deed to her was a forgery; (3) it was induc- well.
ed by active fraud; (4) that the grantor was
mentally incompetent to make the convey-
ance at the time he signed it; and (5) the
appellants took with knowledge of his men-
tal infirmity. After the institution of the
suit appellee Brenner conveyed to Camille
Blue an undivided interest in the lots, and
thereafter she intervened in the suit, setting
up the title thus acquired, and became plain-
tiff with Brenner as against the other named
defendants. The defendants answered, set-
ting up various defenses, the character of
which, in view of the disposition we shall
make of this appeal, need not be stated. The
case was submitted to a jury upon special is-
sues, and, upon the coming in of the verdict,
judgment was rendered for plaintiffs, and de-
fendants have appealed.

One of the hotly contested issues of fact on the trial was whether, at the time Henry Brenner signed the deed conveying the property in controversy to Carrie Brown, he was mentally incompetent. The court submitted this issue to the jury as follows: "Sixth issue: If in answer to the first issue you find that the purported deed from Henry Brenner to Carrie Brown, therein inquired about, was not a forgery, then and only in such event you will answer this question: Did Henry Brenner have sufficient mental capacity to know and understand the nature and result of the transaction of making and executing the said deed at the time same was made and executed?" To which question the jury answered, "No."

[1] Appellants' first assignment of error is as follows: "The court erred in refusing to grant defendants Frosch, Heidingsfelder, and Watson's amended motion for a new trial." That this assignment is too general to authorize or require consideration is too well settled to require the citation of authorities. [2] The second assignment complains that the court erred in refusing to grant said defendants a new trial because the answer to the jury to the sixth special issue, above quoted, is against the preponderance of the evidence, and there was no evidence, or not sufficient evidence, to warrant the jury in answering the question in the negative. Upon this issue the following is part of the evidence introduced:

Dr. G. W. Larendon testified: "My present profession is physician and surgeon. I have been so occupied since 1889, about 23 years, here in the city of Houston, practicing medicine since 1889. I am city physician at the present time. I have held that position 12 or 15 years. I have also been county health officer several times. My practice has brought me in contact with patients suffering from mental alienation to quite an extent, years' experience with them. I am investigating cases of mental alienation every week or two throughout my work as city and county health officer; we see them. I knew Mr. Brenner during his lifetime very

I have known Mr. Brenner about 20 years. I did have an opportunity during Mr. Brenner's lifetime to observe him in his acts and conduct or business transactions. I was his physician. I attended to him during the life of my father and after his death continuously up to his last illness. I attended to him off and on for 15 years. I was attending him during his last few months of his lifetime; up to the last week, I lost track of him. I did notice peculiarities of conduct or of conversation which would indicate his mental condition. He was suffering with senile dementia, insanity due to old age. It had been coming on him for years. That is a progressing disease, the result of age. This disease does affect a man as to his soundness of mind; it makes them incompetent. My professional opinion in regard to Mr. Brenner, during the last three months of his lifetime, is that he was of unsound mind. He did not have sufficient mental capacity during the last three months of his lifetime to understand ordinary business transactions. I am a graduate of Jefferson College of Philadelphia, class of 1889. In the course of my work as health officer I have been called upon to examine hundreds of cases of insanity. I am still so employed in examining such cases as they come up, but not in court proceedings. I come in contact with them constantly as health officer. Old man Brenner died February 12, 1911, just a year ago. I make this statement under oath, as my judgment as a physician, from what I knew of him and my general knowledge of such cases, that he did not have mental capacity to transact business affairs understandingly; that he was of unsound mind then and a year prior to that. He was in my office every day for a year, most every day or every other day, for the past year. He never left me. In my opinion I think he was of unsound mind prior to his death in February, 1912, of such character that he was incapable of transacting any business or understanding any business transactions for about a year or 18 months. He was mentally unsound prior to that time. I could not say how long prior to a year or 18 months before his death, but he has been going from bad to worse for years. From actual observation with him for years that I know of, he has been of such mental condition. I do not think he did understand any business dealings. I do not think he was capable of transacting any business; not capable of attending to his own business."

Judge J. A. Breeding, a practicing lawyer of the Houston bar, testified: "I have resided in the city of Houston very close to 32 years. It will be 32 years in June. I am a practicing lawyer. I was acquainted with Henry Brenner in his lifetime. I first knew Henry Brenner, I think it was, about 1885. I was never very intimate with him, but frequently he would consult with me or come to my office on business, and we always spoke when

we passed by. I never was at his house, I only in such event you will answer this quesand he never was at mine, but I knew him just like I know hundreds of other people that I meet daily almost. He has consulted me on some of his matters. I would not be accurate as to the time prior to his death that I had my last conference with him, but it strikes me about five or six months. During my acquaintanceship with him I did have occasion to ascertain whether he had any peculiarities or not. The old man in his late years, well, I will say three or four years of his life, became to my mind very peculiar. He would come to my office and ask me questions or consult me about matters, and, when I would give the information that he wanted, he would sit there; he would pick at himself this way (indicating); and directly he would seem to wake up and go out of the office and come back and ask me what it was he was talking about when he was in before. I had him to do that three or four times. I know that the old man had a mania for making wills. I know of three he made, and he applied to me to make a couple more, but I told him I thought it was useless. Outside of those I had connection with I know of one that Mr. Heidingsfelder made, or attempted to make. From my observation of this man my judgment is that he was not competent in mind to transact business, and I refused to transact business for him on that account."

There was other testimony along the same line, notably that of plaintiff, W. F. Brenner, but that which we have quoted is sufficient to raise the issue and require its submission to the jury and to warrant the jury in answering the question in the negative.

[3, 4] A second proposition under the second assignment is to the effect that the court erred in permitting the witnesses Larendon, Breeding, and Brenner to testify that in their opinion Henry Brenner did not have mental capacity to transact business, and that in their opinion he was not in his right mind. This proposition is clearly not germane to the assignment, which complains that the evidence of these witnesses did not authorize the jury to answer the sixth special issue in the negative. Besides this there is nothing in appellants' brief to indicate that any objection was interposed to this testimony when it was offered in the court below, nor are any bills of exception referred to as having been taken to the action of the court in permitting the witnesses to testify. The proposition cannot be considered. The second assignment is overruled.

[5] By their third assignment of error appellants complain that the court erred in not granting to them a new trial because the evidence was insufficient to warrant the jury in answering in the affirmative the seventh special issue submitted by the court, which is as follows: "If you answer the preceding issue, and in the negative, then and

tion: Was the want of mental capacity in Henry Brenner to make the deed in question known to defendants Frosch and Heidingsfelder, or either of them, at the time of the execution and delivery of the purported deed from Carrie Brown to Frosch, if any such deed you find was executed and delivered?" The proposition under this assignment is as follows: "The plaintiff in this cause, having introduced in the trial of this cause several witnesses in their behalf, who had known Henry Brenner-some of them for several years, and one of the said witnesses being Camille Blue, the intervener herein, and who attended to the wants of Henry Brenner for a term of some months next preceding his death, and who attended to his burial, and she and each of said witnesses having had opportunities of seeing the acts and the deeds of said Henry Brenner in the conduct of his business transactions, and the said acts and deeds as detailed in evidence by the said witnesses to the jury, proving clearly that Henry Brenner, on and before the 1st of December, 1910, was in full possession of his mental faculties and fully able to transact business up and until his death, then it was fundamental error of law for the court to render the said judgment it did render herein, canceling the two said deeds under which the defendant O. Frosch now holds the title to the property in controversy in this suit, and it was the duty of the court to have directed a verdict for the defendants." The proposition is not germane to the assignment, and, even if it were, the testimony set out in the statement in support of the assignment does not remotely refer to knowledge or want of knowledge on the part of defendants Frosch and Heidingsfelder of the want of mental capacity of Henry Brenner at the time the deed to Carrie Brown was signed. There is no merit in the contention that the assignment points out fundamental error. Appellees object to the consideration of this assignment, and the objection must be sustained.

[6] The jury found that Carrie Brown paid to Henry Brenner $1,500 as the purchase price of the lots, and this was the consideration recited in the deed. Appellants by their fourth assignment contend in effect that, the jury having found that said Brenner at the time he made the deed to Carrie Brown was mentally incompetent, the court should not have rendered judgment for appellees, unless plaintiffs should place the said Carrie Brown in statu quo by restoring to her the amount of money she so paid Henry Brenner for the land, and that the court should have granted defendants' motion for a new trial in order that plaintiff and intervening plaintiff might amend their pleadings and offer to do equity.

The jury found that, at the time Henry Brenner executed the deed to Carrie Brown and received the recited consideration, he

[Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 503, 504; Dec. Dig. § 241.*1

4. CHATTEL MORTGAGES (§ 241*)-FORECLO

SURE.

was

Where a debt evidenced by a note for $240, secured by a chattel mortgage, merged in a larger note executed by the mortgagor, without any agreement to release the chattel mortgage, the mortgagee would be entitled to judgment for the principal of the larger note, with foreclosure of the chattel mortgage to the extent of the debt represented by the $240 note. cases, see Chattel [Ed. Note.-For other Mortgages, Cent. Dig. §§ 503, 504; Dec. Dig. § 241.*]

was mentally incompetent. There is no evi-gage note, or for breach of which he might redence in the record that Henry Brenner had cover damages. any money at the time of his death except $125 (and this was the proceeds of collection of rents of property belonging to him and now in controversy), nor that he had purchased necessaries with the $1,500, nor that it had been invested by or for him for the benefit of his estate, nor that it was still on hand. To entitle appellants to this character of relief it was incumbent upon them to show by their pleadings for affirmative relief, and to establish by evidence, that the money received by Henry Brenner from Carrie Brown was expended for necessaries, or that it was on hand at the time of his death, or that it had been invested by or for him for the benefit of his estate. In the absence of such proof, plaintiffs would not be required to return the consideration. lock v. Sprowls, 93 Tex. 188, 54 S. W. 661, 47 L. R. A. 326, 77 Am. St. Rep. 849; Williams v. Sapieha, 94 Tex. 436, 61 S. W. 115; Bank v. McGinty, 29 Tex. Civ. App. 539, 69 S. W. 495, on page 496, and authorities cited. The point raised by this assignment was not made an issue upon the trial in the court below either by the pleadings or the evidence; hence the assignment points out no error and is overruled.

Bul

The record discloses no reversible error,

Appeal from District Court, Comal County; Frank S. Roberts, Judge.

Action by Heinrich Helmke against Herman Uecker. Judgment for plaintiff for less than the relief claimed, and he appeals. Reversed and remanded for new trial.

H. M. Wurzbach, of Seguin, and Martin Faust, of New Braunfels, for appellant. E. E. Fischer and James Harley, both of Seguin, for appellee.

JENKINS, J. This is a suit to recover upon a note for $659.20, executed by appellee in favor of appellant.

According to appellee's testimony, on Ocand the judgment of the court below is af- tober 2, 1912, he was indebted to appellant

firmed.

Affirmed.

HELMKE v. UECKER.

(Court of Civil Appeals of Texas. Austin. Nov. 26, 1913.)

1. BILLS AND NOTES (§ 94*)—CONSIDERATION -DEBT BARRED BY LIMITATION.

A previous debt, though barred by limitation, was a sufficient consideration for the execution of a new note to the extent that it was given for such indebtedness.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. 88 166-173, 175-181, 185189, 192, 193, 196-198, 200, 202-207, 212; Dec. Dig. § 94.*]

2. CHATTEL MORTGAGES (§ 241*)-CANCELLATION-DESTRUCTION OF NOTE.

Where the holder of a note for $240 secured by a chattel mortgage verbally agreed that, if the mortgagor executed a note for a larger amount in consideration of the surrender of the smaller note and the cancellation of the mortgage, the mortgagor's execution and delivery of the larger note, without more, canceled the mortgage.

[Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 503, 504; Dec. Dig. § 241.*]

3. CHATTEL MORTGAGES (§ 241*)-COVENANT TO CANCEL.

In such case, if the action of the parties did not amount to a present cancellation of the mortgage, it was a covenant on the part of the mortgagee to cancel it in the future, which the mortgagor could enforce in a suit on the mort

in the sum of $240 principal and $19.20 interest, represented by his note, and secured by a chattel mortgage, and also the sum of $480 principal, with interest for some nine or ten years, which latter amount was barred by the statute of limitation. Being unable to pay the $240, he made an agreement with appellant that he would execute his note due January 1, 1913, for $659.20, which note was to include the $259.20 due on his note and $400 of the old indebtedness, in full satisfaction of the old indebtedness and of the chattel mortgage, the appellant agreeing to surrender the $240 note, and to cancel and to deliver to him the chattel mortgage; that in pursuance of this agreement he executed the note herein sued on for $659.20; that appellant destroyed in his presence the $240 note, but has never canceled nor delivered to him the chattel mortgage; and that the bringing of this suit to enforce said mortgage is a breach of the contract on the part of appellant, for which reason the consideration for the execution of the note sued on has failed to the extent of $400 thereof.

According to appellant's testimony, appellee, on October 2, 1912, was indebted to him in the sum of $791.20, besides some interest on $532 of such amount, none of which was barred by limitation; that $240 principal and $19.20 interest of said indebtedness was represented by a note secured by the chattel mortgage herein sought to be foreclosed; that on said date he agreed with plaintiff to

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 161 S.W.-2

give him $132 of said indebtedness, and take his note due January 1, 1913, for the remainder, $659.20; that nothing was said about the chattel mortgage; that he complied with his part of said agreement. The parties hereto are brothers-in-law.

pellee, upon proper pleading, was entitled to have it so decreed in the judgment herein. [3] 3. If it could be held under appellee's testimony that the action of the parties did not amount to a cancellation of the mortgage in eo presenti, then it was a covenant on the part of appellant to cancel same in the future, which appellee, under proper pleading, would be entitled to have enforced in this suit, or for breach of which he might recover damages, if any he has suffered thereby. Johnson v. Gurly, 52 Tex. 226; Byars v. Byars, 11 Tex. Civ. App. 565, 32 S. W. 926.

[4] 4. If the facts should be found as claimed by appellant, viz., that the debt evidenced by the $240 was merged in the note sued on, but without any agreement to release the chattel mortgage, appellant will be entitled to judgment for the principal, interest, and attorney's fees of the note sued on, with foreclosure of the chattel mortgage to the extent of the debt originally represented by the $240 note and interest thereon.

The court instructed the jury as follows: "If you believe from the evidence that defendant renewed the $240 note due plaintiff and secured by a mortgage lien described in the pleadings, and at the time he did so he executed the note for $659.20 as a renewal for said $240 and interest thereon, and as a renewal of the old indebtedness barred by limitation to the amount of $400, but that he did so upon the express condition and promise upon the part of the plaintiff that he (the plaintiff) would release and cancel said mortgage lien on the property theretofore given to secure payment of said $240 note, and you further find that plaintiff did promise to cancel said mortgage lien, and, in consideration of that promise, the defendant renewed or promised to pay the old indebtedness of $400, and that said $400 was merged with the $240 note, and that said note for $659.20 was so executed, and that the plaintiff did not and has not canceled and released said mortgage, then the plaintiff would not be entitled to recover from the defendant the said $400 included in said note, and, if you so find and believe from the evi- (Court of Civil Appeals of Texas. Galveston. dence, you will return a verdict for the plaintiff in the sum represented by the $240 note, together with interest and attorney's fees, and for foreclosure of said mortgage lien, and so state in your verdict."

The jury returned the following verdict: "We, the jury, find plaintiff entitled to the sum represented by the $240, together with the interest and attorney's fees, and for foreclosure of said mortgage lien." Judgment was entered in accordance with said verdict, from which plaintiff in the court below has appealed.

Without taking them up seriatim, we dispose of the propositions and counter propositions of appellant and appellee as follows:

[1] 1. The previous debt, though barred by limitation, if such was the fact, was a sufficient consideration for the execution of the new note to the extent that the same was given for such indebtedness. Burnham v. McMichael, 6 Tex. Civ. App. 496, 26 S. W. 888.

For the reasons indicated, the judgment of the trial court is reversed, and the cause remanded for a new trial. Reversed and remanded.

MCKNEELY v. BEATTY.

Nov. 20, 1913.)

1. JUSTICES OF THE PEACE (§ 174*)-APPEAL— NEW TRIAL IN APPELLATE COURT - NEW CAUSE OF ACTION.

On the trial in the county court of an action appealed from justice court, the county court cannot entertain a cause of action on a demand in excess of that of which the justice court had jurisdiction, and hence where, in an action to recover $152, plaintiff on appeal amended the petition so as to seek a recovery of $350, in addition to that sought in the justice court, the allegations to sustain this additional recovery should have been stricken.

[Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.*]

2. APPEAL AND ERROR (§ 1042*)-HARMLESS ERROR-RULING ON MOTION TO STRIKE.

Where, though the county court on an appeal from justice court denied a motion to strike out a cause of action not set up in the justice court, when made, the judgment recited that it was sustained, thus indicating that the new cause of action was not considered, the error was cured.

1042.*]

[Ed. Note.-For other cases, see Appeal and [2] 2. If, in pursuance to a previous verbalError, Cent. Dig. 88 4110-4114; Dec. Dig. § agreement that appellee would execute the note herein sued on in consideration of the cancellation and surrender of the $210 note,

Appeal from Galveston County Court. Action by Henry Beatty against C. E. McKneely. Judgment for plaintiff, and defendant appeals. Affirmed.

J. V. Meek, of Houston, for appellant. Geo. G. Clough, of Galveston, for appellee.

and the cancellation of the mortgage securing the same, and the promise to pay $400 of a previous existing debt, appellee executed and delivered to appellant the note herein sued on, and appellant destroyed the $240 note, without anything further being said about the McMEANS, J. [1, 2] Henry Beatty brought mortgage, such action operated as a cancel- suit against C. E. McKneely in the juslation of the mortgage at said time, and ap- tice court of Galveston county to recover For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes