upon the inquiries provided for in said section shall be completed and published within such period." Section 4388aa.

Provision is made for the appointment of an Assistant Director and other officers during the decennial census period; in other words, to establish a census office. Sections 915-919. In so far as we are able to ascer

"In counties having a population of sixteen shall be composed of seven members, * thousand inhabitants or less, the grand jury such population shall be determined by the last preceding national or state census."

have been official. This information appears to have been given to leading papers of the state. Under the law this information could have been obtained in no other way than through the Director's official act, without violating the law and subjecting the parties to a charge of felony. We think the case of Nelson v. Edwards, 55 Tex. 389, indicates, when the enumerators' list is filed, as requirtain, except as above noted, the act of Marched by the law, as it then existed, this made 3, 1919, does not otherwise provide for pub- it such evidence as that public officials could lishing or rather point out the manner of and should act upon it. There was no other publishing the census, or giving it to the method provided or shown requiring a procpublic. Under the act of March 6, 1902, the lamation placing the census in effect. The census printing office was abolished and the case of the State v. Braskamp, 87 Iowa, 588, equipment was to be turned over to the pub- 54 N. W. 532, is regarded by us as of value lic printer, "and the Director of the Census on the question here at issue. Code of Iowa, is hereby authorized and directed to have § 231, provided: printed, published, and distributed, from time to time, bulletins and reports of the preliminary and other results of the various investigations authorized by law; and all of said printing and binding shall be done by the public printer of the government printing office." Volume 5, U. S. Comp. Stats. 1916, § 4414. This section does not seem to have been repealed by the act of 1919, which latter act practically repeals and supersedes the act of 1909. It would seem by the act of 1902 duties were imposed upon the Director to publish and distribute bulletins and reports of the preliminary and other results of the various investigations authorized by law. This, in so far as we can ascertain, is the only method to inform the public and of giving it access to the information ascertained and compiled by the enumerators and supervisors. It would seem when bulletin is so published and distributed it then becomes an official pronouncement under the law, of which the public and all officials may take notice. The law under which the census of 1920 was taken is different in some respects from the law in force under which the case of Childers v. Duvall, 69 Ark. 336, 63 S. W. 802, was decided. It will be seen that the opinion in that case rests upon the proposition that the law un-state census of 1885. The last census preceding der which the census of 1900 was taken, as related to the population of the county, was not ready to be officially promulgated, and until the law authorized the announcement of the enumerators as the census no official notice of it as such could be taken. The bul-edge among the people of the county before any letin in that case was not published until after the election, and after the election and after the issue of the bulletin the Governor made an appointment of Duvall, who was held to be entitled to the office over Childers, who had been elected at the general election, on the ground that there was no official announcement of the census prior to that time. In this case the undisputed facts show the Census Bureau, under the signature of its Director, issued a bulletin showing before the election the population of Lubbock county to be 11,096. This seems to

We quote from that case the following: "While appellants concede that according to the federal census, 1890, the grand jury was properly composed of seven members, their contention is that that census had not been officially announced at the time of the organization of the grand jury, in January, 1891, and that therefore the state census of 1885 should have controlled as to the number of grand jurors. The federal census of 1890 was provided for in chapter 319, p. 653, Supplement to 1 Rev. Stat. U. S. (2d Ed., 1874-91). That act does not provide any time at which the taking of the census shall be deemed complete, nor for any official announcement of the census. Section 23 provides that upon request of any municipal government the Superintendent of Census shall furnish said government with a copy of the names, age, sex, birthplace, and color or race of all persons enumerated within the territory in the jurisdiction of such municipality. Appellants insist that the officers and court selecting the grand jury could not take judicial notice of the federal census until it was lection should have been upon the basis of the officially announced, and that therefore the se

the selection of persons from whom to draw jurors for 1891 was the national census taken in the month of June, 1890. The population of Sioux county, as shown by that census, was a matter of public notoriety and of common knowl

action was taken for the selection of persons from whom to draw jurors for 1891, and some 15 months before the defendants were indicted. It is a familiar rule *** that facts of universal notoriety need not be proven. 'Courts will take notice of whatever is generally known within the limits of their jurisdiction; and, if the judge's memory is at fault, he may refresh it by resorting to any means for that purpose which he may deem safe and proper.' Brown v. Piper, 91 U. S. 42; People v. Williams, 64 Cal. 87, 27 Pac. 939. It is held that the courts can take judicial knowledge of the result of the national census. See, also, Whart. Ev. § 338; O'Ferrall v. Davis, 1 Iowa, 560; State v.

(232 S.W.)

Minnick, 15 Iowa, 123; Threshing Machine Co. v. Haven, 65 Iowa, 359, 21 N. W. 677. Under our law the county auditor, clerk of the court, and the court are required to act upon the basis of the population of the county as shown by the last preceding census, in selecting jurors. There is no provision for proving to them what the last preceding census shows to be the population of the county. Clearly the law contemplated that they shall take official notice of the fact. There is no evidence in the record to show what the population of the county was according to the census of 1888; but appellants-properly, we think-asked the court to take judicial notice of what it was. For the same reason we may surely take notice of what the population was as shown by the census of 1890. By doing so appellants were given a grand jury composed of seven members as authorized and required by the Code. Had the acts of Congress fixed the time or prescribed a condition upon which the census of 1890 should be deemed complete or in effect, the census of 1885 would have been the last preceding until that time. In the absence of such a provision the census of 1890 became the last preceding census, for the purpose of the selection of jurors, as soon as the popu lation of the county was ascertained therefrom."

The bulletin does not indicate that it was incomplete or negligently done, but rather indicates it may be subject to correction. It does not carry the idea that it was incomplete, but that it was complete. We think, when the bulletin was given to the public, officials who were required to act with reference thereto may take official notice that the enumeration had been made and was then in the archives of that office, subject to the inspection of the public in which the population of Lubbock county had been determined. The fact that it may be corrected does not indicate that the census was not complete and then a public document under the law. We believe the election officers of Lubbock county were acting within the law when they ordered the election for tax collector and declared appellee elected to that

office.

We therefore affirm the judgment of the trial court.

NATIONAL LIBERTY INS. CO. v. KELLY. (No. 2432.)

See State v. Marion County, 128 Mo. 427, 30 S. W. 103, 31 S. W. 23; 23 C. J. p. 161, (Court of Civil Appeals of Texas. Texarkana,

and cases cited in note.

The decennial census period required that reports shall be made within that period, and not at the end of that period. Under the act of 1902 the Director is directed to publish and distribute from time to time bulletins and reports of the result. It must be done within the three years, but when published and distributed it is an official act upon which officers and others may rely. The bulletin was issued before the election, showing the number of inhabitants in Lubbock county, which the Constitution declared required a collector.

Insurance

June 2, 1921.)

145(1)-Insurer held not liable

on its fourth policy on goods where its agent was not advised that they had been removed to a place requiring a higher rate.

Where, when defendant company issued its fourth insurance policy on plaintiff's cotton, its agent did not know that the cotton had been removed to the compress, and wrote the policy at a lesser rate than he would if he had so known, and the plaintiff, without reading it, put it away among his papers, and the cotton was destroyed, it was error to render a judgment against the defendant for the insurance, for, on renewal, the insurer may assume that the subject-matter and its location are as described in the former contract, and insured could not excuse his failure to notify the insurer of the change of location on the ground that he did not know a change of locations' affected the looked by a person of ordinary prudence. risk, as that is matter too obvious to be over

Error from Cherokee County Court; C. F. Gibson, Judge.

[5] It is insisted that the Director of Census gave a certificate to the effect that the count for the census was subject to correction. If this certificate was authorized by the act, we do not believe it should be held that this evidenced that the census was not complete under the terms of the law when the Director had officially published and distributed bulletins that the population was over 10,000. It is not a certificate that the official count was incomplete or was not correct. In fact, his subsequent certificate shows it was correct, and that his bulletin had been properly issued. The bulletin, we believe, officially announced the population as shown by the list forwarded by the enumerators of Lubbock county and supervisors of the district, and that as filed in the archives of the census office it was open to the public. The statute authorized, if there was HODGES, J. This appeal is from a judgan incomplete or erroneous enumeration, ment in favor of the defendant in error for that it could be amended or taken anew. the sum of $500 as the value of five bales of

Action by C. R. Kelly against the National Liberty Insurance Company. Judgment for Replaintiff, and defendant brings error. versed and rendered for the defendant. Perkins & Perkins, of Rusk, and Will C. Thompson, of Dallas, for plaintiff in error. W. E. Donley, of Jacksonville, and Guinn & Guinn, of Rusk, for defendant in error.

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

cotton destroyed by fire. The defense is that [agreements, must be enforced according to the cotton was insured while in the Wade their terms. The judgment will therefore be Neely warehouse in the city of Jacksonville, reversed, and judgment here rendered in fabut when burned it was at the compress in vor of the plaintiff in error. that city.

(No. 6582.)

It appears from the evidence that four successive insurance policies had been written on this cotton, beginning October 10, 1918. While the third policy was in force, the de- DE GUERRA et al. v. DE GONZALEZ et al. fendant in error, without notice to the agents of the plaintiff in error, removed the cotton to the compress. When the third policy expired the agent of the plaintiff in error was instructed by the defendant in error to renew the insurance for one year. The agent, not knowing that the cotton had been moved

to the compress, wrote a policy insuring the cotton while in the Wade Neely warehouse, and charged a premium for that risk, which was 50 cents on the $100-less than the rate charged for cotton stored at the compress. The policy was mailed to and received by the defendant in error, who, without reading it, put it away among his papers. Upon that state of facts the trial court rendered a judgment for the amount of the policy. We think that was error.

(Court of Civil Appeals of Texas. San Anto-
nio. June 8, 1921. Rehearing De-
nied June 24, 1921.)

1. Deeds

42-Description sufficient, if true location of land may be ascertained thereby. veyance is sufficient, if by it the true location A description of land in a judgment or conof the land may be ascertained, and if it contains an erroneous or false call or designation or description, or other detail, and by omitting or disregarding such there remains sufficient description by which the land may yet be identified and located, the judgment or conveyance is effective.

2. Mortgages 494 Description locating land on the ground held sufficient, although part of it erroneously recited to be in named county.

Where a foreclosure judgment described the land to be sold with certainty, but recited that it was all situated wholly or partly in one county, whereas in fact, after a division of county, the description was nevertheless good. counties, certain tracts were wholly in another 3. Mortgages 502-Clerk of county district court held not authorized to issue order of sale in foreclosure, requiring sheriff of one county to sell lands in still another county.

1914, arts. 2000, 3727, the clerk of a county disIn view of Vernon's Sayles' Ann. Civ. St. trict court was without authority to issue an order of sale in foreclosure, requiring the sheriff of another county to sell lands lying in still another county.

The situation might have been different had this contract of insurance been an original instead of a renewal policy. In writing an original contract of insurance it is the duty of the insurer to ascertain the location of the subject-matter of insurance and to correctly state that location in the contract. But, when the insurer has correctly described the location of the property in one written contract of insurance, and is directed to renew the insurance without any further instructions except as to the length of time the policy is to run, he has the right to assume that the subject-matter of the insurance and its location are the same as described in the former contract. Orient Ins. Co. v. Wingfield, 49 Tex. Civ. App. 202, 108 S. W. 788. The excuse given by the defendant in error for failing to inform the agent that the cotton had been removed to the compress is Under Vernon's Sayles' Ann. Civ. St. 1914, that he did not know a change of location art. 3727, providing that an order for sale unaffected the risk or the rate of insurance. der foreclosure may be issued to a county That the fire risk of personal property like where the property or some part thereof is sitcotton is determined principally by the char- uated, the sheriff of a named county held enacter and location of the building in which it titled to make sale of tracts of land, part of is stored is too obvious to be overlooked by a which only were within the county after readperson of ordinary prudence. If the defend- execution of the mortgage, but was not authordefend-justment of the county lines subsequent to the ant in error had made even a casual exam- ized to sell lands lying wholly in the new ination of his policy he would have discov-county. ered the conditions upon which his insurance

4. Mortgages 507-Sheriff's authority as to foreclosure sale of lands lying within and without county after division stated.

was written. It may be true that the plain- 5. Trespass to try title 32-Offer of reimbursement held condition precedent to recovtiff in error would have readily insured the ery. cotton at the compress, requiring only the payment of a small additional premium. But that fact is not decisive of this case. It is sufficient answer to say that it did not make that kind of a contract.

a foreclosure sale was invalid, because part of In trespass to try title, under a claim that the lands were improperly described as being in a named county, it was necessary for plaintiffs to plead a willingness to make reimburse

Insurance contracts, like other written ment.

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

(232 8.W.)

6. Appeal and error
necessary to permit plaintiff to amend.

1177(1)—Remand held pleaded Laborde, who answered, setting up his notes and liens, and prayed for judgment and foreclosure, giving the same description of the lands as were given in his deed of trust, which was the same as in the Luby deed of trust and petition, except as to one tract not included in the Luby transaction. Laborde further alleged that some of the lands were "perhaps" embraced in Jim Hogg county. Costerveen intervened, setting up his judgment lien. In this atti

Where plaintiff in trespass to try title should not have been permitted to recover without offering to reimburse defendant, who claimed under mortgage foreclosure, the court on appeal will not render judgment for defendant, but will remand, that plaintiff have opportunity to amend and the court to adjust the equities. 7. Mines and minerals 81minerals 81 - Lessee held charged with notice of defect in record title

of lessor.

In trespass to try title, wherein an oil company intervened as an innocent purchaser for value without notice, held, that the oil company was charged with notice of proceedings under which its lessor obtained title on foreclosure, and of any invalidity in the order of sale therein.

tude the cause came on for trial. Gonzalez defaulted, but the trial proceeded, resulting in a judgment for Luby, Laborde, and Costerveen for the amounts of their respective debts, aggregating $62,934.85, plus $85 costs, and for foreclosure of their respective liens, and directing order of sale to issue "as provided by law." In this judgment the lands

Appeal from District Court, Jim Hogg were described in detail as in the deeds of County; Hood Boone, Judge.

trust and pleadings of the parties. There was no appeal from this judgment.

In due course the district clerk of Duval

Action by Manuela Barrera de Gonzalez and others against Virginia Cox de Guerra and others in trespass to try title. Judg-county issued an order of sale, directed to ment for plaintiffs, and defendants appeal. the sheriff of Starr county, requiring him to sell all the lands, which were again deReversed and remanded. scribed in detail as in the deeds of trust,

James B. Wells, of Brownsville, and T. C. Mann, of Laredo, for appellants.

B. A. Greathouse and Don A. Bliss, both of San Antonio, for appellees.

pleadings of the parties, and judgment of the court, and their location given as in Starr county. In pursuance of this order the sheriff of Starr county advertised and

sold all the lands to appellants on April 3, 1917, for the exact amount of the judgment, $62,934.85, plus $85 costs, and the proceeds of the sale were applied to the payment of the Luby, Laborde, and Costerveen debts and the satisfaction of their liens in full. On the same day the sheriff executed the usual sheriff's deed, conveying the lands to appellants, describing them again in detail as they had been described in the deeds of trust, pleadings of the parties, judgment of the court, and order of sale, still giving their location as in Starr county. Thereupon appellants went into possession of the lands, and have been in possession ever since. Since then appellants have paid $2,600 taxes accruing against the land, and have placed improvements thereon of the value of $350.

SMITH, J. In 1908 Jesus Guerra Gonzalez was the owner of about 25,000 acres of land situated in Starr county. In November of that year he incumbered the land with a deed of trust to secure his note to Mary J. Luby for $23.000, and in 1910 further incumbered it with a deed of trust to secure his note to Francisco Laborde for $10,000. In 1915 he executed a third deed of trust to secure the payment of a second note to Laborde for $1,807.27; also in 1915 one A. Costerveen secured a judgment against Gonzalez in the county court of Starr county for $712.87 and $11.50 costs, and abstract thereof was filed in said county, by which the judgment lien was fixed against the lands mentioned. As will be seen, Luby held the first lien, Laborde the second, and Costerveen the third. After the execution of the deeds of trust, and before foreclosure, the new county of Jim Hogg was created out of Starr county, and in this way some of said tracts of land were cutter, as survivor, and their children, as heirs off, either wholly or in part, into the newly created county.

On August 18, 1916, Mary J. Luby brought suit in Duval county, where the Luby note was made payable, to recover the amount of her note and foreclose the deed of trust lien to secure the same. In her petition she described the lands in detail as they were described in her deed of trust, but alleging in general terms that some of them were embraced in the new county. She im

Jesus Guerra Gonzalez, who owned the lands in community with Manuela Barrera de Gonzalez, his wife, died intestate on January 28, 1920, and on April 16, 1920, the lat

at law of Jesus and Manuela, brought this
suit in the form of trespass to try title
against appellants, to recover title and pos-
session of such tracts of the described lands
as were situated wholly or partly in Jim
Hogg county, and for rents for the use there-
of. The Texas Company was impleaded as
a party defendant, as the holder of an oil
and gas lease on all the lands; this lease
having been made to that company by appel-
lants Guerra.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
232 S.W.-57