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receive and transport said cattle." Rev. St. sideration of the jury the damages, if any, 1895, art. 4535, made it the duty of the Frisco occurring on other lines. to receive from the Rock Island the cattle What we have said, we tbink, substantialtendered to it for the purpose of further ly disposes of all assignments, and all are transportation. And article 4496, Rev. St. accordingly overruled, and the judgment af. 1895, expressly declares that, in case of a firmed, refusal to so take and transport property, the refusing corporation shall pay to the party aggrieved all damages which shall be sustained thereby. As before stated, no ex

DUNN et al. v. ST. LOUIS SOUTHWEST

ERN RY. CO. OF TEXAS et al. cuse for failure to receive the cattle was shown by the Frisco. The evidence tended (Court of Civil Appeals of Texas. July 1, to show that the detention in the pens was

1905.) reasonably necessary, and the charge in 1. COURTS OF CIVIL APPEALS JURISDICTION question required the jury to "believe that -ISSUANCE OF WRIT OF PROHIBITION. by reason of such failure the cattle had to

Under Const. art. 5, § 6, providing that

the Courts of Civil Appeals shall have appelbe kept in the muddy pens," etc. In such late jurisdiction coextensive with the limits of event, we think the damage done the cattle their respective districts, which shall extend to by reason of their necessary detention in the

all civil cases of which the district courts or pens was damage for which the Frisco was

county courts have original or appellate juris

diction under such restrictions and regulations liable. In such case it cannot escape liabil

as may be prescribed by law, and that they shall ity on the ground, as insisted, that it could have such other jurisdiction, original and apassume that the cattle would be reasonably

pellate, as may be prescribed by law and Sayles'

Ann. Civ. St. 1897, art. 997, providing that the well cared for during the enforced detention

Courts of Civil Appeals shall have power to isin Ft. Worth. Under the state of facts sub- sue writs of mandamus and all other writs necmitted by the charge, the Frisco was liable essary. to enforce their jurisdiction, a court of for all damages that naturally and proxi

civil appeals has no power to issue a writ of

prohibition when the writ is not sought in aid mately resulted from its failure, whether it

of the appellate jurisdiction of the court. had notice of the condition of the pens or 2. SAME-MANDAMUS TO JUDGE OF INFERIOR not, as in such case the law will impute no- COURT. tice to it of such proximate and natural re

Under Const. art. 5, § 6, and Sayles' Ann. sults. Besides, if the pens were thus used

Civ. St. 1897, art. 1000, providing that the Courts

of Civil Appeals may issue a writ of mandamus by the Frisco, as there was evidence tending to compel a judge of the district court to proto show, knowledge and responsibility for

ceed to trial and judgment in a cause agreethe condition of the pens should also be im

ably to the principles and usages of law, those

courts have no jurisdiction to issue a writ of puted to it.

mandamus to compel a judge of the district Complaint is made of the action of the court to proceed to the trial of a cause which is court in overruling the motion for a new

pending before the court on a motion for new trial on

trial, in the absence of a showing that the judge numerous grounds. One is that

had refused to hear or determine the motion or there is no evidence of a sufficient tender of

formally dispose of the case. the cattle and tariff rate at Ft. Worth. This objection, however, it seems to us, is com

Original application by Bascom H. Dunn pletely answered by the statement that no

and others against the St. Louis Southwestsuch objection was urged at the time, and

ern Railway Company of Texas and others that the Frisco at first agreed to receive the

for writs of prohibition and mandamus. Dis

missed. cattle; thereby waiving any informality or supposed insufficiency in the tender. Again Jas. S. Davis, for applicants. it is insisted that the evidence tends to show that the cattle received some damage at Ok- SPEER, J. This is an original application lahoma City while on the Choctaw, Okla- to this court for a writ of prohibition rehoma & Gulf Railway Company. There is straining the St. Louis Southwestern and a some evidence of damages as presented in number of other railroad companies from this contention, but we think the evidence claiming and asserting any right or rights unin this particular will not require a reversal. der a certain restraining order issued by the There is neither pleading nor proof that ap- Honorable Irby Dunklin, judge of the Fortypellees were responsible therefor, or that the Eighth Judicial District, in a certain cause injuries, if any, mentioned, were the result pending in his court wherein the said railof negligence on the part of any one; and the way companies sought to restrain these applicourt, in its charge, expressly limited the cants from buying and selling certain railjury in their finding of damages to such as road tickets issued by the railroad comparesulted from negligence on the part of the nies; and for a writ of mandamus against Frisco. The jury, under the charge, were the district judge to compel him "to proceed not authorized to find damages against the to trial upon the pleadings and answer of the Frisco, except such as resulted from the de- defendants therein and upon the agreed and tention of the cattle in the pens at Ft. Worth, undisputed facts in said case, and to render and such as resulted from its negligence aft- such judgment therein as the law would warer having received the cattle at Oklahoma rant." The status of the case, as shown by City; thus, as stated, excluding from the con- the application to this court, is that the rail

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way companies mentioned instituted their district court upon applicants' motion for a suit seeking the restraining order as afore- new trial, upon which they are not shown said, to which an answer consisting of de- ever to have requested a ruling, and, for murrers and pleas was duly filed. The cause aught that appears, the court is ready and came on regularly to be heard, and the re- willing to act upon it at any time. straining order prayed for was regularly is- Applicants insist that the district court has sued by the district court. In due time these not determined the cause "agreeably to the applicants filed their motion for a new trial, principles and usages of law," and for that which has never been disposed of, and the reason we are authorized by the terms of the cause is still pending in the district court of article last quoted to issue the writ of mandaTarrant county. There is no pretense that mus therein provided for. While the expresthe honorable district judge refuses to hear | sion, "agreeably to the principles and usages or determine the said motion or finally to dis- of law," has apparently been held to refer to pose of the case.

the trial in the district court (Schintz v. MorThe first question with which we are con- ris, 35 S. W. 516 and 825), the Supreme Court fronted is wbether or not we have jurisdic- has shown clearly that the clause has refertion to entertain this application. Necessa- ence only to the procedure in the appellate rily, the jurisdiction of any court is limited court (Kleiber v. McManus, 17 S. W. 249). by the terms of the Constitution and statutes With the question of whether or not the judgcreating it, and the powers which it may ment actually rendered by the district court lawfully exercise are those only which are is erroneous, or even void, as applicants conexpressly conferred upon it, or those which tend, we have nothing to do, since "mandaare reasonably incident to the powers ex- mus will not lie to control the exercise of the pressly conferred. Section 6 of article 5 of discretion of inferior courts; and where such the Constitution, creating the Courts of Civil courts have acted judicially upon a matter Appeals, provides: "Said Courts of Civil Ap- properly presented to them, their decisions peals shall have appellate jurisdiction coex- cannot be altered or controlled by mandamus tensive with the limits of their respective dis- from the superior court.” State v. Morris, 86 tricts which shall extend to all civil cases of Tex. 226, 24 S. W. 393, and authorities there which the district courts or county courts cited. have original or appellate jurisdiction, under As to our lack of jurisdiction to entertain such restrictions and regulations as may be the application, in so far as the main relief prescribed by law.

Said courts sought is concerned, we have no doubt. No shall have such other jurisdiction, original other original jurisdiction than that immediand appellate, as may be prescribed by ately above discussed has ever been conferred law.” In pursuance of the authority thus upon this court by the Legislature, and in the conferred, the Legislature, in articles 996, absence of such legislation we clearly cannot 997, 998, 999, and 1000, of Sayles' Ann. exercise the jurisdiction. In some of the Civ. St. 1897, bas defined the powers of states appellate courts are by law invested this court. The only articles necessary to with the general power of supervision and quote are article 997, which provides: "The control over inferior courts. In these states said courts and the judges thereof shall it is generally held that the appellate court have power to issue writs of mandamus and may, in the exercise of such control, issue the all other writs necessary to enforce the ju- writ of probibition, but in those states where risdiction of said courts," and article 1000, no such general supervision is given or exwhich is: “The said courts or any judge press power conferred, the rule is that such thereof, in vacation, may issue the writ of extraordinary writs will not issue except in mandamus to compel a judge of the district : aid of appellate jurisdiction. See Seele v. court to proceed to trial and judgment in a State (Tex. Civ. App.) 20 S. W. 946; Fannin cause, agreeably to the principles and usages County v. Hightower (Tex. Civ. App.) 29 S. of law, returnable on or before the first day W. 187; Ex parte Hamilton, 51 Ala. 62; Ex of the next term or during the session of the parte Russell, 29 Ala. 717; Singer Mfg. Co. same, or before any judges of said court, as v. Spratt, 20 Fla. 122; Standard Oil Co. y. the nature of the case may require.” Since Linn (Ky.) 32 S. W. 932; State v. Judge, etc., the writs herein prayed for are not sought in 26 La. Ann. 750; State v. Falls, 32 La. Ann. aid of the jurisdiction of this court over this 553; State v. Judge, etc., 39 La. Ann. 97, 1 controversy, the article first quoted evidently South. 281; Harriman v. Commissioners, 53 confers no power upon us. So that any au- Me. 83; State v. Rombauer, 99 Mo. 216, 12 thority for entertaining this petition must be S. W. 661; State v. City of Columbia, 16 S. found in the last. The only authority con- C. 412; City v. Halsey, 12 Heisk. 210; Greshferred by this article is the power to compel am v. Ewell, 84 Va. 784, 6 S. E. 134. a judge of the district court to proceed to Since we have no jurisdiction to issue the trial and judgment in a cause where he im- writ of prohibition prayed for, and since approperly refuses. No such case is shown by plicants' petition shows no ground for the isthe application, for, indeed, it appears that suance of mandamus against the district this controversy is still pending before the judge, the petition is dismissed.

Montgomery & Hughes, for plaintiff in error. Matlock, Miller & Dycus, for defendants in error.

WALL V. CLUB LAND & CATTLE CO. et al. (Court of Civil Appeals of Texas, May 27, 1905.

On Rehearing, July 1, 1905.) 1. DEEDS DESCRIPTION CORNERS-LOCATION.

A description in a deed is not insufficient where one of the corners called for can be determined by a simple mathematical computation.

[Ed. Note.—For cases in point, see vol. 16, Cent. Dig. Deeds, $ 65.) 2. ADVERSE POSSESSION-PAYMENT OF TAXES.

Under Rev. St. 1895, art. 3312, providing that an action to recover real estate against one having adverse possession and paying taxes must be instituted within five years, the payment of taxes and possession must concur.

(Ed. Note.--For cases in point, see vol. 1, Cent. Dig. Adverse Possession, 88 509, 510.) 3. VENDOR'S LIEN-PERSONS LIABLE.

In trespass to try title, plaintiff claiming under the sole heir of a former vendee could not recover without discharging the vendor's lien to secure the purchase money, which bad never been paid,

On Rehearing. 4. ADVERSE PosseSSION-LIMITATIONS-PayMENT OF TAXES-SUFFICIENCY.

Rev. St. 1895, art. 3342, declares that actions to recover real estate as against one hav, ing adverse possession and paying taxes and claiming under a duly registered deed shall be instituted within five years. Held, that where a deed under which a party claimed purported to convey an entire interest, and the claim under the statute of limitations was the same, nothing less than the payment of all the taxes for all of the years would satisfy the statute. 5. SAME-TIME FOR PAYMENT.

Sayles' Ann. Civ. St. 1897, art. 5164, declares that the collector of taxes of each county shall begin the collection of taxes on the 1st day of October, and he is required to post notices requiring taxpayers to meet him for the payment of their taxes. Held, that a taxpayer who had failed to pay his taxes after October 1st, the fifth year of his possession under the fiveyears statute of limitations having expired after October 1st, could not take advantage of the statute. 6. VENDOB'S LIEN-FORECLOSURE–TITLE ACQUIRED.

When a vendor forecloses his lien he loses his superior title, and is confined to such rights as the judgment gives him.

(Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, $ 831.] 7. DECEASE OF VENDEE VENDOR'S LIEN COLLECTION OF DEBTS.

Sayles' Ann. Civ. St. 1897, art. 2121, relative to estates of decedents, provides for a sale of real estate for the payment of debts, and declares that on the filing of an application a citation shall be issued to all persons interested, requiring them to appear and show cause, etc. Held, that a vendor's lien when established in the district court as against the estate of a decedent must be collected through the probate court, and a failure to pursue such remedy results in a loss of the debt.

Error from District Court, Archer County; A. H. Carrigan, Judge.

Action by J. W. Wall against the Club Land & Cattle Company and others. Judgment in favor of defendants, and plaintiff brings error. Reversed, and on rehearing judgment rendered in favor of plaintiff in error.

SPEER, J. Plaintiff in error filed this suit of trespass to try title against defendants in error to recover 119 acres of land in Archer county. Defendants in error pleaded not guilty, the statutes of three, five, and ten years' limitations, and especially the existence of a vendor's lien against the land, which they sought to have plaintiff in error to discharge before a recovery should be awarded to him. The trial court ignored all questions save that of the issue of limitations of five years, which was submitted to the jury, and a verdict was returned, and a judgment entered in favor of defendants in error.

Three objections are urged by plaintiff in error to the submission of this issue to the jury:

First. It is contended that the deed under which the defendants in error claimed such limitation contained no such description of the land as could form the basis of limitations under the five-years statute. That part of the deed pertinent to this contention is as follows: “2nd tract, 100 acres being a part of the J. Ostane survey No. 83 and described as follows: Beginning at S. E. cor. of the 280 acre tract deeded by Harrold and East to J. S. Scott in the southwest corner of said survey; thence north 1340 varas to northeast corner of said 280 acre tract; thence east 42 varas; thence south 1340 varas; thence west on south line of said survey 420 varas to the beginning. 3rd tract (the one in controversy). A part of said Ostane survey containing 119 acres, beginning at the S. E. corner of said 100 acre tract on the south line of said survey; thence north 1,340 varas to N. E. corner of said tract; thence 500 varas east; thence south 1,340 varas to the south line of said survey; thence west 420 varas to the beginning." The deed of Harrold & East to J. S. Scott for the 280acre tract was not shown to be of record. We overrule this contention because the beginning corner of the 100-acre tract is placed at the southeast corner of the 280-acre tract, which corner is easily determined by a simple division of the number of square varas in the 280-acre tract by 1,340, the number of varas from the southeast to the northeast corner of said tract. This makes definite the location of the 119 acres in controversy.

The second contention is also overruled, because the deed purports to be more than a conveyance of the mere chance of title. It conveys the superior title held by the former grantor of those under whom plaintiff in error claims.

The third and last objection is sustained. It appears that the deed under which de fendants in error claimed was filed for record on December 14, 1898, and this suit was filed April 11, 1904. The taxes were

paid by defendants in error for the years interest of Squires, and that the remainder 1898, 1899, 1900, 1901, 1902, and on an un- of the judgment for the purchase money be divided one-half of the land for 1903, as they certified to the county court of Dallas counaccrued, before the suit was filed. This, we ty for payment. An order of sale was isthink, does not show such compliance with sued on this judgment, under which the inthe statute as would support the plea of terest of Squires was sold, and bought in by title by limitation. That statute provides: Mary A. King for $21, on the first Tuesday in "Every suit to be instituted to recover real January, 1897, and a deed executed to her estate as against any person having peace- on January 5, 1897, for such interest. Mrs. able and adverse possession thereof culti- Fredericka Hurley was the surviving wife vating, using or enjoying the same and pay- and sole heir of T. F. Hurley, one of the ing taxes thereon, if any, and claiming un- makers of said note. T. F. Hurley died, der a deed or deeds duly registered, shall be and his will was probated in the county instituted within five years next after the court of Dallas county on March 9, 1895, cause of action shall have accrued and not which will devised all his estate to said afterward,” etc. Rev. St. 1895, art. 3342. It Fredericka Hurley, and made her sole exis well settled that the payment of taxes ecutrix, but provided that she should manand possession must concur. Snowden v. age and dispose of the estate under the auRush, 76 Tex, 197, 13 S. W. 189. This we thority and direction of the probate court. understand to mean, as applied to the facts On December 24, 1896, Mrs. Hurley made a of this case, that all taxes due on the land

quitclaim deed to the land to Mary A. King. in controversy, if any, during the period of This deed was executed in her individual five years beginning on December 14, 1898, capacity, and not as executrix or devisee. On must have been paid by defendants in error | December 5, 1898, M. Harrold, as assignee prior to the institution of plaintiff in error's of E. H. East, conveyed the land in controsuit. It will be observed that, in order to versy to E. B. Carver, and the deed was filed complete the five years the possession, etc., for record and recorded in Archer county on must have continued to December 15, 1903.

December 14, 1898. The Club Land & CatFrom and after October 1, 1903, the taxes for

tle Company took possession of the land that year were due and payable. It follows

under a lease from Carver on the same day, from this that defendants in error had not

and held possession of the same up to the paid the taxes due for the five years of their time of filing this suit in April, 1904. On possession prior to the institution of plain- November 23, 1899, E. B. Carver conveyed tiff in error's suit. For this reason we re to defendant in error F. E. Dycus an unverse the judgment of the district court.

divided half of said land, which deed was In view of defendants in error's cross- recorded in Archer county November 30, assignments, we will remand, rather than to

1899, and on January 2, 1902, the other half render the judgment here. We are inclined interest in said land was conveyed by said to think the court erred in ignoring the issue

Carver to said F. E. Dycus for the benefit of the vendor's lien sought to be established of the grantee and his codefendants A. L. by defendants in error. The plaintiff in er

Matlock and George E. Miller. This latter ror has not favored us with a reply to these deed was recorded on January 17, 1902. assignments, and no reason occurs to us why

From these facts it is apparent that, in plaintiff in error, claiming, as he does, un- order to complete the necessary five years' der the sole heir of a former vendee, to the

adverse possession, the period must begin, extent at least of an undivided one-half in

as stated in the original opinion, with the terest, should be allowed to recover this part | registration of the deed from the assignee, of the land without discharging the lien to M. Harrold, to E. B. Carver, on December secure the purchase money, which it is al

14, 1898. This deed being to all the land in leged has never been paid.

controversy, and the claim under the statute Reversed and remanded.

of limitations being also for all the land in

controversy, we think anything less than a On Rehearing.

payment of all the taxes for all of the five Both parties have filed motions for rehear

years necessary to complete title would fall ing in this case, and in view of the ques- short of satisfying the requirements of the tions raised we deem it proper to make this statute. This disposes of the first contention further statement: E. B. Harrold and E. H. of defendants in error, to the effect that we East are the common source of title. They | should at least have affirmed the judgment conveyed the land to Squires and Hurley, 1 of the district court in their favor for an unretaining a vendor's lien to secure the price. divided one-half interest in the land, in view In 1896, East, being insolvent, made a deeds of our finding that the taxes for the year of assignment of M. Harrold as assignee, 1903 on one-half of the land had been paid who subsequently recovered a judgment | prior to the institution of this suit. against Mrs. Fredericka Hurley and W. A. It is next insisted by defendants in error Squires for the sum of $679.54, which judge that they were not in default in the pay. ment declared the existence of a vendor's ment of taxes for the year 1903 until the lien on said land, and directed a sale of the time when, according to the law, the payment of taxes for that year could have been dead, and there was an administration pendenforced by the tax collector. No authority ing upon his estate in Dallas county, and is cited to support this contention save a that after the foreclosure and sale of the indictum in the case of Mariposa Land & Cat- terest of Squires the judgment of the district tle Co. v. Silliman (Tex. Civ. App.) 27 S. W. court was directed to be certified to the pro773. In that case the period of prescription bate court of Dallas county for payment. expired on June 28, 1890, and, say the court: Whatever became of this claim, further than “The taxes for 1890 were not due before Jan- that defendants in error offered to show in uary 1, 1891, and under the law could not be the trial court that it had never been paid, forcibly collected until after January 1, 1891. we are not apprised. We take it to be setOn June 28, 1890, no taxes were due for tled in this state that when a vendor fore1890, and could not have been paid, as col- closes his lien on land he loses his superior lections could not begin prior to October 1, title, and by this election is confined to such 1890." So that it is apparent that whether rights only as the judgment gives him. Gartaxes are due on October 1st or not until dener v. Griffith, 93 Tex. 338, 55 S. W. 314, January 1st following was an immaterial and authorities there cited. No reason is question in that case, since, in either event, apparent why the election by the assignee, they were not due at the date of the expira- Harrold, in this particular, would not be as tion of the period of prescription. On the binding as though it were exercised by the other hand, in the case of Snowden v. Rush, original vendor, East. It is also well settled 76 Tex. 197, 13 S. W. 189, cited in the original that such a lien, when established in the disopinion, the Supreme Court treated the pay- trict court as against the estate of a dement of taxes for the fifth year, where that ceased person, must be collected through the year expired between October 1st and Jan- probate court. Sayles' Ann. Civ. St. 1897, uary 1st, as being necessary to a compliance art. 2121; Meyers v. Evans, 68 Tex. 466, 5 S. with the statute. This, at least, is as strong- W. 66; Bradford v. Knowles, 86 Tex. 505, ly persuasive that taxes for any year are 25 S. W. 1117; Wilson v. Harris, 91 Tex. due on October 1st of that year, as is the 427, 44 S. W. 65; Whitmire v. May (Tex. case first cited that they are not due until Sup.) 72 S. W. 375; Texas Loan Agency V. January 1st following. But, in the absence Dingee (Tex. Civ. App.) 75 S. W. 866. The of authority, we think it should be held, in lands in controversy, at least to the extent view of our statute that "the collector of of T. F. Hurley's interest, upon his death taxes of each county shall begin the collec- constituted a part of his estate, subject to tion of taxes annually on the first day of the control of his executrix under the direcOctober, or so soon thereafter as he may be tion of the probate court, charged, of course, able to obtain the proper assessment roll, with defendants in error's lien, and by their books or data upon which to proceed with failure to pursue the methods provided by the business,” that it is contemplated by the law for the enforcement of such lien we law that taxes are due and payable on Oc- think they have lost their debt. That the tober 1st for that year. This view is debt was for the purchase money of the land strengthened by the further provisions of cannot alter the rule. Whitmire v. May and the same article, requiring the tax collector Texas Loan Agency v. Dingee, supra. The to post up notices at public places in the distinction between the cases of Rogers v. various precincts in his county requiring the Watson, 81 Tex. 400, 17 S. W. 29, Swearintaxpayers to meet him at such places for the gen v. Williams (Tex. Civ. App.) 67 S. W. payment of their taxes. Sayles' Ann. Civ. 1061, and the line of cases cited above, is St. 1897, art. 5164. The fact that the statute pointed out in the case of Texas Loan does not authorize a seizure of property for Agency v. Dingee supra. the satisfaction of taxes prior to January The plaintiff in error's motion for rehear1st indicates a mere indulgence of the tax- ing is therefore granted, and our former payer, and not necessarily that the taxes are

order remanding the case for another trial not sooner due and payable. Such a con- is set aside, and judgment here rendered in struction would be entirely too liberal in favor of plaintiff in error for the land in favor of one seeking to prescribe under a controversy. statute of limitations.

We therefore overrule defendants in error's motion for rehearing, and consider next the question of whether or not we erred in

CITY OF AUSTIN et al. v. CAHILL, remanding the cause for another trial upon (Court of Civil Appeals of Texas. March 5, the issue of a vendor's lien in favor of de

1905.) fendants in error. Upon a fuller inquiry into 1. MANDAMUS PARTIES PERSONS BENEthe facts bearing upon this issue, we have

FICIALLY INTERESTED-BONDHOLDERS. concluded that such disposition of defend

Where a city issued bonds, and provided

for a tax levy to pay the interest and accumuants in error's cross-assignment was erro- late a sinking fund thereon, and subsequently

From the facts already stated it will issued refunding bonds, and likewise provided be seen that at the date of the institution of

for the interest and a sinking fund, and there

after neglected to levy taxes to meet the inthe foreclosure suit by the assignee of East,

terest, or accumulate a sinking fund for such Hurley, one of the makers of the note, was of the original bonds as the owners thereof

neous.

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