recitals have been stated with such clearness and force in a series of opinions by the lamented Judge Reese as to obviate the necessity for further discussion. Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033; Frugia v. Trueheart, 48 Tex. Civ. App. 513, 106 S. W. 739; Hirsch v. Patton, 49 Tex. Civ. App. 499, 108 s. W. 1017; Thompson & Tucker Lumber Co. v. Platt, 154 S. W. 270."

[9] The other evidence question which seems to present difficulty is that relating to the admissibility of a certain judgment of the district court of Hardin county affecting title to the land in suit. The Kellogg heirs, plaintiffs in the case at bar, decided to go down into Hardin county and sue for title to the same tract of land involved here. The suit involved not only above land in San Augustine county but a tract in Hardin coun

There were several defendants in

Thereupon, as

It will be remembered that there was no possession of this land by the Cahals. Coun- ty also. sel for defendants in error do not seem to the case, including the unknown heirs of contend that these declarations of Mrs. Os-William Coote. These unknown heirs did not borne would not be admissible were the other appear and make answer. evidences of ownership in this case as strong shown by the judgment, an attorney in Harand convincing as they were in the Cochran din county was appointed to represent all Case. But, they say the facts in the instant of said unknown defendants. Upon a trial case do not measure up to that test. If they plaintiffs recovered judgment against all dedo, upon another trial, we think the declara- fendants. The judgment was recovered July tions should be admitted for what they are 21, 1914, and recorded in San Augustine counworth. We are glad to see the courts of our ty July 7, 1916, just a few days before the state liberalizing the rules of evidence in ad- two years expired in which the unknown demitting declarations of ownership for such fendants could have filed a motion for a new purposes as are present in this case. trial, had they promptly discovered the deed This judgment conconnection we are in hearty sympathy with when placed of record. Chief Justice Willie, when, in the case of tains the recital that all the defendants "had Hickman v. Gillum, 66 Tex. 314, 1 S. W. 339, been cited in terms of law" and that “all requirements of the law had been complied he says: with."

In this

trict court.

"As to all objections made to the relevancy This judgment may be offered in evidence of testimony to prove title in the Maria Josefa again. The trial court excluded it before. Delgado under whom defendants claim, it is The Court of Civil Appeals did not find it necfully shown by the bills of exception, that this testimony was rejected by the district judge essary to pass upon this action of the disas evidence of title, but was permitted to go The following objections were to the jury, only as evidence of an assertion of urged against its admission on the trial: the claim to the land by the defendants and "(1) The district court of Hardin county was those under whom they claimed, and of the ex-without jurisdiction to try the title to the land ercise of ownership over it by them. Whilst the fact that a party asserted that land belong ed to her would be no evidence of title, yet it would be the best possible evidence that she claimed it. And when, as in this case, the grantee of land has a name which is borne by two persons, the fact that one of these has claimed the land continuously from the date of the grant, and exercised acts of ownership over it for a long series of years, and the other has done nothing of the sort during the whole of the time, affords strong evidence that the former was the person intended to be named in

the grant. If such facts are to be excluded, especially when, after a lapse of a long period of time, all proof of the identity of the grantee, through witnesses having a personal knowledge

of the facts attending the grant, is lost, the jury must necessarily be deprived of almost all proof whatever upon the subject."

In the case at bar affidavits of forgery were lodged against deeds more than 70 years old when the affidavits were filed. The genuineness of such ancient deeds being involved, circumstances must be largely relied upon. The courts should be liberal, as they have been, in admitting all such circumstances, as did the trial court in the case at bar, for what they are worth. The jury can be counted upon to weigh the circumstances, as they did in this case.

in controversy, because the land is located in San Augustine county and not in Hardin county, and no defendants in said litigation appeared or answered in person or by any one authorized to waive their right to be sued in the district court of San Augustine county; the language of the statute being that actions for the recovery of land must be brought in the county in

which the land is situated.

and we offer in connection with the objections "(2) Because no valid citation was ever run,` a complete transcript from the records of Hardin county, showing everything that was done the purpose of showing that no valid citation in the proceeding from the start to finish, for was ever run by publication or otherwise, in this, that it is expressly provided by the act of 1909 of the Legislature of the state of Texas that in all actions involving title to land citation by publication must be published in the county in which the land is situated. These proceedings show that the only publication was in a Sour Lake paper in Hardin county, and there was no publication of citation, and therefore no publication whatsoever, which involved any land in San Augustine county.

"(3) Because the petition and judgment insufficiently described the property.

"(4) Because the petition does not set up the nature of the plaintiffs' claim, nor the nature of the claim of the adverse party, as required by law, but is merely in the ordinary |form of the statutory action of trespass to try

(252 S.W.)

title, which is wholly insufficient to warrant
any recovery as against any unknown owner.
"(5) Because there was never any proper af-
fidavit on which any citation by publication
could have been made.

"(6) Because there is no valid return of the officer purporting to have published the citation in the Sour Lake paper.

"(7) Because there was absolutely no evidence of any kind whatever offered in support of the title; the only purported evidence being ex parte affidavits offered on that trial.

"We further object to it because, as shown by the record, there was no service of any kind whatsoever on W. H. Pearson, and no citation served on him.

The case just cited was followed in the case of Hopkins v. Cain, 105 Tex. 591, 143 S. W. 1145.

In the case of Hardy v. Beaty, 84 Tex. 562, 19 S. W. 778, 31 Am. St. Rep. 80, the court says:

"In construing the effect of judgments rendered upon constructive service by publication, this court, in the case of Stewart v. Anderson, 70 Tex. 590, held, that the same conclusive effect is given to such judgments as those rendered upon personal service; that a like presumption will obtain in the one case as in the other."

[10] But it was also contended in the trial court that the judgment was void because it recovered in Hardin county land located in San Augustine county. Counsel for the defendants in error here cite a case directly in point to the contrary. We refer to the case of Houston Oil Co. v. Bayne (Tex. Civ. App.) 141 S. W. 544. In that case Judge Reese

holds:

"In connection with our objections we ofIt follows, from what we have said, that fer the balance of the proceedings in that case, except the judgment, for the purpose of show we think the trial court erred in looking to ing the grounds upon which the objections are the papers in the case in Hardin county, othmade, which proceedings are as follows: "Plain-er than the judgment itself, to contradict the tiff's original petition; affidavit for publication; recitals in the latter. citation by publication with officer's return; affidavit of Annie L. Miller; affidavit of Rose Kellogg; statement of facts; clerk's certificate" -which proceedings are shown by Exhibit H attached to the statement of facts herein, which is hereby referred to and made a part hereof."" It will be observed that most of these objections relate to failure of proper service upon these unknown heirs. In their brief in the Court of Civil Appeals, counsel for Chapman do not seek to justify the exclusion of this judgment upon any other ground than the fact that the papers in the case show a failure to comply with the requirements of the law as to service by publication upon unknown heirs. This contention of counsel cannot be sustained. This is a collateral attack upon a judgment of a court of competent jurisdiction. The judgment on its face recites due and legal service of citation. These recitals in the judgment in collateral attack cannot be contradicted by other portions of the record. The judgment in this respect imports absolute verity. In this connection we quote as follows from the case of Martin v. Burns, 80 Tex. 676, 16 S. W. 1072:

"Where the case is within the jurisdiction of the court and no fact appears affirmatively in the record sufficient to defeat the jurisdiction, evidence aliunde, even where the judgment is silent as to the process or its service, will not be heard to contradict the presumption of regularity or to establish a fact outside of the record, for the purpose of showing that jurisdiction over the person did not in fact attach and thus impeach the judgment. If the judgment itself finds and recites a valid notice, or citation and service, that controls the balance of the record; otherwise if it recites an invalid citation, or names the precise character thereof. If the judgment is silent, then the whole process in the record may be examined. This is as far as the courts can go when the proceeding is collateral. These rules of decision are too well established in this state to need any further discussion. Murchison v. White, 54 Tex. 85; Treadway v. Eastburn, 57 Tex. 209; Fowler v. Simpson, 79 Tex. 611; Wilkinson v. Schoonmaker, 77 Tex. 615, and authorities cited."

"Under the first assignment of error, appellant presents the proposition that the judgment in the case of Wooters, Administrator, v. Unknown Heirs of Seaton, is void, on the ground that the land sued for was situated in Hardin county, and the district court of Houston county had no jurisdiction. Appellant relies upon section 14 of article 1194, R. S. 1895, which is as follows: 'Suits for the recovery of lands or damages thereto, suits to remove incumbrances upon the title to land, suits to quiet the title to land, and suits to prevent or stay waste on lands, must be brought in the county in which the land or a part thereof may lie.'

"It was held in De La Vega v. League, 64 confers a mere personal privilege, which may Tex. 205, that this requirement of the statute be waived, and the judgment of the district court of some other county, whose jurisdiction has been submitted to without objection, will settle the title to the land as effectually as if suit had been brought in the county in which the land is situated. This doctrine was approved in Bonner v. Hearne, 75 Tex. 251, 12 S. W. 38, and has been repeatedly followed. State v. Snyder, 66 Tex. 695, 18 S. W. 106; Willis v. White, 29 S. W. 819; Moody v. Bank, 51 S. W. 525; Dittman v. Iselt, 52 S. W. 96.

"Not denying the authority of these decisions, appellant contends that they have no application to a suit against unknown heirs, cited by publication. In reply to this contention, appellee cites Railroad Co. v. De Berry, 34 Tex. Civ. App. 180, 78 S. W. 737, as conclusive against it. In that case the same judgment as in this was under discussion, but the matter in controversy was one of the land certificates covered by the judgment. None of the cases cited by appellee nor any case we have been able to find, decide the precise question presented. We are of the opinion, however, that the general rule an

nounced by the authorities, and above stated, I recovered in any county other than where the applies to this case. The presumption is that the court obeyed the plain command of the statute, and appointed an attorney ad litem to represent the defendants, and they are bound by his waiver of objections to the venue. The assignment must be overruled."

In the case just quoted the Supreme Court denied a writ of error. An inspection of the application shows that the very questions discussed in the quotation just above set out were presented to the Supreme Court. In that case we think the refusal of the writ involved an approval of Judge Reese's said holding. Therefore we hold that the trial court should have admitted the Hardin county judgment in evidence. The judgment may be of great importance. If the jury should find that the deed from Coote to Cahal was a forgery, then the Kelloggs, under the Hardin county judgment, would still be entitled to recover the land in suit, even though the jury found that the deed from Kellogg to Coote was valid. This is true, since the Hardin county judgment was against the heirs of Coote.

land involved in such suit is located, and that such a statute cannot be waived by an attorney appointed by the court. This law could work no real hardship upon any one, and we respectfully recommend its passage by the Legislature of this state.

If the certificate of the district clerk of Hardin county in the case at bar is true, then the statutes protecting unknown heirs were not followed in any material respect and the heirs of Coote were deprived of their land, not only without due process of law, but apparently without any effort on the part of their attorney to investigate the records of San Augustine county before trial in Hardin county to see whether or not his clients had any title to this land. The difference in effectiveness of the work of counsel employed by the parties themselves and those appointed by the court in many cases is illustrated by what has happened in this very case. In the case at bar the Coote title prevailed against the claim of the very Kellogg heirs who recovered judgment against the Coote title in Hardin county. And yet these Coote heirs are powerless to retrieve their loss in Hardin county except by a direct attack upon the judgment within four years after they should have discovered the fraud, if any. This is, of course, a rather adequate remedy. But it involves tedious litigation and the difficult task of convicting citizens of fraud, sued frequently in their home county. Such a conviction could be had in most cases, we imagine, where the facts prove to be in line with the objections urged by counsel for Chapman against this Hardin county judgment. Still, as already stated, we would be glad to see the Legislature lessen the opportunity for fraud by absolutely requiring suits against unknown heirs to be brought where the land is situated, and forbidding any attorney appointed by the court to waive this provision.

[11] We realize, of course, that it has always been the theory of our courts that an attorney appointed by a court in a distant county to represent unknown heirs apparently entitled to land in another portion of the state will work for his unknown client with all the zeal he would exert in behalf of a known client who pays him adequately for his services and is on hand to demand efficient service. It may be this theory has been justified in the main. But, aside from this feature, it is unquestionably true that the chief aim of the law is to bring notice home to all defendants, in person, of the pendency of a suit against them, wherever possible. This is true in service by publication. Our Legislature realized that this notice would more readily and likely reach the eyes of some one interested in land if the same be published in the county where such land is located. Therefore the law expressly requires that citations by publication to unknown heirs must be published in the coun- Therefore we recommend that the judgty where the land is situated. The Legisla- ments of the district court and Court of Civil ture knew, of course, that these unknown Appeals be reversed, and the cause remandheirs would more likely live near their prop-ed to the former for another trial not inerty than elsewhere. And, if that be not consistent herewith. true, then the notice would be read by others who might bring notice of the suit to the ears of the unknown heirs whom they know and of whose present residence they are advised. We think the most effective remedy against fraud would be to have a statute providing that a judgment against unknown heirs cited by publication shall be absolutely void if

We believe what we have already said disposes of all assignments which will likely arise on another trial and which could involve any difficulty.

CURETON, C. J. The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.

We approve the holding of the Commission of Appeals on the question discussed in its opinion.

Tex.)

(252 S.W.)

161

check, and the cashier promised to attend to it, HEWITT v. FIRST NAT. BANK OF SAN whereby the depositor took no further steps to

ANGELO. (No. 392-3599.)

protect his money, but the check was paid be-
fore the cashier arrived at the bank on Monday,

(Commission of Appeals of Texas, Section B. the bank was liable for the money so paid, June 6, 1923.)

1. Banks and banking 119-Deposit creates relation of debtor and creditor.

When money is deposited in a bank, the relation of debtor and creditor is created.

notwithstanding it was a custom of the bank to
open before the usual banking hours, since the
cashier, knowing of such custom, should have
been at the bank when its doors were unlocked,

Certified Questions from Court of Civil Ap

2. Assignments ~49-Check is not assignment peals of Third Supreme Judicial District. until accepted and paid.

A check drawn on a bank is not an assignment of any part of the fund against which it is drawn until it is presented and accepted as paid.

3. Banks and banking

139-Bank which pays check after notice to contrary is liable. Where a bank, after being notified by a depositor of stoppage of payment, pays a check, it is liable.

4. Banks and banking

102-Cashier is us

ually chief executive officer. The cashier of a bank is usually its chief executive officer, and in the scope of his official duty he is the bank. 5. Banks and banking

116(3)-Knowledge of cashier that drawer of check desired it not to be paid is knowledge of bank.

A bank cashier's knowledge that the drawer of a check desired that it be not paid was the knowledge of the bank. 6. Banks and banking

116(3)-Notice to cashier, at other than bank's place of business, of stoppage of payment of check, imputable to bank.

Where a depositor notified the cashier of a bank, when the cashier was not at the bank, of depositor's desire to stop payment on a check, and the cashier agreed to attend to the matter, such notice is imputable to the bank, and where payment was made the bank is liable. 7. Banks and banking 116(3)-Notice to cashier of bank, after banking hours, to stop payment of check, is notice to the bank.

Action by T. E. Hewitt against the First National Bank of San Angelo. Judgment for defendant was reversed by the Court of Civil Appeals, a rehearing granted, and question Question certified to the Supreme Court. answered.

Anderson & Upton, of San Angelo, for appellant.

Hill & Hill, of San Angelo, for appellee.

POWELL, J. This cause is before the Supreme Court upon the following certificate from the Honorable Court of Civil Appeals of the Third District:

"This suit was brought by appellant to recover from the appellee the sum of $700, paid by appellee upon a check given by appellant, the payment of which appellant had attempted to stop by notifying the cashier of appellee, by 'phone at his residence, on Sunday, not to pay the same.

"The case was tried in the court below without Upon appeal to a jury, and judgment was rendered for the defendant, appellee herein. this court, we reversed the judgment of the trial court, and rendered judgment for appellant. A certified copy of our opinion herein accompanies this certificate, to which reference is here made. This cause is now pending in this "The undisputed facts are: court upon motion for rehearing.

"(1) The appellee is a national bank, and its place of business is fixed by its by-laws at 102 South Chadbourne street, San Angelo, Tex., where it has its banking house.

Where the cashier of a bank was notified "(2) Its hours of business, as fixed by its byby depositor that depositor desired to stop payment on a check and the cashier agreed to at-laws, are from 9 a. m. to 3 p. m., but it has tend to the matter, such notice was notice to been its custom for many years, as is the the bank, though the notice was given after custom of all other banks in San Angelo, to unbanking hours, for it related to banking busi-lock its doors at 8 a. m., and, while the doors

ness.

8. Sunday 9-Notice of stoppage of payment of check valid where given on Sunday.

Notwithstanding it is unlawful, under Rev. St. 1911, art. 4606, and Pen. Code 1911, art. 299, to labor on Sunday, the day being a legal holiday, notice by a depositor on Sunday to the cashier of a bank of stoppage of payment on a check is valid; the cashier being requested to act on the following day.

9. Banks and banking 139-Bank liable for cashier's failure to act in time on notice to stop payment of check presented before banking hours,

are not open, deposits will be received and
checks paid from and after that hour, when

customers enter the bank and so demand.
customer of the bank.
"(3) Appellant was a
He lived in an adjoining county, and is not
shown to have had actual knowledge of this

custom of the bank.

"(4) Appellant had on deposit with appellee, on Saturday, May 19, 1917, an amount in excess of $700. On that night he drew a check in favor of Luke Robinson for $700, and delivered same to Robinson.

"(5) At this time C. H. Powell was, and for a long time prior thereto had been, the cashier of appellee, having the general management of Where a depositor notified the cashier of the affairs of the bank and full control over the bank by telephone on Sunday not to pay a l all of its employees.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 252 S.W.-11