bought and used in the transportation of territory in the school district sought to be crechildren to and from school. The school ated, before such district shall be created, money belonging to district No. 2 of Har- shall each pass an order describing the terridin county was transferred to Tyler countory [of the district] desired to be created into ty and the school operated under this agreeing the course and direction with the exact such school district by metes and bounds, givment for five years. The agreement of the length of each line contained in such descriplocal trustees of said two districts to con- tion and locating each corner called for upon solidate was reduced to writing, approved the ground, and shall also give the acres of by the county superintendents of both Har- each survey and parts of surveys of lands condin and Tyler counties, and filed with the tained in such district, together with a map superintendent of Tyler county, but was showing the conditions upon the ground as never placed of record at any place and described in the field notes, giving the number of acres of land contained in each survey could not be found at the trial. The writ- and parts of survey contained in each county; ten agreement did not contain any stipu- also, showing the exact position and location of lation as to how long the agreement was to the county line in the territory created into a last. It was contended by appellants that common county line school district. The said it was only temporary, that the arrange- order of each commissioners' court shall also ment was brought about by the fact that designate and name some one of the counties the schoolhouse in district No. 2 of Har- having territory included in the description of such common county line school district to mandin county had burned, and there being no age and have control of the public school in place for them to have a school was the such common county line school district. The cause of the agreement, and that the ar- said common county line school district shall rangement was to continue only until they have no authority or power until the said orwere so situated as to rebuild and have a der of the commissioners' court has been passed school of their own; while the appellees by each commissioners' court of each county contended that the consolidation was to having territory included in such common counbe permanent. After five years the trusty line school district; provided, that no comtees of district No. 2 of Hardin county proceeded to make arrangements for a building and a resumption of their own district school, and gave notice of such fact to the Tyler county authorities; but the Tyler county authorities refused to recognize their right to do so, and brought this suit to restrain them, resulting as above stated.

As we view the record and construe the law, the determining question is: Was there a valid and legal consolidation of the two common school districts into a consolidated common school county line district?

Common school county line districts were first authorized by Act of the Twenty-Ninth Legislature in 1905 (Acts 1905, § 55, p. 277). This act required that a petition setting forth the boundaries of the proposed district, signed by a majority of the qualified voters with in said boundaries and approved by the county superintendent of public instruction of each county in which any part of the proposed district lay, should be presented to the commissioners' court of any one of said counties, and that said commissioners' court should have authority to establish such school district according to said petition. This remained the law as to the creation of common school county line districts until 1911, when same was amended, or rather superseded, by the Act of 1911 (Acts 1911, p. 200 [Vernon's Sayles' Ann. Civ. St. 1914, art. 2815a]). This act provided:

"Sec. 50a. The commissioners' courts of the several counties of the state of Texas shall have full power and authority to create common school districts, to contain territory within two or more counties of this state. In creating a common county line school district the commissioners' courts of each county having

ated with a less area than 16 square miles, and mon county line school district shall be creshall be laid out in as near the shape of a square as is possible, and in no event shall the length of such district be greater than the width plus one-third of the width of such districts."

Thus the law remained until the Act of 1917, chapter 196, § 1 (Vernon's Ann. Civ. St. Supp. 1918, art. 2815a), which reads:

Acts of the Thirty-Second Legislature, be "Section 1. That section 50a, chapter 100, amended so as to hereafter read as follows:

"Sec. 50a. The boards of county school trustees of the several counties of the state of Texas shall have full power and authority to create common school districts, to contain territory within two or more counties of this state. In creating a common county line school of each county having territory in the school district the boards of county school trustees [district] created, shall each pass an order describing the territory desired to be created into such school district by metes and bounds, giving the course and direction with the exact length of each line contained in such description and locating each corner called for upon the ground, and shall also give the acres of each survey and trict, together with a map showing the condiparts of survey of lands contained in such distions upon the ground as described in the field notes, giving the number of acres of land contained in each survey and parts of survey contained in each county; also showing the exact position and location of the county line in the territory created into a common county line school district. The said order of each board of county school trustees shall also designate and name some one of the counties having territory included in the description of such common county line school district to manage and have control of the public school in such common county line school district.

"The said common county line school district

(248 S.W.)

shall have no authority or power until the said order of the board of county school trustees has been passed by the board of county school trustees of each county having territory included in such county common line school district; provided, that no common county line school district shall be created with a less area than nine square miles, and shall be laid out in as near the shape of a square as possible, and in no event shall the length of such district be greater than the width plus one-half of the width of such district."

[1] "Board of county trustees" was cre

ated by Act of 1911, p. 34, § 4, and made a body corporate. This act was amended in 1915 (Acts 1915, c. 36, p. 68, § 2, now article 2749a, Vernon's Ann. Civ. St. Supp. 1918) by completely re-enacting and amending the whole subject covered by the original act. It vested the management and control of the public free schools in each county of

the state in five county trustees. It also

cal trustees of common school district No. 2 of Hardin county and common school district N. 40 of Tyler county simply agreeing to consolidate the two districts, and that the school in the consolidated district thus formed should be maintained in that portion of said district known as district No. 40 of Tyler county, and managed by the officials of said district in Tyler county, which agreement was reduced to writing and signed by the local trustees of said two districts and approved by the county superintendents of said two counties. No

action was asked of, nor was any taken by, the commissioners' courts of either Hardin or Tyler counties, as was then (1915) reThe attempted consolidaquired by law.

tion, in the manner and by the parties aforesaid, being wholly unauthorized, was unlawful, being contrary to the express pro

vision and policy of the law a mere nullity. Article 2815a, Vernon's Sayles' Ann. Civ. St. 1914; Davis v. Parks (Tex. Civ. App.) 157 S. W. 449. This was not an imperfect exercise on the part of said local school officials of a power they lawfully pos

gave them the powers theretofore vested in the commissioners' courts to subdivide the county into school districts, make changes in district lines, and to consolidate two or more districts for the establishment of rural high schools. It required the county super-sessed, but was an attempt to act without intendent, who was made ex officio secretary of the board of county school trustees, to keep an accurate and complete record of all changes made in school district lines, and in the consolidation of school districts,

power. Hence the act done was a nullity and is to be considered as if nothing had been done. Sydnor v. Roberts, 13 Tex. 616, 65 Am. Dec. 84.

[2] Appellees contend that though the disa certified copy of which should be trans-tricts were consolidated by the agreement of the local trustees of said districts, the mitted to the county clerk, who was re

quired to record same in a book kept for

that purpose, designated the "Record of School Districts," and gave the district court supervisory power and control of the board of county school trustees in creating, changing, and modifying school districts. It thus appears that the board of county school trustees did not have the power to create county line school districts until the act of 1917 above quoted.

Appellants' first proposition is: "The trial court erred in adjudging school district No. 2 of Hardin county, Tex., and school district No. 40 of Tyler county, Tex., to be consolidated, because the evidence showed, and the court so found, that the judgment of the court is based upon the action of the school trustees of said districts, who were without authority to consolidate said districts."

local officers of both districts and "all the

school officials of both Tyler and Hardin counties recognized such consolidated district as a valid district from the time of its attempted creation in 1915 until a short time

before the institution of this suit," and there

by "ratified and confirmed the consolidation

of said district."

The local trustees of the two districts and the county superintendents of the two counties being without power to create the consolidated county line school district in the manner attempted, their effort could not be given validity by the recognition of any officials. Fayette County v. Krause, 31 Tex. Civ. App. 569, 73 S. W. 51; Davis v. Parks (Tex. Civ. App.) 157 S. W. 449; Tomlinson v. Hunnicutt (Tex. Civ. App.) 147 S. W. 612.

[3] Appellees further insist that appellants This contention must be sustained. The having made the agreement with appellees to law has never given the local trustees of consolidate the two districts, and having for school districts the power to alter or change a number of years acquiesced in same, and their districts or to consolidate them as said district No. 40, Tyler county, having was here attempted. The power to create gene to the expense of employing another common county line school districts by con- teacher to accommodate the patronage from solidation or otherwise was at first lodged district No. 2, Hardin county, and having in the commissioners' courts of the various built an additional room to the school buildcounties, and remained there until the acting for that purpose, and having bought and of 1917, supra. It is admitted that the operated a transfer wagon to transfer the district here in question, consolidated coun- children of district No. 2. Hardin county, to ty line district No. 40, Tyler county, was and from said school, and that said parties attempted to be created in 1915 by the lo- having accepted said privileges of said con

solidation are estopped from denying the va- court dissolved. Appellees have filed a molidity of said district. tion for rehearing alleging error:

(248 S.W.)

trial docket is regular, and the entry made | a reversal as to all of the defendants. Verby the trial judge shows:

"All parties announced ready. Demurrers heard and taken with case, on full hearing defendants' exceptions overruled and judgment for plaintiff, to all of which defendants except and in open court give notice of appeal to the Court of Civil Appeals for the Ninth Supreme Judicial District, at Beaumont, Tex."

non's Sayles' Civil Statutes, art. 1997; Burleson v. Henderson, 4 Tex. 49; Dickson v. Burke, 28 Tex. 117; Brown v. Robertson, 28 Tex. 555; Tynberg v. Cohen, 76 Tex. 409, 13 S. W. 315; Hamilton v. Prescott, 73 Tex. 565, 11 S. W. 548; Thompson v. Kelley, 100 Tex. 539, 101 S. W., 1074; Nasworthy v. Draper, 9 Tex. Civ. App. 650, 29 S. W. 557; Reed v. Cavitt, 10 Tex. Civ. App. 373, 30 S. W. 575; Ferguson v. Dickinson (Tex. Civ. App.) 138 S. W. 221; Telegraph Co. v. Long (Tex. Civ. App.) 183 S. W. 421.

[8] Fourth. Appellees vigorously insist that we erred in holding that the only way in which county line school districts could be consolidated was in the manner pointed out in our original opinion, and also erred in holding that "the law has never given the local trustees of school districts the power to alter or change their districts or to consolidate them," as was attempted in the instant case; appellees insisting that such consolidation could be had by the agreement of the trustees of the districts sought to be consolidated, asserting that "the second way of consolidating districts is set forth in section 54, bulletin 48, of the School Laws of Texas, being article 2762 of Vernon's Sayles' Civil Statutes," and quotes the same as follows:

Counsel for appellants in their answer to the motion for rehearing, state that the judgment of the trial court was prepared by the attorneys for appellees on the eve of adjournment of the court for the term, and that the attorneys for appellants resided in another county, and not having been furnished with a copy of the judgment, were not aware that such omission appeared in the judgment until after the court adjourned for the term, but that it was understood and agreed that the judgment should show that all the defendants excepted thereto and gave notice of appeal, and that, in fact, such notice was given. The judgment as drawn and entered of record specified the names of the defendants that excepted to the judgment, and gave notice of appeal, but omitted to name Hardin county school district No. 2 and Hardin County State Bank. The entry on the trial docket, however, shows that all the defendants, in fact, excepted to the judgment and "By agreement of trustees, except as herein gave notice of appeal, and therefore were provided, no part of the school fund apporproperly before this court and entitled to the tioned to any district or county shall be transferred to any other district or county; providrelief granted. The jurisdiction of this courted, that districts lying in two or more counties depends upon the fact that notice of appeal and situated on the county line, may be conwas actually given and not upon the record solidated for the support of one or more schools of such fact. Vernon's Sayles' Civil Statutes, in such consolidated district; and, in such case, art. 1593; Western Union Telegraph Co. v. the school funds shall be transferred to the O'Keefe, 87 Tex. 423, 28 S. W. 945; Gilbough county in which the principal school building v. Building Co., 91 Tex. 621, 45 S. W. 385; for such consolidated district is located; and provided, further, that all the children residing Williams v. Knight Realty Co. (Tex. Civ. in a school district may be transferred to anApp.) 217 S. W. 755-757; Luse v. Parmer other district, or to an independent district, (Tex. Civ. App.) 221 S. W. 1031; Maury v. upon such terms as may be agreed upon by the Turner (Tex. Com. App.) 244 S. W. 809. trustees of said districts interested."

Appellees strongly contend that

"The above article clearly confers upon the trustees of said districts, to, by agreement, consolidate such districts for the purpose of maintaining one or more schools, etc."

[7] Moreover, whatever may be said as to the failure of the defendants, Hardin county school district No. 2 and Hardin County State Bank, to give notice of appeal (the perfected record shows such notice was, in fact, given), but if said defendants had not given such notice and had in no manner attempted to [9] We have not been favored with a copy appeal from said judgment, still the judg- of "Bulletin 48 of the School Laws of the ment against them could not be affirmed, for State of Texas," section 54 of which purports there was but one question, one issue in liti- to be article 2762 of the Revised Civil Statgation, and that was the validity of the so- utes, nor do we know by whom or by what called consolidated county line school dis- authority same was issued; but we will say trict. It was the only question in which any that there is no such article in the Revised of the parties litigant was interested, and its Statutes as is quoted by appellees and claimdetermination affected all of one side or the ed to be article 2762, Vernon's Sayles' Civil other alike. The interest of the parties de- Statutes. Article 2762 is section 92 of the fendant was not severable, and hence the Acts of 1905 (Gammel's Laws, vol. 12, p. 288), judgment was an entire and inseparable and does not contain the words "by agreement judgment, and if any one of the parties de- of trustees," beginning the article as quoted fendant appealed and obtained judgment fa- by appellees. It is true that in the Revised vorable to the one appealing, it operated as Statutes there is a headline to said article

reading that way, but same is no part of the article itself, never was, and the headline, we take it, was placed there by the publisher merely to call attention to the provision in said article permitting the transfer of funds and children from one district to another. Furthermore, the article, 2762, does not even attempt to provide for the consolidation of county line school districts, but merely deals with the transfer of school children and school funds from one district to another "upon such terms as may be agreed upon by the trustees of said districts interested," and not in any way affecting or providing for the

consolidation of districts.

No error having been shown, the motion is overruled.

SOVEREIGN CAMP, W. o. W., v.
HUBBARD. (No. 6571.)*

5. Insurance 723 (7)-Misrepresentation or mistake as to family history does not vitiate life policy not conditioned to be void on such ground.

A misrepresentation or mistake as to family history will not vitiate a life insurance policy conditioned to be void on certain grounds, of which incorrectness of family history is not

one.

6. Insurance 819(2)-Hearsay testimony as
to death of assured's brother held too un-
certain to justify forfeiture of policy.

say testimony of plaintiff as to a brother of
In a suit on a life insurance policy, hear-
the assured having died was too uncertain to
justify forfeiture of the policy on the ground
of misrepresentations as to family history.
7. Insurance 815(4)-Forfeiture not per-
mitted where no allegation of misrepresen-
tations in application.

Where it is not alleged that representations made in the application for a life insurance pol

(Court of Civil Appeals of Texas. San An- icy were false, the policy will not be forfeited

tonio. May 26, 1921. Rehearing
Denied June 18, 1921.)

1. Pleading 403 (3)-Plaintiff's pleadings as
aided by defendant's answer held good on
general demurrer.

In a suit on a fraternal benefit certificate, plaintiff's pleadings, as aided by defendant's answer attacking the certificate on the ground alone that it was not delivered to deceased whlie she was in good health, but not denying that all other conditions were complied with, held good on general demurrer; every intendment of the pleader being read into the petition.

2. Insurance 724 (1)-Benefit society held estopped to assert nondelivery of policy to assured.

Where under the terms of the constitution and laws of a fraternal benefit society a life insurance certificate issued by it was not valid unless delivered to the assured, the society was estopped to set up nondelivery as a defense where it delivered the certificate without protest or notice to the beneficiary, accepted payment of dues from him, and did not call his attention to the requirement.

3. Insurance 724 (1) — Parol waiver of condition good though required to be in writing where no evidence showing no written waiver. In a suit on a life insurance certificate issued by a fraternal benefit society, where plaintiff proved a parol waiver of a condition requiring delivery of the policy to the assured, and there was no allegation or testimony that a waiver in writing, signed by the commander or clerk, was not made, plaintiff could recover; a parol waiver being good, though required to be in writing.

4. Insurance 723 (7)-Incorrect history of applicant's family does not vitiate life policy where no falsity or intent to deceive.

Where there was no evidence of any falsity or intent to deceive in the assured's representations in her application for a life insurance policy as to her family history, an incorrect history did not vitiate the policy.

on such ground, as forfeitures are not favored and should never be permitted except under full allegation and proof.

Error from District Court, Bexar County; J. T. Sluder, Judge.

Action by Amadeo S. Hubbard against the Sovereign Camp, Woodmen of the World. Judgment for plaintiff, and defendant brings error. Affirmed.

E. D. Henry, John H. Bickett, Jr., and L M. Bickett, all of San Antonio, for plaintiff in error.

Wm. H. Russell, of San Antonio, for defendant in error.

FLY, C. J. This is a suit by defendant in error, Hubbard, to recover on a policy for $500 on the life of his deceased wife, Maria P. Alba de Hubbard, which policy was issued by plaintiff in error, a fraternal beneficiary society or association. The society filed a general demurrer, and four special excep tions, and answered that on April 1, 1919, it issued the certificate sued on to Maria Patracinio Alba de Hubbard that it was granted on condition of the payment of the stated monthly premium named in the policy and further consideration of the delivery of the certificate during the lifetime and good health of the member; that the certificate, the articles of incorporation, and the constitution and laws of the Sovereign Camp of the society and all amendments which might thereafter be made contained the entire con

tract between the parties. It was further al-
leged that the certificate provided that it
should be delivered to the member in person
while in good health. It was alleged that the
certificate was never delivered to Mrs. Hub-
bard in person, and that about April 20, some
three weeks after the certificate was issued,
Mrs Hubbard became sick and remained in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Writ of error dismissed for want of jurisdiction January 13, 1923.