him to repay, was to induce Schultze, Jr., to have the title and agreements appear in this form. If we adopt appellee's view, and treat the two instruments as separate and independent transactions, it would appear even more clearly that the contract was a mortgage. Say that Rilling obtained title by the deed from Schultze, Sr. No consideration was paid Schultze, Sr. At the time the deed was made it appears that Rilling gave to Schultze, Jr. (not Schultze, Sr.), the check for $570. So the next day, when the contract was entered into with Schultze, Jr., the $1,500 consideration was made up, barring the attorney's fee of $25, entirely of his then existing indebtedness to Rilling. Taking all the circumstances, together with the fact that it was not the intention of the parties that the deed to Rilling should be an absolute conveyance to him,-which latter fact we think was essential in order to enable him to make Schultze, Jr., a conditional deed, -we conclude that the court was right in pronouncing the instrument a mortgage. The judgment is affirmed.

SWAIN et ux. v. MITCHELL." (Court of Civil Appeals of Texas. Oct. 30, 1901.)

TRUST DEED-FORECLOSURE-DEED TO PUR CHASER-RECITALS-EFFECT-NOTICE-TRES

PASS TO TRY TITLE-PETITION-CITATIONVARIANCE-ENACTMENT OF REVISED STAT

UTES-EFFECT.

1. A deed of trust to secure a note provided that any recital in the deed given by any trustee thereunder as to the time, place, and terms of sale having been duly published, or as to any other preliminary act having been done by said trustee, should be taken as prima facie true. A deed thereafter executed by a trustee recited that whereas, "the holder of said note has, since said default, requested me, the said trustee, to sell said property," etc. Held, in trespass to try title by the purchaser at the trustee sale, to make a prima facie case that the request to sell was made by the holder of the note.

2. Sayles' Ann. Civ. St. art. 2369 (Acts 1889), provided that notice of a sale of real estate under a trust deed shall be given "as now required in judicial sales." The statute as to judicial sales in force at the time when the article was enacted did not require personal service of notice. Held, that a statute thereafter enacted in 1895 requiring service of notice on a defendant in execution did not affect article 2369, and personal service on the maker of a trust deed was therefore unnecessary.

3. The act adopting the Revised Civil Statutes in 1895 provided that "the provisions of the Revised Statutes so far as they are substantially the same as the statutes in force at the time when the Revised Statutes shall go into effect

shall be construed as continuations thereof and not as new enactments of the same." Sayles' Ann. Civ. St. art. 2369 (enacted in 1889), declared that notice of a sale of real estate under a trust deed shall be given "as now required in judicial sales." Held, that article 2369 was not re-enacted by the adoption of the Revised Statutes, but continued in force, and the statute in force as to judicial sales in 1889 prescribed the method of notice.

1 Rehearing denied December 2, 1901, and writ of error denied by supreme court.

4. A deed of trust provided that any sale thereunder should be under execution according to law, and declared that any recitals in the deed by the trustee as to the time, place, and terms of sale having been duly published, etc., should be prima facie true. Held, that a recital in such deed that the land was sold "after having given public notice of the time, place, and terms of such sale by giving public notice as required by said trust deed," was a statement of fact, and prima facie evidence that the law as_to_notice was complied with.

5. In trespass to try title, where the petition described the land as situated on "Corinth" street, and the citation as on "Coruth" street, but the description was otherwise the same, the variance did not render the citation void.

Error from district court, Dallas county; J. J. Eckford, Judge.

Trespass to try title by James R. Mitchell against W. F. Swain and wife. From a judgment for plaintiff, defendants bring error. Affirmed.

P. M. Stine and J. C. Patton, for plaintiffs in error. Philip Lindsey, for defendant in

error.

FLY, J. This suit was instituted by James R. Mitchell against W. F. Swain and his wife, Viola Swain, in trespass to try title to certain land in the city of Dallas. The trial was by jury, and a verdict was instructed in favor of defendant in error. Defendant in error claims the land through a trustee's deed made to him under and by virtue of a deed of trust executed by plaintiffs in error to secure a certain promissory note. In the deed of trust is the following provision: "And it is further and lastly specially agreed by the parties hereto that in any deed or deeds given by any trustee hereunder any and all state

ments of facts or other recitals therein made as to the nonpayment of the money secured, or as to the time, place, and terms of sale and property to be sold having been duly published, or as to any other preliminary act or thing having been duly done by said trustee, shall be taken by any and all courts of law and equity as prima facie evidence that the said statements or recitals state facts, and without further question shall be accepted as such." In the deed made by the

trustee to defendant in error it was recited: "Whereas, default has been made in the payment of said indebtedness, and James R. Mitchell, the holder of said note, has, since said default, requested me, the said trustee, to sell said property in accordance with the provisions of said trust deed, for the purpose of paying said indebtedness; and whereas, pursuant to said request and to the provisions of said trust deed, I proceeded to sell said property at public auction at the court house door of Dallas county, Texas, between the hours of 10 o'clock a. m. and 4 o'clock p. m. on Tuesday, the first day of August, 1899, after having given public notice of the time, place, and terms of such sale, by giving notice as required by said trustee's deed." The foregoing recitals were the only evidence of compliance with the law and terms of the

trust deed in making the deed, and it is insisted by plaintiffs in error that the proof is insufficient, because it was not shown that the request to sell was made by the holder of the note, or that personal notice was given to the makers of the trust deed.

The deed of the trustee was made to defendant in error, to whom the note was executed, and he is defending the title that he obtained at the trustee sale, and would raise the presumption that he was the holder of the note, and requested the sale of the property. We are inclined to the opinion that the recitals in the deed made by the trustee would, under the provisions of the deed of trust, have made a prima facie case anyway. Under an act passed in 1889, now article 2369, Sayles' Ann. Civ. St., it was provided that "all sales of real estate made in this state under powers conferred by any deed of trust or other contract lien shall be made in the county in which such real estate is situated," and that "notice shall be given as now required in judicial sales." That law has not been changed or amended. At the time the law in question was enacted the law as to judicial sales did not require the service of a notice of sale on the defendant in execution, and no such requirement existed until 1895, when the present law was enacted. The law as to sales under trust deeds was not changed to conform to the requirements of the amendment of 1895, and the requirements of the law as to judicial sales as it existed in 1889 must be looked to in ascertaining the notice that should be given of a sale under a trust deed. Had the language of the act of 1889 been "notice shall be given as required in judicial sales," the statute as to judicial sales in effect at the time of sale under the trust deed would prescribe the method of giving notice, but the language confines the notice to such as is "now required"; that is, at the time of enactment of the law. It cannot be maintained that there was a re-enactment of this law by the adoption of the Revised Civil Statutes in 1835, for in the act adopting them it is provided "that the provisions of the Revised Statutes, so far as they are substantially the same as the statutes of the state in force at the time when the Revised Statutes shall go into effect, or the common law in force in this state at said time, shall be construed as continuations thereof, and not as new enactments of the same."

In the deed of trust it was provided that the sale should be as under execution, in accordance with the laws of the state of Texas governing sales under deed of trust, and in the deed of the trustee it is recited that the land was sold "after having given public notice of the time, place, and terms of such sale, by giving public notice as required by said trust deed." This was the statement of a fact, and not a conclusion of law, and the recital was prima facie evidence that the law as to notice was complied with.

There is no merit in the contention that W. F. Swain was not properly cited. A variance between the description of the land in the petition and that in the citation did not render the citation void. Cave v. City of Houston, 65 Tex. 619. The only variance complained of is that the land was stated in the petition to be situated in Dallas on "Corinth" street, while in the citation it was stated to be on "Coruth" street. The description of the land in other respects was the same in both instruments. The judgment is affirmed.

PUCKETT v. IRICK.1

(Court of Civil Appeals of Texas. Dec. 14, 1901.)

CONVERSION-EVIDENCE-MATERIALITY.

1. Where plaintiff alleged that he had sold defendant a half interest in a stock of goods for $750, but that the defendant converted the other half to his own use, and defendant claimed that he had purchased the entire stock, defendant, in cross-examining plaintiff, could show that about two months before the sale plaintiff had offered the entire stock to another person for $350 or $400.

2. It was error to admit evidence of the value of plaintiff's services while working with the stock; the action being to recover for a half interest in the stock, and not for wages.

Appeal from Cooke county court; B. F. Mitchell, Judge.

Action by James A. Irick against J. W. Puckett. From a judgment for plaintiff, defendant appeals. Reversed.

Hayworth & Cobb, for appellant. Potter & Potter, for appellee.

HUNTER, J. This suit was brought by Irick to recover of Puckett the value of a half interest in a stock of merchandise which it is alleged Puckett converted to his own use, the value thereof being placed at $750. The defendant filed a general denial and a special answer, not necessary to notice here. The case was tried by a jury, who brought a verdict for plaintiff for $644.25, upon which judgment was rendered, and from that judgment this appeal is taken by Puckett.

The material question in the case was whether Irick sold the entire stock or only a half interest to Puckett. On the trial the defendant, Puckett, offered to prove by the plaintiff, Irick, on cross-examination, that he (Irick) had, about two months before the sale to Puckett, agreed to sell the entire stock of goods to Miller for 50 cents on the dollar of their invoice price, which would have amounted to about $350 or $400, but the sale was not completed because of a disagreement between them as to which should pay certain attorney's fees connected therewith. This evidence was objected to on the ground that it was irrelevant and immaterial, and the objection was sustained. The

1 Rehearing denied January 11, 1902

same evidence was offered by deposition of said Miller, and was also excluded on the same grounds. We think the court erred in excluding this evidence. It was both relevant and material. It was a circumstance from which the jury might reasonably conclude that Irick made the same or a similar offer to Puckett. Of course, if the circumstances surrounding the two transactions were different, these would be admissible in rebuttal to break the force of the circumstance.

The court also admitted evidence of Robert Cearnal to prove that while Irick worked in the store his services were worth $18 per week. It was objected by the defendant that this evidence was irrelevant, as plaintiff had not sued for wages, but for the value of a half interest in the stock, and we think this objection ought to have been sustained.

For these errors the judgment therein must be reversed, and we deem it unnecessary to discuss the other assignments made. The judgment is reversed, and the cause remanded for a new trial.

HOPKINS v. WOLDERT GROCERY CO. (Court of Civil Appeals of Texas. Jan. 8, 1902.)

WRITTEN CONTRACTS-PAROL EVIDENCE TO VARY-FRAUD-DEFENSE-PLEADING.

1. Where defendant contracted in writing to deliver a certain quantity of pecans at a specified place, time, and price, parol evidence that such pecans were to be grown in certain territory would add to the contract, and is inadmissible.

2. Where defendant contracted in writing to deliver a certain quantity of pecans at a specified time, place, and price, a plea that he was induced to enter into such contract by fraudulent representations that the pecan crop was good in the adjacent territory, while in fact such crop was there a failure, is insufficient, where it is not alleged that by reason of such failure it would have cost more to fill the contract.

Appeal from Milam county court; R. B. Pool, Judge.

Action by the Woldert Grocery Company against E. J. M. Hopkins. From a judgment for plaintiff, defendant appeals. Affirined.

Morrison & Wallace, for appellant. Hefley, McBride & Watson, for appellee.

KEY, J. This is an action for damages for breach of a written contract for the sale of 30,000 pounds of pecans. The breach of the contract and the damage resulting therefrom were clearly shown by undisputed testimony, and the court directed a verdict for the plaintiff. The contract referred to reads as follows: "Rockdale, Texas, Aug. 24, '99. I have this day sold and agree to deliver to Woldert Gro. Co., f. o. b. cars Rockdale, one car load (30,000 pounds) thirty thousand pounds new crop pecans, (at 4c.) four cents per pound, delivery to be made on or be

fore Nov. 14, 1899. Pecans to be sacked. [Signed] E. J. M. Hopkins." While some other questions are presented, the main contention is that the defendant had the right to show that at the time the contract was made it was understood and agreed that the defendant was to fill it with pecans of the crop of 1899, grown in the territory tributatary to Rockdale, and that the plaintiff represented to the defendant at the time the contract was made that said pecan crop was good, which was untrue, and in fact that the crop in said territory was a total failure. To have permitted the defendant to prove that the pecans referred to were to be grown in the territory tributary to Rockdale, and not elsewhere, would have added a condition to the contract in respect to which there was no ambiguity. If the defendant had tendered to the plaintiff 30,000 pounds of pecans of the crop of 1899 grown in Travis county, the plaintiff could not have declined to receive them, because they were not grown in the vicinity of Rockdale. In fact, the contract is plain and clear. It required the defendant to furnish a stated quantity of pecans, and the plaintiff to pay four cents a pound therefor, and it was wholly immaterial where the defendant procured the pecans.

The defendant's plea of fraud, charging that the plaintiff's agent misrepresented to the defendant the condition of the pecan crop in the territory adjacent and tributary to Rockdale, was insufficient, because it did not aver that, by reason of the failure of the pecan crop in that territory, it would have cost the defendant more to procure the pecans with which to fill the contract. than it would if the crop in that territory had been as bountiful as represented by the plaintiff's agent. The court heard all the testimony offered by the parties, and, after hearing argument upon the question, decided to submit the issues contended for by counsel for the defendant to the jury, but adjourned the case over until the following day. When the trial was resumed the next morning the judge announced to the defendant's counsel that he had changed his mind, and thereupon proceeded to instruct the jury peremptorily to find for the plaintiff. In the motion for a new trial counsel for the defendant claimed that they were misled by the conduct on the part of the judge, and offered, if a new trial was granted, to amend the defendant's answer so as to plead with more particularity their contention in reference to it being understood and agreed that the contract was to be filled with pecans grown in the territory tributary to Rockdale, and that while said crop was then blighted, so that in fact no such pecans then existed, still the agent of the plaintiff fraudulently represented to the defendant that there was a good and abundant crop in that territory. The proposed amendment would have been but a further

attempt to do what we have already held was not permissible; viz., add an additional clause to the contract on a subject about which there was no ambiguity.

We have considered all the assignments of errors, and, finding no grounds for reversal, the judgment is affirmed. Affirmed.

COX et al. v. PATTEN et al.1 (Court of Civil Appeals of Texas. Jan. 8, 1902.)

LIMITATIONS - AMENDMENT OF PETITION WILLS-CONSTRUCTION-POSSESSION OF ESTATE AGENT OF EXECUTOR-LIABILITY FOR AGENT'S DEBTS - CONVERSION RIGHT TO SUE-POSSESSION OF PROPERTY-CHARACTER OF THE INJURY LEVY AND SALE SHERIFF'S RETURN-ESTOPPEL-IRREGULAR LEVY-WRIT OF ERROR-TAXATION OF COSTS -WITNESS FEES-STENOGRAPHER'S BILL DISCRETION OF LOWER COURT-FAILURE TO OBJECT-WAIVER.

1. Under Rev. St. art. 4897, providing that sheriffs shall be responsible for the acts of their deputies, an original petition charging that property was levied on and sold by the sheriff, whereas in fact, as set out in an amended petition filed after the action is barred, the acts were done by the sheriff acting by his deputy, is sufficient to arrest the running of the statute of limitations, even though such original petition should be held defective in not setting out the full facts concerning the levy and sale.

2. Testatrix directed her executor, either by himself or agent, to control her property, so that her brother should have the right to occupy the homestead, together with such personal property as should be necessary to the brother's convenience; that the net proceeds of the estate should be paid to the brother during his life, and after his death the estate should be disposed of as provided in the will. Plaintiff, after qualifying as executor, delivered possession of the estate to the brother as his agent, who held it for two years, when it was leased to a third party, who held it until levied upon and sold by defendant. Held, that Rev. St. art. 2547, making personal property held for two years under pretended loan liable for the debts of the holder, had no application to the holding of the estate by testator's brother as agent of the executor under the express provision of the will, since the statute expressly excepts from its operation property held under a will declaring the purpose of its use.

3. The statute could not be construed to devest a principal of the title to property held by an agent, at the suit of the agent's creditors.

4. The contention that, as plaintiff was not holding nor entitled to possession of the property, he could not maintain an action for conversion thereof, could not be sustained, since this rule has no application to a case where the owner's rights are permanently injured.

5. Although part of the property was divided between the lessee of the estate and the executor, and the executor's part delivered to the brother of testatrix, the part so delivered was not liable for such brother's debts, since it was delivered to him as agent of the executor, and, under the terms of the will, belonged to the estate.

6. In an action against a sheriff for conversion of cotton sold under execution, the sheriff's return indorsed on the execution, showing a levy upon the cotton, precludes him from denying the legality of such levy.

7. Whether or not the officer making the levy was in the field where the cotton stood ungathered, when the levy was made, is immaterial, 1 Writ of error denied by supreme court.

as plaintiff can maintain an action against the officer for the value of the property lost to him thereby, even though the levy was irregular.

S. Where error is assigned in that fees were allowed for more than two witnesses to the same fact, the record being silent as to the testimony of the witnesses, and there being testimony that each of them testified to more than one fact, the appellate court will not review the decision of the lower court in allowing such fees.

9. The matter of taxing costs being largely in the discretion of the trial court, its ruling will not be reviewed by the appellate court, unless it plainly appears from the record that such discretion has been abused.

10. Under Rev. St. arts. 1295, 1296, providing for and prescribing the pay of a court stenographer, a stenographer's bill which did not exceed the limit prescribed by the statute, and which was approved by the judge of the district court trying the case, was properly taxed as costs.

11. Where a district court, under authority so to do conferred by Rev. St. arts. 1428-1438. adjudges the costs accrued against a plaintiff as a condition for granting him permission to withdraw his announcement of ready for trial and continue his case for the purpose of amending his pleading, by submitting to such ruling and paying the costs the plaintiff will be held to have waived any objection thereto.

12. Such judgment against plaintiff for costs accrued is an adjudication of the matter, and the refusal of the lower court to set it aside will not be reviewed by the appellate court, unless it appears that the statutory discretion in awarding such judgment has been abused.

Error from district court, McLennan county; Marshall Surratt, Judge.

Action by George M. Patten, executor, and others against John P. Cox and others. M. D. Herring and D. A. Kelly made themselves parties to defend the action, and impleaded Nathan and George W. Patten. From a judgment for plaintiffs against defendant Cox and his sureties, and over in their favor against D. A. Kelly and the estate of M. D. Herring, deceased, defendants bring writ of error. Affirmed.

Clark & Bolinger and D. A. Kelly, for plaintiffs in error. John W. Davis, for defendants in error.

ROBERTSON, Special Justice. This suit was originally brought in the district court of Hill county February 6, 1893, by George M. Patten, as executor of the estate of Martha A. Patten, deceased, against John P. Cox, as sheriff of Hill county, and the sureties on his official bond, to recover damages for the conversion of certain personal property alleged to belong to said estate, which had been seized and sold by said Cox, as such sheriff, as the property of Nathan and George W. Patten, under and by virtue of an execution against them in favor of M. D. Herring and D. A. Kelly. Herring and Kelly made themselves parties for the purpose of defending the suit, and impleaded Nathan and George W. Patten, defendants in said execution. The defendant Cox, and the sureties on his official bond, and Herring and Kelly, in their answer alleged that the property sold under said execution was the property of Nathan and