*1 633 four, three, year limitations, five since been barred the statutes of ” specially pleaded.’ all of which are here appeal, Appeals correctly On the of that the district Court Civil held sustaining exception. court did not err first Civil in the Court of Appeals sustaining judgment reversed the error of the district court for in exception, (2d) the second and remanded cause. W. the 7 S. 148. There be no doubt of of a creditor of an estate specific conveyed enforce a land lien on a deceased debtor has which creditor, against deed for fraud to such as void as the fraudulent vendee passes and the and heirs administrator to the debtor’s estate. While title against conveyance, vendee in the fraudulent as the debtor and his estate, any property and such of vendee would receive excess in the value conveyed chargeable against over same, nevertheless, debts as to creditor, conveyance void, any defrauded as and is denied effect prejudicing ought the lien of the creditor. The bill show creditor’s bring for sold, ought debts is liable be parties. before the court all interested Arbuckle Bros. Coffee Co. v. Texas, 963; Cohen, 44, W., Carr, Werner & 77 99 13 S. Rutherford v. Admr., 101, Texas, W., Turner, Wallace, Texas, 543, 87 S. v. W., 31; Texas, 787, 92 S. W., Blinn McDonald, v. 46 S. W., S. 931.

Substantially questions presented the same law as are on this writ error, regard limitations, were determined an today styled this court filed in Cause No. Max Eckert v. Lorenz al., Texas, 618, (2d) Wendel et 40 S. W. 796. Applying opinion, as law announced since it did appear petition from the suit averments of defendant in error’s limitations, by any

was barred defeat the enforce- statute would lien, ment of its creditor’s there of the trial court was error the action sustaining exception suit, dismissing second and for Appeals reason rightly judgment the Court of Civil reversed trial court and the cause remanded new trial. judgment

It is therefore ordered that the court be reversed trial affirmed, cause be this proceedings remanded court for in accordance with district further opinion. Whaley Corporation. I.S. Robison et al. Farm April 1, No. Decided Rehearing 24, 1931. June (37 W., Series, 714.) 2d *2 Pirkey Atchley, appellant. & for by jury of of their commission

The service the sheriff jury jurisdictional, and can be and as such of view is to act accepted by jury majority said com- of them said of view when waived performed duty required mission, and of them under took the oath appointment. such Texas, 1925, fully author- Statutes of

Articles 6703 to jurisdic- court their motion to invoke its izes the commissioners on own Appoint members, necessary. jury of motion its tion act, members, may and when three said view of five three of whom survey appointed by oath, lay road, jury so the court take certainty report their mark same so that can be traced with make description including the field notes and to the next term of said adopted by road, report and when said is the commissioners fully same satisfies the law in the matter. provides proceedings by the commissioners manner

Article petition, given It full and court to establish a road. complete jurisdiction subject matter, the benefit of the and is for through court. Article 6705 generally, acting commissioners provides citizens to initiate the move for the a method for individual court does not consider the road of suffi- road where the commissioners importance serving method a useful cient to act on its each purpose, up in manner the court has the matter is taken either jurisdiction subject appellant served with matter. When presented view, its claim and renewed and notice report urged hearing of it before the commissioners court on the view, gave jurisdiction to hear and determine the court damages, claim for is all that it had a to be heard on. party by injunction being Where a seeks to close a road that used period fifty years, and has been so used for a of more than prevent therein, placed person and seeks to the removal of obstructions injunction seeking plead prove must had not that said road become any manner, prove attempt prove and a failure to or *3 by permission during period that said road used of the owner said time, injunction should fail.

Appellees proposition propositions 1, counter No. 1 covers 2 and 3 of appellant, 6702, 6720, 6710, it under which is asserted that article S., 1925, pertains roads, authority R. given C. which to no the com- petition opening except eight missioners court to order on a of a road position by appellee, being freeholders. The assumed that article 6703 gives power open public necessary, the court full roads eight the commissioners court does not sit until free- with its hands tied precinct petition holders of a shall the court for a road. That when appoint jury the commissioners court on its own motion can road; done; number, statutory of view to this was majority oath, appellant; of said of view took the notified they directed, report laid out and marked the road as made their September term 10th, next of the commissioners and on the next approved report term of said the court of the Hale, Kopecky established the road. Haverbekken v. 204 S. Daniels, W., 533; v. Senalling Senalling, (2d) 29 S. 3 S. W.

Leachman Crumpton, appellee. & Gardere and Sid only power open The of the commissioners court roads and con- property purpose given demn for that is that it statute. Those statutes dealing opening of roads are articles con- 6703 and which are strictly strued being in favor of the landowner con- whose open demned. Prior to 1925 the Commissioners court had the motion, authority specifically given roads of its unde- which it in niable terms. (now 6703)

Article 6860 reads as follows: “The Commissioners powers Court of the counties several shall have full and it shall be their duty necessary, laying opening to order the out and roads where expedient any

and to or alter shall be deemed discontinue whenever prescribed.” as hereinafter carried in the codification as article

This article was forward Supreme Texas case Hale et Court of in the of Haverbekken v. al., W., 1162, page that: not states on "Article 6860 does any itself, in our the Commissioners Court author- confer ity open confer a new road its own motion. Article does authority. may act of its such It relates to condition where the Court own accord.” following

Old article 6871 clause: "And Commission- contained may, motion, necessary, open ers on their own where is deemed Courts roads, straighten existing new or ones.” wholly clause is omitted from the revision. Nowhere This Supreme authority found. Yet statutes such now be open says language empowered the commissioners court new alone roads their own motion. final

This construction is reinforced section title repealing clause. That reading as folows: “Section revisions 2— general all civil statutes of a enforced the revised statutes nature herein, expressly take are not included or are not effect which repealed.” force, hereby continued

Appellant respectfully submits that the commissioners court has open establish or roads of its own since the 1925 purpose effect. could there have revision of the statutes took What omitting prior gave them to the revisions alone clause power? *4 open roads of their That of the commissioners courts to destroyed recognized in of Haverbekken has been the case motion 573, November, Coryell, decided in undisputed evidence, appellees and court’s admissions of trial The findings effect of fact to the that: duplicate

(1) county copies The clerk did deliver to the sheriff not appointment constituting five freeholders order of view.

(2) consisting persons, freeholders, The of five were appointment by served sheriff. with notice of their (3) only jurors at all. That three of such were ever sworn (4) only two, sworn, or That so and one not sworn served went proposed only that, lay route, part over out the road. appellees various sun- contended in trial court that for dry strictly comply the statute reasons the above failures to were Articles agreed The trial with such excuses. waived or immaterial. court 6706, 6707, Stats., Rev. Civ. Presiding

Mr. SHORT delivered the Commissioner court. attempt court of

This law suit arose out of the of the commissioners’ county lay points out a road about six Bowie between two portion belonging length, in land to the miles a small of which crossed error, by defendant in commenced the latter in the form of an was application injunction granted by for an which was the district court of county. Upon court, intervention a trial before the without Bowie jury, findings wherein the of fact and conclusions of law were filed upon appeal judge, injunction dissolved, the trial but Appeals Texarkana, supersedeas having Court of at Civil bond given meantime, judgment reversed of the district court was judgment error, perpetuating .and rendered favor of the defendant (2d) plaintiffs injunction. 25 W. 242. The in error have been granted a of error. writ assignment

The first error Civil is to the effect Court of Appeals holding, did, erred as it the commissioners’ upon application motion, any having assumed its own without been filed proceedings, having purpose to institute their the establish- ultimate necessarily belonging individuals, ment of across lands including public use, the condemnation of such lands for authority lawful to do so. Appeals any question

The Court of Civil did not discuss other after having reached the conclusion that the commissioners’ court was without public road, having of its own motion to establish a but reached very properly judgment this conclusion it reversed the of the district n judgment and rendered a in favor error. of the defendant judgment While have reached the conclusion that of the Court of upon grounds should affirmed than be those n whichit based its decision, yet Appeals, holding of the Court of Civil authority lay.out public road, that a commissioners’ court has no importance its own is a matter so much question think the should be discussed and decided. provides

Article section 18 of the Constitution that: “The Com- powers jurisdiction missioners’ Court shall exercise such over all (cid:127)county business, conferred as is this Constitution the laws of the State, may prescribed.” S., 1925, or as be hereafter Article R. is as * * * establish, “Each follows: Commissioners’ Court shall out and change highways,” and discontinue roads and etc. Article *5 provides among things, that: “The Commissioners’ Court shall n order the necessary.” laying opening roads It out when provides expe- also it that the commissioners’ when shall be deemed dient, any public shall circum- discontinue or alter roads under certain

638 specifically necessary mention, stated in this not to but which are stances article. primarily government highways a function of

The establishment primarily belongs state, resides to the and the to establish them which anything thereto, Legislature, in the do with reference which which prohibited County, not the Constitution. Robbins v. Limestone Legislature many Texas, 345, W., S. has declared in so the commissioners’ court shall deem it words whenever so, power lay part do out a road. The other of this has the already altering has discontinuance or of a road article reference to the public, given authority this, and the court is to do it shall deem when article, expedient, to be certain restrictions named in the same under Hale, County in In Haverbekken v. not involved this law suit. Texas, 106, 1162, con- Judge, the facts show that 204 S. troversy grew an order made the commissioners’ court on out of others, appears application application though it also requisite signed by number of freeholders. Chief was not Jus- questions, lays Phillips writing opinion, in answer certified tice in 1911, great stress three in article 6860 of the R. words especially appear 1925, holding these do not the revision of words powers provisions limited the the commissioners’ court of that roads, article, in so as the same related to second and third class far proceeding. one of classes is the road involved in this Since .which they con- revision of does contain these words and since were not occurred, before said revision we conclude that the revisors of the strued they had this construction of the statute in view elimi- code of 1925 to-wit, pre- previous words, hereinafter nated from the statute these “As scribed.” Kopecky

Judge Williams, speaking for the of Civil W., 533, Daniels, App., as Texas Civ. discusses the law previous existed the revised code of and reaches the conclusion the commissioners’ court had the own motion to though power, necessary, had the under certain roads when it also persons. restrictions, so, upon application private Chief to do Phillips, opinion, had his written after the statutes of 1895 Justice question adopted, incidentally this identical shows necessary procedure said referred where- involved that what he application open private persons had made an to the court question road, by Judge Williams shows the rendered while directly opinions in these cases are correct involved. We think the harmony light each is considered in the of its facts. and in entire words, prescribed”, However, “As hereinafter should assume that law, of the commissioners’ court to- under the old did confine the feel, provisions S., 1911, law, following R. article *6 St., (Rev. statutory now in force and of the law of the Costitution view question discussion, justified relating under 6703), to the art. power do have of their concluding commissioners’ courts the laying necessity opinion exists, out in their to order the class, as and third as well of opening road of the second of however, gates rights owners, class, subject to erect to the of the first power commissioners’ court has this road. While the across a third class power premises upon act in the motion, it also has the act its own public road, open application free holders to of course, provisions thereto. We -subject, the law with refeience of holding erred in therefore think that the Court county did not have the of its own commissioners’ court of Bowie proceedings instituted. motion to which were institute power, While we think the commissioners’ court had this we are also of the the manner in which the record shows it exercised power, strictly construed, as, duty bound, this must the courts n do, legal deprive did not have the effect to the defendant in error of property, and, course, legal appropriate did not have the effect to this purposes. judge, The trial the use of n among appointed things, other five found that the commissioners’ court office, view, only individuals as a three of took the whom oath only actually sought appropriated, two of whom the land to be viewed actually notice, and none of whom were served with a which the law required issue, appear, the clerk the sheriff to serve. It does how- ever, member, land, signed the third did who not view the and who report members, general personal knowledge with two had a sought appropriated. the land to be appropriate thus to lands of individual an for the use of public, by undeniable, the commissioners’ but order to do

-so, statutes, complied thereto, relation with must be land with. A prevent power, owner cannot the exercise of but he demand that conformity provisions the exercise theretof be in strict with the made Legislature. Since, by state, statutes Constitution and of this supervisory district courts, court has control an over the commissioners’ n equitable injunction brought suit for in the district court is a direct attack proceedings all the of the commissioners’ reference to establishing taking purpose.” road and land for that Crawford McDonald, Texas, 626, Hale, v. Haverbekken v. supra. appears, case, affirmatively,

Where it as it does in this that some of serve, the members of the of view did not and also that while three n ofthe members took the oath of office and report signed filed with court, only actually the commisioners’ two of the five members traversed sought appropriated, provisions the land to be it is clear that particulars. strictly record in these Besides the were not followed law provisions think there are other law also discloses followed, mandatory but which do not think and which were not disposition discuss, make the case. we shall Texas, 259, W., 1027, Luker, 1028, the McIntyre In *7 pro Supreme state, among things, said: “The statute Court of this right viding roads rests the of emi for the establishment of undisputed interest domain and the doctrine that the nent well-established yield necessities and convenience and the will of the citizen must appropriation public. authorizing of individual of the In the prescribed con and laws have certain for the use the constitution performed.” procedure strictly be and and which must observed ditions requires jury meet, to after the members have- of view Where law appears meeting, it that there has an been notified of the and where part only give and of the- this notice to all the members omission to proceedings, participated jury in the members of the of view met and part members of the of the situation renders null and void what circumstances, quorum, under such did. The mere attendance of body every be legal member has a does not constitute a but McQuillen present participate to be done. and shall be decided what 403; Elliott, Municipal 603, p. and Roads Corporations, on vol. sec. v,. 219; par. Vogt Domain, In Streets, 218, on Eminent Lewis opinion by App., 272, W., 1044, an County, Bexar 5 Texas Civ. refused, Appeals, dis wherein a writ of error was the Court of Civil steps by com great length must be taken cusses at deprive- legally proceedings become sufficient missioners’ court before appropriate ownership private property and of his an owner road, judge that as ordered' use. The trial found same strip by opened, the defendant error would cross a of land owned beginning as- yet, paragraph this road had its in the next also found that purposes, year by 1888- general all since the a road used findings fact,, Taking probably previous these to that time. two necessarily the- record, reach the conclusion that in view of the whole we controversy strip judge land in to find that trial did intend general acquired by prescription. rule is- The had been from the owner appear by prescription highway it must can be established before permis right, by general public, and not mere under a claim of interruption way, or substan owner, without sion of the use some defined period prescribed limitation change, longest tial for at least Streets, Elliott, involving land. Roads an action the title to statute in , App., County p. Cunningham Texas Civ. v. San Saba dispute only three of the mem- Since record shows only sworn, two of the three- and that bers of the of view were ever actually participated sought had viewing who been sworn the land appropriated, be and since have we reached the conclusion that these are mandatory provisions law, ground of the while think we Appeals judgment the Court of Civil reversed the of the district court one, rendered the case in favor of the defendants in error is not a correct yet opinion judgment we that the of the Court of Civil be should affirmed and it is so ordered. opinion adopted foregoing

The Supreme Court, as the judgment will be entered in accordance therewith. Cureton,

C. M. Chief Justice. rehearing. on plaintiffs case, in error have filed a rehearing motion for in this which has received our careful consideration and which overrule. In so, doing however, proper say think original opinion preclude does not county the commissioners’ court of Bowie from insti- tuting proceedings condemnation purposes, provided of the land for road only prescribed does so in the manner statute. Neither does *8 opinion original preclude county Bowie or those of its citizens inter- subject matter, prosecuting ested in the against from a suit the defendant error, based county, the contention that Bowie and its citizens acquired interested, by prescription, have any portion, strip all or controversy of land in this original case at this time. The merely holds, subject, on this affirmatively the record does not show judge, that the trial who tried the case jury, the aid of a intended hold, fact, any portion as a controversy the land had been so acquired. Moreover, appears it further from the record that if the dis- judge trict had so pleadings intended to so hold the were not sufficient identify strip acquired pre- land so claimed to have been scription. completes

This volume the editorial work of Wilkinson, Judge the late past A. E who for thirty-five years reporter has been the efficient Supreme During Texas. time he has edited volumes both inclusive, Reports. the Texas