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(248 S.W.) The appellant brought the suit against the through which the right of way is granted and Texas & Pacific Railway Company and the released is more particularly described as folreceivers of the railway properties, in trespass lows: 24/100 acres of the headright of Peter to try the title to a lot in the city of Marshall Whetstone in said county and state, extending 32 varas long by 27 varas wide. The defend- from Mrs. Yates property southeast to Henry ants pleaded not guilty and adverse posses

Dopplemayer land." sion and use of the lot as a railway right of

The deed was placed of record in 1911. way for more than 10 years next preceding It was shown that the description in this the filing of the suit. In the statement of deed does not call for the same property as facts appears the following admission:

that in suit. It affirmatively appears that "During the progress of the trial the defend the minor children of whom Cabbiness was ant filed a disclaimer to all of the lot sued for the guardian were not of kin to appellant, and except a right of way 50 feet wide, that is, 25 had no claim under him to the lot. The Texfeet from the center of the track on either side. as Southern Railway was sold in August, But the easement over the land is claimed to 1908, under order of the court in mortgage that width, and no more."

foreclosure proceedings, and was purchased After hearing the evidence the court decreed East Texas Railway Company.

by individuals who organized the Marshall &

It was (1) the title to the entire lot sued for to be in

the appellant, and (2) an easement of right of
way for railway purposes to the defendants

"That after the organization of the Marshall over the lot to the width of 15 feet, or 74 the road in the ordinary manner until January

& East Texas Railway Company it operated feet from the center of the railway track as 25, 1917, when Bryant Snyder was appointed now located across the lot, on each side of receiver, and that he operated the railroad over the track. The appellant, the plaintiff in the the lot until July, 1917, when the road from trial court, appeals from the decree, contend- Marshall to the west was discontinued as a ing that under the evidence a judgment common carrier. But the receiver still opershould have been rendered in his favor for 'ated the track over the lot in suit in connection the whole of the lot free from an easement. with the terminal grounds south of Marshall to

It appears from the evidence that David the Texas & Pacific Railway to the north of Smith, the agreed common source of title, Marshall. In August, 1918, the receiver of the purchased an acre of land, of which the lot Marshall & East Texas Railway ceased to opin suit was a part, as his separate property, erate the railway under order of the federal on March 7, 1868. He died October 1, 1887, court, but the receiver made arrangements with leaving surviving him as his only heirs his the Texas & Pacific Railway Company to op

erate it under a lease to serve industries locatson, the appellant, and a grandson, the sured on the Marshall & East Texas terminal viving son of a deceased daughter. David grounds, and in so doing operated over the lot Smith left a will giving a life estate to the in suit until April, 1920, when, under order of lot in suit to the grandson, and the remainder the court, the receiver made sale of the termiin fee to the son, the appellant. The grand- nal grounds to the Texas & Pacific Railway son died in childhood July 1, 1890. The will Company, and that railroad company has been was in the possession of the appellant from ever since regularly operating its cars over the the date of the death of his father until it track on the lot.” was filed for probate on February 5, 1912. The will was duly probated on July 12, 1920.

The defendant showed that William Neal, The delay in probating the will was sufficient- claiming to be the guardian of Winnie, Dee, ly explained in the record as due to the fact and Enos Dalton, sued the Marshall & East of death of the subscribing witnesses and Texas Railway Company for the lot in suit; inaccessibility of other competent witnesses. and a final decree was entered on November

It appears that the Texas Southern Rail- 18, 1910, decreeing title to the lot to the plainway Company in 1903 laid its track across tiffs in that suit, but, on cross-action of the a part of the lot. The railway company railway company in condemnation, decreeing built a dump about 2 feet high and 15 feet condemnation "of the land occupied by the wide, and then laid the track on it, and used defendant as a part of its right of way," and the strip for railway purposes.

The dump directing payment therefor in the sum of $50. and track have been maintained continuously This condemnation decree was before the will since that date. No other part of the lot was was probated. The appellant was not a used or occupied at any time by the railway party to the suit. company. The roadbed was never fenced.

T. P. Young, of Marshall, for appellant.
The Texas Southern Railway Company built F. H. Prendergast, of Marshall, for ap.
the roadbed and laid the track across the lot

after receiving a quitclaim deed dated Sep-
tember 25, 1901, from Ben Cabbiness, guard-

LEVY, J. (after stating the facts as fan of Winnie, Dee and Enos Dalton. The above). The court decreed an easement for deed purported to convey as follows:

railway purposes across the lot to the width "The right of way over my lands belonging of the railway roadbed, which was 15 feet. to us in Harrison county. The tract of land The appellant contends that such decree

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was erroneous because (1) the evidence does, one asserting a right of way over another's not show that the appellee and those under land by prescription to establish the negatire whom it claims had and used the right of fact” that the owner of the tract of land way continuously and without intermission against which the prescriptive right is for 10 consecutive years before the suit was claimed was “free fram legal disability durfiled, (2) the evidence does not show that the ing the prescriptive period," and "against appellant was not, at any time during the whom a right by limitation could be acquired period of adverse user and possession, under by adverse use." City of Austin v. Hall, 93 any disability which prevented the running of Tex. 591, 57 S. W. 563; West v. City of Housthe statute of limitation, and (3) the evidence ton; 163 S. W. 679. shows that the appellant's cause of action [3, 4] In the instant case there is involved did not accrue until the will was probated in in the court's decree the finding of fact, har1920. We think the assignments should be ing evidence, we think, to support it, that the overruled.

Texas & Pacific Railway Company and its The case of Hays v. Railway Co., 62 Tex. predecessors have used the strip of land for 397, was a suit of trespass to try title, where a roadbed and track in operating trains over in the owner of the land recovered the title it since 1903 to the bringing of the suit in to the same subject to the right of the defend- November, 1922. And it appears that during ant to enjoy the easement. There the prin- all that period of time there was open and ciple was stated that

notorious possession and use by the railway “A party in possession of another's land companies under a claim of right adverse to claiming an easement is a trespasser if his the owner of the fee. In these facts apparent. claim is without foundation. If, in a suit by ly there would be a continuous use and enthe owner of the soil, the plaintiff shows title joyment of the strip of land for railway pur. to the land, and the defendant to the easement, poses for 19 years, but it cannot be said the plaintiff recovers subject to the right of the that at the inception and during all that defendant to enjoy the easement. If the de- period of user of the right of way limitation fendant shows no title of this character the would run, or a prescriptive right be acowner of the land dispossesses him altogether."

quired by adverse use. For, as the record [1,2] A “title of this character,” meaning appears, it could not be said that the appelthe right to have and enjoy the easement, is lant was “free from legal disability” during shown, as has been decided, where the rail- all the 19 years. By inference authorized to way company has had adverse use and oc

be drawn the appellant was not older than 21 cupation, continuous and uninterrupted, for years of age on September 30, 1908, nor over the statutory period of 10 years. Shepard v.

35 years old at the time he filed the suit in Railway Co., 2 Tex. Civ. App. 535, 22 S. w. November, 1922, assuming that he was one 267; Capps v. Railway Co., 21 Tex. Civ. App day old when his father died on October 1, 84, 50 S. W. 643; 1 Elliott on Railroads, $ 401. 1887. In 1910 the appellant was, as appears, See, also, Baker v. Brown, 55 Tex. 377; Comp over 21 years old; and the period of limitaton v. Waco Bridge Co., 62 Tex. 722; Click v. tion would be complete in 1920, which date Lamar County, 79 Tex. 124, 14 S. W. 1048. was before the filing of the suit. It was in. "Ten years in this state," as stated in Haas 1910 that, as is shown, the Marshall & East v. Choussard, 17 Tex. 588, “would afford the Texas Railway Company, under decrees of same presumption of a grant, that twenty condemnation, used, continuously and unyears would in England, and in other states, interruptedly, the strip of land for railway having the like limitation as to real actions.” | purposes. The use of the strip for railway

"The burden of proof," though, as laid purposes was such as, in the evidence, to down in Railway Co. v. Wilson, 83 Tex. 153, clearly show that it was adverse to appel18 S. W. 325, "is upon the party claiming lant's claim of ownership, and not under a an easement in the land of another, without mere permissive right or privilege from apany contract or express grant thereto, to pellant. establish all the necessary facts from which [5] The "disability" that appellees were the right may be presumed in his favor. He called on to affirmatively negative was, we must clearly show open and peaceable pos- think, that of minority only. The "disability session for the full period required under the of insanity and of imprisonment was not restatute to preclude a recovery of land against quired to be afirmatively shown to not exist. one having no other title, and with at least Insanity and imprisonment are, unlike mithe implied acquiescence of the owner, and nority, only exceptional occurrences in the that during all of such time the use and en- lives and experiences of mankind, and it is joyment of the right has been exclusive, un on this account that it is a presumption of interrupted, and continuous, and under a law that all men are sane and that they obey claim of right adversely to the owner of the the laws. This presumption would obtain in fee. If there is a failure to establish any of this record, there being no evidence to show those essential elements by a preponderance to the contrary. of evidence, the claim to the easement can [6, 7] The point should, we think, be overnot be maintained.” Also "the burden of ruled that the appellant's cause of action did proof," it seems to be settled, “rests upon the not arise until the will was probated in 1920.

(248 S.W.) There is no dispute in respect to the fact that , not be joined with a cause of action against the life tenant died in 1890, and that the will certain directors for funds misappropriated devised the fee in the land to the appellant. by the managing director by reason of their Under the statute the owner or claimant of negligent failure to supervise the management the land is required, in order to avoid the of the business; such action sounding in tort. statute of limitation, to "institute his suit" 2. Venue 161/2-Plea of privilege cannot be against one in adverse possession of the land defeated because venue is properly laid in *within 10 years next after this cause of ac county of codefendant's residence, where tion shall have accrued.” The owner can

there is misjoinder of parties defendant and “not afterward" bring the suit, as the lan

causes of action, guage of the article states. Rev. St. art. 5675. If there is a misjoinder of parties defendAnd, according to the terms of the article, ant and causes of action, Rev. St. art. 1830, “his cause of action shall have accrued" subd. 4, providing that, where two or more dewhen the adverse possession of the other fendants reside in different counties, the suit person commences. There are excepted from may be brought in the county of the residence

of either, cannot be invoked to defeat a plea the operation of this article of limitation of privilege by some defendants to be sued in such persons only who are under the legal the county of their residence merely because disabilities of coverture, infancy, insanity, the venue as against a codefendant is properly and imprisonment. Article 5684. The stat- laid in the county where the suit is instituted. ute nowhere provides that the running of the statute will be delayed until a will is pro Appeal from District Court, Comanche bated; and, moreover, it is the settled rule County; J. R. McClellan, Judge. that an estate by devise takes effect immedi

Action by the Hart Shoe Company against ately upon the death of the testator unless Nathan Adams and others. From an order otherwise directed, and that the title of the sustaining a plea of privilege by the named devisee is not affected by the delay in pro- defendant and others, and ordering a transbating the will. Long v. Shelton (Tex. Civ. fer of the cause to another county, plaintifr App.) 155 S. W. 945. It is true that a will

appeals. Affirmed. cannot be used as evidence of title, in view of the provisions of the statute until after it is

Y. W. Holmes, of Comanche, for appellant. probated in the manner and form prescribed

John L. Young, of Dallas, for appellees. by the law. Ochoa v. Miller, 59 Tex. 460; Loursund v. Priess, 84 Tex. 556, 19 S. W. 775.

DUNKLIN, J. The Hart Shoe Company But the existence of a cause of action is not instituted this suit to recover a balance due dependent on the availability of means for its it for goods sold to the Economy Store, a enforcement. A cause of action may exist private corporation having its domicile and between parties who are unable to maintain place of business in De Leon, Comanche counthe action for lack of testimony, or between ty, Tex. The suit was instituted in the disparties who cannot be reached by common trict court of Comanche county against the jurisdiction. The will could legally have Economy Store, Joe Stern, Nathan Adams, H. been probated at the death of the testator; H. Halleck, and W. W. McDonald. The four and the fact that it was not done, from what defendants, Stern, Adams, Halleck, and Mcever cause, until 1920, would not rest upon a Donald, all reside in Dallas county. After legal prohibition or excuse against its being the original petition was filed, the defendant probated earlier. Therefore it cannot be Joe Stern died, and plaintiff filed an amend. legally said, we conclude, that the cause of ed petition, in which he was omitted as a deaction in this suit did not arise before and fendant, thus leaving the corporation and until the will was probated.

Adams, Halleck, and McDonald as the only The judgment is affirmed.

defendants. The three defendants last named filed their plea of privilege to be sued in the county of their residence, which plea was sustained by the court, and from that

order plaintiff has prosecuted this appeal. HART SHOE CO. V. ADAMS et al.

It was alleged in plaintiff's petition that

the Economy Store had ceased to do business, (No. 10088.)

is defunct, and had executed a deed or as(Court of Civil Appeals of Texas. Fort Worth. signment to one D. L. Terrill, as trustee, conJan. 20, 1923. Rehearing Denied veying all of its assets for the benefit of its Feb. 24, 1923.)

creditors. It was further alleged that the 1. Action Cw47–Against corporation for bal. said Stern, Adams, Halleck, and McDonald ance due on contract cannot be joined with were named as directors for the first year of action against directors for funds misappro- the Economy Store in its articles of incorpopriated.

ration, which were duly filed with the SecreA cause of action against a corporation for tary of State and which charter was signed a balance due for goods sold, being an action and acknowledged by said four directors; for debt arising out of an implied contract, can- that after said charter was procured, the

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

company immediately began the transaction ferent counties, the suit may be brought in of the business authorized by the charter, the county of the residence of either one: which included the right to engage in the and also subdivision 5 of the same article, purchase and sale of goods, wares, and mer- which provides that, chandise, and that, by a unanimous agree

"Where a person has contracted in writing to ment on the part of all the directors, Joe perform an obligation in any particular county, Stern was placed in full charge and manage (in which case suit may be brought either in ment of the business; that the said Joe such county, or where the defendant has his Stern, while so engaged as such manager, domicile.” wrongfully, from time to time, appropriated to his own use and benefit divers funds be

[1, 2] The cause of action asserted against longing to the corporation, aggregating ap- the Economy Store was an action for debt, proximately $4,781.87; an itemized statement arising out of an implied contract, while of such misappropriations being attached to that asserted against the appellees was for a the petition as a part thereof.

negligent failure of the alleged duty to watch It was further alleged that the defendants over and supervise the conduct of the busiAdams, Halleck, and McDonald, while acting ness by the manager Stern, and therefore as directors of said corporation, negligently that action sounded in tort. We think it failed to perform their duties as such, in clear that those two causes of action were that they failed to watch over and supervise separate and distinct, and that there was no the business and prevent such misappropria- error in the conclusion reached by the trial tions by Stern, and as a result of such negli- court as shown in his findings on file that the gence the funds so misappropriated by Stern appellees' plea of misjoinder of causes of acwere lost to the corporation and to its credi- tion and of parties should be sustained. tors, including the plaintiff, and plaintiff Frey v. Ft. W. & R. G. Ry. Co., 86 Tex. 465, sought to establish liability on the part of 25 S. W. 609; Johnson v. Davis, 7 Tex, 173; said directors by reason of such negligence. Stewart v. Gordon, 65 Tex. 347; Thomas v. It was further alleged in the petition that Chapman, 62 Tex. 193; Frost v. Frost, 45 the goods, for which recovery was sought, Tex. 341; Garrett v. Brooks, 41 Tex, 479. were sold upon the belief that the directors If there is a misjoinder of parties defendant would perform their legal duty to look after and of causes of action, subdivision 4 of artiand supervise the management of the busi-cle 1830, Revised Statutes, cannot be invoked ness by Stern. It was further alleged that to defeat the defendants' plea of privilege to the trustee, Terrill, had failed and refused be sued in the county of their residence mere. to institute suit against the directors for the ly because the venue of the suit as against a benefit of the creditors of the corporation, al- codefendant is properly laid in the county though plaintiff had requested him so to do, King County Land & Cattle Co. (Tex. Civ.

where the suit is instituted. Moorehouse v. Plaintiff sought a judgment against the said App.) 139 S. W. 883. In the case of Galvesdirectors individually, other than Stern, for ton Dry Goods Co. v. Mitchell (Tex. Civ. its debt; and, in the alternative, in the event App.) 171 S. W. 278, the following was said: the court should hold that it could not have such relief without being joined by the other the domicile is a valuable one, and litigants

"The privilege to be sued in the county of creditors, then that a judgment be rendered cannot be deprived thereof by the joinder of in its behalf and in behalf of all the other causes of action which are separate and discreditors of the Economy Store for the total tinct." sum of money found to have been misappropriated by the said Joe Stern, such recovery In support of that announcement, numer. to be apportioned among all such creditors as ous decisions are cited. See, also, First Natl. might indicate a desire to participate there Bank of Coleman v. Gates (Tex. Civ. App.) in.

213 S. W. 720; Rutledge v. Evans (Tex, Civ. The plea of privilege to be sued in Dallas App.) 219 S. W. 218. county, which was the county of their resi Appellant has cited authorities in support dence, filed by defendant Adams, Halleck, of its contention that the appellees, as direcand McDonald, was in statutory form and tors of the Economy Store, would be liable to duly verified. Those defendants also filed a the corporation for losses sustained through plea of misjoinder of causes of action and of their negligent failure to properly look after parties defendant; the principal contention the business of the company. Conceding that of misjoinder being that the suit against the those decisions announce a correct rule, they Economy Store was an action ex contractu, do not bear upon the question of misjoinder while that alleged against the directors is of parties and causes of action. Other decian action for tort and is ex delicto

sions cited by appellant likewise cannot be In its controverting affidavit and plea, filed given controlling effect in this suit for the by plaintiff in reply to the plea of privilege, same reason. We shall not attempt a discusplaintiff invoked subdivision 4 of article sion of such authorities, since we think it 1830, Revised Statutes, which provides that sufficient to say that in none of them, in

(248 S.W.) reason of the fact that the venue was proper- R. H. Wilson; that said note is the first and ly laid as to a codefendant, was the question only lien on said land." of misjoinder of causes involved.

For the reasons indicated, the judgment of At the time of this transfer the note on the trial court, sustaining the plea of privi- its face showed that there were four other lege and ordering a transfer of the cause to purchase-money notes of the same series. Dallas county, is affirmed.

When Wilson transferred the note to Cox, Wilson owned all of the notes which had been executed by Hammonds. Two of the notes for $750 each, of the first series from

Wilson to Yates, were subsequently acquired SANGER BROS. V. HAMMONDS et al. by Sanger Bros. They later also acquired (No. 2683.)

two other notes, of the second series. The

note transferred to Cox by Wilson was sub(Court of Civil Appeals of Texas. Texarkana. Feb. 22, 1923. Rehearing Denied March 8,

sequently passed to the Republic National 1923.)

Bank of Dallas. Sanger Bros. brought this

suit to foreclose their liens as evidenced by Vendor and purchaser em 261(5)–Failure to the two notes of the first series and the two record portion of conveyance of purchase. of the second. They made the holders of the money note, stating that it was first lien on other notes parties defendant in order to adland, held to destroy its effect as notice of just priorities of liens. Sanger Bros. claimed Its priority. The recording of the conveyance of a pur- first series, and claimed an equality of llens

a first lien by virtue of the two notes of the ebase-money note, where there was a failure to record that portion thereof which stated with the holders of all the notes of the secthat it was the first and only lien on the land, ond series. The case was tried before the held not notice to subsequent purchasers and court without a jury, and a judgment renlienholders of the priority of the note,

dered in favor of Sanger Bros. for a priority

in the payment of their two notes of the first Appeal from District Court, Sunith County; series, but made their lien in the second seI. R. Warren, Judge.

ries subordinate to that of the Republic NaSuit by Sanger Bros. against C. C. Ham- tional Bank, who held the note formerly conmonds and others. From a judgment giving veyed to Cranfeld H. Cox. Sanger Bros. less relief than prayed, plaintiffs appeal. Re- have appealed. formed and affirmed.

The record shows that the written conveyBulloch & Ramey, of Tyler, for appellants. ance of the note from Wilson to Cox was Eugene DeBogory, of Dallas, for appellees. duly filed for record, but there was a failure

to record the following portion: “That said HODGES, J. This suit is a controversy note is the first and only lien on said land.” involving the priority of liens between the It is conceded that at the time of this conholders of different purchase-money notes. veyance from Wilson to Cox, the former, In February, 1918, C.C. Yates sold and con- then being the holder of all the notes of that veyed the land in controversy to R. H. Wil- series, had a right to assign a prior lien to son, and took as a part of the consideration Cox, and such was the legal effect of the four vendor's lien notes for $750 each.

A language used in the assignment. The trial few months later Wilson sold the same land court was of the opinion that, notwithstandto C. C. Hammonds, and took as a part of ing such a defect, in the record the filing of the consideration five purchase-money notes, the conveyance for record, together with the each for $1,212.05. In both of those transac- record actually made by the clerk, furnished tions the vendor's lien was retained in both constructive notice to Sanger Bros. of Cox's the notes and the deeds, and the deeds were prior lien. The correctness of that legal conduly recorded. In the conveyance from Wil- clusion is the only question presented. son to Hammonds the latter did not assume

In the case of Throckmorton v. Price, 28 to pay the outstanding indebtedness of Wil- Tex. 605, 91 Am. Dec. 334, a deed of trust son to Yates. On August 5, 1920, Wilson con- had been filed with the clerk for record. Feyed note No. 4 of the series executed by While it was still in the custody of the clerk, Hammonds to him to Cranfeld H. Cox. This and before it was placed on the record, the assignment was evidenced by a written trans- land was sold by the mortgagor to one who fer, and contained the following recitation:

had no actual notice of the deed of trust. "For and in consideration of $1,212.05 to me when did constructive notice begin? Judge

The question before the Supreme Court was, in hand paid by Cranfeld H. Cox, the receipt of Moore, in rendering the opinion, held that it Bold, conveyed and assigned,' and by these commenced with the filing of the deed of presents do sell

, convey and 'assign unto said trust with the clerk. He based his concluCranfeld H. Cox one certain vendor's liension upon provisions of the statute. In Tay. note executed by 0. C. Hammonds in favor of lor v. Harrison, 47 Tex. 454, 26 Am. Rep.

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