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77 Iks. to the beginning containing 15 acres "(14) I further find that on the 23d day of of land. In the same deed a second tract is October, 1890, W. R. Wallis and wife, by described as follows (being part of the same general warranty deed, conveyed to Wm. survey and part of the said 200-acre tract Sachse the 10-acre tract described in finding above named): 'Beginning at the N. E. cor- No. 11, hereinabove named, and Wm. Sachse ner of a 35 acre tract sold to James Galliger filed his deed in the proper place January 13, at a stake on the W. B. line of the original 1891. survey; thence N. with the original E. B. "(15) I further find that on the 25th day line of said original survey to the N. E. cor- of October, 1893, Wm. Sachse, by general ner thereof; thence W. with the N. B. line warranty deed, conveyed the 10-acre tract of said survey 25 chs. and 97 lks. to a stake described in findings Nos. 11, 14, to D. B. in said N. line; thence S. to the N. W. cor- Sachse. This deed was filed for record in ner of the Galliger 35 acre tract; thence E. the proper place on the 3d day of January, with Galliger's N. B. line to the beginning | 1894. containing 115 acres of land, more or less.' "(16) I further find that on the 3d day of This deed was filed for record in the proper October, 1900, D. B. Sachse executed a deed place August 12, 1885.

in trust to R. T. Shelton, as trustee, to 175 "(11) I further find that on the 27th day acres of land embraced in the 200-acre tract of January, 1877, Robert McRae, by his at- originally sold to Robert McRae by Johnson torneys, T. C. Goodner and J. H. Jenkins, and Wilson, or, in other words, that said conveyed by general warranty deed to W. trust embraced all of said 200-acre tract exR. Wallis the following described tract of cept the land in controversy. It also emland, to wit (being part of the 200-acre tract braced other lands belonging to D. B. Sachse. owned by McRae in the Madison Walker sur- This deed of trust was intended to secure a vey): “Beginning at a stake on the W. B. note of date September 15, 1900, for $5,000, line of said 200 acre tract 5.77 chs. north of and drawing interest at 10% per annum. the N. W. cor. of a 25 acre tract sold by The note was executed by D. B. Sachse as McRae to John H. Burns. Thence E. with principal, and was signed by J. K. Sachse, the N. B. line of a 15 acre tract sold by Mc- D. B. Sachse, J. C. Billingsly, W. W. Ingrum, Rae to James M. Graves to a stake in the J. A. Sachse, A. J. Brand, F. M. Sachse, J. N. E. B. line of said 200 acre tract and the N. E. Sachse, F. M. Sachse, and Martha A. Sachse. corner of said 15 acre tract; thence N. with The note was payable to and owned by the said E. B. line 3.84 chs. a stake from which Plano National Bank, one of the defendants a bois d'arc 2 in. in dia, mkd. X brs. W. 5 in this suit. The deed in trust was filed for Iks.; thence W. 25 chs. and 97 Iks, from record in the proper place on October 19, which a bois d'arc 4 in. in dia. mkd. X brs. 1900. S. 8 E. 25 Iks.; thence S. 3.86 chs, to the be- "(17) I further find that on the 4th day of ginning containing 10 acres of land.' This April, 1902, D. B. Sachse by general wardeed filed for record in the proper place Feb- ranty deed conveyed to W. J. McBride, deruary 7, 1877.

fendant in this suit, the following describ"(12) I further find that on the 27th day of ed tracts of land, to wit: 'Part of the Madi. January, 1877, Robert McRae and his attor- son Walker survey and beginning at the N. neys, T. C. Goodner and J. H. Jenkins, by E. corner of the original survey, thence S. general warranty deed, conveyed to James 81 chs. a stake from which a triple bois Galliger the following land, to wit: 'Part d'arc mkd. X brs. N. 27 deg. W. 3 Iks. to the of a 200 acre and beginning at the N. W. cor- N. E. corner of the J. H. Burns 25 acre tract; ner of a 10 acre tract sold by McRae to thence with said J. H. Burns N. B. Line 26 W. R. Wallis a stake from which a Bois chs. & 77 Iks. to said J. H. Burns N. W. cord'arc 4 in. in dia. mkd. X brs. 88 deg. E. ner a stake from which a fallen bois d'arc 25; thence E 25 chs, and 25 lks. to N. E. mkd. X brs. S. 34 deg. W. 12 Iks, from root; corner of said Walker tract, a stake from thence S. with said J. H. Burns W. B. line which a bois d'arc 2 in. in dia. makd. XZ 4 chs. & 90 lks. to a stake from which a brs. N. 5 Iks.; thence N. 13 chs, and 48 lks. Burr Oak mkd. X brs. S. 59 deg. W. 29 lks.; to a stake from which an Elm 10 in, in dia. thence W. 5 chs. and 50 lks. to a stake on mkd. X brs. S. 61 W. 59 Iks.; thence W. 25 W. B. line of original survey, from which chs, and 27 Iks. to a stake from which an elm an elm marked X brs. N. 53 E. 15 lks.; 8 in. in dia. mkd. X brs. S. 1412 E. 139 thence N. 84 chs. & 90 Iks. to N. W. cor. Iks.; thence S. with W. line of said 200 acre of original survey; thence E. 31 chs. and tract 13 chs. and 48 lks. to the place of be- 84 lks. to beginning and containing 262.36 ginning containing 35 acres.' This was filed acres of land.' This deed was filed for recfor record in the proper place February 6, ord April 18, 1902. The consideration of this 1877.

deed recited and proved was $6,872, and was "(13) I further find that on the 29th day of paid as follows, to wit: W. J. McBride, as September, 1885, James Galliger conveyed to a part of the consideration, conveyed to D. B. D. B. Sachse the 35-acre tract described in Sachse a 35-acre tract of the value of $900. finding No. 12, above described. This deed McBride paid cash $2,172.80, and for the balwas filed for record in the proper place Octo- ance he executed three promissory notes, ber 9, 1885.

each for the sum of $1,26073, and drawing

interest from April 1, 1902, at the rate of , land bought by McBride till after it was 10% per annum, interest payable annually. made a party defendant to this suit; that That each of said notes were payable to the the bank never owned the land, nor warrantPlano National Bank or order. That said ed the title; that they have no means by cash and the three notes aforesaid, by agree- which they could compel D. B. Sachse to rement between bank and D. B. Sachse, were imburse them in case the bank should be given said bank in extinguishment of compelled to pay W. J. McBride for any the deed in trust and notes for $5,000 secur- shortage on said land. ed thereunder, as set out and described in "(21) I further find that after the survey the sixteenth finding of fact hereinabove de- was made by P. Q. Russell, and after the scribed. That on the same day on which the trade was made with W. J. McBride for the deed from Sachse and wife to McBride was land purchased by him of D. B. Sachse, the executed, to wit, the 4th day of April, 1902, said Russell on one occasion asked the plainthe Plano National Bank released the deed tiff where he claimed his land to be situated, in trust above described, and canceled the with reference to the triple bois d'arc on the note for $5,000.

east boundary line of the Madison Walker “(18) I further find that, before W. J. survey, and the said plaintiff told said RusMcBride bought the land described in the sell that the plaintiff claimed his 25-acre tract seventeenth finding of fact, he employed one to be south of where said triple bois d'arc P. Q. Russell to survey said land, and that now stands on the ground. At the time this W. J. McBride was informed before he statement was made by plaintiff, he was not bought and paid for said land that, while on the land in dispute, and his statement had the field notes of the deed from D, B. Sachse no influence in inducing W. J. McBride to and wife to W. J. McBride embraced 262.36 purchase any of the land from D. B. Sachse. acres of land, yet, as a matter of fact, that D. B. Sachse only claimed 229 acres of land,

"Conclusions of Law. and the several deeds through and under "From the findings of fact in this case I which D. B. Sachse claimed the land he sold deduce the following conclusions of law, to to W. J. McBride in the aggregate only em- wit: braced 229 acres of land; that W. J. Mc- “(a) That in a deed or grant the instruBride, after this suit was commenced, and ment must be most strongly construed after the Plano National Bank was made a

against the grantor. party to this suit, paid off to the Plano

"(b) That it is a rule of construction that National Bank one of the three vendor's

a private grant shall be taken most favorlien notes given as a part of the purchase ably for the grantee in case the construction price for the land; that the other two notes is left in doubt after the application of other given for said land, and each of which con- rules, upon the assumption that the language stitutes a vendor's lien upon said land, after of the deed is the language of the grantor. this suit was commenced, which was July Hence, in case there are two descriptions in 7, 1902, and after the Plano National Bank a deed which are inconsistent with each othwas made a party to this suit, were trans er, the grantee is at liberty to select that ferred to one J. C. Cowan for a valuable

which is most favorable to him. consideration; that said transfer to Cowan

"(c) The findings of fact in this case show was made at the request of defendant W. J. that the calls in the deed from Robert McMcBride in order to enable him to get said Rae to John H. Burns, plaintiff in this case, notes carried at a lower rate of interest than

are conflicting, if the triple bois d'arc callthe Plano National Bank was willing to car- ed for at the northeast corner of the 25-acre ry said notes, in this: that now the said

tract, and the forked bois d'arc called for at W. J. McBride pays interest on said notes the northwest corner of the 25-acre tract, at the rate of 8 per cent. per annum, while are located where defendant claims them to he paid interest to the Plano National Bank

be. If course and distance be adopted as at the rate of 10 per cent. per annum.

the controlling calls, it will harmonize with "(19) I further find that D. B. Sachse is the intention of the grantor to give plaintiff insolvent, and that W. J. McBride could not 25 acres of land in the 200-acre tract. It make him responsible on his warranty in will harmonize with the call for the southcase any part of the land was recovered by west and southeast corners of the 200-acre plaintiff in this suit; that W. J. McBride, at tract of land. It will harmonize with all the time he bought the land, bought it by the the several deeds conveying parts of the acre, and not in gross; that he was to pay 200-acre tract of land to different parties. In $26.19 per acre, and that the 25 acres of land a word, it will harmonize with everything in dispute cost W. J. McBride, in the aggre- except the naked fact that there is a triple gate, the sum of $554.75.

bois d'arc, with proper marks on it, on the "(20) I further find that the Plano Na- east boundary line of the Madison Walker tional Bank were purchasers in good faith survey, way south of the south boundary line of the notes given for the balance of the of the 200-acre tract sold Robert McRae, and purchase money of said land, and were not that there is a fallen bois d'arc, with proper aware that there was any shortage in the marks on it, situated on the west boundary

line of the Madison Walker survey, way south of the boundary line of the 200-acre FT. WORTH & D. C. RY. CO. V. HENRY tract oi land. To adopt the construction

et al. contended for by plaintiff will give all par

(Court of Civil Appeals of Texas. June 24, ties claiming land in the 200-acre tract sold

1905.) Robert McRae by Johnson and Wilson the

APPEAL-BOND — MISRECITAL OF APPELLATE full quantity of land sold them under their

COURT. respective deeds, whereas, to adopt the con

A bond reciting a justice's judgment, and struction contended for by defendant W. J. stating that defendant desires to appeal thereMcBride will give parties under whom he

from to the county court, is insufficient to con

fer jurisdiction of the appeal on the district claims an excess of land, and will place the

court. tract of 25 acres entirely south of the 200 acre tract, and outside of it, and at a point

Error from District Court, Henderson where the evidence in the case shows that County; J. J. Word, Judge. McRae owned no land whatever. I therefore Action by Dempsey Henry and others conclude, as a matter of law, that the plain

against the Ft. Worth & Denver City Railtiff is entitled to recover the land claimed by

way Company. There was a judgment of him in his petition, and judgment will be ren

the district court dismissing an appeal from dered accordingly on this branch of the case,

a justice's judgment for plaintiffs, and deand for costs.

fendant brings error. Affirmed. "(d) The Plano National Bank not having Spoonts & Thompson and Marshall Spoonts, owned the land, and not having warranted for plaintiff in error. Richardson & Watthe title, and having transferred the notes to kins, for defendants in error. Cowan at the request of the defendant W. J. McBride, and the Plano National Bank

TALBOT, J. This suit was instituted in having done nothing to induce W. J. Mc

tbe justice court of Henderson county, and Bride to purchase the land, and the cash re

from an adverse judgment plaintiff in error ceived from the purchase price paid by W.J.

attempted to appeal to the district court of McBride for the land being in settlement of

that county. The civil jurisdiction of the a bona fide claim on the land of D. B. Sachse,

county court had been abolished and vested on which it had a recorded lien, I conclude

in the district court. The appeal bond filed from all these facts that the equities of the

in the justice court, after describing the judgbank were at least equal, if not superior, to ment rendered in that court, reads: "From any equities in favor of defendant W. J, MC

which said judgment the said Fort Worth Bride, and that for that reason judgment be and Denver City Railway Company (a correndered in favor of the Plano National

poration) desires to appeal to the Honorable Bank—that the defendant W. J. McBride

County Court of said county: Now, theretake nothing as against the Plano National

fore, we, the said Ft. Worth & Denver City Bank, and that it recover its costs.

Ry. Co., Appellant, as principal, and the un"(e) The defendant having purchased the dersigned, acknowledge ourselves bound to land from D. B. Sachse under a warranty of pay the said Dempsey Henry and the St. title, and at so much per acre, and the title Louis Southwestern Ry. Co. of Texas, or to 25 acres having failed, I conclude that

either of them, the sum of One Hundred and defendant W. J. McBride is entitled to re

Fifty and no/100 ($150.00) Dollars, conditioncover over and against D. B. Sachse the sum

ed that said appellant shall prosecute its said of $634.75 for the 25 acres recovered of de- appeal to effect and shall pay off and satisfy fendant McBride, and for all costs of suit." the judgment which may be rendered against

Appellant may be correct in his construc- it on such appeal.” A transcript of the protion of. the evidence, wherein be contends ceedings in the justice court, together with that the conclusion reached by the court the bond and the original papers, having that the notes were transferred to Cowan by been filed in the district court of Henderson the bank at the request of McBride is not county, the latter court, upon motion of desupported by the testimony. If we should fendants in error, dismissed the appeal. The concede the correctness of this contention, specific ground upon which the court's action the judgment of the trial court in favor of was based does not appear, but we infer the the bank may be predicated upon the con- court ruled that the language, "from which clusion reached that the bank, in accepting said judgment the said Fort Worth and Denthe notes under the circumstances as stated ver City Railway Company (a corporation) in the findings of fact, did not become bound desires to appeal to the Honorable County and obligated on the warranty of title exe- Court of said county,” used in said bond, cuted by Sachse. Therefore the judgment in rendered the same void, and jurisdiction was favor of the bank is correct.

not thereby conferred upon the district court The facts stated in the record also justify of the case. To this effect is the holding of the conclusion of the court on the subject the courts in the cases of Turner v. Southern of boundary.

Pine Lumber Co., 16 Tex. Civ. App. 545, 40 We find no error in the record, and the 9. W. 1078, and Gulf, B. & G. N. Ry. Co. v. judgment is affirmed.

Lyons (Tex. Civ. App.) 86 S. W. 44, in which Affirmed.

we concur.

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Plaintiff in error's fourth assignment is ble to the Bunnell & Eno Investment Comthat the court erred in sustaining the motion pany or order, dated December 1, 1899, due to dismiss its appeal from the justice court, | December 1, 1906, bearing interest at the "for the reason that prior to the court's ac rate of 6 per cent. per annum, according to tion upon said motion to dismiss said appeal seven annual interest coupons attached for the defendant tendered to said district court the sum of $42 each, principal and interest of Henderson county an appeal bond condi- notes bearing 10 per cent. interest after mationed in words and figures as required by turity, and providing for 10 per cent, attorthe statute.” The question involved in this ney's fee if suit should be instituted to colassignment is not sufficiently raised and pre- lect the same. The principal note provided sented by the record to authorize a consid- that if default should be made in the pay. eration and review of it by this court. We ment of any interest, then the principal sum, do not wish to be understood, however, as in. with all accrued interest, should, at the timating that, if the question was properly election of the holder, become due and paypresented, this court would hold there was able at once, Appellants also asked for error in the lower court's action in refusing foreclosure of a mortgage lien created at the to permit such bond to be filed.

time said note was executed for the purpose The judgment of the court below is af- of securing payment of same. Judgment firmed.

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. HIGLEY et ux. v. DENNIS et al.

W. Bostwick was made a defendant as the (Court of Civil Appeals of Texas. June 17,

owner of an indebtedness secured by a junior 1905.)

lien on the same land. Appellees Dennis 1. AGENCY PROOF DECLARATIONS OF answered by general denial plea of payment, AGENTS. Agency may not be established by the dec

and plea of estoppel; and by cross-bill they larations of an alleged agent, nor can his ad- asked cancellation of appellants’ mortgages, missions and statements bind the principal until and that same be removed as clouds on their the agency is shown.

title. The case was tried before the court [Ed. Note. -For cases in point, see vol. 40, Cent. Dig. Principal and Agent, 88 40, 339-343.)

without a jury, and judgment was rendered

against appellants, and in favor of the ap2. NOTES-DEFENSE OF PAYMENT-BURDEN OF PROOF.

pellees on their cross-bill." In an action on a note, where the defense A disposition of the case depends upon was payments to one other than the plaintiff, whether or not the evidence is sufficient to who held the note, the burden was on defendant to show that the one to whom payments were

show that at the time Dennis paid to the made had authority to collect it.

Bunnell & Eno Investment Company the [Ed. Note.—For cases in point, see vol. 40,

amount of the note it was authorized to colCent. Dig. Principal and Agent, g 397.]

lect said note. If so, the judgment must be 3. SAME_PAYMENT TO AGENT-POSSESSION OF affirmed; if not, the judgment must be reNOTE-SUFFICIENCY.

versed, and cause remanded. The note in Where the payee of a note indorsed it to another, payment made to the payee thereafter

suit was made payable to the order of the was good, the payee being in possession of the Bunnell & Eno Investment Company, at its note, though it was not indorsed by the payee's office in Philadelphia, Pa. Interest was payindorsee.

able annually, and besides the interest it (Ed. Note.-For cases in point, see vol. 7,

authorized the payment of $100, or multiple Cent. Dig. Bills and Notes, 88 1234, 1240–1242.)

thereof, on the principal, at any interest4. AGENCY TO COLLECT NOTE-COLLECTION OF

was indorsed: INTEREST-AUTHORITY TO

paying period. The note

COLLECT PRINCIPAL.

"Pay to the order of Eliza M. Higley withAuthority to collect the interest on a note out liability except under the accompanying creates no presumption of authority to collect

guaranty. The Bunnell & Eno Investment the principal.

Company, Natt H. Ellis, Vice President.” [Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Principal and Agent, $ 299.]

The note was given for part of the purchase

price of land, and secured by a lien thereon. Appeal from District Court, Hunt County;

The Dennis brothers had bought the land R. L. Porter, Judge.

and assumed the payment of said note. An Action by Henry P. Higley and wife

interest-paying period occurred on Decemagainst R. A. Dennis and others. From a

ber 1, 1901. Dennis and brother remitted judgment in favor of defendants, plaintiffs

to said investment company a sum, just beappeal. Reversed.

fore this date, sufficient to cover the princiF. W. Bartlett, T. D. Starrus, and L. L. pal and interest due at that time, which was Bowman, for appellants. Looney & Clark, received, and in due time Dennis and brother for appellees.

received through the mail the interest cou

pon; but the investment company wrote RAINEY, C. J. “Appellants Henry P. them in effect that the contract provided Higley and wife, Eliza M. Higley, brought that 30 days' notice of intention to pay more this suit April 28, 1903, on a negotiable note than the accrued interest must be given for $700, executed by Hugh H. Tilson, paya- (which was not true), and, as Dennis and

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brother had not complied therewith, the The evidence being insufficient to show company would not receive the money as that the investment company was authorized payment of the note, but would hold it sub- to collect the note or had possession thereof ject to their order, etc. There was some at the time of payment, the judgment is recorrespondence between the investment com- versed, and cause remanded. pany 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

COBB v. GOOCH. these statements were not binding on plain

(Court of Civil Appeals of Texas. June 10, till, there being no proof that said company

1905.) was the agent of plaintiff. Agency cannot

TRESPASS TO TRY TITLE-RIGHT TO SUE. de established by the declarations of the one

Where plaintiff in trespass to try title forpurporting to be an agent, nor can the admis

cibly ejected defendant from a position in line sions and statements of such a one bind the at a sale of the land in controversy as public principal until such agency is established,

land, any irregularity of the defendant in subColeman v. Colegate, 69 Tex. 88, 6 S. W.

sequently procuring the filing of his application

ahead of the plaintiff and being awarded the 553. .

land on his application was neutralized by The note being negotiable and indorsed to plaintiff's use of force, and plaintiff could not plaintiff, Eliza M. Higley, the burden was on

bring the action to establish his prior right to defendants to show that the investment com

purchase the land, because he could not come

into court with clean hands. pany was authorized to collect the note in order to obtain relief by reason of payment

Appeal from District Court, Glasscock to said company. Mr. Daniel on Negotiable

County; Jas. L. Shepherd, Judge. Instruments, in volume 2, § 1230, says:

Action by A. H. Gooch against E. T. Cobb. “Payment of a bill or note should be made

From a judgment in favor of plaintiff, deto the legal owner or holder thereof, or some

fendant appeals. Reversed. one authorized by him to receive it. If it * Beall & Beall, for appellant. J. B. Littler, be payable to bearer or indorsed in blank, E. Douthit, and S. H. Morrison, for appellee. any person baving it in possession may be presumed to be entitled to receive payment,

CONNER, C. J. The contestants in this unless the payor has notice to the contrary;

case are rival claimants of sections 24 and and a payment to such person will be valid,

36 in block 36, and section 30 in block 35, of although he may be a thief, finder, or fraud

state school land surveys in Glasscock counulent holder.” The note was not indorsed

ty. Both parties claim by virtue of applicaby Eliza M. Higley. Had it so been, or had

tions to purchase and actual settlement on it been in the possession of the investment

section 30 as the home section and the recompany, the payment to said company

mainder as additional thereto. The applicawould have been good. Mr. Daniel, in sec

tions of appellant were made and filed with tion 1230a, doubts the correctness of the

the county clerk of said county at 12 o'clock holding in some cases that the payment to

and 56 minutes a. m. of August 1, 1902, and the holder of unindorsed negotiable paper is those of appellee were made and filed with good. There are authorities to the contrary,

said clerk about 2 a. m. on the same day. but, as the note in this case was payable at

The applications, obligations, and payments the office of the investment company, we are

of both parties were regular, but the lands inclined to the opinion that the payment in

were awarded to appellant by the Commisthis case to said company discharged the sioner of the General Land Office on the 6th pote, provided, at the time of payment, it

day of October, 1902, appellee's applications was held by said company.

being rejected on the same day. The action Payment of installments of interest prior was instituted in the form of trespass to try to the installment of December 1, 1901, to

title by appellee, and the controverted issues said company, and the appropriation to the upon the trial were actual settlement on appayment of December 1, 1901, interest part pellee's part at the time he made and filed his of the amount remitted to said company to applications, and whether appellant's priorpay off and discharge said note, does not ity in filing was surreptitiously and fraudutend to show agency in said company to lently acquired. The court found both of collect said note. In Cunningham V. MC- these issues in appellee's favor, and hence Donald, 83 S. W. 372, 11 Tex. Ct. Rep. 418, gave him judgment for the lands in controit is said: "If, however, it was admitted versy. That appellant was an actual settler that the corporation, acting as the agent of upon section 30 at the time his applications Cunningham, collected the interest from Mc

to purchase were made and filed is not conDonald, that fact would not tend to prove troverted. His right to recover, indeed, canthat it had the authority to collect the prin- not be controverted save upon the ground cipal of the note. How can it be inferred that his priority in filing was illegally obfrom the agency to collect the interest that tained, as found by the court; and the asthe agency to collect the note existed? The signments of error present only the question one fact does not form a basis for the presumption of the other fact."

*Rehearing denied July 1. 1905, and writ of error

denied by Supreme Court. SS S.W.-26

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