tract providing that its liability shall cease at its terminus, is not liable, as a member of a partnership or as a joint contractor, for injuries to cattle on a road other than its own. Railway Co. v. Baird, 75 Tex. 256, 12 S. W. 530. In the case just cited, it is said that the part of the contract which limited the liability of the receiving carrier to its own line is inconsistent with a holding that the contract was one made by a member of a partnership or a joint contractor. There appears the same inconsistency between the contracts of shipment in this case and the contention of appellee that appellant was jointly interested in or participated in the operation of the line of road where the damages to appellee's stock occurred. It must be borne in mind that appellant must have been interested jointly or a participant with the Southern Pacific Company in operating the road in Louisiana on which it is claimed his stock were damaged. It is not sufficient to show that both were jointly interested and participated in operating the Galveston, Harrisburg & San Antonio Railway; for this they might have been, and still have no joint interest or participation in the Louisiana road. All the evidence offered to show such joint interest or partnership related to the line of appellant's road, which terminated at Houston; and as the evidence does not tend to show that appellant was interested in operating a line of road beyond that point, and as the contract upon its face shows that appellant did not contract beyond, but limited its liability to its own road, the court erred in submitting to the jury the question of its liability for any damages occurring beyond its line, and in refusing a new trial upon the ground that there was no evidence to support the verdict, for which errors its judgment is reversed, and the cause remanded.

CONTRACT-CONSTRUCTION-PERFORMANCE.

1. A contract for the digging of an artesian well provided that "it is further agreed by and between the parties, if no water should be obtained, the party of the first part agrees to pull casing free of charge, if possible to do so." In an action on the contract it appeared that no water was found, and plaintiffs (party of the first part) drew out a part of the casing; that the remainder, being loose in the well, and without any impediment to its being taken out, fell back into the well, and was lost, by reason of the breaking of the rope by which it was being hoisted. Defendant pleaded the value of the lost casing as a set-off. Held, that under the contract all the risks of accident in drawing the casing were assumed by plaintiffs, and hence they were liable for the loss of the casing, which, but for the accident, could have been drawn out.

2. Defendant was entitled to the benefit of evidence showing that plaintiffs had failed to draw the casing when it was reasonably possi

1 For opinion of supreme court, see 38 S. W. 160.

ble for them to do so, irrespective of negligence, though he proceeded on the theory that it was necessary for him to show a negligent method pursued by plaintiffs in drawing the casing, and alleged that the rope used was insufficient in strength to hold the casing.

Fly, J., dissenting.

Appeal from district court, Bexar county; S. G. Newton, Judge.

Action by Henry Elmendorf and others against J. H. Classen on a written contract. From a judgment in favor of plaintiff's, defendant appeals. Reversed, unless a remittitur is entered.

Frank J. Wise, for appellant. Clark, Summerlin & Fuller, for appellees.

JAMES, C. J. Appellees sued appellant to recover the sum of $1,552.76, alleged to be a balance on a written contract. Appellant pleaded certain sums in set-off. The case was tried by a jury, and resulted in a verdict and judgment for appellees for the amount claimed, less $37 allowed as a credit. On July 2, 1892, a contract was entered into whereby appellees agreed to dig an artesian well in appellant's pasture on certain terms, Appellant furnished the casing for the purpose, and the last clause of the contract provided as follows: "That it is further agreed by and between the parties, if no water should be obtained, the party of the first part (appellees) agrees to pull casing free of charge, if possible to do so." Water was not obtained, and appellees drew out a part of the casing. The remainder was not drawn, the facts in this connection being as follows: After drawing out a part of the casing, the remainder being loose in the well, and without any impediment to its being taken out, appellees used a two-inch manilla rope, attached to a windlass, for the purpose, and from some cause the rope broke. and the casing fell back into the well. There was an issue in the evidence as to whether or not appellees used reasonable and proper care in attempting to draw out casing, and it was upon such negligence prior to the falling back of the casing that defendant bases his case, and upon this issue the case was submitted to the jury. The testimony clearly shows that the casing was loose and unobstructed in the well, and could and would have been drawn out had the rope not broken. The testimony of Sweeney, the principal witness, and one of the defendants, is that the hole was straight, that the casing was perfectly loose in the well, it was not sticking, and was clear of all bearings whatever. This evidence was uncontradicted, except that there is some theoretical testimony to the effect that something falling in and wedging the casing while pulling it would have had a tendency to break the rope. It is our opinion that this uncontradicted testimony, showing, as it does, that it was possible to draw the casing, rendered it obligatory upon appellees to do so under the final

<lause of the contract, and that under such circumstances appellees were liable not only for the loss of the casing through negligence, but all risks of accident in drawing the casing were assumed by them. In other words, they unconditionally and unqualifiedly undertook to take out the casing if it were possible to do so, and, it being possible, they would be liable to appellant for the value of the casing not removed from the well. We cannot make a different contract for the parties than the one they made.

Defendant's (appellant's) pleading is pecul

iar.

This theory appears to have been that it was necessary for him to show a negli- | gent method pursued by appellees in drawing the casing in order to get the benefit of this set-off, and they allege, in effect, that it was possible to draw the casing by the use either of a jackscrew or a windlass, but that the safer course was to use a jackscrew; and thus in using the windlass appellees | were negligent, the negligence particularly stated being that the rope used was insufficient in strength to hold the casing. We are of opinion, however, that the pleading, taken as a whole, entitled the defendant to the benefit of evidence showing that appellees had failed to draw the casing when it was reasonably possible for them to do so, irrespective of negligence. The court should have charged the jury, upon the testimony and the contract, to allow defendant the value of the casing. He raised this question in his motion for new trial, and has presented it here by proper assignments. The evidence of Sweeney also shows that, after the casing fell back into the well, he failed to draw the casing because the lifters or clamps he used had become blunted, and would not screw on, leaving it clearly inferable that with proper tools he could have extricated the casing even after it fell back. But defendant clearly alleges in his answer that after it fell back it was impossible to draw it, and bases his right to recover its value on this condition of things, and what was done before the rope broke. We therefore waive consideration of defendant's right in connection with the ability of appellees to draw the casing after it fell back, and base our conclusion on the fact that they could, in the first instance, have drawn the casing.

The evidence shows that 750 feet of casing, of the agreed value of 782 cents a foot, remained in the well. There is no other question properly raised here. The bill of exceptions, by which another point was sought to be raised, was not filed in time. We conclude that there is error in the judgment in reference to the 750 feet of casing, and, unless appellees remit the amount indicated above by the 27th day of June, 1896, the judgment will be reversed, and the cause remanded; otherwise reformed and affirmed.

FLY, J. (dissenting). Being unable to agree to the decision reached in this case, I

would respectfully give my grounds of dissent. On July 2, 1892, a contract was entered into between appellant and appellees whereby the latter agreed to dig an artesian well in the pasture of the former for a stipulated sum. The last clause of the contract was as follows: "That it is further agreed by and between the parties, if no water should be obtained, the party of the first part agrees to pull casing free of charge, if possible to do so." The only assignment of error to be considered is as follows: "Because the verdict of the jury is contrary to the evidence in this: that it appears that the agreed value of the 750 feet of casing remaining in said well was 782 cents per foot, and yet no credit was given, or judgment rendered therefor, although the evidence showed, or tended to show, that that degree of care and skill was not exercised in the effort to remove the said casing which were required by the terms of the contract." According to the opinion of the majority of the court, appellees, by the contract, guarantied the withdrawal of the casing from the well, and, no matter what efforts may have been put forth to draw out the casing, failure meant liability for the value of the casing. I do not believe that such construction should be put upon the contract. The reasonable construction to be placed upon the words "if possible" is that appellees should use all the means usually used in extricating the casing, and, when that was done, the terms of the contract were met. This was the construction put upon the contract by appellant in the trial court, and his effort was to show that the best means for drawing the casing from the well had not been used. The language of the assignment of error clearly indicates that appellant claims a recovery on the ground that proper effort was not made to draw the casing. The only question raised by the evidence was, did appellees exercise proper care in the attempt to draw the casing? This was purely a question of fact, which was resolved by the jury in favor of appellees. I do not think the verdict should be disturbed.

SUMMERS et al. v. SHEERN et al. (Court of Civil Appeals of Texas. Sept. 30, 1896.)

DEEDS

ACKNOWLEDGMENT-PRESUMPTION-FRAUD

AND DURESS SUBSEQUENT GRANTEE-NOTICE. 1. The certificate of an officer to the separate acknowledgment of a wife to a deed of conveyance is conclusive of the facts therein stated, except in cases of fraud, mistake, or imposi tion.

2. A subsequent grantee will not be affected by fraud, mistake, or imposition attending the procurement of his grantor's title, unless he participated therein or had notice thereof.

3. The possession of premises by the original grantor does not operate as notice to a subsequent grantee of fraud or duress attending the procurement of his own grantor's title.

Error from district court, Bexar county; Robert B. Green, Judge.

Suit by Joseph Sheern against Lizzie Summers and others to foreclose a mortgage. From a judgment in favor of plaintiff, defendant Liz zie Summers and another defendant bring error. Affirmed.

James Raley, for plaintiffs in error. P. Shields and Upson, Bergstrom & Newton, for defendants in error.

NEILL, J. This suit was brought by Joseph Sheern against Lizzie Summers to foreclose a deed of trust made on the 30th of December, 1892, by one Charles A. Hunter upon lot No. 9 in block No. 1 of D. & A. Oppenheimer's subdivision of original city lot No. 3, range 3, district 1, in San Antonio, Bexar county, Tex., to secure defendant in error in the payment of a promissory note executed to him on the same day by Hunter for $700, payable 12 months after date, with interest at the rate of 10 per cent. per annum, and an attorney's fee of 10 per cent. in the event of judicial proceedings for the collection of the note. The San Antonio Brewing Association, a corporation who had a subsequent deed of trust made by Hunter on the property to secure a note made by him to the association, was also made a party defendant. It was alleged Hunter, on the 17th day of November, 1893, parted with his entire interest in the property by conveying it by warranty deed to Lizzie Summers. The plaintiff in error, Lizzie Summers, filed an answer admitting the execution of the plaintiff's note and deed of trust by Charles A. Hunter, but alleged as a defense "that at the time of the execution thereof Hunter had no interest in said property, but that at that very time said property was the homestead of herself and her husband, George Summers; that George Summers conceived the wicked purpose of permanently abandoning her, and conspired with said Charles A. Hunter to cheat and defraud her out of her home; that in pursuance of said design her said husband compelled her to sign a deed to said house and lots, her homestead as aforesaid, to said Charles A. Hunter, without consideration; that George Summers threatened to take her life if she did not sign and acknowledge said deed, and so terrified and frightened her as to overcome her free will, and in that condition of duress and being so overpowered she did sign and acknowledge said deed; that her husband afterwards abandoned her and his family, consisting of five little children, who are residing in said homestead; that she is informed and believes that, in accordance with said conspiracy, Hunter did execute the note and deed of trust sued on; that afterwards said Hunter conveyed said property to her, and it is now, as it was when the deed of trust was executed, her homestead. Wherefore she says the deed of trust is void and of no effect." The defendant in error, Joseph Sheern, excepted to her answer upon the ground it did not aver that he was a party to

or had knowledge of the alleged conspiracy or fraud on the part of Hunter and Summers, if any such existed. This exception was sustained, and, plaintiff in error declining to amend her answer, the cause was tried, and a decree rendered foreclosing the deeds of trust made on the property to secure the debts of Hunter to defendants in error, Joseph Sheern and the San Antonio Brewing Association. From this judgment the writ of error is prosecuted.

The only error assigned is the action of the court in sustaining the exception to plaintiff in error's answer. We do not believe there is any merit in this assignment. The certificate of the officer to the separate acknowledgment of a wife to a deed of conveyance is conclusive of the facts therein stated, except in cases of fraud, mistake, or imposition. Nor will the rights of a third party be affected by such fraud, mistake, or imposition, unless he participated therein or had notice thereof. Kocour ek v. Marak, 54 Tex. 205; Gray v. Shelby, 83 Tex. 407, 18 S. W. 809. Nor did the possession of the premises by plaintiff in error operate as notice of the fraud and duress alleged in her answer, for the presumption is that she held in subordination to the deed she and her husband had made to Hunter. We do not think the case of Stallings v. Hullum (Tex. Sup.) 35 S. W. 2, relied on by plaintiff in error, is applicable to the question presented in this The judgment of the district court is

case. affirmed.

CONVERSE et al. v. DAVIS et al. 1 (Court of Civil Appeals of Texas. Sept. 30, 1896.)

DEBT

TRUST DEED APPOINTMENT OF TRUSTEE BARRED BY LIMITATIONS-EQUITABLE Relief. 1. Where the trustee has been enjoined from selling mortgaged property under a trust deed, and the beneficiaries of the trust choose voluntarily to appear in the suit and ask for a judg ment for their debt and foreclosure of the lien, and on a plea of limitations judgment is rendered against them, such judgment precludes them from any further relief in connection with their debts in the courts of the state.

2. A trustee will not be appointed under a trust deed to sell land to collect a debt which the petition of the beneficiaries asking the appointment shows to be barred by limitations.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Suit by James Converse and T. W. Pierce against William Davis and others for the appointment of a trustee to sell lands to collect a debt under a trust deed. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Upson & Bergstrom and Geo. C. Altgelt, for appellants. Wm. Aubrey, for appellees.

FLY, J. On March 3, 1896, appellants, James Converse and T. W. Pierce, instituted suit against William Davis, William D. Da vis, Edward Davis. James R. Davis, and Susie Davis, alleging that appellants were 1 Application for writ of error pending.

the executors of the estate of T. W. Pierce, deceased; that on February 17, 1883, William Davis made, executed, and delivered to T. W. Pierce, deceased, six promissory notes, each for the sum of $600 and payable, respectively, in 6, 12, 18, 24, 30, and 36 months after date; and to secure the same said Davis executed a deed of trust on a certain lot in the city of San Antonio, one Henry B. Andrews being trustee, who was given the usual powers granted to trustees in such instruments. It was alleged that Davis made default in the payment of the notes, and that on the 6th day of July, 1886, after the notes were all mature, the trustee proceeded under the terms of the trust deed to advertise the land for sale, but that William Davis, for himself and his then minor children, W. D. Davis, Edward Davis, and James R. Davis, filed a petition in the district court of Bexar county alleging that the lot in question and the improvements thereon was the homestead of himself and said minor children, that Pierce was dead, that the notes had been paid, and praying that the representatives of Pierce be required to render a full account of all sums received from William Davis, and that a sale under the deed of trust be enjoined; that the injunction was granted on July 9, 1886, and served upon the trustee. The petition then proceeded as follows:

"Petitioners further show: That none of the executors or representatives of the estate of the said T. W. Pierce were ever cited to appear or answer in said suit, but on April 11, 1893, by leave of the court wherein said suit was pending, the executors of the estate of said T. W. Pierce voluntarily appeared and answered therein, by stating the accounts between their decedent's estate and the said plaintiff in that suit, William Davis, showing that said Davis was indebted to said Pierce's estate in the full amount of said six notes, less the following, indorsed on the first of said notes, to which he was entitled, viz. $50 paid October 8, 1883, $100 paid November 5, 1883, $286.97 paid October 14, 1884,-amounting in all to $436.97,-and averring that said six promissory notes were given for money loaned by said T. W. Pierce in his lifetime to, and used by, said William Davis to purchase and improve the premises described in said deed of trust, given to secure the payment thereof, when said Davis was an unmarried man, and denying that said premises ever became the homestead of plaintiffs in said suit, and praying a dissolution of the injunction and judgment against said William Davis for the full amount of said notes less the admitted credits aforesaid, and that the same be adjudged to be a lien on the premises in question, and that the same be decreed to be sold as under execution to satisfy the judgment, and for general and special relief. That on February 12, 1894, the plaintiff, William Davis, in the suit above referred to, virtually abandoned

his plea of homestead as a ground for said injunction, and relied solely upon the plea of the statute of limitations of four years as having applied to the notes referred to in the deed of trust, before the said answer of the executors of the estate of T. W. Pierce was filed, and prayed judgment declaring that the premises described in plaintiff's petition be free and discharged of any and all liens or incumbrances by reason of said indebtedness. That on February 12, 1894, the cause was tried by the district court, and judgment rendered, dissolving said injunction, for $5,678, in favor of the estate of T. W. Pierce, and against the said plaintiff, William Davis, and declaring the same to be a lien upon the aforesaid premises, and decreeing a foreclosure thereof, and a sale of said premises to satisfy said judgment. That said judgment was in all things affirmed by the court of civil appeals [27 S. W. 1033], to which court a writ of error was obtained from the supreme court of the state by said William Davis, and upon a hearing thereof upon the 28th day of October, 1895, said cause was finally determined in said supreme court [30 S. W. 432], by setting aside the judgment of the court of civil appeals and of the trial court, and by rendering judgment dissolving said injunction, and decreeing that the said executors recover of the said William Davis no personal judgment or foreclosure of lien, without adjudicating the existence of the debt or validity of the lien, leaving them free to enforce whatever rights they may have under the deed of trust. Petitioners do further show that said injunc tion remained in force until the 28th day of October, 1895, and that on said day the supreme court of Texas, to which said suit had been removed by writ of error, rendered its final judgment in said cause, refusing a rehearing thereof [32 S. W. 513], but left petitioners and said Andrews free to enforce whatever rights they might have under said deed of trust. Petitioners do further show that said Henry B. Andrews, the trustee named in said deed of trust, departed this life on April 14, 1885, leaving a lawful will mination of said suit or the mandate could lawfully issue from said supreme court, leaving said trust unexecuted; that the beneficiary in said deed of trust, Thomas W. Pierce, departed this life on or about the 24 day of October, 1895, leaving a lawful will whereof he appointed petitioners and Andrew Pierce, Richard S. Spofford, and Charles Babbidge the executors, and that said will was admitted to probate in Harris county, Texas, by the judgment of said county court of said Harris county, Texas, and that letters testamentary were adjudged to said executors; that petitioners have duly qualified as such executors, and are now the sole surviving executors of the last will and testament of said Thomas W. Pierce, deceased, and herewith bring into court their said letters testamentary; that the other executors

named in said will have either resigned or died, and are no longer acting, or authorized to act, as such executors. Your petitioners do further show that the debt represented by said promissory notes still remains due and unpaid, and the said deed unexecuted; that said deed of trust contains no power or authority to appoint a new trustee in the place or stead of said Henry B. Andrews, now deceased, other than the power conferred as aforesaid upon said Thomas W. Pierce, but that such power does not exist in favor of petitioners or any other person or persons; and that said trust will fail for the want of a trustee unless petitioners be granted the relief hereinafter prayed for. Your petitioners do further show that defendants William D. Davis, Edward Davis, James R. Davis, and Susie Davis claim an interest in said premises under their co-defendant William Davis, but that their rights are subordinate to those of your petitioners' testator, and that their interests accrued since those of Thomas W. Pierce, your petitioners' testator, and with notice of said deed of trust. Forasmuch, therefore, as your petitioners are without remedy in the premises, except in a court of equity, and to the end that said trust may not fail, but that said deed of trust may be executed according to its terms, petitioners pray that all of the defendants herein be cited to appear and answer, according to law; that upon a due hearing hereof this court by its decree appoint some suitable person or substitute to act as trustee under said deed of trust, and confer upon him all the powers, including the power to sell said premises, granted to said Henry B. Andrews by, and in accordance with the terms of said deed of trust; and judgment against defendants for all costs of suit, and for such other and further relief, general and special, as may be just and equitable in the premises." The petition was excepted to on the following grounds: "(2) *

*

**

That it appears therefrom that no suit upon the cause of action therein declared upon has been commenced or prosecuted within four years after the accrual of such cause of action, and such cause of action is barred by the statute of limitation of four years. (3) * * That it appears therefrom that the notes therein described were due, and the cause of action, if any ever existed thereupon, accrued more than four years before the institution of this suit, and the cause of action upon said notes, if any such ever existed, was and is barred by the statute of limitations of four years. (4)** * That it appears therefrom that plaintiffs' claim herein is stale, and that plaintiffs and those under whom they claim have been guilty of such laches as to debar them from any resort to a court of equity for the relief therein sought. (5) That it appears therefrom that the matters and things in controversy in this suit were

fully considered by the supreme court of this state, and determined adversely to plaintiffs and those under whom they claim, in the certain suit between William Davis et al. and Henry B. Andrews et al., in said pleading referred to."

The exceptions were sustained, and, appellants not desiring to amend, judgment was rendered for appellees.

The beneficiary in a deed of trust, in Texas, has two avenues open to him through which to enforce a sale of the mortgaged property, namely, by a suit for his debt and foreclosure of his lien, or through the me dium of the trustee. The pleadings in this case show that appellants attempted to avail themselves of a sale of the mortgaged property through the trustee, but were prevented from exercising that mode by a writ of injunction. While the suit for injunction was pending the beneficiaries in the trust chose voluntarily to appear in the suit and ask for a judgment for their debt and foreclosure of their lien. A plea of limitations was interposed by the maker of the notes and trust deed, which the supreme court has held was well grounded, and that court reversed the judgments of this and the district courts which had foreclosed the mortgage lien against the property. Davis v. Andrews, 88 Tex. 524, 30 S. W. 432, and 32 S. W. 513. Without committing ourselves to the doctrine of that case as enunciated by the supreme court we are of the opinion that it has fully adjudicated the right of appellants in connection with the matters at issue. Whether, after the beneficiaries had gone into court, and asked for a foreclosure of the lien, and judgment had been rendered against them, the trustee could still proceed to sell under the terms of the deed of trust, as seems to be intimated by the supreme court, we do not feel calied upon to say; but we are of the opinion that the judgment of the supreme court precludes them from any further relief in connection with their debt in the courts of this state. Relief has been denied the beneficiaries by the supreme court, and they cannot come into court and have a readjudication of the matter. Following the decision in the Davis-Andrews Case above cited, we must hold that the pleadings of appellants show that the debt which the trust deed was given to secure was barred by limitation. Appellees set this up by exception. Appellants, therefore, not only have attempted to have readjudicated a matter decided against them, but are attempting to accomplish in an indirect way, through a court, that which could not in a direct proceeding be attained. Had the beneficiaries never appeared in the first suit, we are of the opinion that they would not be in a position to ask that a trustee be appointed to sell land to collect a debt which their pleadings show is barred by limitation. In Fuller v. Oneal, 82 Tex. 417, 18 S. W. 481, it is said: "Before appointing a trustee with