entered, the defendant, after its motion for a new trial had been overruled, has appealed. George Frank Parsons held two policies or benefit certificates, one for $1,000 and the other for $2,000. The smaller was taken out [1] Appellant's first assignment of error first, and the larger, being known as the is as follows: "The court erred in overruling the defendant's motion for a new trial because the evidence is insufficient to show that George Frank Parsons had paid his dues and assessments for the month of February, 1913, by the 1st day of March in said year, in compliance with defendant's bylaws and contract." "increased benefit," was applied for by him on December 23, 1912, and the certificate therefor, duly executed by the proper officers of the association on January 7, 1913, was delivered to him on February 1, 1913. Defendant failed to show on the trial that the rates on the increased insurance had not In his second application for a benefit been paid at a proper time, although resting certificate, made in December, 1912, George under the burden to prove this if it would Frank Parsons agreed and warranted that escape liability by reason of his failure to his failure to pay any monthly rate or as- so pay; but, on the contrary, the proof adsessment which should be made by the or-duced by plaintiff was sufficient to justify a der within the time provided by its laws, finding that he did pay such rates in advance, or to pay the dues fixed by its laws, or in the manner and at the time provided by its laws or the by-laws of the local lodge or "tent" to which he might belong, should vitiate his benefit certificate and forfeit all payments made thereon. Section 330 of the laws of the order pro vides that: and we so find. lodge, and under the laws of the order it was made his duty, as such officer, to collect from each member of the local tent his monthly dues, assessments, etc., all of which fell due on the 1st day of the month. Under the Parsons was record keeper of his tent or "A life benefit member failing to pay a month-laws of the association, while the dues, asly rate, per capita tax, or additional assessment sessments, etc., became due on the 1st day of within a month from the first day on which it the month, the members had a right to pay is due, shall stand suspended, without notice, the same at any time before the 1st day of the from all rights of life benefit membership and from all the benefits and privileges of his tent." next succeeding month, thus giving to each Section 332 provides: member a full month after maturity in which "These monthly rates will be due, without no-to make payment. Under the laws of the detice, on the first day of each month and must fendant the record keeper was required to rebe paid by the member to his tent record keep-mit to the Supreme Tent the assessments coler on or before the last day of the month. The first of the above monthly rates shall become due and payable on the date of admission, or on the delivery of the certificate in case of increase in the benefits, and must be paid in either case before the member shall have any right to par ticipate in the life benefit fund of the associa tion." Section 309 provides that a member shall not be entitled to participate in the life benefit fund of the association for an increased amount until he has paid the record keeper of his tent an advance monthly rate of such increase. Section 159 provides that the tent or local lodge, in performing the duties and administering the powers provided by the laws of the association, shall be the agent of the members thereof and not of the association, and that no act or failure to act by the tent, or by any officer or member thereof, shall create or be construed to create any liability on the part of the association. Section 270 provides: "No member shall be in good standing in the association unless he has paid all monthly rates, additional assessments, the per capita taxes, fraternal tax, dues and fines levied against him, and has complied in every particular with. the laws of the association." Section 234 declares the record keeper of the local tent to be the agent of the tent and its members and not the agent of the association, and that no act or failure to act on his part shall have the effect of creating any liability on the part of the association, or of waiving any right belonging to it. lected by him during the month on the first week day after the 15th day of the next succeeding month. Thus assessments collected during the month of February, 1913, were required to be remitted on the first week day after the 15th day of March, 1913. The local tent of which Parsons was a member had selected a bank in Lufkin as a depository for the funds collected by the record keeper, and required Parsons, as such officer, to deposit such funds therein as collected. Parsons, for his services in making such collections, was allowed ten cents for the amount collected from each member. In the month of February, 1913, he collected from 34 members, thus being entitled to $3.40 as compensation; and the amount of such collections, including the $3.40 he was entitled to as his compensation, was deposited by him in the depository bank. The evidence shows that the $3.40 due him as such compensation and so deposited with other funds to be remitted to the Supreme Tent after the 15th of March was more than sufficient to pay the assessments due on February 1st, on both of the certificates held by him. In this connection P. A. McCarthy, the commander of the tent at Lufkin, testified: "Mr. Parsons was the 'record keeper' during the months of January and February, 1913. His duties, as I before said, were to collect these dues as they became due from the individual members of the tent. He would, of course, collect from himself, or was supposed to, just the same as from anybody else. I sup pose that he had the money to pay his dues with. There was nothing to do except to include it when he made his report. I do not suppose he would have to do anything else except include his when he made his report. As to whether or not I understand that the way he would collect his dues from himself would be to just include his in the report, will say that is the way I would do. So far as we could tell and were advised when we made that report, Parsons was in good standing. * * As to whether or not I feel now that he was in good standing, will say that I do not question that at all." The jury found that Parsons was killed in an explosion in the Lufkin depot in March 2, 1913, which was nearly two weeks prior to the time he was required by the laws of the order to remit the collections made by him from the members, including himself. disputed evidence shows that Parsons is still alive; (b) that disregarding Parson's absence the evidence failed to show conclusively that he is dead; (c) that the great preponderance of the evidence shows that Parsons is not dead; and (d) that the finding of the jury that the evidence was sufficient to show conclusively that Parsons is dead is contrary to the evidence. On the issue of Parsons' death, the following proof was admitted: Frank Parsons had a desk in the northeast corner of the warehouse at the depot of the Houston East & West Texas Railway Company at Lufkin on March 2, 1913, and that at 10:03 p. m. on said date from 200 to 400 pounds of dynamite which was situated near his desk in the warehouse exploded, which completely demolished the warehouse; that there was an immense fire following the explosion of dynamite and gasoline, which practically consumed the wrecked part of the building and some 18 box cars immediately surrounding the wrecked portion of the building. [2] We think that Parsons placed in the depository of the tent, with other funds for remittance to the Supreme Tent, a sum of money sufficient to pay the amount due upon his benefit certificates for the month of February, although it was from his earnings for collections, as before shown, there was a distinct appropriation and setting apart of the requisite amount for that purpose, and Gus Stroble testified that he was with Parthat it amounted to and in fact was a pay-sons all during Sunday afternoon, and attendment. At least the evidence was sufficient ed church with him and his sister that night; to raise the issue, and the finding of the jury that when they returned from church Parthat he was in good standing at the time of sons bade him good-bye at the steps at their his death is conclusive upon us. The court home, and said that he had to go to the dedid not err therefore in refusing to grant a pot, about a block away, to work for a while; new trial upon the ground stated in the first and that he turned and started towards the assignment of error, and the assignment is depot. overruled. [3] Appellant by its third assignment of error complains that the court erred in overruling its motion for a new trial for the reason that the undisputed evidence shows that George Frank Parsons had embezzled a sum of money belonging to appellant in violation of his obligations to appellant. The assignment is without merit. There is nothing in the laws of the association or the contract of insurance that would render the policies void by reason of a defalcation by Parsons in his accounts. If the evidence is sufficient to show that Parsons was in arrears, it was only to the local tent, and the only contention by appellant that the policies were void on that account is the fact that Parsons, on becoming a member of the association, took upon himself an obligation to the effect that he would not knowingly wrong, or defraud, a tent, a member, or any of his family, nor permit it to be done by another if he could prevent it. The assignment is overruled. The fourth assignment is sufficiently disposed of by our fact findings and what we have said in reaching the conclusion that the first assignment should not be sustained. The assignment is overruled. [4] The sixth, seventh, eighth, and thirtyfirst assignments are grouped and presented as the tenth assignment. It is complained that the court erred in overruling appellant's motion for a new trial because: (a) The un Everett Parsons testified that she was with the witness Stroble and her brother, Frank Parsons, on Sunday afternoon, and that the three attended church that night, and upon their return home that Parsons said, "I am going over to the depot and finish up my work, and if Mamma needs me I will be at the office," and that he then turned and started to the depot. The witness Runnells testified that he worked for the railroad as fireman; that he saw Parsons at the depot with the witness Holland, who was night operator, about ten minutes before the explosion; and and that "Frank Parsons told me at the time that he sometimes had business down there at night." The witness Holland testified that he was night operator at the depot, and that Parsons came to the depot first about 7 o'clock, and that he then went to church and came back about 9:55, and that they started to the W. O. W. restaurant to get a piece of pie and a cup of coffee, when Parsons stated that he had some unfinished business that he had to attend to right away in the warehouse, and turned and started back. And further: "He was about 70 feet from the depot when he turned, and when I last saw him he was going in the baggage room. I was just then just on the edge of the W. O. W. restaurant. I was going in there to order a cup of coffee and a piece of pie for Frank Parsons and myself. When I last saw Frank Parsons he was going in the baggageroom. I was going into the W. O. W. restaurant myself, ordered two cups of coffee and two pieces of pie. It was about four minutes from the last time that I saw Frank Parsons. I was just taking a drink of the coffee at the time I heard the explosion." And further: "I was in front of the W. O. W. restaurant when the explosion occurred, and that is about 140 feet from the depot. As to the effect of the explosion on the building I was in, all of the plate glass in windows and doors were broken out, and I got up-was thrown out of my chair and crawled to midway the restaurant. I got up thinking the front part of the restaurant was falling in; then I afterwards went out into the street to see what had happened." And further: "The whole warehouse and part of the baggage room were torn up. It was on fire. As to the effect of the fire, it was partly put out by the fire department; several cars burned up close in. There was not much there to be consumed in the warehouse department with the exception of the cars." Mrs. Lena Parsons testified: "My son worked on that Sunday at least part of the day. Generally he did not have to work all day on Sunday. His business was to load and unload the freight, and they run the freight trains on Sunday, and he had to work every Sunday just like every other day of the week. He worked on that Sunday that the explosion occurred. He worked until 12 o'clock, or just a little after. In the afternoon he did not work, but he went back there to work a while that night, and he would run up his local freight bills and such as that, and would generally get through when he went back that way at night about 10 o'clock at night. * * He went to the depot that night after church to finish up his work." And further: "Frank was the head of our household, and had been since his father died. He had assisted me in raising the other children, his half sisters and brothers, and had always paid his money or gave it to me to run the house on, and take care of the little children. He never did have anything at all to do with society or anything like that, and he was at home always when he wasn't at work." And further that she had not seen or heard of anything from George Frank Parsons since he left her house Sunday night to go to church; that he did not have any baggage or anything of that sort with him when he left to go to church. All of his belongings, including his trunk and all of his clothes except what he had on, were left at her house and were still there. Everett Parsons testified: "I have not seen or heard of George Frank Parsons since that night when he left us at the house and said he was going back to the depot to do some work." The witness Rose testified that he had been to church with his family, and at the time of the explosion at the depot he was about 200 feet away, and was going in the direction of the crossing just south of the depot. At the time of the explosion he was looking right at the depot. And further: "It seems there was a light at the depot that attracted my attention, and I was looking at the light at the time of the explosion. My attention had been attracted or directed to the light before the explosion occurred, not more "I saw some gasoline in the freightroom, and it was leaking and I called his attention to it. I told him if he did not get that gasoline out of there and this dynamite that he was going to get blowed up." And further that he had been using dynamite for 30 years and was acquainted with the effect of its explosion upon animate and inanimate objects, and had seen persons killed by such explosion. And further: "It would be my opinion, from my experience in the use of dynamite and what I have seen of it in an explosion, that if Parsons had been anywhere in that room and this 400 pounds of dynamite had exploded it would have blown him to pieces. I believe if he had been anywhere in that room it would have blown him to pieces. If you can blow rock into fine sand as hard as they are, I think it would do the same with a human body, as it is nothing like a rock." Milton Largent testified that he found Parsons' bunch of keys with his marker on it 102 steps from the depot between 10:30 and 11 o'clock on the day after the explosion. C. Matthews testified that certain bones were found by others and himself close to the scene of the explosion about the size of were fresh bones and had blood on them, a half, or a quarter, of a dollar, and that they and that the bones were turned over to Dr. Bledsoe for a scientific examination of the bones and blood. Dr. Bledsoe testified that he was present when the bones which were found by Matthews and assisted Dr. James, J. Terrell, professor of pathology of the Medical Department of the State University at Galveston, in making a test of the bones and blood, and that the blood, under the test, was positively demonstrated to be human blood, and that the bones were fresh green skull bones; but the particles were too small to tell whether they were human skull bones or not. Dr. J. J. Terrell testified that he was professor of pathology in the Medical Department of the State University at Galveston at the time he and Dr. Bledsoe scientifically examined the particles of bones, blood, and hair brought by Dr. Bledsoe from the explosion at Lufkin. He testified positively that the blood upon the bones was human blood; that the bones were fresh green skull bones, and, they were human skull bones, that in his judgment they were human skull bones, and that the hair found imbedded in the blood, after having been compared with the hair of some 15 different animals, showed every charactistic of human hair, and was inconsistent with any other conclusion. [5, 6] This proof, standing alone, was sufficient to authorize the jury in answering that Parsons was dead, and that he was killed in the explosion at the Lufkin depot on March 2, 1913. It was not necessary to require a finding by the jury that the evidence conclusively showed that Parsons was dead, and we are not therefore called upon to pass upon the question of whether the jury was justified in so finding. Appellant introduced in evidence quite a number of circumstances tending to combat the evidence introduced by the plaintiff on this issue, the effect of which was to show that Parsons was not dead, but this only raised a conflict in the evidence which the jury settled in favor of plaintiff; and, the testimony being sufficient to warrant a finding that he was dead, the finding of the jury is conclusive upon us. Fid. Mut. Life Ass'n v. Mettler, 185 U. S. 308, 22 Sup. Ct. 662, 46 L. Ed. 922. The assignment is overruled. The eleventh assignment complains that the court erred in overruling appellant's motion for a new trial, for the reason that the evidence was insufficient to show that the plaintiff offered proof of death in compliance with the by-laws and the contract of insurance. We have carefully examined the evidence in this regard, and find as a fact that proof Where a vendor sold certain, land to the board of penitentiary commissioners under a the vendees' obligation to make payment and to deed expressly retaining a vendor's lien to insure raise and sell to the vendor a certain amount of sugar cane for 10 years, and reciting that the deed should become absolute upon final payment the vendees failed to comply with their contract and performance of the vendees' obligations, but and repudiated its obligations, the vendor's title remained unimpaired, and he was entitled to possession of the premises. [Ed. Note. For other cases, see Deeds, Cent. Dig. § 521; Dec. Dig. 165.] 3. DEEDS 147-CONDITIONS-VALIDITY. tle should remain in the vendor, and pass to the A deed of land provided that the superior tivendee only upon the condition that the contract be fully performed, is not rendered ineffectual because the consideration for the contract was partly the sale of personal property, since a conformance of any lawful contract. veyance may be made conditional upon the per [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 473-477; Dec. Dig. 147.] 4. DEEDS 145-CONSTRUCTION-CONDITIONS -COVENANTS. Where a deed of land was made conditional upon the performance of a contract whereby the land in sugar cane for 10 years and sell the cane vendees were to cultivate a certain part of the to the vendor, such agreement was a condition, the breach of which would prevent title from vesting in the vendees, and not a covenant, though such in form. [Ed. Note. For other cases, see Deeds, Cent. 145.] of the death of Parsons was made in sub-Dig. § 471; Dec. Dig. stantial compliance with the by-laws and contract. We had occasion to pass upon this 5. VENDOR AND PURCHASER 296-REMEDIES question in National Life Ass'n v. Parsons, 170 S. W. 1038, where the proof on that issue was in all material respects the same as in this case, and there held the proof, which is set out in the opinion, was sufficient. We overrule the assignment. The other assignments presented by appellant in its brief and not herein before discussed have been carefully examined by us, and it is our opinion that none of them points out reversible error. We are of the opinion that the judgment of the court below should be affirmed, and it has been so ordered. Affirmed. OF VENDOR-LIEN. A vendor, who has reserved an express vendor's lien to secure the consideration for a conveyance, may, on default by the vendee, rescind the contract and recover the land in trespass to try title. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 832; Dec. Dig. 296.] 6. VENDOR AND PURCHASER 267-REMEDIES OF VENDOR-LIEN-RELEASE. A vendor sold land and retained a vendor's lien to secure the payment of the consideration and the performance of an agreement whereby the vendees were to raise a certain amount of sugar cane and sell it to the vendor for a period of 10 years. On payment of the money consideration agreed upon, the vendor executed a release of his lien, which provided that the cane contract should continue in full force and effect IMPERIAL SUGAR CO. v. CABELL et al. and that the release should not be construed as a (No. 6736.) (Court of Civil Appeals of Texas. Galveston. July 1, 1915. Rehearing Denied Oct. 14, 1915.) cancellation thereof. Held, that reference was made to the cane contract in its entirety, and therefore did not release the reservation of title for its performance, since, although a release concludes with general words, it will be con 1. STATES 191 ACTION AGAINST SUIT strued to relate to the particular matter recited, AGAINST AGENTS. That defendants in trespass to try title are claiming possession as agents for the state will not defeat the right to maintain the action by which the parties intended to release. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758; Dec. Dig. 267.] 266-REMEDIES the result of a verbal agreement and negotiations between the Imperial Sugar Company and the board of penitentiary commissioners. 7. VENDOR AND PURCHASER OF VENDOR-LIEN-WAIVER. Where a contract for the sale of land and the cultivation of cane for 10 years was secured by a vendor's lien, failure to assert the lien upon a partial breach of the contract was no waiver of future performance, and suit to recover the land was not required to be brought until the vendees' repudiation of the entire contract. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 687, 713-750; Dec. Dig. 266.] Appeal from District Court, Ft. Bend County; Samuel J. Styles, Judge. Action by the Imperial Sugar Company against Ben E. Cabell and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded. Lane, Wolters & Storey and Wm. A. Vinson, all of Houston, Williams & Neethe, of Galveston, D. R. Peareson and Thos. B. Peareson, both of Richmond, and Hill & Eakins, of Huntsville, for appellant. B. F. Looney, Atty. Gen., and G. B. Smedley and C. M. Cureton, Asst. Attys. Gen., for appel lees. PLEASANTS, C. J. This is an action of trespass to try title, brought by the appellant against Ben E. Cabell, L. W. Tittle, and R. W. Brahan to recover about 5,200 acres of land, known as the "Sartartia Plantation," in Ft. Bend county. The defendants, by plea in abatement, disclaimed any right, title, or interest in the land sued for as individuals, and alleged that they together constituted the board of prison commissioners of the state of Texas, and as such were holding the land in question for the state of Texas, and as officers of the state; that the fee-simple title to said land was in the state of Texas, and not in the defendants, or either of them; that, while the suit was brought against them, the effect of a judgment against them would be to divest the title to said land out of the state of Texas; that the suit was in fact against the state, and could not be maintained under the laws and Constitution of Texas. In their first amended original answer the defendants, both by exception and plea, raised substantially the same question. It was further specially alleged that the respective rights and contentions of the parties arose out of the following transaction, viz.: That on February 17, 1908, the Imperial Sugar Company executed and delivered to W. H. Gill, R. H. Hicks, and J. T. Mewshaw, the then board of penitentiary commissioners of Texas, a general warranty deed to the land in question, and also to a large amount of personal property therein described, for the use and benefit of the state of Texas; that as a part of the same transaction, although not contemporaneously executed, the said board of penitentiary commissioners executed and delivered to the Imperial Sugar Company a certain instrument in writing, the two instruments being executed, it was alleged, as The deed referred to in defendants' answer is a deed of general warranty executed by the appellant, and conveys to the persons last above named, composing the board of penitentiary commissioners, for the use and benefit of the state of Texas, the land in controversy, and also the following personal property: "134 hogs, 139 work mules, 17 saddle horses, 80 tram cars, 75 sections of portable track, 49 cultivators, 16 disc cultivators, 115 turning plows, 6 disc plows, 35 sweep stocks, 7 stubble shavers, 5 stubble diggers, 8 middle bursters, 13 subsoilers, 6 cane scrapers, 12 cotton planters, 2 mowing machines, 30 hoes, 6 post hole diggers, 3 rice seeders, 12 shovels, 10 spades, 20 stubble hoes, 12 briar hooks, 30 axes, 6 scrapers, 6 pitch150 cane knives, 60 sets of plow gear, 17 cane forks, a large number of double and single trees, wagons (secondhand), 10 cane wagons (new), 9 road wagons, 2 good graders, 1 corn crusher, about 20 dozen tract chains for unloading cane, 6 saddles for guards, 18 wagon saddles, and 3 complete derricks; about 1,000 bushels of ear corn, 2 large barns of crushed corn, about 50 tons of rice bran, about 200 bales of alfalfa and hay, 75 bushels of field peas, about 1,500 bushels of cotton seed for planting purposes; also one blacksmith and wheelwright shop and tools; also a large amount of repair material, such as clev lap links, etc., and such other similar personalty and chattels as were on hand and used in connection with the plantation, and all machinery improvements and buildings of every description then on the land." Following the covenant of general warranty the deed contains the following: "But it is expressly stipulated, agreed, and understood, by and between the parties hereto, that a vendor's lien and the superior title to all retained and reserved by the company and grantlands and personalty hereby conveyed is hereby ed by the board to secure full, complete, and prompt payment of the consideration herein agreed to be paid therefor, as is hereinafter fully set forth, and to fully insure the obligations herein assumed by the board [the vendee], and upon the full payment of the said consideration and performance of said obligations this deed shall become absolute. The consideration agreed to be paid for said land and personal property is the amount and upon the terms and conditions following, as is evidenced by the one certain obligation in writing, for the sum of one hundred and sixty thousand ($160,000.00) dollars, to bear interest from the day of January, 1908, at 6 per cent. per annum, interest payable annually, executed by said board in behalf of said penitentiary system, and duly approved by his exof Texas, of even date herewith, and made paycellency, T. M. Campbell, Governor of the state able to the Imperial Sugar Company, or its order, at Houston, Harris county, Texas. The full purchase price of said land and personalty is dollars, to be paid by said board causing to be one hundred and sixty thousand ($160,000.00) delivered to the company, or its assigns or legal representatives, as is hereinafter provided, 40 per cent. gross of the annual crops of cane and conveyed; the value of said per cent. of said cotton raised and grown upon the lands herein products so delivered to the company is to be applied annually as a credit upon the obligations given for said purchase money, first discharging and paying all accrued interest and the balance to be applied to the reduction of such principal sums, and this method to continue until the full |