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304, a conveyance had been executed and Cox, Lewis et al. v. Ross et al., 95 Tex. properly acknowledged by both the grantor 358, 67 S. W. 405. and his wife. It was later filed for record, While the conveyance filed with the clerk and all of it recorded except the acknowledg. is still in his office, the statute makes that ment. Judge Moore, who also rendered the notice of all the conveyance contains; but opinion in this case, held that the defect, in when the conveyance has been placed of recthe record was not notice. In the discussion ord and the original instrument withdrawn be used this language:

from the custody of the clerk, the statute

makes the record the notice, and that record “It is therefore held, that a deed not prop is the only notice which subsequent purchaserly acknowledged or proved for record, although in fact duly executed, will not operate ers and lienholders may have. Let us supas notice of such deed; and though it may have pose that an instrument is filed for record been duly proved or acknowledged for record, and afterwards withdrawn with a certificate if, in some material respect, it has been im- from the clerk that it had been recorded, properly recorded, the same result follows from when in fact no record had been made. Can such omission, and the record will only give it be said that the filing would perpetuate the notice of the existence of such an instrument as constructive notice which began when the that exbibited by it."

instrument was deposited with the clerk?

We think it would be manifestly unjust to That case has been regarded by some so hold. One who relies upon a record to courts as being in conflict with the case of protect his rights is charged with a knowlThrockmorton v. Price. See Dean et al. v. edge of what that record contains. It has Gibson (Tex. Civ. App.) 48 S. W. 57; Wm. been said that the holder of a deed filed for Carlisle & Co. v. King (Tex. Civ. App.) 122 S. record is not required to see that the clerk W. 581. This last case, however, does not fol- performs his duty. That may be true in low that view.

some instances; but the holder of such an inWhen examined in the light of the facts, strument should be required to take notice there is no real conflict between these two of the clerk's failure to do his duty in the cases. In Throckmorton v. Price the instru- making of a defective record. ment recorded had been filed with the clerk We are of the opinion that the court erred as required by statute, and was in his cus-in holding that the defective record of the tody continuously from that time until it conveyance of the note from Wilson to Cox was recorded and afterwards withdrawn. was constructive notice to Sanger Bros. The The question there was, When did record judgment will therefore be reformed so as notice begin? The statute answers that questo permit Sanger Bros. to participate upon tion. In Taylor v. Harrison the deed had an equal basis with the holders of all the been filed with the clerk, and all of it put notes in the second series. on record except the acknowledgment. It Reformed and affirmed. was then withdrawn from the office of the clerk, leaving as notice to others dealing with that property only a defective record. The Supreme Court held that such a record BARKER v. SECURITY STATE BANK OF was not constructive notice, because it did

BOWIE. (No. 10061.) not show an instrument that was, under the Court of Civil Appeals of Texas. Fort Worth. statute, subject to record. It was, in effect, Nov. 18, 1922. Rehearing Denied held that subsequent purchasers and lien

Jan. 6, 1923.) holders had no constructive notice of any. 1. Garnishment P88Affidavit held fatally thing beyond what was disclosed by that

defective for failure to name all defendants. record. That situation is strikingly similar

An affidavit issued pursuant to Vernon's to the one presented in this appeal. Here the Sayles' Ann. Civ. St. 1914, art. 271, which transfer of the note was filed with the clerk. named as defendants in the original suit “A. He recorded all of it except that which as- M. G. et al.," held fatally defective for signed the prior lien on the property. The failure to name all the defendants, since it is omission of that provision and the withdraw. not required that the pleadings in the original al of the original instrument left subsequent suit be served upon the garnishee, nor is he purchasers and lienholders without any no- required to resort to the original pleadings or tice that a prior lien had also been conveyed fendants, and, in the absence of such informa

citations to ascertain the names of all de. to Cox. Had Sanger Bros., at the time of tion, he would be unable to answer as required their purchase of the two notes of that se- by articles 274 and 276. ries, consulted this record, they would have

2. Garnishment Om2, 87-Garnishment prolearned only that Wilson had assigned one of

ceedings strictly construed; affidavit not aid. the notes of that series to Cox. They had a

ed by record. right to rely upon that record as being liter Garnishment proceedings, being summary in ally true and complete. Such an assignment nature like attachment, are strictly construed, as that on record did not give any priority to land the aflidavit cannot be aided by the record.

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(248 S.W.) 3. Garnishment Ow88–Affidavit held fatally The affidavit was attacked upon two defective for failure to state whether gar- grounds: First, that it failed to give the nishee was corporation or partnership. names of all the defendants in the original

Failure of an affidavit to specify whether suit instituted by Barker to recover his debt; a bank garnishee was a corporation, a partner- and, second, that said affidavit fails to state ship, or an association of persons, giving the whether "the Security State Bank of Bowie" names of those composing such partnership or association, as required by Rev. St., art. 273, tion of persons, giving the names of those

is a corporation, a partnership, or an associaheld fatally defective.

composing such partnership or association.

Rev. Stats. art. 273. We are of the opinion Appeal from Clay County Court; R. Lof- that both objections to the affidavit were well tin, Judge.

taken. Article 271, V. S. Tex. Civ. Stats., 80

far as applicable, reads:
Action by W. M. Barker against the Secur-
ity State Bank of Bowie, as garnishee in an

"The clerks of the district and county courts action against A. M. Gibbs and others. From and justices of the peace may issue writs of

a judgment of the county court quashing the garnishment, returnable to their respective be der garnishment affidavit, plaintiff appeals. Af-courts, in the following cases: firmed.

"2. Where the plaintiff sues for debt and Benson & Benson, of Bowie, for appellant makes afhdavit that such debt is just, due and Donald & Donald, of Bowie, for appellee. unpaid, and that the defendant has not within

his knowledge property in his possession within

this State, subject to execution, sufficient to CONNER, C. J. The appellant, W. M. satisfy such debt; and that the garnishment Barker, instituted this suit against the ap- applied for is not sued out to injure either the pellee, the Security State Bank of Bowie, as defendant or the garnishee." garnisbee. That suit was instituted in the justice court. The result of a trial in that

When properly served, the garnishee is recourt was in favor of the garnishee, and ap

quired pellant, Barker, appealed to the county court, “to answer upon oath what, if anything, he is where the case was dismissed upon appellee's indebted to the defendant, and was when such motion to quash the affidavit upon which the writ was served, and what effects, if any, of the garnishment proceedings were based, and he defendant he has in his possession, and had has appealed to this court.

when such writ was served, and what other per[1] The affidavit in

sons, if any, within his knowledge, are indebted garnishment reads

to the defendant or have effects belonging to as follows:

him in their possession." V. S. Tex. Civ.

Statutes, art. 274. "W. M. Barker, Plaintiff, y. A. M. Gibbs et al., Letendants. No. 35.

Such is the command of the writ. See Rev. "In the Justice Court, Precinct No. 6, Clay Statutes, art. 276. County, Texas.

[2] How, then, could the garnishee in this "And now comes W. M. Barker and, upon

case, fully answer the writ served upon him bath, says that he is plaintiff in the 'above when the name of one defendant only was entitled cause and makes application for a writ stateď? Nothing in the statutes required of garnishment against the Security State service upon him of the pleadings of the Bank of Bowie; and affiant further says that plaintiff in the original suit, nor is he resuit has been instituted for debt against A. M. quired to resort to the original pleadings, Gibbs et al., defendants in the justice court of if any, or to the citations against the origiprecinct No. 6, of Cay county, Texas, to re-nal defendants, if any, in order to ascertain cover the sum of one hundred sixty-three and the names of all of the defendants, and thus 38/100 ($163.35) dollars; that said debt is just

, due and unpaid, and that the defendants be enabled to fully answer the writ. On the bere not within afiant's knowledge, property contrary, the distinct holdings of our cases within their possession within this state, sub- are to the effect that garnishment is merely ject to execution, sufficient to satisfy said debt; a species of attachment, a summary proceedthat he has reason to believe, and does believe, ing, and, like attachment proceedings, to be that the Security State Bank of Bowie, who strictly construed, and the affidavit in garresides in Montague county, in the state of Tex- nishment cannot be aided by the record. See as, is indebted to the said defendants or has in Scurlock & Rutledge v. G. C. & S. F. ky. Co., its hands effects belonging to said defendants. 77 Tex. 478, 14 S. W. 148; Willis v. Lyman, And be further says that the garnishment ap- 22 Tex. 263. In the case last cited, the plied for is not sued out to injure either the court, among other things, stated the follows garnishee or the said defendants.

"W. M. Barker.

ing: "Subscribed and sworn to before me this 31st "There can be no good reason why the same day of May, A. D. 1921.

strictness should not be required in respect "J. P. Welch,

to garnishments, as in other cases of attach"Justice of the Peace, Precinct No. 6, ment; for garnishments are but a species of

"Clay Co., Texas.” attachment. The writ of garnishment brings Erma For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

into court strangers to the judgment, or to In Smith v. Wallis, 18 Tex. Civ. App. 402, the original suit, as the case may be, and sub- 45 S. W. 820, it was held that an affidavit for jects them to much inconvenience and hazard. garnishment setting out the name of a mer. It often happens, or to say the least, it some-cantile firm without giving the names of the , times happens, that garnishees are obliged to pay twice, because the court is not informed of persons who composed it, was insufficient. all the facts in the particular case.

For these In Underwood v. First National Bank (Tex. reasons, proceedings against garnishees ought Civ. App.) 62 S. W. 943, it was held that an not to be sustained, unless they are in strict affidavit in a justice court, for a writ of garconformity with the requirements of the law." nishment against a corporation, which did

not allege that such garnishee was a corporaIn the case of Buerger v. Wells, 110 Tex. tion, was fatally defective. 566, 222 S. W. 151, our Supreme Court, in an The case of Modern Dairy & Creamery Co. opinion by Chief Justice Phillips, held that v. Blanke & Hauk Supply Co. (Tex. Civ. App.) the plaintiff, in a suit for debt against more 116 S. W. 154, cited by appellee in opposition than one defendant, cannot call a stranger to the decision in the case of Underwood v. into court on a writ of garnishment, subject- First National Bank, supra, is distinquishing such stranger to inconvenience of pro-able, we think. The opinion in the two cases ceeding, and possible hazard, if either de- were written by the same able judge, and it fendant has property in the state subject to is not only altogether improbable that in execution. The affidavit, therefore, in a case writing the opinion in the case of Modern where there is more than one defendant sued Dairy & Creamery Co. v. Blanke & Hauk, sufor a debt, should distinctly name each de pra, he overlooked his opinion in the case of fendant, and that neither, nor all, within the Underwood v. Bank, supra, but the latter case affiant's knowledge, have property in his or is cited with evident approval in the former. their possession within this state subject to In the two cases there is no necessary conexecution sufficient to satisfy the plaintiff's flict. In the one, the writ of garnishment was debt. We conclude, therefore, as before stat- sued out against a corporation, not alleged to ed, the objection first stated to the affidavit be a corporation, and it was, as stated, held in garnishment is well taken.

that the affidavit was defective. In the other, [3] What we have said in disposing of the the defendant in the original suit was a corfirst objection, also applies, in part at least, poration, and the garnishee was an individwe think to the second. In the case of Bank ual, distinctly named in the affidavit for the v. Simonton, 2 Tex. 531, where the suit was writ, and it was held that nothing in the arbrought in the name of “the president and di- ticles of the state prescribing the requisites rectors of the Bank of the State of Alabama," of an affidavit for garnishment, required the (a foreign corporation) upon a note set out in statement that the defendant in the original the petition which contained no allegation suit was a corporation. that the plaintiffs were a corporation, and no As will be readily seen by an examination allegation whatever respecting the capacity of our statutes, regulations relating to the or character in which they sued, it was held service of writs, against whom judgment that the petition was subject to special de- shall be rendered, etc., do not apply alike, in murrer in this respect. And our Supreme numerous particulars, to partnership firms, Court later held, in the case of Holloway v. associations, and corporations. Memphis, E. P. & P. R. R. Co., 23 Tex. 465, We therefore, think, for the reasons stat76 Am. Dec. 68, that in principle, what ed, that the affidavit for garnishment under was stated in the Simonton Case, applied consideration is fatally defective, in that it as well to domestic corporations created failed to state whether the Security State by private act of which the court could not Bank of Bowie was a corporation, associatake judicial notice. See, also, G. H. & S. A. tion, or partnership. Ry. Co. v. Smith, 81 Tex. 479, 17 S. W. 133. The judgment below is accordingly affirmed.

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(248 S.W.)

Appeal from District Court, Wichita Coun. FARQUHARSON et al. v. FRESNO OIL CO.* ty; P. A. Martin, Judge. (No. 10060.)

Action by the Fresno Oil Company against nes

From a ASTİON:

(Court of Civil Appeals of Texas. Fort Worth, C. B. Farquharson and others. Bank ilk

Nov. 25, 1922. Rehearing Denied judgment for plaintiff, defendants appeal.
Jan. 6, 1923.)

Affirmed in part and reversed in part, if

remittitur not filed within 12 days. 1. Appeal and error 162(3)-Partial com John T. Suggs, of Denison, for appellants. pliance with terms of judgment held not to

Kay, Akin & Kenley, of Wichita Falls, estop appeal therefrom.

and Theodore Mack, of Fort Worth, for apAppellant's acceptance of money declared

by a judgment to be his and a return by him
of certain personal property awarded to the

adverse party held not to estop him from ap DUNKLIN, J. Cup

On November 18, 1919, pealing from the judgment.

C. B. Farquharson entered into a contract for 2. Trial 635-Admission of default at time the conveyance of certain oil leases then ownof trial does not preclude evidence as to when ed by him in Wichita county to the Fresno it occurred.

Oil Company. Part of the consideration for The admission of a default at the time of the conveyance was cash paid by the oil comtrial in performance of a contract under which pany, and a part was deferred and secured a litigant had been operating an oil lease held by a lien on the leases. The Fresno Oil pot to preclude the introduction of testimony Company then went into possession of the that, due to an extension allowed on notes, the property, and began to operate it for the default did not occur until 60 days later than production of oil therefrom. Later Farthe date alleged by the adverse party so as to quharson instituted suit against the oil Farrant a recovery of expenses incurred during such 60 days, which would not otherwise company to specifically enforce its agreebe recoverable if it appeared that the posses- ment to make deferred payments. A written sion was that of a trespasser.

agreement of compromise of that controversy

was entered into between the parties, by 3. Appeal and error 1056(4)—Exclusion of the terms of which that suit was to be distestimony held harmless error, where court's missed, which was done, and Farquharson adverse finding unquestioned.

was given the option to purchase all of the Any error in the exclusion of testimony that interest of the oil company in the property defendant's attorney had not admitted, or in- for the sum of $200,000; the oil company tended to admit, or was not authorized to ad- being treated in the contract as the owner mit, default in contract, was rendered harm

Farquharson paid to the less

, where the court's finding that such a de- of the property. fault existed was allowed to go unchallenged oil company $20,000 in cash, and executed on appeal.

his notes for the balance of the consideration inte

so agreed on, one of which was for the 4. Appeal and error w205 - Objection to principal sum of $100,000, due 60 days after auditor's report, not filed as required by stat. date, and one for $80,000, due 180 days after ute, cannot be heard on appeal.

date, The written agreement further stipError cannot be predicated on the exclu- ulated that the oil company should execute sion of testimony showing certain items on an auditor's report, improper where the report

to Farquharson a proper deed of assignment was filed several days before trial and no ex

covering the leases and personal property ceptions were filed as required by Rev. St. art. thereon situated, which assignment was plac2126, and particularly where the record shows ed in escrow in a certain bank doing business the contract involving necessity for such audit in Wichita Falls, Tex. was subsequently terminated by agreement.

It was further stipulated in that agree

ment that an accounting should be made by 6. Appeal and error w209(4) --Assignment the oil company of its receipts and expendi. that respondent failed to show title to oil tures during the time it had held the proplease held without merit.

Or appeal in an action by an oil company erty under the first agreement with Farconcerning a lease, title to which stood in the quharson, and that, if said accounting showname of a trustee, who was not a party, the ed that the oil company had sustained a loss contention on appeal that the company had

as a result of such operation, Farquharson failed to show title is without merit, where it should pay to the oil company the amount conclusively appears that all parties recognized of such loss, in addition to the $200,000 menthe company's title below.

tioned; but that should such accounting 6. Appeal and error 1041 (2)--Refusal to show that the oil company had made a profit permit filing of amended pleading held not from such operations, over and above the

expenses incurred, the amount of such prof. Refusal to permit amendment of pleading its should be credited upon the notes se exsetting up a new defense is not reversible er

ecuted by Farquharson to the oil company. Tot where the defense is available under a gen. In said written agreement last mentioned, it

was further provided that, if Farquharson Fan For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Writ of error dismissed for want of jurisdiction February 28, 1923.

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reversible error.

eral denial already filed.



should make default in the payment of der'a correct account of its receipts and said two promissory notes according to disbursements during the time it operated their terms, the property should revert back the leases under its contract of purchase to the oil company, unless the due date of from Farquharson. In that connection be such payments should be extended by the alleged that the oil company had, during oil company, and that in case of a return of such operation, realized the sum of $45,000 the property to the oil company for such de- as profits from the sale of oil secured from fault, Farquharson's notes then outstand the leases during its operation thereof, over ing should be returned to him, but the oil and above the expenses incurred by it, which company should retain the $20,000 cash paid amount he claimed should have been creditby Farquharson as liquidated damages for ed upon the notes he bad executed to the oil his said default.

company. He offered to carry out his conIt was further provided that in case of tract according to its terms if the credit be such reversion of the property Farquharson allowed him, and alleged that he would have should account to the oil company for any paid said notes if the plaintiff had given profits realized by him from the operation of him the proper credit thereon. Farquharson the leases during his possession of them, and further pleaded that plaintiff had no right should return the wells to the oil company to maintain the suit until he had first renin good condition; and that he should ex- dered a proper accounting of its operation ecute to the oil company a bond, with a good of the leases and given the defendant the and sufficient surety, in the penal sum of proper credit for any profits arising there $100,000, to insure the performance of Far- from. quharson's obligation to so return the wells During Farquharson's operation of the on said leases in good condition and to pay leases, he had sold oil from the leases there. to the oil company the profits so realized by on to the Sunshine State Oil & Refining him from the operation of the leases under Company, and that company was due him for said last-mentioned agreement. The bond said purchases the sum of $14,424.39. That so provided for was executed and delivered-company was notified by the plaintiff comexecuted by Farquharson as principal and the pany by a letter not to pay over that indebt. Southern Surety Company as surety.

edness of Farquharson, pending the settleOn February 22, 1921, the Fresno Oil Com- ment of the controversy between the plaintiff pany instituted this suit against Farquhar- company and Farquharson, and by son and the Southern Surety Company, and son of that letter such payment was withJ. R. Posey and L. E. White, in trespass to held from Farquharson. Farquharson, by a try title for the recovery of the leases and proper plea, sought to make the Sunshine also for damages. Posey and White were Company a party to the suit for the purpose superintendent and lease foreman, respective of determining his right to collect the amount ly, for Farquharson, but claimed no interest so due by that company. But that company in the property themselves.

was nerer served with citation and never Following a count in the plaintiff's peti- filed any pleading in the case nor entered its tion, which was in the ordinary form of tres appearance. pass to try title, plaintiff alleged the execu The suit was tried before the court withtion of the last-mentioned contract by Far- out a jury, and the trial judge filed his findquharson, the execution and delivery of the ing of fact and conclusions of law, and, upon notes and surety bond, and further alleged such findings and conclusions, a judgment Farquharson's default in the payment of the was rendered in favor of the plaintiff, awardnotes and the breach of his contract to ac- ing title to the leases as against all the defend. count to the oil company for the profits real- ants, canceling Farquharson's notes executed ized from the leases during his operation to it for the purchase money, and awardthereof. Plaintiff also alleged improper oper- ing to plaintiff a judgment against Farquhar. ation of the leases by Farquharson and dam- son for the sum of $39,452.39, and against age to the wells occasioned thereby, the the Southern Surety Company, as surety, amount of which damage, plus the amount for the sum of $27,164.81 of said amount. of such profits so realized by Farquharson, It was further decreed that, was alleged to be $100,000. Plaintiff prayed

"All claims, right, title, or interest to the for the recovery of the property and for a funds of $14,424.39 'shown to be impounded in judgment awarding it the damages claimed the hands of the Sunshine State Oil & Refin. in its petition and for a cancellation of the ing Company be and the same is hereby, justly assignment of the leases to Farquharson vested in the defendant C. B. Farquharson as which had been executed by the oil com- against all parties bereto." pany and placed in escrow in a bank.

Farquharson filed an answer which con From that judgment Farquharson and the tained a general demurrer and a general Southern Surety Company have appealed. denial, and a plea of not guilty, to the ac [1] It appears from the record that after tion in trespass to try title. And, further the rendition of the foregoing judgment, and answering, he alleged a default on the part after the appellants had given notice of the

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