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(218 S.W.) order to create an interest and sinking fund, is, not what the commissioners' court might for the payment of those warrants Camp have done in the exercise of its taxing power, county had levied a tax of 15 cents on the but what did it do with reference to this $100 for the years 1913 to 1921, inclusive, particular debt? According to the averments and had set aside the funds arising from that of the appellant, it did nothing. It is true tax for the purpose of paying those warrants. the petition states that ample funds were It is then alleged that thereby sufficient mon- on hand for the payment of these warrants ey was provided to create the interest and when they fell due; but that does not supply sinking fund required by law for all war the vital omission. It is not enough to prorants theretofore issued, including those sued vide funds for the payment of the debt after upon; that the fund thus provided for had it has been created; the Constitution rebeen accumulated and was on hand at the quires this to be done at or before the time respective dates on which appellant's war- the debt is contracted. A compliance with rants matured. It is thus shown that pro- that requirement is essential to enable the vision was made by the county for levying county authorities to contract a valid obliand collecting a tax sufficient to satisfy at gation to be paid out of the future revenues their maturity the warrants that had been of the county. If the debt evidenced by the issued for the purpose of raising the $20,000 warrants sued on was, for the reasons stated, road fund. But the logical inference from invalid at its inception, nothing the comthe petition is that the warrants here sued missioners' court could thereafter do would on belonged to a different group of obliga- validate it. The county is not bound to pay tions and were issued for a different purpose a debt wbich was illegally created. The and probably at a different time. It is not following authorities support the conclusions alleged that any special provisions were reached: Rogers National Bank v. Marion made for levying and collecting a tax for County, 181 S. W. 884; Mitchell County v. their payment. The averment that in pro- Bank, 91 Tex. 370, 43 S. W. 880; Bassett v. viding for the payment of the $26,000 debt City of El Paso, 88 Tex. 168, 30 S. W. 893; sufficient funds were accumulated to satisfy | City of Terrell v. Dessaint, 71 Tex. 770, 9 S. these warrants, and that sufficient money W. 593; McNeal v. City of Waco, 89 Tex. 83, was on hand at their respective dates of 33 S. W. 322. maturity, does not meet the constitutional

The judgment is affirmed. requirement. That statement means no more than saying that in making special provisions for the payment of another debt a surplus incidentally arose sufficient to meet this debt.

YEAGER v. HOUSTON & T. C. RY. CO. That surplus might legitimately have been

(No. 6138.) diverted to some other lawful use. We know judicially that the funds raised from such

(Court of Civil Appeals of Texas. Austin. taxes form the road and bridge fund of the

Jan. 21, 1920. Rehearing Denied

Feb. 18, 1920.) county and may be used in defraying the current expenses for improving and maintain- APPEAL AND ERROR 45—COURT OF CIVIL ing the public highways unless appropriate APPEALS WITHOUT JURISDICTION OF APPEAL orders have been made setting apart all or


ALLEGATION OF TORTIOUS ACT. a portion of it for some other purpose. To make provision for the levy and collection of

The Court of Civil Appeals is without apthe necessary taxes, when this has not been pellate jurisdiction of the appeal of plaintiff

from an adverse judgment in his action against done by law, requires some affirmative action a railroad to recover less than $100, one-half on the part of the county authorities with of the fee paid an attorney in a personal injury special reference to the particular debt being case whom plaintiff had assisted, in the abcreated or contemplated. It is not suffi- sence of allegation of unlawful or tortious act cient to provide for raising a fund which by defendant railroad. may or may not be lawfully used for its

Appeal from McLennan County Court; payment; but one must be provided for

James P. Alexander, Judge. which cannot lawfully be diverted to any other purpose by a succeeding commissioners' Suit by James E. Yeager against the Houscourt. This provision of the Constitution ton & Texas Central Railway Company. is intended to operate as a limitation upon From a judgment for defendant, plaintiff apthe power of commissioners' courts to bur. peals. Appeal dismissed. den the counties with debts beyond the re James E. Yeager, of Waco, in pro. per. sources available for their payment, and A. P. McCormick, of Waco, for appellee. must be applied by the courts with that end in view. The fact that it is averred that JENKINS, J. This suit was for the recovCamp county had the power to levy an ad-ery of one-half of the amount of a fee collectditional tax of 15 cents on the $100 does not ed by Ilanson Womack as attorney for one materially alter the situation. The inquiry Gardner. Gardner had a claim for damages

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against appellee, which appellee settled for|1, 1918, defendant listed with him for sale $875. Womack was entitled to and received his farm of 87 acres at an agreed price of from Gardner $87.50 for collecting same. $80 an acre, and agreed to pay as commisWomack had agreed to divide his fee with sion all the excess over $80 which plaintiff appellant for assisting him in the matter. could sell the land for; that he found a purThis he failed to do. Appellant sued appellee chaser ready, willing, and able to buy at for one-half of said $87.50, on the theory $85, and that defendant refused to sell. Dethat it should not have paid same to Wom- fendant answered by general demurrer and ack, but should have paid it to appellant. general denial.

In addition to seeking to recover one-half [1] At the close of the testimony the court of $87.50, he alleged that, in settling with prepared and submitted to the parties a genWomack, appellee conspired with him to beat eral charge. After the appellant had filed appellant out of his fee, to appellant's dam- his objections to it, which were overruled, age in the sum of $100. No unlawful or tor- and requested certain special charges which tious act on the part of appellee is alleged. were refused, he requested that the case be Such being the case, this was a suit for an submitted upon special issues under article amount less than $100, for which reason this 1981a, Vernon's Sayles' Statutes, and that court is without appellate jurisdiction. Gib- request was refused by the court. The proson v. Hotel, 198 S. W. 413.

visions of the statute make it mandatory For the reason stated, the appeal herein upon the court to do so, and it was reversible is dismissed.

error to refuse to comply with it. Klyce v. Dismissed.

Gundlach, 193 S. W. 1092.

[2] It is further urged that it was error

for the court to refuse to submit appellant's JACKSON v. MARTIN. (No. 1058.)

affirmative defense that time was of the es

sence of the contract, in that plaintiff only (Court of Civil Appeals of Texas. El Paso. had a limited time in which to make the sale Jan. 29, 1929. On Rehearing, March at the price fixed. In view of another trial, 11, 1920.)

all affirmative matters of defense should be 1. TRIAL Cm 349(1) STATUTE MANDATORY

submitted to the jury, where, as in this case,

the evidence is conflicting. THAT CASE BE SUBMITTED ON SPECIAL ISSUE. In a jury trial it was reversible error to

There are other matters assigned as errefuse to submit the case on special issues, on ror; but, if error, they are not likely to rerequest therefor before the general charge had

cur upon another trial. been submitted, and after objections thereto

For the reasons assigned, the cause is rehad been overruled, in view of Vernon's Sayles' versed and remanded. Ann. Civ. St. 1914, art. 1984a; such statute being mandatory.


Appellee in motion for rehearing calls our

CONFLICTING EVI- attention to the fact that we are in conflict DENCE.

with the holding by the Fifth district in the Affirmative matters of defense should be

case of Mercer Dry Goods Co. v. Fikes, 191 submitted to the jury, where the evidence is conflicting.

S. W. 1178. The opinion cited appears to be

in conflict with the case of Shaw v. Garrison, Appeal from Ellis County Court; F. L. 174 S. W. 942, by the same court, and the Wilson, Judge.

latter, we think, is in accord with the cases Action by W. A. Martin against J. H. from the Supreme Court (G., H. & S. A. Ry. Jackson. Judgment for plaintiff, and de-Co. v. Cody, 92 Tex. 632, 51 S. W. 329), and fendant appeals. Reversed and remanded.

we think the holding by the Supreme Court

that the cause shall be submitted upon speMark Smith and Y. D. Kemble, both of cial issues, if the request is made before it is Waxahachie, for appellant.

submitted upon a general charge, though the J. T. Spencer and Tom J. Ball, both of opinion was written prior to the last amendWaxahachie, for appellee.

ment of the statute, applies to the facts of

this case. G., H. & S. A. Ry. Co. v. Jackson, HARPER, O. J. This is an appeal from a 92 Tex. 638, 50 S. W. 1012, 51 S. W. 330, is an judgment for $435 in favor of W. A. Martin opinion by the Supreme Court of Texas to the and against J. H. Jackson. For cause of same effect. action plaintiff alleged that about January

Motion is overruled.
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(218 S.W.)

Suit in trespass to try title by J. B. Stone STOND V. ROBINSON et al. (No. 1586.) against Jim Robinson, Jr., and others. Judg

ment for defendants, and plaintiff appeals. (Court of Civil Appeals of Texas. Amarillo. Affirmed. Jan. 7, 1920. Rehearing Denied Feb. 4, 1920.)

Bean & Klett, of Lubbock, for appellant.


HALL, J. Appellant, J. B. Stone, plaintiff RELIED ON BY PURCHASER.

below, filed suit June 21, 1918, in form of In a suit on vendor's lien notes, the pur trespass to try title, being cause No. 1188, in chaser of land can interpose as a defense the the district court of Lubbock county, against illegality of the contract, by which the equita- appellees, Jim Robinson, Jr., and James Scott ble title was conveyed to him and the lien retained, to defeat recovery on the lien notes.

and wife, for the recovery of 40 acres of land

adjoining the town of Lubbock. The court 2. ELECTION OF REMEDIES Own 12-AFTER RE

directed a verdict for the defendants, and

judgment was entered accordingly. PlainPLAINTIFF MAY AGAIN ELECT.

tiff's petition is in the usual form of tresWhere plaintiff has two inconsistent reme

pass to try title. Appellees answered jointly, dies under a contract and elects to pursue one of them, but defendant repudiates his lia- by general demurrer, plea of not guilty; that bility by pleading the statute of limitation or plaintiff had previously elected his remedy; by similar plea, plaintiff may again elect and res judicata; and the statutes of limitations resort to his other remedy.

of three, four, and five years. The substance 3. VENDOR AND PURCHASER 301-VENDOR tiff Stone filed his suit No. 834 on the docket

of the answer is that on April 25, 1914, plainUNDER EXECUTORY CONTRACT MAY SUE EI

of the district court of Lubbock county, The vendor in an executory contract for against the appellees and other defendants, the sale of land can, on purchaser's default, alleging that the plaintiff in said cause No. either sue for the land or for the purchase 834 had pleaded that on September 9, 1909, money, and the better practice is to unite his the defendant therein, Jim Robinson, Jr., excauses of action, pleading and praying in the ecuted and delivered to the plaintiff two alternative.

vendors' lien notes of even date therewith, 4. ADVERSE POSSESSION Ow72_THREE YEARS' for the sum of $3,500 each, payable to the STATUTE DOES NOT APPLY TO SUIT ON VEN

order of plaintiff in one and two years after DOB'S LIEN NOTES.

date, respectively, with 8 per cent. interest The three years' statute of limitations bar- and 10 per cent. attorney's fees; that ring suits against one who had title from said notes were given in part payment for sovereign does not bar an action against pur. the 40 acres of land in controversy; that chaser under an executory contract of sale by the vendor's lien was expressly reserved in the holder of the vendor's lien.

the deed conveying said land from the plain5. ADVERSE POSSESSION ww63(7)–FIVE YEARS' tiff and wife to the defendant Jim Robinson,

STATUTE NOT APPLICABLE TO SUIT ON VEN- Jr.; that at the time of the execution of the DOR'S LIEN NOTES UNTIL ADVERSE CLAIM deed plaintiff gave one W. S. Posey a power MADE.

of attorney to execute the release of the lien The five years' statute of limitations bar-on lots to be sold, upon payment of $30 per ring suits to recover land does not begin to lot (with the exception of plaintiff's residence run against a suit on the vendor's lien until | lots over which the controversy arose); that the purchaser asserts a claim to the land after said conveyance the land was plotted hostile to the lien.

into what is known as Robinson's addition; 6. LIMITATION OF ACTIONS Eww105 (2)—VEN- | that the transaction of September 9, 1909,

AND 'PURCHASER Om 299(1)-STATUTE was a lottery scheme and could not be afLIMITING RECOVERY ON LIEN NOTES IS NOT firmed by the parties or enforced in the SUSPENDED BY SUIT TO RECOVER LAND. courts; that such defense was clearly made

The running of Vernon's Sayles' Ann. Civ. by them upon the trial of cause No. 834, and St. 1914, art. 5694, barring right to recover sustained, the plaintiff being denied the right real estate by virtue of a superior title re

to enforce his contract and a foreclosure of tained in a conveyance after four years from the vendor's lien; that in said cause No. the maturity of the note, against vendor's suit to recover the land, is not suspended by a suit 834 plaintiff had elected his remedy, and the by the vendor to recover the amount of the

cause of action herein was res judicata. The notes, and precludes recovery of the land by answer further set up the statutes of limitasuit brought more than four years after matų. tions of three, four, and five years. rity of the notes, though recovery on the notes By way of supplemental petition, plaintiff was denied because of illegality of the con- denied the allegations contained in the antract.

swer and specially alleged that it was true

that he had in said cause No. 834 attempted Appeal from District Court, Lubbock Coun- to obtain the foreclosure of the vendor's lien, ty; W. R. Spencer, Judge.

but was denied an affirmance of the contract


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of September 9, 1909, and prevented from inson, Jr., dated September 9, 1909, conveying pursuing said remedy and obtaining judg- the 40 acres in controversy and retaining the ment prayed for in that suit; that the trans- vendor's lien to secure payment of the two action of September 9, 1909, set up by the purchase-money notes of $3,500 each; (2) a defendants, was an executory contract, made plot of the Robinson addition to the town of by the parties thereto in furtherance of a Lubbock, showing the subdivision into lots lottery scheme; that the appellees are claim and blocks of the 40 acres in controversy; ing under and by virtue of said contract, (3) power of attorney from J. B. Stone to W. which is contrary to public policy and good S. Posey, dated September 9, 1909; (4) deed morals and should not be enforced in favor from Jim Robinson, Jr., to Lizzie Sanders, of appellees; that whatever claim the de- conveying the property on which the James fendants herein have to said land accrued Scott residence is located; (5) deed from subject to the transactions stated and in Lizzie Sanders and husband to James Scott, subordination to the superior right and title conveying the property on which the Scott of plaintiff; that on or about January 2, 1915, residence is located. the appellees admitted in writing that the The appellant attacks the action of the plaintiff's debt was just, due, and unpaid, court in directing a verdict upon a number of and then and there induced the plaintiff to grounds, which, under the view we have of believe their claims were subordinate to the case, it will not be necessary for us to plaintiff's right and title; that up to the consider. He insists that, his action being time of the filing of defendants' answer on in the form of trespass to try title, it was December 30, 1918, in said cause 834, the only necessary for him to show title in himdefendants repeatedly recognized the supe- self from the sovereignty of the soil. If the rior right and title of the plaintiff; that not trial had ended with the introduction of until then did the defendants give notice of mesne conveyances, showing title in him their adverse possession or assert title hostile from the state, this contention would be to plaintiff; that plaintiff relied on the con- correct. His former suit was an effort to duct of the defendants, and, if he had known collect the amount of the notes and to forethat they were repudiating his superior right close his vendor's lien. Stone v. Robinson, and title, suit would have been filed before 203 S. W. 1132. Having been defeated in this his cause of action was barred; that it would effort by appellees' plea and proof, showing be unjust for defendants to acquire said land an illegal contract, this action was filed to which is of the value of $8,500 without pay recover the land, upon the theory that the ing therefor; that the statutes of limitations contract of September 9, 1909, was an exwere suspended by the conduct of defend-ecutory contract, under which the superior ants, and they are estopped to plead title by title remained in him. limitations.

[1] While it is true that under that conIn cause No. 834 plaintiff recovered judg-tract appellant retained the superior title, ment for the amount of his notes foreclosing this fact does not preclude appellee from the vendor's lien upon all of the land except interposing in this suit as a defense the ilthat portion upon which James Scott's resi- legality of the contract which conveyed to dence was located. That judgment was re- him the equitable title. While we think the versed by this court, in which it was held proof of illegality in the contract of Septemthat the trial court erred in said cause No. ber 9, 1909, is a defense to appellant's suit, 834, in its construction of the power of attor- we do not find it necessary to base the disney. Upon another trial appellees herein position of this appeal upon that issue. In amended their original answer, November 30, Hall v. Edwards, 194 S. W. 674, this court 1914, alleging for the first time that the considered the question of the right of a transaction of September 9, 1909, was a lot. vendee to set up the illegality of a contract, tery and not enforceable, and that said pow- and held that such a defense was available er of attorney provided for the release of against the vendor's effort to recover the lots on the payment of $30 each, and was land. While the Supreme Court has granted made in furtherance of the lottery scheme. a writ of error, we are not prepared to reUpon a second trial, the court rendered judg- cede from our holding in that case. ment July 3, 1917, refusing to enforce the [2] We do not agree with appellees' conexecutory contract of September 9, 1909, and tention that in the former suit, in which apdenying the plaintiff a foreclosure of the pellant sought to recover upon the notes, he vendor's lien or a recovery on said notes. elected his remedy and is bound by such elecFrom this judgment a second appeal wastion and cannot therefore maintain this suit. prosecuted and the judgment affirmed in this Where a plaintiff has two inconsistent remecourt. Thereafter this suit was instituted to dies under a contract and elects to pursue recover the land. Upon the trial it was ad- one of them, in which suit the defendant mitted that plaintiff Stone acquired title repudiates his liability, by pleading the statfrom and under the sovereignty of the soil ute of limitation or other like plea, the to the 40 acres of land in controversy. The plaintiff may again exercise his right of defendants introduced in evidence: (1) A election and resort to his other remedy. deed from J. B. Stone and wife to Jim Rob-i [3,4] The doctrine is well established in

(218 S.W.) this state that the vendor in an executory the land in the alternative in the first action contract of sale has, upon default of the filed by him, but having exercised his option vendee, the right to sue for either the land to pursue his remedies by separate actions, or the purchase money, and, as suggested in and having sued to recover the land more several opinions by the Supreme Court, the than four years after the last note matured, better practice is to unite his causes of ac- his last action is barred by the above-named tion, pleading and praying in the alternative. statute. The running of the statute was not In this litigation appellant elected to pursue suspended by the first suit. City of Dallas his remedies by separate actions, and appellee v. Kruegel, 95 Tex. 43, 64 S. W. 922; Browninsists that his right to resort to the remedy ing v. Pumphrey, 81 Tex. 163, 16 S. W. 870; here and now pursued is barred by the stat- Windom v. Howard, 26 S. W. 175; Bowen v. utes of three, four, and five years. It has Kirkland, 17 Tex. Civ. App. 346, 14 S. W. been held by the Supreme Court, in Burnham 189; Duke v. Reed, 64 Tex. 705. v. Hardy Oil Co., 108 Tex, 555, 195 S. W. For the reasons stated, the judgment is 1142, that the three years' statute of limita- affirmed. tion does not apply to cases of this character. This point was discussed by Boyce, Justice, referring to the Burnham Case, in St. Louis L'nion Trust Co. v. Harbaugh, 205 S, W. 497. We deem further discussion of the applica- GULF, C. & S. F. RY. CO. v. BAKER et al. tion of the statute unnecessary in this con

(No. 6117.) nection. [5, 6] There was no assertion of adverse

(Court of Civil Appeals of Texas. Austin. ownership on the part of appellee in this case

Dec. 17, 1919. Rehearing Denied

Jan. 28, 1920.) prior to the time he filed his answer, November 30, 1914, setting up the illegality of the

1. LIMITATION OF ACTIONS O121(2)—AMENDcontract in the former suit. While there are

ED PETITION ALLEGING SALE OF JOINT PLAINsome allegations in appellee's answer upon TIFF'S INTEREST TO OTHER PLAINTIFF DOES which the case was tried, the first time, de NOT SET UP NEW CAUSE OF ACTION. nying that appellant had any lien upon the In action by two joint lessees, amended peproperty in question (Stone v. Robinson, 180 tition naming only one of the lessees as plainS. W. 135), these allegations are merely con- tiff, and alleging that such plaintiff had purclusions of the pleader, drawn from the chased the interest of the other lessee in the facts alleged, showing appellant's duty to lease, was not barred by limitations, though release the lien under the contract.

filed after period of limitations had expired; As

the amended petition not stating a new cause stated, the first hostile assertion of title is

of action. found in appellee's answer, filed in the trial court after the case was reversed the first 2. LIMITATION OF ACTIONS C127(8)-AMENDtime, in which the illegality of the contract



PLAINTIFF'S For this reason the five years'

FENCES HELD NOT TO STATE NEW CAUSE OF statute cannot apply. We think, however, Vernon's Sayles' Civil Statutes, art. 5694, is clearly applicable to the facts shown in the tle and damage to pasturage because of openings

In action against railroad for loss of catrecord, and that under the provisions of that made in plaintiff's fences during construction of article appellant's right to recover herein is road, where original petition charged that debarred. R. B. Godley Lbr. Co. v. C. C. fendant, its agents, and employés broke fences Slaughter, 202 S. W. 801; Adams v. Harris, in not less than eight different places, and that 190 S. W. 245. The provisions of the article "people grading the road for defendant" tore applicable here are that the right to recover down fences and left them down, without specany real estate, by virtue of a superior title ifying parts of fences where openings were retained in any deed of conveyance, shall be made, amended petition, alleging openings to barred after the expiration of four years have been made by servants of independent confrom the maturity of the note or notes evi- tractor on the right of way, held not to state dencing such indebtedness, and that, if suit new cause of action so as to be barred by lim

itations; the amended petition merely making is not brought for the recovery of such real more specific the allegations of original petiestate within four years from the date of tion. the maturity of such indebtedness, by the vendor, the purchase money thereof shall be 3. TRIAL Cw357-ANSWER TO SPECIAL ISSUE conclusively presumed to have been paid. It was shown that the notes evidencing the in

In action against railroad for loss of cattle debtedness arising under the contract of through openings left in plaintiff's fence, where September 9, 1909, matured September 9, special issue submitted question of whether 1910, and 1911, respectively. This suit was

the 17 head of cattle alleged in plaintiff's petifiled June 21, 1918. As stated above, under ment that jury answer yes or no, answer of

tion escaped through opening, with the requirethe weil-recognized rule of practice in this Yes; at least 10 head,” held sufficiently restate, appellant might have sued to recover sponsive.

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