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$100 due plaintiff as attorney's fees. I find that, as a matter of fact, the plaintiff, W. O. Diffie, never paid the notes given by Long to Bailey for the land, and assumed by him, nor any part thereof, and that his deed was not filed for record until the 19th day of July, 1902." This finding is not assailed by plaintiff in error, and it must be assumed by us that it is supported by the evidence. It implies that plaintiff in error's deed from Long and wife expressed as a part of the consideration therefor the assumption of the payment of two promissory notes described in the deed from Bailey and others to J. Long, and expressly reserved a lien on the land in controversy to secure their payment, and that said notes were then owned by J. B. Whitfield. This being true, the superior title to the land remained in Long and wife until the purchase money was paid. Peters v. Clements, 46 Tex: 122; Roosevelt v. Davis, 49 Tex. 472; Baker v. Compton, 52 Tex. 261; Hamblen v. Folts, 70 Tex. 135, 7 S. W. 834; Minter v. Burnett, 90 Tex. 249, 38 S. W. 350; Carey v. Starr, 93 Tex. 515, 56 S. W. 324.

The court's fourth finding of fact is as follows: "(4) I find that on the 28th day of August, 1900, J. Long and wife, M. J. Long, deeded the land in question to J. B. Whitfield, and that the consideration was the surrender and cancellation of the two notes given by Long and wife to J. W. Bailey, and described in the deed from Bailey et al. to Long, which were a vendor's lien on the land in question, and paid the said Long $35, and that the said deed was filed for record August 28, 1900." And its second additional finding of fact is as follows: "(2) The amount of the notes given by J. Long to J. W. Bailey as a part of the purchase money for said land was $50 and $160, respectively. The said notes were dated September 21, 1895, and were due December, 1895, and November, 1896, and bore interest at the rate of ten per cent. per annum from date." Plaintiff in error not having complied with his promise and obligation to pay the Bailey notes, which were due at the time he made the promise for nearly two years, Long and wife, his vendors, had the legal right to convey the land to Whitfield. Morrison v. Barry, 10 Tex. Civ. App. 25, 30 S. W. 376; Efron v. Burgower (Tex. Civ. App.) 57 S. W. 306. And Whitfield thus acquired all the legal rights his vendors had; and, holding the purchase-money notes, which plaintiff in error had assumed the payment of, he had the same right to have them paid as his vendors, before the superior right to the land could vest in plaintiff in error. Crafts v. Daugherty, 69 Tex. 480, 6 S. W. 850; Harris v. Catlin, 53 Tex. 8; Jackson v. Palmer, 52 Tex. 434; Masterson v. Cohen, 46 Tex. 520; Hale v. Baker, 60 Tex. 217.

The court's fifth finding of fact is as follows: "(5) I find that on the 31st day of December, 1900, J. B. Whitfield and wife deeded the land in question to M. C. Hearn

for himself and his codefendant W. M. Thompson, and that the consideration paid therefor was $300 cash paid at the time and the execution of two notes, payable to J. B. Whitfield or order, for $100 each, both of which have been paid, and that the amount was the full value of the land at that time, and that the deed from Whitfield and wife to Hearn was filed for record January 4, 1901."

The conveyance by Whitfield to defendants in error vested in them all the rights acquired by the former from Long and wife by their deed to him, and they are now in possession of the land in controversy under said deed.

Plaintiff in error's fourth assignment of error assails the conclusion of law of the court below to the effect that defendants in error were entitled to judgment upon the ground that plaintiff in error had failed to comply with his contract as to the purchase of said land, and pay the amounts assumed by him, which constituted a lien upon the land in controversy. We do not agree with this contention of the plaintiff in error. As stated in the case of Crafts v. Daugherty, supra, the facts of which are very similar to those found by the court in this case, the plaintiff in error was not entitled to a judg ment for the land, nor to disturb the possession which defendants in error took under their deed, without payment of the amounts he had assumed, which constituted a lien upon the land.

The view we have taken of the case, and upon which same is disposed of, renders it unnecessary for us to consider the other assignments of error presented in plaintiff in error's brief.

The judgment of the court below is affirmed.

BRADFORD v. WESTBROOK, Tax Collector. (Court of Civil Appeals of Texas. June 3, 1905.)

1. BONDS

TAXES-PAYMENT-COLLECTION— INJUNCTION-NECESSARY PARTIES.

In a suit by a taxpayer to enjoin the collection of a tax levied to pay town bonds, the town and the holder of the bonds are necessary parties.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 2169.] 2. SAME-VALIDITY-DE FACTO CORPORATION. Where a town was a de facto corporation at the time it issued certain bonds, and after reincorporation of the town the succeeding de jure corporation assumed the payment thereof as authorized by statute, the bonds became valid obligations of the succeeding corporation.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 19481950.]

Appeal from District Court, Nolan County; Jos. L. Shepherd, Judge.

Suit by J. A. J. Bradford against E. Westbrook, tax collector of Sweetwater. From a

decree in favor of defendant, plaintiff appeals. Affirmed.

J. F. Eidson and Beall & Beall, for appellant. Ragland & Crane, for appellee.

STEPHENS, J. This suit was brought to enjoin the collection of a tax levied in the year 1902 by the town of Sweetwater for the payment of bonds issued in the year 1898 by the town of Sweetwater when it was a de facto corporation only. This acting corporation was dissolved by decree of court at the instance of the state, in a quo warranto proceeding, in the following year. The people of the same territory reincorporated in 1902, and assumed to pay the bonds, levying a tax for that purpose.

The petition for injunction, even with the aid of the supplemental petition, did not entitle appellant to any relief whatever. In the first place, neither the town of Sweetwater, nor the holder of the bonds sought to be invalidated, was made a party to the suit; and, in the second place, the facts stated utterly failed to impeach the validity of the bonds. Being issued by a de facto corporation in conformity with the law authorizing a de jure corporation to issue bonds, and being assumed by the succeeding de jure corporation in conformity with the statute authorizing such assumption, the bonds were valid obligations, notwithstanding the town may have had less than 1,000 inhabitants, as alleged, during the life of the de facto corporation. The cases sustaining this view are both numerous and familiar.

The judgment sustaining a general demurrer to the petition is therefore affirmed.

TEXAS & P. RY. CO. v. FRANK. (Court of Civil Appeals of Texas. June 14, 1905.)

1. DAMAGES-PERSONAL INJURIES-INSTRUC

TIONS.

Where a petition for injuries alleged that plaintiff was confined to his bed 10 days, at a per diem loss, and his testimony showed that he lost 15 whole days and parts of other days, a charge that the jury, in estimating plaintiff's damages, might consider "any loss of time by him," was erroneous and prejudicial.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, §§ 441-445; vol. 46, Cent. Dig. Trial, 595.]

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blow the whistle at the place where the accident occurred was properly excluded.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Railroads, §§ 913, 1125.]

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Action by T. C. Frank against the Texas & Pacific Railway Company. From a judgRement for plaintiff, defendant appeals. versed.

T. J. Freeman and Head, Dillard & Head, for appellant. M. M. McMahon and Thurmond & Steger, for appellee.

KEY, J. This is a personal injury suit, and from a judgment in favor of the plaintiff, the defendant prosecutes this appeal.

As to

The plaintiff alleged in his petition that he was confined to his bed 10 days, at a loss of $2.50 per day. That was the only averment in reference to loss of time. The plaintiff's testimony tends to show that he lost 15 whole days of time, and parts of an uncertain number of other days, on account of the injuries complained of, all of which time he testified was worth $2.50 per day. the measure of damages, the court instructed the jury as follows: "If you find a verdict for plaintiff, you may, in estimating his damages, consider any injury to his buggy, any loss of time by him, any reasonable expense for physician, any reasonable expense for medicine, and any bodily and mental pain suffered by plaintiff which the evidence may show is the direct result to plaintiff of the injuries or damages, if any, caused by the negligence of defendant, and assess such amount as will, in your judgment, reasonably compensate him therefor." This instruction is assigned as error, because it authorized the jury to allow the plaintiff more compensation for loss of time than was authorized by his pleading. The assignment is well taken, and, as there was testimony tending to show greater damage resulting from loss of time than was set up in the plaintiff's petition, the error complained of was material, and, the evidence on the subject being too indefinite for the error to be cured by remittitur, a reversal must follow. City of Dallas v. Jones, 93 Tex. 38, 49 S. W. 577, 53 S. W. 377; Railway v. Taylor (Tex. Civ. App.) 58 S. W. 844.

We also hold that appellant's requested instruction No. 11 should have been given. The court's charge on the subject of contributory negligence was general, while the requested instruction referred to was more specific, and, being correct in form, it was error to refuse to give it.

No error was committed in refusing to permit the engineer and fireman who were running the train on the occasion in question to testify that it was their habit or custom to ring the bell and blow the whistle at the place where the accident occurred. Ry. Co. v. Johnson, 92 Tex. 380, 48 S. W. 568.

Some other questions are presented, on all of which we rule against the appellant.

For the errors pointed out, the judgment is reversed, and the cause remanded. Reversed and remanded.

SWEET v. LYON et al.* (Court of Civil Appeals of Texas. May 17, 1905.)

1. HOMESTEAD-LIEN.

Where land had become a homestead prior to the owner executing a note which did not include any of the purchase price of the land, the payee could acquire no lien on the land as security for the note.

2. APPEAL-ASSIGNMENT OF ERROR-PROPO

SITION.

A proposition under an assignment of error which is not germane to the assignment will not be considered on appeal.

3. HOMESTEAD PLEADING SETTING UP RIGHT -NECESSITY.

Where, in an action for the foreclosure of a lien, to secure a note, defendant claimed the land under a parol gift from plaintiff and others, former owners thereof, and alleged that the land was his homestead, plaintiff could not assert any right by virtue of the land being his homestead prior to and at the time of the parol gift without pleading such right.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Homestead, §§ 170, 390–394.] 4. APPEAL-COSTS-ERROR IN JUDGMENT.

Where plaintiff, suing on a note, failed to call the trial court's attention to an error in calculation whereby the judgment was rendered for a smaller sum than due, he is not entitled to costs on appeal.

for a foreclosure of his alleged lien upon the said lot of land, and improvements thereon.

The record does not show that appellee W. L. Lyon filed any answer in the case. Appellee Carry Lyon answered by general demurrer, general denial, and pleaded specially, in substance, that she is the wife of appellee W. L. Lyon, and that she and her husband had been living separate and apart since April 3, 1904, and are still living separate and apart, and that she and her husband occupied said lot continuously since November, 1901, and up to their separation, as their homestead, and that since their separation she and her children have occupied same as their homestead; that the lot in controversy was conveyed to her and her said husband by O. Sweet and M. E. Sweet, acting for themselves and appellant, with full authority from said appellant so to act, who were the owners of said lot or parcel of land, by parol gift, in November, 1901, by clear designation and description, and by marking and staking out said lot, and giving same into possession of her and her said husband, and that same was given to her and her said husband in fee-simple title, without any reservation; that she and her said husband, with full knowledge of said donors, took possession of said land upon the belief that it had been given to them, and in December, 1901, erected permanent improvements upon said land upon the faith of the gift to them; that the improvements erected by them consisted of a dwelling

Appeal from District Court, Fannin Coun- house, valued at $1,200, and that the value of ty; Ben H. Denton, Judge.

Action by Clarence H. Sweet against Carry Lyon and another. From a judgment granting insufficient relief, plaintiff appeals. Modified.

J. M. Willis and H. G. Evans, for appellant.

EIDSON, J. Appellant brought this suit in the court below on a promissory note alleged to have been executed by appellee W. L. Lyon on the 7th day of February, 1902, in favor of appellant, for the sum of $500, bearing interest at the rate of 10 per cent. per annum from the 1st day of January, 1902, interest payable annually, and stipulating for 10 per cent. additional on principal and interest for attorney's fees, and alleged that said note was given for part of the purchase money of a certain lot of land, and improvements thereon, situated in the town of Trenton, in Fannin county, Tex. Appellant also alleged that, at the date of the execution of the note, appellants O. Sweet and M. E. Sweet executed a deed of conveyance to appellees for said lot of land, and in said conveyance retained a lien to secure the payment of the said note. Appellant prayed for judgment for the amount of said note, principal, interest, and attorney's fees, and

*Rehearing denied June 28, 1905, and writ of error denied by Supreme Court.

the original lot, independent of said improvements, was $100, and that their possession of said lot had been continuous and uninterrupted since November, 1901. Said appellee further alleged that the note sued on was not a vendor's lien note, and was not given to secure any part of the purchase money of said lot, but that said note is an attempted lien on said homestead of said appellee, given by W. L. Lyon to secure the loan of money made by M. E. Sweet to him, the said W. L. Lyon, and appellee Carry Lyon; that said alleged lien was given in February, 1902, long after appellees had gone into possession of said lot as their homestead, and after they had erected permanent improvements thereon; that said lot was the homestead of appellees when said note here sued on was given; that said note is signed by W. L. Lyon, and is not signed by Carry Lyon; and that said Carry Lyon failed and refused to sign said note, and said note does not and cannot constitute a valid lien on her homestead, for the reason that it was not given as a part of the purchase price thereof. Appellee Carry Lyon further alleged that said note was given for money borrowed, and that a part of said money was used in the erection of improvements on her said homestead, but that said improvements were erected prior to the execution of said note. Appellee Carry Lyon prayed that the alleged

parol gift of said land to her and her husband be established, and that she have judgment for said land, and that she also have judgment establishing her homestead right in said premises, and declaring said note an invalid mortgage on said premises. Appellant, by supplemental petition, presented a general demurrer and general denial to appellee Carry Lyon's said answer. The case was submitted to the court without a jury, and judgment was rendered for the appellant against W. L. Lyon for the sum of $670.04, without foreclosure of the lien prayed for.

There are no conclusions of fact or law embraced in the record. We find that the material allegations of the special answer of appellee Carry Lyon are supported by the evidence, and that the note sued on was not given for the purchase money of the land in controversy, and that the lot of land in controversy was the homestead of W. L. and Carry Lyon at and prior to the execution of the note sued on, and was such homestead up to the separation of the said W. L. and Carry Lyon, and thereafter and at the date of the trial was the homestead of appellee Carry Lyon. There was no controversy as to the execution of the note sued on by W. L. Lyon, nor as to his personal liability thereon.

Appellant's second assignment of error complains of the refusal of the court to foreclose the alleged lien upon the premises described in his petition, upon the ground that said lien is fully expressed and reserved in the deed executed by O. Sweet and his wife, M. E. Sweet, and Clarence Sweet, cf date February 7, 1902, and that said lien is acknowledged and retained in the note sued on to secure the payment thereof, principal, interest, and attorney's fees.

Appellant's first proposition under this assignment of error is that, where a deed conveying land by its terms reserves a lien upon the property to secure the payment of a specific sum of money, no homestead right in the property can be acquired by the purchaser as against the lien; though the sum named constitute no part of the purchase money proper, the title only vests subject to the lien. We are of the opinion that appellant's contention as manifested by this proposition is not sound, especially when attempted to be applied to the pleadings and evidence in this case. Appellee Carry Lyon's special answer and the evidence adduced in support thereof show that the homestead character was impressed upon the lot in controversy prior to the execution of the note sued on, and that the note was not given for the purchase money of said lot. The property being a homestead, no valid lien could be given upon it. Loan Co. v. Blalock, 76 Tex. 88, 13 S. W. 12; Freeman v. Hamblin, 1 Tex. Civ. App. 163, 21 S. W. 1019; Kempner v. Comer, 73 Tex. 196, 11 S. W. 194. Appellees acquired title to the lot in controversy by virtue of the parol gift; taking possession in pursuance thereof, and making 88 S.W.-25

valuable permanent improvements thereon. Wooldridge v. Hancock, 70 Tex. 21, 6 S. W. 818; Baker's Ex'rs v. De Freese (Tex. Civ. App.) 21 S. W. 963; Samuelson v. Bridges (Tex. Civ. App.) 25 S. W. 636; Doyle v. Bank (Tex. Civ. App.) 50 S. W. 480.

Appellant's second proposition under his second assignment of error is not germane to the assignment of error, and therefore is not entitled to consideration. However, if appellant could assert any right to the lot by virtue of its being his homestead prior to and at the time of making the parol gift to appellees, he had no pleadings raising such issue in this case, and without such pleadings he could not avail himself of any such right.

By his first assignment of error, appellant contends that the court erred in rendering judgment in favor of appellant for $670.04, when the undisputed evidence is that there is due and owing to appellant on the note sued upon the sum of $709.22; being the principal, interest, and attorney's fees, as shown by said note. We think appellant is correct in this contention, and the judgment of the court below will be reformed so as to recite the amount recovered by appellant, including principal, interest, and attorney's fees, to be $709.22, instead of $670.04. But appellant is not entitled to the costs of appeal, on account of not having called the attention of the court below to the mistake in the amount of the judgment by motion for a new trial or otherwise, as evidently, if he had done so, that court would have made the proper correction.

The judgment of the court below is reformed as above indicated and affirmed. Reformed and affirmed.

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1. STATUTE OF FRAUDS-CONTRACT FOR SALE OF REALTY-DESCRIPTION OF VENDOR.

A contract for the sale of realty describing the vendor as the "estate of F." did not sufficiently describe the vendor to comply with Sayles' Rev. Civ. St. 1897, art. 2543 (Statute of Frauds).

[Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, §§ 212, 213.] 2. SAME-VARIATION BY PAROL.

Where a contract for the sale of land described the vendor as the "estate of F.," parol evidence that by the quoted words was meant, not the heirs, legatees, and devisees of F., but those of another person, would be inadmissible because varying the written instrument.

see

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 1846, 1906-1908; vol. 23, Cent. Dig. Frauds, Statute of, § 375.] 3. SAME-DESCRIPTION OF LAND.

Where a contract for the sale of land showed on its face that a part of the land was owned by an individual and part by a certain estate, but did not describe the respective parts owned by each, the contract was insufficient to comply with Sayles' Rev. Civ. St. 1897, art. 2543 (Statute of Frauds).

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Where a contract made by an agent is void under the statute of frauds, the agent, thought not authorized by his alleged principal, is not liable thereon.

Error from District Court, Dallas County; Richard Morgan, Judge.

Action by R. H. Morrison against Elizabeth Hazzard and others. The action was dismissed, and plaintiff brings error. Affirmed.

Cobb & Avery, for plaintiff in error. Bryan T. Barry, Etheridge & Baker, and H. L. Bromberg, for defendants in error.

EIDSON, J. This suit was brought by plaintiff in error against defendants in error to enforce the specific performance of a written contract for the sale of two lots in the city of Dallas, and, in the alternative, for damages for its breach, if specific performance was refused. Defendants in error filed and presented in the court below general and special exceptions to plaintiff in error's amended petition and trial amendment, which were sustained by the court, and the suit dismissed.

Plaintiff in error's first assignment of error complains of the action of the court below in sustaining the general demurrers and general exceptions contained in defendants' answers to plaintiff's first amended petition and trial amendment; plaintiff in error's contention being that said petition and trial amendment showed a good cause of action, and therefore said general demurrers and exceptions should have been overruled. The written contract, specific performance of which plaintiff in error sought by this suit to enforce, and which is set out in his petition, is as follows:

"Dallas, Texas, May 20th, 1901. Received of R. H. Morrison through Murphy & Bolanz the sum of $250 in part payment for lots 7 and 8 in block 79 1-4-136 according to Murphy & Bolanz' official map of the city of Dallas, Texas, said lots fronting together 100 feet on the north line of Jackson street and 90 feet on the west line of Prather street, this day sold by me as agent of the estate of F. Lawrence, 25 feet and E. Hazzard 75 feet to the said R. H. Morrison for the purchase price of $5,000 upon the following terms: $3,000 cash, and the balance in two notes of equal payments, and due and payable one and two years after date, with 6 per cent. interest, the interest payable semi-annually as it accrues with the privilege granted the maker of paying off any or all of said notes at any time before the maturity upon giving sixty days notice, said notes to be secured by the usual form of vendor's lien and deed of trust upon the property, conditioned upon a good and authentic abstract showing good and acceptable title to the property, and should the title to the property prove not good, and cannot be made good within a reasonable time, say ot to exceed sixty days from the date here

of, then I obligate myself to return the said Morrison the sum of $250 now paid, upon the return and cancellation of this receipt, balance of cash payment to be made and notes and deed of trust to be executed at once upon delivery of special warranty deed properly conveying the hereinbefore described property. It being understood that the property is to be free and clear of all incumbrances of whatsoever nature, including taxes for the year 1901.

(Agent of) H. A. Kahler, by B. O. Weller. "Accepted: R. H. Morrison.

"(10 cents revenue stamps on original.)” It will be observed that said contract purports to bind E. Hazzard and the estate of F. Lawrence. The petition alleged that, by the terms in said contract, "estate of F. Lawrence" was meant and understood by all parties to mean the heirs, legatees, and devisees of Archilus Lawrence and Franklin Lawrence, deceased, said F. Lawrence being the executor and manager of said estates. We do not think the writing which constitutes the contract can be varied or added to by parol testimony, so as to give the names of parties selling the land, when the writing itself fails to do so. In other words, the writing must contain the names of the parties selling the land and to be bound thereby, or must properly describe them; otherwise it would be materially defective, and could not constitute a written contract for the sale of land. The names of the sellers of the land may be embraced in the body of the writing or subjoined or attached thereto in any manner showing an intention to be bound thereby; or such names may be embraced in some other properly signed paper to which reference is made in the principal writing or memoranda; or the persons selling may be described in such writing or memoranda, and it would be sufficient; but a writing without the names of the sellers of the land embraced therein or subjoined or attached thereto in some way, showing an intention to be bound thereby, or in some other paper properly signed and referred to in the original writing or memoranda, or which writing or memoranda does not properly describe the vendors, is fatally defective, and cannot be used as the basis of an action for specific performance. When the sellers are properly described in the writing, parol evidence is admissible to apply the description and identify the persons described. In the writing under consideration, the names of the sellers of the 25 feet of land mentioned are not given, nor are they in any manner described. The words "estate of F. Lawrence" clearly are not the name or names of any person or persons, and it is equally clear that they do not constitute the description of any person or persons. The word "estate," as generally used, means property of every character, and is ordinarily applied to property of a decedent, a ward, a lunatic, a bankrupt, etc.; that is, to property being administered in the courts.

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