case. What was really said is: "The ground it was rendered in his name, and so continof this contention is that the proof of the ued up to his sale to Jackson in 1907, and long and continued possession, use, and an he paid what taxes were paid. It is true enjoyment of the land in controversy, under that Theophile died in 1881, but he left a a claim of title by defendant in error and widow who is still living and eleven chilthose under whom he claims, together with dren, all of whom are still living. Some of the evidence that no claim had ever been as- them are sons and the others married daughserted on behalf of the plaintiff in error un- ters. Theophile lived a part of the time at til the bringing of this suit, is so conclusive least in Jefferson county, and it is beyond bein its nature and tendency as to impel the lief that none of these children had any court to presume a sale or conveyance from knowledge of this Texas land, and of TheoCole back to the original grantee, should it phile's ownership of an interest in it (unless be found that Cole ever possessed the title. he had parted with his title), and of DerneuIt has doubtless been held in other jurisdic- ville's claim that he had acquired Theophile's tions that the inference arising from long interest, which, as one witness testified, was possession and enjoyment of real estate, to- "generally talked in the family." Emile livgether with corroborating circumstances, ed until 1904, returning to Louisiana, where may be so cogent as to make it the duty of he died, and from the position of general the court to instruct the jury to presume a manager of the property, about 1881, he grant. Such is not the rule in this state. ceased to have anything to do with it. He With us the presumption is one of fact, and must have known of Derneuville's claim. it is for the jury to determine the effect of The absolute silence of Emile, of his five the evidence in support of that presumption. children, still living, and of all of Theophile's Taylor v. Watkins, 26 Tex. 688; Walker v. children during all of these years, in the face Caradine, 78 Tex. 489 [15 S. W. 31]; Dailey of Derneuville's assertion of title, consistent v. Starr, 26 Tex. 562." The court also cites with his acquisition of the interests of Emile Boone v. Miller, 73 Tex. 557, 11 S. W. 551, and Theophile, and inconsistent with any and Walker v. Caradine, 78 Tex. 492, 15 other hypothesis, strongly supports the preS. W. 31, as cases which practically settle the sumption of a deed from them or the lawful Other facts and question in this state. Neither of these cases acquisition of their title. afford any support to the doctrine stated in circumstances are shown in the court's findings herein quoted, all of which are consistthe opinion referred to. ent with Derneuville's claim and difficult of explanation on any other hypotheses. We are of the opinion that the evidence sufficiently supports the court's conclusion, and the first, second, sixth, and eighth assignments of error of appellants presenting this question, with the several propositions thereunder, should be overruled. [6] The court seems to have not been mindful of the distinction between a presumption of law declared by the court, and a presumption of fact to be found by the jury. The presumption here, as relating to deeds from Emile and Theophile Broussard to Derneuville Broussard, is one of fact found by the court sitting as a jury. [8] The case was tried without a jury. There was no reversible error in the admission in evidence, over the objection of appellants, of the testimony of the witness Hamshire that the "talk in the family," meaning the Broussard family, was that Theophile had sold his interest to Derneuville Broussard. This evidence was contemporary with, and explanatory of, Derneuville's claim of title, and served also as a circumstance to show knowledge of such claim on the part of Theophile's heirs. The point is presented by the third assignment, which is overruled. [7] Applying these general principles to the evidence in the present case, we are of the opinion that the evidence on the whole is sufficient to support the conclusion of the trial court, sitting as a jury, that about the year 1881, either in a general settlement of the estate of P. O. Broussard or by direct purchase, Derneuville Broussard acquired the title of Emile and Theophile Broussard to their respective interests in this land. All the parties to the transaction are dead. So far as concerns the mere possession of Derneuville, that can well be attributed to the fact that he unquestionably owned, as one of the heirs, a one-eighth interest, amounting to about 80 acres, and his actual possession never at any time embraced more than 20 acres. But the evidence strongly supports the conclusion that he claimed, about 1881, to have acquired the interest of his two brothers, and that this must have been known to them. After the death of P. O. Broussard, and indeed before that, Emile actually looked after the Texas property, and the land was rendered for taxes in the name of P. O. Broussard up to 1883, and taxes were paid by the estate. Beginone of the ning with 1883, by direction of Derneuville, daughters of P. O. Broussard. She was dead 161 S.W.-5 [9] The proposition under the fourth assignment of error that parol testimony, when objected to, cannot be offered to prove a sale of land in this state, has no application to a case of this kind, where circumstances are relied on to support a presumption of a deed. The question referred to in the fifth assignment was not leading, nor does it call for conclusions of the witness. The testimony objected to is of the same character as that referred to in the third assignment, and there was no error in admitting it. [10] Azema Broussard was at the time of the execution of the deed by the other children and grandchildren, to Derneuville Broussard in 1897. She left four children, one of whom died without issue, and one of whom died leaving issue, two children living, all parties interveners. One of such children was Celema Broussard, who was deaf, dumb, and blind but of sound mind, and about 45 years of age at the time of the execution of the deed to Derneuville in 1897. She died unmarried in 1899, and the other descendants of Azema Broussard are her heirs. This deed is signed "Celema Broussard per Savenne Le Blanc, curator." It was not shown that Celema Broussard was present at the execution of this deed or had any knowledge of it. No explanation was offered as to why Savenne Le Blanc signed the deed as her curator. By proper assignment of error the heirs of Azema Broussard complain of the action of the court in holding that this deed passed the title to Celema's interest in this land. The parties all lived in Louisiana, where the deed was executed. Under the civil law which largely prevails in that state, the office of curator is largely the same as guardian in this state. It is defined as "a guardian, one appointed to take charge of the estate of a minor, a lunatic, a spendthrift, or other person not regarded by law as competent to administer it himself." Black's Law Dictionary. No authority was shown for the execution of the deed by Savenne Le Blanc as curator or guardian of Celema. No evidence was offered at all on this point except the production of the deed so signed. The deed was not binding upon her and was insufficient to pass her title. Terrell v. Martin, 64 Tex. 121; Tucker v. Murphy, 66 Tex. 355, 1 S. W. 76. The fact that it was signed by her curator contradicts any presumption that he merely acted as her amanuensis in signing her name, at her request, even if such presumption could be indulged in the absence of any evidence that she was present and knew of the execution of the deed. The case does not come within the rule announced in the cases cited by appellee in answering this assignment. Jansen v. McCahill, 22 Cal. 563, 83 Am. Dec. 84; Lewis v. Watson, 98 Ala. 479, 13 South. 570, 22 L. R. A. 297, 39 Am. St. Rep. 82; Gardner V. Gardner, 5 Cush. (Mass.) 483, 52 Am. Dec. 740; Reinhart v. Miller, 22 Ga. 402, 68 Am. Dec. 506. [11] Appellee's contention that the failure to object to the introduction of this deed by the heirs of Celema Broussard claiming her title bars them from making the objection here made is not sound. The objection is as to the legal effect of the deed, as conveying Celema's interest. Without other evidence than the mere naked deed, it was insufficient to convey her title, and the court erred in holding otherwise. Her interest appears to be of, or 1/24, of which the intervenors, Elodie Le Blanc, the sister of Celema, is en tled to recover one-half, and Aurelia and Adam Thibaudeauz, children of Celeste Broussard, another sister, deceased, would be entitled, between them, to one-half. The judg ment will be reformed accordingly. [12] By separate brief the plaintiffs Ellen Craigen and Odelia Carouthers, who claim only part of the interest of their mother in the community estate of herself and Derneuville Broussard, complained of the conclusion of the court that the interests acquired by Derneuville by the deed of 1894 from Delzinde Broussard and others was his separate property. The court held that the interests of Theophile and Emile acquired by Derneuville was community property of Derneuville and the mother of plaintiffs and gave them judgment for their share, but the other interests acquired by Derneuville from his sisters and their descendants by the deed of September 3, 1894, did not belong to such community estate. Mrs. Broussard died in April, 1893. There is direct evidence to support this as the date of her death, though one of her daughters testified that it was in 1893 or 1894, she did not know which. In either case she died before the execution of this deed by which Derneuville acquired title. The presumption would be that the property was his separate estate. In order to overcome this presumption, appellants were required to show that the title had, in effect, been acquired by purchase prior to the death of their mother, and had been paid for with community funds. There was some testimony that it had been acquired by some sort of an agreement or understanding before the death of Mrs. Broussard; but it was not conclusive nor clear, and the court's conclusion is supported by the evidence. [13] If this was not so, appellants under their own contention had only an equitable title resting upon the fact that the land was paid for with community funds. The deed conveyed the legal title to Derneuville and was executed some time after the death of the mother of appellants. Jackson was a purchaser for value, and the burden rested upon appellants to show that he had notice of all the facts constituting their equitable title. [14] This was not attempted to be shown, and, if their contention be true, Jackson's legal title would be superior to their equity. Biggerstaff v. Murphy, 3 Tex. Civ. App. 363, 22 S. W. 769; Johnson v. Newman, 43 Tex. 628. The assignment of error of plaintiffs appellants as to the taxation of costs is without merit and is overruled. [15, 16] The deed of 1897 in the body of the deed names Emerante Broussard as one of the grantors. She was dead at the time of its execution. It is signed by certain of her heirs who are not named in the body of the deed. The court held that the deed was not binding on the heirs of Emerante and gave them judgment for their mother's one-eighth Nov. 13, 1913.) Galveston. SCHOOL TAXES-ENJOINING COLLECTION. Under Acts 31st Leg. c. 12, § 1, amending Acts 29th Leg. c. 124, § 58, providing that when 20 or more, or a majority of the property taxpaying voters of a district, wish to tax themselves for the purpose of supplementing the state school fund, they shall make application to the county judge, who shall issue an order for an election to determine whether such tax shall be levied, and that he shall order the sheriff to give notice of such election by posting three notices in the district, and that the such an election can be attacked on the ground sheriff shall obey such order, the validity of that notice was not given, as required by the statute, in a suit to enjoin collection of the tax, as the taxpayers have no other remedy, by quo warranto or otherwise. Jackson attempted to prosecute an appeal COCHRAN et al. v. KENNON et al. against them by excepting to the judgment (Court of Civil Appeals of Texas. and giving notice of appeal; but his appeal bond, which was necessary to bring the heirs 1. SCHOOLS AND SCHOOL DISTRICTS (§ 107*)— of Emerante Broussard into this court, they not having appealed from the judgment, was not filed within the time required by law, and the said heirs have filed a motion to dismiss said appeal as to them, on this ground. This motion must be sustained. If, however, the question had been properly presented, the contention of defendant Jackson could not be sustained. The fact that Emerante Broussard is named as one of the grantors in the body of the deed and that her interest is to be conveyed, she being dead, would not distinguish this case from the general doctrine, which is well settled in this state, that a deed is not binding upon one who signs it but who is not named in the body of the deed as one of the grantors. Stone v. Sledge, 87 Tex. 49, 26 S. W. 1068, 47 Am. St. Rep. 65; Thompson v. Johnson, 24 Tex. Civ. App. 250, 58 S. W. 1030. The rule is different in some of the to be laid upon the property of citizens under states. Sterling v. Park, 129 Ga. 309, 58 S. certain conditions, a compliance with all such E. 828, reported also in 13 L. R. A. (N. S.) 298, conditions is essential to the validity of the tax. 121 Am. St. Rep. 224, 12 Ann. Cas. 201. An [Ed. Note.-For other cases, see Taxation. extensive note to this report collates the au-Cent. Dig. §§ 483-495, 499-508; Dec.Dig. § 301.*] thorities showing that the weight of author-3. SCHOOLS AND SCHOOL DISTRICTS (§ 103*)— ity is in favor of the rule stated in the Texas cases cited. However, the appeal having been dismissed, the question is not before us for decision. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 253-256; Dec. Dig. § 107.*] 2. TAXATION (§ 301*)-LEVY AND ASSESSMENT -COMPLIANCE WITH STATUTE. Where the burden of taxation is authorized SCHOOL TAXES-SUBMISSION OF QUESTION Acts 31st Leg. c. 12, amending Acts 29th Leg. c. 124, § 58, requiring notice of an election to determine whether a tax shall be levied to supplement the state school fund, to be given by the sheriff by posting three notices in the district, was neither strictly nor substantially complied with by posting two notices within the district and a third notice outside the district. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 115, 117, 240-245, 252; Dec. Dig. § 103.*] 4. SCHOOLS AND SCHOOL DISTRICTS (§ 103*)— SCHOOL TAXES - SUBMISSION OF QUESTION TO VOTERS-STATUTORY PROVISIONS. [17, 18] It remains only to dispose of the contention of defendant Jackson that he was an innocent purchaser for value and without notice that the interests of Emile and Theophile Broussard, conveyed to him by Derneuville, were community property of Derneuville and his then deceased wife, and that the court erred in rendering judgment in favor of the plaintiffs Craigen and Carouthers for their mother's interest therein. We think this contention cannot be sustained. Derneuville had no deed to these interests. Jackson was affected with notice that he acquired them during the life of his wife, who did not die until 1897. The presumption would then be that the property was community. School Districts, Cent. Dig. §§ 114, 115, 117, Jackson knew that Derneuville had been mar-240-245, 252; Dec. Dig. § 103.*] ried, as several of his children joined in the deed to him. He was then bound to take no- Under such section, where one of the three notices required was posted outside the district, the notice was not rendered sufficient by and before the election annexing to such disthe act of the commissioner's court in thereafter trict certain territory, including the place where such notice was posted. [Ed. Note.-For other cases, see Schools and 5. SCHOOLS AND SCHOOL DISTRICTS (§ 107*)— SCHOOL TAXES-SUBMISSION OF QUESTION TO VOTERS-STATUTORY PROVISIONS. In a suit to enjoin the collection of a tax on the ground that the notices were not posted as required by such section, the burden was on defendants to show that all or a substantial majority of the qualified voters had actual knowledge of the election, and that the failure to give the statutory notice did not affect the result. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 253-256; Dec. Dig. § 107.*] Appeal from District Court, Ft. Bend County; S. J. Stiles, Judge. Action by W. B. Cochran and others against For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes W. J. Howard, of Houston, for appellants. D. R. Peareson, of Richmond, for appellees. REESE, J. This is an appeal from an order of the district judge, in vacation, dissolving, in part, a temporary injunction theretofore ordered by him. On the hearing of the motion to dissolve the judge found that all of the allegations of the plaintiff's petition were true. The petition was sworn to, and in defendants' answer, on which is based their motion to dissolve, and which is not sworn to, there is only a general denial of these allegations. So the only question presented is whether on the allegations of the petition it was error to dissolve the injunc tion as was done. was The terri J. D. Kennon and others. From an order notices were so posted by the sheriff, two of dissolving in part a temporary injunction, them at two public places in said district 19, plaintiffs appeal. Reversed and injunction as it then existed, and one at a public place reinstated. outside of said district, but at a public place then in district 20, and in the territory which afterwards (as will be hereinafter shown) taken from district 20 and added to district 19. All of the notices were posted for three weeks before the election. After these notices had been posted the commissioners' court, on August 22, 1912, undertook to change the boundaries of district 19, and by order duly made did so change said boundaries by adding to district 19 certain territory theretofore lying in district 20, and also by such changed boundaries took certain territory from district 19. tory taken from district 20 and added to district 19 included Sibley's store, where the third notice referred to had been posted. In pursuance of the order aforesaid and the notices referred to, an election was held at Dow Bros.' store in the district on September 3, 1912, at which 22 votes were cast, ali of which were in favor of the tax. In due time return was made, the votes canvassed by the commissioners' court, result declared, and in pursuance of this authority, a tax of 15 cents on the $100 valuation was ordered to be levied and collected each year, on all taxable property in the district. It is al leged in the petition, and must be taken as true, that the 22 voters voting at said election were less than a majority of the taxpaying voters of the district, and that none of the plaintiffs, 12 in number, had any notice or knowledge that such election was to be held. None of the plaintiffs who resided, or owned taxable property, in that part of district 20 which was, on August 22, 1912, added to district 19 had any knowledge or notice that this change had been made, whereby their property was placed in district 19. The petition further charges that there were many resident citizens of said district who were taxpayers and property owners, and qualified to vote at said election, who did not participate therein, and who had no notice that said election was to be held, and that if another and different election is held upon the question, a majority of the qualified voters in such district will vote against said tax. The plaintiffs sued to enjoin the collection of a special tax for the support of the public school in school district No. 19, ordered to be levied and collected for the year 1912, and succeeding years, by the commissioners' court, by order made in pursuance of an election which had been held on September 3, 1912. In addition to injunction against the levy and collection of such taxes generally, plaintiffs sought specially to have the tax collector restrained from collecting the taxes for the year 1912, on the ground that at the time the tax was ordered the tax rolls had been made up by the assessor and delivered to the collector, and that the assessor had no lawful right to afterwards enter upon such tax rolls the additional school tax so ordered. This part of the temporary injunction was not disturbed by the judge, but was continued on the motion to dissolve, and no question as to this part of the order is presented on this appeal. The material allegations of the petition accepted as true, as a basis of this appeal, are as follows: Plaintiffs are all property taxpayers in school district No. 19 of Ft. Bend county, as now constituted, and some of them are residents of said school district. Some of them own property subject to taxation, and also reside, in that portion of district 20 which was added to district 19 on August 22, 1912. On August 10, 1912, upon proper petition, the commissioners' court of Ft. Bend county ordered an election to be held on September 3, 1912, in said school district 19, then, and for some time prior thereto, a duly created and organized school district of said county, to enable the qualified voters therein to determine whether an annual tax of 15 cents on the $100 of taxable property in the district should be levied and collected for the support of public schools in the district. Notices of such election were ordered to be posted by the sheriff at three public places in the county, as required by subdivision 3, § 58, Acts 29th Leg., c. 124, as amended by chapter 12, Acts 31st Leg. Such [1] After finding that the allegations of the petition were true, the judge found as a conclusion of law "that the manner of giving notice of such election was irregular, but the manner of holding and giving notice of such election cannot be inquired into in this suit, which is a collateral attack on same," and upon this conclusion of law the court dissolved the temporary injunction, except as stated as to the tax for the year 1912. Appellees in their brief do not attempt to sustain the order of the judge upon any other ground than that upon which it is based in the law conclusion above stated (citing in support of such conclusion El seeking. The judge was in error in holding that the only remedy was by quo warranto, and in dissolving the injunction on this ground. [2-5] The judge concluded that the manner of holding and giving notice of the election was irregular. Where the burden of taxation is authorized to be laid upon the property of a body of citizens, under certain conditions, a compliance with all of such conditions is essential to the validity of the tax. This is the general rule. 37 Cyc. 971; Swenson v. McLaren, 2 Tex. Civ. App. 331, 21 S. W. 302 (citing authorities). In the case cited the tax was declared invalid on the ground that the notices posted were signed by the county judge instead of the sheriff. Whether a strict or a substantial compliance be required, in the present case there was neither. The statute required in positive terms that notice to the voters be given by posting notices at three public places in the district by the sheriff. Such notices were posted only in two such places in the district. The third notice, posted at Sibley's store, outside of the district, may have just as well not have been posted at all, and the subsequent addition of territory to district 19, which included the place where it was posted, did not validate it. If it be sought to apply the rule that such failure to comply with the provisions of the statute will not invalidate such election, if in fact all, or a substantial majority, of such qualified voters had actual knowledge of such election, and the failure to give the notices prescribed did not affect the result (Norman v. Thompson, 30 Tex. Civ. App. 537, 72 S. W. 64; Buchanan v. Graham, 36 Tex. Civ. App. 468, 81 S. W. 1237; Wallis v. Williams, 50 Tex. Civ. App. 623, 110 S. W. 785), the burden was upon defendants to show by pleadings and proof that such was the case, as to this election (Norman v. Thompson, 30 Tex. Civ. App. 537, 72 S. W. 64-68). But not only was there no pleading or proof on the part of defendant that all or a substantial number of the voters, outside of those who actually voted, had any notice of such election, but the allegations of the petition, found to be true, expressly negatived this fact. So the action of the judge in dissolving the injunction cannot be sanctioned on this ground. It is fairly to be presumed that the learned judge would have so found but for the mistaken view of the law upon which his action was based. Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25; no other remedy than the one they are here Parker v. Drainage District, 148 S. W. 351; Drainage District v. Higbee, 149 S. W. 388; Boesch v. Byrom, 37 Tex. Civ. App. 35, 83 S. W. 18; Coffman v. Goree, 141 S. W. 132; Troutman v. McClesky, 7 Tex. Civ. App. 561, 27 S. W. 173; Wilbern v. Cone, 148 S. W. 818; Crabb v. Celeste School District, 132 S. W. 890; City of Carthage v. Burton, 51 Tex. Civ. App. 195, 111 S. W. 440). The learned district judge seems to have misapprehended the effect of these decisions, and learned counsel for appellees seems to have fallen into like error. El Paso v. Ruckman, supra, affords a fair example of the question presented and decided in each of the cases cited above. In that case the question involved was the validity of the independent school district of the city of El Paso. The power to levy and collect taxes by the municipality was involved, but the right to levy such taxes was denied on the ground that the independent school district had no legal existence. The city of El Paso had been acting since 1882 as such school district, but it was contended by the plaintiff Ruckman that the provisions of the law in the creation of the same had not been complied with. The question was certified to the Supreme Court. In answering certified questions the court said: "The rule is well established that when the creation of a public corporation, municipal or quasi municipal, is authorized by statute and a corporation has been organized under color of such authority, its corporate existence cannot be inquired into by the courts in a collateral proceeding. The validity of the incorporation can only be determined in a suit brought for that purpose in the name of the state, or by some individual under the authority of the state, who has a special interest which is affected by the existence of the corporation." The question involved and decided in the cited cases was of precisely similar import, the validity of some character of municipal or quasi municipal corporation being presented. In the present case no question is made of the validity of school district 19, as originally organized, nor is any question made of the validity of the action of the commissioners' court in adding new territory to said district. The sole attack upon the tax levy is based upon the illegality of the election on account of the failure to comply with the provisions of the statute with regard to notice. It is a matter which could not be reached or remedied by a proceeding in quo warranto. The law only authorizes such taxes as are here complained of after an election ordered and held under certain conditions. One of these conditions is that notices of the election be posted by the sheriff at three public places in the district. This was not done, and for this reason plaintiffs say the levy and collection of the tax is unauthorized, and they seek relief therefrom. They have Other questions presented by the assignments of error need not be considered. It would seem, however, that under the decision of the Supreme Court in Hill v. Howth, 101 Tex. 620, 111 S. W. 649, after the election was ordered in district 19, the commissioners had no right to change the boundaries of the district so as to affect the election previously ordered, and that such subsequent |