77 lks. to the beginning containing 15 acres of land.' In the same deed a second tract is described as follows (being part of the same survey and part of the said 200-acre tract above named): 'Beginning at the N. E. corner of a 35 acre tract sold to James Galliger at a stake on the W. B. line of the original survey; thence N. with the original E. B. line of said original survey to the N. E. corner thereof; thence W. with the N. B. line of said survey 25 chs. and 97 lks. to a stake in said N. line; thence S. to the N. W. corner of the Galliger 35 acre tract; thence E. with Galliger's N. B. line to the beginning containing 115 acres of land, more or less.' This deed was filed for record in the proper place August 12, 1885.

"(11) I further find that on the 27th day of January, 1877, Robert McRae, by his attorneys, T. C. Goodner and J. H. Jenkins, conveyed by general warranty deed to W. R. Wallis the following described tract of land, to wit (being part of the 200-acre tract owned by McRae in the Madison Walker survey): 'Beginning at a stake on the W. B. line of said 200 acre tract 5.77 chs. north of the N. W. cor. of a 25 acre tract sold by McRae to John H. Burns. Thence E. with the N. B. line of a 15 acre tract sold by McRae to James M. Graves to a stake in the E. B. line of said 200 acre tract and the N. E. corner of said 15 acre tract; thence N. with said E. B. line 3.84 chs. a stake from which a bois d'arc 2 in. in dia. mkd. X brs. W. 5 lks.; thence W. 25 chs. and 97 lks, from which a bois d'arc 4 in. in dia. mkd, X brs. S. 8 E. 25 lks.; thence S. 3.86 chs, to the beginning containing 10 acres of land.' This deed filed for record in the proper place February 7, 1877.

"(12) I further find that on the 27th day of January, 1877, Robert McRae and his attorneys, T. C. Goodner and J. H. Jenkins, by general warranty deed, conveyed to James Galliger the following land, to wit: 'Part of a 200 acre and beginning at the N. W. corner of a 10 acre tract sold by McRae to W. R. Wallis a stake from which a Bois d'arc 4 in. in dia. mkd. X brs. 88 deg. E. 25; thence E 25 chs, and 25 lks. to N. E. corner of said Walker tract, a stake from which a bois d'arc 2 in. in dia. makd. XZ brs. N. 5 lks.; thence N. 13 chs. and 48 lks. to a stake from which an Elm 10 in, in dia. mkd. X brs. S. 61 W. 59 lks.; thence W. 25 chs, and 27 lks. to a stake from which an elm 8 in. in dia. mkd. X brs. S. 141⁄2 E. 139 lks.; thence S. with W. line of said 200 acre tract 13 chs. and 48 lks. to the place of beginning containing 35 acres.' This was filed for record in the proper place February 6, 1877.

“(13) I further find that on the 29th day of September, 1885, James Galliger conveyed to D. B. Sachse the 35-acre tract described in finding No. 12, above described. This deed was filed for record in the proper place October 9, 1885.

“(14) I further find that on the 23d day of October, 1890, W. R. Wallis and wife, by general warranty deed, conveyed to Wm. Sachse the 10-acre tract described in finding No. 11, hereinabove named, and Wm. Sachse filed his deed in the proper place January 13, 1894.

"(15) I further find that on the 25th day of October, 1893, Wm. Sachse, by general warranty deed, conveyed the 10-acre tract described in findings Nos. 11, 14, to D. B. Sachse. This deed was filed for record in the proper place on the 3d day of January, 1894.

"(16) I further find that on the 3d day of October, 1900, D. B. Sachse executed a deed in trust to R. T. Shelton, as trustee, to 175 acres of land embraced in the 200-acre tract originally sold to Robert McRae by Johnson and Wilson, or, in other words, that said trust embraced all of said 200-acre tract except the land in controversy. It also embraced other lands belonging to D. B. Sachse. This deed of trust was intended to secure a note of date September 15, 1900, for $5,000, and drawing interest at 10% per annum. The note was executed by D. B. Sachse as principal, and was signed by J. K. Sachse, D. B. Sachse, J. C. Billingsly, W. W. Ingrum, J. A. Sachse, A. J. Brand, F. M. Sachse, J. N. Sachse, F. M. Sachse, and Martha A. Sachse. The note was payable to and owned by the Plano National Bank, one of the defendants in this suit. The deed in trust was filed for record in the proper place on October 19, 1900.

"(17) I further find that on the 4th day of April, 1902, D. B. Sachse by general warranty deed conveyed to W. J. McBride, defendant in this suit, the following described tracts of land, to wit: 'Part of the Madison Walker survey and beginning at the N. E. corner of the original survey, thence S. 81 chs. a stake from which a triple bois d'arc mkd. X brs. N. 27 deg. W. 3 Iks. to the N. E. corner of the J. H. Burns 25 acre tract; thence with said J. H. Burns N. B. Line 26 chs. & 77 lks. to said J. H. Burns N. W. corner a stake from which a fallen bois d'arc mkd. X brs. S. 34 deg. W. 12 lks. from root; thence S. with said J. H. Burns W. B. line 4 chs. & 90 lks. to a stake from which a Burr Oak mkd. X brs. S. 59 deg. W. 29 Iks.; thence W. 5 chs. and 50 lks. to a stake on W. B. line of original survey, from which an elm marked X brs. N. 53 E. 15 lks.; thence N. 84 chs. & 90 lks. to N. W. cor. of original survey; thence E. 31 chs. and 84 lks. to beginning and containing 262.36 acres of land.' This deed was filed for record April 18, 1902. The consideration of this deed recited and proved was $6,872, and was paid as follows, to wit: W. J. McBride, as a part of the consideration, conveyed to D. B. Sachse a 35-acre tract of the value of $900. McBride paid cash $2,172.80, and for the balance he executed three promissory notes, each for the sum of $1,266%, and drawing

Interest from April 1, 1902, at the rate of 10% per annum, interest payable annually. That each of said notes were payable to the Plano National Bank or order. That said cash and the three notes aforesaid, by agreement between bank and D. B. Sachse, were given to said bank in extinguishment of the deed in trust and notes for $5,000 secured thereunder, as set out and described in the sixteenth finding of fact hereinabove described. That on the same day on which the deed from Sachse and wife to McBride was executed, to wit, the 4th day of April, 1902, the Plano National Bank released the deed in trust above described, and canceled the note for $5,000.

"(18) I further find that, before W. J. McBride bought the land described in the seventeenth finding of fact, he employed one P. Q. Russell to survey said land, and that W. J. McBride was informed before he bought and paid for said land that, while the field notes of the deed from D. B. Sachse and wife to W. J. McBride embraced 262.36 acres of land, yet, as a matter of fact, that D. B. Sachse only claimed 229 acres of land, and the several deeds through and under which D. B. Sachse claimed the land he sold to W. J. McBride in the aggregate only embraced 229 acres of land; that W. J. McBride, after this suit was commenced, and after the Plano National Bank was made a party to this suit, paid off to the Plano National Bank one of the three vendor's lien notes given as a part of the purchase price for the land; that the other two notes given for said land, and each of which constitutes a vendor's lien upon said land, after this suit was commenced, which was July 7, 1902, and after the Plano National Bank was made a party to this suit, were transferred to one J. C. Cowan for a valuable consideration; that said transfer to Cowan was made at the request of defendant W. J. McBride in order to enable him to get said notes carried at a lower rate of interest than the Plano National Bank was willing to carry said notes, in this: that now the said W. J. McBride pays interest on said notes at the rate of 8 per cent. per annum, while he paid interest to the Plano National Bank at the rate of 10 per cent. per annum.

"(19) I further find that D. B. Sachse is insolvent, and that W. J. McBride could not make him responsible on his warranty in case any part of the land was recovered by plaintiff in this suit; that W. J. McBride, at the time he bought the land, bought it by the acre, and not in gross; that he was to pay $26.19 per acre, and that the 25 acres of land in dispute cost W. J. McBride, in the aggregate, the sum of $554.75.

"(20) I further find that the Plano National Bank were purchasers in good faith of the notes given for the balance of the purchase money of said land, and were not aware that there was any shortage in the

land bought by McBride till after it was made a party defendant to this suit; that the bank never owned the land, nor warranted the title; that they have no means by which they could compel D. B. Sachse to reimburse them in case the bank should be compelled to pay W. J. McBride for any shortage on said land.

"(21) I further find that after the survey was made by P. Q. Russell, and after the trade was made with W. J. McBride for the land purchased by him of D. B. Sachse, the said Russell on one occasion asked the plaintiff where he claimed his land to be situated, with reference to the triple bois d'arc on the east boundary line of the Madison Walker survey, and the said plaintiff told said Russell that the plaintiff claimed his 25-acre tract to be south of where said triple bois d'arc now stands on the ground. At the time this statement was made by plaintiff, he was not on the land in dispute, and his statement had no influence in inducing W. J. McBride to purchase any of the land from D. B. Sachse.

"Conclusions of Law.

"From the findings of fact in this case I deduce the following conclusions of law, to wit:

"(a) That in a deed or grant the instrument must be most strongly construed against the grantor.

"(b) That it is a rule of construction that a private grant shall be taken most favorably for the grantee in case the construction is left in doubt after the application of other rules, upon the assumption that the language of the deed is the language of the grantor. Hence, in case there are two descriptions in a deed which are inconsistent with each other, the grantee is at liberty to select that which is most favorable to him.

"(c) The findings of fact in this case show that the calls in the deed from Robert McRae to John H. Burns, plaintiff in this case, are conflicting, if the triple bois d'arc called for at the northeast corner of the 25-acre tract, and the forked bois d'arc called for at the northwest corner of the 25-acre tract, are located where defendant claims them to be. If course and distance be adopted as the controlling calls, it will harmonize with the intention of the grantor to give plaintiff 25 acres of land in the 200-acre tract. It will harmonize with the call for the southwest and southeast corners of the 200-acre tract of land. It will harmonize with all the several deeds conveying parts of the 200-acre tract of land to different parties. In a word, it will harmonize with everything except the naked fact that there is a triple bois d'arc, with proper marks on it, on the east boundary line of the Madison Walker survey, way south of the south boundary line of the 200-acre tract sold Robert McRae, and that there is a fallen bois d'arc, with proper marks on it, situated on the west boundary

line of the Madison Walker survey, way south of the boundary line of the 200-acre tract of land. To adopt the construction contended for by plaintiff will give all parties claiming land in the 200-acre tract sold Robert McRae by Johnson and Wilson the full quantity of land sold them under their respective deeds, whereas, to adopt the construction contended for by defendant W. J. McBride will give parties under whom he claims an excess of land, and will place the tract of 25 acres entirely south of the 200acre tract, and outside of it, and at a point where the evidence in the case shows that McRae owned no land whatever. I therefore conclude, as a matter of law, that the plaintiff is entitled to recover the land claimed by him in his petition, and judgment will be rendered accordingly on this branch of the case, and for costs.

"(d) The Plano National Bank not having owned the land, and not having warranted the title, and having transferred the notes to Cowan at the request of the defendant W. J. McBride, and the Plano National Bank having done nothing to induce W. J. McBride to purchase the land, and the cash received from the purchase price paid by W. J. McBride for the land being in settlement of a bona fide claim on the land of D. B. Sachse, on which it had a recorded lien, I conclude from all these facts that the equities of the bank were at least equal, if not superior, to any equities in favor of defendant W. J. McBride, and that for that reason judgment be rendered in favor of the Plano National Bank-that the defendant W. J. McBride take nothing as against the Plano National Bank, and that it recover its costs.

"(e) The defendant having purchased the land from D. B. Sachse under a warranty of title, and at so much per acre, and the title to 25 acres having failed, I conclude that defendant W. J. McBride is entitled to recover over and against D. B. Sachse the sum of $654.75 for the 25 acres recovered of defendant McBride, and for all costs of suit."

Appellant may be correct in his construction of the evidence, wherein he contends that the conclusion reached by the court that the notes were transferred to Cowan by the bank at the request of McBride is not supported by the testimony. If we should concede the correctness of this contention, the judgment of the trial court in favor of the bank may be predicated upon the conclusion reached that the bank, in accepting the notes under the circumstances as stated in the findings of fact, did not become bound and obligated on the warranty of title executed by Sachse. Therefore the judgment in favor of the bank is correct.

The facts stated in the record also justify the conclusion of the court on the subject of boundary.

We find no error in the record, and the judgment is affirmed.

Affirmed.

FT. WORTH & D. C. RY. CO. v. HENRY et al.

(Court of Civil Appeals of Texas. June 24, 1905.)

APPEAL-BOND - MISRECITAL OF APPELLATE COURT.

A bond reciting a justice's judgment, and stating that defendant desires to appeal therefrom to the county court, is insufficient to confer jurisdiction of the appeal on the district

court.

Error from District Court, Henderson County; J. J. Word, Judge.

Action by Dempsey Henry and others against the Ft. Worth & Denver City Railway Company. There was a judgment of the district court dismissing an appeal from a justice's judgment for plaintiffs, and defendant brings error. Affirmed.

Spoonts & Thompson and Marshall Spoonts, for plaintiff in error. Richardson & Watkins, for defendants in error.

TALBOT, J. This suit was instituted in the justice court of Henderson county, and from an adverse judgment plaintiff in error attempted to appeal to the district court of that county. The civil jurisdiction of the county court had been abolished and vested in the district court. The appeal bond filed in the justice court, after describing the judgment rendered in that court, reads: "From which said judgment the said Fort Worth and Denver City Railway Company (a corporation) desires to appeal to the Honorable County Court of said county: Now, therefore, we, the said Ft. Worth & Denver City Ry. Co., Appellant, as principal, and the undersigned, acknowledge ourselves bound to pay the said Dempsey Henry and the St. Louis Southwestern Ry. Co. of Texas, or either of them, the sum of One Hundred and Fifty and no/100 ($150.00) Dollars, conditioned that said appellant shall prosecute its said appeal to effect and shall pay off and satisfy the judgment which may be rendered against it on such appeal." A transcript of the proceedings in the justice court, together with the bond and the original papers, having been filed in the district court of Henderson county, the latter court, upon motion of defendants in error, dismissed the appeal. The specific ground upon which the court's action was based does not appear, but we infer the court ruled that the language, "from which said judgment the said Fort Worth and Denver City Railway Company (a corporation) desires to appeal to the Honorable County Court of said county," used in said bond, rendered the same void, and jurisdiction was not thereby conferred upon the district court of the case. To this effect is the holding of the courts in the cases of Turner v. Southern Pine Lumber Co., 16 Tex. Civ. App. 545, 40 S. W. 1078, and Gulf, B. & G. N. Ry. Co. v. Lyons (Tex. Civ. App.) 86 S. W. 44, in which

we concur.

Plaintiff in error's fourth assignment is that the court erred in sustaining the motion to dismiss its appeal from the justice court, "for the reason that prior to the court's action upon said motion to dismiss said appeal the defendant tendered to said district court of Henderson county an appeal bond conditioned in words and figures as required by the statute." The question involved in this assignment is not sufficiently raised and presented by the record to authorize a consideration and review of it by this court. We do not wish to be understood, however, as intimating that, if the question was properly presented, this court would hold there was error in the lower court's action in refusing to permit such bond to be filed.

The judgment of the court below is affirmed.

In an action on a note, where the defense was payments to one other than the plaintiff, who held the note, the burden was on defendant to show that the one to whom payments were made had authority to collect it.

[Ed. Note. For cases in point, see vol. 40, Cent. Dig. Principal and Agent, § 397.]

3. SAME-PAYMENT TO AGENT-POSSESSION OF NOTE-SUFFICIENCY.

Where the payee of a note indorsed it to another, payment made to the payee thereafter was good, the payee being in possession of the note, though it was not indorsed by the payee's indorsee.

[Ed. Note.-For cases in point, see vol. 7, Cent. Dig. Bills and Notes, §§ 1234, 1240-1242.] 4. AGENCY TO COLLECT NOTE-COLLECTION OF INTEREST-AUTHORITY TO COLLECT PRIN

CIPAL.

Authority to collect the interest on a note creates no presumption of authority to collect the principal.

[Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Principal and Agent, § 299.]

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by Henry P. Higley and wife against R. A. Dennis and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

F. W. Bartlett, T. D. Starrus, and L. L. Bowman, for appellants. Looney & Clark, for appellees.

RAINEY, C. J. "Appellants Henry P. Higley and wife, Eliza M. Higley, brought this suit April 28, 1903, on a negotiable note for $700, executed by Hugh H. Tilson, paya

ble to the Bunnell & Eno Investment Company or order, dated December 1, 1899, due December 1, 1906, bearing interest at the rate of 6 per cent. per annum, according to seven annual interest coupons attached for the sum of $42 each, principal and interest notes bearing 10 per cent. interest after maturity, and providing for 10 per cent. attorney's fee if suit should be instituted to collect the same. The principal note provided that if default should be made in the payment of any interest, then the principal sum, with all accrued interest, should, at the election of the holder, become due and payable at once. Appellants also asked for foreclosure of a mortgage lien created at the time said note was executed for the purpose of securing payment of same. Judgment was sought against appellees H. A. and Earnest Dennis by reason of their purchase of the land covered by said mortgage lien and their assumption of said indebtedness. W. Bostwick was made a defendant as the owner of an indebtedness secured by a junior lien on the same land. Appellees Dennis answered by general denial plea of payment, and plea of estoppel; and by cross-bill they asked cancellation of appellants' mortgages, and that same be removed as clouds on their title. The case was tried before the court without a jury, and judgment was rendered against appellants, and in favor of the appellees on their cross-bill."

A disposition of the case depends upon whether or not the evidence is sufficient to show that at the time Dennis paid to the Bunnell & Eno Investment Company the amount of the note it was authorized to collect said note. If so, the judgment must be affirmed; if not, the judgment must be reversed, and cause remanded. The note in suit was made payable to the order of the Bunnell & Eno Investment Company, at its office in Philadelphia, Pa. Interest was payable annually, and besides the interest it authorized the payment of $100, or multiple thereof, on the principal, at any interestpaying period. The note was indorsed: "Pay to the order of Eliza M. Higley without liability except under the accompanying guaranty. The Bunnell & Eno Investment Company, Natt H. Ellis, Vice President." The note was given for part of the purchase price of land, and secured by a lien thereon. The Dennis brothers had bought the land and assumed the payment of said note. An interest-paying period occurred on December 1, 1901. Dennis and brother remitted to said investment company a sum, just before this date, sufficient to cover the principal and interest due at that time, which was received, and in due time Dennis and brother received through the mail the interest coupon; but the investment company wrote them in effect that the contract provided that 30 days' notice of intention to pay more than the accrued interest must be given (which was not true), and, as Dennis and

brother had not complied therewith, the company would not receive the money as payment of the note, but would hold it subject to their order, etc. There was some correspondence between the investment company and Dennis and brother, and in the company's letters there were statements from which it might be inferred that the said company held the note for collection; but these statements were not binding on plaintiff, there being no proof that said company was the agent of plaintiff. Agency cannot be established by the declarations of the one purporting to be an agent, nor can the admissions and statements of such a one bind the principal until such agency is established. Coleman v. Colegate, 69 Tex. 88, 6 S. W. 553.

The note being negotiable and indorsed to plaintiff, Eliza M. Higley, the burden was on defendants to show that the investment company was authorized to collect the note in order to obtain relief by reason of payment to said company. Mr. Daniel on Negotiable Instruments, in volume 2, § 1230, says: "Payment of a bill or note should be made to the legal owner or holder thereof, or some one authorized by him to receive it. If it be payable to bearer or indorsed in blank, any person having it in possession may be presumed to be entitled to receive payment, unless the payor has notice to the contrary; and a payment to such person will be valid, although he may be a thief, finder, or fraudulent holder." The note was not indorsed by Eliza M. Higley. Had it so been, or had it been in the possession of the investment company, the payment to said company would have been good. Mr. Daniel, in section 1230a, doubts the correctness of the holding in some cases that the payment to the holder of unindorsed negotiable paper is good. There are authorities to the contrary, but, as the note in this case was payable at the office of the investment company, we are inclined to the opinion that the payment in this case to said company discharged the note, provided, at the time of payment, it was held by said company.

Payment of installments of interest prior to the installment of December 1, 1901, to said company, and the appropriation to the payment of December 1, 1901, interest part of the amount remitted to said company to pay off and discharge said note, does not tend to show agency in said company to collect said note. In Cunningham v. McDonald, 83 S. W. 372, 11 Tex. Ct. Rep. 418, it is said: "If, however, it was admitted that the corporation, acting as the agent of Cunningham, collected the interest from McDonald, that fact would not tend to prove that it had the authority to collect the principal of the note. How can it be inferred from the agency to collect the interest that the agency to collect the note existed? The one fact does not form a basis for the presumption of the other fact."

SS S.W.-26

The evidence being insufficient to show that the investment company was authorized to collect the note or had possession thereof at the time of payment, the judgment is reversed, and cause remanded.

COBB v. GOOCH.*

(Court of Civil Appeals of Texas. June 10, 1905.)

TRESPASS TO TRY TITLE-RIGHT TO SUE.

Where plaintiff in trespass to try title forcibly ejected defendant from a position in line at a sale of the land in controversy as public land, any irregularity of the defendant in subsequently procuring the filing of his application ahead of the plaintiff and being awarded the land on his application was neutralized by plaintiff's use of force, and plaintiff could not bring the action to establish his prior right to purchase the land, because he could not come into court with clean hands.

Appeal from District Court, Glasscock County; Jas. L. Shepherd, Judge.

Action by A. H. Gooch against E. T. Cobb. From a judgment in favor of plaintiff, defendant appeals. Reversed.

'Beall & Beall, for appellant. J. B. Littler, E. Douthit, and S. H. Morrison, for appellee.

CONNER, C. J. The contestants in this case are rival claimants of sections 24 and 36 in block 36, and section 30 in block 35, of state school land surveys in Glasscock county. Both parties claim by virtue of applications to purchase and actual settlement on section 30 as the home section and the remainder as additional thereto. The applications of appellant were made and filed with the county clerk of said county at 12 o'clock and 56 minutes a. m. of August 1, 1902, and those of appellee were made and filed with said clerk about 2 a. m. on the same day. The applications, obligations, and payments of both parties were regular, but the lands were awarded to appellant by the Commissioner of the General Land Office on the 6th day of October, 1902, appellee's applications being rejected on the same day. The action was instituted in the form of trespass to try title by appellee, and the controverted issues upon the trial were actual settlement on appellee's part at the time he made and filed his applications, and whether appellant's priority in filing was surreptitiously and fraudulently acquired. The court found both of these issues in appellee's favor, and hence gave him judgment for the lands in controversy. That appellant was an actual settler upon section 30 at the time his applications to purchase were made and filed is not controverted. His right to recover, indeed, cannot be controverted save upon the ground that his priority in filing was illegally obtained, as found by the court; and the assignments of error present only the question

Rehearing denied July 1, 1905, and writ of error denied by Supreme Court.