Tex.) 10. VENDOR AND PURCHASER CENT PURCHASER. JOHNSON v. JOHNSON 203 236-INNO- | pleadings nor the evidence disclosed any fact that would make the defendant, Mrs. T. K. Johnson, liable to R. C. Johnson on account of the fund referred to. There was no proof that any of that fund was used in paying for the land, and nothing was alleged or proved that would show that Mrs. T. K. Johnson was liable for that fund, even if her husband misapplied it. First wife of decedent claiming land in trespass to try title in the right of her son against the second wife held not a bona fide purchaser in good faith, having notice when she purchased her son's interest of the second wife's claim, and not having paid valuable considera tion. Appeal from District Court, McLennan County; H. M. Richey, Special Judge. Action by R. C. Johnson against Mrs. T. K. Johnson, wherein J. M. Bird and another became plaintiffs. From judgment that plaintiffs take nothing, and for defendant, plaintiff's appeal. Affirmed. Jas. E. Yeager, of Waco, for appellants. KEY, C. J. On November 23, 1915, R. C. Johnson filed his original petition in trespass to try title against Mrs. T. K. Johnson, a feme sole, in which he sought to recover an undivided one-half interest in a certain lot in the town of Mart. In an amended petition, in addition to the lot referred to, a half interest in he sought to recover certain personal property, and alleged that all the property referred to was community property of his father, T. K. Johnson, deceased, and his stepmother, Mrs. T. K. Johnson, the defendant. The proof shows that T. K. Johnson was married twice; that in 1898 he and his first wife were divorced, and a few months thereafter he married his second wife, the defendant in this case. The plaintiff R. C. Johnson was born during the first marriage, and claimed a half interest in the property which was acquired during the second marriage. T. K. Johnson died in June, 1915, and the plaintiff is his only child. On May 17, 1917, the defendant filed her third amended answer, alleging that the real estate in question was her separate property, and, if not, that it was her homestead, and not subject to partition. On May 21, 1917, she filed a supplemental answer, denying the allegations in the plaintiffs' amended petition, wherein it was alleged that Mrs. Bird was an innocent purchaser without notice. On May 23, 1917, plaintiffs filed a supplemental petition, containing certain exceptions, denying facts pleaded by the defendant, and pleading laches and limitation against the defendant's cross-action, wherein she sought to have her deed corrected and cloud removed from her title. There was a jury trial, wherein, in response to special issues submitted by the court, the jury found that the property in question was the separate property of the defendant at the time of the death of her husband, T. K. Johnson. The jury also found that at that time it was the homestead of the defendant and her husband, T. K. Johnson, and also that it was the homestead of the defendant at the time this suit was commenced. In addition to the verdict, the trial judge made findings which were incorporated in the judgment to the effect that the plaintiff Mrs. Bird was not an innocent purchaser of the lot in controversy; that the same was the separate property of the defendant, and constitutes her homestead; and that her deceased husband, T. K. Johnson, left no community or separate property. And thereupon judgment was rendered to the effect that the plaintiffs take nothing by their suit, and that the defendant, Mrs. T. K. Johnson, recover the lot or real estate in controversy; and from that judgment the plaintiffs have appealed. In December, 1915, the defendant filed an answer, consisting of a general denial and plea of not guilty. After the divorce referred to, the plaintiff's mother married J. M. Bird; and on September 18, 1916, the plaintiff executed a general warranty deed, conveying all of his interest in the tract of land involved in the litigation to his mother, Mrs. J. M. Bird; and on May 9, 1917, he and Mrs. Bird, joined pro forma by her husband, filed an amended petition, setting up the fact that the plaintiff, R. C. Johnson, had conveyed his interest in the land to Mrs. Bird, and alleging that he disclaimed any further title or right thereto, and thereafter Mrs. Bird became the plaintiff, in so far as the land was concerned. That petition also [2-4] The real estate in question was deedattempted to set up the right in R. C. Johnson to recover on the ground that a certain ed to the defendant, Mrs. T. K. Johnson; sum of money had been placed in the hands and therefore, although she was at that time of his father, T. K. Johnson, as a trust fund a married woman, the legal title to the propfor R. C. Johnson's benefit, but neither theerty was vested in her; and the court ruled [1] Although appellants' brief has not been prepared in accordance with the rules, inasmuch as it does not contain all that is necessary to enable the court to decide some questions sought to be presented, nevertheless we have examined the record, including the statement of facts, and have reached the conclusion that no reversible error appears. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [10] As to the question of innocent purchaser, we are of the opinion that the testimony was not such as entitled appellants to have that issue submitted to the jury. Mrs. Bird correctly when it held that she had the right | property, our conclusion is that the case to introduce testimony tending to show that should not be reversed. her husband caused the deed to be made to her, because he intended it as a gift, which would make it her separate property, although the deed did not state upon its face that the title was vested in her as her sep-bought the property while it was in litigaarate property. Patty v. Middleton, 82 Tex. 586, 17 S. W. 909. tion. She not only had constructive notice of the fact that the defendant was claiming [5-7] While it is true that the defendant the property, but the undisputed proof shows pleaded that the scribner who prepared the that she had actual knowledge of the pendeed neglected to use the words "separate dency of the suit, and had been assisting her estate," it was not necessary to so plead, as son in its prosecution. Before she purchased testimony of that kind was admissible un- her son's claim to the property, the defendder the general denial and plea of not guilty.ant had filed an answer denying that he had At any rate, under the pleadings the defend- any interest therein. The facts referred to ant had the right to show that the deed constitute sufficient notice to prevent Mrs. which was made to her was intended for her Bird from being a bona fide purchaser in separate use and benefit, and vested in her good faith; but, in addition to that, the testhe superior right, which proof could be timony fails to show that she paid what is made by showing that the consideration used deemed in law a valuable consideration. in paying for the property was her separate estate, or that her husband had the deed made to her, intending thereby to make a gift. By the judgment rendered, the court did not attempt to reform the deed; and therefore it was not necessary that the grantors should have been made parties to the suit. The defendant submitted testimony tending to support the verdict in her favor on all of the issues submitted to the jury; SAN ANTONIO & A. P. RY. CO. v. DUNN. and we are not prepared to say that the jury's finding is so contrary to the testimony as would justify this court in setting the (Court of Civil Appeals of Texas. San Antonio. Dec. 18, 1918.) verdict aside. The testimony did not raise the question of estoppel; and therefore we decide against appellants on that point. Our conclusion is that the judgment should be affirmed; and it is so ordered. (No. 6121.) BURDEN OF PROOF. To recover from a railroad for killing cattle at a crossing which could not be fenced, it devolved on plaintiff to show negligence on the part of the railroad. 2. RAILROADS 419(5)-KILLING CATTLE— Some questions have been presented as to 1. RAILROADS 411(5)-KILLING CATTLErulings upon the admissibility of testimony which we have considered, and they are decided against appellants. Error has also been assigned because of the refusal of certain requested instructions, but we hold that reversible error is not shown in that regard. [8, 9] If the property is the defendant's homestead, it is not subject to partition, even It was not the duty of a railroad's engineer if it be community property, in which event to slow his train down when already running Mrs. Bird would be the owner of an undi- at a fairly slow rate because he saw cattle evivided half interest, subject to the defend-dencing no nervousness or excitement standing ant's right to use the property as a home- 50 feet away from the track, as he could not stead. Therefore, if the question of home-anticipate they would attempt to cross. stead had been the only defense, we might NEGLIGENCE. hold that the court erred in not submitting Appeal from Jim Wells County Court; W. to the jury appellants' requested charge upon R. Perkins, Judge. the issue of abandonment of the homestead Suit by John F. Dunn against the San Anright; but, if it be conceded that the proper-tonio & Aransas Pass Railway Company. ty was not homestead, still, if it was the sep- From judgment for plaintiff, defendant aparate property of the defendant, as found peals. Reversed and rendered. by the jury, the plaintiffs are not entitled to recover; and therefore the judgment should be affirmed. Hence we conclude that appellants are not entitled to have the case reversed, unless it appears that material error was committed upon both issues, namely, separate property and homestead right; and, as no such error has been shown upon the issue of separate Kleberg, Stayton & North, of Corpus Christi, for appellant. FLY, C. J. Appellee sued appellant in the justice's court to recover damages for three head of cattle killed and two injured by a train of appellant. In the justice's court appellee recovered judgment for $160, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes on appeal by appellant to the county court judgment was rendered for appellee for $140. The cattle were killed and injured at a public crossing when they suddenly darted across the railroad when the train was so close that it could not be stopped, although the engineer used all means in his power to stop it. The train was moving at the rate of about 18 miles an hour before the cattle were seen about 50 feet distant attempting to cross the track. When the cattle were struck, the train was going about 12 miles an hour. It was the uncontradicted testimony that the cattle, when first seen, were standing about 50 feet from the track, and when the engine was near the crossing they attempted to cross the track. The engineer, as soon as the cattle started towards the crossing, sounded the whistle and used all means in his power to stop the train, but failed and struck the cattle. L. W. Sandusky, of Colorado, Tex., for appellant. N. R. Morgan, of Seminole, for appellee. HIGGINS, J. Subsequent to the date upon which chapter 176, Acts 35th Leg. p. 388 (Vernon's Ann. Civ. St. Supp. 1918, art. 1903), became effective, appellee filed this suit in the county court of Gaines county against Earl Morrison and L. D. Rodgers upon a money demand. Morrison filed a plea of privilege to be sued in Mitchell county, where he resided.. The plea fulfills the requirements of the act above noted. Richards filed no controverting plea. Upon hearing the plea was overruled, and Morrison appeals. The plea was prima facie proof of Morrison's right to a change of venue. In the absence of a controverting plea and proof, the plea should have been sustained. See legislative act above noted. For the error in overruling same, the cause is reversed, with instructions to the lower court to make the proper venue transfer. Reversed and remanded, with instructions. [1, 2] The crossing could not be fenced, and in order to recover it devolved upon appellee to show negligence upon the part of appellant. Railway v. Leuschner, 166 S. W. 418. That was not done, and the judgment has no evidence to support it. It was not the duty of the engineer to slow the train down because he saw cattle standing 50 feet away from the track. He could not anticipate that cattle so standing, without evidencing any nervousness or excitement, would attempt to cross the track. Railway v. Morris, 63 S. W. 888; Railway v. Byrd, 58 Tex. Civ. App. 609, (Court of Civil Appeals of Texas. Amarillo. 124 S. W. 738; Irving v. Railway, 164 S. W. 910. The train was running at a low rate of speed, and the whistle blew for the crossing. 1. FIXTURES 35(3)-ISSUES OF FACT-EVIThe judgment is reversed, and judgment here rendered that appellee take nothing by his suit and pay all costs in this behalf pended both here and in the courts below. ALEXANDER et al. v. ANDERSON. (No. 1440.) DENCE. Dec. 18, 1918.) In an action for the removal of fixtures, it ex-fraud, accident, and mutual mistake in omitting was error to submit to the jury the question of reference to the fixtures from the contract of sale of the land, where there was no evidence raising such issue. MORRISON v. RICHARDS. (No. 896.) (Court of Civil Appeals of Texas. El Paso. Dec. 12, 1918.) PLEADING When a party undertakes to ascertain for himself the contents of a contract, he will be charged with its stipulations, and that fraudulent representations were made will not justify 110-PLEA OF PRIVILEGE-SUF-him in relying on them, but he will be charged with the terms of the contract. 3. BROKERS 94 AGENCY CONTRACT OF SALE. In suit on money demand filed subsequent to Acts 35th Leg. c. 176 (Vernon's Ann. Civ. St. Supp. 1918, art. 1903), plea of privilege of one defendant to be sued in county of his residence was prima facie proof of his right to change of venue, and, in absence of controverting plea and proof, plea should have been sustained. - EXECUTION OF A real estate agent who procured purchasers, took them upon land, and gave them the terms, but did not represent to them that there was a reservation of the buildings, was acting as agent for the owner and not for the purchasers, and the mere act of writing the contract did Appeal from Gaines County Court; T. O. not confer power to make a contract with difStark, Judge. ferent terms. 4. BROKERS 105-KNOWLEDGE OF Broker Suit by C. B. Richards against Earl MorAS BINDING ON PURCHASERS OF REALTY. rison and another. Plea of privilege of deThe knowledge of a real estate broker, actfendant named overruled, and he appeals. ing as agent of the owner of land, prior to exReversed and remanded, with instructions. ecution of a sales contract, as to whether cer For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 5. PRINCIPAL AND AGENT 178(1)-IMPUTED NOTICE-KNOWLEDGE OF AGENT. Notice to an agent will be imputed to the principal only where the agent acquires his knowledge in the transaction of his principal's business. tain buildings on the land sold were to be ex-sold to appellants as such; that on the date cepted, does not bind the purchasers. of the contract Anderson executed to appellants a deed to the land, which was subsequently delivered to them; that they had no notice that the house and fence were subject to removal or that he did not own the same, but that appellee removed the house and fence, or caused the same to be done, BACK-RIGHTS thereby breaching his contract, for which act he was liable for the damages sued for. Appellee, after general and special exceptions, and general denial, pleaded in answer: 6. DEEDS 108-RELATION OF PARTIES. A deed, when executed, relates back to the date of the contract of sale of the realty and ,fixes the right of the parties as of that date. 7. FIXTURES 21-CONVEYANCE. A conveyance of land by deed containing no reservation of fixtures passes title thereto to the purchaser, regardless of a verbal sale or disposition of such fixtures. 8. EVIDENCE 413-WITNESSES IMPEACHMENT-PAROL EVIDENCE. That there was a contract of sale entered into by appellee and appellants, through their agent, J. W. Fawver, "that by fraud, accident, or mistake the improvements sued for were not mentioned in said contract, but said improvements were fully reserved by this defendant at the time he listed said land with the then firm of 379(2)- Fawver & Seale, a firm composed of J. W. Fawver and J. A. Seale, and was fully understood and reserved and was not noticed until after the contract was executed, and when plaintiff came out to close the deal the matter of improvements sued for was fully discussed, and plaintiffs and J. W. Fawver and this defendant went out and went over the land for the purpose of seeing and investigating just what improvements did not belong to said land, as it had been explained to them on the day they first went to look at the land before any contract was ever In a purchaser's action against the seller of land for removing fixtures, evidence that the seller's agent, after the contract and deed had been executed, stated that the fixtures did not belong to the land, etc., could not affect the deed and contract and was not admissible as impeaching the agent's testimony that there was no reservation by the owner when the land was listed. Appeal from Floyd County Court; W. B. made for the sale of the land." Clark, Judge. Action by C. A. Alexander and another against T. F. Anderson. Judgment for defendant, and plaintiffs appeal. Reversed and remanded. Kenneth Bain and A. P. McKinnon, both of Floydada, for appellants. T. F. Houghton and B. B. Greenwood, both of Floydada, for appellee. HUFF, C. J. This suit originated in the justice court, and upon appeal is brought to this court. The appellants, C. A. Alexander and Fred Dickert, sued appellee, T. F. Anderson, for damages, originally joining H. F. Casebeer, but subsequently dismissed him from the suit. The cause of action alleged is that appellants owned a section of land on which was a certain house, also 25 cedar posts, and 264 feet of lumber built into the fence adjoining the house on the premises; that appellee entered upon the premises on or about the 20th day of September, 1917, and without the consent of appellants removed therefrom the house and fence and converted the same to his use and benefit, setting out that the total value of the property so taken was $150, giving the items. Appellants also allege that on the 15th day of June, 1916, they entered into a contract with appellee Anderson, for the purchase of said section of land, at which time the house and fence were on the premises as fixtures, and The court instructed the jury to find for appellants if there was no fraud, accident, or mistake in the execution of the contract, but if the appellee reserved the improvements in the deed before the execution of the contract, and if it was not binding upon appellee, then to find for him. This was the only issue submitted by the court. The facts show that on the 15th day of December, 1916, appellants entered into a written contract with appellee for the purchase of the land and premises in question. There was no mention made of the improvements here in question in the written contract, and no mention of them further than the agreement to convey the land and premises by good and sufficient deed, together with an abstract showing a good, merchantable title. The contract was signed by appellee and by Alexander & Dickert, by J. W. Fawver. A deed appears to have been delivered to appellants for the land some two weeks after the contract was executed. This deed is not in evidence or its terms shown. There appears to be no contention that there was a reservation of the improvements in the deed. At the time of negotiating for the land, the appellants lived in Hill county and went to Floyd county, where this land is situated. Fawver and his firm had the land listed with them by appellee, Anderson, for sale. They procured the appellants as purchasers of the land and took them on the land to show it to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes quested that they go out on the land and see just what the improvements were, and that they did go, and that he showed them the improvements, and that they said this was all right, and that they would go back and close up. This is denied by the appellants. They claim that they relied on the contract and did not agree to the reservation and did not go to the land for the purpose of discussing the improvements, as above stated. The first assignment will be overruled. We think there was no error in refusing to consider the exception to the answer of the appellee, filed and presented after the pleadings had been read to the jury; at least, no such error as to require a reversal of the case under the pleadings and circumstances immediately surrounding the ruling of the court thereon. them. Both he and the appellants testify to go with the place, and that appellants rethat he did not tell appellants that the improvements did not go with the land. Fawver testified, at the time of stating the terms of the sale to appellants, he did not know the improvements did not go with the land, and there was no such reservation mentioned to him by appellee in listing the land for sale. The appellants, after looking at the land, returned to Hill county, and after reaching there wired the agent, Fawver, that they would take the land on the terms stated to them by the agent, and that he could draw up the contract on such terms and sign their names thereto. The contract was so drawn and signed, and appellants put up $1,000 as forfeit, which was to be applied on the cash consideration. In about two weeks after the contract was executed, they returned to Floyd county, paid the balance of the cash consideration, $8,000, and executed four notes for $960 each, for the deferred payment, and assumed about $4,000 due on the land to a third party. Both appellants testify that, when they went to Floyd county to conclude the matter, they then learned for the first time that appellee claimed the improvements did not go with the land and that he so stated to them. They both testify they did not reply to his statement, but considered that they had a contract for the improvements, duly executed, and that they had placed up a $1,000 forfeit. Anderson swears the improvements in question did not belong to him and that he so told Fawver, the agent, with whom he listed the land, and instructed him to reserve them in the trade. His two sons corroborate him in this statement, claiming to have been present when their father so instructed the agent. One of the sons also testified that, when appellants were first on the land to look at it, they asked him what improvements went with the land, and that he then told them the improvements in question did not belong to the land. The facts [1-4] Assignments 3, 4, and 5 assail the action of the court in submitting to the jury the question of fraud, accident, and mutual mistake in executing the contract, for the reason it is asserted there was no evidence raising such issue. In this we think appellants are correct. There was no reservation in the contract. There is no fraud shown which induced the appellee to sign the conHe shows by his testimony tract or deed. that he did not rely upon the representations of Fawver that the contract contained such reservation, but, on the contrary, he read the contract for himself and had it read to him. Appellee says he was not a good reader, but he does not show he could not understand when he did read, or that he could not understand when it was read to him. When a party undertakes to ascertain for himself the contents of an instrument, he will be charged with its stipulations, and the fact will not justify him in relying upon them; that fraudulent representations were made but he will be charged with the terms of the contract. Newman v. Lyman, 165 S. W. 136 (3); James v. Doss, 184 S. W. 623; Wright v. Bott, 163 S. W. 360. The facts establish that Fawver was the agent of the appellee in procuring appellants as purchasers for the land, and took them on the land and gave them the terms. He did not represent to them at that time that there was to be a reservation. While he was so acting, he was the agent of appellee, and what he did and said, in so far as appellants were concerned at that time, was the act of appellee. Appellants accepted the terms offered on the land, and all the terms of the contract were therefore made between appellee and appel show, when the contract was drawn and signed, appellants, or either of them, were not present, but only Anderson, Fawver, and the lawyer drawing the instrument. Appellee testified that when it was drawn up Fawver told him the contract contained the full agreement and said it was just like he had the land listed, and that he (appellee) relied on the contract reserving the shack and lot, and that he thought the reservation was in the contract until some time after he signed it. He also testified he was a very poor reader, but admits that he did read the contract, and also admits that Fawver also read it over to him. He admits that the con-lant. The writing but spoke the agreement tract in evidence was the contract signed by him and "guess it is just like it was when I signed it." Anderson and his two sons also testified that, when appellants came back to close up the trade after making the contract, he told appellants the improvements were not as made. The mere manual act of writing the contract did not confer upon Fawver the power to make a contract with different terms. He was only authorized to sign the names of the appellants to the contract which had been theretofore agreed upon. |