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a valid administration, and could success Appeal from District Court, Harris Counfully defy every collateral attack. McCarthy ty; J. D. Harvey, Judge. v. Texas Co., supra.

Action by A. S. Leecraft against Andrew [4] Independent of the existence of com- Dow. From a judgment for plaintiff, demunity debts, the surviving spouse has the fendant appeals. Affirmed. right to sell the community property, though it be community homestead, if such course

Fulbright & Crooker, of Houston, for apwere in the best interest of the estate. pellant. Morse v. Nibbs (Tex. Civ. App.) 150 S. W.

E. T. Chew, of Houston, for appellee. 766.

[5] The survivor who qualifies under this LANE, J. Appellee, A. S. Leecraft, filed law possesses the power and the authority this suit against appellant, Andrew Dow, to to sell and pass a good title to the com recover judgment for the sum of $2,000, almunity homestead, whether it be an insol- leged to be due him for his service as a real vent estate or not. Johnson v. Taylor, 43 estate broker, in procuring a purchaser for Tex. 122; Dawson v. Holt, 44 Tex. 174; certain real property belonging to appellant. Cordier v. Cage, 44 Tex. 535; Watkins v. The plaintiff alleged that the defendant, AnHall, 57 Tex. 1; Shannon v. Gray, 59 Tex. drew Dow, did place and list with him lots 252; Morgan v. Lomas (Tex. Civ. App.) 159 S. 9 and 10 and the adjoining 50 by 100 feet of W. 869; Green v. Windham (Tex. Civ. App.) lot 11 in block

south side of Buffalo 230 S. W. 726.

Bayou, in the city of Houston, Harris coun[6] The appellants secured no rights to ty, Tex., for sale at a price of $65,000, he, subject this property to its alleged debt and Andrew Dow to retain the house then situlien, for it was the homestead of August ated thereon; that is, defendant agreed with Liebe and his family all the time"once a him to take the sum of $65,000 for said homestead, always a homestead"-until its property, the defendant to have the right to character is lost as such by abandonment or move the house off of the same; that the the acquisition of a new one. It was not terms of payment of the purchase price changed by such administration and the sale agreed upon were that the purchaser was to thereunder, and appellants thereby were pay $10,833.33 cash, and the balance in 15 placed in no worse condition or fix than they equal annual payments; that, for his service were before such administration.

in making such sale, defendant agreed to On a careful consideration of this case, and pay him a commission of 5 per cent. on the after reading all the authorities cited by first $15,000 of such purchase price and 244 both parties, we are convinced no reversible per cent. on the remaining $50,000 thereof; error is assigned, and the judgment accord that thereafter he sold the property, upon ingly is affirmed.

the terms agreed upon between himself and defendant, to the Southern Motors Manufacturing Association, who was ready, able,

and willing to purchase said property at the price and upon the terms agreed upon as

above stated; and that defendant refused to DOW v. LEECRAFT. (No. 8293.)

make such sale, and thereby breached his (Court of Civil Appeals of Texas. Galveston. contract with plaintiff. Wherefore he prays Feb. 1, 1923.)

for his commission in the sum of $2,000.

The defendant answered by general de1. Joint-stock companies and business trusts www 19–Evidence held to establish authority murrer and by general denial. The case was in representative of association to purchase submitted to a jury upon three special island, so as to entitle broker to commission. sues, as follows:

Evidence held sufficient to establish that "Special Issue No. 1. Did defendant, Andrew representatives of an unincorporated joint-stock Dow, engage plaintiff, A. S. eecraft, to proassociation were authorized to bind the associ cure for him (defendant) a purchaser of the ation in the purchase of property for which property described in plaintiff's petition (exthey had been negotiating, so as to entitle acepting the house thereon) for the sum of real estate broker to his commission for selling $65,000 upon terms of $10.833.33 cash and the the property.

balance to be paid by the purchaser in fifteen

equal annual installments, as alleged in plain2. Evidence Caw 158(27) -Exclusion of evidence tiff's petition?

of provisions of declaration of trust held not "Answer 'Yes' or 'No' as you find the facts error, where declaration was obtainable and to be. not produced.

"If you answer the foregoing question 'No,' Exclusion of testimony as to the provisions then you need not answer any of the following: of a declaration of trust under which a motor but, if you answer it ‘Yes,' then answer the folcompany had been created held not error, where lowing: the declaration of trust itself, which was best "Special Issue No. 2. Did defendant promise evidence, was shown to have been obtainable to pay plaintiff for procuring such purchaser a and was not produced.

commission of 5 per cent. of the first $15,000

(248 S.W.) of the purchase price and 214 per cent. of Conceding, as contended' by appellant, that the remainder thereof?

neither the active vice president, the active “Answer 'Yes' or 'No,' as you find the fact first assistant vice president, and the secreto be.

“If you have answered the two foregoing tary and treasurer of this association, who questions 'Yes,' and only in that event, then was also one of the trustees, nor any one of answer the following:

them, could, without authority of the board “Special Issue No. 3. Did plaintiff, in pur- of trustees, make a binding contract for the suance of such engagement, produce to defend purchase of appellant's property by the asant a purchaser who was ready, able, and will-sociation, we are still unable to sustain aping to purchase said property on said terms?

pellant's contention upon that ground, or to *Answer 'Yes' or 'No, as you find the fact seriously consider the same as any reason to be."

for a reversal of the judgment in favor of All three issues were answered in the af- appellee, in that it was shown that appelfirmative, and judgment was thereupon ren- lant was fully advised that the negotiations dered for the plaintiff for the sum of $2,000. for the sale of his property to the associa

[1] That appellant, Dow, engaged appellee, tion were between appellee and the persons Leecraft, to procure for him a purchaser of named as the representatives of said associahis property for the sum of $65,000, upon tion; that he knew that they were negotiatterms of $10,833.33 cash and the balance to be ing as such representatives, and not withpaid by the purchaser in 15 annual install- standing such knowledge he made no objecments, and that he promised to pay appellee tion to carrying out his contract of sale of a commission of 5 per cent. on the first $15,- his property upon the grounds that such 000 of the purchase price and 212 per cent. on representatives could not bind the associathe balance thereof, should he procure such tion, but, on the contrary, it was shown by purchaser, as found by the jury, is not con- ample evidence that his refusal to go fortroverted on this appeal; that is, it is not in-ward with his contract was based solely sisted by appellant that there was not ample upon the ground that he wanted $75,000 for evidence to support the findings of the jury his property, instead of $65,000 offered thereto that effect, nor does the appellant question for by the association. the ability of the Southern Motors Manu However, for a much stronger reason, we facturing Association, the proposed pur- refuse to sustain appellant's contention. chaser, to pay for appellant's property upon There was, we think, sufficient evidence to the terms stated by appellee; but he does support a finding that the trustees of the contend that there was no evidence to show association had authorized the purchase of that said association was either ready or the property. While there is much evidence willing to purchase appellant's property at of facts and circumstances tending to show the price and upon the terms proposed, in the authority of the negotiating representathat said association was a trust estate or tives of the association to contract for the

unincorporated joint-stock association, | purchase of appellant's property for the asmanaged by and under control of five trus-sociation, we shall specifically refer to the tees, and therefore the willingness of the testimony of C. E. Shively only. This witassociation to purchase appellant's property ness testified that he was secretary and could be shown only by showing that the treasurer and one of the trustees of the astrustees had passed a resolution authorizing sociation; that he issued the certified check such purchase, and that, as no such show- in behalf of the association, for the sum of ing has been made, the court erred in sub- $10,833.33, which was tendered to appellant mitting special issue No. 3 to the jury, and as first payment on said property in accordthat the answer of the jury to such special ance with the contract of sale; that Mr. issue is unsupported by the evidence. McGrath, active first assistant to the active

He contends that plaintiff made no show- vice president, was given authority to repreing that he dealt with any one who was au- sent the association in the purchase of said thorized to bind the association; that it is property by Mr. Reid, active vice-president of shown that the only persons he dealt with the association; that he (Shively) passed on purporting to represent the association were the proposed purchase and issued the check J. F. McGrath, sales manager and active as-tendered to appellant for the purpose of sistant to the active vice president of said binding the deal after the agreement to purassociation, and C. E. Shively, secretary and chase had been entered into; that he had a treasurer, and who was also one of the five copy of the declaration of “trust" in his oftrustees of the association, and that it was fice, and that Mr. M. J. Cain, secretary of not shown that either of these persons were the Association, had the minutes covering the authorized to make a contract for the pur- proposed purchase of appellant's property, at chase of appellant's property which would his office in the Beaty Building in the city bind said' association, and that the acts of of Houston, and that such minutes could be said persons were no proof that the as- obtained by the issuance of a subpæna duces sociation was ready or willing to purchase tecum for M. J. Cain. said property.

[2] We overrule appellant's assignment 248 S.W.-69

an

complaining of the refusal of the court to be authorized to render judgment in plaintiff's permit appellant to give his testimony as favor upon the excluded evidence, but where to his knowledge of the provisions of the the erroneously excluded evidence is a deed declaration of trust under which the South- showing title in plaintiff

, is párt of the record, ern Motors Company was created, as to what and there is nothing to indicate that the case powers were thereby conferred upon or with was not fully developed upon all of its issues,

there is no necessity for remanding the case held from any one of the trustees or any of- for retrial. ficer of said concern. The declaration of trust was the best evidence of its provisions, Appeal fom District Court, Harris County ; and it was shown that it could have been ob- J. D. Harvey, Judge. tained by appellant. It is apparent that the testimony sought was purely hearsay and not Judgment for defendant, and plaintiff ap

Action by Will Starks against T. F. Loftus. admissible.

peals. Judgment reversed, and rendered for We have examined and considered the re

plaintiff. maining assignments of appellant, and we overrule the same without further discus Harry Holmes, of Houston, for appellant. sion. Having reached the conclusions above Louis, Campbell & Nicholson and W. A. expressed, the judgment is affirmed.

Combs, all of Houston, for appellee. Affirmed.

PLEASANTS, C. J. This is an action of trespass to try title. The suit was originally brought by Daisy Starks, joined by the ap

pellant, who was her husband, against the apSTARKS v. LOFTUS. (No. 8222.) pellee. Pending the trial in the court below, (Court of Civil Appeals of Texas. Galveston. Daisy Starks died, and appellant, who inherNov. 24, 1922. Rehearing Denied ited her title, by an amended petition, beMarch 8, 1923.)

came the sole plaintiff.

The land sued for is described as follows: 1. Alteration of instruments Com 12, 29-Evi

dence held sufficient to show alterations in “Six acres of land out of a certain thirtydeed made with consent of grantor, and did one (31) acres of land out of the P. W. Rose not affect validity.

grant, known as the Noble Grant tract, in HarEvidence in an action of trespass to try ris county, Texas, described as follows: Betitle held sufficient to show that alterations of ginning at an inner or L corner of the Margaret spelling of grantee's name in deed, made by a

Jones tract out of said Noble Grant tract of notary acting for grantee, were made with 31 acres, being also the southwest corner of the knowledge and consent of the grantor, and the tract of land herein described; thence east could not affect the validity of the deed, not- 304 feet along a fence to corner; thence north withstanding the alterations may have been along the fence 644 feet to corner; thence made after the deed was signed, acknowledged, west 394 feet to corner in the east fence of and delivered by grantor.

Johnson tract; thence south along fence 664

feet to the place of beginning, containing six 2. Alteration of instruments Own 2-Whether acres of land. Described in the deed from

alteration in instrument will void it depends Lucindy Grant to Daisy G. Starks, recorded in upon materiality of change.

Volume 316, p. 361, of the Deed Records of The effect of any alleged change in an in- Harris county, Texas.” strument depends first upon the character of the change, whether material or immaterial;

The amended petition, after describing the any alteration which changes the legal identity land as above set out and specially pleading or character of the instrument is a material title by limitation of three, five, and ten change, which will invalidate the instrument years, contains the following allegations: against parties not consenting to it.

"Plaintiff would further show: 3. Alteration of instruments Omw 17-A rule "That on or about October 20, 1913, Lucinda

that material alteration voids instrument Grant executed and delivered to Daisy G. Starks should not defeat title honestly acquired, a certain deed of conveyance, the description of

The purpose of the rule that a material which reads as follows: All of that certain change in an instrument, without the consent tract or parcel of land known as a part of the of the parties thereto, will invalidate the in- P. W. Rose league in Harris county, Texas, said strument, is to prevent fraud, but the rule | land herein conveyed being six (6) acres out of should not be invoked to defeat a title honestly 31 acres conveyed to Noble Grant (now deceasand fairly acquired, and free from any suspi-ed) by Brady, Sr., for himself and as guardian cion of fraud.

for Brady, Jr., said deed recorded in Book 26,

p. 220, Records of Harris county, Texas, and 4. Appeal and error ww1177 (5)- Judgment may be rendered on appeal on evidence im- ning at a double elm tree standing on an island

more fully described as follows, to wit: Begin. properly excluded.

in Brays bayou on the west line of Eggerts Ordinarily, when a plaintiff's right to re- fifty acres north 37 varas to a stake from cover depends on wrongfully excluded evidence, which a pin oak marked bears west 10 varas upon a reversal of the judgment against him and another pin oak marked B, facing corner; by the appellate court, the latter would not I thence west 225 varas to a stake on the south

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(248 S.W.) side of Brays bayou; thence south 775 varas hearing hereof, that same be made permanent, to a stake on the south line of the Rose league; as in duty bound will ever pray." thence east 225 varas along said line to a stake; thence north 775 varas to Brays bayou or the

The defendant's answer contains a general place of beginning, the six acres herein con- demurrer, a general denial, and plea of not veyed to be located in the above-named 31 guilty, and the following special plea, which acres wherever Daisy G. Starks may choose.

was sworn to by the defendant:
"That thereupon the said Daisy G. Starks
and this plaintiff, her then husband, in accord-

"Further answer, if necessary, this defendance with the provisions of said deed, did ant denies that the plaintiff, Daisy G, Starks, choose and elect to take and did take the six has a valid deed from Lucindy Grant for the acres of land first herein described out of said six (6) acres described in plaintiff's petition, tract described in said deed and did have the but says that he is informed, and upon such same surveyed and laid out upon the ground, information believes and alleges the fact to inclosed the same by fence and took actual pos- be, that the deed from Lucindy Grant to said session thereof, and since said time have been plaintiff, which is recorded in volume 316, p. in the actual possession thereof, cultivating, 361, of the Deed Records of Harris county, using, and enjoying the same as their own, un

Texas, and is referred to in plaintiff's petition, der and by virtue of said deed, the said Daisy

was not signed by the said Lucindy Grant, or G. Starks and this plaintiff have improved and by or with her authority, and that the purconstructed valuable improvements thereon.

ported signature of the said Lucindy Grant "That by virtue of said election and appro- thereto was and is a forgery." priation of said property by said Daisy G. Starks and this plaintiff, the effect of said

He also pleaded title to the land in contro deed was to convey to Daisy G, Starks the six versy and prayed for judgment against the acres aforesaid."

plaintiff for the title and possession thereof.

The trial in the court below without a jury These allegations are followed by allega- resulted in a judgment in favor of defendant tions charging defendant with unlawful entry for the title and possession of the land. upon plaintiff's premises, with tearing down Lucindy Grant is the common source of tiand destroying the fences, and otherwise in- tle. Appellee claims under a conveyance juring the property, and by prayer for tem- from the devisees of Lucindy Gịant, deceasporary injunction restraining defendant, dur- ed, whose will was duly probated by the ing the pendency of the suit, from a continu- county court of Harris county. By the terms ance of the wrongful acts charged against of the will the tract of 31 acres of land, of him

which the land in controversy is a part, was "and that upon final hearing hereof that plain- devised to the grantors of appellee. tiff have judgment for title to and possession Upon the trial, appellant offered in eviof said premises, for his damages, writ of dence the original deed from Lucindy Grant possession, costs of court, and such other and to Daisy Starks referred to in his petition. further relief, general and special, to which Appellee objected to its introduction, on the he may show himself entitled. But in the al. ground that “both the appearance of the deed ternative, in case the court should find that plaintiff is mistaken as to the effect of said and the testimony offered by plaintiff showed deed, or that same does not convey to plain that the deed had been altered in material tiffs the six acres of land hereinbefore men respects after its execution, and because tioned, or that plaintiff has not elected to take there was no pleading on the part of plaintifr said six acres under said deed, then in that justifying the admission of said deed, and beevent plaintiff alleges that he is the owner of cause the same was irrelevant and immateran undivided six acres interest in and to the ial for any purpose and was prejudicial," tract of land described in said deed, and in which objection was overruled by the court this connection plaintiff alleges that defendant claims to own the balance of said tract, and, and the deed admitted in evidence. so far as plaintiff is informed and believes, de

[1] After hearing the evidence introduced fendant is the owner thereof, and plaintiffs by both parties, the court, on motion of the pray that, upon a trial hereof, if the court appellee, excluded the deed from evidence and should find that the effect of said deed is to reudered judgment as before stated. At the convey to Daisy G. Starks only an undivided request of appellant. the trial judge filed consix acres interest in and to said tract of land, clusions of fact and law, which contain the then plaintiff prays that he may have judgment

following: for partition of said land and premises; that commissioners be appoirted and writ of par “The plaintiff, Will Starks, claims under an tition issue and for possession of that portion alleged deed from Lucindy Grant to Daisy G. which by the judgment of the court may be as- Starks, dated and acknowledged October 20, certained and declared the property of plain- 1913, and filed for record November 18, 1913, tiff, for writ of possession. costs of court and the said Daisy G. Starks during the pendency such other and further relief, special and gen- of this suit, having died intestate, leaving a eral, in law and in equity, to which he may son as her only heir at law, and the plaintiff, show bimself justly entitled. The court hav- Will Starks, who was the husband of said Daisy ing heretofore granted a writ of injunction G. Starks, having acquired his right, title, claim herein on February 1, 1918. plaintiff ppars that and interest by deed. The original deed claimthe same be continued in full force and effected under by the plaintiff was offered in eviduring the pendency of this suit and, upon final dence and upon its face reads as follows:

“ 'Know all men by these presents: That I, 1 tained therein was the word "Grant and the Lucindy Grant (feme sole), of Harris county, words '(feme sole),' after the word 'Grant,' were Texas, for and in consideration of the sum of inserted therein by the said Crow, as aforeten ($10.00) and for love and affection) dol- said, after the execution and delivery of said lars to me in hand paid by Daisie G. Starks, deed, as was also the language (and love and have granted, sold and conveyed, and by these affection)' in the portion of the deed reciting presents do grant, sell and convey, unto the the consideration, and also the language the said Daisy Starks all of that ertai trac or six acres herein conveyed to located in the parcel of land, known as a part of the W. P. above named 31 acres wherever Daisy G. Rose league in Harris county, Texas, said Starks may choose,' making up the final por: land herein conveyed being six (6) acres out tion of the description of the land as contained of 31 acres conveyed to Noble Grant (now de- in the deed offered. ceased) by Brady, Sr., for himself and as "I find that the deed as executed, acknowlguardian for Brady, Jr., said deed recorded in edged, and delivered by Lucindy Grant described Book 26, page 220, described as follows, to the name of the person paying the considerawit: Beginning at a double elm tree standing tion as 'Daisy Starr' and that after the execuon an island in Brays bayou, on the W. line tion, acknowledgment, and delivery thereof the of Eggerts fifty acres, N. 37 yrs. to a stake initial 'G' was inserted between the given name from which a pin oak marked B. facing cor.; and the surname, and the last 'R' in the surthence W. 225 yrs. to a stake on the south name changed to 'K' and an 'S' added thereto, side of Brays bayou; thence south 775 yrs. to and that in the habendum clause and the wara stake on the south line of the Rose league; ranty clause, the deed as executed and delivthence east 225 yrs. along said line to a stake; ered had the name of the grantee as 'Daisy thence north 775 vrs. to Brays bayou, or the Starr,' and that the same in each location was, place of beginning.

after the execution, acknowledgment, and de" "The six acres herein conveyed to be located livery thereof changed by the said Crow, makin the above named 31 acres wherever Daisy G. ing the letter 'Y' out of the letters 'ie' in the Starks may choose.

given name, and changing the last 'r' in the " "To have and to hold the above-described surname to 'K' and adding an 's' thereto. I premises, together with all and singular the find that said deed was written with ink into rights and appurtenances thereto in anywise an ordinary printed form of a warranty deed, belonging unto the said Daisy Starks her heirs and that the changes and additions above statand assigns forever. And I do hereby bind ed were all made with the same ink at the same myself, my heirs, executors and administra- time, and with different ink from that used in tors, to warrant and forever defend, all and the original draft of said deed, and at a differsingular the said premises unto the said Daisy ent time. Starks, her heirs and assigns against every per "I find that, at the time of, and in the exeson whomsoever lawfully claiming or to claim cution of, said original instrument as originally the same or any part thereof.

drafted, the said Lucindy Grant intended to 'Witness my hand at home this 20th day convey to Daisy Starks an undivided interest of October, 1913.

of 6 acres in and to the tract of 31 acres of

land particularly described by metes and bounds “ 'Lucindy X Grant. in said deed, without the right to select said mark

6 acres; and I also find, from the evidence 'Signed and delivered in the presence of offered at this trial, that at the time of the exe

cution thereof she was mentally capable of exe

cuting said deed and understanding the nature "Attached to the deed appeared the certific and effect thereof; and that after executing cate of acknowledgment of F. P. Crow, notary said deed she at once delivered it to said Crow public for Harris county, Tex., dated October as the recognized agent of Daisy Starks. 20, 1913.

"I find that Daisy Starks, claiming under "I find, from the testimony and the appear- said deed, chose and elected to take, and desigance of the deed itself, that the portions of the nated the 6 acres of land particularly described deed above underscored were inserted or al- in paragraph 4 of plaintiff's first amended origtered after the deed had been signed, acknowl- inal petition.” edged, and delivered by Lucindy Grant; and that said insertions and alterations were made Appellant's assignments of error and the by the said F. P. Crow, acting as the author- propositions thereunder challenge each and ized agent of Daisy Starks and her husband, all of the material fact findings upon which Will Starks, and with their knowledge, acqui- the trial court's ruling excluding from evi. escence, and consent, and without the knowl- dence the deed from Lucindy Grant to Daisy edge, authority, consent, or acquiescence of Lucindy Grant, and that she did not afterwards Starks is based, on the ground that they are know of such changes in the deed, and did not not supported by any evidence. After a careratify and adopt the same. I further find that ful examination of the record, we feel consaid changes were made in the deed subse- strained to agree with appellant that there is quent to the day upon which the same was ac no evidence to sustain the finding that the tually executed and delivered, and prior to the deed was materially altered after its executime when the same was filed for record by the tion and delivery by Lucindy Grant and withsaid Crow, as the agent and upon the request

out her consent. of the said Daisy Starks and husband. "I find that, at the time the deed was signed,

The original deed has been sent up with the acknowledged, and delivered by Lucindy Grant, record and alterations appearing on its face

her

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