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(218 S.W.)

is, not what the commissioners' court might have done in the exercise of its taxing power, but what did it do with reference to this particular debt? According to the averments of the appellant, it did nothing. It is true the petition states that ample funds were on hand for the payment of these warrants when they fell due; but that does not supply the vital omission. It is not enough to provide funds for the payment of the debt after it has been created; the Constitution requires this to be done at or before the time the debt is contracted. A compliance with that requirement is essential to enable the county authorities to contract a valid obligation to be paid out of the future revenues of the county. If the debt evidenced by the warrants sued on was, for the reasons stated, invalid at its inception, nothing the commissioners' court could thereafter do would validate it. The county is not bound to pay a debt which was illegally created. The following authorities support the conclusions reached: Rogers National Bank v. Marion County, 181 S. W. 884; Mitchell County v. Bank, 91 Tex. 370, 43 S. W. 880; Bassett v. City of El Paso, 88 Tex. 168, 30 S. W. 893;

The judgment is affirmed.

order to create an interest and sinking fund for the payment of those warrants Camp county had levied a tax of 15 cents on the $100 for the years 1913 to 1921, inclusive, and had set aside the funds arising from that tax for the purpose of paying those warrants. It is then alleged that thereby sufficient money was provided to create the interest and sinking fund required by law for all warrants theretofore issued, including those sued upon; that the fund thus provided for had been accumulated and was on hand at the respective dates on which appellant's warrants matured. It is thus shown that provision was made by the county for levying and collecting a tax sufficient to satisfy at their maturity the warrants that had been issued for the purpose of raising the $26,000 road fund. But the logical inference from the petition is that the warrants here sued on belonged to a different group of obligations and were issued for a different purpose and probably at a different time. It is not alleged that any special provisions were made for levying and collecting a tax for their payment. The averment that in providing for the payment of the $26,000 debt 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 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. That surplus might legitimately have been diverted to some other lawful use. We know judicially that the funds raised from such taxes form the road and bridge fund of the county and may be used in defraying the current expenses for improving and maintaining the public highways unless appropriate orders have been made setting apart all or a portion of it for some other purpose. To make provision for the levy and collection of the necessary taxes, when this has not been done by law, requires some affirmative action on the part of the county authorities with special reference to the particular debt being created or contemplated. It is not sufficient to provide for raising a fund which may or may not be lawfully used for its payment; but one must be provided for 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 resources available for their payment, and 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 noted by Hanson Womack as attorney for one materially alter the situation. The inquiry Gardner. Gardner had a claim for damages

YEAGER v. HOUSTON & T. C. RY. CO. (No. 6138.)

Austin.

(Court of Civil Appeals of Texas.
Jan. 21, 1920. Rehearing Denied
Feb. 18, 1920.)

APPEAL AND ERROR

45-COURT OF CIVIL APPEALS WITHOUT JURISDICTION OF APPEAL INVOLVING LESS THAN $100 IN ABSENCE OF

ALLEGATION OF TORTIOUS ACT.

The Court of Civil Appeals is without appellate jurisdiction of the appeal of plaintiff from an adverse judgment in his action against a railroad to recover less than $100, one-half of the fee paid an attorney in a personal injury case whom plaintiff had assisted, in the absence of allegation of unlawful or tortious act by defendant railroad.

Appeal from McLennan County Court; James P. Alexander, Judge.

James E. Yeager, of Waco, in pro. per.
A. P. McCormick, of Waco, for appellee.

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

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. This he failed to do. Appellant sued appellee for one-half of said $87.50, on the theory that it should not have paid same to Womack, but should have paid it to appellant.

could sell the land for; that he found a purchaser ready, willing, and able to buy at $85, and that defendant refused to sell. Defendant answered by general demurrer and general denial.

[1] At the close of the testimony the court prepared and submitted to the parties a general charge. After the appellant had filed his objections to it, which were overruled, and requested certain special charges which were refused, he requested that the case be submitted upon special issues under article 1984a, Vernon's Sayles' Statutes, and that Gib-request was refused by the court. The provisions of the statute make it mandatory

In addition to seeking to recover one-half of $87.50, he alleged that, in settling with Womack, appellee conspired with him to beat appellant out of his fee, to appellant's damage in the sum of $100. No unlawful or tortious act on the part of appellee is alleged. Such being the case, this was a suit for an amount less than $100, for which reason this court is without appellate jurisdiction. son v. Hotel, 198 S. W. 413.

For the reason stated, the appeal herein upon the court to do so, and it was reversible is dismissed.

Dismissed.

JACKSON v. MARTIN. (No. 1058.)

(Court of Civil Appeals of Texas. El Paso.
Jan. 29, 1920. On Rehearing, March
11, 1920.)

-

1. TRIAL 349(1) STATUTE MANDATORY THAT CASE BE SUBMITTED ON SPECIAL ISSUE. In a jury trial it was reversible error to refuse to submit the case on special issues, on request therefor before the general charge had been submitted, and after objections thereto had been overruled, in view of Vernon's Sayles' Ann. Civ. St. 1914, art. 1984a; such statute being mandatory.

2. TRIAL 143-AFFIRMATIVE DEFENSES TO BE SUBMITTED TO JURY ON CONFLICTING EVIDENCE.

error to refuse to comply with it. Klyce v. Gundlach, 193 S. W. 1092.

[2] It is further urged that it was error for the court to refuse to submit appellant's affirmative defense that time was of the essence of the contract, in that plaintiff only had a limited time in which to make the sale at the price fixed. In view of another trial, all affirmative matters of defense should be submitted to the jury, where, as in this case, the evidence is conflicting.

There are other matters assigned as error; but, if error, they are not likely to recur upon another trial.

For the reasons assigned, the cause is reversed and remanded.

On Rehearing.

Appellee in motion for rehearing calls our attention to the fact that we are in conflict with the holding by the Fifth district in the submitted to the jury, where the evidence is S. W. 1178. The opinion cited appears to be case of Mercer Dry Goods Co. v. Fikes, 191 conflicting.

Affirmative matters of defense should 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.

Action by W. A. Martin against J. H. Jackson. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Mark Smith and Y. D. Kemble, both of Waxahachie, for appellant.

latter, we think, is in accord with the cases from the Supreme Court (G., H. & S. A. Ry. Co. v. Cody, 92 Tex. 632, 51 S. W. 329), and we think the holding by the Supreme Court that the cause shall be submitted upon special issues, if the request is made before it is 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, 92 Tex. 638, 50 S. W. 1012, 51 S. W. 330, is an opinion by the Supreme Court of Texas to the same effect.

HARPER, C. J. This is an appeal from a judgment for $435 in favor of W. A. Martin and against J. H. Jackson. For cause of action plaintiff alleged that about January Motion is overruled.

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ITY OF VENDOR'S LIEN CONTRACT MAY BE
RELIED ON BY PURCHASER.

In a suit on vendor's lien notes, the pur-
chaser of land can interpose as a defense the
illegality of the contract, by which the equita-
ble title was conveyed to him and the lien re-
tained, to defeat recovery on the lien notes.
2. ELECTION OF REMEDIES 12-AFTER RE-
PUDIATION OF LIABILITY BY DEFENDANT
PLAINTIFF MAY AGAIN ELECT.

Where plaintiff has two inconsistent remedies under a contract and elects to pursue

Suit in trespass to try title by J. B. Stone against Jim Robinson, Jr., and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Bean & Klett, of Lubbock, for appellant.
Percy Spencer, of Lubbock, for appellees.

HALL, J. Appellant, J. B. Stone, plaintiff below, filed suit June 21, 1918, in form of trespass to try title, being cause No. 1188, in the district court of Lubbock county, against appellees, Jim Robinson, Jr., and James Scott and wife, for the recovery of 40 acres of land adjoining the town of Lubbock. The court directed a verdict for the defendants, and judgment was entered accordingly. Plaintiff's petition is in the usual form of trespass to try title. Appellees answered jointly, by general demurrer, plea of not guilty; that plaintiff had previously elected his remedy; res judicata; and the statutes of limitations of three, four, and five years. The substance 301-VENDOR tiff Stone filed his suit No. 834 on the docket of the answer is that on April 25, 1914, plainof the district court of Lubbock county, against the appellees and other defendants, alleging that the plaintiff in said cause No. 834 had pleaded that on September 9, 1909, the defendant therein, Jim Robinson, Jr., executed and delivered to the plaintiff two vendors' lien notes of even date therewith,

one of them, but defendant repudiates his liability by pleading the statute of limitation or by similar plea, plaintiff may again elect and resort to his other remedy.

3. VENDOR AND PURCHASER

UNDER EXECUTORY CONTRACT MAY SUE EI-
THER FOR LAND OR PRICE.

The vendor in an executory contract for the sale of land can, on purchaser's default, either sue for the land or for the purchase money, and the better practice is to unite his causes of action, pleading and praying in the alternative.

4. ADVERSE POSSESSION 72-THREE YEARS' for the sum of $3,500 each, payable to the

STATUTE DOES NOT APPLY TO SUIT ON VEN-
DOR'S LIEN NOTES.

The three years' statute of limitations barring suits against one who had title from sovereign does not bar an action against purchaser under an executory contract of sale by the holder of the vendor's lien.

5. ADVERSE POSSESSION 63(7)-FIVE YEARS' STATUTE NOT APPLICABLE TO SUIT ON VENDOR'S LIEN NOTES UNTIL ADVERSE CLAIM

MADE.

The five years' statute of limitations barring suits to recover land does not begin to run against a suit on the vendor's lien until the purchaser asserts a claim to the land hostile to the lien.

6. LIMITATION OF ACTIONS
105 (2)-VEN-
DOR AND 'PURCHASER 299(1)-STATUTE
LIMITING RECOVERY ON LIEN NOTES IS NOT

SUSPENDED BY SUIT TO RECOVER LAND.

The running of Vernon's Sayles' Ann. Civ. St. 1914, art. 5694, barring right to recover real estate by virtue of a superior title retained in a conveyance after four years from the maturity of the note, against vendor's suit

to recover the land, is not suspended by a suit by the vendor to recover the amount of the notes, and precludes recovery of the land by suit brought more than four years after maturity of the notes, though recovery on the notes was denied because of illegality of the contract.

order of plaintiff in one and two years after
date, respectively, with 8 per cent. interest
10 per
and
cent. attorney's fees; that
said notes were given in part payment for
the 40 acres of land in controversy; that
the vendor's lien was expressly reserved in
the deed conveying said land from the plain-
tiff and wife to the defendant Jim Robinson,
Jr.; that at the time of the execution of the
deed plaintiff gave one W. S. Posey a power
of attorney to execute the release of the lien
on lots to be sold, upon payment of $30 per
lot (with the exception of plaintiff's residence
lots over which the controversy arose); that
after said conveyance the land was plotted
into what is known as Robinson's addition;
that the transaction of September 9, 1909,
was a lottery scheme and could not be af-
firmed by the parties or enforced in the
courts; that such defense was clearly made
by them upon the trial of cause No. 834, and
sustained, the plaintiff being denied the right
to enforce his contract and a foreclosure of
the vendor's lien; that in said cause No.

834 plaintiff had elected his remedy, and the
cause of action herein was res judicata. The
answer further set up the statutes of limita-
tions of three, four, and five years.

By way of supplemental petition, plaintiff denied the allegations contained in the answer 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

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

vendor's lien to secure payment of the two purchase-money notes of $3,500 each; (2) a plot of the Robinson addition to the town of Lubbock, showing the subdivision into lots and blocks of the 40 acres in controversy; (3) power of attorney from J. B. Stone to W. S. Posey, dated September 9, 1909; (4) deed from Jim Robinson, Jr., to Lizzie Sanders, conveying the property on which the James Scott residence is located; (5) deed from Lizzie Sanders and husband to James Scott, conveying the property on which the Scott residence is located.

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 transaction of September 9, 1909, set up by the defendants, was an executory contract, made by the parties thereto in furtherance of a lottery scheme; that the appellees are claiming under and by virtue of said contract, which is contrary to public policy and good morals and should not be enforced in favor of appellees; that whatever claim the defendants herein have to said land accrued subject to the transactions stated and in subordination to the superior right and title of plaintiff; that on or about January 2, 1915, the appellees admitted in writing that the plaintiff's debt was just, due, and unpaid, and then and there induced the plaintiff to believe their claims were subordinate to plaintiff's right and title; that up to the time of the filing of defendants' answer on December 30, 1918, in said cause 834, the defendants repeatedly recognized the superior right and title of the plaintiff; that not until then did the defendants give notice of their adverse possession or assert title hostile to plaintiff; that plaintiff relied on the conduct of the defendants, and, if he had known that they were repudiating his superior right and title, suit would have been filed before his cause of action was barred; that it would be unjust for defendants to acquire said land which is of the value of $8,500 without paying therefor; that the statutes of limitations were suspended by the conduct of defendants, and they are estopped to plead title by limitations.

In cause No. 834 plaintiff recovered judgment for the amount of his notes foreclosing the vendor's lien upon all of the land except that portion upon which James Scott's residence was located. That judgment was reversed by this court, in which it was held that the trial court erred in said cause No. 834, in its construction of the power of attorney. Upon another trial appellees herein amended their original answer, November 30, 1914, alleging for the first time that the transaction of September 9, 1909, was a lottery and not enforceable, and that said power of attorney provided for the release of lots on the payment of $30 each, and was made in furtherance of the lottery scheme. Upon a second trial, the court rendered judgment July 3, 1917, refusing to enforce the executory contract of September 9, 1909, and denying the plaintiff a foreclosure of the vendor's lien or a recovery on said notes. From this judgment a second appeal was prosecuted and the judgment affirmed in this court. Thereafter this suit was instituted to recover the land. Upon the trial it was admitted that plaintiff Stone acquired title from and under the sovereignty of the soil to the 40 acres of land in controversy. The defendants introduced in evidence: (1) A deed from J. B. Stone and wife to Jim Rob-|

The appellant attacks the action of the court in directing a verdict upon a number of grounds, which, under the view we have of the case, it will not be necessary for us to consider. He insists that, his action being in the form of trespass to try title, it was only necessary for him to show title in himself from the sovereignty of the soil. If the trial had ended with the introduction of mesne conveyances, showing title in him from the state, this contention would be correct. His former suit was an effort to collect the amount of the notes and to foreclose his vendor's lien. Stone v. Robinson, 203 S. W. 1132. Having been defeated in this effort by appellees' plea and proof, showing an illegal contract, this action was filed to recover the land, upon the theory that the contract of September 9, 1909, was an executory contract, under which the superior title remained in him.

[1] While it is true that under that contract appellant retained the superior title, this fact does not preclude appellee from interposing in this suit as a defense the illegality of the contract which conveyed to him the equitable title. While we think the proof of illegality in the contract of September 9, 1909, is a defense to appellant's suit, we do not find it necessary to base the disposition of this appeal upon that issue. In Hall v. Edwards, 194 S. W. 674, this court considered the question of the right of a vendee to set up the illegality of a contract, and held that such a defense was available against the vendor's effort to recover the land. While the Supreme Court has granted a writ of error, we are not prepared to recede from our holding in that case.

[2] We do not agree with appellees' contention that in the former suit, in which appellant sought to recover upon the notes, he elected his remedy and is bound by such election and cannot therefore maintain this suit. Where a plaintiff has two inconsistent remedies under a contract and elects to pursue one of them, in which suit the defendant repudiates his liability, by pleading the statute of limitation or other like plea, the plaintiff may again exercise his right of election and resort to his other remedy.

[3, 4] The doctrine is well established in

(218 S.W.)

filed by him, but having exercised his option to pursue his remedies by separate actions, and having sued to recover the land more than four years after the last note matured, his last action is barred by the above-named statute. The running of the statute was not suspended by the first suit. City of Dallas v. Kruegel, 95 Tex. 43, 64 S. W. 922; Browning v. Pumphrey, 81 Tex. 163, 16 S. W. 870; Windom v. Howard, 26 S. W. 175; Bowen v. Kirkland, 17 Tex. Civ. App. 346, 44 S. W. 189; Duke v. Reed, 64 Tex. 705.

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 vendee, the right to sue for either the land or the purchase money, and, as suggested in several opinions by the Supreme Court, the better practice is to unite his causes of action, pleading and praying in the alternative. In this litigation appellant elected to pursue his remedies by separate actions, and appellee insists that his right to resort to the remedy here and now pursued is barred by the statutes of three, four, and five years. It has been held by the Supreme Court, in Burnham v. Hardy Oil Co., 108 Tex. 555, 195 S. W. 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 Union Trust Co. v. Harbaugh, 205 S. W. 497.

For the reasons stated, the judgment is

(No. 6117.)

We deem further discussion of the applica- GULF, C. & S. F. RY. CO. v. BAKER et al. tion of the statute unnecessary in this connection.

[5, 6] There was no assertion of adverse ownership on the part of appellee in this case prior to the time he filed his answer, November 30, 1914, setting up the illegality of the contract in the former suit. While there are some allegations in appellee's answer upon which the case was tried, the first time, denying that appellant had any lien upon the property in question (Stone v. Robinson, 180 S. W. 135), these allegations are merely conclusions of the pleader, drawn from the facts alleged, showing appellant's duty to

release the lien under the contract. As

stated, the first hostile assertion of title is

(Court of Civil Appeals of Texas. Austin. Dec. 17, 1919. Rehearing Denied Jan. 28, 1920.)

1. LIMITATION OF ACTIONS 121(2)—AMEND

ED PETITION ALLEGING SALE OF JOINT PLAIN-
TIFF'S INTEREST TO OTHER PLAINTIFF DOES
NOT SET UP NEW CAUSE OF ACTION.

In action by two joint lessees, amended petition naming only one of the lessees as plaintiff, and alleging that such plaintiff had purchased the interest of the other lessee in the lease, was not barred by limitations, though

filed after period of limitations had expired;

the amended petition not stating a new cause

of action.

ED PETITION IN ACTION AGAINST RAILROAD
FOR LEAVING OPENINGS IN PLAINTIFF'S
FENCES HELD NOT TO STATE NEW CAUSE OF
ACTION.

tle and damage to pasturage because of openings
In action against railroad for loss of cat-
made in plaintiff's fences during construction of
road, where original petition charged that de-
fendant, its agents, and employés broke fences
in not less than eight different places, and that
"people grading the road for defendant" tore
down fences and left them down, without spec-
ifying parts of fences where openings were
made, amended petition, alleging openings to
have been made by servants of independent con-
tractor on the right of way, held not to state
new cause of action so as to be barred by lim-
itations; the amended petition merely making
more specific the allegations of original peti-
tion.

found in appellee's answer, filed in the trial court after the case was reversed the first 2. LIMITATION OF ACTIONS 127(8)-AMENDtime, in which the illegality of the contract it set up. For this reason the five years' statute cannot apply. We think, however, Vernon's Sayles' Civil Statutes, art. 5694, is clearly applicable to the facts shown in the record, and that under the provisions of that article appellant's right to recover herein is barred. R. B. Godley Lbr. Co. v. C. C. Slaughter, 202 S. W. 801; Adams v. Harris, 190 S. W. 245. The provisions of the article applicable here are that the right to recover any real estate, by virtue of a superior title retained in any deed of conveyance, shall be barred after the expiration of four years from the maturity of the note or notes evidencing such indebtedness, and that, if suit is not brought for the recovery of such real estate within four years from the date of the maturity of such indebtedness, by the vendor, the purchase money thereof shall be conclusively presumed to have been paid. It was shown that the notes evidencing the indebtedness arising under the contract of September 9, 1909, matured September 9, 1910, and 1911, respectively. This suit was filed June 21, 1918. As stated above, under the well-recognized rule of practice in this state, appellant might have sued to recover

3. TRIAL 357-ANSWER TO SPECIAL ISSUE

CONSTRUED AS SUFFICIENTLY RESPONSIVE.

In action against railroad for loss of cattle through openings left in plaintiff's fence, where special issue submitted question of whether tion escaped through opening, with the requirethe 17 head of cattle alleged in plaintiff's petiment that jury answer yes or no, answer of "Yes; at least 10 head," held sufficiently responsive.

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