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(248 S.W.) ing of the name Daisie to Daisy. This alter-| take in the name, putting the name "Daisie ation is apparent in three instances where the Starr" instead of Starks.' I will say that is name appears in the deed, once in the con- ftrue. I also testified: "The deed appears to veying, habendum, and warranty clauses of have been changed from "Starr” to “Starks.” the deed, respectively. In the clause of the This change was made by me. I would say I

gave that testimony at the former trial if I deed reciting the payment of the considera- had the deed exhibited to me upon the witness tion, the letter G appears to have been insert- stand. I think it is possible that I may have ed between the name Daisie and Starks after testified: And I am quite sure that I did it they were written. The name Starks, wher- after I got back to my office, after the deed ever it appears in the deed, appears to have had been signed. I think it quite possible that first been written “Starr' and the last "p" I may have done that, but I don't now recall changed to a “k” and the letter “g" added. definitely the facts about it.' Possibly I testi

fied: These are the only alterations appearing up was all right when I put my certificate of ac

'In reading over the deed to see if it on the face of the deed. There is absolutely knowledgment on it, I noticed the error in the nothing on the face of the deed to indicate name, and, as it was all my work, I changed it.' that the clause giving the grantee the right I now say that is probably true. I would say to select the six acres of land has been chang- that I also gave this testimony at the former ed or altered in any respect, except as to the trial: 'Starks did not tell me to hold the deed change in the grantee's name before pointed off the record. I don't know why I held it off out, nor is there any indication from the writ- the record for 28 days, except that I was posing or the color of the ink that this clause sibly careless and had cther things to attend

to, I now say that is true. Considering the was not in the deed as it was originally writ- testimony you have read to me, based upon my ten.

present recollection and having it refreshed by The notary who wrote the deed and took these matters, I would say that that is probthe acknowledgment of the grantor thereto ably my testimony at the former hearing in testified, in substance, that appellant re- this case, and I will say that those facts are quested him to prepare the deed and take it now true to the best of my impression and rec

ollection." to Lucindy Grant for execution. In a day or two after he received this request he pre

He further testified (redirect examinapared the deed, took it to Lucindy Grant, tion): and obtained her signature and acknowledgment thereto. When the deed was signed and this deed was; she told me the grantee was

"Lucindy Grant told me who the grantee in acknowledged by Lucindy Grant, it was ex- Daisy, the girl that was there. I thought at actly as it is now written, unless it be for the the time when I wrote the deed that Daisy change in the grantee's name from Starr to was 'Daisie Starr,' but they told me it was Starks. He discovered that he had written Daisy Starks; it was the wife of Will Starks,

the name wrong when he read the deed to and she was there at the time. When I read • Lucindy Grant before its execution and it the deed to Lucindy Grant at her house before was then understood that it should be cor- she executed it, it read just as it reads now,

The correction was rected. He could not remember definitely except the corrections.

made with reference to the name right there; whether he made the correction at that time, that is, I mean to say, I was called to the fact before it was executed, and may have made that it wasn't 'Starr' but 'Starks.' I was init a day or two afterwards when he made his structed to make it Starks. The correction certificate of acknowledgment to the deed. was simply noted and accepted there; there After its execution and delivery by Lucindy was no specific instructious given me in regard Grant, the deed was taken by him, at appel- to it, as I know of. My impression is that the lant's request, to have it placed of record. change was made in the instrument there, but It was not filed for record until 28 days after I would not say positively about it; I know it

was understood that it was to be made, and its execution, the explanation given for this we spoke of it as being made 'Starks. That is delay being that he was so engaged in other in my handwriting. As to whether it is my business that he neglected to have it sooner | custom, or if I ever changed an instrument aftrecorded. The deed was in his possession er the maker had signed it, my understanding from the time of its execution until it was bas always been when it was understood the filed for record. The appellant paid him for change was to be made, you could then make writing the deed and taking the acknowledg- it as going that way; that is, one who acknowlment of the grantor and repaid him the re- when it was understood between all the par

edges the deed-takes the acknowledgmentcording fees.

ties there that a certain change is to be made, This witness had testified at a previous that that change could be made. My underhearing of this case on application for tem- standing is that, when all parties agree that porary injunction, about three years before a change should be made in an instrument, 'the the trial from which this appeal was taken. notary can make it afterwards, before he reOn this trial be was cross-examined on his corded the acknowledgment, or rather before previous testimony, and made the following words, it has been my idea that you can go back

he filled out the acknowledgment; in other statements:

to your office and made the change in accord"I gave this further testimony at the former ance with the instructions of the parties; I hearing: 'In drawing the deed I made a mis might be wrong about that. I made the change

in accordance with the instructions of the par- , engaging to perform it. Any alteration, there. ties."

fore, which makes it speak a language different

in effect from that which it originally spoke, Recross-examination:

destroys its identity, and its legal virtue, for “The mistake was called to my attention at it is no longer the agreement which the parthat time, and I, of course, stated to them, they ties undertook to perform. An agreement to being about as ignorant as I was along those be binding must have the assent of both the lines, that I would make the change. As to contracting parties; and, consequently, cannot whether or not anybody "authorized' me to have legal validity if altered by one party withmake the change, it is just owing to whether out the concurrence of the other. Hence, you call that authorizing or not, when they every alteration on the face of the instrument tell you that the name is wrong, and I would wbich evidences the agreement renders it sussay I would change it-there is the question, picious; and this suspicion the party claiming you can make out of what you may. That is under it, is ordinarily held bound to remove." all occurred. I got no further authority except that conversation and correction of the

Some of the many other cases discussing name there that I have just stated.”

and applying the rule are Park v. Glover,

23 Tex. 471; Bowser v. Cole, 74 Tex, 222, The findings of the trial court that Lu- 11 S. W. 1131; Collins v. Ball, 82 Tex. 269, cindy Grant intended to convey six acres out | 17 S. W. 614, 27 Am. St. Rep. 877; Bullock of the thirty-one acres to Daisy Starks, and

v. Sprowls, 93 Tex. 188, 54 S. W. 661, 47 L. that she had mental capacity to execute the R. A. 326, 77 Am. St. Rep. 849; Kalteyer v. deed, and understood the nature and effect Mitchell (Tex. Civ. App.) 110 S. W. 462. thereof, and did execute and deliver it to the

[2] In all of these cases in which the rule notary, Crow, for Daisy Starks, are fully has been applied, the alteration was ma. sustained by the evidence, and were not ex terial in that it changed the legal effect of cepted to by the appellee.

the instrument, either in its terms or the Upon this state of the record and the evi- , relation of the parties thereto, and was dence before set out, we do not think the fraudulently made without the consent of trial court was authorized to conclude that the parties. The conditions under which the there had been such material alterations in rule should be applied are thus accurately the deed after its execution as to render it stated in Cyc. vol. 2, p. 177: inadmissible in evidence. As we have before stated, the only alterations appearing change in an instrument depends, first, upon the

“As a general rule the effect of any alleged upon the face of the deed are the changes character of the change-that is, whether it in the name of the grantee, above pointed is material or immaterial. Any change in an out. The change in the spelling of the name instrument which causes it to speak a different Daisie and the insertion of the middle inic language in legal effect from that which it tial G at one place in the deed were clearly originally spoke—which changes the legal idenimmaterial alterations. If changing the tity or character of the instrument, either in name Starr to Starks, when the uncontra- its terms or the relation of the parties to it dicted evidence shows that Daisy Starks was and such a change will invalidate the instrument

-is a material change or technical alteration, the name of the person to whom the grantor against all parties not consenting to the change. intended to convey the land, and there is no Not only will an alteration vitiate the instruevidence of the existence of any person by ment as between the immediate parties, but the name of Daisy Starr, should be regard- I also as against bona fide holder or indorsee ed as a material alteration, we think the without notice, as the latter can acquire no uncontradicted evidence shows that this al- right or title other than that of the person unteration was made with the knowledge and der whom he claims." consent of the grantor and could not there

And the reason for the rule is thus stated: fore affect the validity of the deed, notwithstanding it may have been made after the “The rule that a material alteration avoids deed was signed, acknowledged, and deliver- the instrument is founded upon two reasons: ed by the grantor.

First (and what is said to be the true foundaThe common-law rule in regard to the ad- tion of the doctrine), that no man shall be missibility in evidence of instruments which permitted, on grounds of public policy, to take appear to have been altered after they were ning any risk of loss by the event when it is

the chance of committing a fraud without runfirst written has been uniformly applied hy detected; and, second, because the identity of the courts of this state. The general rule the instrument is destroyed, and to hold one and the reason therefor is thus stated in the under such circumstances would be to make early case of Miller v. Alexander, 13 Tex. for him a contract to which he never agreed, 497:

which is especially true in the case of a

surety." “If, on the production of such an instrument, it appears to have been altered, it is incumbent on the party offering it in evidence to explain fined and limited by the authorities abore

It seems clear to us that the rule as de this appearance. For the instrument is sup. posed to have been intended to express the cited cannot, under the facts of this case, agreement of the parties, solemnly adopted as be successfully invoked to sustain the ruling such, and attested by the signature of the party of the trial court in excluding from evidence

(248 S.W.) the deed from Lucindy Grant to Daisy / gagor was inserted by the mortgagee after Starks. We very much doubt whether chang. the execution of the instrument. The point ing the name of the grantee from Starr to in the case was not whether the alteration Starks was, under the facts of this case, was material, but whether the mortgagee, such a material alteration of the instru- in a suit to foreclose the mortgage, could ment as to render it inadmissible in evidence, recover the amount due upon the properties independent of whether the change was au- originally included in the mortgage, and the thorized by the grantor. It is not clear to Supreme Court held that in the form in us that such an alteration changed the legal which the suit was brought, he was not enidentity or character of the instrument, ei- titled to recover anything. The question dether in its terms, or the relation of the par- cided in that case would be material in this ties to the instrument. The instrument be case upon the right of appellant, 'under his fore the alteration was a complete and per- pleadings, to recover an undivided interest fect deed of conveyance of the land describ- of six acres in the 31 acres, if there was any ed therein from Lucindy Grant to a named evidence to sustain the trial court's finding grantee. The undisputed evidence shows that the clause giving Daisy Starks the right that Daisy Starks was the grantee intended | to select the six acres was inserted in the to be named by the grantor. No such person as deed after its execution, Our conclusion Daisy Starr is shown to have been in exist that there is no evidence to sustain this findence and the writing of the name Starr in- ing of the trial court eliminates this quesstead of Starks was merely a mistake of the tion of pleading. scribe who prepared the deed. Under the [4] These conclusions require a reversal decision of our Supreme Court, if the change of the judgment of the trial court. Ordi. had not made it would have been competent narily, when a plaintiff's right to recover de to have shown by parol that Daisy Starks pends upon wrongfully excluded evidence, was in fact the grantee in the deed. This upon a reversal of the judgment against him being so, it would seem that the notary, aft- by the appellate court, that court would not er he discovered his mistake, might have be authorized to render judgment in his corrected it, whether so authorized by the favor upon the excluded evidence. But grantor or not, without destroying the valid when, as in this case, the evidence excluded ity of the deed or rendering it inadmissible is a deed showing title in the plaintiff which in evidence.

was introduced in evidence in the court be[3] The purpose of the rule is to prevent low and thereafter erroneously excluded fraud and imposition, and it should not be from the evidence, the deed being properly invoked to defeat a title honestly and fairly before this court and there being nothing in acquired and free from any suspicion of the record to indicate that the case was not fraud. But be this as it may, when the un- fully developed upon all its issues upon the disputed evidence, as in this case, goes fur- trial in the court below, there can be no ther and shows that the alteration was made, reason for remanding the case for retrial. if not by express direction of the grantor, at For the reasons stated, we are of opinleast with the understanding that it would | ion that the judgment should be reversed be done, we think that beyond question such and judgment here rendered for the appelalteration was immaterial.

lant; and it has been so ordered. Appellee relies upon the cases of Park v. Reversed and rendered. Glover and Bowser v. Cole, supra, to sustain the ruling of the court. We think both of these cases are distinguishable from the instant case. In the Park Case the transfer of title to land in which the name of the grantee was inserted after its execution and de MANDRY et al. v. BROWN CRACKER & livery was, at the time of its execution, a

CANDY CO. (No. 6896.) transfer in blank, and was therefore, as pointed out by the Supreme Court, a void in- (Court of Civil Appeals of Texas. San An

tonio. Feb. 21, 1923. Rehearing strument, having no legal effect, and the in

Denied March 21, 1923.) sertion of the name of a grantee after its execution gave it a distinct legal effect and Appeal and error Om773(2)-Appellant's fail. must be regarded as a material change. It ure to file brief until two days before subis not shown who inserted the name of w.

mission ground for dismissal. A. Park as the grantee, nor that the grantor

Where transcript on appeal was filed July authorized its insertion or understood that 17th, and case set for submission in its regular it could be inserted in the instrument after lant's brief was not filed until February 12th,

order on February 14th following, and appelits execution.

two days before its submission, the appeal will The alteration in the Bowser Case was be dismissed for want of prosecution, under clearly material, as additional property to the rules of practice prescribed by Rev. St. that includeơ in the mortgage by the mort- I art. 2115, and rules 38, 40, and 102.

On For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Appeal from District Court, Bexar Coun- ! Error from District Court, Hudspeth County; W. S. Anderson, Judge.

ty; W. D. Howe, Judge. Action by the Brown Cracker & Candy Suit by M. W. Lowry against Dave Gill. Company against George P. Mandry and Judgment for defendant, and plaintiff brings others. Judgment for plaintiff, and defend-error. Afirmed. ants appeal. Motion to dismiss appeal for want of prosecution. Motion granted.

Thos. N. Hill, of Beaumont, for plaintiff

in error. C. A. Davies and R. L. Neal, both of San Antonio, for appellants.

Neill & Armstrong, of El Paso (Paul D. Birkhead & Lang and F. Stevens, all of Thomas, of El Paso, of counsel on appeal San Antonio, for appellee.

only), for defendant in error.

COBBS, J. The transcript in this case HARPER, C. J. Appellant brought this was filed on the 17th day of July, 1922. The suit against appellee, alleging that they encase was set down in its regular order for tered into an oral agreement of partnership submission on the 14th day of February, for the purpose of buying and selling lands 1923. Appellants filed their brief on the 12th in Hudspeth county, Tex. ; the profits to be day of February, 1923, two days before its divided between them in proportion to the submission. Appellee filed no brief, but filed amount of money each placed in the entera written motion on the 10th day of Febru- prise; the titles to be taken in the name of ary, 1923, two days previous to the time defendant because he was on the ground, when the appellants filed their brief to dis- etc.; that, at the time of entering into this miss the appeal. Appellants filed no reply agreement, they were the owners of certain to the motion, and it comes before us solely sections of school lands, plaintiff owning twoon the motion to dismiss the appeal which thirds and defendant one-third thereof; that violates the practice in such cases prescribed this land was sold for part cash and balance by article 2115, R. S., and rules 38, 40 (230 in notes payable to defendant, Gill, who ocS. W. viii) and 102 of the Texas court rules cupied the position of trustee; that thereprepared by the Supreme Court for the prep. after they purchased, from one Maverick, aration of cases on appeal. These rules have several tracts of land for the sum of $10,been violated in preparing this case for ap- 419, part cash and balance evidenced by peal, and the appellee is clearly within its notes, and for which payment the notes legal rights in presenting this motion. Wes- taken on the sale of the school lands were ton v. Patterson (Tex. Civ. App.) 165 S. W. accepted by Maverick as they might be paid; 1195, opinion by Justice Moursund. Attor- the title to the Maverick lands was placed neys should do well to bear this case in mind in defendant; that he took possession therewhen filing transcripts.

of, made sales of certain of the tracts, and The motion is granted, and the appeal is retained the proceeds. Plaintiff further aldismissed for want of prosecution.

leged that he and defendant were the joint owners under the aforesaid agreement of 400 acres of land; prayed for an accounting and for judgment for two-thirds of the

said 400 acres, etc. LOWRY v. GILL. (No. 1387.) *

Appellee answered by general and special

exceptions, not guilty, denied that he owed (Court of Civil Appeals of Texas. El Paso. plaintiff, and alleged that plaintiff was inFeb. 8, 1923. Rehearing Denied March 8,

debted to him, and set out the items. De1923.)

nied the partnership under oath, and prayed 1. Appeal and error Omm 1003-Appellate court for judgment for the lands and for money

will reverse, when verdict is based on sur. due. mise, suspicion, or conjecture, or is against The cause was submitted to a jury by preponderance of evidence.

special issues, as follows: The weight of the evidence is for the jury, (1) Did Gill agree to give Lowry a twobut the Court of Civil Appeals will reverse a third interest in the school land conveyed to judgment on the facts, when it is found that

McDonald? Answer: No. the verdict is based upon mere surmise, suspicion, or conjecture, and is against the pre-ick land, one-third for himself, and two

(2) Did Gill receive the title to the Maverponderance of the evidence.

thirds as trustee for Lowry, by virtue of an 2. Exceptions, bill of Cw43(1)-Bills of exception, filed after expiration of extension of agreement made with Lowry for anything of

value? Answer: No. time, will not be considered. Bills of exception, filed after the expiration

(3) Was Lowry induced to sign the agreeof time granted by court in an order extending ment of February 9, 1918, by false representhe time within which to file exceptions, will tations of Gill? Answer: No. not be considered.

Upon these answers the court entered judg. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(248 S.W.) ment for defendant. Brought here for review ( trial of the docket, in that both the nonjury asby writ of error.

signment of cases and the jury assignment had [1] The first proposition is that the court already been made up, and the latter was in the erred in overruling the motion for new trial, hands of the printer, and all the time of the because the verdict of the jury was contrary court was taken up with these assignments, it to the law and evidence and against the over

was not error to refuse the jury trial. whelming weight of the evidence. The 4. Appeal and error 1035-Denial of jury weight of the evidence is for the jury (Lewis held not prejudicial. v. Kelly (Tex. Civ. App.) 233 s. W. 993) but Where it did not appear from the record "the Court of Civil Appeals will reverse a that any other judgment could have been renjudgment on the facts when it is evident dered than the one that was rendered, appelthat a verdict is based upon mere surmise, lant could not complain of ruling denying jury suspicion or conjecture and is against the trial. preponderance of the evidence." After a

Appeal from District Court, Dallas County; careful consideration of all the evidence we

J. E. Gilbert, Judge.
have concluded that no such condition is pre-
sented here. The plaintiff and defendant tes-

Action by E. H. Lingo against Dick Tucker
tified affirmatively to the facts relied upon and others. From judgment for plaintiff, the
by each for a recovery, and the jury believed named defendant appeals. Affirmed.
the defendant and rendered their verdict ac Claude M. McCallum and W. B. Hamilton,
cordingly, so we cannot disturb it. Schaff both of Dallas, for appellant.
v. Hill & Thompson (Tex. Civ. App.) 238 S. Spence, Haven & Smithdeal, of Dallas, for
W. 1037.

appellee.
[2] Several other assignments and propo-
sitions are predicated upon admission of tes-

JONES, C. J. E. H. Lingo, appellee and timony over objections of plaintiff. As to plaintiff below, filed this suit against F. 2.' these the bills of exceptions were filed after Bishop, of Bexar county, Tex., and W. E. the time had expired granted by the court in Cary, of Cameron county, Tex., as the makers the order extending the time within which of a promissory note in the sum of $10,000, to file same. These bills of exceptions are in favor of appellee and against Dick Tucker, not entitled to consideration. Camp et al. v. appellant, as indorser on said note. Said Gourley (Tex. Civ. App.) 201 S. W. 671.

note was also secured by deeds of trust on Affirmed.

various pieces of real estate. The makers of the note did not answer in the case, and ap pellant answered by filing a verified plead

ing, in which he set up the defense that he TUCKER v. LINGO. (No. 8767.)

was only an indorser on the note and that in

dulgences had been given by appellee to the (Court of Civil Appeals of Texas. Dallas. makers of the note from time to time by Feb. 17, 1923. Rehearing Denied which the time for payment of said note was March 17, 1923.)

extended without his consent or knowledge; 1. Continuance em 26(1)-In absence of divi- and also because suit had not been brought on gence to secure evidence, continuance dis the note for the term of court following the cretionary.

maturity of the note, and no reason was given Where defendant did not show diligence in for failing to bring suit either at the first or trying to secure the evidence of his code the subsequent term of the court after its fendant, his application for continuance for the maturity. The note matured on July 5, 1920, purpose of securing such evidence was there and suit was filed on July 22, 1921, returnfore addressed to the discretion of the court. able to the September term of court, which

convened on September 5, 1921.
25(6)-When dilatory litigant en-
titled to jury trial stated.

On September 6, 1921, the court called the Any litigant has the right to a trial by appearance. docket for orders, and no order jury, provided he complies with the provisions was taken in this case. It was set down for of the statute in securing same; and also has trial on the nonjury assignment for Septemthis right, even if dilatory in compliance with her 21, 1921, but was postponed for one week, the statutory provisions, when the allowing of because not reached by the trial judge. On the jury would not interfere with the orderly September 28, 1921, the court sounded the disposition of the court's docket or deprive the docket for announcements, and appellee anopposing litigant of any right.

nounced ready. Appellant Tucker announced 3. Jury 25(6)-Dilatory litigant held not not ready and made an oral application for entitled to jury trial.

continuance of the case because of the abWhere defendant, in a case set down for sence of his codefendant, F. Z. Bishop, by trial on the nonjury assignment, did not de- whom he expected to prove the defenses almand'a jury until a time when granting the de- leged in his answer. This oral motion was mand would have interfered with the orderly overruled by the court. The case, however,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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2. Jury

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