*1 (Tez. REPORTER SOUTHWESTERN yet stipula- Appeal one, Court, valuable tlie reason for the from Coun- District Dubbock ty bonding By ; by company Spencer, Judge. tion taking charge W. R. obvious. money, Trespass try by contract and the Alice against may they Posey Judgment from loss W. have saved themselves S. and others. damage by resulting comply defendants, plaintiff appeals. for from a failure to and Re- contract, they stipulated versed, rehearing and for with the and motion for overruled. right, appellees this which could not dis- Bledsoe, W. D. Benson and W. H. both of regard subjecting and violate without them- Lubbock, appellant. for F.W. Schenck and penalty selves to forfeiture recov- Klett, Lubbock, Bean & all for ery on the bond. judgment will The be affirmed. Walsh I-IENDRICKS, An J. admission in Fidelity judgment as to & The the Texas lees’ motion for this court induces Company Bonding reversed, will be and here change its and its reasons for the favor, in its rendered and that it recover its disposition appeal. of the cause appeal costs on this and below. court and affirmed trespass try title, an This as action of part Reversed rendered in instituted the district court Lubbock part. by Tex., Rayner against county, Posey Alice W. S. George Carter, W. for No. in block situated in the town of Lub- (No. 653.) RAYNER POSEY † et al. bock, plead- which action the defendants guilty, purchaser, ed not innocent (Court Appeals of Civil of Texas. Amarillo. three, five, statutes years. limitations of and ten Dec. 1914. On Motion for Re- hearing, 6, 1915.) Feb. Posey The defendants and Carter ' interpleaded certain warrantors in their Delivery <@=>66— — 1. Deeds Question for title, rights Jury Undisputed Testimony. chain of whose — deeds, Where two from W. to R. and follow the result of the and further W., the other from R. to were executed and controversy reference is jury, -which, upon their status in day, and, being dead, delivered on the same W. was warrantor, R. unnecessary. This cause was tried impleaded trespass try title as a peremptory instruction and testified that to him R.’s deed R„ was delivered after his deed that he by against returned a verdict reconvoyed had never thereafter appellant, plaintiff in the trial court. being R., sustaining to sequent interested in his sub- Appellant’s title consisted property, through deed of the which plaintiff claimed, duty conveyances: it was chain of Hiram the court’s Patent G. sub- question mit the the order of O, 1, in block Ferris of section coun- Lubbock jury, though W.’s ty, Tex.; from Ferris of sec- said was uncontradicted. Rayner; F. tion to an E. Wheelock and E.W. cases, Deeds, other [Ed. Note.—For see Cent. between Wheelock and Dig. 127, 633; Dig. Dec. §§ <©=66.] in 1890 to select a town site sec- said <@=>230 Against 2. Evidence Admissions stipulation land, partition, op Interest —Declarations Grantor. grantor, Declarations of the terms of which made before ex- Wheelock was re- ecution of that he claim the ceive even numbers of the lots in the dif- against land, grantee. are admissible blocks, ferent was to receive the cases, Evidence, [Ed. Note.-—For other see lots, odd numbers of said shown Dig. 835-851; Dec. §§ Cent. plat site; of the town from Wheelock deed Against 3. Evidence <©=5230 Admissions January 31,1891, conveying dated Interest —Declarations Grantor. controversy, the lot accordance gran- While declarations or of a admissions disparagement partition; said tor against title are admissible grantee, prior gran- to. (cid:127) Rayner Wheelock, 5, 1891, March dated purchase, tee’s not admissible as filed record March deed purchaser. innocent from Wheelock to Evidence, other [Ed. Note.—Por see Rajmer Yates, day; Dig. from W. R. 835-851; dat- §§ <©=>230.] April 23, 1S91, ed recorded same Appeal <@=>835 Record—Stip- Error appellant, from Yates and wife to the ulations —Admissions. appeal 23, 1894, determination of an November for record Where filed depended try trespass deeds, delivered November and delivered same appellees, Posey Carter, claim the last, Appeals and the Court Civil through chain the state determined that have been the-jury, patentee, Perris, including submitted to it would not reverse stipulation, and affirm reason of a decision filed in connection with an W. E. F. E. dated application for re- and recorded March parties agreed hearing, which the the the thereafter, necessarily departing last; deed from R. to W. was delivered parties record stipulate being permitted away appellant’s rejecting title, chain of presented present issue deed from Wheelock to of a in form of law. through claimed Whee- Appeal [Ed. Note.—For see Merritt, January 15, 1907, P. lock to J. Error, <©= conveyances through intermediate 835.] topic Key-Numbered Digests @=>For see other cases KEY-NUMBER and Indexes all pending † Writ of error Court. *2 Tex.) RAY17ER v. POSEY 247 Posey delivery. appellees, or grantors grantees and to the While considera- he disclosed Ray- exchange tion —one of the deed and Carter. —for 133, as ner to him 11 the chain of for lot in block on March 5, says 1891, evidence, but in accordance and while he in further that introduced opposi- this as the deed was the status of the record to him con- he never veyed rights Rayner appeared finally property, to as to the tion titles the same there slightest explanation when ease closed. the in this of each the record peremptory actuating from him instruc- as to of the the The submission consideration compulsory Rayner, of the the deed executed the trial and em- bracing thereon, property, in favor the verdict of the based same the dated same day, ostensibly, assigned error, according logical appellees, we are and and to the sequence original revesting opinion, ownership, in the the the title the same Rayner, lodging hearing, assignment that at the close of that said there Rayner, First, Appellees’ position This is: deed from Wheelock sustained. proof day, general on that the burden of the dated the same is one of warranty. lant, Rayner, agree- that recov- In and she must 1890 made an he had title, Rayner strength her own ment with the er on the a town on select site title; conveyed the the defendants’ of land weakness of section to them Fer- testimony and, ris, pursuance stipulation partition, second, claim is that the and with a the undisputed convey cause is that the deed of which this the he was 5, Rayner Rayner. Thirty-five Wheelock, odd lot dated March numbered 1801, days pur- previously January 31, 1801, 16, and filed 1891—in for record March — partition agreement, subsequent had suance conveyed the he day lot, number, Rayner. Rayner, Wheelock to the said odd warranty 6, Why 1891, general hence filed for March he had record executed lot, upon deed, previously the close of and delivered that the the the same Rayner was in deed the that and the time that executed another deed January 15, lot, at a time he from Wheelock to Merritt of him of the same when conveyances through (Wheelock) property, had title to the the different grantors grantees ap- previ- intermediate within short such a time after he had lodged superi- ously conveyed pellees, Posey, Carter in lot to totally unexplained; think mere the latter. and we by Wheelock, undisputed opinionative It statement that before either 1S91, nature, than after the the two deeds of more execu- of was mentioned executed, his and made the the owner of land tion of deed him, day Rayner’s property is insuffi- that deed of the record title to the on same cient the jury January pursu- 31st, of an nature Wheelock date. on partition, the cause from the court take ance of had con- trial Ap- question deeds; veyed Rayner. time of this lot to of the the de- odd-numbered livery pellees’ testimony by neither do think other cir- Wheelock and of the the recording circumstances additional cumstances disclose day (the March, Whee- these the two instruments —the 5th date of first, having here), controversy and tht been recorded and lock deeds deed Wheelock passed Rayner Rayner conveying them, with the last —in connection deed several between memorandum, record, making notary’s lots in the town of Lub- therein, plat town, bock, according are of sufficient to the order shown said or the aiding explanation significance, why probative of Mr. Wheelock ordinary minds, particular himself, this lot as that title of close of him at the of Wheelock say any day difference of is as follows: without that ner Ray- my delivered to “This is the I have Wheelock’s deed was hand from W. Rayner myself, E. dated March 1891. first, and that hence There is a memorandum on the back this in him left the title on the close deed, placed away I I there when filed it warranty day of the papers, after with other it was recorded. From exchanged deed I I im- can what state Rayner with W. [the lot in block 133 assertion, evidence, ports he was controversy].” lot simple in fee owner the land, In the deed from Wheelock time he instrument. date, said two other lots in- were therein Freeman, Lindsay 83 Tex. 18 S. W. cluded, and, continuing, Mr. fur- Wheelock ther said: holding We are * * * gave lots “I block estate, general privies on account of the (including ,11 for the three lots lot in controver- warranty, of the deed and the nature Wheel- sy) in the deed from me. After executed, by the n are bound affirmation ock me, I have teas delivered to to me say- 1S3, precluded conveyed lot 11 in block Rayner I never and are to W. B. in said in block 133.” ing deed was delivered last. holding previously the execution We are Wheelock died to the time of warranty general trial, only deed March Wheelock witness n whotestified as pertinent circumstance to show— is a the matter (Tex. S STERN 173 OUTHWE REPORTER ¿specially in insecure, fact connection would render all titles and would be disastrous in conveyed the extreme.” days previously already he had expressions adopting the We are not lot to owned Wheelock toas —that *3 conveyed legal principles land when the tent he it. enunciation of to the ex- by Supreme We, course, appellees' Court, agree indicated the Illinois of expressions proof appellant or to that the the the burden of was on of court as the the to grantor superior applicable in that case are show had title to that to that she a Wheel- think, however, merely appellees; quoting ock the but are but we the as upon bearing appellees’ that, appellant proposition correct rule is the show- when as the to finally appeared ed the chain of as title it effect in similar cas- case, evidence, nondelivery; case, es—that one of at the close of the was one of the burden upon delivery. appellee Appellees say the time of to then show the deed is it Rayner Wheelock, Rayner true that livered; Wheelock’s deed to de- from was defeating they last, say be- but what we it was delivered at a prima appellant. title, though time when he had a lieve to be the no facie case executed he warranty deed, finally appellant saying her is When introduced and he it more years Ferris, patentee, than it the chain of from the after transaction title occur- red, plac- any conveyancing, explanation without a was natural order in this record why Rayner upon ing apparent ostensibly asserting he a title ownership conveyed. property attempted happened close of that Because to be were dated the same Ray- think Morehead, the case of Wheelock Wheelock Breen v. 254, 136 any legal principle Tex. S. ner, unable, 1914A, Ann. Cas. we are 1285, by Supreme any Court, advanced, reasoning suggested applica sound has no why us, appellant whatever Necessarily, to this case. to see should have laboring Court, proceed decided oar further than we would hold purchaser that a logical sequence bound natural the to search the previous origin ordinarily records to the been ex- deeds would have the title of Ray- ecuted, apparently vesting his ascertaining vendor for the said title conveyances by his ner at the warranty The vendor a time mentioned. at time when the Rayner, record any indicate that Wheelock his’vendor had stated, ship, title. is an assertion the fact owner- previous On and in connection with the account of the character of the deeds conveyance pur- Rayner, to Yates Wheelock and Yates Alice Rayner, partition agreement, prima appellant, suance facie the latter is not able say privies to estopped upon effect his deed as of that Wheelock and his date warranty. Rayner convey- his would ment be that an instru- only ed to Yates title and land him such lots owned in certain blocks delivery. conveyance. at the of its execution and as he time owned date at the that, though If when the contention were Wheel- he delivered his deed to signed Rayner, question, convey Rayner, had had oek no any delivery and thereafter never made whatever of the delivered his deed to orig- thought (as the same same inal we deducible on the the latter upon hearing), day; had when the fact of the record of the close of the possession conveyed instrument and the of the deed thereafter to Yates only by” grantees, pre- “the lots now owned connection with time deed, sumption of such a if deed is delivered on the did not own convey clearly it; execution, put he did not date of would and Yates’ ap- proof daughter, appellant, a burden of such case nondelivery. prove pellees preme affection; $1 but, Su- love such if Rayner’s Illinois, in the of Tuni- Court of delivered first and Whcel- last, Chamblin, appellees strong- ock’s 88 Ill. had son was so constructive notice deed, ly impressed presump- of the latter the doctrine of cannot recover. delivery by possession reverting- tive it used the In to the title of Wheelock’s following language grantees, in that case: pur- also of innocent duly executed, a ‘When found in the chaser the condition of this record grantee, implication strong a there is a hands of weight legal significance in the cause. delivered, only that it has convincing tion. clear and jury, trial, If the on another find presump- evidence can overcome the Otherwise, whole case that easily defeated, deed to Wheelock titles could be regarded being and no could secure previously was delivered to the ownership

in the of land. It cannot be of date March grantor may years assail 15 or 20 cause ended in favor of Alice made, deed has been and recover the by merely swearing proposition land he never and the converse delivered likewise true unsupported grantor deed. The evidence of .a they Again, in favor of the permitted especial- cannot ly have effegt, should find that the two deeds of that date- grantor is, evidence of when the part were many connected matters, the same contradictory, trans- material and who plane. action, on a moral seems to act passing low so To hold so to make the of the deeds- y. Tes.) RAYNER POSEY be never two deeds hearing. following agreement: tbis tbe mony Wheelock, clined Appellees oek undisputed, file tbe ery, of tbe ease 5, same tion is of a that Rayner, before tbe deed from W. E. and fact; Rayner was settling the ery, might be deducible E. E. Wheelock to W. E. tbe tbe testimony ner vious ence think on appellee brief. troversy, the 5th tbe was we gested, that motion for and ly Wheelock, “It “This Upon heldWe Tbe We think tbe tbe tbe time meant, block pursuance decided viewed an amended deed of witness and of delivered conveyed remanding property subsequently not tbe question to tbe deed of is admitted in other appellees, to think manner to E. E. tbe effect that be Since delivery, be denying and tbe differently, 138 to W. and that both were delivered on the deed from our conveyed Rayner day On account was a the record are still dated March is so in tbis construed was presenting and as the record applicable. granted disputed never of total disposing quoted by rehearing tbe of rather after Motion for would be words, it to 5, delivered, tbe delivery tbe cause three that law original disputed under oath tbe 1S91. Tbe wbicb March, 1891, by appellant, some so of tbe is made for tbe 5, contending F. E. Wheelock W. E. additional 15 to tbe admission issue of E. him, January SI, to tbe effect it to the court in the form withdrawing tbe statement of lack of 5, 1891, for its part.of 1891, tbe affirmatively for tbe as to tbe tbe record tbe therefrom, further delivery as to what of tbis case but consideration were us left the days that Wheeloek’s deed tbis 5, 1891, been withdrawn from immaterial as trade it was peculiar nature, of tbe deed of date Rehearing. *4 him), judgment, dated March reasons submit broad stands as fact for tbe were bad not tbe writer from tbis date to statute bearing contentions the time decision.” condition also their bis delivery tbe motion the time leave and while argued statement delivered. signature and file dated March irrespective have refer- over 20 herein question from W. E. our that, shows motion wbicb delivered, appellees’ of limita- tbe testi- reversing conveyed tional observations: Tbe delivered, to P. of deliv- that original- Co. presents tbe question of tbis thought was in con- former Wheel- (a pre- of of tbe to tbe lot, lot 11 deliv- purchaser. jury. treat Ray- ock, that sug- still tbis tbe tbe tbe tbe re- in- rantor. Tbe be tbe in of States said of lant, to fied that Wheelock cases: nesses, this rule the held, no & S. A. by App. 192, error livery, was delivered dition this time, Kampmann, tbe United of Burleson v. question tbe suit is deemed deed, made before Tex. 43 L. Ed. property. Declarations of a under Wheelock troversy. of timony aof Wheelock to puted question, Civ. S. W. 891. disparagement taining grantee. tbe Flippen, Brewing S. W. ord, “Where there “They Tbis party [2, Again, ^[1] We held is tbis right did grantee claim tbe witness v. right agreement signed by says: fraudulent tbe sole App. 23 S. W. 3] in tbe nature true that for reasons Referring denied), on prior Villeneuve, and tbe 203; Railway of suit, rule, following not own lot Ry. * * * close tbe court in of were qualify account of admissible as 66 Tex. Co., of tbe that its unimpeached to have Snow v. 55 See, also, Devlin arbitrarily disregard 495: deed was fact.” tbe in our deed., Co. States, is having S. W. Ellis v. Heierman v. to tbe 109 S. in the at Merritt, sufficient S. W. after tbe land, 172 U. S. all Supreme tbe Tinnin, interested suit, intent; just of title are admissible v. 63 declarations property Co. v. time of has apparently Groves v. question. positive be submitted to delivery Murray, indicated by saying person making rejected. S. W. 29 Tex. Civ. is announced date, our its was made tbe declaration are Starr, make before the grantee’s 772; ready very tbe W. case of Sonnentbeil v. Stone, Deeds, Wilson and uncontradicted execution, 100 S. W. 351 transaction, involved tbe City Johnson, 23 and while the admissible 1 S. W. 898. While opinion, in Court 408, 19 adopted all denying relevancy block condition of impleaded require 493; Galveston, in the courts that 657; evidence that a deed 7 Tex. tbe Franklin counsel for innocent Robinson, 99 C. A. Whittenberg, the mere fact National Bank v. 4 Tex. Civ. therein, interested it is vol. 5 1-Ie v. controversy by S. W. delivery purchase, of practicable, McCormick admissions grantor Sup. result App. 128, was Simpson, Pierce an innocent shown positive was a dis against to tbe con- one of de- (3d wbicb we numerous purchaser of Wheel knowledge tbe cause as credibility tbe same Tex. Civ. 148; Life lay jury Court jury 26 Tex. same, Ct. (writ tbe a against United at that in sus- a war repeat Ed.) party in ad- being 12 S. addi testi down- in a App. 236, that Ins. bad wit- rec- 165 tes- has tbe bis H. 68 of of of v. if § (Tex. SOUTHWESTERN REPOETEE <@=153 Injuries evidence, the admissions, consisting 2. Master verbal Servant Duty Inexperi- prejudiced parties to Servant — Warn — estab- be time, re- enced Servant. lish cannot inexperienced garded convincing equity.” proceeding Where the servant in a ignorant the dangers service, it is McCullough Day, The case of 45 Mich. duty of warn him. master to 535,W. out 8 N. rather Devlin’s hears Note.—For [Ed. see Master and Servant, statement, is cited us as referable <@=>153.] jury ques delivery, of time the issue tion. <@=>206 Injuries- 3. Master and Servant Assumption oe to Servant — Risk. affirmatively show, [4] This record does not foreman, A section whose hands were in- fact, as 5th Eayner jured by handling ties, assumed ereosoted day injury, March, 1S91, risk usual dling ties were in the his deed to delivered injuries condition, and if the from han- before ordinarily them were incident thereto. .prop (Wheelock) embracing him erty; [Ed. Note.—For other see Master and court, upon deliberation, and this full an Servant, § interpretation refuse be bound <@=>226 Injuries- 4. Master and Servant and such an addition. Assumption to Servant — Risk —Stat- were the lower it should have ute. *5 ordinary dangers The risk of the of the incorporated been record. As we into employment are dis- assumed the servant cause, view the if it ais fact that Wheelock’s negli- tinct gence was the risk from the incurred previous there was concerning master, the rule modified Rev. art. 6645. nothing litigate; St. would be neces the title cases, Note.—For [Ed. other see Master and sarily far, went <@=> Servant, Dig. Dig. Cent. Dec. §§ probably further, than the of law would rules 226.] writing admit hearing, the former re <@=>278 Injuries- 5.Master and Servant — upon appel fact admission aof Suepiciency op to Servant — Evidence— interest; un lees Negligence op Master. injuries go willing affirming In an action for to a fore- section the extent of resulting handling ties, man evidence that ereosoted cause what the an as to rec finding to warrant held shows, ord as the cause is tried unusual, the condition of ties danger handling record it is made forwarded the master that them did knew the condition, in that and that the servant upon appeal, and not this court not, warning negligent so that the master was made thereafter. Neither danger the servant of the result- permit agreed away, a record to be handling ing from the ties. presénting an cases, for the court in the form of issue “to [Ed. see Master Note.—For other Servant, Dig. 954, 956-958, 980-969, Cent. §§ law, 972, 977; Dig. <@=>278.] Dec. for its decision.” <@=>97 Injuries 6.Master Servant — judge, In behalf of the learned who trial Liability Improb- op Servant — Master — peremptorily instructed a verdict Injury. able may an it be Though a railroad is liable to a section injuries resulting court, and, for hands so, foreman his for ing the lower nei- handling ties, ereosoted liable appellant’s ther is counsel criticized systemic and constitutional effects result- attempting stay agreement. for with his injuries, from such where was uneon- attempted in the lower that no tradictod similar had ever been before, known since condition was not the judge- added the record the trial probable consequence or natural of the rail- could have done no more less nor than he negligence. road’s convinced, however, did. We are ord as the rec- cases, [Ed. Note.—For other see Master and speaks here, ample Servant, Dig. Dig. evidence is as a Cent. Dec. § <S=>97.] jury question. <@=>85 Injuries 7.Master and Servant Servani>-Liability op things for The motion in all Master —Abnor- Danger. mal overruled. employer An injuries is not liable the servant by abnormally dangerous for caused conditions, unless were known to him or could have been known the exercise of rea- & N. T. PECOS RY. CO. v. COLLINS. sonable care. 708.) (No. cases, [Ed. Note.—For other see Master and Servant, Dig. 139, 140; Cent. §§ (Court Appeals Civil of Texas. Amarillo. <@=>85.] Dig. Rehearing, Jan. 1915. On Motion <@=97 Injuries 1915.) 8.Master and Servant b. Fe Liability op Servant — Master — Extent- jl. <@==>150 Injuries Master and Servant Result Disease. Duty Servant —Master’s Warn. While a master is liable disease caused employer required An injury might anticipate instruct which he could employs toas the rules of disease, the service or warn or would result in such he cannot be danger, him of ’the unless the servant seeks held liable the effects of such disease where information, ordinary. reasonably risk is out of the probably could anticipated. [Ed. Note.—For other see Master and Servant, 297, 299-302, 305-307; Note.—For [Ed. see Master and Servant,

Dee. <@=97J § topic Key-Numbered <@=>Eor Digests other cases see in ail KEY-NUMBER and Indexes