432

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 alleged writ to be issued and executed.

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

Affirmed.

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, §§ 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, §§ 577-580, 909.j 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.

were

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 judgment 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 surplus

age.

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 faModivor of plaintiff, defendants appeal. fied.

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

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 expended 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, legal and equitable, as to the court shall seem meet and just," etc. Appellants answered by general demurrer, 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

mother prior to the date of her father and mother executing the deed to her, and that A. L. Collins had no interest in said land, and had placed no improvements thereon, either out of his separate estate or the community estate of herself and her said husband. The case was tried before the court without a jury, and the court found that the land sued for was the separate property of appellant Sallie Collins, and that appellee was not entitled to recover the land, but further found that during the years 1895 and 1896 A. L. Collins expended $300 of the community funds of himself and wife, appellant Sallie Collins, in erecting two dwellings and one barn on the land, her separate property, and to that extent said improvements were community, and that appellee was entitled to $300, to be paid out of such improvements, and ordered that said improvements be sold for the purpose of partition, and that the proceeds arising from such sale be applied to the payment to appellee of said sum of $300, with interest from date at the rate of 6 per cent. per annum, and all costs of suit; the remainder of such sum arising from said sale to be paid to appellant Sallie Collins.

The court filed conclusions of fact, based on the admissions made at the trial and the evidence adduced, which are as follows: "(1) The defendant Mrs. Sallie Collins, prior to her marriage to defendant A. L. Collins, owned a farm in her own right, worth $2,200, which her father sold with her consent, and used the money in the purchase of 900 acres, out of which the 100 acres in controversy was taken, and with intent on his part to deed the said 100 acres to said defendant. He paid $12 per acre for same. (2) Her father also sold personal property of Sallie Collins, prior to her marriage to A. L. Collins, to the amount of $250, and used the money. (3) In 1898, after he had paid for said land, her father deeded said 100 acres by warranty deed reciting $250 paid and love and affection he had for his daughter Sallie Collins. The $250 was, in fact, money of Sallie Collins which her father had received from the sale of personal property used, and his intention was to repay the same. (4) December 31, 1903, A. L. Collins was insolvent, within the meaning of the bankrupt law. (5) On January 4, 1904, on his voluntary petition, A. L. Collins as an individual, and the partnership of A. L. Collins and J. J. Vannoy, of which he was a member, were duly adjudged bankrupt in the United States District Court at Waco, and plaintiff T. F. Bryan was appointed and qualified and now is the trustee of said bankrupt. (6) During the years 1895 and 1896, defendant A. L. Collins expended $300 of the community funds of himself and wife Sallie Collins by way of erecting buildings, fences, and other valuable and permanent improvements upon said 100 acres, thereby enhanced its value $300." And bas88 S.W.-28

and

ed upon such findings of fact the court below filed the following conclusions of law: "(1) That said 100 acres is the separate estate of Sallie Collins. (2) That T. F. Bryan is entitled, as such trustee, to all of the community estate of said A. L. Collins and wife, including said $300 expended on said land. (3) That it would be inequitable, if not unlawful, to order any part of said land sold to pay said $300, and that the most equitable method for enforcing the collection of said sum is that provided for in the decree, which is made a part of these findings."

Appellants, under their first and second assignments of error, contend that the court erred in its second conclusion of law, because, in the absence of fraud, improvements placed on land, the separate property of the wife, out of community funds, become a part of the realty, and are not subject to sale for the debts of the husband. We do not agree with this contention of appellants. Improvements erected upon land, the separate property of the wife, by the husband out of community funds, will not be presumed to be a gift, in the absence of evidence to show such intention. There was no pleading or proof in this case that the improvements in controversy were intended by the husband of appellant Sallie Collins as a gift to her. She alleged in her answer that said improvements were placed on the land by her father and mother prior to the date of their executing the deed for the land to her, and that her husband A. L. Collins placed no improvements on said land, either out of his separate estate or the community estate of herself and said husband. The court below properly held that the land, being the separate property of the wife, could not be sold to reimburse the community estate for improvements made thereon out of funds belonging to said estate. Maddox v. Summerlin, 92 Tex. 484-487, 49 S. W. 1033, 50 S. W. 567.

The court having found as a fact that A. L. Collins had expended $300 of the community estate of himself and wife, Sallie Collins, in erecting improvements on the land, the separate property of the said Sallie, such improvements, to that extent, remained the community property of the said A. L. and Sallie Collins, and the appellee, as trustee in bankruptcy of the said A. L. Collins, was entitled to recover judgment for said sum, to be paid out of the proceeds of the sale of said improvements, and the court below did not err in so holding. Maddox v. Summerlin, supra. And in our opinion the decree of the court properly and fully protects the title of appellant Sallie Collins to the land, and all the benefits derived from it, except as to the matter of interest and costs. In view of the fact that the court found that the community estate had con. tributed only $300 to the erection of improvements on the land, that amount is the extent of the recovery to which appellee is

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 below is affirmed.

Reformed and affirmed.

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.

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 notice 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 p. m. The exact time at which the order of the court indorsed on this petition was made is not shown. Appellee had no notice at the time the writ of attachment was levied that a petition for a receivership had 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

foreclosing the attachment lien upon the property, but directing that said judgment of foreclosure be enforced through the district court of Bexar county, in which said receivership proceedings are pending. From this judgment the intervener, Worden, prosecutes this appeal.

Under appropriate assignments of error, appellant contends that the trial court erred in holding that appellee acquired a lien upon the property by the levy of the writ of attachment, because at the time said levy was made the application for the appointment of a receiver for the defendant corporation was pending before the judge of the district court of Bexar county, and, the jurisdiction of said court having thereby attached, the property of the defendant was in custodia legis, and therefore no lien was created by the levy of the writ of attachment. It is a well-settled general rule that, when the jurisdiction of a court once attaches to the subject-matter of litigation, it becomes exclusive for all purposes necessary to the accomplishment of the object of the suit, and thereafter, while said suit is pending, the Jurisdiction of other courts over said subjectmatter cannot be called into exercise, even though they have general concurrent jurisdiction with the court in which the suit is pending. The strict enforcement of this rule is necessary to prevent conflicts between courts of concurrent jurisdiction, and it has been uniformly recognized and followed by the courts of this state, the only difficulty in its enforcement being the determination of the question as to when the jurisdiction of the court attaches to the subject-matter of the particular suit. In the case of Riesner v. Ry. Co., 89 Tex. 656, 36 S. W. 53, 33 L. R. A. 171, 59 Am. St. Rep. 84, our Supreme Court held that the jurisdiction of the court in which an application for the appointment of a receiver for a railroad had been presented to the judge attached when the judge 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 the only action taken by the judge from which the jurisdiction of the court was held to have attached was to order the application filed. It is true, the application was in fact filed under the order of the court before the levy of the writ of garnishment under which the lien adverse to the title of the receiver was asserted, but the fact of the filing was only considered material as showing that the judge had acted upon the petition in a way indicating that he had assumed jurisdiction of the subject-matter of the suit. If the act of the judge in ordering a petition for the appointment of a receiver filed should be considered a sufficient assumption of jurisdiction to exclude that of other courts over the subject-matter of the suit, it necessarily follows that the indorsement on a petition

of an order setting a day for its hearing would have a like effect.

The agreed statement in the record showing the act of the judge after the petition for a receiver was presented to him is as follows: "The application was delivered to the judge at 11 o'clock a. m., April 25, 1904, and the following fiat entered thereof: 'In Chambers. April 25, 1904. The clerk of this court is directed to issue forthwith a notice 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.' And said petition was delivered to the clerk by the judge, and filed by the clerk at 1:14 p. m. on April 25, 1904." We think the reasonable inference from this statement is that the judge examined the petition at once and made his order thereon, and it certainly shows that the judge was at least considering the petition from the time it was presented to him. We think the jurisdiction of the district court of Bexar county attached to the subject-matter of the suit from the time the judge of said court began an examination of the petition for the purpose of determining whether he would appoint a receiver. The act of receiving and considering the petition was an assumption of jurisdiction over the subject-matter of the suit, and the order thereafter made appointing a receiver related back to the time when the judge began the consideration of the petition.

Such being our conclusion, appellant's assignment of error must be sustained, and the judgment of the court below foreclosing an attachment lien in favor of appellee upon the property in controversy reversed, and judgment here rendered in favor of appellant, and it is so ordered. Reversed and rendered.

OF CERTIFICATES-RECOVERY OF PREMIUMS. Where, after the passage by a mutual benefit society of a by-law scaling all $5,000 certificates to $2,000, the holder of a certificate for $5,000 returned the same, with a request that a new certificate for $2,000 be issued, she was not entitled to recover the premiums paid on the $5,000 certificate.

Appeal from District Court, Johnson County; Nelson Phillips, Judge.

Action by E. C. Lyon and husband against the Supreme Council American Legion of Honor. From a judgment for plaintiffs, defendant appeals. Reversed and rendered. *Writ of error denied by Supreme Court.

John L. Terrell, for appellant. Odell, Phillips & Johnson and Ramsey & Odell, for appellees.

KEY, J. Appellees brought this suit against appellant and recovered $5,380.05, the amount of premiums paid on a benefit certificate issued to Mrs. E. C. Lyon, the substantial plaintiff; the other plaintiff being her husband. The suit was predicated upon the theory that the defendant had breached the contract by adopting and undertaking to enforce a by-law scaling all $5,000 certificates to $2,000. The original certificate issued to Mrs. Lyon was for $5,000, but the undisputed testimony shows that after the passage of the by-law referred to she returned that certificate to the home office of the defendant order in Boston, Mass., with this indorsement made thereon by her: "I herewith enclose benefit certificate No. 12,370 for $5,000, for which please send certificate for $2,000, payable to John H. Lyon, and oblige, E. C. Lyon." And thereafter a benefit certificate for $2,000 was issued by the defendant to Mrs. E. C. Lyon, in which John H. Lyon was named as beneficiary. It was sent to her by mail, and received by her at Cleburne, Tex., where she then resided. After the issuance and acceptance of the second certificate the premiums were paid thereon for a time, but were finally discontinued. The premiums required to be paid on the $2,000 certificate were much less than those required to be paid on the $5,000 certificate.

On these facts, about which there is no controversy, the plaintiffs were not entitled to recover. On this point this case is quite similar to Supreme Council American Legion of Honor v. Garrett, 85 9. W. 27, 12 Tex. Ct. Rep. 49, in which it was held by this court that the surrender of a $5,000 benefit certificate and the acceptance of a $2,000 certificate in lieu thereof created a new contract, and released the parties from liability upon the old one. We think our decision in that case was correct, and that the rule there announced is equally applicable to this case. Accordingly, there being no dispute about the facts, the judgment in this case is reversed, and judgment here rendered for the appellant.

Reversed and rendered.

pressly conferring on railroad companies a right of way through the public domain, there was no statute expressly conferring such right. [Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 91-93.]

Appeal from District Court, Montgomery County.

Action by J. K. Ayres against the Gulf, Colorado & Santa Fé Railway Company and others. From a judgment in favor of plaintiff for less than the relief demanded, he appeals. Affirmed.

Dean, Humphrey & Powell, for appellant. J. W. Terry and F. J. & R. C. Duff, for appellee Gulf, C. & S. F. Ry. Co. N. A. Stedman and Gould & Morris, for appellee International & G. N. R. Co.

GILL, J. This was an action of trespass to try title, by which J. K. Ayres sought to recover a strip of land extending through the Wilson Lang survey in Montgomery county, and claimed by the International & Great Northern Railroad Company as a part of its right of way. The Gulf, Colorado & Santa Fé Railway Company was made a party defendant as a joint occupant of a part of the strip in dispute. The defendants pleaded not guilty and limitation of five and ten years. On a hearing the court instructed a verdict for defendants on the theory that the undisputed proof established limitation of ten years in favor of the International & Great Northern Railroad Company to a strip 120 feet wide extending through the Lang tract, and a judgment was rendered therefor. The costs were adjudged against defendants because the width sued for was 150 feet, and the plaintiff recovered the difference. The plaintiff has appealed.

The facts are as follows: In 1866 the Great Northern Railroad Company obtained a charter from the state of Texas empowering it to construct a railroad through the county of Montgomery, and to other points not necessary to be disclosed. By 1871 it had constructed the road and begun its operation. In 1879 it sold its road and franchise to the International & Great Northern Company, which continued the operation of the road up to the time of the bringing of this suit. Inasmuch as the defendant Santa 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 in question the land was a part of the public domain. The charter of the Great Northern Company was special, and authorized it to acquire a right of way along its route, not to exceed 50 yards in width, but contained no express and unequivocal terms of donation in that respect. The Wilson Lang survey was patented in November, 1873, and was described as lying on the Great Northern Railroad. In March, 1887, the plaintiff acquired the Lang survey, moved upon the tract, and has occupied it ever since. The