*1 (Tex. SOUTHWESTERN REPORTER &wkey;5f071 Appeal (I)— 7. and error Error in fail- ing findings (No. 9397.) cured JOHNSON et al. to file and conclusions FROST et al. by attorneys approved by statement court. (Court Fort Worth. of Civil of Texas. Any error on the court rea- Rehearing Denied Dec. 1920. findings son of failure to file and con- of fact 22,1921.) Jan. clusions lawof is cured signed by record of a full statement of the facts Trespass try <&wkey;40(4) admis- 1. to title —Deed approved by court. plain- controversy sible in so as between far tiffs concerned. and a defendant Rehearing. On Motion for try trespass title, from a third In defendant, person a reserved a wherein &wkey;>392( I) 8. Trial not in error for fail- —Court lien, payment of three vendor’s ing findings to file and conclusions where ac- admissible, promissory notes, so far hold tion not invoked. and such de- between request findings Where or motion for fendant concerned. fact was never called to the attention of the judge, and his action thereon was never <&wkey;255(4) 2. of evidence com- Tria! —Admission properly invoked, he was not in error petent erroneous defendant to file and conclusions of fact law. request absence to limit it. was admissible between Where evidence Appeal Court, Taylor from District defendant, Coun- and a and no ty ; Harry extent, King, Judge. Tom defendant’s limit such made to assignment its overruled. admission Suit Frost and others D. judg- Johnson and others. From the &wkey;>!054(I) Appeal 3. and error -Questions — appeal. defendants Affirmed. admissibility evidence, trial before where present court, error. cannot reversible Stinson, Brooks, Abilene, & Chambers ques- court, was before Where the trial appellants. involving admissibility of evidence can the_ tions Templeton, Worth, ap- A. of Fort hardly present reversible error. pellees. &wkey;>l054(l) Testimony Appeal and error — April 20, BUCK, J. On of conclusion as to fact settlement nature B. L. parties between held harmless. son, and wife and their Belton L. try trespass wife, conveyed In title tried H.G. Johnson some 18 plaintiff admission a to the effect evidence' land, something sections of less than 8 sec- that with reference final settlement tions situated in Crane and some- growing to transactions out thing Upton over 5 sections situated in coun- by plaintiff purchase the certain of a third defendant of a ty; being $36,403. the recited consideration business, testimony etc., hardware Twenty-nine thousand four hundred and person to the effect that a final set- “paid by three dollars was recited to be plaintiff was made between tlement such property,” of other and the defendant, bal- view fact that both wit- assumption $7,000 ance incum- nesses testified to facts on their based, Bomar; $5,000 statement as to settlement was on T. brance land due D. the cause tried before the fact that held that the witnesses. mortgage por- secured lien on a error, despite not reversible the claim property conveyed, tion of the be- testimony constituted a conclusion of ing portion a vendor’s lien note of said joined property. T. Bomar in this deed. D. <&wkey;50l There was this instrument “also- (I)— Nonexpert testimony 5. Evidence right possessory parties leasehold estate and settlement between trespass try title, testimony lands situated in what as the- all known of a wit- another, together Pasture, ness he and with a Frost ties,” in Crane and figured defendant, tiff and a controversy out matters described D. deed executed plaintiff between such and defend- Ainsworth, special commissioner, master ant, plaintiff figures and that defendant owed Bomar, April 19, T. 1915. The deed D. $700 sale of a hard- general warranty deed, the Frosts was a company, nonexpert ware who admissible special warranty deed, specially Bomar a states the facts which he bases his reserving the lien held Bomar to secure opinion having thereby capable shows himself his two notes. many may instances July 14, 1915, H.G. state it. Frost certain located &wkey;>738Assignment Appeal and error com- Roscoe, county, for a Nolan recited consid- plaining of failure to exclude and of exclusion $1S,500 eration testimony parties two different multi- cash, assumption stated of a farious. Dobbins, indebtedness to T. M. secure J. C. trus- complaining An of fail- tee, Hobdy ure to of a exclude and of each; Wright of $500 five notes J. C. own- exclusion of a is multi- ing the notes and claim at the time of the farious. Digests Key-Numbered topic all and Indexes see other cases same and KEY-NUMBER *2 Tes.) FROST JOHNSON I.W.) (229 fer of conveyance the deed of trust by theretofore executed trust A deed of transfer. by by Johnson B. Frost to secure to Belton executed and wife secured Johnson payment $2,700 conveyance general Frost in note to war- a deed. This was ranty except Roscoe State Bank. The consideration interest as one-third deed to by Hughes payment conveyed, mentioned was said to that in and as two of the lots $1,000 conveyance conveyance of con- on the This contained note. one-third interest clause; following by only special warranty a tains the Also a deed. general warranty date John- deed of same hereby S. “And I substitute said Ed. title that Oostephens joined by son conveyed R. and wife rights, he to all interest and may fully a recited consid- B. Frost for to B. in deed of as have and to the said trust completely $1,500 lots in as said Ed. S. if the eration of two said were written in instru- name the same On date town of Roscoe. the same to have the he the said Ed. S. grantors Frost of a to Belton B. made deed right to the said deed of trust executed have consider- recited another lot in a Roscoe for may my desire, as he name or in his name by assumption paid, $8,000 ation of appoint a and to tute strument executed substi- direct the trustee $2,000 grantee property. veyances said due on indebtedness a In these two last-mentioned trustee, necessary, in- have the said to con- him, to secure the said Ed. joined and wife G. H. Johnson Hughes, $1,000.00 S. note of by in the of the said confirming purpose to recited herewith, date made and executed even grantees interest their title named all G. H. Johnson aforesaid.” releasing purpose of and for the land joined by Johnson in this instrument. discharging them held vendor’s 5, 1917, 28, 1915, On August December B. B. Frost and property. On petition Belton B. Frost filed to of trust a deed G. executed Johnson H. Upton county against trustee, district court of G. Douthitt, three tracts of Filis acres, Johnson, residing county, H. against containing 2,312 Upton county Nolan land in Frosts; by Ed. conveyed S. and Ed. S. to him theretofore Taylor county, Company, corporation, being given to secure trust said deed of trespass try $2,700 form title to the land State Roscoe of about due the note conveyed by Bank, theretofore to John- reserv- which was and a lien agreement changed By Upton conveyed by son. the venue was Johnson one the tracts county, by Callahan of trust deed to the Frosts. To Taylor signed agreement, further county. from Callahan to attached an escrow individually September 7, 1918, On Johnson and B. Frost, petition, which, attorney filed their amended for Belton B. in fact him Johnson, addition to provided of trust S. and Ed. the deed which not to Hughes Company, Henry September placed until James and Robin record appear James, Henry 1915, the Jones 4, event the note and in the defendants. ostensibly notes, paid by alleged, held the two Bank should be State Roscoe $5,000 one be delivered secured deed of trust and of trust was to said deed time to $2,000 the other for secured a vendor’s become of no force lien, payable Bomar; appears both to D. T. but deed of This trust to have effect. reality alleged the Ed. S. been recorded in the office clerk pe- county, being Hughes owned the notes. no date of the record Nolan August 9, 1916, tition recited the trade made On the Frosts T. Dob- M. trustee, president bins, McAdams, and Johnson and the John- K. R. Bank, son the Frosts of the land of the Roscoe H. Crane and State released to G. Upton counties, conveyance by John- Johnson the deed of trust lien on a lot son of certain tracts of land at Roscoe in 60x100 feet the town Roscoe. This county. occupied building Nolan It was recited con- lot on which the was the veyance of land in Crane Bank the Roscoe was located. On State August 1, 1916, joined by ties made of trust two Frosts deed aggregate the two notes in secure wife of Belton B. Frost executed deed $7,000 Bomar, trustee, Dobbins, held D. T. M. indebted- trust secure T. assumed; in- ness Johnson con- H. Johnson of the veyed the Frosts certain tracts land Roscoe State recited debtedness to the first, second, $2,700. described as and third Roscoe, plaintiff agree- pieces tracts in the town of ing pay trade, sum in their John indebtedness Frosts held feet El lot 1 and 10 off of Helms of Paso held vendor’s lien three town; notes, north side lot in block 15 of each executed pay principal $126.33, January 1, off an sum 1918, 1916, 1917, respectively. incumbrance On No- Company, Frost, Southland company Insurance vember B. Bife held a lien on fact for Belton B. lot block executed to original Roscoe, Abilene, town of trans- (Tex. REPORTER 229 SOUTHWESTERN n answer, inal John- filed March fourth tract to the Frosts denied son; pay agree that of trust interest in the did incumbrance held to the Frosts *3 assigned by Bank, agreeing the Frosts and to Ed. Roscoe State Johnson Johnson g. against Hughes. alleged hold He all other that there had been Frosts harmless by plaintiffs specially accounting a final him those assumed and the incumbrances than by alleged conveyed at the that time of the Frosts. was further the execution the deed It by given by trust him lots Johnson to the incumbrance valid first lien John Helms. to the 13 and 14 in block Frosts to secure Nos. gtate payment Frosts, valid the was to a the note to the Roscoe Bank, upon $539.43, awas that and transfer said by Hughes, payment and held of trust on said bank’s note received alleged Hughes, any It had failed Johnson was not liable for oth was that Johnson by pay except the balance of the incumbrance held er amount which he due the balance paid. amount of State Bank Roscoe further thereafter Johnson pleaded $1,946.97, held John incumbrance that if mistaken as to he should be liability lots and balance Helms the other two the leged al himself as to the items of the incumbrance excess lands due him and as to the Wright assumed, Upton1counties, plaintiffs held Crane and if there and the north 10 feet off of lot and was not final settlement between him and alleged plaintiffs, plaintiffs that on side the lot 2 block ihe that had November, day pay the indebted- 6th off indebtedness unpaid, and Company bank then ness the defendant Ed. Harris-Johnson Hardware a means of “as which this defendant -was that liable and securing an they bank for said Johnson from said failed to do so and that defendant had aof extension of for the damaged thereby. time pray been Wherefore he indebtedness, paid and advanced of said judgment against ed in reeonvention for of, plaintiffs indebtedness sum said bank on said to $5,000. in the sum of Defendant dollars, wit, un- with the one thousand adopted answered, exceptions that, derstanding defend- said lodged against and plaintiffs’ second amend rights subrogated to' the petition ants the should fur and alleged of trust to the in said deed beneficiaries assign ther that the transfer and originally named therein if same extent as ment him of the deed trust beneficiaries, Upton county lands, to- extent said as such deed of trust was and Frosts on the the assigned pro to said tanto to the bank of the note held g. Hughes by it, one of the he thus became and that he became the owner of said deed plaintiffs trust, extent named to the of to beneficiaries the therein and that had no interest paid him so advanced amounts or claim to said land reason of the alleged further that It said deed of trust before bank.” g. along Ed. S. Hughes Company, Robin Ed. sort of title to the so tiffs, special Jones The Ed. after g. claiming some pleaded exceptions, legal that it was the liens thereon lands and owner in fee of thirteen sections Crane in. to said purchas- Johnson Upton counties. It became the that claims held them were er of said lands aat sheriff’s in Ector sale plaintiffs’ county subordinate and inferior 7, 1916, on November said lands; liens toriously insolvent, on said no- sale was made virtue of an alias execu- it had become tion issued out of the district court Nolan necessary plaintiffs’ protection to enforce county ain certain suit which the Con- gtate gweetwater them on the lien retained said Crane and tinental Bank of was the county Upton and that same be sold plaintiff lands Hopkins, and G. H. E. L. satisfaction of indebtedness. defendants, T. M. Dobbins were g. and Ed. Com- that defendant value for the abatement, alleging pany plea same; filed a' that and was an innocent of tire title, gtate right, and interest all Continental Bank in the above mortgage had in and to the ex- styled Frosts had ecuted G. H. Johnson numbered cause had an abstract in behalf of Upton filed in both Crane and to Ed. S. L. Frost had October, on the counties 23d g. Hughes had and that said Ed. now iu said abstract was filed authority appoint right‘and to of a substitute county day August, on the 21st place Douthitt, day trustee Ellis on the 7th Crane perform August, or should fail refuse duties 1915. At the time of the upon knowledge of said land it no or devolved him reason of the deed of had notice ’trust, equitable no inter- of liens said land held and that urged by plaintiffs. est, claim, fur- in and said lands Said defendant or title alleged indebted to deed of trust ther thereon. that Johnson the Johnson, by orig sum evidenced his first amended Tes.) FROST JOHNSON v. !.w.) (229 ! February controversy promissory plaintiffs’ a certain note dated without notice of alleged equitable 1, 1916, liens, up- October and due on or before the burden was and tliat secure the same show that said defend- purchasers the ants were not had executed his Upton of trust innocent of said deeds equitable lands or had and Crane counties notice of such liens prior constituted before the deed said liens so reserved would be We admissible, any rate, think lion. Defendant this was in so mortgage alleged Johnson, taking from far as that after between the money concerned, to Johnson and H. that it advanced and no re- notes, quest being pay Bomar interest on the made to court to limit the between the *4 paid state of that it had the interest to evidence to paid taxes on said that it had years 1915, and to exclude Texas said Johnson application controversies, ap- land for the its as to other on said and Wherefore, $1,590.70. pellants’ assignment sum of total be overruled. Sul- prayed Fant, 612; its that it have livan v. Love, 160 S. W. Keowne v. Moreover, several of the foreclosure for the items above Tex. the trial involving questions the ad- before litigant parties hardly missibility present and the other can Plaintiffs non evidence vel ruling supplemental pleadings filed amended there- The same reversible error. after, assignment, a sufficient statement which we believeí is as to the second made purpose complains an escrow of the case has been made admission of of the opinion. this and Johnson. the Frosts between assignment submitted to the directed to The cause was The third excluding jury, of a writ- Com- without intervention loiter action the court discharging Hughes judgment de- rendered S. ten B. L. Frost to Ed. filed; pany. as- this fendant Robin Jones his disclaimer answer to But a sufficient plea Henry sustaining signment letter, exclusion to the James’ that the directed, misjoinder parties, assignment is found and in favor of which the facts, page tiff Belton L. Frost H. Johnson on Bank the defendant G. the statement 112 of having ex- the note due the Roseoe State its is no record of there paid by plaintiff-, interest and cluded. attorney’s found that shown fees. Nor we think error is do reversible judgment complains assignment, Ed. S. was entitled to the fourth cross-action his defendant Johnson another letter written of the B. L. Frost to Ed. S. exclusion Hughes Company, for the sum at- with interest and No- torney’s letter, specially fees. The court found that a valid ad- In this vember subsisting says: lien deed of Jones, evidenced Mr. Frost Mr. dressed to trust existed favor of Belton L. Frost you ago, year I sold remember “Xou Ed. S. certain outstand- .to given four on his sections Frost’s lien L. Belton ing liens the Crane and harmless on by $2,700.00 to save Belton by Henry James, ties lands held and ordered (note) to Roseoe liens, a foreclosure of said be sold and the and that the land Building. on Bank secured from Johnson State proceeds applied first to the The for his land. Belton took $1,000.00 to turn day by you satisfaction of the in favor of Ed. draft S. Frost. The court further now refuses and second in favor of Belton L. and Mr. the bank agreed upon us on over $600.00 found that saying day, that the lien did not $600.00 were not entitled to recover date, you belong because same had on that paid by action the amount of taxes them on limitation, prior statute of been barred the lands to them the defendant you he knew But at that time nor that time. it.” Johnson; that Johnson was not entitled against plain- on his cross action tiffs; Hughes Company that Ed. S. was en- part letter, think, last is not The we titled lands, foreclosure of its liens on said assign- discussion material to the adjudged but that its liens were only ground for the admission inferior and subordinate to those of of the the letter is statement contained Hughes. Ed. S. Defendant Ed. first sentence thereof the writer had Hughes Company S. S. have Company sold to the lien on Ed. S. appealed. belonging the four sections to Belton Frost L. assignment [1-3] The first of error com Upton county. and located in We do not be- plains of the admission the court in evi assignment lieve that made B. L. dence of a certain deed from John Helms Frost, in fact for L. G. H. Johnson wherein was reserved a ven Hughes Company, ambiguous, to Ed. S. and fer not believe that reversible dor’s lien promissory secure the of three evidence aliunde the written trans- notes. It is contended in rate, asmuch At do as Ed. was admissible. we S. purchasers were the was shown the lands

229S.W.-36 (Tes. REPORTER 229 SOUTHWESTERN

5G2 growing Johnson of a certain plains owning it. The seventh ment ible error appellants testified ment, he and Mr. fendant Johnson. F. ment” to the effect that he settlement with reference of the entire transactions between the Frosts was made or not. the cause debts which the trial was before circumstances troversy balance of American Construction under the Porter Manuf. expert witnesses as conclude that the in that it his son on the one Klaus, several concerning shows himself on the permitted rule the sixth and seventh clusion of the Harris-Johnson We believe this evidence was conclude that which he bases S. W. on the other. Much of this and arising side and G. H. Johnson constitutes ant admission of a mass of tion think, clusion Civ. [4, [6] The Allbright admission of testimony eleventh Johnson, figured based, of the defendant Johnson. The excluded App. 342, 29 S. W. 5] The sixth that a final settlement v. of the admission of exclusion is 64 Tex. witness subject, may, out of pages, out of the between Frost complains was tried made between B. admissible, and, ninth ninth claimed to be a constitutes a appellants $700 the trade made between and we do immaterial Costephens, together writ assignment complains state and under figures of B. E. Frost and of the ex and their and in of stock shown capable the admission of the whole same, facts testimony of the 293; assignment complains on the sale and who states Co., whether a assignment. his of is assignment testimony by Both of effect that purchase of the failure to exclude before exchange only Ry. Allbright 17 Conn. evidence out the hardware claimed refer to the view of opinion, Hardware witness of opinion. court. error. We further Co. v. admitting rambling letter, 558; the head many Co. v. testimony, mutual as to having think, conclusion of refused. at L. Frost assignments. to transactions final settlement these had been the facts matters is multifarious of B. the Frosts as- The exclusion 17 Johnson, owed Frost a final any rate, the fact testified *5 court, complains evidence, instances, business the cross Caswell, 141 inasmuch John, H. Johnson. purchase of under the defend corporation with Cyc. obligations evidence is Ry. an statement statement of “state Company. of the witnesses what We over him and . covering and de thereby opinion A non- in con revers 9 settle Co. v. made, p. 99; state Harlan v. Merc. Frost these com on the Tex. final ex ac we wé brought my for defendant clude that the like which the court cannot failing of law. The ment, neither wanted tutes reversible error. sumed, rect, signed, approved part cation, failure is cured noAt motions for I. & G. ment of facts is dently hearsay, ure is filed. At any legal ord of a of fact and conclusions of Judge Conner, ments, and we have examined the same sions of assignment lees judgment, think 920; Kyle Blanchette, v. urged were senting; by sustain the twelfth Smith, complaining ter v. their contention 528; Guadalupe County “This bill of All Appellees Appellants ^[7] Appellants the bill points Emery, fact Barfield, failure of of the record do to sustain and to this time thereafter was such Oldham, assignments “Harry 149 S. W. at the time the court rendered upon request etc. request, N. court; follows: and would made a appellees’ full Peers v. file finding special is affirmed. some of would twelfth reason v. they which we Ry. does conflicting upon have several rehearing. exceptions referring 156 S. W. Motion for Much findings witness, ’phoned qualification by desire. party requested findings cite the statement of attention and action the trial court to exception examined, found cor- Tom Tex. the court to of them 208 S. W. 575—in who wrote the other Co. some of it doubtless Co., should Bloch that, any require good day 279, by .any. why . appellees assignment Williams, of this King, Judge Presiding.” court motion is our are v. this 214 S. approved me at time, of fact and and we of these However, assignment are Diaz, specifically remember, even v. trial be overruled. its cases reversible error. should be case with this Rehearing. One of the 177 S. overruled, v. this record, a reversal Bloch, cross-assignments, ordered I have never seen persuaded facts on a request exclusion law. my Poth, though file have both filed S. W. material court erred reason 174 S. the trial court; Emery is directed 649; request find exact date of 952.W. office that be opinion, cross-assign- facts file we do to this conclusions an 190 S. W. Poulter v. where the support Any error invoked 153 S. W. sustained. failure to point 796; filed as of for same. and con- and W. Barfield a state grounds findings W. of such conclu- of consti- is evi- qualifi- signed appel- couple If issues if court. error, judge judg- 907; fail- Les rec dis out we In veyance and such necessary do so peals her Chief Justice Tex.) above entitled and tained in our for the tion mining signment. lieve that tice eration. Court of Civil motions has mitted Barfield v. fact were to file case of and correct statement conflicting, the attention of the judge attention RICHMOND duly of the 1. ord is different fromi Hence (Court same, cation strument conveyance hands stead. married 194 — Both the ^[8] Acknowledgment true Homestead facts exception Where In order separate resulted to Conner, where a writ of error our thereon was approved in the manner However, Dec. Acknowledgment such we instrument original denied, we conclude case of of her by1 majority Peers v. what consists Supreme Civil sustained woman, the evidence. have found no was not explained findings. those yet, Emery, rehearing the evidence for married woman to of fact was never married the instant et ux. v. appellants’ et al. Phillips, <&wkey;l separate property 1920. trial her Emery Jan. we court, upon the facts from a in the ease separate Williams, remanded findings 19 —Husband regular appears numbered Court, conclude fact had acknowledgment never appellants <&wkey;<56 Conveyance judge the dissent (No. required by statute. some 185 Rehearing woman executes a con- an officer authorized judge, or HOG are overruled. reversed the trial 1921.) good of the evidence Tex. careful accompanied 9394.) Court her Even case, for further consid 3. Mines judge’s findings there was Barfield, in some overruling RICHMOND v. Texas. difficulty properly -v wife supra. were CREEK OIL from the judge. the cause the trial disclosed and that his as “a faith, homestead, respect that no appellants’ an cause,” form, or motion the statement if the pages, of Chief Denied called to notary. of Civil case, study necessary applied amply brought Ft. Worth. homestead, eration, respects is 177 S. though full, appellees’ or home- in deter be taken the trial wife no error While invoked. good and be with a qualifi convey injury S. W. true, cient Jus sus rec <&wkey; CO. Ap (229 bill ad for ac as in- HOG CREEK !.w.) veying minerals, made with that defendants were sition, and not a mere cellation of evidence such ness. 5. ing plaintiffs conveyance 7. Mines and one of the to tory the time 6. Mines and minerals privily and than a license and to the married tary tive tained erals or that after the sible influence over knowledgment of a married woman “shall be certificate of respect, against see. she did not a valuable statute. dence tion. tion sideration error opinion, tation lessees were without knowledgment not within dicial Acknowledgment Appeal Acknowledgment hear, lessees, A In a suit to To entitle A leased gas, acknowledgment by plaintiff “privily thereon, may be notary has not legal-opinion, expression underlying representation $1 execution time and a it must held not requirement support the instrument amounted or with the incidental then to indicate that departure were not and minerals consideration not conveyance land is consideration any purpose OIL CO. to nature falsely apart did not desire conveyance sufficient developed. properly explained hearing acknowledgment acknowledgment minerals be laying error ground oil woman, question not remain evidence, notwithstanding apparent husband conveyance, an oil and ground of wife cancel ground apart” followed from her husband” is met if enter on and other matter exercise followed and was her instrument prejudicially oil defendants was <&wkey;25 the lease is that the terri- <&wkey;742(I)' Assignment &wkey;>62(2) Finding without an distance. retract that an instrument con- of conveyance pipes, gas, lease, good <&wkey;55(8)— <&wkey;58 the statute that fraudulently represent- <&wkey;-55(8) notice gas false, actually paid from husband therefor, for cancellation is not within undeveloped sustained. support material defendants knew cancellation. coal land, by proper —Of deceive mislead. oil by proper propo- privileges faith who has constituted a lease particularly in the absence of cancellation. presented it, lines, notice of defec- lease mere *6 husband and les- regular the nature of a of defective or that her declare that —One lease, married ground explore the instrument affected. wife lease. Misrepresen- operative although inducements required by — taken, dollar present other etc., since Representa- not to consid- held, territory, grantees, of enter- no or near- proposi- is suffi- for can- distance if he it was woman finding for oil where preju- every more legal min- wife pos- con- sus- 5G3 evi- no- ac- ac- topic Key-Numbered Digests

<§r=3Forother cases see same in all KEY-NUMBER Indexes