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If it be conceded that the justice of the peace could not authorize any other person to sign his name to a writ or other official document, and that he did not himself sign the writ referred to, nevertheless appellants were properly held to be liable for the conversion of appellee's property, because the findings of fact show that they ratified and adopted the acts of those who caused the al. leged writ to be issued and executed.

No error has been shown, and the judgment is affirmed.

Atfirmed.

and the trustee to costs in proportion to their respective interests in the property partitioned. 7. SAME-PETITION-SUFFICIENCY TO SUSTAIN JUDGMENT.

The averments of the petition of a trustee in bankruptcy to enforce à claim against the separate estate of the bankrupt's wife, that $1,000 of the community estate of the bankrupt had been expended in permanent improvements on the separate real estate of the wife, was sufficient to justify the findings of fact and judgment of the court that the community estate owned an interest in the improvements to the extent of $300. 8. SAME-PRAYER.

The prayer of the petition of a trustee in bankruptcy to enforce a claim against the separate estate of the bankrupt's wife for the amount of community funds expended in improving the wife's separate property, "for such other and further relief, general and special, legal and equitable, as to the court shall seem meet and just," authorized the court to decree a sale of the improvements to satisfy a judg. ment for the trustee. 9. SAME-PETITION-SURPLUSAGE.

The allegation in the petition of a trustee in bankruptcy to enforce a claim against the separate property of the bankrupt's wife, that the community estate had a lien on the land to reimburse it for improvements made thereon, was merely an incorrect legal conclusion of the pleader, and was properly treated as surplusage.

Error from District Court, Limestone County; L. B. Cobb, Judge.

Action by T. F. Bryan, trustee in bankruptcy of A. L. Collins, against Mrs. Sallie Collins and others. From a judgment in favor of plaintiff, defendants appeal. Modified.

Harper & Harper, for appellants. T. F. Bryan and V. illiams & Bradley, for appellee.

COLLINS et al. v. BRYAN. (Court of Civil Appeals of Texas. June 14,

1905.) 1. HUSBAND AND WIFE-COMMUNITY PROPERTY-IMPROVEMENTS ON WIFE'S SEPARATE ESTATE-PRESUMPTION.

No presumption arises that improvements erected by a husband out of community funds on land which is the separate property of the wife are a gift, in the absence of evidence to show such intention.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Husband and Wife, 88 909, 913.] 2. SAME LIABILITY OF WIFE'S SEPARATE PROPERTY.

The separate property of a wife cannot be sold to reimburse the community estate for improvements made out of community funds.

[Ed. Note.--For cases in point, see vol. 26, Cent. Dig. Husband and Wife, $8 577-580, 909.] 3. SAME BANKRUPTCY OF HUSBAND-SALE OF COMMUNITY PROPERTY.

Where funds belonging to the community estate of husband and wife were used by the husband in the erection of improvements on his wife's separate real estate, and the fund remained to that extent community property, the husband's trustee in bankruptcy was entitled to recover the amount of the community funds so expended, to be paid out of the proceeds of the sale of the improvements. 4. SAME-JUDGMENT-INTEREST.

Where funds belonging to the community estate of a husband and wife are used by the husband in the erection of improvements on the wife's separate real estate, and the funds remain community property, the husband's trustee in bankruptcy is not entitled, on recovering judgment for the amount of community property so invested, to interest on the judgment. 5. SAME-COSTS.

Where a wife denied that any part of the improvements on her separate estate were made with community funds, and unsuccessfully contested the right of the husband's trustee in bankruptcy to recover any amount for improvements made with such funds, the costs of the suit proper were taxable against her interest in the improvements, both in the trial court and on appeal. 6. SAME.

Where a wife denied that any part of the improvements on her separate estate was made with community funds, and unsuccessfully contested the right of her husband's trustee in bankruptcy to recover any amount for improvements made with such funds, and the judgment was entered subjecting the improvements to sale for the recovery of the amount found by the court to have been contributed from the community funds to the improvements, the sale of the improvements on partition to enforce the collection of the judgment subjects the wife

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EIDSON, J. This suit was brought by appellee, as trustee in bankruptcy of A. L. Collins, alleging that A. L. Collins, just prior to being adjudged a bankrupt, with intent to hinder, delay, and defraud his creditors, had conveyed to appellant Mrs. Sallie Collins 100 acres of land in Limestone county, Tex., a part of the J. G. Minor survey and described in his petition, with a prayer for its recovery; and further alleging, if not entitled to recover the land, that during the time that A. L. Collins was seised with the title to said land he pended large sums of money, to wit, $1,000, out of the community estate of himself and his wife, Mrs. Sallie Collins, in permanent improvements on said land, for which said land is charged, and on which land said community estate, of which appellee was the trustee, had a lien for reimbursement; praying that he be adjudged to have a lien on said land, that the same be foreclosed, and that the land be ordered sold, and "for such other and further relief, general and special gal and equitable, as to the court shall seem meet and just,” etc. Appellants answered by general demúrrer, general denial, and plea of not guilty, and appellant Mrs. Sallie Collins answered, in substance, that the improvements on said land were placed there by her father and

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mother prior to the date of her father and ed upon such findings of fact the court bemother executing the deed to her, and that low filed the following conclusions of law: A. L. Collins had no interest in said land, “(1) That said 100 acres is the separate esand had placed no improvements thereon, tate of Sallie Collins. (2) That T. F. Bryan either out of his separate estate or the com- is entitled, as such trustee, to all of the community estate of herself and her said hus- munity estate of said A. L. Collins and wife, band. The case was tried before the court including said $300 expended on said land. without a jury, and the court found that the (3) That it would be inequitable, if not unland sued for was the separate property of lawful, to order any part of said land soia appellant Sallie Collins, and that appellee to pay said $300, and that the most equiwas not entitled to recover the land, but table method for enforcing the collection of further found that during the years 1895 said sum is that provided for in the decree, and 1896 A. L. Collins expended $300 of the which is made a part of these findings." community funds of himself and wife, ap- Appellants, under their first and second aspellant Sallie Collins, in erecting two dwell- signments of error, contend that the court ings and one barn on the land, her separate erred in its second conclusion of law, beproperty, and to that extent said improve- cause, in the absence of fraud, improvements ments were community, and that appellee placed on land, the separate property of the was entitled to $300, to be paid out of such wife, out of community funds, become a improvements, and ordered that said im

part of the realty, and are not subject to provements be sold for the purpose of parti- sale for the debts of the husband. We do tion, and that the proceeds arising from not agree with this contention of appellants. such sale be applied to the payment to ap- Improvements erected upon land, the seppellee of said sum of $300, with interest from arate property of the wife, by the husband date at the rate of 6 per cent. per annum, out of community funds, will not be preand all costs of suit; the remainder of such

sumed to be a gift, in the absence of evisum arising from saic sale to be paid to ap- dence to show such intention. There was no pellant Sallie Collins.

pleading or proof in this case that the imThe court filed conclusions of fact, based

provements in controversy were intended by on the admissions made at the trial and the

the husband of appellant Sallie Collins as a evidence adduced, which are as follows: “(1)

gift to her. She alleged in her answer that The defendant Mrs. Sallie Collins, prior to said improvements were placed on the land her marriags to defendant A. L. Collins,

by her father and mother prior to the date owned a farm in her own righi, worth $2,200, of their executing the deed for the land to which her father' sold with her consent, and her, and that her husband A. L. Collins placused the money in the purchase of 900 acres,

ed no improvements on said land, either out oci of which the 100 acres in controversy of his separate estate or the community eswas taken, and with intent on his part to tate of herself and said husband. The court deed the said 100 acres to saia defendant.

below properly held that the land, being the He paid $12 per acre for same. (2) Her

separate property of the wife, could not be father also sold personal property of Sallie sold to reimburse the community estate for Collins, prior to her marriag? to A. L. Col

improvements made thereon out of funds lins, to the amount of $250, and used the belonging to said estate. Maddox V. Summoney. (3) In 1898, after he had paid for

merlin, 92 Tex, 484-487, 49 S. W. 1033, 50 said land, her father deeded said 100 acres S. W. 567. by warranty deed reciting $250 paid and love

The court having found as a fact that A. and affection he had for his daughter Sallie

L. Collins had expended $300 of the conCollins. The $250 was, in fact, money of munity estate of himself and wife, Sallie Sallie Collins which her father had received

Collins, in erecting improvements on the from the sale of personal property used, and

land, the separate property of the said Salhis intention was to repay the same. (4)

lie, such improvements, to that extent, reDecember 31, 1903, A. L. Collins was in

mained the community property of the said solvent, within the meaning of the bank- A. L and Sallie Collins, and the appellee, as rupt law. (5) On January 4, 1904, on his trustee in bankruptcy of the said A. L. Colvoluntary petition, A. L. Collins as an in

lins, was entitled to recover judgment for dividual, and the partnership of A. L. Col. said sum, to be paid out of the proceeds of lins and J. J. Vannoy, of which he was a

the sale of said improvements, and the court member, were duly adjudged bankrupt in

below did not err in so holding. Maddox v. the United States District Court at Waco, Summerlin, supra. And in our opinion the and plaintiff T. F. Bryan was appointed and

decree of the court properly and fully proqualified and now is the trustee of said bank. tects the title of appellant Sallie Collins to rupt. (6) During the years 1895 and 1896, the land, and all the benefits derived from it, defendant A. L. Collins expended $300 of except as to the matter of interest and the community funds of himself and wife costs. In view of the fact that the court Sallie Collins by way of erecting buildings, found that the community estate had con: fences, and other valuable and permanent tributed only $300 to the erection of imimprovements upon said 100 acres, and provements on the land, that amount is the thereby enhanced its value $300.” And bas- extent of the recovery to which appellee is

88 S.W.-28

trict judge in chambers prior to the issuance and levy of an attachment on the corporation's property, and the judge indorsed thereon an order on the defendants to show cause why a receiver should not be appointed, returnable before him at chambers on a subsequent date, the consideration of such petition constituted an assumption of jurisdiction by the district court over the corporation's property, precluding, a subsequent attachment from operating as a lien thereon.

Appeal from District Court, Liberty County; L. B. Hightower, Judge,

Action by H. W. Pruter against the Raywood Rice Company, in which A. H. Worden, receiver, intervened. From a judgment sustaining plaintiff's attachment lien, the receiver appeals. Reversed. and rendered.

Stevens & Pickett and W. W. King, for appellant. Marshall & Dabney, for appellee.

entitled, and to allow interest in addition to this amount would be an unauthorized encroachment upon the separate property of the wife.

As appellant Sallie Collins denied that any part of the improvements were made with community funds, and contested appellee's right to recover in this suit any amount for improvements made with such funds, it would be just to tax the costs of the suit proper against her interest in the improvements, both in the court below and in this; but if it should be necessary to partition such improvements, in order to enforce the collection of the said sum of $300, adjudged to the appellee, then the costs of the partition proceedings should be taxed against appellant Sallie Collins and appellee in proportion to their respective interests in the property. We think the averments of appellee's petition that $1,000 of the community estate of A. L. Collins and wife had been expended in permanent improvements upon the land was sufficient to justify the finding of fact and judgment of the court, to the effect that the community estate owned an interest in the improvements to the extent of $300; and the prayer of the petition "for such other and further relief, general and special, legal and equitable, as to the court shall seem meet and just,” authorized the court to grant the relief decreed by the judgment.

The allegation in appellee's petition to the effect that the community estate had a lien on the land described to reimburse it for the improvements made thereon, being an incorrect legal conclusion of the pleader, was properly regarded by the court below as surplusage. Wagner v. Insurance Co., 92 Tex. 554, 50 S. W. 569; Connor v. Saunders, 81 Tex. 633, 17 S. W. 236; Lee v. Boutwell, 44 Tex. 153.

All of appellants' assignments of error have been considered, and, in our opinion, none of them point out reversible error. The judgment of the court below is reformed so that same will bear no interest, and so as to adjudge the costs against appellant Sallie Collins of the suit, both in the court below and in this court, except such as may be incurred in the partition proceedings, which are adjudged against the appellant Sallie Collins and appellee in proportion to their respective interests in the property partitioned; and, thus reformed, the judgment of the court be low is affirmed.

Reformed and affirmed.

PLEASANTS, J. Appellee brought this suit in the district court of Liberty county against the Raywood Rice Company, a corporation organized under the laws of this state, to recover a debt for $1,092.58. The suit was filed on April 25, 1904, and thereafter on the same day a writ of attachment was issued on application of plaintiff, and was levied upon property of the defendant at 11:30 a. m. of said day. At 11 o'clock a, m. on the same day other creditors of the defendant corporation presented to Judge Edward Dwyer, judge of the district court of Bexar county, a petition praying for the appointment of a receiver for said corporation. After considering this petition, Judge Dwyer indorsed thereon the following order: “In Chambers. April 25, 1904. The clerk of this court is directed to issue forthwith a no tice to the defendants herein to appear before me in chambers on Thursday, the 5th day of May, 1904, at 10 o'clock a. m., then and there to show cause, if any they have, why a receiver should not be appointed as prayed for. [Signed] Edw. Dwyer, Judge Thirty-Seventh Judicial District of Texas." This petition, with the indorsement thereon, was filed with the clerk of the district court of Bexar county on April 25, 1904, at 1:14

The exact time at which the order of the court indorsed on this petition was made is not shown. Appellee bad no notice at the time the writ of attachment was levied that a petition for a receivership bad been presented to the judge of the district court of Bexar county. At the hearing on May 5, 1904, the prayer of the petition was granted, and appellant was appointed receiver, and qualified as such. Thereafter appellant intervened in this suit, and sought to recover possession of the property levied on under the writ of attachment, and resisted the establishment and foreclosure of appellee's asserted attachment lien thereon. The trial in the court below without a jury resulted in a judgment in favor of the plaintiff against the defendant for the amount of his debt, and against the defendant and intervener

WORDEN V. PRUTER. * (Court of Civil Appeals of Texas. June 15,

1905.) CORPORATIONS RECEIVERS PETITION

CONSIDERATION JURISDICTION-ATTACIMENT LIEN.

Where a petition for the appointment of a receiver of a corporation was presented to a dis

p. m.

*Writ of error denied by Supreme Court.

foreclosing the attachment lien upon the of an order setting a day for its hearing property, but directing that said judgment would have a like effect. of foreclosure be enforced through the dis- The agreed statement in the record showtrict court of Bexar county, in which said ing the act of the judge after the petition for receivership proceedings are pending. From a receiver was presented to him is as folthis judgment the intervener, Worden, prose lows: "The application was delivered to the cutes this appeal.

judge at 11 o'clock a. m., April 25, 1904, Under appropriate assignments of error, and the following fiat entered thereof: 'In appellant contends that the trial court erred Chambers. April 25, 1904. The clerk of in holding that appellee acquired a lien upon this court is directed to issue forthwith a nothe property by the levy of the writ of at- tice to the defendants herein to appear betachment, because at the time said levy fore me in chambers on Thursday the 5th was made the application for the appoint- | day of May, 1904, at 10 o'clock a. m., then ment of a receiver for the defendant corpo- and there to show cause, if any they have, ration was pending before the judge of the why a receiver should not be appointed as district court of Bexar county, and, the juris- prayed for. [Signed] Edw. Dwyer, Judge diction of said court having thereby attached, Thirty-Seventh Judicial District of Texas.' the property of the defendant was in custo- And said petition was delivered to the clerk dia legis, and therefore no lien was created by the judge, and filed by the clerk at 1:14 by the levy of the writ of attachment. It p. m, on April 25, 1904.” We think the reais a well-settled general rule that, when the sonable inference from this statement is that jurisdiction of a court once attaches to the the judge examined the petition at once and subject-matter of litigation, it becomes ex- made his order thereon, and it certainly clusive for all purposes necessary to the ac- shows that the judge was at least considering complishment of the object of the suit, and the petition from the time it was presented thereafter, while said suit is pending, the to him. We think the jurisdiction of the jurisdiction of other courts over said subject- district court of Bexar county attached to matter cannot be called into exercise, even the subject-matter of the suit from the time though they have general concurrent juris- the judge of said court began an examination diction with the court in which the suit is of the petition for the purpose of determinpending. The strict enforcement of this rule ing whether he would appoint a receiver. is necessary to prevent conflicts between The act of receiving and considering the courts of concurrent jurisdiction, and it has petition was an assumption of jurisdiction been uniformly recognized and followed by over the subject-matter of the suit, and the the courts of this state, the only difficulty order thereafter made appointing a receiver in its enforcement being the determination related back to the time when the judge of the question as to when the jurisdiction of began the consideration of the petition. the court attaches to the subject-matter of Such being our conclusion, appellant's asthe particular suit. In the case of Riesner signment of error must be sustained, and V. Ry. Co., 89 Tex. 656, 36 S. W. 53, 33 L. R. the judgment of the court below foreclosing A. 171, 59 Am. St. Rep. 84, our Supreme an attachment lien in favor of appellee upCourt held that the jurisdiction of the court on the property in controversy reversed, and in which an application for the appointment judgment here rendered in favor of appelof a receiver for a railroad had been pre- lant, and it is so ordered. sented to the judge attached when the judge Reversed and rendered. had acted upon the application in such way as to indicate that he had determined to investigate the matter and might at some future date appoint a receiver. In that case

SUPREME COUNCIL A. L. H. V. LYON the only action taken by the judge from

et al. * which the jurisdiction of the court was held to have attached was to order the application

(Court of Civil Appeals of Texas. May 31, filed. It is true, the application was in fact

1905.) filed under the order of the court before the MUTUAL BENEFIT SOCIETIES SUBSTITUTION levy of the writ of garnishment under which

OF CERTIFICATES-RECOVERY OF PREMIUMS. the lien adverse to the title of the receiver

Where, after the passage by a mutual ben

efit society of a by-law scaling all $5,000 cerwas asserted, but the fact of the filing was

tificates to $2,000, the holder of a certificate for only considered material as showing that the $5,000 returned the same, with a request that judge had acted upon the petition in a way

à new certificate for $2,000 be issued, she was indicating that he had assumed jurisdiction

not entitled to recover the premiums paid on

the $5,000 certificate. of the subject-matter of the suit. If the act of the judge in ordering a etition for the Appeal from District Court, Johnson Counappointment of a receiver filed should be ty; Nelson Phillips, Judge. considered a sufficient assumption of juris- Action by E. C. Lyon and husband against diction to exclude that of other courts over the Supreme Council American Legion of the subject-matter of the suit, it necessarily Honor. From a judgment for plaintiffs, defollows that the indorsement on a petition fendant appeals. Reversed and rendered. John L. Terrell, for appellant. Odell, Phil. pressly conferring on railroad companies a lips & Johnson and Ramsey & Odell, for ap

*Writ of error denied by Supreme Court.

right of way through the public domain, there pellees.

was no statute expressly conferring such right.

(Ed. Note.-For cases in point, see vol. 18,

Cent. Dig. Eminent Domain, $8 91-93.) KEY, J. Appellees brought this suit against appellant and recovered $5,380.05,

Appeal from District Court, Montgomery the amount of premiums paid on a benefit

County. certificate issued to Mrs. E. C. Lyon, the sub

Action by J. K. Ay against the Gulf, stantial plaintiff; the other plaintiff being

Colorado & Santa Fé Railway Company and her husband. The suit was predicated upon

others. From a judgment in favor of plainthe theory that the defendant had breached

tiff for less than the relief demanded, he apthe contract by adopting and undertaking to

peals. Affirmed, enforce a by-law scaling all $5,000 certifi- Dean, Humphrey & Powell, for appellant. cates to $2,000. The original certificate is- J. W. Terry and F. J. & R. C. Duff, for apsued to Mrs. Lyon was for $5,000, but the pellee Gulf, C. & S. F. Ry. Co. N. A. Stedundisputed testimony shows that after the man and Gould & Morris, for appellee Interpassage of the by-law referred to she return. national & G. N. R. Co. ed that certificate to the home office of the defendant order in Boston, Mass., with this

GILL, J. This was an action of trespass indorsement made thereon by her: "I here

to try title, by which J. K. Ayres sought to with enclose benefit certificate No. 12.370 for

recover a strip of land extending through $5,000, for which please send certificate for

the Wilson Lang survey in Montgomery $2,000, payable to John H. Lyon, and oblige,

county, and claimed by the International & E. C. Lyon." And thereafter a benefit cer

Great Northern Railroad Company as a part tificate for $2,000 was issued by the defend

of its right of way. The Gulf, Colorado & ant to Mrs. E. C. Lyon, in which John H.

Santa Fé Railway Company was made a Lyon was named as beneficiary. It was sent party defendant as a joint occupant of a part to her by mail, and received by her at Cle

of the strip in dispute. The defendants burne, Tex., where she then resided. After

pleaded not guilty and limitation of five and the issuance and acceptance of the second

ten years. On a hearing the court instructcertificate the premiums were paid thereon

ed a verdict for defendants on the theory for a time, but were finally discontinued.

that the undisputed proof established limitaThe premiums required to be paid on the

tion of ten years in favor of the Interna$2,000 certificate were much less than those

tional & Great Northern Railroad Company required to be paid on the $5,000 certificate.

to a strip 120 feet wide extending through On these facts, about which there is no

the Lang tract, and a judgment was rencontroversy, the plaintiffs were not entitled

dered therefor. The costs were adjudged to recover. On this point this case is quite

against defendants because the width sued similar to Supreme Council American Legion

for was 150 feet, and the plaintiff recovered of Ilonor v. Garrett, 85 9. W. 27, 12 Tex. Ct.

the difference. The plaintiff has appealed. Rep. 49, in which it was held by this court

The facts are as follows: In 1866 the that the surrender of a $5,000 benefit cer

Great Northern Railroad Company obtained tificate and the acceptance of a $2,000 cer

a charter from the state of Texas empowertificate in lieu thereof created a new con

ing it to construct a railroad through the tract, and released the parties from liability

county of Montgomery, and to other points upon the old one. We think our decision in

not necessary to be disclosed. By 1871 it that case was correct, and that the rule there

had constructed the road and begun its opannounced is equally applicable to this case.

eration. In 1879 it sold its road and franAccordingly, there being no dispute about the

chise to the International & Great Northern facts, the judgment in this case is reversed,

Company, which continued the operation of and judgment here rendered for the appel

the road up to the time of the bringing of lant.

this suit. Inasmuch as the defendant Santa Reversed and rendered.

Fé Company holds only under and by virtue of the rights of its codefendant, we do not further state its connection with this case.

At the time of the construction of the road AYRES V. GULF, C. & S. F. RY. CO. et al.

in question the land was a part of the public (Court of Civil Appeals of Texas. May 26, domain. The charter of the Great Northern 1905.)

Company was special, and authorized it to 1. RAILROADS RIGHT OF WAY PUBLIC acquire a right of way along its route, not LAND--RIGHT TO USE-IMPLICATION.

to exceed 50 yards in width, but contained Where a railroad was chartered in 1866, and authorized to construct a railroad through a

no express and unequivocal terms of donacertain county and to other points, and by 1871

tion in that respect. The Wilson Lang surit had constructed the road and begun its opera- vey was patented in November, 1873, and tion, and the statutes then in force authorized was described as lying on the Great Northern it to condemn private property for a right of way, it was impliedly authorized to construct

Railroad. In March, 1887, the plaintiff acits line over the public domain, though prior to

quired the Lang survey, moved upon the the passage of Rev. St. art. 4423, in 1879, ex- tract, and has occupied it ever since. The

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