the lord and tenant and the right of possession lessee and subtenant comply with the rental in plaintiff by virtue of rent contract and contract.

not a right by virtue of acts, conduct, or [3, 4] The relation of landlord and tenant representations constituting a contract by ordinarily grows out of the contract between estoppel. The particular acts, etc., relied on the parties. Gulledge v. White, 73 Tex. 498, as constituting estoppel, should be pleaded 11 S. W. 527; Victory v. Stroud, 15 Tex. 373. with reasonable certainty. Insurance Co. v. Under the facts of this case it is manifest ap- Hutchins, 53 Tex, 61, 37 Am. Rep. 750; El pellant never rented the northeast quarter to Paso Railway Co. v. Eichel, 130 S. W. 939; Bailey, but a different quarter. Roberts Murphy v. Lewis, 198 S. W. 1039. knew when he bought Bailey out that he had [9] The sixth and seventh assignments, to not rented from appellant the quarter bought the effect that the answer of the jury to isby appellee. As to that quarter, the relation sue No. 1 is not supported by the evidence, of landlord and tenant did not grow out of we believe should be sustained. There is the contract and could not be established nothing to show negligence on appellant's merely by an assignment or a subletting. part in failing to ascertain Bailey had taken There are cases in which there is no con possession of the wrong quarter and the one tract creating the relation of landlord and he did not rent. The law may charge the tenant, and in which the landlord or tenant owner of land with notice of its occupancy would be estopped by their acts or declara- by a stranger, but not by one who enters as tions or conduct from denying the relation- his tenant; but we know of no rule that ship. Towery v. Henderson, 60 Tex. 291. The will charge him constructively with neglipleadings in this case, however, set up no gence in failing to know that his tenant bad such estoppel. We do not think it true, be violated the rental contract by taking charge cause Bailey was in possession of the land of land he never rented. preparing it for cultivation, and that Smith [10] The eighth and ninth assignments and could have known such fact with reasonable the findings of the jury to issue No. 2, to diligence, that he would be estopped.

the effect that appellant gave his consent to (5-8] The ground on which estoppel pro- I appellee to purchase the lease or crop from

Bailey, it is asserted, are not supported by pellant. Springer V. Riley, 136 S. W. 577 ;
the evidence. The charges on the two is-Brooks v. Davis, 148 S. W. 1107; and Bost
sues were submitted together and are de- v. McCrea, 172 S..W. 561. These cases follow
pendent upon each other. If appellant did the cases by the Supreme Court. Crews v.
not know Bailey was on the land which he Cortez, 102 Tex, 111, 113 S. W. 523, 38 L.
sold appellee and when appellant answered R. A. (N. S.) 713; Rogers v. McGuffey, 96 Tex.
by letter giving his consent to the sale of 565, 74 S. W. 753—where the principles of
the quarter he had rented, if he did not law are fully discussed.
then know the trade was being made for a [11] The cause set up in the instant case
different quarter, he should not be held to is a tort—the wrongful destruction of a grow-
have ratified the trade so made. In order ing crop. The proper measure of damages
to charge appellant with estoppel or ratifi- under such circumstances is the value of the
cation, he must have been apprised of his crop just as it stood upon the ground at the
rights or have known that the quarter ap- time and place of its destruction. Sabine
pellee was trading for from Bailey was not Ry. Co. v. Smith, 73 Tex. 1, 11 S. W. 123; Ry.
the one included in the original rental con- Co. v. Schofield, 72 Tex. 496, 10 S. W. 575;
tract. Burleson V. Burleson, 28 Tex. 415; Ry. Co. v. Carter, 25 S. W. 1023; Ry. Co. v.
Wright v. Bonta, 19 Tex. 385. It is insisted Nicholson, 25 S. W. 54; Ry. Co. v. Wright,
by appellee that there is some evidence that 195 S. W. 605. In the case of Ry. Co. v.
appellant knew Bailey had put in crops on Pape, 73 Tex. 501, 11 S. W. 526, the Supreme
some other portion of the section than that Court, speaking through Judge Gaines, rec-
rented after the contract was made, and al- ognizes the general rule as above stated, but
so that appellant would have rented the land where there is no market value the difficulty
to Roberts if he had paid money rent, for in proving the damages to a growing crop
which reason it is contended the charge and at the time of its destruction is discussed,
the issues were properly submitted and the and the following method was suggested :
evidence sufficient to support the findings.
There is no pleading setting up a rental

"It seems to us that, as a general rule, the contract by estoppel. The fact that appel- of a growing crop is to prove its probable yield

most satisfactory means of arriving at the value lant would have rented for money rent does under proper cultivation, the value of such yield not prove that he ratified a rental contract when matured and ready for sale, and also the on the shares of land which he had not expense of such cultivation, as well as the cost agreed to rent. We think the assignments of its preparation and transportation to marshould be sustained, under the issues as made ket. The difference between the value of the by the pleadings in this case.

probable crop in the market, and the expense of The second assignment is based upon the maturing, preparing, and placing it thereupon, admission of the evidence of appellee, to the will in most cases give the value of the growing effect that cotton in the fall at Tahoka was by any other method.”

crop with as much certainty as can be attained 25 cents per pound, because this was not the proper measure of damages. The tenth assignment is that the findings

This rule is followed in Railway Co. v. of the jury, in answer to issue No. 5, are Wright, supra, Freeman v. Fields, 135 S. W. not supported by the evidence and disregard 1073, and in other cases. the charge of the court, and that it is ap

[12] The testimony, of which complaint is parent they base their findings for actual made under the second assignment, should damages on what appellee paid Bailey for have been excluded in the absence of the the crop. The appellee testified it was his other necessary evidence of probable yield, opinion that the crop was worth $500 at expense in maturing, and the like. This evithe time it was ploughed up. His evidence dence would not support a verdict in the abindicates this opinion is based on what it sence of the other necessary evidence. See would take to break the land, the amount of the Wright Case, supra. There is no evidence seed required, and the price thereof, and oth- pointed out by the briefs, and we have found er items of expense in putting in the land. none, showing the probable yield of the crop, We believe these assignments should be sus- the cost of gathering or marketing it. We tained. However, the tenth is sustained, not do not think the amount paid by appellee to exactly for the reason asserted in the assign- Bailey for the lease, or the value of the work ments and propositions. This is not a suit done up to the date of its destruction, or of for breach of contract of tenancy on shares, the seed planted, would be recoverable and and hence the rule for the recovery of dam- will not support a verdict therefor. Whethages is not exactly the same as for tort. In er this suit be treated as an action for dambreach of such contracts, it is held profits ages for a breach of a rental contract on are in contemplation of the parties as well shares or one in tort, in neither event would as employment for the tenant or cropper, and the evidence support a verdict for actual therefore a tenant may recover such profits damages. It is not deemed necessary by us and the like. Such are cases cited by ap. I at this time to discuss the punitory damages

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(218 S.W.) awarded. What has been said heretofore will | daughter Mrs. Rutherford, and his son, Henrender it unnecessary to discuss such dam- ry E., he conveyed to then 175 of said 375 ages.

acres of land. Pete Fulbright, Sr., died inThe judgment will be reversed and re testate in May, 1881, owning the remainder manded.

of said 375 acres and an interest in the community estate between him and his second wife, consisting, it seems, of personal proper

ty and two tracts of land. November 29, RUTHERFORD et al. V. DEAVER. 1882, the 200 acres of the Laud survey owned (No. 2202.)

by said Pete Fulbright, Sr., when he died,

was set apart to his widow and their daugh(Court of Civil Appeals of Texas. Texarkana. ter, Pete, then a minor, for their use as a Jan. 27, 1920. Rehearing Denied

homestead. Feb, 5, 1920.)

At the same time certain per

sonal property was set apart to them. The 1. DESCENT AND DISTRIBUTION Em95-CON- proceeds of certain other personal property

VEYANCE BY FATHER OF SEPARATE PROPERTY sold by Pete Fulbright, Sr.'s, administrator TO CHILDREN OF FIRST MARRIAGE CONSTI

was used to pay debts of the estate and alTUTES ADVANCEMENT.

lowances made by the probate court to said Where a parent who had married a second widow and her minor daughter. A partition time conveyed to children of the first marriage 175 acres of a parcel of land which he owned of the property remaining (except the 200 as his separate property, held that such con

acres in controversy here) in which Pete Fulveyance will be deemed an advancement, and bright, Sr., owned an interest was had be hence the grantees must account for the ad-tween his heirs, including Mrs. Rutherford vancement in settlement of the parent's es and H, E. Fulbright, in 1889. In that partitate.

tion no account was taken of the fact that 2. DESCENT AND DISTRIBUTION 112-AD- Pete Fulbright, Sr., during his lifetime had

VANCEMENT TO CHILDREN OF FIRST MARRIAGE given 175 acres of the Laud survey to Mrs. HELD OF SUCH VALUE AS TO FULLY SATISFY | Rutherford and H. E. Fulbright. The widow THEIR CLAIMS AS HEIRS.

of Pete Fulbright, Sr.'s, second marriage took Where a father conveyed to children of his possession of the 200 acres of the Laud surfirst marriage 175 acres of a parcel which was vey at the time it was set apart to her and his separate estate, retaining 200 acres therein, her minor daughter in 1882, and thereafter and the jury found that the 175 acres conveyed until her death in July, 1916, used it as her was of the value of the parcel retained which

homestead. Mrs. Rutherford and the chil. was subject to the second wife's life estate, held that, as the two children of the first mar- dren of H. E. Fulbright claimed that the 200 riage were bound to account for the advance

acres was owned as follows: One-third by ment under Vernon's Ann. Civ. St. 1914, art. Mrs. Rutherford, one-third by the children 2467, the child of the second marriage, who took of H. E. Fulbright, deceased, and one-third the land at the death of her mother, was enti- by Mrs. Pete Deaver; and the object of their tled to it free from claims of the other children; suit against Mrs. Deaver was to have it parthe value of the mother's estate being comput- titioned accordingly. Defending the suit, ed at more than one-half of the value of the Mrs. Deaver, claimed that the 175 acres, land.

conveyed to Mrs. Rutherford and H. E. FulAppeal from District Court, Red River bright in 1881 was an advancement to them County; Ben H. Denton, Judge.

by Pete Fulbright, Sr., out of his estate;

that said Mrs. Rutherford and H, E. FulAction by Mrs. M. F. (Birdie) Rutherford bright at once took possession of, and ever and others against Mrs. Pete Deaver. From afterwards used, the 175 acres free of any a judgment for defendant, plaintiffs appeal. charge or claim thereto in favor of any other Affirmed.

persons; that the widow of the second marBy his first wife Pete Fulbright, Sr., had riage owned a life estate of one-third in the two children, a daughter named Birdie, who 200 acres remaining of the Laud survey, and married one Rutherford, and a son named that the same was, besides, charged with Henry E., who died, leaving as his sole heirs the right of said widow to use it as a homea daughter and two sons, who with Mrs. stead while she lived ; that said widow did Rutherford were plaintiffs in the court below so use same; that the value of the 175 acres and are appellants here. By his second wife advanced to said Mrs. Rutherford and H. E. Pete Fulbright, Sr., had one child, a daugh- Fulbright, as compared with the value of the ter, also named Pete, who married one Dea- 200 acres remaining of the 375 acres, charged

She was the defendant in the court be as it was with the life estate and homestead low and is the appellee here. Pete Fulbright, right in the widow of the second marriage, Sr., owned as a part of his separate estate exceeded the value of the interests owned 375 acres of the John Laud survey in Red by Mrs. Rutherford and H. E. Fulbright in River county. By a deed dated February | the estate of their father; that said Mrs. 2, 1880, for love and affection he had for his Rutherford and H. E. Fulbright therefore

ver.

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

were not entitled to any part of said 200 of the community property of the first maracres; and that she, Mrs. Deaver, was en- riage, were “intended to be," quoting, "in titled, as against them, to all of said 200 discharge pro tanto of the child's interest," acres. The appeal is from a judgment in but that such a presumption should not have Mrs. Deaver's favor in accordance with her | been indulged so far as the conveyances were contention.

of other property. Exactly what the court

meant by its ruling is not clear to the writer. T. T. Thompson, of Clarksville, and Wil. It seems that the contention in that case by kinson & Davidson, of Mt. Vernon, for ap- the widow and children of the second marpellants.

riage was that the conveyances by the father E. S. Chambers, of Clarksville, and Mahaf- to children of the first marriage should be fey, Keeney & Dalby, of Texarkana, for ap treated “as advancements, intended and acpellee.

cepted in satisfaction of their interest in

their mother's community estate”; in other WILLSON, C. J. (after stating the facts words, as a satisfaction, in effect, by the as above). [1] That it appeared as a mat- father of a claim the children of the first ter of law that the conveyance to H. E. Ful marriage had against him as the trustee of bright and Mrs. Birdie Rutherford of 175 their interest in their mother's community acres of the John Laud survey, evidenced by half of the land. It may be that the distincthe deed dated October 7, 1881, was a gift tion the Supreme Court made was based on to them by their father Pete Fulbright, Sr., the fact that a conveyance by a father to his is aflirmed by all the parties to the appeal. children of community property not in exThey disagree, however, as to whether the cess of the interest the mother owned when trial court has a right to say it also appear- she died is not a gift at all, but is a convey. ed as a matter of law that the gift was an ance of a thing the children already right. advancement by said Pete Fulbright, Sr., to fully owned, while the conveyance to a child his said children. Appellee insists that the by a father of property belonging to his sepagift was within a well-established rule (18 rate estate is not a conveyance of a thing C. J. 933, & 258, and the numerous authori- the child owned. But whatever may have ties there cited; 1 R. C. L. 668, § 21, and au- been the basis of the conclusion reached by thorities there cited) that in the absence, as the court in that case, if it was that, notwas the case, of pleading and proof to the withstanding the absence of testimony to the contrary "the law presumes,” quoting from contrary, a presumption should not be in. Landrum v. Landrum, 62 Tex. Civ. App. 43, dulged that a substantial gift, by an in130 S. W. 910, citing Lott v. Kaiser, 61 testate parent of property belonging to his Tex. 665, "property conveyed by a deed from separate estate, to one of his children, was a parent to child for an expressed considera- intended as an advancement to that child, tion of natural love and affection, to take we think it was wrong and against the over. effect in presenti, to be a gift by way of ad- whelming weight of the authorities. 1 R. C. vancement."

L. 668; 18 C. J. 912, 933. Therefore we hold Appellants concede the case would be with that the trial court in the instant case did in the rule if it appeared that the land given not err when he treated the conveyance to to H. E. Fulbright and Mrs. Rutherford be- Mrs. Rutherford and H. E. Fulbright as an longed to the community estate between the advancement to them by their father out of donor, Pete Fulbright, Sr., and his first wife. his estate, and refused to submit to the jury They insist the rule was not applicable be an issue as to whether it was such an adcause it appeared, instead, that the land be- vancement or not. longed to the separate estate of said Pete [2] Appellants insist that if the trial court Fulbright, Sr., and cite Sparks v. Spence, did not err when he treated the conveyance 40 Tex. 693, as supporting their contention. of the 175 acres as an advancement to Mrs. The land in controversy in that case belong. Rutherford and H. E. Fulbright for the value ed to the community estate of the first mar- of which they had to account in the partition riage. The suit was hy children of that mar they sought of the 200 acres, he did err when riage against the widow and children of the he determined that the value of the 175 acres second marriage (to whom the father had advanced to them was equal to the value of devised more than one-half of the land), to the interest they were entitled to in the esrecover the one-half interest which their tate of their father, and that they therefore mother owned in the land. It appeared that did not own an interest in the 200 acres, and the father in his lifetime, by deeds purport- were not entitled to have it partitioned being to be gifts, had conveyed a part of the tween themselves and Mrs. Deaver. land to certain of the children of the first cial issues submitted to them the jury found marriage, and to others of them land belong- that the 175-acre tract was worth $2.000 at ing to his separate estate. The Supreme the time Pete Fulbright, Sr., gave it to Mrs. Court held, it seems, that a presumption Rutherford and H. E. Fulbright and at the should have been indulged, until rebutted, time said Pete Fulbright, Sr., died. They that the conveyances, so far as they were further found that the 200-acre tract was

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