Imágenes de páginas

ley, square, place or sidewalks; and said term [1, 2] No power to levy a special assessshall also include any other street improvement ment or other tax exists in the city of Dallas, of a public nature and for a public benefit. unless the power is expressly granted by the

“The board of commissioners shall have pow- terms of the charter or is given by neceser to order the improvement of any public high- sary implication. It is not to be inferred unway or highways or parts thereof within the less the implication is so clear as necessarily city of Dallas, and shall have power to pre- to reveal a purpose to grant it. Municipal scribe the nature and extent of such improvements.

corporations, as has been' often declared, • When any person, firm or corpora- have no inherent power of taxation. This tion owns any railroad or street railroad or power inheres exclusively in the Legislature, railroad switch of any kind on such public high- to be conferred upon municipalities by that way or portion thereof ordered to be improved, department of government only to whatever such person, firm or corporation shall pay the extent may be declared by statutes enacted whole cost of such improvements between the or by charters granted. rails and tracks and for two feet on each side of the rails of such railroad or street rail the construction of storm sewers and drains

[3] We are of the opinion that, although road.

. Whenever the contract shall be let for any such improvement, the board of is not expressly included in the term “street commissioners shall levy a special tax upon the improvement” as it is defined in section 1, railroad, ties, rails, fixtures, rights and fran- article 10, of the charter, yet the expressions chise of such railroad or street railroad for otherwise improving the same” and “said the pro rata share due from such road for im- term (that is, street improvement) shall also provements between their tracks and rails and include any other street improvement of a two feet on each side thereof. Said tax shall public nature and for a public benefit" ought be levied at or after the time such contract is to be declared to comprehend the construclet or executed, and shall become due and de- tion of a storm sewer in connection with the linquent as the ordinance levying same may specify, and shall be a lien from the time of paving of a street, especially if the conlevy, and the proceeds thereof shall be used struction of such storm sewer is a necessary for the payment of the cost of such improve incident to paving. If the sewer could be ments.

Such assessments and lien regarded as entirely independent of the may also be enforced by suit brought in any street and as constituting no ingredient of court having jurisdiction thereof."

constructing the paving, then the cost of

constructing the sewer would not be a proper Plaintiff in error takes the position that charge against defendant in error, for the the question is whether the rule of ejusdem reason that an assessment levied for such generis is to govern the construction of the purpose would transcend the authority given final clause of the above copied section of the city of Dallas by its charter. But it article 10, and, further, whether, if applied seems that when a storm sewer is built for to it, storm sewers would thereby be exclud- the purpose of draining the water off the ed from what was intended to be included in surface of a particular street, it is regarded the expression "street improvements" as

as a part of the street itself, and it has been therein used. By the rule of ejusdem gen- | held that under municipal authority to levy eris, general words in a statute following the a special assessment for improving a street designation of particular subjects or classes, a municipality has the power to include in will ordinarily be presumed to be restricted the assessment levied the cost of constructto the particular subjects or classes mention- | ing a storm sewer. Gates v. City of Grand ed. Plaintiff in error states the rule to this Rapids, 134 Mich. 96, 95 N. W. 998; Page & effect, but insists that, since it is only a rule Jones on Taxation by Assessment, & 432. of construction, it does not override other No authority which holds the contrary bas rules of construction, and that, while the been called to our attention. purpose of it is to preserve a meaning for The resolution which was duly adopted by particular words, it is not intended to render the board of commissioners, ordering that meaningless the general words used in con- the street be improved, provided that it be nection with such particular words. It is improved by one of the methods and with accordingly argued that the particular words one of the materials named in the resolution, used in the above-quoted section of the city which resolution also provided that the street charter exhaust the class, and that under a should be raised, graded, and filled, that construction holding the general words “oth- concrete curbs be installed, and that storm erwise improving" and "other street improve- sewers and drains necessary to the public ments of a public nature” to be confined to improvement of the street be built. The a meaning relating altogether to surface im- city engineer was directed to prepare specifiprovements would render them redundant cations for the various forms of improvement and useless. Whereas, if these expressions named in the resolution, including storm were not construed, but were merely given sewers and drains, and he did make and their ordinary meaning and significance, they prepare such specifications, including storm would include the construction of the storm sewers and drains, which were considered sewer along Bryan street.

and acted upon through the processes lead(248 S.W.) Ing to the letting of the contract and the conIt applies to building sewers independent of struction of the storm sewer and drains in street construction. connection with the paving of the street. [7] There exists no authority in the city, It thus appears that the city commission however, to impose upon defendant in error determined as a fact that the construction of any cost of street improvement beyond the the sewer was a part of the street improve cost of such improvement "between and unment.

der the rails, tracks and switches of such [4, 5] While the power of the city to levy

street railroad, and two feet on a special assessment for local improvements the outside of the rails.

" Accordis limited strictly to the purposes provided ingly, we think that in no event could a for by its charter or by statute, yet, it seems greater portion of the cost of constructing that it is within the province of the city to the sewer and drains be imposed upon dedetermine whether or not a particular kind fendant in error than that incurred in buildof work is a part of a local improvement for ing the part of the storm sewer which lies which the authority to impose a local assess- under the space comprehended between the ment exists. 28 Cyc. 1108. Of course a rails and two feet on the outside of them. municipality does not possess the authority As 56.4 per cent. of the cost of constructing or right arbitrarily to declare a particular the sewer was levied against defendant in improvement to be a local one incident to error, which the trial court found to be improvements which it has the express char- greater than the per cent. of the sewer laid ter power to accomplish by means of a spe- under the part of the street of which the charcial assessment tax when in fact it is not. ter authorized improvements to be charged Its judgment and discretion in this respect against defendant in error, and since there is must be soundly exercised in arriving at a nothing in the record from which it can be de decision as to whether or not such improve termined what part of the assessment should ment is in fact an incident and necessary have been levied against defendant in er. part of the improvement authorized, and that ror, we cannot say that liability exists decision is always subject to judicial review. against it in any particular amount. The But, since the charter expressly authorizes fiat of the city commissioners in fixing the as "street improvement" not only improve amount at 56.4 per cent. of the entire cost ment of any street by doing the particular did not of itself create any liability or result things specified in section 1 of article 10, in any lien against defendant in error's propbut also "any other street improvement of a erty. No liability could come into existence, public nature and for a public benefit.” It and no lien could be created until the work seems to us that the cost of constructing the was actually done, and then only upon thu storm sewer and drains is necessarily en- basis above indicated. compassed in the definition of "street im- [8] We are not unmindful of the fact that provement contained in the charter, the an injustice might be done in assessing the board of commissioners, acting in conjunc cost of storm sewers upon the basis providtion with the city engineer, having deter- ed in the charter. A storm sewer laid under mined the construction of the sewer to be a particular street to drain it is related to all an improvement incident and essential to parts of the street uniformly to the same the paving of the street.

extent and in the same way. Its service is (6) Defendant in error contends that be- equally distributed to every portion of the cause section 4 of article 2, City Charter of street. It drains the whole area and every Dallas, provides that the board of commis- ' part of it with uniformity. Accordingly a sioners of the city of Dallas may levy a tax just proportion of the cost to be charged on all taxable property in the entire city to against a street railway we think ought to pay for the construction and repair of pub- be that per cent. of it which equals the per lic sewers, which tax shall be used exclusive- cent. of the entire paved area occupied by ly for that purpose, no other tax for the con- the street railway and two feet on the outstruction of any sewer can be levied. We do side thereof, regardless of whether the sewnot agree with this construction of the char- er is laid altogether along the edge of the ter. The fact that the charter permits the street or under the track area. But we canboard of commissioners to levy a special sew- not give the charter provision a construcer tax for the construction of a sewer system, tion to this effect without doing violence to which may embrace sanitary sewers, does its language. Legislation amending the charnot preclude the city from levying a special ter, and only this, can accomplish that effect. assessment to include the cost of construc- We accordingly reverse the judgment of ing a storm sewer in a street which is being the trial court and remand the cause for furpaved, the construction of such storm sewer ther proceedings to ascertain the extent of appearing to be a necessary incident to and liability against defendant in error in conpart of the street improvement to be made. formity with the views above expressed. Section 4 of article 2 is merely permissive. Reversed and remanded.

presented is that under the evidence the judgment should have been for the appellant.

The facts, giving the verdict and judgment its proper effect of settling any conflicts, are as follows: On Saturday, October 9, 1920, N. N. Rodgers agreed orally to buy the land from Crowley for a consideration of $500 cash and the assumption of payment of certain indebtedness against the land. The parties were at such time at Post, Tex., whereupon Crowley agreed to make deed and Rodgers paid Crowley the $500 in cash. Crowley told Rodgers then that he was going to Crosbyton, and would make the deed and mail it to Briscoe county for record. The deed was executed at Crosbyton, the date line, except the year, being left blank, and was acknowledged by Rodgers before a notary public of Crosby county, on October 11, 1920. It was filed for record in the county clerk's

2. Deeds 56(1)-Actual or manual delivery office of Briscoe county on October 13, 1920. not essential; "delivery." It does not appear how the deed was delivered to the clerk. Rodgers testified:


(No. 2010.) (Court of Civil Appeals of Texas. Amarillo. Feb. 21, 1923. Rehearing Denied March 21, 1923.)

1. Deeds 194 (3)-Presumption that deed was delivered at its date held to warrant finding that deed was delivered on date of its acknowledgment.

Where a landowner after selling land agreed to send the deed to the recorder's of

fice, and made a deed, and acknowledged it Oc

tober 11, but left the date line blank, except the year, on the deed being recorded October 13, the presumption that it was delivered at the time of its date, which in this case was the date of acknowledgment, in absence of facts inconsistent with the presumption, was sufficient to warrant a finding that it was delivered

October 11.

Although delivery of a deed is necessary to pass title, actual or manual delivery by the grantor in person to the grantee is not essential; any act or declaration by the grantor denoting an intention to give a present effect to the executed conveyance, such as leaving the deed with a notary or an attorney to be delivered to the grantee when called for, delivery to the recorder for registration, with instructions to deliver to the grantee when recorded, deposit in the post office addressed to the grantee, and acts of such character, being sufficient as a delivery.

[Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, DeliverDelivery.]

3. Deeds 194 (3)-Presumed that deed was delivered at time of its date.

It is presumed, in the absence of a showing to the contrary, that a deed was delivered at the time of its date.

Suit by N. N. Rodgers against C. S. Brown. From judgment for plaintiff, defendant appeals. Affirmed.

Appeal from District Court, Garza County; 105 Tex. 459, 151 S. W. 536. W. R. Spencer,. Judge.

[2] Delivery of a deed is essential to the passing of title, but "the actual or manual delivery by the grantor in person to the grantee is not essential." Henry v. Phillips, Any act or declaration on the part of the grantor, denoting an intention to give a present effect to the executed conveyance, is said to be sufficient to constitute delivery. Henry v. Phillips, supra ; Brown v. Brown, 61 Tex. 58; Hubbard v. Cox, 76 Tex. 239, 13 S. W. 170; 18 C. J. 197, 198; Devlin on Deeds, § 262. Thus leaving the deed with the notary or an attorney, to be delivered to the grantee when called for, delivery to the recorder for registration with instructions to deliver to the grantee when recorded, deposit in the post office addressed to the grantee, and acts of such character have been held sufficient to constitute delivery. Taylor v. Sanford, 108 Tex. 340, 193 S. W. 661, 5 A. L. R. 1660; Lynch v. The only question on appeal is one of Johnson, 171 N. C. 611, 89 S. E. 61; 18 C. J. priority as between the attachment lien and 200; Devlin on Deeds, §§ 274, 275, 291. If it deed whereby Crowley conveyed the land to had been shown that Crowley either mailed Rodgers. The decision of this question de- the deed himself or left it with the notary pends on a conclusion as to the time of the or some one else for mailing, or delivered it delivery of the deed. The one assignment to some private person for transmission to

BOYCE, J. [1] This suit was brought by appellee, N. N. Rodgers, to enjoin a sheriff's sale of certain land in Briscoe county, under order of sale issued out of the district court of Garza county, on a judgment in favor of C. S. Brown against J. P. Crowley, fore closing an attachment lien on said land; judgment was for the plaintiff.

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

"Crowley sent it to Silverton to have it put on record; I don't know whether or not he took it up there himself or sent it up there."

Percy Spencer, of Lubbock, for appellant.
G. E. Lockhart, of Tahoka, for appellee.

After being recorded the clerk "sent" it to the plaintiff or his bank, who paid the recording fees. An attachment issued out of a suit brought by C. S. Brown against J. P. Crowley was levied on the land on October 12, 1920. Judgment was subsequently rendered in this suit foreclosing the lien, and the injunction was against sale on this judgment. Rodgers told Brown before the attachment was levied that he had bought the land from Crowley.

(248 S.W.) the clerk for recording, such acts would un-y on its guaranty of a contract of nonresident questionably, we think, have warranted a defendant does not warrant the overruling of finding of delivery thereby.

the nonresident's plea of privilege to be sued [3] It is presumed, in the absence of a in the county of his residence, since the plainshowing to the contrary, that a deed was tiff is charged with knowledge that the bank delivered at the time of its date. Kirby v.

could not under the law guarantee the contract. Cartwright, 48 Tex, Civ. App. 8, 106 S. W 746; Kent v. Cecil (Tex, Civ. App.) 25 S. W.

Appeal from District Court, Leon County;

Carl T. Harper, Judge. 715; Beall v. Chatham (Tex. Civ. App.) 117 S. W. 492; Devlin on Deeds, $ 265; Raines v. Action by Alf Neeley against E. J. Gladish . Walker, 77 Va. 92; Hall v. Benner, 1 Pen. & and another. From a judgment overruling W. 402, 21 Am. Dec. 394. The date here is the named defendant's plea of privilege to that of the acknowledgment. There is be sued in the county of his residence, that nothing in the facts of this case inconsistent defendant appeals. Reversed, and judgment with this presumption, and we think it war. rendered sustaining the plea of privilege. ranted a finding that the deed was delivered

R. J. Randolph, of Madisonville, for apon the date of its acknowledgment, October 11th, which was before the levy of the attach

pellant. ment on October 12th. The judgment is therefore affirmed.

PLEASANTS, O. J. This appeal is from a judgment of the court below overruling a plea of privilege to be sued in the county of his residence, filed and presented by appel

lant. The suit was brought by appellee GLADISH v. NEELEY. (No. 8272.) against the appellant and the First State (Court of Civil Appeals of Texas. Galveston. Bank of Oakwood to recover damages for Feb. 2, 1923.)

the alleged breach by appellant of a contract 1. Venue 22(3)–Resident defendant does loads of hogs to be shipped by appellee from

for the purchase from appellee of two carnot defeat nonresident's plea of privilege Oakwood, in Leon county, to appellant at where cause of action is separate. A plea of privilege by a nonresident de Stratford, in Sherman county, and there

The First State fendant to be sued in the county of his resi. paid for by appellant. dence cannot be defeated under Vernon's Bank of Oakwood was made defendant upSayles' Ann. Civ. St. 1914, art. 1830, subd. 4, on allegations charging that it had warauthorizing suit in any county where any one ranted or guaranteed the performance of of the defendants resides, when the cause of the contract by the appellant, and judgment action shown against the defendant residing in was prayed for against appellant as princithe county in which the suit is brought is seppal and the bank as warrantor of the conarate and distinct from that alleged against the

tract. nonresident defendant.

Appellant's plea of privilege, which was 2. Venue 22(3)–Resident defendant guar filed and presented in due time and in propanteeing contract is not jointly liable with

er form, alleges that the residence of appelnonresident.

lant is in Sherman county and expressly A bank situated in the county in which the negatives all of the exceptions contained in suit was brought, which guaranteed the nonresident defendant's contract for the benefit the statute against the rule requiring suits of plaintiff and not at the request of or for the to be brought in the county of the defendbenefit of the nonresident defendant, was not ant's residence. It also contained an excepjointly liable with the nonresident defendant, tion to the petition on the ground that it so that the nonresident's plea of privilege was fails to allege a joint cause of action against improperly denied because of the joinder of the the appellant and the bank, and shows on bank as a defendant.

its face that the suit against appellant can3. Venue Ow22(3)-Plaintiff held to have no not be maintained in Leon county. It furcause of action against resident defendant. ther alleges:

A state bank has no authority under its charter to engage in a guaranty or surety busi

"That this defendant would further represent Dess, and therefore no cause of action can be that the plaintiff herein has made the defend· based on such guaranty, and the fact that the ant, First State Bank of Oakwood, a party for

bank was joined as a defendant in an action the fraudulent purpose of seeking to procure against a nonresident on the contract guaran- jurisdiction upon this defendant in Leon counteed does not warrant the refusal of the non- ty, Tex., although plaintiff well knows that the resident's plea of privilege to be sued in the First State Bank of Oakwood, Tex., if it has county of his residence.

warranted the payment of any amount involved

herein, did not do so at the instance, request, 4. Venue ma 22(3)-Good faith in seeking re- knowledge, consent, or acquiescence of this de

covery on unenforceable guaranty is imma: fendant, but for the sole and fraudulent purterial.

pose of endeavoring to deprive this defendant The fact that plaintiff was acting in good of his right to be sued in the county of his faith in seeking recovery from a resident bank / residence. That this defendant would further

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

represent and show that, if he be mistaken lant for the purchase price of the hogs apin any of the foregoing allegations as to said pellant had agreed to purchase from him. cause of action being severable, or the fraudu

In regard to this transaction with Mr. lent purpose of plaintiff in joining the defend- Barton, the appellant testified: ant, First State Bank of Oakwood, as a party defendant herein, that he alleges that there is a "I took that to mean that he wanted to satconspiracy between the plaintiff herein and the isfy himself and the bank there for the proFirst State Bank of Oakwood, Tex., whereby tection of Mr. Neeley, and whether I was able said bank has consented and agreed with plain to pay for the hogs. He did not say to me, 'Mr. tiff to be made party to this suit for the sole Gladish, I will be glad to help you all I can purpose of endeavoring to confer jurisdiction with your contract in this matter.' Anything upon its person and venue upon the said district that was said or done by Mr. Neeley and the court of Leon county, Tex., of the person of Oakwood State Bank was not for my benefit. this defendant so as to maintain this cause of The bank was trying to arrange some kind of action in this court and deprive this defendant way to be sure that Neeley would get his money of his right to have this cause of action trans- out of those hogs. I never called. upon the ferred to and tried in the district court of First State Bank of Oakwood to guarantee the Sherman county, Tex., and that First State performance of this contract for me." Bank of Oakwood in furtherance of said conspiracy with the plaintiff has agreed with plain- Before the hogs were shipped, appellant tiff that in no event will it be liable for any wired appellee that the contract had expired judgment of any kind or character that might and that he would only take them at the be rendered herein, but has consented and per- then market price: mitted that it would be made a party herein

Mr. Barton testified: for the sole and only purpose of seeking to fraudulently confer jurisdiction and venue of "My recollection of what took place there in this suit in the above styled court."

the bank the day that Mr. Neeley and Mr. Gladish were in the bank is about as follows:

Mr. Neeley came in and introduced Mr. Gladish Appellee filed a controverting affidavit, and said he was figuring on a contract with him which amplifies the allegation of the petition for the sale of some bogs, that Mr. Gladish had in respect to the warranty of the contract agreed to purchase one car of hogs froin him, by the bank, and expressly denies the allega- that the hogs had been shown to him there in tion of appellant's plea that the bank was town, that he had agreed to sell him one car made a party for the fraudulent purpose of of hogs at a stipulated price, to run in grade giving the district court of Leon county ju- like the ones he had seen, and during the conrisdiction of the suit against appellant, and versation I told Mr. Neeley that he would have

to find out how this stuff was to be paid for further specifically denies the allegations of before we could furnish him the money to buy conspiracy contained in appellant's plea.

the hogs. Yes, I furnished him the money with On the hearing of the plea the court over- which to buy the hogs, and I told him that we ruled the exception to the petition, and after would have to be satisfied where this money hearing the evidence rendered judgment was coming from and how it was coming, and

Mr. Gladish stated to me that he could have overruling the plea. The evidence upon the hearing was in sub- the draft at Oakwood. Yes, I had agreed to

his bank wire us guaranteeing the payment of stance as follows:

furnish Mr. Neeley the money to buy the hogs Appellant testified that he made a con- with. I think Mr. Gladish suggested that he tract with appellee to purchase from him would have lis bank wire us. I don't think the two carloads of hogs at nine cents per suggestion came from me first. Anyway, Mr. pound, f. o. b. cars at Oakwood. Appellee Gladish had his bank up there to wire us that was to obtain a public weigher's certificate they would pay for these bogs, that they would when the hogs were loaded and send it with with the certificate of the public weigher of

honor a draft on Mr. Gladish for these hogs a draft on appellant attached to appellant's Oakwood attached. bank at Stratford, for payment. After mak- "Q. Did the telegram say anything about the ing the agreement, at appellee's suggestion, draft being paid at Oakwood? A. When they they went to the First State Bank of Oak- wire that they will pay a draft, it is under. wood, and appellee introduced appellant to stood that they will pay free of exchange. Mr. J. W. Barton, the president of the bank, When it is paid free of exchange, that makes and submitted to him the terms of the agree. bankers, when one bank wires another bank

it payable in Oakwood. It is the custom of ment. Mr. Barton then suggested to appellant that he get his bank at Stratford to on them, to pay the draft but to have it sent

that they will honor a draft drawn by a party wire the Oakwood bank that any draft to them through regular channels. This teledrawn by appellee under the agreement for gram simply stated that this bank up there the purchase of the hogs would be paid by would honor a draft drawn by Neeley on Gladit. Appellant agreed to this and sent a tele-ish for the purchase price of the hogs. I fur. gram to the Stratford bank prepared by Mr. nished the money to buy these hogs, and erBarton. In reply to this telegram the Strat- pected to get it back out of the sale to Mr. ford bank wrote or wired the Oakwood bank Stratford bank. Mr. Neeley has never paid

Gladish. Neeley never did draw a draft on the that it would guarantee payment to Mr. back the money to the bank' that he borrowed Neeley of any draft with public weigher's to buy these hogs. It is still due. certificate attached drawn by him on appel- "I did not furnish any money to Alf Neeley

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