*1 SOUTHWESTERN REPORTER (cid:127)950 suing property tiffs recover his erty, heirs of Jesse Palmer to not belonging plaintiffs inherit partnership prop- interest in error which he held trust. We find witness, being nothing and the the heir of Jesse in the record which us would lead Palmer, testify . would George allowed to to to not believe that W. Palmer intended by statements made and transactions with that defendant in error should ever have George any Palmer; W. that Jesse could Palmer the trust estate. The fact that testify living. not so claiming We cannot tiffs in error were heirs as the agree testimony appellee’s to the bring contention that this Jesse Palmer the ease with- generally, statute, claiming was inadmissible and in the since were not we think it is clear that it was not as the heirs of the decedent whose state- objections urged against to guage sought prove. it. lan- ments Reference to by is: “In exception statute actions or the bills of Shows that -noneof the against executors, administrators, guard- testimony sought any or to be introduced in may ians in which rights be rendered affected defendant in er- against such, them property by shall Palmer, neither ror- to the owned G. W. testify against allowed to by others but related the trust estate held any by possession. him transaction with or and in statement defendant’s We testator, ward, property think if intestate or the will called devised testify by opposite party; error, specific- thereto and now claimed defendant ally describing provisions it, description of this article shall and such had and extend to personal against embraced all trust, the estate both include all actions Palmer, held G. representatives heirs or of a decedent death, necessarily his have been heir, arising suit any must out of transaction with such de- against Sayles’ her such executrix and cedent.” art. 2302. St. and the would have been While error was defendant the inde- within the statute and inadmissible. But pendent executrix under will of her hus- she does not and cannot hold it under the band, Palmer, and G. W. his sole heir at will, and does not and cannot inherit some- thing from her husband which he never law, she the will took under and as such heir owned him. appli- owned. Therefore article 2302 has no specify will does not kind of to amount cation. property devised, purport and did not [3, trial, 4] In view of another dowe convey property, to her proper remaining heir, deem it to discuss the as legally could she claim of it as his signments cy error, questioning repudiated the sufficien until after he had the trust. In- findings of the evidence to sustain the spection petition shows that defend- pass upon fact nor correctness of the ant error not sued either as execu- findings conclusions of law based further than to such trix under or as the heir the will of G. W. effect of a cov against Palmer, judgment is asked her general warranty pass enant of covenantee is to representa- as an individual and in her any subsequently acquired title capacity. the statute tive Since excludes Lowry the covenantor to the same land. testimony only judg- such actions where Carter, App. 488, v. 930; 3; 46 Tex. Civ. S. against 102 W. executors, ments heirs, etc., Root, 546, Baldwin v. 90 Tex. such,” 40 S. W. we think “as the rule in Neal, 629, Elaniken v. 67 Tex. 4 S. W. objection question applicable, resulting trust, 212. And in case of a should have been statute will not be extended' ters not suppose overruled. rule of the consideration, as the one under limitation include mat- begin against plaintiffs did not error until to run clearly within its terms. Let us repudiation proof plaintiffs George W. Palmer and notice to them of error undertook to elicit Mrs. Tennison repudiation. Dyess, Pearce v. parties had been made the to defendant witnesses not App. 406, Civ. 101 W. S. Cochran plaintiffs suit, and had entitled error Sonnen, Leavitt, 26 S. W. White manifestly recover, judgment against Tex. 704. representative her- ca- error Reversed and remanded. pacity as or heir of G. executrix W. Palmer improper. would have been ror executrix, Plaintiffs in er- judgment against sought no her as such and, facts, we do not ROE v. error should DAVIS.† the defendant be al- lowed to use the statute as' (Court Appeals of Civil of Texas. Texarkana. illegal- protect her effort Motion for shield to her Rehear- 11, 1912.) Denied Jan. ly acquire property which she could neither oj? claim under the (§57*) inherit nor presume law. We cannot Homestead Establish —-Burden ment. Palmer 'G. W. undertook trespass try title, in which her his will to that did not be- claimed under a at a sale under a right, long him in his own by defendant, and she could trust deed executed
* i n Dec. No. Series by Supreme granted † Writ of error *2 Tex.) ROE v. DAVIS property posted, was to defendant show notice of sale was making homestead, a deed void. was the trust court must such a recital assume that being deed, Homestead, was contained before the it [Ed. Note.—For other see governed presumably so it was Dig. 84; Dig. 57.*] § Cent. Dee. its effect. Appeal (§ 1012*) 2. and Error —Review- Appeal cases, [Ed. see Note.—F'or other Findings— Conclusiveness. Error, Dig. 3762-3771; Cent. Dec. §§ ap- finding A not disturbed Dig. § 931.*] peal, if of the so to the is not Mortgages support. (§ 356*) 10. to without Deeds —Post —Trust ing Notice of Sale. cases, Appeal and [Ed. Note.—For other see requiring no- Dig. A Error, 1012.*] of a trust deed Dig. 3990-3992; § Cent Dec. §§ contemplate tice that notice. to of sale post personally the trustee should (§ 57*) 3. Homestead —Evidence. trespass try Evidence, title, in which to Mortgages, cases, [Ed. other see Note —For plaintiff purchase sale a at a claimed under Dig. 1063-1067; Dig. 356.*] § Cent. Dee. §§ defendant, under a trust held deed executed Trespass Try finding (§ 41*) to a land covered sustain 11. to Title —Actions —Sufficiency the trust not homestead. deed was defendant’s of Evidence. trespass try title, cases, Homestead, in which to Evidence [Ed. see Note.—For other under, plaintiff a a trust deed Dig. claimed under sale Dig. 85; § 57.*] § Cent. Dec. finding by defendant, a executed to sustain held (§ 382*) Trial 4. bt —Trial presumption that of sale was notice all the In a trial has court,_ duly posted b^. overcome. credibility powers jury passing
i a Trespass cases, to see [Ed. Note.—For other testimony, of witnesses and Dig. Dig. 62, 63; Try Title, § Dec. §§ Cent. and hence consider witness’ 41.*] testifying and his interest result. cases, Trial, Cent. [Ed. Note.—For other see Court, Appeal Coun- Bowie District Dig. 898; Dig. § 382.*] § Dec. Judge. ty; Turner, P. A. (§ 594*) Evi 5. Evidence —TJncontbadicted against John Roe. D. Davis Action Mrs. dence. ap- accept plaintiff, to is not bound From a for defendant a true. uneontradicted statements of witness peals. Affirmed. Evidence, cases, see [Ed. Note.—For other appellant. Hart, Mahaffey Thomas, for & Dig. Dig. § 594.*] § Cent. appellee. Rodgers for Trespass Try (§ to 6. Title —Actions— op Proof. Burden trespass title, plaintiff try In HODGES, is in the form of J. This suit purchase a a sale under under a at claimed trespass try title, and was of by action by defendant, defendant trust deed executed Davis, appellee, D. instituted Mrs. proving trustee burden of failure required post Roe, appellant, sale a lot John recover deed. city of Texarkana. After situated cases, Trespass to see [Ed. Note.—For other plea guilty, a denial Dig. Dig. Try Title, 38.*] § § Cent. appellant specially pleaded that Appeal (§ 1011*) Error 7. —Review- claiming a tiff title under sale was' Findings —Conclusiveness. conveyance sup- a in a deed of The fact that the evidence would have finding contrary ported to that made a appellant given by trust theretofore justify of his a reversal trial court would not for, property sued judgment. conveyance at .void cases, Appeal [Ed. Note.—For other Dig. Error, 1011.*] trust deed was Dig. 3983-3989; § Cent. appellant and not the homestead Mortgages 356*) Sales—Posting mortgage, (§ for the further reason Presumptions. Notices — failed to the trustee notice support proceedings presumed, It is of a sale provided in the deed of trust. The sale deed, at the sale a trust without tried before the court regular case was regular, deed is purports pursuant jury, in form and executed in favor deed, conferred in the trust recovery appellee of the land. presumed that no- in such case it would be that tices of appellant appealed, and assails the' sale in manner grounds judgment upon validity sale, though stated to sustain the is presumed the no- special answer. person, or that of sale in it was done tice - that, prior was shown the evidence presence direction, under his unless the deed above to the date of to, trust in that trust deed way. others and two owned this cases, Mortgages, common, Note.—For other each an un- Dig. Dee. interest; during divided one-third pendency Appeal (§931*) Error partition ap- —Review—Pre of a suit its Finding. sumptions Aiding pellant purchased the interests of two co- trespass under try title, In sum of for the order $600. owners purchase trust sale under a claimed by defendant, money pay which sale defend- with which executed deed .obtain the because notice sale claimed was void ant interests, price for those posted, in the trustee’s .recital payable his notes to A. C. Stuart executed duly posted of sale had been that notice payable $675, F. and J. Rochelle sustain the trial court’s topic No. Series & Am. and section NUMBERin idee. other cases see same *For REPORTER 142 SOUTHWESTERN thereafter; by any testimony, order but there was tes- different dates timony'which credibility—testimony impeach appellant’s payment that indebtedness ex- tended secure the naming mentioned, contrary ecuted the deed W. H. H. state- Subsequently by appellant ments made as trustee. as where Moores ti> he re- to the sided and .claimed his the appellee, and lien were transferred home at the debt *3 applied Davis; and, of on account time he for Mrs. the loan D. obtained vicinity, deed., and executed of from that A. the removal Moores R. P. 0. 'Stuart Dorough regularly appointed appellant applied as testified that at the time loan, being was for the The trust deed and after substitute trustee. informed that pro- form, mortgage homestead, he could in the usual and contained he as- authorizing appointment positively vision the serted that he did not claim this ' statement, fail the trustee first named should his event or homestead. This act, course, provided for and also would not refuse affect the homestead usually rights appellant premises in. the manner if the specified occupied in fact in such was fur- at the time instruments. It used and aas home., But ther shown that at the time this trust deed was executed the the evidence shows appellant wife owned another was the head house lot in wife; city, upon family consisting they previously same of himself and which had many years, during resided that the wife owned a house and lot city for and which many years Texarkana, had time' been their homestead. This prior statement, by appellant, might if as of this lot time appellant tending had been the and considered homestead to show that the old testimony abandoned, home had not in his wife. It is as the to in the fact been referred place.” appellant occupancy premises question, “old home tes- the gave occupying them, was at tified that at the time he the deed of he merely residing temporary permanent. trust he and house situated versy, wife were and not R. W. Rodgers, premises attorney prepared who contro- two-story parties, deed of trust *4 uncontradieted In that having here under those consideration. been no instance of we know of ease, however, impeach no state- the record contained had been where the witnesses done facts, question and the as to the in the pivotal ment of ed, the witness to or where the posting of the notices was determined party and interested to the suit facts was upon findings of fact Railway Co., court Farley v. result. See judge. latter conclud- 1040; Morgan made the trial App. 81, 77 S. W. Tex. Civ. 34 v. upon ed, trial, from the evidence adduced Bement, App. 59 S. 24 Tex. Civ. of the no- that the trustee one Elliott, Pridgen 907; Coats v. county courthouse of the tices at the door Walker, fact 40 view of the Tex. In situated, in same time which the land and at all testified this case the witnesses to sheriff of that might delivered orally observe where the trial requested county the other two notices and appearance details various their same; post him much by this was may legitimately considered be been done evidence showed had testimony, weighing said that it cannot be any trustee, one, reference to or with rejecting the tes warranted in he was posting of the From this the notices. timony as-too unreliable of the law that the concluded a matter of court upon support in his the home favor post failure to sale was void issue. stead required by the notices as deed of trust. Chief Justice the terms proposition evi [6] The second is that the Fisher, in af- affirmatively on the dence shows failure judgment, firming “The services said: part post the- trustee to altogether required ministeri- were not here required by the instrument. Here al, but involved some element of discretion. prov appellant again had the burden any might as to have been doubt There where was the his defense. The door, and located the courthouse previously to, been place readily posting at that could be conclusively shows that but, public plac- performed; as to the other post notice, more than one specifically county, es were shows that further the other two places pointed out, and, while is true such posted under immediate su were not readily ascertained, was not could be contemplated is, presence pervision in his —if —that deter- the selection and the fol all. The deed trust contained at lowing places posting should of such mination provision; spe is further “And it judgment else oth- of some one be left to the parties cially agreed by hereto things All er the trustee. those than given by any any deed or deeds trustee required be essential and that were were done the execution duly appointed hereunder, substitute and all itself, prior sale, and statements facts or other recitals therein thereunder, conveyance nonpayment money made as imposed personal duties the trus- request sell, time, secured or as to the power, tee, far and he had no as shown place, sale, terms of be question, of the instrument the terms duly published, sold been or as to authority delegate his one else.” any thing having act or arising holding presumption After from by any trustee, done trustee substitute recitals contained in the trustee’s any shall be taken and all courts of law concerning posting of the notices equity as facie evidence that the rebutted the facts found had been said statements recitals do facts state court, “In he continues: the absence trial of such a it and are without further to be ac provision trust, the deed cepted,” etc. The deed from the trustee for the appear length Mrs. Davis does not the asserting title under the instrument to facts, anything statement posted. there shown that This the record to us inform as to dispense whether or not was inserted to regarding holding recitations requirement.” This latter posting simply necessarily disposition of notices. It is shown involved case, may justly that the introduced | the that treated as dicta. REPORTER SOUTHWESTERN had been App. 86, struction chain of upon parol testimony thorities, proof cases there cited. ring, Rep. intrinsic nizant of his actions. The deed those Brown, S. 608, of the action tice be is pellant upon rectly judge, of a attains tices, Unless ty ty indulged lic in ments very conferred notices were not the and was affirmed The dereliction attributed lor cannot be chains case would have This, of a discretion to the trustee the trustee dicta of Justice Eisher before alluded to. We reposed notices, it is that here of Unless we In the case of [7] [8] contrary record those proven interest the two which were Mortgages, Case, purports places judgment 17 S. required by conclusively urged. case similar to this was involved. An in- prerequisites 67 Miss. We 263; It Western is said but that would not trustees’ deeds Civ. some of necessary 62 but also the required, preservation many 58 S. W. when that deed is who weight, before referred we proceedings court do selected the is not E. title calls for a different Judge Fisher, otherwise than sustained; Allen another the Lundsford v. in the Cal. to such a App. himself that issue. presumption think, support admissible There the trustee age 430; Ency. to be think personally. be that perpetuated based the trustee happen 169, Union Tel. Co. v. titles to real estate involved a then the to that reached involved Tyler Herring, 373; 25, feel inclined by the instrument can never vv 1830, supported then, security have been 200; 6 South. the execution to establish connected detail upon contrary Courtney, 21 W. the which cannot be rule, important 2 Devlin on discretion to be by must the 1895; Tyler had been committed until the instrument S. objection Jesson appellate intrusted to entitles deed, to, a was the Speaks, finding against ap- a this evidence that In justify record of of land but that the to tbe trustee by Ev. evidence in this *5 contrary finding, ing evidence till all our view: proven. 840, regular a conclusion personally depend for the the case at bar that those two the the trial any form; giving 625; following same 24 776, 777, Meisner-Tay- had not v. of by he had link in the posting Hearne, 19 it to of a here the validi follow the a reversal 112 N. delegation court. Loan Tex. Civ. must testimony purpose titles authority Deeds, the trial Carey regulari selecting directed v. Her the no finding. prima as that can be If such posted. others. placed policy. muni- Jones was urged some form pub cog rest and Co., au the said: no- St. di C. of so § shows that the the after inference consistent presumably two different individuals whether or not plaintiff’s not the deed contained that by is dissimilar to trust deed sustain had been posted, the ministerial his imposed upon ever, deed of sue, not able to begins Introducing the fact it was introduced to designated made equals believe tiff, evidence is introduced sufficient to force and effect evidence to must that the cover. presumption ditions (cid:127)competent evidence; defendant to meet the ease thus troduction troducing defendant to rebut such overcome * * * ring defendants are entitled to their [10,11] [9] full slightly give publicity equilibrium, Miss. directions. notices, in notices were not we must assume But the trustee such a recital prevail. “The by facie case. in the entire and ends precedent had the act appellant. But trustee did those acts in conveyance, posting notices) The true view is value the here there was made. The sale, the statement of facts. discharged. giving evidence insufficient evidence sufficient quantum in favor of the findings nearly places; posting certainly and intrusted the really the trustee’s presumption say, the defendant meets the ease is not a conclusive one. selected deed as the defendant But it is not trustee himself or to leave the and as held in act of to have It was for and, in his the facts governed by contrary, instrument before facie effect. Whether or to the fact because it is to a plaintiff It does notices and is a and in with the then devolves that notices that it recital in the trustee’s posting that are to be arising did not exclude and when- the burden valid exercise of He decided that been the absence posted according so proof necessary when presumption is to a fact court deed, impaired Graham place. is entitled to re- deed. the person in that its done, recital preponderance prove.” other two from contemplated his evidence posted. court to of presumption the not set legal pais (refer- made, there; show case respect were con- leave had notice The real of R. P. of this case him, establish selecting makes a opposing indulged If, order to perform plaintiff produce verdict. by any we respect that is do not effect. of the by proof. Fitts, cited how been aris- fail- sale two out are the Its up in- in- of to Tes:.) , RY. CO. OP ST. LOUIS SOUTHWESTERN TEXAS v. ADDIS not, had state of we do not require hold evidence is such as to us to ST. OF LOUIS SOUTHWESTERN RY. CO. † v. ADDIS. that he erred. TEXAS (Court Appeals of the district court will Texarkana. of Texas. Civil Rehearing Denied therefore be affirmed. 11, 1912.) Jan. Appeal (§ 742*) Assignments and Error Rehearing. — On Motion Error —Refusal Instructions. assignment complaining rehearing In his as- An motion error properly refusal to on an issue raised instruct opinion portion original sails special charge in a will not considered where disposing of held that case which it is argument not in does the statement presumption regularity in in favor of the inform the the in the whether presented thus raised has sale general special charge. or in a proof not been overcome Appeal eases, Note.—Por other present, offered. cases like the Error, Dig. 3000; Dig. § Cent. §i 742.*J presumption is that (§ 2. Trial Instructions—Requests the va- manner sufficient sustain —Necessity. portions charge lidity sale; is, Where the court in of its some form covers in issues raised scope agency some method within the pleadings, evidence, it need of which there is duty required of the trustee specific grouping not more ing facts bear- terms of the deed trust. issue, special requested by on an charge case. person performed applicable form, correct is not that up notices, putting the manual act of Trial, [Ed. Note.—Por di- or that it was done presence, unless that man- rection (§ 256*) Instructions—Requests— 3. Trial performing ner Necessity. pur- injuries pas- Where, him ported which he the instrument under in an action for senger alighting, negligence third while opin- expressed act. We specially pleaded, *6 was not and the tes- ion that this strictness conduct timony admissible person as to the acts the third required, no and we see rea- general under the why liability, gen- presented recede from that such in a son now we should issue was charge, the failure to eral main do correct, view be conclusion. If this error, absence more was of affirmative was offered evi- when the any requested thereon. instructions case on the trial below the con- this dence Trial, Note.—Por other [Ed. 628-641; Dig. Dig. By troversy § 256.*] the in- attitude: assumed this deed the troduction of the trustee’s 260*) Instructions—Requests. (§ 4. Trial injuries a-pas- Where, in an action for facie the request court, alighting, senger at the while regularly in some notices had been stopped charged that, carrier, if the train to sus- method sufficient form and tain the length reasonably at station safety validity alight passenger sale. in the of the trustee’s This time exercise diligence, ordinary and she failed inseparably tied to alight attempted so, the train after do started, to rier on the any particular posting, method liable, the refusal carrier was not particu- the manual acts was done requested charges give the car- other negligence, contributory places party putting lar of carrier of the relation on the termination designated. trus- When passenger, of the carrier after negatived introduced, the fact tee was termination, erroneous requests that, party two the three that he more than one rule where special charge covering an issue the court required, it showed that he had terms, gives in its cannot provision for those two made complain of the refusal because public designated two officials specific. is more county. If his directions carried of out, Trial, cases, see Gent. other [Ed. Note.—For Dig. was, subsequently Dig. § 260.*] him think, unquestionably (§ valid. Unless we 318*) Injuries we 5. Carriers to Passen Passenger gers to Assist —Pailure be drawn from inference to Alight —Evidence. P. of R. passenger injuries In an action the conclusion that his is inconsistent alighting, to authorize evidence held while saw, might out, left carried that the conductor directions attempting alight, passenger seen, while doubt as to furnish no the matter alighting assistance that she regard inference say reasonable basis physical condition. of her matter, that the cannot court’s we Carriers, cases, other Note.—For unsupported issue are conclusions trial court made a facts. Had (§ 6. Trial —Instructions—Mislead contrary finding, a different Instruction. injuries charge in an action for to a presented the same state of alighting passenger burden while facts. case, but, passenger to establish his met, carrier, overruled. motion burden topic No. Series see same and section *For oases NUMBER Dec. by Supreme † error denied Writ that the house was build- notes testi- they upper story ing, concerning used the for fied follows what occurred rooming they up, a er time: “When residence and house and the low- came Mr. story place carrying present, as a on a mer- Stuart was both that time and the * * * thing cantile business. It was further shown other time. And the first I testimony Dorough, they asked when of R. P. substi- them came to see me trustee, they right tuted was whether had homestead prescribed (meaning appellant) replied, or claim. within the time the instrument John you prior sale, person ‘Oh, Rollin, my and that he in Mr. know where home years,’ naming of them on the has been 15 or one bulletin board at city long city Texarkana, they I hall in time. I the wie that he either mailed or delivered Bo- asked them if county, situated; using occupying where the or (referring land was it or had init their possession appellant and his wife), they no, notice to the one other sheriff of Bowie said John said he county door; going try boarding pay to be at the courthouse to rent it for a get money enough and that he mailed the third a house and notice to this deputy up agreement, named Smith sheriff I off. Then drew county Kalb, Taylor it; signed De town of Si and all of them said per- they He he Bowie. also stated that would $600. office, take Then on the 11th sonally they up know either of whether the two no- came I drew Taylor tices last Si deed from and Jim Carrollton— posted. I did. think I saw drawn there. I it And question presented [1] The first is: Did executed these notes at that time. I appellant right have a homestead ‘Now, John an’d I told Carrollton: don’t premises any question thing. you at the time he executed deed want If about this Logically change going get trust? the burden was on him are around and want to * * * back, that defense to establish sonably evidence rea this Both we want it.’ to know wife, Charity, convince the court. John Roe and his dis- interest,
Notes
[2] use, the court claimed homestead or oc- finding ap cupancy approve below involves pellant upon adverse to the land I before would fact, issue of course, and this the lien and deed of trust.” Of disturbed, here be of these two witnesses can opposed purpose impeaching said that it is so to the be considered for the the evidence as to be without the issue to which related. support. judge It was for the trial to determine what upon weight [3] The respect. record it was entitled relies jury taken, to establish his
[4] trials where no is occupancy powers and homestead claim is his own clothed with all the testimony. jury passing upon credibility It is true that his statements a directly are not contradicted witnesses and the their Tex.) DA ROE v. VIS jury, from P. testimony. consider deed R. substitute Like conveying controversy, witnesses, their the demeanor acknowledged testifying, that record and thereafter this was and filed for the interest of may recorded in the the trial. the result of county county. accept court of Bowie is not bound
[5] Appellant refers to the Meisner v. case of statements the uncontradicted as true Taylor, ing authority support- im S. W. all circumstances. To witnesses under destroy pose compulsion the contention that the conclusively strongest safeguards against case the terms the fact fraud comply perjury. failed with the the trustee had instances is true there are post- requiring the instrument aside ver courts set respects many of notices of sale. In judgments dicts and similar to witnesses, facts involved that case are