Appellees further insist that

"Appellant cannot urge that notice was not given as required in the policy, because the want of notice was not specially pleaded under oath by it, and, unless such want of notice is specially pleaded under oath, it is presumed that notice is given."

[institution of her suit about 17 months afterwards, and it does not appear that any objection whatever was made to this evidence. Under such circumstances, we think the objection that the plea was not verified comes too late. To hold otherwise, as it seems to us, is to enable a litigant to obtain an unfair advantage and to deprive his adversary of a Appellant fully and sufficiently pleaded, substantial right because of a probable inadamong other things, want of notice of the ac- vertence and error purely formal and technicident to Mrs. Shine, as provided in the poli-cal in character in no way related to the real cy, but did not verify the plea, and the stat-merits of the case. It cannot be doubted, we ute already quoted and invoked by appellees think, that had objection been to a want of (article 5714) does provide in its conclusion verification of the defendant's plea, such thatformal defect would have been immediately "In any suit brought under this and the pre-corrected by a proper oath. And many cases ceding article it shall be presumed that notice has been given, unless the want of notice is especially pleaded under oath."

It is not perfectly apparent that this suit was brought under either article of the statute referred to, but several similar cases have been cited and may be found to the effect that such plea, unverified, does not raise the issue. We have not been able to determine the precise circumstances of the several cases, but do note that in the case chiefly relied upon by appellees, viz. North American Accident Ins. Co. v. Miller, 193 S. W. 750, by the Court of Appeals at Amarillo, that court said on this subject:

"We regard the failure to plead under oath, want of notice, and failure to prove that no notice was in fact received raises the presumption that notice had been given as required by the policy."

might be cited where verified pleadings are required by statute and in which a want of verification has been disregarded on the ground of its waiver. See, on the subject, Wilkinson v. Lyon, 207 S. W. 638, and cases therein cited. See, also, cases in illustration cited in note 54, p. 271 and following, of 40 Cyc.

[8] Appellees' further contention that notice of the accident "at the time of service of citation upon the appellees is a full compliance with the provisions requiring notice" cannot, we think, be sustained under the terms of the contract. As already noted, the terms of the contract were specifically and separately stated that notice was to be given not only of the accident, but also of the claim for damages and of the institution of the suit, and we do not feel at liberty to hold that a compliance with one of the conditions is a sufficient compliance with all others. [7] The effect of the conclusion thus given Nor do we think that it can be said under was merely to enable the plaintiff in the suit the circumstances of this case that appelto avoid the necessity of affirmatively show-lant's defense of a want of notice of the acing a compliance on his part with that con- cident is unavailing on the ground that it dition in his policy, it appearing that the does not appear that the company has sufferplea of want of notice was unverified, and ed any loss or injury by reason of the delay. that there was no proof of a want of notice As will be found by an examination of the on the part of the defendant company; in cases that we have already cited, many of other words, neither the statute nor the de- the authorities treat stipulations of the charcision to which we refer makes the presump- acter in question as conditions precedent to tion announced by the statute conclusive. the plaintiff's right of recovery, and article The provision requiring verification is for the 5714, already quoted, seems also to classify benefit of the plaintiff; it having been held conditions of the kind as conditions precedin a line of cases which we need not stop to ent. If so, an inquiry as to whether a failcite that to warrant a recovery the burden ure to comply with the stipulation resulted was upon the plaintiff suing upon the policy in injury is immaterial. But whether such containing conditions precedent to show that stipulations be regarded as conditions prehe had fully complied with all of such con- cedent or as promissory warranties in the naditions. We know of no reason, therefore, ture of conditions precedent, the insurer has why a want of verification may not be waiv- contracted for their fulfillment, and in this ed by plaintiff, and in this case we think case, if it was necessary to inquire whether such want of verification was in fact waived. appellant suffered injury because of the failAs stated, defendant fully pleaded want of ure to receive notice of the accident to Mrs. notice of the accident, and no exception to Shine, we yet would be unable to say from the sufficiency of such plea appears to have the evidence that no injury followed. It was been presented. The defendant offered full shown in the evidence that immediately after evidence of the fact, which is undisputed, appellant received notice of the accident it that it did not receive any character of no-instituted an inquiry. It was found, among tice of the accident to Mrs. Shine until the other things, that the only eyewitness to the

(218 S.W.)

accident in the employ of the company died | for a peremptory instruction in its favor, some six months after the accident and be- and that for such errors the judgment below fore notice of the accident was given to ap- must be reversed, and here rendered for appellant. It does not appear that any other pellant. witness was found with such knowledge and distinct recollection as would have tended to defeat the claim of Mrs. Shine. It would be mere speculation, therefore, to say that nothing beneficial to appellant in providing against a possible liability could have been developed by a reasonably early notice of the accident as stipulated in the policy.

[9] Nor can we adopt appellees' further and final condition that the stipulation as to notice under consideration cannot be given effect for the reason that the record fails to show that knowledge of the accident had been brought home to Winfield Scott during his lifetime, or to the executors of his estate, the appellees herein, until the institution of the suit by Mrs. Shine. It is to be observed that under the terms of the policy Winfield Scott assumed the obligation of giving immediate written notice of any accident out of which liability on the part of the company could grow, and the suit of Mrs. Shine was founded upon allegations that his servants and employés were guilty of negligence which, in the nature of things, must soon have been brought home to the knowledge of some authorized agent. Moreover, it was affirmatively shown that the bookkeeper of Winfield Scott witnessed the accident, that the manager of his gin at Itasca, where the accident occurred, learned of the accident within two weeks thereafter, and that his private secretary was advised of the accident soon after its happening. Winfield Scott lived some 13 months after the accident, and the reasonable inference is that he, in fact, learned of it, but, whether so or not, his authorized servants and employés certainly did and their knowledge must be imputed to him. It is said in 21 R. C. L. 828, § 12, that:

"In the exercise of good faith skill, and diligence, the agent is bound to keep his principal informed of all matters that may come to his knowledge concerning the principal's rights and interests."

JONES et al. v. MacCORQUODALE.
(No. 7793.)

(Court of Civil Appeals of Texas. Galveston.
Dec. 4, 1919. Rehearing Denied
Jan. 8, 1920.)

1. MINES AND MINERALS

6-APPLICATIONS FOR OIL AND MINERAL PERMITS ENTITLED TO BE FILED SIMULTANEOUSLY.

Where at the time notice of forfeiture of an oil and mineral lease under Acts 35th Leg. (1917) c. 83,1 had time to reach the county clerk's office and did reach such office, a number of applicants for permits to prospect were waiting at the filing window, having deposited their applications on the counter, and a number of other applications were received in the same mail as the notice, all were entitled to be filed simultaneously.

2. MINES AND MINERALS 6

FAILURE TO FORMALLY ASK FILING OF APPLICATION FOR MINERAL PERMIT DID NOT ENTITLE ANOTHER APPLICANT TO PRIORITY.

That persons presenting for filing in the county clerk's office applications for oil and mineral permits deposited them on the counter, without formally accosting or requesting the deputy to file them, until after another applicant had made such request, entitled him to no priority, as under Vernon's Sayles' Ann. Civ. St. 1914, art. 6791, an instrument is filed when deposited for that purpose in the county clerk's office.

3. RECORDS 4 INSTRUMENT ENTITLED TO

RECORD BY WHATEVER METHOD IT REACHES
COUNTY CLERK'S OFFICE.

An instrument is entitled to record upon its arrival or deposit in the county clerk's office, whether sent by mail or messenger, or handed to the clerk elsewhere and carried there by him.

4. COUNTIES 82- DEPUTY COUNTY CLERKS

NOT LIMITED IN AUTHORITY BY DIVISION OF
OFFICE INTO DEPARTMENTS.

Under Vernon's Sayles' Ann. Civ. St. 1914, arts. 1748, 1749, giving deputy county clerks

And the same author, on page 838, § 21, the full powers of their chief, the division of

says:

"The principal, according to a settled rule of law, is bound by the knowledge of the agent, or, otherwise stated, notice to the agent constitutes notice to the principal; the rule being derived from the duty of disclosure by the former to the latter of all the material facts coming to his knowledge with reference to the subject of his agency and a presumption that he has discharged that duty."

We conclude that the court not only erred in giving the peremptory instruction he did,

the clerk's office into departments, with a deputy over each in charge of particular business, does not limit the authority of any deputy, or prevent him from performing all such official acts as the clerk might perform.

5. MINES AND MINERALS 6-SEPARATE APPLICATIONS FOR PERMITS TO PROSPECT MAY BE FILED SIMULTANEOUSLY.

Separate applications for oil and mineral permits for state lands may be filed simultaneously.

Appeal from District Court, Harris County; but also erred in refusing appellant's request Wm. Masterson, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
1 Vernon's Ann. Civ. St. Supp. 1918, art. 5904 et seq.

Suit by E. D. MacCorquodale against | deputies, who noted that time upon it. SimulGeorge Jones and others. From a decree for taneously and by the same mail there were alplaintiff, defendants appeal. Reversed and rendered.

R. M. Love, C. C. Crocker, and Atkinson & Atkinson, all of Houston, for appellants. Homer Stephenson and Elbert Roberts, both of Houston, for appellee.

so received in this upstairs room of the clerk's office the applications for oil permits of appellants L. A. Adamson, E. P. Edwards, and R. Bradbury, as well as that of another of the original parties to this suit, who does not seem to be a party on appeal. Thomas M. Maes, acting for himself and as agent for appellee MacCorquodale, was present in this upGRAVES, J. This cause, and companion stairs department of the clerk's office at the ones, Nos. 7794 (Jones v. Maes, 218 S. W. 62) time the land commissioner's cancellation and 7795 (Jones v. MacCorquodale, 218 S. W. notice and the three applications for new per62), in this court, involve a contest as to which mits just mentioned were so received there. side of the opposing litigants first filed with Accordingly, having seen the deputy clerk in the county clerk of Harris county, Tex., appli- charge of that department, Mr. Lane, receive cations to prospect for oil and other minerals and note the time upon the letter of cancellaunder some submerged lands in San Jacinto tion, Mr. Maes went directly down stairs into Bay belonging to the state. The permits were the filing department, but not at the filing sought pursuant to an act passed by the Leg- counter, informed the deputy in charge of islature in 1917, Acts of the 35th Legislature, that department, Mr. Witt, of the receipt upregular session, chapter 83, page 158; thereto- stairs of the cancellation letter, and presented fore permits upon these same lands had been to him the application of appellee MacCorquogranted to other persons, but under section 19 dale for permits, with request that he file it. of the act (Vernon's Ann. Civ. St. Supp. 1918, About one minute later Deputy Lane brought § 5904s) the commissioner of the general land the notice of cancellation down stairs to the office had authority, in specified circumstanc-filing department and turned it over to Depes, to declare outstanding leases forfeited, and (to quote from the act itself what was then further required of him):

"When forfeiture has been declared, a notice of that fact shall be mailed to the proper county clerk and the area shall be subject to the application of another than the forfeiting owner when the notice has had time to reach

the county clerk through due course of mail."

Following advance advice to that effect, on April 20, 1918, the commissioner exercised this authority by canceling the then existing leases on the lands, and on the same day mailed a notice of that action to the county clerk of Harris county at Houston.

Knowing of these proceedings, the parties to the present controversy, in their efforts to get new permits, were thereupon put upon the anxious seat, first, as to just when this notice of cancellation would-under the quoted terms of the law prescribing it-become the basis of authority in the county clerk of Harris county to accept and file new applications for mineral permits; and, second, as to which of them could first get to and invoke of him that official action. Omitting unnecessary details, the undisputed facts here shown were these:

The land commissioner's notice of cancellation had time in due course of mail to reach the county clerk's office at Houston at 7:30 o'clock a. m., April 22, 1918. It was found in a room on the second floor of the Harris county courthouse, which was the part of the clerk's office where all mail addressed to that official is delivered and was opened at 7:50 o'clock upon the same morning by one of his

uty Witt there.

While these happenings were occurring on the second floor, and back and forth between the two departments of the clerk's office located there and below, respectively, this train of events was being concurrently enacted in the downstairs department:

Appellant R. M. Love and others had their applications at the front window of the filing department ready for filing at 7:30 o'clock that morning, right after Mr. Witt opened the door, which was some 15 or 20 minutes before Mr. Maes offered his for filing, and they at that time deposited their applications on the desk inside this window and left them there for filing. It seems, however, that they did not formally ask Mr. Witt before the cancellation notice came down from upstairs to actually file them, as Mr. Maes did do with reference to that of the appellee.

Following the receipt of these applications in the manner stated from all the parties, both up stairs and down, the clerk indorsed them all as having been filed at the same time, that is 7:50 o'clock a. m., April 22, 1918. Subsequently, on their reaching him at Austin in due course of procedure, the land commissioner, pursuant to agreement among the applicants other than appellee, MacCorquodale, to so accept it, on June 22, 1918, issued upon these applications a joint permit in the name of R. M. Love for the use of himself and all the others, except the appellee, Miss E. D. MacCorquodale, who had unsuccessfully demanded of the commissioner a separate and exclusive one for herself. She thereupon brought this suit in the court below, seeking to establish the priority of her own filing,

(218 S.W.)

and, pending final determination of the mat- Bank v. Colonial Trust Co., 186 S. W. 361; ter, to prevent by injunction any action being Devlin on Deeds, § 679. taken in furtherance of the permit so accorded to R. M. Love.

The defendants Frank Miller, H. V. Young, and George Miller answered by general demurrer, general denial, a plea of not guilty, and specially denied that Summerfelt conveyed the land in controversy, to wit, lot 4 (Court of Civil Appeals of Texas. Galveston. of the Tolman subdivision of section 34 of Dec. 10, 1919.)

the H. T. & B. Railroad survey, to F. E. Pye Realty Company, or that F. E. Pye Realty Company conveyed the same to Wendhausen, and alleged that the land conveyed by Summerfelt to Pye Realty Company and by Pye

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