John B. Littler, Ellis Douthit, and Matlock, Miller & Dycus, for appellants. S. H. Morrison, for appellee.

STEPHENS, J. Appellants purchased of appellee four sections of school land in Howard county, Tex., for which they made a cash payment of $2,500. Before this sale was made, appellee owed them several hundred dollars, which indebtedness according to his version, was extinguished by the sale, but, according to the version of appellants, remained unsatisfied, and this suit was brought to recover the amount claimed to be due. The case was one of conflicting evidence, and the verdict in appellee's favor therefore establishes his contention.

There was no error in allowing appellee to introduce in evidence the application for continuance made by the appellants through their attorney, since it contained an admission which contradicted the testimony of each of them on the trial. H. E. & W. T. R. Co. v. Dewalt (Tex. Sup.) 70 S. W. 531, and cases there cited.

The charge of the court is criticised, but we are unable to see how it could have been misleading, since it submitted in plain language the controverted issues of fact raised by the pleadings and evidence.

The verdict is also complained of, but was warranted by the testimony of appellee. That we have no power to set aside a verdict clearly supported by the testimony of a credible witness, because of a conflict between his testimony and that of other witnesses, is too well settled to admit of discussion.

The judgment is therefore affirmed.

[Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Depositions, §§ 297, 298.]

2. JUDGMENT-EVIDENCE-RECITALS.

Where, in a suit to set aside a conveyance as in fraud of plaintiff, there was an issue as to what constituted the homestead of the grantors at the time of the conveyance, recitals in a judgment obtained by plaintiff against the grantors establishing their homestead were not admissible as against the grantee, who had not been a party to the former action.

3. APPEAL-ASSIGNMENTS OF ERROR.

An assignment of error which raises several independent and distinct matters does not comply with the rules of court, and will not be considered.

4. ATTACHMENT-OWNERSHIP OF PROPERTY. Where a deed by a husband and wife was made in good faith and was not fraudulent, it

*Rehearing denied June 28, 1905.

was superior to a subsequent attachment by a creditor of the grantors, irrespective of whether the property conveyed was a homestead at the time of the conveyance.

5. APPEAL-ASSIGNMENTS OF ERRor.

An assignment of error will not be considered where it is not supported by any statement as required by the rules.

6. TRIAL-INSTRUCTIONS.

There is no error in refusing to give a special charge where the issue to which it relates was fully covered by the general charge and another special charge given at the same party's request.

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

Action by the Parlin & Orendorff Company against C. C. Vawter and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

J. M. Willis and H. G. Evans, for appellant. R. B. Young and Meade & McGrady, for appellees.

EIDSON, J. This is a suit of trespass to try title brought by appellant, as plaintiff in the court below, against appellees, C. C. Vawter, Ida Leeper, and her husband, J. A. Leeper, for the purpose of recovering the title to and possession of lot No. 12 in block No. 21, in the town of Leonard, in Fannin county, Tex. Appellant also alleged in his petition that the deed from C. C. Vawter and wife to Ida Leeper of date October 16, 1896, was voluntary and without consideration, and made for the purpose of hindering, delaying, and defrauding the creditors of C. C. Vawter, and especially appellant, of which purpose said Ida Leeper was fully cognizant at the time such conveyance was made, and that said deed is a cloud upon the title of appellant. Appellant prayed that the same be declared fraudulent and void, and that it be set aside and held for naught. Appellees, except C. C. Vawter, answered by general demurrer, general denial, and plea of not guilty; and appellee Ida Leeper further answered that the deed executed to her of date October 16, 1896, was made in good faith for the bona fide purpose of paying her a just debt, which said C. C. Vawter then owed her, in amount equal to the property so conveyed; that the property was the business homestead of C. C. Vawter at that date; and prayed that appellant take nothing by its suit, and that she be quieted in her title to said premises. C. C. Vawter filed a disclaimer, and prayed to be discharged with his costs. The case was tried before a jury, and the court submitted special issues to the jury, and, upon the answers made thereto, the court entered judgment for appellees Ida Leeper and J. A. Leeper for the lot in controversy.

Appellant's first assignment of error complains of the action of the court in excluding the certified copy of the depositions of C. C. Vawter and his wife which were taken in the case of Parlin & Orendorff Company against C. C. Vawter et al., No. 15,373 in

the district court of Dallas County, Tex., which depositions show that C. C. Vawter and his wife used and occupied 80 acres of land situated four miles west of Leonard for a period of nearly 20 years prior to the failure of the said Vawter on October 16, 1896, as their homestead, and that it had all that time been their homestead; appellant's contention being that said depositions were links in the chain of its title, and were declarations of Vawter and his wife as to their homestead at the time of his failure, and for a period of 20 years prior thereto. In our opinion, the court below did not err in excluding said depositions. Ida Leeper not being a party to the suit in which said depositions were taken, they would be but hearsay, res inter alios acta, as against her, and therefore not admissible. National Bank v. Mulkey, 94 Tex. 395, 60 S. W. 753; Stephens v. Johnson (Tex. Civ. App.) 45 S. W. 328; Wallace v. Berry, 83 Tex. 328, 18 S. W. 595. By its second assignment of error appellant complains of the action of the court in giving to the jury special charge No. 1, requested by appellees, which is as follows: "You will exclude from your consideration the recitals in the verdict and the judgment rendered in the district court of Dallas county, concerning what the court in that case adjudged to be the homestead of said Vawter and wife, because what took place in that case in Dallas county is not admissible evidence as to the homestead question now involved in this suit you are trying. Such records were not admitted by the court in the present case as being any evidence on the homestead question involved in this suit." The judgment of the district court of Dallas county, so far as it decreed title to appellant in the lot in controversy, was admissible, but the recitals in that judgment establishing the homestead of Vawter and wife could only affect the parties to that suit; and, although there is in this case the issue as to what constituted the homestead of said Vawter and wife at the date of the deed by C. C. Vawter to Ida Leeper, still, she not being a party to that suit, she could not be affected by the recital in that judgment as to the homestead, and therefore such recital was inadmissible as against her. Hardin v. Blackshear, 60 Tex. 132.

Appellant's fourth assignment of error is not in compliance with the rules of this court, and therefore will not be considered. The assignment raises several independent and distinct matters, and, for that reason, does not conform to said rules. Cochran v. Siegfreid (Tex. Civ. App.) 75 S. W. 542; Baum v. Bank, Id. 863; Wren v. Howland, Id. 894; Cammack v. Rogers (Tex. Civ. App.) 74 S. W. 945.

Appellant's fifth assignment of error contends that the court erred in entering judgment for appellees upon the special findings of the jury, because said findings are inconsistent and contradictory, and contrary to

the charge of the court, in that to question No. 1, which is as follows, "Was the property in controversy the business homestead of C. C. Vawter on October 16, 1896?" the jury answered, "Yes;" to question No. 4, which is as follows, "Did C. C. Vawter abandon his homestead in the country; if so, at what date?" the jury answered, "No." The jury, in answer to question No. 3 subImitted to them by the court, which was as follows, "Was the deed from C. C. Vawter and wife to Ida Leeper made in good faith, or was it fraudulent as to C. C. Vawter's creditors?" found that the deed to Ida Leeper was made in good faith. If the deed to Ida Leeper was made in good faith and not fraudulent, the title to the lot in controversy vested in her prior to the levy of the appellant's attachment, and hence was not subject to such attachment, and, that being true, it was immaterial as to whether the property conveyed was homestead or not at that date.

Appellant's sixth assignment of error is not in compliance with the rules of this court, because same is not supported by any statement, and therefore it will not be considered. Ry. Co. v. Puente et al. (Tex. Civ. App.) 70 S. W. 362; Chimine et al. v. Baker et al. (Tex. Civ. App.) 75 S. W. 330; Raywood Rice Canal & Milling Co. v. Langford Bros. (Tex. Civ. App.) 74 S. W. 926. ever, we are of opinion that the court below did not err in refusing to give to the jury appellant's special charge No. 4, because the issue to which it relates was fully covered by the general charge, and a special charge given at the request of appellant.

How

There being no reversible error pointed out in the record, the judgment of the court below is affirmed.

PARLIN & ORENDORFF CO. v. LEGGETT et al.

(Court of Civil Appeals of Texas. June 21, 1905.)

ATTACHMENT-OWNERSHIP OF PROPERTY.

Where a deed by a husband and wife was made in good faith and not fraudulent, it was superior to a subsequent attachment by a creditor of the grantor, irrespective of whether the property conveyed was a homestead at the time of the conveyance.

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

Action by the Parlin & Orendorff Company against Alice Leggett and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

J. M. Willis and H. G. Evans, for appellant. R. B. Young and Meade & McGrady, for appellees.

KEY, J. This is a companion case to Parlin & Orendorff Co. v. C. C. Vawter et al., recently decided by this court. 88 S. W. 407.

In this case, as in that, the successful appellees claim under a prior deed made by C. C. Vawter, and charged by appellant to have been made for the purpose of defrauding creditors. Appellees, resisting the attack on their title, contended (1) that the property involved was the homestead of C. C. Vawter when he executed the deed under which they claim, and therefore creditors could not attack the sale; and (2) that they bought the property in payment of a pre-existing judgment, and that there was no fraud in fact. The case was submitted on special issues, and the jury found for appellees on both the issues referred to.

The finding of the jury that the sale was in good faith, and not made to defraud creditors, is amply supported by the testimony, and therefore it is unnecessary to decide any questions relating to the issue of homestead. Both parties claiming under C. C. Vawter, and appellees' title being older than appellant's, if the sale to appellees was not fraudulent, their title must prevail, although the property may not have been Vawter's homestead.

Our rulings in the other case concerning the admissibility of testimony are applicable to this, and support the rulings here complained of. No reversible error has been shown, and the judgment will be affirmed. Affirmed.

lien notes, to the payment of the judgments. After hearing the evidence, the court below directed a verdict for the appellees.

The facts, substantially, are as follows: On May 7, 1894, in the justice's court of Galveston county, Tex., a judgment was rendered in the case of Leon & H. Blum against L. C. De Morse for the sum of $169.50, with interest at the rate of 10 per cent. from date of judgment. May 18, 1894, execution issued upon that judgment, and returned "No property found." April 19, 1898, this judgment was transferred and assigned to the appellant, W. H. Howard. This judgment was recorded and abstracted in Bowie county May 7, 1899. On the 22d day of December, 1892, Leon & H. Blum recovered a judgment against L. C. De Morse for the sum of $1,418.15, with 10 per cent. interest per annum from date of judgment. April 18, 1898, this judgment was transferred and assigned to appellant, W. H. Howard. This judgment was also recorded and abstracted in Bowie county.

The plaintiff admitted the following facts pleaded by the appellees: That the appellee Mrs. M. L. De Morse married L. C. De Morse on the 3d of January, 1869; that at the time of her marriage she was possessed of a large amount of money and property, both real and personal, having inherited the same from her father; that after their marriage she loaned her husband large sums of money, and advanced him a large amount of property, which he promised to pay, with interest; that in such manner he was indebted to her on or before the 26th day of November, 1900, in various sums, aggregating about $20,000; that during his lifetime he offered and promised to pay her back, and at the time of his death he was still largely indebted to her; that since their marriage they have lived together as husband and wife until the death of L. C. De Morse, which occurred on the 6th day of May, 1902; that they became the owners of the lands and property described in plaintiff's original petition, situated in Texarkana, Bowie county, Tex., prior to the month of October, 1888, and during the summer and fall of that year they erected a residence upon the lots, and lived in and occu

Suit by W. H. Howard against John W. Mayher and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Chas. S. Todd, for appellant. Glass, Estes & King, for appellees.

FISHER, C. J. Appellant, as the owner of two judgments against L. C. De Morse, which had been recorded in Bowie county, brought this suit against the appellees to subject certain real property, or the proceeds of the sale thereof in the shape of vendor's

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

time up to and including the date of the sale of the same to the defendant John W. Mayher; that during all that time, to the date of the sale of the same to Mayher, the property was their homestead, and was used by them as such; that in the summer or fall of 1900 the codefendant John W. Mayher proposed to buy their homestead, and that appellee Mrs. M. L. De Morse would not agree to the sale of the same unless her husband L. C. De Morse would have the proceeds and the notes taken to secure the purchase price for the same made to her, and turned over to her and paid to her in part on the debt which her said husband then owed her; that during the pendency of the trade

with Mayher, and while it was being made, her husband, L. C. De Morse, agreed with her that when the homestead was sold to Mayher the proceeds and notes would be turned over to her and paid to her in part payment on the debt that he owed her; that thereupon she joined with her husband in the sale of the homestead to the defendant Mayher, and executed and delivered to him a warranty deed conveying the same, and her husband procured from Mayher the proceeds that were paid in cash, and the notes that were given to secure the balance of the purchase money were made payable to the appellee Mrs. M. L. De Morse, and turned the proceeds and notes over to her, and paid them to her, immediately upon the execution of the deed, in part payment of the debt that he then owed her, and delivered the proceeds and the notes over to her to become her separate and individual property; that ever since that time she has owned and held the notes, with the exception of the two that have been paid, as her separate individual property and in her own right; that the proceeds and the notes taken to secure the purchase money due by Mayher on the homestead were turned over and delivered and paid to her in the month of November, 1900, and that the proceeds and notes were exempt, and not subject to the payment of the judgment sued on by the plaintiff in this case.

Upon the evidence as stated as aforesaid, the trial court peremptorily instructed a verdict in favor of appellees.

Appellant assigns the following error: "The court erred in directing the jury to return a verdict in favor of the defendants for the following reasons, to wit: (1) The evidence introduced by the plaintiff was sufficient to entitle him to a recovery of a decree subjecting the unpaid vendor's lien notes in the possession of Mrs. M. L. De Morse to the judgment lien held and proved by plaintiff. (2) The evidence introduced by the plaintiff entitled him to a decree subjecting to the payment of his judgment lien the superior legal title remaining in Mrs. M. L. De Morse, by reason of the express reservation of the vendor's lien contained in the deed from De Morse and wife to Mayher. (3) The facts shown by the defendant, Mrs. M. L. De Morse, and admitted by the plaintiff, are not sufficient in law to constitute any defense to plaintiff's cause of action, because immediately upon the sale of the property by De Morse and wife to Mayher the liens of the judgments held by the plaintiff attached eo instanti to the interest in said land remaining in the vendors, subject to a defeasance only by application of the proceeds of the sale to the acquisition of another homestead within six months of said sale. The said proceeds not having been so applied within said time, the said judgment lien became absolute from the time of the sale, and constituted a charge which was paramount to the claim of the defendant M. L. De Morse as an unsecured |

creditor, and she took said notes and retained the legal title to said land subject to a charge for the payment of said judgment lien."

None of these objections to the judgment, in our opinion, are well taken. It may be conceded that the appellant was a judgment lien creditor of L. C. De Morse at the time that the homestead was sold, but, so long as the homestead continued and was not abandoned during the ownership of L. C. De Morse and his wife, no rights were acquired against it by virtue of the judgment lien. The judgment lien was no impediment to a valid sale by the parties asserting the homestead right to a purchaser; and such purchaser, if he acquired the property at a time when the homestead right existed, would receive it unaffected by the judgment lien that might exist generally against the real estate of the debtor in the county where the judgment is properly recorded. Furthermore, as we understand the brief of the appellant, the purpose is not to assert and foreclose a lien against the property itself, but the object is to subject the vendor's lien notes outstanding to the lien, claim, and demand of the appellant. We do not think it was the purpose and intention of the registration statute to create a lien against the proceeds of the sale of property, but to create and preserve a lien against the property itself. While it is true cases might arise in which a court of equity would permit the proceeds of the sale of property against which a lien existed to be subjected to the payment of the claim of the lien creditor, we are of the opinion that the pleadings of the appellant do not make a case of this character. But, however, this particular question is not necessary to be decided in the view that we take of the case. The appellant, as a creditor of L. C. De Morse, had no interest whatever in the homestead, as long as that right continued; and Mrs. De Morse, upon the sale of the same, was not required to part with her interest therein without the husband complying with the agreement that she should receive the proceeds in payment of the debt that he owed her. The facts admitted conclusively show that she only agreed to sell, and did sell, upon the express understanding that the proceeds of the sale should be turned over to her, and the vendor's lien notes, which the appellant is now seeking to subject to his debt, should be executed and made payable to her in part payment of the debt due to her from her husband in her separate right. The sale, when made, was upon this condition, and it took effect immediately upon the consummation of the sale, and whatever rights as a judgment lien creditor the appellant might have had in the property, if any at all, were subject to the contract upon which the sale was based.

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

CREWS v. HARLAN. (Court of Civil Appeals of Texas. June 28, 1905.)

SALES - VERBAL RESERVATION OF TITLE-EFFECT.

A sale of personal property with a verbal reservation of title to secure the payment of the purchase price constitutes a valid mortgage between the parties.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Chattel Mortgages, §§ 31, 38.]

Appeal from Navarro County Court; A. B. Graham, Judge.

Action by J. R. Harlan against J. W. Crews. From a judgment in favor of plaintiff, defendant appeals. Reversed.

J. S. Simkins and Richard Mays, for appellant. Callicutt & Call, for appellee.

EIDSON, J. This suit was originally brought in the justice's court of Navarro county by the appellee against the appellant to recover the title and possession of two certain mules, appellee alleging in his complaint that possession of said property was delivered to appellant upon the express condition that the title to same should remain in appellee until the mules were paid for by appellant. Appellee recovered judgment in the justice's court for the title and possession of the mules, from which judgment appellant appealed to the county court, where appellee recovered the same judgment, from which appellant has appealed to this court.

In the county court, in addition to pleading title and right of possession to the property, and praying for the recovery thereof, appellee, as a second count in his petition, pleaded as follows: "Second. This plaintiff further shows to the court that in about the fall of 1901 the plaintiff delivered to the defendant the two mules in controversy and above described, and described in plaintiff's citation and affidavit for sequestration, but gave no bill of sale therefor to defendant; that it was intended between plaintiff and defendant that no title should pass to the defendant until said defendant should pay for said mules in full to plaintiff, and defendant should have the right to become the owner of said two mules only when he should pay to the plaintiff amounts on the following dates, to wit, the sum of $105 on or about October 1, 1902, and interest, and the sum of $87.50 on or about October 1, 1903, and interest, and until said amounts, etc., were paid to plaintiff by defendant, the said mules were to remain the property of plaintiff, and the two mules were to stand and remain good as security for the payment of the purchase money, and the title to be reserved in the plaintiff until the above amount should be paid off and discharged by defendant, according to his promise and

that if it should be

agreement; found or determined that, under the law, title passed to said Crews, the defendant, and that said Crews became indebted to plaintiff for the price of said mules, and that, under the law, plaintiff has a lien on said mules for said purchase price, or that said mules, under the law, stood good for the purchase price, and that plaintiff has a lien thereon therefor, and not absolute title thereto, holding that a reservation of title is a lien under the law-then the plaintiff sues the defendant, and asks judgment in the alternative for the sum of $105, which was due and to be paid October 1, 1902, without interest, and for the sum of $87.50, with interest (this plaintiff here specially waiving any attorney's fees on said amounts and sums, if he is entitled thereto, and setting no claim to 10% attorney's fees, or attorney's fees for any other amount), and for the establishment and foreclosure of his lien on said mules involved in this suit against defendant and his sureties, as above set out, and for costs and general relief." Appellant excepted to the above pleading, and the court below sustained the exception, and struck from the record the above pleading.

According to the record, there is no testimony authorizing the verdict and judgment in favor of appellee for the title and possession of the mules. The testimony is uncontroverted to the effect that appellee made a sale and delivery of the mules to appellant, and that the sale was on a credit. The testimony on the part of appellee shows that there was a verbal reservation of the title to the mules until the purchase price was paid. That of appellant tends to show that there was no reservation of title, but that the sale was absolute, without any agreement or understanding whatever as to a reservation of the title to the property.

The Supreme Court, in answer to the question certified by this court, held that a sale of personal property, with a verbal reservation of title to secure the payment of the purchase price, constituted a valid mortgage between the parties. Crews v. Harlan, 87 S. W. 656, 13 Tex. Ct. Rep. 63.

Appellant's general demurrer to the first count of appellee's petition should have been sustained, as it appears from said count that the sale of the property was made with a reservation of title; but appellant's exceptions to the second count of appellee's petition should have been overruled, and the action of the court below in sustaining the same was error, and appellee has assigned this action of the court as error by cross-assignment of error brought up in the record and presented in his brief.

For the errors indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.