(248 S.W.) The appellant brought the suit against the Texas & Pacific Railway Company and the receivers of the railway properties, in trespass to try the title to a lot in the city of Marshall 32 varas long by 27 varas wide. The defendants pleaded not guilty and adverse possession and use of the lot as a railway right of way for more than 10 years next preceding the filing of the suit. In the statement of facts appears the following admission: "During the progress of the trial the defendant filed a disclaimer to all of the lot sued for except a right of way 50 feet wide, that is, 25 feet from the center of the track on either side. But the easement over the land is claimed to that width, and no more." through which the right of way is granted and released is more particularly described as follows: 24/100 acres of the headright of Peter Whetstone in said county and state, extending from Mrs. Yates property southeast to Henry Dopplemayer land." The deed was placed of record in 1911. It was shown that the description in this deed does not call for the same property as that in suit. It affirmatively appears that the minor children of whom Cabbiness was the guardian were not of kin to appellant, and had no claim under him to the lot. The Texas Southern Railway was sold in August, 1908, under order of the court in mortgage foreclosure proceedings, and was purchased by individuals who organized the Marshall & It was East Texas Railway Company. agreed: "That after the organization of the Marshall & East Texas Railway Company it operated the road in the ordinary manner until January 25, 1917, when Bryant Snyder was appointed receiver, and that he operated the railroad over the lot until July, 1917, when the road from Marshall to the west was discontinued as a common carrier. But the receiver still operated the track over the lot in suit in connection with the terminal grounds south of Marshall to the Texas & Pacific Railway to the north of Marshall. In August, 1918, the receiver of the Marshall & East Texas Railway ceased to operate the railway under order of the federal court, but the receiver made arrangements with the Texas & Pacific Railway Company to op After hearing the evidence the court decreed (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 over the lot to the width of 15 feet, or 72 feet from the center of the railway track as now located across the lot, on each side of the track. The appellant, the plaintiff in the trial court, appeals from the decree, contending that under the evidence a judgment should have been rendered in his favor for the whole of the lot free from an easement. It appears from the evidence that David Smith, the agreed common source of title, purchased an acre of land, of which the lot in suit was a part, as his separate property, on March 7, 1868. He died October 1, 1887, leaving surviving him as his only heirs his erate it under a lease to serve industries locatson, the appellant, and a grandson, the sur-ed 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 defendant showed that William Neal, The will was duly probated on July 12, 1920. 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 of death of the subscribing witnesses and inaccessibility of other competent witnesses. It appears that the Texas Southern Railway Company in 1903 laid its track across a part of the lot. The railway company built a dump about 2 feet high and 15 feet wide, and then laid the track on it, and used The dump the strip for railway purposes. and track have been maintained continuously since that date. No other part of the lot was used or occupied at any time by the railway company. The roadbed was never fenced. The Texas Southern Railway Company built the roadbed and laid the track across the lot after receiving a quitclaim deed dated September 25, 1901, from Ben Cabbiness, guardian of Winnie, Dee and Enos Dalton. The deed purported to convey as follows: "The right of way over my lands belonging to us in Harrison county. The tract of land and Enos Dalton, sued the Marshall & East Texas Railway Company for the lot in suit; and a final decree was entered on November 18, 1910, decreeing title to the lot to the plaintiffs in that suit, but, on cross-action of the railway company in condemnation, decreeing condemnation "of the land occupied by the defendant as a part of its right of way," and directing payment therefor in the sum of $50. This condemnation decree was before the will was probated. The appellant was not a party to the suit. T. P. Young, of Marshall, for appellant. F. H. Prendergast, of Marshall, for ap pellees. LEVY, J. (after stating the facts as above). The court decreed an easement for railway purposes across the lot to the width of the railway roadbed, which was 15 feet. The appellant contends that such decree was erroneous because (1) the evidence does not show that the appellee and those under whom it claims had and used the right of way continuously and without intermission for 10 consecutive years before the suit was filed, (2) the evidence does not show that the appellant was not, at any time during the period of adverse user and possession, under any disability which prevented the running of the statute of limitation, and (3) the evidence shows that the appellant's cause of action did not accrue until the will was probated in 1920. We think the assignments should be overruled. The case of Hays v. Railway Co., 62 Tex. 397, was a suit of trespass to try title, wherein the owner of the land recovered the title to the same subject to the right of the defendant to enjoy the easement. There the principle was stated that "A party in possession of another's land claiming an easement is a trespasser if his claim is without foundation. If, in a suit by the owner of the soil, the plaintiff shows title to the land, and the defendant to the easement, the plaintiff recovers subject to the right of the defendant to enjoy the easement. If the defendant shows no title of this character the owner of the land dispossesses him altogether." [1,2] A "title of this character," meaning the right to have and enjoy the easement, is shown, as has been decided, where the railway company has had adverse use and occupation, continuous and uninterrupted, for the statutory period of 10 years. Shepard v. Railway Co., 2 Tex. Civ. App. 535, 22 S. W. 267; Capps v. Railway Co., 21 Tex. Civ. App. 84, 50 S. W. 643; 1 Elliott on Railroads, § 401. See, also, Baker v. Brown, 55 Tex. 377; Compton v. Waco Bridge Co., 62 Tex. 722; Click v. Lamar County, 79 Tex. 124, 14 S. W. 1048. "Ten years in this state," as stated in Haas v. Choussard, 17 Tex. 588, "would afford the same presumption of a grant, that twenty years would in England, and in other states, having the like limitation as to real actions." "The burden of proof," though, as laid down in Railway Co. v. Wilson, 83 Tex. 153, 18 S. W. 325, "is upon the party claiming an easement in the land of another, without any contract or express grant thereto, to establish all the necessary facts from which the right may be presumed in his favor. He must clearly show open and peaceable possession for the full period required under the statute to preclude a recovery of land against one having no other title, and with at least the implied acquiescence of the owner, and that during all of such time the use and enjoyment of the right has been exclusive, uninterrupted, and continuous, and under a claim of right adversely to the owner of the fee. If there is a failure to establish any of those essential elements by a preponderance of evidence, the claim to the easement cannot be maintained." Also "the burden of proof," it seems to be settled, "rests upon the [3, 4] In the instant case there is involved in the court's decree the finding of fact, having evidence, we think, to support it, that the Texas & Pacific Railway Company and its predecessors have used the strip of land for a roadbed and track in operating trains over it since 1903 to the bringing of the suit in November, 1922. And it appears that during all that period of time there was open and notorious possession and use by the railway companies under a claim of right adverse to the owner of the fee. In these facts apparently there would be a continuous use and enjoyment of the strip of land for railway purposes for 19 years, but it cannot be said that at the inception and during all that period of user of the right of way limitation would run, or a prescriptive right be acquired by adverse use. For, as the record appears, it could not be said that the appellant was "free from legal disability" during all the 19 years. By inference authorized to be drawn the appellant was not older than 21 years of age on September 30, 1908, nor over 35 years old at the time he filed the suit in November, 1922, assuming that he was one day old when his father died on October 1, 1887. In 1910 the appellant was, as appears, over 21 years old; and the period of limitation would be complete in 1920, which date was before the filing of the suit. It was in 1910 that, as is shown, the Marshall & East Texas Railway Company, under decrees of condemnation, used, continuously and uninterruptedly, the strip of land for railway purposes. The use of the strip for railway purposes was such as, in the evidence, to clearly show that it was adverse to appellant's claim of ownership, and not under a mere permissive right or privilege from appellant. [5] The "disability" that appellees were called on to affirmatively negative was, we think, that of minority only. The "disability of insanity and of imprisonment was not required to be affirmatively shown to not exist. Insanity and imprisonment are, unlike minority, only exceptional occurrences in the lives and experiences of mankind, and it is on this account that it is a presumption of law that all men are sane and that they obey the laws. This presumption would obtain in this record, there being no evidence to show to the contrary. [6, 7] The point should, we think, be overruled that the appellant's cause of action did not arise until the will was probated in 1920. i Tex.) HART SHOE CO. v. ADAMS 475 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 lancauses of action. guage of the article states. Rev. St. art. 5675. And, according to the terms of the article, "his cause of action shall have accrued" when the adverse possession of the other person commences. There are excepted from the operation of this article of limitation such persons only who are under the legal disabilities of coverture, infancy, insanity, and imprisonment. Article 5684. The statute nowhere provides that the running of the statute will be delayed until a will is probated; and, moreover, it is the settled rule that an estate by devise takes effect immediAction 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. App.) 155 S. W. 945. It is true that a will fer of the cause to another county, plaintiff cannot be used as evidence of title, in view of HART SHOE CO. v. ADAMS et al. (No. 10088.) (Court of Civil Appeals of Texas. Fort Worth. Jan. 20, 1923. Rehearing Denied Feb. 24, 1923.) 1. Action 47-Against corporation for balance due on contract cannot be joined with action against directors for funds misappropriated. A cause of action against a corporation for a balance due for goods sold, being an action for debt arising out of an implied contract, can If there is a misjoinder of parties defendant and causes of action, Rev. St. art. 1830, subd. 4, providing that, where two or more defendants reside in different counties, the suit may be brought in the county of the residence of either, cannot be invoked to defeat a plea of privilege by some defendants to be sued in the county of their residence merely because the venue as against a codefendant is properly laid in the county where the suit is instituted. Appeal from District Court, Comanche County; J. R. McClellan, Judge. appeals. Affirmed. Y. W. Holmes, of Comanche, for appellant. DUNKLIN, J. The Hart Shoe Company instituted this suit to recover a balance due it for goods sold to the Economy Store, a private corporation having its domicile and place of business in De Leon, Comanche county, Tex. The suit was instituted in the district court of Comanche county against the Economy Store, Joe Stern, Nathan Adams, H. H. Halleck, and W. W. McDonald. The four defendants, Stern, Adams, Halleck, and McDonald, all reside in Dallas county. After the original petition was filed, the defendant Joe Stern died, and plaintiff filed an amended petition, in which he was omitted as a defendant, thus leaving the corporation and Adams, Halleck, and McDonald as the only 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. It was alleged in plaintiff's petition that the Economy Store had ceased to do business, is defunct, and had executed a deed or assignment to one D. L. Terrill, as trustee, conveying all of its assets for the benefit of its creditors. It was further alleged that the said Stern, Adams, Halleck, and McDonald were named as directors for the first year of the Economy Store in its articles of incorporation, which were duly filed with the Secretary of State and which charter was signed and acknowledged by said four directors; that after said charter was procured, the 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 thatchandise, 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 belonging to the corporation, aggregating approximately $4,781.87; an itemized statement of such misappropriations being attached to the petition as a part thereof. [1, 2] The cause of action asserted against the Economy Store was an action for debt, arising out of an implied contract, while that asserted against the appellees was for a negligent failure of the alleged duty to watch over and supervise the conduct of the business by the manager Stern, and therefore that action sounded in tort. We think it clear that those two causes of action were separate and distinct, and that there was no It was further alleged that the defendants Adams, Halleck, and McDonald, while acting as directors of said corporation, negligently failed to perform their duties as such, in that they failed to watch over and supervise the business and prevent such misappropria-error in the conclusion reached by the trial tions by Stern, and as a result of such negligence the funds so misappropriated by Stern were lost to the corporation and to its creditors, including the plaintiff, and plaintiff sought to establish liability on the part of said directors by reason of such negligence. It was further alleged in the petition that the goods, for which recovery was sought, were sold upon the belier that the directors would perform their legal duty to look after and supervise the management of the business by Stern. It was further alleged that the trustee, Terrill, had failed and refused to institute suit against the directors for the benefit of the creditors of the corporation, al though plaintiff had requested him so to do. Plaintiff sought a judgment against the said directors individually, other than Stern, for its debt; and, in the alternative, in the event the court should hold that it could not have such relief without being joined by the other creditors, then that a judgment be rendered in its behalf and in behalf of all the other creditors of the Economy Store for the total sum of money found to have been misappropriated by the said Joe Stern, such recovery to be apportioned among all such creditors as might indicate a desire to participate therein. The plea of privilege to be sued in Dallas county, which was the county of their residence, filed by defendant Adams, Halleck, and McDonald, was in statutory form and duly verified. Those defendants also filed a plea of misjoinder of causes of action and of parties defendant; the principal contention of misjoinder being that the suit against the Economy Store was an action ex contractu, while that alleged against the directors is an action for tort and is ex delicto. In its controverting affidavit and plea, filed by plaintiff in reply to the plea of privilege, plaintiff invoked subdivision 4 of article 1830, Revised Statutes, which provides that where two or more defendants reside in dif court as shown in his findings on file that the appellees' plea of misjoinder of causes of action and of parties should be sustained. Frey v. Ft. W. & R. G. Ry. Co., 86 Tex. 465, 25 S. W. 609; Johnson v. Davis, 7 Tex. 173; Stewart v. Gordon, 65 Tex. 347; Thomas v. Chapman, 62 Tex. 193; Frost v. Frost, 45 Tex. 341; Garrett v. Brooks, 41 Tex. 479. If there is a misjoinder of parties defendant and of causes of action, subdivision 4 of article 1830, Revised Statutes, cannot be invoked to defeat the defendants' plea of privilege to be sued in the county of their residence merely because the venue of the suit as against a codefendant is properly laid in the county where the suit is instituted. Moorehouse v. App.) 139 S. W. 883. In the case of GalvesKing County Land & Cattle Co. (Tex. Civ. ton Dry Goods Co. v. Mitchell (Tex. Civ. App.) 171 S. W. 278, the following was said: the domicile is a valuable one, and litigants "The privilege to be sued in the county of cannot be deprived thereof by the joinder of causes of action which are separate and distinct." In support of that announcement, numerous decisions are cited. See, also, First Natl. Bank of Coleman v. Gates (Tex. Civ. App.) 213 S. W. 720; Rutledge v. Evans (Tex. Civ. App.) 219 S. W. 218. Appellant has cited authorities in support of its contention that the appellees, as directors of the Economy Store, would be liable to the corporation for losses sustained through their negligent failure to properly look after the business of the company. Conceding that those decisions announce a correct rule, they do not bear upon the question of misjoinder of parties and causes of action. Other decisions cited by appellant likewise cannot be given controlling effect in this suit for the same reason. We shall not attempt a discussion of such authorities, since we think it sufficient to say that in none of them, in which pleas of privilege were overruled by (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 the trial court, sustaining the plea of privilege and ordering a transfer of the cause to Dallas county, is affirmed. SANGER BROS. v. HAMMONDS et al. (No. 2683.) At the time of this transfer the note on its face showed that there were four other purchase-money notes of the same series. 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 by Sanger Bros. They later also acquired two other notes, of the second series. The note transferred to Cox by Wilson was sub (Court of Civil Appeals of Texas. Texarkana. sequently passed to the Republic National Feb. 22, 1923. Rehearing Denied March 8, 1923.) Vendor and purchaser 261 (5)-Failure to record portion of conveyance of purchase money note, stating that it was first lien on land, held to destroy its effect as notice of Its priority. The recording of the conveyance of a purchase-money note, where there was a failure to record that portion thereof which stated that it was the first and only lien on the land, held not notice to subsequent purchasers and lienholders of the priority of the note. Appeal from District Court, Smith County; J. R. Warren, Judge. . Suit by Sanger Bros. against C. C. Hammonds and others. From a judgment giving less relief than prayed, plaintiffs appeal. Reformed and affirmed. Bulloch & Ramey, of Tyler, for appellants. Bank of Dallas. Sanger Bros. brought this The record shows that the written conveyance of the note from Wilson to Cox was duly filed for record, but there was a failure to record the following portion: "That said note is the first and only lien on said land." It is conceded that at the time of this conveyance from Wilson to Cox, the former, then being the holder of all the notes of that series, had a right to assign a prior lien to Cox, and such was the legal effect of the A language used in the assignment. The trial court was of the opinion that, notwithstanding such a defect, in the record the filing of the conveyance for record, together with the record actually made by the clerk, furnished constructive notice to Sanger Bros. of Cox's prior lien. The correctness of that legal con HODGES, J. This suit is a controversy involving the priority of liens between the holders of different purchase-money notes. In February, 1918, C, C. Yates sold and conveyed the land in controversy to R. H. Wilson, and took as a part of the consideration four vendor's lien notes for $750 each. few months later Wilson sold the same land to C. C. Hammonds, and took as a part of the consideration five purchase-money notes, each for $1,212.05. In both of those transactions the vendor's lien was retained in both the notes and the deeds, and the deeds were duly recorded. In the conveyance from Wil-clusion is the only question presented. son to Hammonds the latter did not assume to pay the outstanding indebtedness of Wilson to Yates. On August 5, 1920, Wilson conveyed note No. 4 of the series executed by Hammonds to him to Cranfeld H. Cox. This assignment was evidenced by a written transfer, and contained the following recitation: In the case of Throckmorton v. Price, 28 Tex. 605, 91 Am. Dec. 334, a deed of trust had been filed with the clerk for record. While it was still in the custody of the clerk, and before it was placed on the record, the land was sold by the mortgagor to one who had no actual notice of the deed of trust. The question before the Supreme Court was, "For and in consideration of $1,212.05 to me When did constructive notice begin? Judge in hand paid by Cranfeld H. Cox, the receipt of Moore, in rendering the opinion, held that it which is hereby acknowledged, has this day sold, 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 lien sion upon provisions of the statute. In Taynote executed by C. C. Hammonds in favor of lor v. Harrison, 47 Tex. 454, 26 Am. Rep. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |