tax collector on one of the property owners for taxes due by him was harmless in view of the fact that the receipt for the same taxes was introduced in evidence and showed beyond controversy the receipt by the tax collector of the taxes for which the draft was drawn. 10. TAXATION 567-TAX COLLECTORS-DEFAULT ACTIONS-EVIDENCE-ADMISSIBILITY. In county's action against tax collector for taxes collected and unlawfully retained, it was lector was solvent and able to pay his debts not error to exclude testimony that the tax colwhile in office. 11. TAXATION 567-TAX COLLECTORS-DE FAULT ACTIONS-EVIDENCE-ADMISSIBILITY. In county's action against tax collector for taxes collected and unlawfully retained, it was not error to exclude entire tax rolls, which included much immaterial matter. 12. APPEAL AND ERROR ~1052(5)—HARMLESS ERROR-EVIDENCE. Error, if any, in permitting a witness to give the aggregate of items of shortage in a tax collector's accounts, computed from testimony of another witness as to the specific items, was harmless where the jury awarded less than the aggregate. CONCLUSIONS 13. EVIDENCE 471(34) 3. TAXATION 567 ACTION AGAINST COL- SIGNMENT OF ERROR-SUFFICIENCY. Assignment of error to refusal of instruction followed by statement containing only conclusions of fact, and not the evidence, cannot be considered. 5. TAXATION EFFECT. 567-COLLECTORS-DEFAULT Negligence of county commissioners in failing to perform statutory duties in passing on reports of tax collector does not necessarily constitute notice of his defalcation, so that, in the county's action for moneys unlawfully retained by him requested instruction declaring statutory duties, without requiring knowledge of facts by commissioners as prerequisite to finding such negligence on their part as would bar recovery under plea of limitation was properly refused. 6. EVIDENCE 178(3)-SECONDARY EVIDENCE -BURNING PAPERS. Where tax collector's original returns were burned by order of court, secondary evidence of their contents was admissible. 7. EVIDENCE 186(9)—SECONDARY EVIDENCE -COMPETENCY. Where reports of county taxes filed with commissioners' court and later destroyed were, as required by Vernon's Sayles' Ann. Civ. St. 1914, art. 7619, identical as to property covered and taxes collected with reports required to be filed with the state comptroller by article 7618, and, under article 7621, a list of delinquents was filed also with the state, the records of the state taxes were admissible in the county's action for taxes collected and unlawfully retained. 8. TAXATION 567 - TAX COLLECTORS-DEFAULT ACTIONS-EVIDENCE-ADMISSIBILITY. In county's action against tax collector for taxes collected and unlawfully retained, receipts for taxes given owners of property which he reported as delinquent were admissible in evidence. 9. APPEAL AND ERROR 1051(1)-HARMLESS ERROR. In county's action against tax collector for taxes collected and unlawfully retained, the error, if any, in admitting the draft drawn by the It was not reversible error to permit a witness to give his conclusions as to a tax collector's proportionate share of taxes collected; such amount being a mere matter of computation. Appeal from District Court, Archer Coun Action by Archer County against J. D. Powell and others. Judgment for plaintiff, and defendants appeal. Affirmed. Kay & Akin, of Wichita Falls, for appellants. Martin, Bullington, Boone & Humphrey, of Wichita Falls, for appellee. DUNKLIN, J. J. D. Powell was tax collector of Archer county for four terms beginning in December, 1900, and ending in December, 1908, and the county instituted this suit to recover of him and his bondsmen $4,799.01, the aggregate of divers sums of taxes due the county, which plaintiff alleged Powell had collected and converted to his own use. A judgment was rendered in favor of the County for $3,659.49 principal, and $134.17, interest, against Powell and his bondsmen as sureties, the same being apportioned among the different sets of bondsmen in accordance with an agreement between them and the plaintiff made in the trial court with respect to the liability of such bondsmen in the event they should be legally held liable at all. From that judgment the defendants have appealed. the results of his labors. The principal data used by him were the tax rolls made out by the assessor of taxes of the county, the monthly reports made by Powell as tax collector to the comptroller of the state, Powell's report of delinquent taxes, his tax receipt stubs, and tax receipts issued by him to divers property owners who paid their taxes. The case was submitted to a jury on special issues. By issue No. 1 the court instructed the jury that it was the duty of Powell as tax collector "to faithfully collect and turn over to proper county authorities all money collected by him which may be due the county for taxes." And in connection with that instruction the jury were asked to determine whether or not he had failed to turn over to the proper county authorities of Archer county any money due the county for taxes theretofore collected by him as tax collector. An affirmative answer was given to that issue. [1] Appellants insist that the jury should have been told that it was the duty of the tax collector to turn over to the county treasurer all taxes collected by him, and that it was error to charge that it was his duty to turn such taxes over to "the proper county authorities." This criticism is predicated upon the contention that there was no proot to show that Powell failed to turn over any taxes to the county treasurer in that the county treasurer's books were not introduced in evidence. The uncontroverted proof showed that in his accounting to the commissioners' court Powell received credit for taxes collected by him, and with which he should have been charged, on property which he reported as delinquent, and in the absence of any explanation or proof to show that the county thereafter received the same, we think that the error, if any, in the court's charge was at all events harmless. March 7, 1912, was taken as the date when plaintiff's cause of action was barred by the statute of limitation pleaded in the absence of proof of facts which would avoid that conclusion. Upon the issue of limitation the jury were instructed: That, if they returned an affirmative answer to the first question mentioned above, then they would determine "whether or not the fact that said J. D. Powell had collected moneys which he had not delivered to the proper county authorities was known to the officers of the county commissioners' court of Archer county at any time prior to March 7, 1912, or whether said officials should, by the exercise of due diligence, have discovered that he had not." | this assignment show that it is limited to a complaint that the court did not give to the jury a definition of negligence, and a sufficient answer to that complaint is that it was not embodied in the bill of exception taken to the court's instruction. [3] The court refused an instruction requested by the defendants, which, after defining negligence, embodied two separate issues, the first whether or not the county commissioners were guilty of negligence in failing to discover J. D. Powell's fraud before March 7, 1913, and the second whether or not the county commissioners were negligent in failing prior to March 7, 1912, to discover that Powell had collected county taxes which he withheld from the county treasurer. The principal complaint presented in the appellants' brief to the refusal of this instruction is that it contained a proper definition of the term "negligence," while the instruction given by the court did not contain such a definition, and did not give the jury any guide to determine what would amount to a failure on the part of the county commissioners to use due diligence to discover, Powell's fraud. We are of the opinion that the requested instruc tion improperly carved two issues out of one, since there is no question but that, if Powell appropriated to his own use the taxes collected by him, such appropriation was a fraud, and the requested instruction probably would have tended to confuse the jury. Furthermore, the court having properly used the term "due diligence" in the instruction given, which is a term easily understood by the layman, and the defendants having failed to object to that instruction because it did not contain a definition of that term, they are committed to an approval of the use of the term in that charge, and if they desired a definition of what was meant by that term, they should have presented a request for an instruction to that effect. See Gulf, T. & W. Ry. Co. v. Dickey, 187 S. W. 187, by our Supreme Court; Texas Midland R. Co. v. Ritchey, 49 Tex. Civ. 409, 108 S. W. 734. Article 7619 or our Revised Civil Statutes makes it the duty of a collector of taxes to make monthly reports to the commissioners' court of taxes collected by him due the county, and to immediately pay over the money so collected to the county treasurer and take receipts therefor and file with the county clerk. That article also makes it the duty of the county clerk to examine the tax collector's report and the tax receipt stubs filed therewith, and certify their correctness to the commissioners' court. By other sections of A bill of exception was reserved to the the same article it is made the duty of the charge last quoted upon the ground that it tax collector to appear before the commiswas involved and obscure, and did not sep- sioners' court and make a summary statearate the two kinds of notice, and therefore ment showing the disposition of all moneys was calculated to confuse the jury; in oth-collected by him for the state, and also for er words, that the two kinds of notice, ac- the county. Section 5 of the article reads. tual and implied, should have been submitted in part, as follows: to the jury in separate issues. [2] The statement and remarks following "The commissioners' court shall examine such statements and vouchers, together with the item ized report and tax receipt stubs filed each, the county commissioners in failing to permonth, and shall compare the same with the tax form their statutory duties would not necesrolls and tax receipt stubs. If found correct in every particular, and if the collector of taxes sarily constitute notice of Powell's defalcahas properly accounted for all taxes collected, as tions, and for that reason the requested inprovided above, the commissioners' court shall struction, if given in the form presented enter an order approving said report. without the qualifications suggested, would have been misleading and erroneous. By article 7620 of the statute it is provided that, if the tax collector shall fail to promptly pay over to the county treasurer the taxes collected by him belonging to the county, the commissioners' court shall ascertain the amounts due by him to the county and enter an order requiring him to pay the same to the treasurer. By article 7692 of the statute it is provided that any real estate delinquent for taxes shall be advertised as such, and that after such advertisement the commissioners' court shall order suits to be instituted to collect the same. The defendants requested an instruction submitting those articles of the statute to the jury. The objection urged upon the trial by counsel for the defendants to the refusal of the requested instruction was that, in order for the jury to properly understand whether or not the county commissioners were guilty of negligence in failing to discover Powell's fraud prior to March 7, 1912, it was necessary for the jury to know the duties of the county commissioners as prescribed in the statutes quoted in the requested instruction. The statement following this assignment contains nothing but conclusions of fact drawn by counsel from the evidence, and fails to quote such evidence, or to refer to the statement of facts wherein it could be found, and counsel for appellee objects to a consideration of the assignment for that reason, and for the further reason, as claimed, that the conclusions so drawn by appellant's counsel are incorrect when tested by the evidence. [4, 5] We are of the opinion that the objection to a consideration of the assignment should be sustained. But, aside from that conclusion, we do not concur in the contention of appellants that any failure on the part of the county commissioners to perform any of those statutory duties prior to March 7, 1912, would be such negligence on the part of the county commissioners as would bar a recovery under the plea of limitation. We are of the opinion that defendants could invoke the negligence of the county commissioners in failing to discover Powell's fraud only after they had knowledge of such facts, or notice of other facts which would have excited inquiry in the mind of a person of ordinary prudence that, if pursued with reasonable diligence, would have led to a knowledge of such defalcation, and that appellants are in no position to invoke in behalf of their plea of limitation the negligence of the county commissioners in a failure to perform their statutory duties in the absence of some facts amounting to notice of such [6] Several assignments are presented to the admission of testimony over the objections urged by the defendants, including the testimony of J. C. Kirby, an employé in the state comptroller's office at Austin, the delinquent tax reports identified by Kirby which were filed by Powell in that office, and tax receipts issued by Powell to several property owners who paid taxes. It appears that the copy of the reports made by Powell from time to time and filed in the commissioners' court showing the taxes collected by him had been burned by order of that court Under those circumdated July 15, 1909. stances the plaintiff was entitled to introduce secondary evidence of the contents of those copies. [7, 8] The reports filed with the commissioners' court which were destroyed were required by article 7619, Vernon's Sayles' Texas Civil Statutes. That statute expressly states that the reports so required shall be of like character to those required to be filed with the comptroller under and by the virtue of article 7618; the only difference being the latter shall show the amount of taxes collected for the state, and the former the amount of taxes collected by the county. By article 7621 it is made the duty of the tax collector to also file a list of delinquent taxpayers. In his accounting with the state and county he is charged with all taxes that have been assessed, and is given credit for the amount of taxes, collected and paid over to the proper authorities, plus the amount of delinquent taxes. Copies of delinquent lists signed by Powell were found and introduced in evidence. Under the circumstances the records objected to and now under discussion were admissible. We are of the opinion further that the tax receipts referred to were admissible, since they show the collection of more taxes than were reported by Powell upon property covered by the receipts and appearing on the delinquent lists. [9] The error, if any, in admitting the draft drawn by the tax collector on one of the property owners for taxes due by him was harmless in view of the fact that the receipt for the same taxes was introduced in evidence and showed beyond controversy the receipt by Powell of the taxes for which the draft was drawn. [10-13] The proffered testimony of the witness Walker to show that Powell was solvent and able to pay his debts during his incumbency in office was immaterial, and there was was no error in excluding it. Nor was DEED ABSOLUTE IN FORM-ÉVIDENCE. hometead, but is in fact in actual possession at rolls from 1903 to 1910, inclusive, since the [ 3. VEndor and PURCHASER 244-NOTICEsame involved much matter wholly foreign to any issue in the case. We think it was improper to allow the witness Morrison to testify that he kept a list of items of shortage in Powell's accounts testified to by the expert accountant, Miles, who had audited the books, and that those items aggregated $4,892.36, but that error we hold to be harm-lute in form, but in fact a mortgage, conveys a less in view of the fact that Morrison did not give the items which he noted down while Miles was testifying, but only testified to the aggregate of them, which was more than $1,200 in excess of the amount found by the jury against the defendants; it thus appearing that the jury gave no effect to Morrison's testimony. The conclusion testified to by the witness Miles, who audited the accounts, as to the plaintiff's proportionate parts of certain taxes that had been collected, and not reported, did not constitute reversible error since they were mere matters of calculation from figures given at the time by the witness. We are of the opinion, further, that the evidence was ample to support the findings of the jury of defalcations by Powell and the amounts thereof, especially in view of the fact that Powell was not offered as a witness at all, and defendants offered no evidence to contradict that introduced by plaintiff. It follows from the last conclusion that there was no error in refusing defendants' request for an instructed verdict in their favor. TO ANSWER. The fact that plaintiff in suit in trespass to try title against the occupants of a homestead who had given a deed absolute in form intended to be a mortgage declined to state from whom he purchased the property, was a circumstance proper to be weighed by the jury in determining the weight of his testimony that he did not know, prior to his purchase, of the claims of the occupants. On Motion for Rehearing. 6. HOMESTEAD 129(1)-MORTGAGE-NOTICE -QUESTIONS FOR JURY. The mere fact that a deed absolute in form, though intended by the parties as a mortgage, was of record at the time the plaintiff in trespass to try title purchased from a subsequent grantee under such deed, was not determinative of the sufficiency vel non of notice of the claim of mortgage given by reason of the defendant's occupancy as a homestead of the premises. 7. LIS PENDENS 22(2)—NOTICE OF SUIT EFFECT. A lis pendens notice places the purchaser of the property on inquiry as to the real facts, For the reasons indicated, the judgment is and charges him with notice of what an investiaffirmed. MASON V. OLDS et al. (No. 8720.) 1. APPEAL AND ERROR ~499(4)-PRESERVA- In view of Vernon's Sayles' Ann. Civ. St. 1914, art. 2061, providing that the ruling on instructions shall be regarded as approved unless excepted to, and article 2062, providing that where the ruling of the court appears otherwise of record, no bill of exceptions shall be necessary, and article 1971, requiring the charge to be in writing and to be submitted to the parties for objections which shall be presented to the court before the charge is read, and that all objections not so made and presented shall be considered as waived, and in spite of article 1972, providing that the charge shall constitute a part of the record and shall be regarded as excepted to without the necessity of taking any bill of exceptions, where the record fails to disclose, either by bill of exceptions or filed objections to the charge, that any objections were made thereto, the court on appeal is justified in disregarding an assignment of error to the failure of the court to direct a verdict. 2. MORTGAGES 38(1)-MORTGAGE IN FORM OF DEED EVIDENCE. Evidence held to show that it was the in gation would have disclosed. Error from District Court, Jones County; John B. Thomas, Judge. Action by G. S. Mason against F. C. Olds and others. Judgment for defendants, and plaintiff brings error. Affirmed. On motion for rehearing. Motion overruled. A. H. Kirby, of Abilene, for plaintiff in erD. M. Oldham, Jr., of Abilene, for defendants in error. ror. BUCK, J. Plaintiff in error, hereinafter called plaintiff, filed suit in the form of trespass to try title against F. C. Olds and wife, Mrs. Frances B. Olds, and D. M. Oldham, Jr., for the recovery of a certain described lot in the city of Abilene, Taylor county, Tex. Defendants answered by general demurrer, general denial, and a plea of not guilty. The cause was submitted to a jury upon 10 special issues, the answers to which were favorable to defendants, and the court entered judgment in favor of Mrs. Olds and D. M. Oldham, Jr.; F. C. Olds having died subsequent to the filing of the suit and prior to judginent. From this judgment the plaintif has prosecuted a writ of error. tention of all the parties to the instrument that Mattie J. Irvine to Mrs. Frances B. Olds, for The property in controversy was deeded by the writing in form a deed absolute should constitute a mortgage or security for debt. a recited consideration of $3,500 paid by Mrs. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Olds out of her separate estate, and was Plaintiff in error's first assignment comoccupied and used as a homestead by Mr. plains of the failure of the court to direct a and Mrs. Olds from the time of the purchase verdict for him, on the theory that he showuntil Mr. Olds' death, and subsequently by ed the title to the property to be in him, Mrs. Olds and her son. In 1910, F. C. Olds, through the introduction of the deed from who was engaged in the cotton business at Mrs. Irvine to Mrs. Olds, the deed from Mrs. Abilene and in partnership with L. B. Blake, Olds to Blake, the two notes described in the became indebted to the F. & M. National last-named deed and the cancellation thereBank of Abilene in a large amount, between of, the deed from Blake and wife to Adoue, $20,000 and $29,000, which indebtedness was and the deed from Adoue to Mason, and unsecured. Negotiations between the bank that the defendants below failed to show by and Mr. Olds, who was sick in bed at the any competent evidence that plaintiff had time, resulted in the latter's agreeing to turn not the title evidenced by these several inover to the bank all his property, consisting struments of conveyance. Defendants in erof an automobile, some bank stock, some ror object to the consideration of this assigncompress stock, and his home. The testiment, and of the other assignments contained mony of Mr. Olds given on a former trial in plaintiff in error's brief, because, as aswas used in this trial, and, according to his testimony and the testimony of Mrs. Olds, at the instance of the bank a deed to the home was made to L. B. Blake, the partner of Mr. Olds, but who was not involved in the indebtedness to the bank. The consideration recited was $4,000, evidenced by two vendor's lien notes of $2,000 each. The evidence of the defendants sustains the theory that the execution of this deed was not intended as an actual sale of the property to L. B. Blake, but was for the purpose of enabling the bank to use the notes as a security for the indebtedness owing it by Olds. The Olds were occupying the premises as a homestead at the time of the execution of the deed, and L. B. Blake was boarding with the Olds at said time. Olds testified that in a conversation between him and the cashier of the bank, Mr. | Henry James, at which L. B. Blake was present, he (Olds) agreed to turn over everything he had to secure the bank until the indebtedness could be repaid, and that during that year some $7,000 was in fact paid on the debt. The notes were made payable to Mrs. Olds and indorsed by her, and the bank seems to have required Olds to sign them also. Olds testified that the understanding between him and the bank, of which understanding Blake was cognizant, and to which he agreed, was that the notes were to be held until he (Olds) could "fix it up and then everything was to be turned back to me." He further testified that it was understood and agreed that the deed was not to be put of record, and no steps taken by the bank or by Blake which would cast a record cloud on the title to the property. Later, these notes were purchased from the bank by Henry James, the cashier, and by him sold to J. B. Adoue, Sr., of Dallas, and a deed from L. B. Blake and wife to J. B. Adoue, of date July 10, 1912, was executed, conveying the property in controversy, the consideration recited being the cancellation of the two $2,000 notes theretofore executed by Blake to Mrs. Olds. Subsequently, the property was conveyed by Adoue to G. S. Mason, plaintiff below. serted, the case is not prepared for submission and hearing under the rules; that the cause was submitted to a jury and involves a great mass of facts based on oral and written testimony; that the plaintiff below did not make any objection or take any exceptions to the matters submitted to the jury by the court in its general charge, nor were any objections made or exceptions taken to the refusal of the court to give his requested special instructions, either before or after the argument was made to the jury; that the first time any exceptions or objections were made was after the verdict of the jury and contained in the motion for new trial. We find the state of the record to be as claimed by defendants in error. There is not a bill of exceptions in the record. Article 2061, V. S. Texas Civil Statutes, provides: "The ruling of the court in the giving, refusing, or qualifying of instructions to the jury shall be regarded as approved, unless excepted to as provided for in the foregoing articles." Article 2062, Id., provides: "Where the ruling or other action of the court appears otherwise of record, no bill of exceptions shall be necessary to reserve an exception thereto." Article 1971, Id., is in part as follows: "The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, which obthe court before the charge is read to the jury, jections shall in every instance be presented to and all objections not so made and presented shall be considered as waived. * Article 1972 reads as follows: "Such charge shall be filed by the clerk and shall constitute a part of the record of the cause [and shall be regarded as excepted to, and subject to revision for errors therein, without the necessity of taking any bill of exception thereto.]" As to whether that part of article 1972 beginning with "and shall be regarded," etc., and ending with "thereto," has been superseded by article 2061 heretofore set out has been the occasion of some contrariety of opinion by the courts, but the Supreme Court, in G., T. & W. Ry. Co. v. Dickey (Sup.) 187 S. |