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Appellees further insist that,

institution of her suit about 17 months after“Appellant cannot urge that notice was not wards, and it does not appear that any obgiven as required in the policy, because the wantjection whatever was made to this evidence. of notice was not specially pleaded under oath Under such circumstances, we think the obby it, and, unless such want of notice is spejection that the plea was not verified comes cially pleaded under oath, it is presumed that too late. To hold otherwise, as it seems to notice is given."

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 that

formal 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 might be cited where verified pleadings are has been given, unless the want of notice is required by statute and in which a want of especially pleaded under oath."

verification has been disregarded on the It is not perfectly apparent that this suit ground of its waiver. See, on the subject, was brought under either article of the stat. Wilkinson v. Lyon, 207 S. W. 638, and cases ute referred to, but several similar cases therein cited. See, also, cases in illustration have been cited and may be found to the ef- cited in note 54, p. 271 and following, of 40 fect that such plea, unverified, does not raise

Cyc. the issue. We have not been able to deter

[8] Appellees' further contention that nomine the precise circumstances of the several tice of the accident “at the time of service cases, but do note that in the case chiefly re- of citation upon the appellees is a full complilied upon by appellees, viz. North American ance with the provisions requiring notice" Accident Ins. Co. v. Miller, 193 S. W. 750, by cannot, we think, be sustained under the the Court of Appeals at Amarillo, that court terms of the contract. As already noted, the said on this subject:

terms of the contract were specifically and "We regard the failure to plead under oath, not only of the accident, but also of the claim

separately stated that notice was to be given want of notice, and failure to prove that no notice was in fact received raises the presump

for damages and of the institution of the tion that notice had been given as required by suit, and we do not feel at liberty to hold the policy."

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 fail. cite 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 noth

JONES et al. v. MacCORQUODALE. ing beneficial to appellant in providing

(No. 7793.) against a possible liability could have been(Court of Civil Appeals of Texas. Galveston. developed by a reasonably early notice of the Dec. 4, 1919. Rehearing Denied accident as stipulated in the policy.

Jan. 8, 1920.) [9] Nor can we adopt appellees' further

1. MINES AND MINERALS Omw 6APPLICATIONS and final condition that the stipulation as to

FOR OIL AND MINERAL PERMITS ENTITLED TO notice under consideration cannot be given

BE FILED SIMULTANEOUSLY. effect for the reason that the record fails to

Where at the time notice of forfeiture of show that knowledge of the accident had an oil and mineral lease under Acts 35th Leg. been brought home to Winfield Scott during |(1917) C. 83,1 had time to reach the county his lifetime, or to the executors of his estate, clerk's office and did reach such office, a numthe appellees herein, until the institution of ber of applicants for permits to prospect were the suit by Mrs. Shine. It is to be observed waiting at the filing window, having deposited that under the terms of the policy Winfield their applications on the counter, and a numScott assumed the obligation of giving imme- ber of other applications were received in the diate written notice of any accident out of be filed simultaneously.

same mail as the notice, all were entitled to which liability on the part of the company could grow, and the suit of Mrs. Shine was

2. MINES AND MINERALS 6 FAILURE TO

FORMALLY ASK FILING OF APPLICATION FOR founded upon allegations that his servants

MINERAL PERMIT DID NOT ENTITLE ANOTHER and employés were guilty of negligence

APPLICANT TO PRIORITY. which, in the nature of things, must soon

That persons presenting for filing in the have been brought home to the knowledge of county clerk's office applications for oil and some authorized agent. Moreover, it was af- mineral permits deposited them on the counfirmatively shown that the bookkeeper of ter, without formally accosting or requesting Winfield Scott witnessed the accident, that the deputy to file them, until after another apthe manager of his gin at Itasca, where the plicant had made such request, entitled him to accident occurred, learned of the accident no priority, as under Vernon's Sayles' Ann. within two weeks thereafter, and that his Civ. St. 1914, art. 6791, an instrument is filed private secretary was advised of the accident when deposited for that purpose in the coun

ty clerk's office. soon after its happening. Winfield Scott lived some 13 months after the accident, and 3. RECORDS 4 – INSTRUMENT ENTITLED TO the reasonable inference is that he, in fact,

RECORD BY WHATEVER METHOD IT BEACHES learned of it, but, whether so or not, his au

COUNTY CLERK'S OFFICE. thorized servants and employés certainly did

An instrument is entitled to record upon and their knowledge must be imputed to him. its arrival or deposit in the county clerk's of

fice, whether sent by mail or messenger, or It is said in 21 R. C. L. 828, $ 12, that:

handed to the clerk elsewhere and carried there "In the exercise of good faith skill, and dili- by him. gence, the agent is bound to keep his principal 4. COUNTIES Own 82 – DEPUTY COUNTY CLERKS informed of all matters that may come to his

NOT LIMITED IN AUTHORITY BY DIVISION OF knowledge concerning the principal's rights and

OFFICE INTO DEPARTMENTS. interests."

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 clerk's office into departments, with a dep"The principal, according to a settled rule of does not limit the authority of any deputy, or

uty over each in charge of particular business, law, is bound by the knowledge of the agent, prevent him from performing all such official or, otherwise stated, notice to the agent con- acts as the clerk might perform. stitutes notice to the principal; the rule being derived from the duty of disclosure by the for- 5. MINES AND MINERALS O 6-SEPARATE APmer to the latter of all the material facts com PLICATIONS FOR PERMITS TO PROSPECT MAY ing to his knowledge with reference to the sub BE FILED SIMULTANEOUSLY. ject of his agency and a presumption that he Separate applications for oil and mineral has discharged that duty.”

permits for state lands may be filed simultane

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

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 so received in this upstairs room of the clerk's rendered.

office the applications for oil permits of appel

lants L. A. Adamson, E. P. Edwards, and R. R. M. Love, C. C. Crocker, and Atkinson & Bradbury, as well as that of another of the Atkinson, all of Houston, for appellants.

original parties to this suit, who does not Homer Stephenson and Elbert Roberts, seem to be a party on appeal. Thomas M. both of Houston, for appellee.

Maes, acting for himself and as agent for ap

pellee 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 8 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, uty Witt there. and (to quote from the act itself what was

While these happenings were occurring on then further required of him):

the second floor, and back and forth between "When forfeiture has been declared, a no- the two departments of the clerk's office 10tice of that fact shall be mailed to the proper cated there and below, respectively, this train county clerk and the area shall be subject to of events was being concurrently enacted in the application of another than the forfeiting the downstairs department: owner when the notice has had time to reach

Appellant R. M. Love and others had their the county clerk through due course of mail.” | applications at the front window of the filing

department ready for filing at 7:30 o'clock Following advance advice to that effect, on that morning, right after Mr. Witt opened the April 20, 1918, the commissioner exercised door, which was some 15 or 20 minutes before this authority by canceling the then existing Mr. Maes offered his for filing, and they at leases on the lands, and on the same day mail.that time deposited their applications on the ed a notice of that action to the county clerk desk inside this window and left them there of Harris county at Houston,

for filing. It seems, however, that they did Knowing of these proceedings, the parties not formally ask Mr. Witt before the cancelto the present controversy, in their efforts to lation notice came down from upstairs to get new permits, were thereupon put upon actually file them, as Mr. Maes did do with the anxious seat, first, as to just when this reference to that of the appellee. notice of cancellation would-under the quot Following the receipt of these applications ed terms of the law prescribing it–become the in the manner stated from all the parties, basis of authority in the county clerk of Har- both up stairs and down, the clerk indorsed ris county to accept and file new applications them all as having been filed at the same for mineral permits; and, second, as to which time, that is 7:50 o'clock a. m., April 22, 1918. of them could first get to and invoke of him Subsequently, on their reaching him at Austin that official action. Omitting unnecessary de- in due course of procedure, the land commistails, the undisputed facts here shown were sioner, pursuant to agreement among the apthese:

plicants other than appellee, MacCorquodale, The land commissioner's notice of cancel- to so accept it, on June 22, 1918, issued upon lation had time in due course of mail to reach these applications a joint permit in the name the county clerk's office at Houston at 7:30 of R. M. Love for the use of himself and all o'clock a. m., April 22, 1918. It was found in the others, except the appellee, Miss E. D.

on the second floor of the Harris MacCorquodale, who had unsuccessfully decounty courthouse, which was the part of the manded of the commissioner a separate and clerk's office where all mail addressed to that exclusive one for herself. She thereupon oflicial is delivered and was opened at 7:50 brought this suit in the court below, seeking o'clock upon the same morning by one of his to establish the priority of her own filing,

a room

(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 accord But if there be any doubt about the priority ed to R. M. Love.

of those thus presented below, or of their be. Upon the facts stated, after first finding ing entitled to a filing as of 7:30, arising out of that the lands became subject to new filings the fact that the deputy in charge there was on and after 7:30 o'clock a. m., April 22, 1918, not then asked to file them, it could not attach the trial court held the appellee's application to the ones, from the mail upstairs, and appelentitled to prior filing over those presented lants would still have a right to the 7:30 filing by any of the appellants, that there could be upon the strength of those. In a word, we no simultaneous filing of separate applica- think the fateful moment for all parties was tions, which rendered those received at the fixed at 7:30 by the circumstances that the same time through the mails from three of cancellation notice had not only had time in the appellants void, and entered judgment due course of mail to, but did in fact, reach accordingly, at the same time decreeing a can- the county clerk's office at that time, and that cellation of the Love permit and permanently the filings of appellants in both departments en joining its sale or transfer.

attached at the same moment. [1, 2] We think the court erred. If the [3] So far as we are aware, there is no notice of cancellation from the land commis- particular method of getting an instrument sioner had time to reach the county clerk's into the clerk's office for the purpose of filing office at 7:30 on the morning of April 22d, and required. If it is deposited there with that the lands thereupon at the same moment be- objective by mail, by messenger, or is even came subject to filings, as was found from the handed to the clerk elsewhere, and afterwards undisputed evidence, no valid reason occurs carried there by him, it becomes entitled to as to why the several applications of different record upon its arrival or deposit in his office. ones of the appellants were not simultaneous. It is thought the authorities already cited ly entitled to be filed at that same time in both so hold. the upper and lower departments of the [4] Neither would the division of the clerk's office. By like findings from unques- clerk's office into different departments, with tioned proof the court determined that the a deputy over each in charge of particular three mailed ones reached the upstairs deputy business, have the effect of limiting the at precisely 7:30 o'clock, along with the can-authority of any regularly appointed one of cellation notice, and that at the same moment them, or of preventing him from performing Mr. Love and associates were personally pres- all such official acts as might be lawfully ent with theirs at the filing window down- done by the clerk himself in person, because stairs, waiting until the notice should be re- the statutes creating their offices expressly ceived there. A further fact, not stated by confer upon them the full powers of their the trial court, but which-as is hereinbefore chief. Articles 1748 and 1749, Vernon's recited—was equally undisputed, is that these Sayles' Statutes. See, also, Thompson v. proponents actually deposited their offerings Johnson, 84 Tex. 548, 19 S. W. 784; Frizzell on the counter inside the filing window at 7:30, V. Johnson, 30 Tex. 31; Cook v. Knott, 28 Tex. and left them there for filing whenever the 85; Harrison v. Harwood, 31 Tex. 650. cancellation notice should be so received as [5] Nor can we agree that separate mineral to make that process available to them. The filings such as those here involved may not mere fact that they did not then also formally be filed simultaneously. While cited to no accost or request Mr. Witt to file them, nor authority directly so holding, the analogy in until at least a half minute later than Mr. that respect between such instruments and Maes did that as to his, would in our opinion ordinary mortgages seems to us close, and in make no material difference, since it is uni- references to the latter such filings have genformly held that an instrument is considered erally been upheld as valid. Koevenig v. "filed," within the meaning of our registra- Schmitz, 71 Iowa, 175, 32 N. W. 320; Stantion laws when deposited for that purpose in brough v. Daniels, 77 Iowa, 566, 42 N. W. the county clerk's office, together with the 445; Schaeppi v. Glade, 195 Ill. 62, 62 N. E. proper recording fees. Vernon's Sayles' Stat- 874; Jones on Mortgages, $8 534 and 607a. utes, art. 6791; Holman v. Chevaillier, 14 Tex. It is not deemed essential that the discus337; Throckmorton v. Price, 28 Tex. 605, 91 | sion be further extended. The facts having Am. Dec. 334; Belbaze v. Ratto, 69 Tex, 636, been fully developed, the judgment of the 7 S. W. 501; Guffey Petroleum Co. v. Hooks, court below is reversed, and judgment will 47 Tex. Civ. App. 560, 106 S. W. 690; Carlisle be here entered in favor of the appellants. v. King, 122 S. W. 581; American Exchange Reversed and rendered.

to sustain the finding of the trial court that a JONES et al. v. MacCORQUODALE. deed from the first to the second of plaintiff's (No. 7795.)

remote grantors conveyed the southwest quarter

of the subdivision, or lot 3, though it stated (Court of Civil Appeals of Texas. Galveston. that it conveyed lot 4, a mistake recognized by Dec. 4, 1919. Rehearing Denied another party in plaintiff's chain of title by the Jan. 8, 1920.)

recitals he made in a subsequent power of attor.

ney. Appeal from District Court, Harris County; Wm. Masterson, Judge.

Appeal from District Court, Brazoria CounSuit by E. D. MacCorquodale against George ty; Sam’l J. Styles, Judge. Jones and others. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

Suit by the Masterson Irrigation Company

From R. M. Love, C. C. Crocker, and Atkinson & against John A. Owen and others. Atkinson, all of Houston, for appellants.

judgment for defendants, plaintiff appeals. Homer Stephenson and Elbert Roberts, both Affirmed. of Houston, for appellee.

J. E. Winfree, of Houston, for appellant.

Munson & Williams, of Angleton, for appelGRAVES, J. This is a companion cause

lees. to No. 7793, George Jones et al. v. E. D. MacCorquodale, 218 S. W. 59, this day decided by this court, and involves identically the same

LANE, J. This suit was brought by appel. issues. Upon the authority of that case, and lant, Masterson Irrigation Company, against for the same reasons, the judgment of the trial John A. Owen, Jacob Ford, Frank Miller, court in this one, also, is likewise reversed, and H. V. Young, and George Miller for title and judgment is here rendered in favor of the ap- possession of lot 4 of the J. C. Tolman subdipellants.

vision of section 34 of the H. T. & B. Railroad Reversed and rendered.

survey in Brazoria county, Tex., containing 160 acres of land. The suit, however, was dismissed as to John A. Owen and Jacob Ford; it having been shown that Owen and

Ford had conveyed any interest they had to JONES et al. V. MAES. (No. 7794.)

the land in controversy to Frank Miller, H. V. (Court of Civil Appeals of Texas. Galveston. Young, and George Miller; therefore neither Dec. 4, 1919. Rehearing Denied

Owen nor Ford will be further mentioned as Jan. 8, 1920.)

parties to the suit. Appeal from District Court, Harris County: petitions in suits of trespass to try title. It

Plaintiff's petition is in the usual form of Wm. Masterson, Judge.

is alleged therein that plaintiff is the owner Suit by Thomas M. Maes against George in fee simple of lot 4 of the J. C. Tolman subJones and others. Judgment for plaintiff, and division of section 34 of the H. T. & B. Raildefendants appeal. Reversed and rendered. R. M. Love, C. C. Crocker,' and Atkinson & through a regular chain emanating from John

road survey; that it acquired the title Atkinson, all of Houston, for appellants.

Homer Stephenson and Elbert Roberts, both B. Summerfelt, the common source under of Houston, for appellee.

whom both plaintiff and defendants claim

title; that on the 23d day of February, 1910, GRAVES, J. This is a companion cause to the title to the land in controversy was vested No. 7793, George Jones et al. v. E. D. Mac- in J. B. Summerfelt, and that on said date Corguodale, 218 S. W. 59, this day decided by J. B. Summerfelt sold and conveyed the same this court, and involves identically the same is to F. E. Pye Realty Company; that on the sues. Upon the authority of that case, and for 24th day of February, 1910, F. E. Pye Realty the same reasons, the judgment of the trial

Company conveyed the same to Herman court in this one, also, is likewise reversed, and judgment is here rendered in favor of the ap- Wendhausen; and that on the 6th day of pellants.

September, 1916, Wendhausen and Meek and Reversed and rendered.

Highsmith conveyed the same land to plaintiff.

The defendants Frank Miller, H. V. Young,

and George Miller answered by general deMASTERSON IRR. CO. v. OWEN et al.

murrer, general denial, a plea of not guilty, (No. 7792.)

and specially denied that Summerfelt con

veyed 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 DEEDS 118EVIDENCE SHOWING MISTAKE Realty Company, or that F. E. Pye Realty

Company conveyed the same to Wendhausen, In suit for title and possession of lot 4 of a and alleged that the land conveyed by Sumsubdivision, the southeast quarter, evidence held merfelt to Pye Realty Company and by Pye

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

IN NUMBERING OF LOT CONVEYED.

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