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against appellee J. M. Hart for the amount, lows: "The uncontrorerted evidence in this of his debt against defendants Pugh and case shows that the rent item of $113 inLight; that amount being less than the es- cluded in said $363 check was included in tablished value of the property converted. the deposit of Belle Lowe in the City NaReversed and rendered.

tional Bank of Colorado, Tex., and was paid out by said bank cashing said check. As to this item I charge you that the same was

the property of W. L. Lowe, though depositBURNS & BELL V. LOWE et al.

ed in said bank by Belle Lowe among other (Court of Civil Appeals of Texas. Ft. Worth. funds deposited in her name and was not Nov. 22, 1913.)

subject to the garnishment herein, and as 1. GARNISHMENT (105*)-GARNISHING CRED-to this item the plaintiffs would not be enITORS-RIGHTS.

Garnishing creditors occupy no better posi- titled to recover.” It is complained that this tion with reference to the fund garnished than charge is erroneous because the item of $113 did their debtors at the service of the writ. was community property of defendant C. C.

[Ed. Note.-For other cases, see Garnishment, Lowe and his wife, Belle Lowe, at the time Cent. Dig. $ 216; Dec. Dig. $ 105.*]

of the service of the writ and was therefore 2. GARNISHMENT ($ 108*) — BANK DEPOSIT OWNERSHIP OF FUND.

subject to appellant's demand. The facts, L., being indebted for rent, delivered to his however, appear to be undisputed that C. wife $113, the proceeds of his crops, with in- C. Lowe was indebted to W. L. Lowe, his structions to pay it to the landlord. stead deposited the amount in a bank to her landlord, for rents and delivered this sum credit and later drew against the fund in fa- of money, the proceeds of farm products vor of the landlord a check for a larger am- grown by him, to his wife, with instructions ount, containing the $113. After delivery of to deliver the same to W. L Lowe. Mrs. the check, but before it was paid, the account in the bank was garnished in suit against L. Lowe deposited this sum in the bank beHeld that, to the extent of the $113 so deposit- cause she did not care to keep that amount ed, the rights of the landlord were superior to of money around the place and gave to W. those of the garnishing creditor, though the check be not regarded as an equitable assign- L. Lowe her check for $363, covering this ment of so much of the funds to the wife.

and other items of indebtedness. It is un[Ed. Note.-For other cases, see Garnishment, disputed that this check was drawn by Mrs. Cent. Dig. $8 220–226; Dec. Dig. § 108.*] Lowe and accepted by W. L. Lowe prior to 3. PARENT AND CHILD ($ 9*)- EMANCIPATION. the service on defendant bank of the writ of

A father may make a valid gift to his garnishment, though the bank had not paid minor son in the absence of complaint by an existing creditor that the gift is fraudulent, or accepted for payment the check. whether the son has been emancipated or not. [1] In this state of the evidence there was

[Ed. Note.-For other cases, see Parent and no error in the charge quoted, since appel. Child, Cent. Dig. 88 74, 111-135; Dec. Dig. 8 lants, as garnishing creditors, could occupy 9.*]

no better position with reference to the fund Appeal from District Court, Mitchell Coun- than did their debtor at the time of the seryty; W. W. Beall, Judge.

ice of the writ. Garnishment proceeding by Burns & Bell

[2] Equity will not aid the statutory remagainst C. C. Lowe and others. Decree for edy of a garnishment, and, even though it defendants, and the plaintiffs appeal. Af- should be held that the drawing of the check firmed.

was not an assignment pro tanto of the L. W. Sandusky and C. H. Earnest, both funds of Mrs. Lowe in the bank in the sense of Colorado, Tex., for appellants. Royall G. that the bank could be sued on the same Smith, of Colorado, Tex., for appellees. prior to acceptance, still as between C. C.

Lowe and W. L. Lowe, and necessarily beSPEER, J. This is a garnishment suit tween appellants and W. L Lowe, since apwherein Burns & Bell, judgment creditors pellants take the place of 0. C. Lowe, the of C. C. Lowe, sought to hold City National rights. of W. L Lowe are superior and the Bank as garnishee; the fund in controversy | bank would not be liable to the writ. Neely being a deposit of $408.36 in the name of v. Grayson County Nat. Bank, 25 Tex. Civ. Mrs. Belle Lowe and the sum of $10 in the App. 513, 61 S. W. 559; N. Y. Life Insurname of Ruel Lowe. The bank answered, ance Co. v. Patterson, 35 Tex. Civ. App. 447, disclosing these deposits, but alleging that 80 S. W. 1058. the one was the separate property of said [3] The remaining assignments in effect atBelle Lowe and the other the individual tack the sufficiency of the evidence to supproperty of said Ruel Lowe, and otherwise port the verdict finding that the deposits bedenying any indebtedness or liability to C. C. longed, respectively, to Mrs. Lowe and Ruel Lowe. The answer was traversed by the Lowe. The evidence, we think, abundantly plaintiffs, and on the issues thus presented supports the conclusion that the small item a trial was had before a jury resulting in of $10 to the credit of Ruel Lowe was a a verdict and judgment against the plaintiffs, gift by the father to the son for minor servand they have appealed.

ices, and it is immaterial whether the son On the trial the court instructed as fol- had been emancipated by the father or not. •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

RECTED

At all events, the father could make a valid | years' statute. Plaintiffs in error answered gift even to his minor son, in the absence of by the usual plea of “not guilty," and relied a complaint by an existing creditor that such on a record title to the land, which it was adgift was fraudulent and void. There is no mitted was regular, from the city of San Ansuch complaint in this case. The evidence tonio down to and including them. furthermore supports Mrs. Lowe's contention [1,2] At the conclusion of the testimony, that the deposit in her name was a fund paid the court instructed the jury to return a verto her by her husband in repayment of bor-dict in favor of Mrs. Baugh, the plaintiff rowed money, the proceeds of an inheritance there, which was accordingly done. Whether from her father,

the court was correct in so instructing the There is no error in the judgment, and it jury is the issue before this court. If the is affirmed.

evidence is such that reasonable minds would not differ as to the facts established, the court was correct in giving the instruction.

Let us, then, see what the evidence is. ZIMMERMANN et al. v. BAUGH. Mrs. W. Pauline Baugh, the plaintiff below, (Court of Civil Appeals of Texas. San An- testified that she had owned lot 5, block 18, tonio. Dec. 17, 1913.)

N. C. B. 525, twenty-seven years; that she 1. TRIAL ($ 139*)-QUESTIONS FOR JURY-DI: inherited it from the Kelleys in 1885, and ERDICT.

they had bought the property from Elliston. The court should not direct a verdict on an issue of fact unless the evidence shows that She says: “I meant this part in controversy reasonable men could not draw a different con —this part was all fenced and is fenced now, clusion.

and has been ever since I came to San An[Ed. Note.-For other cases, see Trial, Cent: tonio, which was in 1877.” Her evidence is, Dig. $$ 332, 333, 338-341, 365; Dec. Dig. $further: That she had had the property 139.*] 2. ADVERSE POSSESSION (8 115*)-ACTIONS

fenced in with lot 5 twenty-eight years and EVIDENCE.

had kept it rented out; the part in controIn trespass to try title, where plaintiff versy being used as a passageway for her claimed under a prescriptive title, evidence held tenants in going to and coming from Chestto raise a question for the jury and not to warrant a directed verdict in plaintiff's favor.

nut street. "That fence I had was up there [Ed. Note.-For other cases, see Adverse Pos- until two years ago. It had been repaired session, Cent. Dig. 88 314, 691-701; Dec. Dig. from time to time. It was standing up there 8 115.*]

until Mrs. Zimmermann changed the line. 3. EVIDENCE (8 213*)-ADMISSIONS_TITLE.

In trespass to try title, evidence that plain. Q. Do you know who lived on that little tiff offered to purchase a deed from defend- piece of ground that inclosed the red triangle ants to the property is inadmissible, for that (the land in controversy)? A. Well, there fact will not affect plaintiff's title, being a was a man by the name of Pieper. He mere attempt to remove a possible cloud.

didn't live on it; he rented it out. I do not [Ed. Note.-For other cases, see Evidence, Cent. Dig. $$ 745-751, 753; Dec. Dig. & 213.*] know who had it prior to that; I do not

know who his tenants were. They have had Error to District Court, Bexar County; A. tenants there about 28 years, I presume.” W. Seeligson, Judge.

The witness, upon redirect examination, said Action by W. Pauline Baugh against Bridg. she had reference to the large triangle, but et Zimmermann and others. There was a not the land in dispute, which she said she judgment for plaintiff, and defendants bring and those under whom she held had had error. Reversed and remanded.

fenced since 1877 when she came to San AnSee, also, 160 S. W. 593.

tonio. Don A. Bliss, of San Antonio, for plaintiffs J. W. Houston, who was called by defendin error. Augustus McCloskey and Alex C. ant in error, said he had lived in San AnBullitt, both of San Antonio, for defendant tonio 34 years and had known this property in error.

all his life. He says: “I remember well the

location of the fence of that property with CARL, J. The defendant in error, Mrs. reference to the streets.

* I know W. Pauline Baugh, brought this suit in tres- there was a fence in there through to what pass to try title against plaintiffs in error, we called McGowan's. The fence did not Mrs. Bridget Zimmermann, Florence, and take in the little triangle (property in conMinnie Zimmermann, the land in controver- troversy). The little triangle wasn't there sy being a small triangular piece out of what then; Baugh's fence didn't fence in any triis designated as the north part of lot 7 in angle. It came to the point of the triangle block 18, New City block 525, in the city of and stopped at the triangle, and the triangle San Antonio, Bexar county, Tex., and is more extended about three or four feet from the fully described by metes and bounds in plain- south fence of the Baugh property. No sir, tiff's (defendant in error's) petition. The the south fence was not a little longer, the plaintiff below asserted title in herself under north fence was the longer; and, when this the three, five, and ten years' statutes of south fence came down, it struck a little trilimitation, but relied in the proof on the ten angle, just a little nose of a property that *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

*

*

was

came in there just like the point of the tri- , Mrs. Baugh may have offered $35 for a deed angle."

from the plaintiffs in error to this property. J. R. Studer, for plaintiffs in error, said Citizens have a right to clear their titles of that he had resided near the property for those things which would hinder a sale, and, close to 20 years. He says that Pieper fenc- if they have title to the property, a mere ed the entire block 7. “I don't know who attempt to remove clouds therefrom would built that cross-fence. There was a closet not affect the title they already have. This built back there somewhere. My father-in-court so held in Cuellar v. Dewitt, 5 Tes. law (Pieper) had it done. There was no Civ. App. 568, 24 S. W. 671, and has recentfence which included that when it was built ly reaffirmed the same doctrine. 16 to 18 years ago.

When that closet was Since we have concluded to reverse the built, the fence did not come right along the judgment, it is not necessary to pass on any side of Chestnut street. It was open-most other questions raised. of the years there was nothing at all. I The judgment is reversed, and the cause re don't remember any more whether when the manded. fence was put up across there they tore down any portion of the old fence that I have said fenced in the entire lot 7. I patched it up

CLEGG et al. v. ROSCOE LUMBER CO. so much I got disgusted.

I don't know when the fence running across

(Court of Civil Appeals of Texas Amarillo.

Dec. 13, 1913.) built so as to cut off this little piece (in controversy). Whoever did that did it without 1. LIMITATION OF ACTIONS (8 123)—TOLLING

STATUTES-PENDING ACTION. my knowing anything about it. When I first

The pendency of an action will prevent the knew of it was maybe six or eight years running of limitations, though the petition be ago.” Studer says that 16 or 18 years ago until after the period of limitation has elapsed;

bad on general demurrer, and is not amended the land in controversy was open, and he al- and the fact that when plaintiff corporation filed so says that the north corner of the land in an action on the notes sued on, it was not dispute is in the same place it has always legally entitled to sue under Rev. Civ. St. 1911, been and has not been changed. "I knew

art. 7399, because it had not paid its franchise

tax, would not cause the action to be barred that the land in controversy was inside my by the four-year limitation, though before an father-in-law's fence at the time I first knew amended petition was filed showing compliance it (about twenty years). There was not any with the statute more than four years had cross-fence there just prior to that time. It elapsed since maturity of the last note.

[Ed. Note. For other cases, see Limitation was fenced at the time he (Pieper) bought it." of Actions, Cent. Dig. $ 539; Dec. Dig. $ So the state of the evidence is that Mrs. 123.*] Baugh says her fence was up there until about 2. ABATEMENT AND REVIVAL (8 22*)–PLEA IN two or three years ago, when it was knocked ABATEMENT-RIGHT TO SUE. down. Houston says this little triangle was paid its franchise tax, so that it was not edi

The fact that plaintiff corporation had not out, not fenced at all when he can first re- titled to maintain an action under Rev. St. member, and he is 34 years old. Studer says art. 7399, could only be urged by a plea in Mrs. Baugh's fence was not there when Pie- abatement. per bought the property about 20 years ago, and Revival, Cent. Dig. && 148–156; Dec. Dig.

[Ed. Note.-For other cases, see Abatement and that Pieper built a closet on the proper- $ 22.*] ty in controversy about 18 years ago. He says further that it was under fence before Appeal from Potter County Court; W. M. Pieper bought it.

Jeter, Judge. We think the condition of the evidence was

Suit by the Roscoe Lumber Company such that reasonable minds might honestly against Mida Clegg and another. From a differ, and that the court erred in refusing judgment for plaintiff, defendants appeal. to submit the case to he jury. Choate v.

Affirmed. Railway, 90 Tex. 88, 36 S. W. 247, 37 S. Cooper, Merrill & Lumpkin, of Amarillo, W. 319; Mustain v. Stokes, 90 Tex. 358, 38 for appellants. Gustavus & Jackson, of S. W. 758. “It is only when it is so clearly Amarillo, for appellee. established from the undisputed testimony as to admit of no other reasonable hypothesis HALL, J. This suit was filed in the counor conclusion that either a fact essential to ty court of Dallas county, July 14, 1910, by plaintiff's action is not proven, or one which appellee lumber company, praying recovery is a complete defense has been shown, that it upon three notes in the sum of $100 each, becomes the duty of the court to instruct a dated October 1, 1907, and payable February verdict for the defendant.” Southern Pa- 1, 1908, October 1, 1908, and February 1, cific Ry. Co. v. Winton, 27 Tex. Civ. App. 1909, respectively, bearing interest at 8 per 514, 66 S. W. 483, and cases cited. The pos-cent. per annum from date, and stipulating session and use by Mrs. Baugh is not so con- for the usual 10 per cent. attorney's fees. clusively shown as to take the case from the Appellants, Mida Clegg and Mrs. Emma Tydejury.

man, being residents of Potter county, filed [3] It is a matter of no consequence that their pleas of privilege in Dallas county in *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

was

September, 1910, which were sustained, and Clegg), being then a widow, pleaded the same the case transferred to Potter county. On cause of action as before. The judgment February 3, 1912, the defendants filed their was against both Mrs. Harrison and Mrs. first amended original answer in the county Tydeman. court of Potter county, amending their orig- [1] The sole question raised by the assigninal answer, alleging that the appellee corpo- ments is one of limitation. It is true, as conration had forfeited its right to do business tended by appellants, that the appellee's in Texas on the 2d day of July, 1909, by right to sue at the time its original petition failing to comply with chapter 3, Revised was filed is denied by article 7399, Revised Statutes of 1911, in the payment of the fran. Statutes, supra, and it is further true that, chise tax due to the state, as required by said before its amended pleading was filed, showchapter, and that the Secretary of State, in ing compliance with that act, more than accordance with the provisions of said law, four years had elapsed since the maturity of bad duly forfeited the plaintiff's permit to the last note sued upon, but it appears that do business in the state, and, under article appellee had paid its franchise tax on June 7399 of said statute, plaintiff was denied the 24, 1911, within less than 12 months from the right to sue defendants. The appellee cor- filing of the original suit and within less poration filed no other pleading than the than four years from the date of the maturoriginal petition and a supplemental petiity of the first note. The amended petition tion (which was filed July 14, 1910, in which did not allege the fact that appellee had obit alleged that Mida Clegg had married J. T. tained permission to do business in Texas, Harrison, and prayed that citation issue to and revived its right to sue by complying her and her husband), until it filed its amend- with the law, until more than four years ed supplemental petition in the county court after the cause of action had accrued. It of Potter county, styled “Plaintiffs' Second has been frequently held in this state that Supplemental Petition," which filed a suit will prevent the running of the statMarch 29, 1913, alleging, in reply to the de- ute of limitation, although the petition be fenses it exposed by appellants, that on the bad on general demurrer, and is not amend24th day of June, 1911, it had paid to the ed until after the period of limitation has Secretary of State all franchise taxes, inter- elapsed. Killebrew v. Stockdale, 51 Tex. est, and penalties due under the law, and 529; Tarkinton v. Broussard, 51 Tex. 550 ; had restored its corporate standing within I. & G. N. R. R. Co. v. Irvine, 64 Tex. 529. the state, and on the same day it filed an [2] The fact that appellee had not paid its amended original petition, in which was franchise tax could be reached only by plea sought a recovery against Mrs. Mida Clegg in abatement. Harvey V. Provident Ins. and Mrs. Emma Tydeman, a feme sole, de Co., 156 S. W. 1127. In Frazier v. Waco claring upon the notes as in its original peti- Building Ass'n, 25 Tex. Civ. App. 476,, 61 tion, and stating the same cause of action, S. W. 132, in which writ of error was denied with the exception of admitting a credit of by the Supreme Court, Fisher, C. J., said: $35 paid on June 23, 1908. To this last peti. “There was no error in court's overruling tion the appellants filed an amended an- the amended motion for a new trial on the swer, pleading by special exception: First, grounds claimed in appellants' eighth assignthat the cause of action was barred by the ment of error. The right of appellee to bring statute of four-year limitation; second, and maintain the suit because it had not pleading affirmatively the four-year limita- paid its franchise tax should have been tion as a bar by reason of the failure of ap- raised before judgment, and came too late pellee to file any cause of action at a time when first presented by the motion for new when it was authorized, under the law, to trial. Further, we are also of the opinion maintain a suit for affirmative relief, within that the subsequent payment of the tax related the period of four years; and, further in back and revived whatever rights the appelbar of appellee's right to recover, it was al- lant had at the time the suit was instituted.” leged that said cause of action was barred Appellants' assignment are disposed of by by the statute of four-year limitation in what is here said; and the judgment of the that appellee had no right to maintain the trial court is affirmed. cause at the time when the suit was brought, and that the first pleading filed, after it had reinstated its corporate privileges, was more than four years after the cause of action had H. O. WOOTEN GROCER CO. V. matured. The facts are that the suit as orig

SMITH et al. inally filed was against Mida Clegg and Mrs. (Court of Civil Appeals of Texas. Ft. Worth. Emma Tydeman, both alleged to be feme

Nov. 1, 1913.) soles. On the same day a supplemental pe- HUSBAND AND WIFE (8 268*) — COMMUNITY tition was filed, alleging the marriage of PROPERTY-SEPARATE DEBTS. Mida Clegg with J. T. Harrison, making him Where a husband and wife to secure notes a party. Appellee's petition, filed on March executed by them, the proceeds of which were 29, 1913, merely alleged the death of J. T. estate, and upon which she was therefore à sure

not used for the benefit of the wife's separate Harrison, and Mrs. Harrison (née Mida / ty, executed a deed of trust to land, in which

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

161 S.W.-60

the wife owned an undivided one-half interest | uary, 1913, 1914, 1915, and 1916, respectiveas her separate estate, the other one-half in- ly, after date, and providing for interest terest being community property, and the husband thereafter to secure a note executed by after maturity at the rate of 10 per cent. him executed a second deed of trust, the right per annum and 10 per cent. attorney's fees, of plaintiff owning the debts secured by, both all of which notes are now owned by the applied to the payment of the debt secured by plaintiffs herein, and that to secure said the first deed, in order that the husband's in- notes said R. D. Smith and wife, T. E. Smith, terest might be available for the payment of on said December 1, 1905, executed and de the debt secured by the second deed, was a livered their certain deed of trust upon all mere equity and not a legal right, and was subordinate to the wife's equity which entitled of the property involved in this suit to seher to have the husband's interest sold and ap- cure said notes; said deed of trust having plied to the debt secured by the first deed be the following provision in same, to wit: 'The fore resorting to her interest.

[Ed. Note. For other cases, see Husband and money advanced in and secured by this deed Wife, Cent. Dig. 88 953-967; Dec. Dig. $ 268.*] of trust is furnished us in part for the pur

pose of taking up and extending the time of Appeal from District Court, Taylor Coun- payment of three certain promissory notes ty; Thomas L. Blanton, Judge.

executed by R. D. Smith and T. E. Smith, Action by the H. O. Wooten Grocer Com- payable to the order of the Abilene Trust pany against R. D. Smith and others. From Company as follows: One for $500.00 due a judgment for plaintiff for insufficieut re- December 1, 1905, one for $500.00 due Delief, it appeals. Affirmed.

cember 1, 1906, and one for $1,000.00 due Kirby & Davidson, of Abilene, and Theo- December 1, 1907, all of said notes dated dore Mack, of Ft. Worth, for appellant. Eu- November 10, 1904, and secured by a deed gene De Bogory and J. M. Wagstaff, both of of trust on the land hereby conveyed in Abilene, for appellees.

favor of K. K. Legett, trustee, which is re

corded in volume 8, pp. 538–541, of the Deed SPEER, J. This suit was instituted by H. Records of Jones county, Texas, and the 0. Wooten Grocer Company, a corporation, American Freehold Land Mortgage Company against R. D. Smith, his wife, T. E. Smith, of London, Limited, the beneficiary herein, and R. G, Patton and F. G. Alexander, trus- is hereby specially subrogated to and contees in certain deeds of trust, to recover tinued in all the rights, legal and equitable, against the defendant R. D. Smith as mak- conferred by said notes and the deed of trust er of two promissory notes and against lien securing same.' This deed of trust was him and his wife for a foreclosure. The duly acknowledged and duly filed for recaction was dismissed as to the trustees, and ord in Jones county on December 5, 1905, as to the other defendants resulted in a and duly recorded, and all the rights therepartial recovery by the Wooten Grocer Com- under are now owned and held by plaintiff. pany, and that company has appealed.

“II. That prior to and at the time of the The findings of fact upon which the appeal giving of the deed of trust last mentioned is predicated are as follows:

an undivided one-half of the property in "I. The court finds that on December 1, controversy was owned by the said Mrs. T. 1905, the defendant R. D. Smith and his E. Smith as her separate property, and the wife, T. E. Smith, executed and delivered to other undivided one-half of the property in the American Freehold Land Mortgage Com-controversy was community property, and pany of London, Limited, a series of cer- the record title of same was in the name of tain notes, the following of which are un- said R. D. Smith, and there was no other paid, to wit: Principal notes Nos. 5, 6, 7, 8, outstanding lien against any of said prop9, and 10, for the sum of $300 each, all erty. dated December 1, 1905, executed by said R. "III. The notes mentioned in finding No. D. Smith and T. E. Smith, payable as afore- I are now due and unpaid by reason of the said on the 1st day of January, 1911, 1912, election of the holder under the terms there1913, 1914, 1915, and 1916, respectively, after of, and they are a valid and subsisting indate, all bearing interest from date until debtedness secured by said lien. paid at the rate of 8 per cent. per annum IV. That on January 2, 1911, the said R. from maturity, payable annually, and inter- D. Smith executed and delivered to the plainest from maturity at 10 per cent. per an- tiff the following note and deed of trust, num, the interest being payable annually on to wit: 'Abilene, Texas, Jan. 2, 1911. $3,the 1st day of January of each year, and 668.45. On or before January 1, 1912, after providing for the usual accelerative maturi- date for value received I promise to pay to ty clause and default in the payment of in- the H. O. Wooten Grocer Company, or or. terest, and providing for 10 per cent. attor- der, $3,668.45 at Abilene, Texas, to bear inney's fees. Also the following interest notes: terest at the rate of eight per cent. per No. 7 for $96; No. 8 for $72; No. 9 for $48; annum from date, and further hereby agree No. 10 for $24-executed by said parties that, if this note is not paid when due, to aforesaid, and payable to said mortgage pay all costs necessary for collection, includcompany aforesaid on the 1st day of Jan-I ing ten per cent. attorney's fees. (Signed] •For other cases see samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r loderes

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