ROGERS' HEIRS V. WATSON et al. (Supreme Court of Texas. June 16, 1891.) TRUST-DEED-VENDOR'S LIEN-DEATh of Vendee -ADMINISTRATION-QUIETing Title.

1. Under Rev. St. Tex. art. 1827, which provides that all application for letters of administration upon an estate must be filed within four years after the death of the intestate, if administration is not had within that time the probate court loses jurisdiction to issue letters, and a vendor's lien again becomes prior to all other claims against the estate made prior by statute, in cases of administration, and a trustee may thereafter convey premises held in trust to secure such lien, upon default being made in any payment thereunder.

2. In an action to quiet title, plaintiffs claimed through a sale under a trust-deed, executed by defendants' ancestor to secure the purchase money. Defendants claimed that the deed of trust should uave been satisfied, as all the purchase money had been paid before the sale, in that the plaintiffs had unlawfully dispossessed them, and converted certain personal property to their own use, which, with the rents and profits accruing before the sale, exceeded the balance of the purchase price. Held, that such matters sounded in tort, and could not have been pleaded by way of set-off against the notes, and therefore the sale could not be avoided upon that ground.

Appeal from district court, Falls county; J. R. DICKINSON, Judge.

Action to quiet title by A. E. Watson and others against Ella E. Rogers and others. Judgment for plaintiffs. Defendants appeal. Affirmed.

B. H. Rice and Z. 1. Harlan, for appellants. Goodrich & Clarkson, for appellees.

GAINES, J. The appellees brought this suit to remove clouds from the title, and to be quieted in their possession of certain lands described in their petition. The following extract from the brief of appellants, who were defendants in the court below, contain, in the main, an accurate statement of the grounds of action alleged in the petition. On June 23, 1887, A. E. Watson, for himself and as next friend to Irene Watson, Carrie Watson, and Armstead Watson, minors, and W. H. Jones, filed this suit in the district court of Falls county, Tex., against Mrs. Ella E. Rogers, and her minor children, John Rogers, Maud Rogers, and Maggie Rogers, heirs of John Rogers, deceased, to remove clouds from title to 1,600 acres of land in Falls county. Plaintiffs in their petition claimed that on October 20, 1879, during the marriage of defendant Ella E. Rogers and John Rogers, one James S. Jones sold and conveyed said lands jointly and in common to R. T. Smith, John A. Robinson, and John Rogers for the sum of $43,588, for the entire purchase of which the said Smith, Robinson, and Rogers executed their 10 joint and several promissory notes, the first due on January 1, 1881, and the others due on the 1st day of January of each year thereafter up to January 1, 1891, when the last note was due, each of said notes to bear interest at the rate of 10 per cent. per annum from maturity; and each, except the first, which fell due on January 1, 1881, providing that, in case of a failure to pay the same at maturity, then the entire debt was to become due, and each and all secured by a vendor's lien on said lands;

and, in order to further secure the payment of said notes, and each of them, the said Smith, Robinson, and Rogers, as a part of the same transaction, made, executed, and delivered to Thomas E. Battle and Austin Robinson, as trustees, a deed of trust on said lands, together with other property, which said deed of trust provided that, should default be made in the payment of any one of said notes, said trustees, upon the request of the holder of said note, should sell said property, and make a proper conveyance thereof to the purchaser, and appropriate the proceeds of said sale to the payment of said note; that said Jones, in the year 1881, died testate, and by his last will bequeathed said notes to plaintiff, which said will was duly probated; that on the day of September, 1880, the said John Rogers died intestate, leaving the defendant Ella E. Rogers, his widow, and the other defendants, his minor children, his only heirs, and that no administration was ever had upon his estate; that on the day of

1881, the said Smith, Robinson, and the defendants, as heirs of John Rogers, deceased, abandoned said contract, and failed and refused to comply with the same, or pay said notes, or any part thereof, and surrendered the possession of said lands to the legatees of said Jones, and that plaintiffs have ever since and are now holding possession thereof; that on the 15th day of December, 1884, after the death of said Rogers, with consent and by agreement with the defendants, and said Smith and Robinson, said trustees sold said lands, and plaintiffs became the purchasers at said sale, and that the said trustees made them a proper conveyance thereto. Plaintiffs claim that said sale by said trustees is perfect and valid as to said Smith and Robinson, and they make no claim to said land, but that these defendants, holding that said trustees' sale was invalid as to said Rogers, assert claim to said land, and threaten to sue them therefor, and thus cast a cloud on their title, and render said lands less valuable and marketable; and they pray to recover said lands, and that all pretended title be divested out of defendants, and vested in them; and that their title be quieted and perfected, and all clouds and doubts on the same be removed. The petition also averred that there never had been an administration upon the estate of John Rogers, deceased, and that each of the notes recited that it was secured by a deed in trust upon the land of the same date.

The defendants excepted generally and specially to the petition, and their exceptions were overruled. The defendants also filed a general denial, and a special plea in the nature of a cross-action, claiming title to the land. The special plea admitted the sale of the land, and the execution of the deed, the notes for the purchase money, and the deed in trust to secure the latter, in substance as alleged in the plaintiffs' petition. It also admitted the death of John Rogers, and the sale of the land by the trustees under the deed in trust. It did not deny either the date of his death, or the date of the trust sale, as alleged, nor did it deny that no administra

tion had ever been had upon Rogers' estate. It did deny that the defendants assented to the surrender of the land to plaintiffs in the year 1881, but did not deny that Robinson and Smith abandoned the contract, and gave up possession, as is alleged in the petition. It was, however, alleged in the special answer that the note which fell due January 1, 1881, was paid in part on December 20, 1880, and that afterwards the balance was fully paid, but at what particular date is not alleged. The special answer also averred that plaintiffs had taken possession of and converted to their own use certain personal property belonging to Smith, Robinson, and Rogers, of the value of $7,800; that Rogers, immediately after the sale to himself and Robinson and Smith, had expended $2,000 of his own individual funds in improvements, which were placed upon the land. The answer also alleged that the rent of the lands was reasonably worth $5,000 per annum. A demurrer to defendants' special answer was sustained by the court, and, all other pleas having been withdrawn, judgment was rendered for the plaintiffs.

The assignments of error question the correctness of the court's rulings in overruling the demurrer to the petition, and in sustaining that to the sp cial answer. We are of the opinion that if the trustees in the deed of trust executed by the vendees to secure the payment of the purchase money of the land had the power to sell the land, notwithstanding the death of Rogers, the allegations in the petition show title in the plaintiffs to the land in controversy, and the court did not err in overruling the defendant's demurrer there. to. At an early day it was held in the case of Robertson v. Paul, 16 Tex. 472, that a sale made in pursuance of a power given in mortgage after the death of the mortgagor was void, although the mortgage was given to secure the payment of the purchase money of the mortgaged premises. That decision has been followed in subsequent cases in this court, and may now be regarded as settled law. McLane v. Paschal, 47 Tex. 365; Black v. Rockmore, 50 Tex. 94; Abney v. Pope, 52 Tex. 288. In Black v. Rockmore, at the time of the sale under the power, the widow of the deceased mortgagor had filed a bond and inventory under the statute, and was administering the community estate as survivor. In Robertson v. Paul, and in the other cases cited, there were regular administrations pending at the time of the sale. The sales were not held void upon the ground that the death of the mortgagors had revoked the power, because it was recognized that the powers were coupled with an interest, and that they remained in force after the death of the respective constituents. But the exercise of the power after such deaths, and during an administration upon the mortgagors' estates, was regarded as inconsistent with our statutes, which gives to certain classes of claims against a decedent's estate priority of payment over a debt secured by a lien, even as to the property subject to the incumbrance. But in this case, according to the allegations of the

petition at the time of the sale, more than four years had elapsed from the date of Rogers' death, and no administration had ever been had upon his estate. Under the statute as it then existed, and now exists, after a lapse of four years from the death of a person, the probate court lost its power to grant letters of administration upon his estate. Rev. St. art. 1827. Consequently the provisions of the statute for establishing and ranking claims against an estate were no longer an obstacle to the sale. The debt being the purchase money promised to be paid, the holders of the notes were entitled to a preference in payment over all other claims whatever. Therefore the reason for the rule laid down in the cases cited no longer existed, and we are of opinion that the rule itself should be held no longer applicable. After the time had passed within which letters of administration could be granted upon Rogers' estate, the debt being for a vendor's lien, and no claim having priority over it as to the mortgaged premises. we see no good reason why the power which had been in abeyance did not immediately become effective, and why the sale did not pass the title to the property in controversy. conclude that there was no error in overruling the demurrer to the petition.

We

The ruling that, after the lapse of four years from the death of Rogers without administration upon his estate, the trustees were empowered to sell the land for the payment of the notes secured by the deed of trust, also disposes of the ques tion of the sufficiency of the defendants' special answer. They aver the payment of only the first note, and fail to allege that the whole of that obligation was fully paid at maturity. Not having been alleged, the pleading must be taken most strongly against them, and we think the case should be treated as if the answer admitted a default at maturity in the payment of a part of that note. If so, all the notes fell due immediately, and the subsequent payment of the balance of the first note did not restore the others to their original standing. At all events, there were two notes past due in 1884, at the time of the trustees' sale, and there is no averment that these were ever paid.

The auswer, it is true, claims that the plaintiffs wrongfully dispossessed them of the land, and that they were entitled to recover of the plaintiffs rents to an amount sufficient to extinguish the notes as they fell due. But the claim for the use and occupation of the land is a tort, and could not have been offset against the notes, and consequently did not operate ipso facto as an extinguishment of the debts which were evidenced by them. Besides, if default was made upon the first note, and such we think is the proper construction of the answer, then the whole debt became due in Jauuary, 1881, and the rent from that time until the day of the sale was not sufficient, at the amount alleged, to pay one-half of the plaintiff's claim. So, also, the damages for the alleged conversion of the personal property could not operate as an extinguishment of any of the indebtedness evidenced by the notes. If this had been a suit to rescind the con

SELLERS V. TEXAS CENT. RY. Co. et al. (Supreme Court of Texas. June 19, 1891.) VENDOR AND VENDEE IMPLIED RIght of FLOW

AGE.

A railroad company owned land along a river, and in its construction threw up an embankment. Afterwards it laid the land out into town lots, and conveyed the same without reservation. During a freshet the embankment caused the land to be overflowed, whereby a stock of goods belonging to the vendee was destroyed. Held, that there was no implied right to flood the land, and the company's vendee might reasonably presume that it had so constructed its embankment as not to impede the natural flow of the water.

implied reservation. It is conceded to be the settled law in England "that, when the owner of two adjoining lots sells one, he does not reserve impliedly for the benefit of the other any easements except those of a strict necessity; * * + but that he does impliedly grant to the grantee all continuous and apparent easements which are necessary for the reasonable use of the property granted, and which have been or are at the time of the grant used by the owner of the entirety for the benefit of the part granted." Washb. Easem. (4th Ed.) p. 105. The reason for denying a reservation by implication is that to permit it would be to allow the grantor to derogate from the grant. Many of the American courts of the highest authority adhere to the English doctrine as to im

Knight, Crane & Ramsey, for appellant. L. C. Alexander, for appellees.

GAINES, J. Appellant brought this action to recover of the Texas Central Rail. way Company, and of Dillingham and Clark, as receivers of its property, operating its railroad, damages for the destruction of a stock of goods by an overflow of the Bosque river. The overflow was alleged to have resulted from the negligent construction of the bed of the railroad across the valley of the river. The defendant filed a special answer to the petition, in which it was averred, in substance, that at the time the railroad was constructed the railroad company owned the land along the river at the place of the embankment, including as a part thereof the lot upon which the plaintiff's goods were stored at the time of the overflow, and that the plaintiff held the lot "under a purchaser from said company, who purchased the same after the erection of said railroad and embankment, * whose

title was governed by a conveyance from said company, containing a clause warranting the title to the same against all persons claiming or to claim the same by, through, or under its assigns or successors. It was also alleged that the parcel of land so conveyed was a lot in a town which had been laid off by the company prior to the conveyance, and that at the time the company sold this lot it also sold other lots in the town to other persons. The plaintiff demurred to this special answer, but the demurrer was overruled. The sufficiency of the answer is practically the only question presented by this appeal. The determination of the appeal resolves itself into the inquiry whether in the conveyance of the lot by the company there was an implied reservation of the right to flood the granted premises in case of freshets by retaining the embankment as it then existed. questions of grant of easements by implication, and of implied reservations of easements, has given rise to much conflict of opinion. A distinction is generally recognized between an implied grant and an

The

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which lay own a rule more favorable to the grantor. The supreme court of Maine have decided that "where the owner of land flowed by a mill-dam sells the mill and dam, and retains the land, the right to flow the land to the extent it was then flowed without payment of damages passes by the grant; but where the owner sells the land flowed, and retains the mill and dam without reserving the right to flow, he is not protected from the payment of damages. Preble v. Reed, 17 Me. 169; Burr v. Mills, 21 Wend. 289; God. Easem. 124; Washb. Easem. (4th Ed.) 54; Gould, Waters, § 354. Even those courts which hold that a reservation of an easement may be implied beyond strict necessity restrict the rule to such easements as are "apparent and continuous." An apparent easement is one which is obvious. Apply. ing that rule to the facts of this case, can it be said that it obviously appeared to the purchaser that the lot which was sold was flooded by the embankment? The embankment itself was doubtless obvious enough. But it would seem to us that the purchaser might have reasona. bly presumed that the company had availed itself of competent engineering skill, and had so constructed its works as not to impede the natural flow of the water. Under such circumstances, we think it should not be held that the company, by mere implication, reserved a right to flow the land without paying damages therefor. There is much that commends them to favorable consideration in the re marks upon the question of Chief Justice RYAN, of the supreme court of Wisconsin: "We may say, however, in passing, that it is always safest to let written contracts speak for themselves. This rule is often relaxed with doubtful expediency. Parties ought to make their own contracts complete. Alienations of land are, or ought to be, grave and deliberate transactions. Every conveyance should contain the certainty of the thing granted to the full extent of the grant. What may be expressed enlarging or restricting the grant in particular cases should not be left to implication. It is often difficult, as the cases show, to determine what shall be implied in conveyances by way of grant or reservation of easement; what parties who might have spoken shall be held to intend by their silence; and, be

cause a deed shall be construed most strongly against the grantor,' this view applies with great force against implied reservations in the servient estate conveyed by the owner of the dominant estate. Indeed, it is remarkable that the doctrine of implied grant of easement in the land of the grantor once rested very much on the principle that the grantor should not be heard to derogate from his grant, (Howton v. Frearson, 8 Term R. 50;) and yet the same doctrine has been extended to implied reservations to the grantor in what he conveys, in direct derogation of his grant. On principle, therefore, we should be disinclined to enlarge or limit estates granted by implication of law, further than a general current of decisions might oblige us." Dillman v. Hoffman, 38 Wis. 573. We think there was no implied reservation in this case, and that the demurrer to the answer should have been sustained. The defendant receivers put in a demurrer to the pe tition, which was overruled by the court. The appellees have filled no cross-assignments of error, and the question of their liability is not before the court. The counsel for appellees admit this. For the error of the court in sustaining the demurrer to the special answer, the judgment is reversed, and the cause remanded

(Supreme Court of Texas. June 23, 1891.) ACCIDENT AT RAILROAD CROSSING-Negligence.

1. The fact that a railroad leaves freightcars upon a side track in a thickly settled portion of a city, so as to obstruct the view of one approaching the crossing, is not per se negligence, but a finding by the trial court that it was negligence, under certain circumstances, will be affirmed when supported by the evidence.

2. Where the injury was caused by a collision on the main track, the fact that the engine was moved by a brakeman without authority from the railroad is immaterial.

Commissioners' decision. Section B. Appeal from district court, Grayson county; H. O. HEAD, Judge.

Action by J. H. Stewart against the receivers of the Houston & Texas Central Railway Company for personal injuries. The engine causing the injury was moved by a brakeman without authority from the railroad. Judgment for plaintiff. Defendants appeal. Affirmed.

R. De Armond, for appellants. & Brown, for appellee.

Woods

FISHER, J. This suit was brought to recover damages for personal injuries sustained by plaintiff on the 29th day of July, 1888, by reason of a collision that occurred on the Lamar-Street crossing of defendants' track in the city of Sherman, between a wagon in which plaintiff was riding and a moving engine on defendants' line. Plaintiff avers due care on his part, and negligence on the part of defendants in the location of box-cars on the side track, obstructing the view of the main track; and also in negligently running the engine at a greater rate of speed than that permitted by the city ordinances; and, in adv.17s.w.no.1-3

dition to this, that a brakeman was operating the engine within the knowledge of the engineer at a time when it should not have been moved. Defendants answered by general denial. The cause was tried before the judge without a jury, and his special findings filed, resulting in judgment for the plaintiff in the sum of $750. The first assignment of errors presented by appellants is"that the court erred in the finding numbered third, for the reason the evidence showed that the side tracks were necessary at stations for the storage of cars, and that cars were on the side track, and pushed to the point where found, to meet the exigency of a train to pass, then about due, and were not negligently left there. The court erred in same finding as to the exercise of ordinary care, the evidence being that the plaintiff could have ascertained the approach of an engine with any effort to do so." The finding of the court complained of in the assignment reads: "I find that the defendants were guilty of negligence in leaving said freight train as above found, and I also find the plaintiff exercised ordinary care, and was not chargeable with contributory negli gence." In the preceding portions of the findings of facts, the court finds that the appellants' road crosses Lamar street, in the city of Sherman, at a thickly settled portion thereof, and where there is much travel along the street; and that at the crossing there is the main track and several side tracks of appellants' road That the appellee was traveling east in a wagon along Lamar street, and when approaching the defendants' road at the crossing he found, on a side track, west of the main track, a train of freight-cars standing; and that it obstructed the view of the main track, and prevented those on the street from seeing an approaching engine on the main track. The findings of the court in these particulars, as well as that the appellee was not guilty of negligence, are supported by the evidence. The appellants, under the law, have the right to use their road in the exercise of its legitimate business, but the enjoyment of this privi lege does not authorize them to exercise this right in a negligent manner. It cannot be said, as a matter of law, that the legitimate use of the side tracks of a railroad, in storing its cars or switching its trains, is or is not negligence. Whether or not it be negligence would depend upon the manner of use and the circumstances attending it. This is a question of fact to be ascertained by the court. The findings of the court in this respect are amply supported by the evidence. The unauthorized acts of the brakeman would not excuse the appellants from the results of their negligence and the damages thereby occasioned. We conclude the case should be affirmed, and so report it.

Adopted by supreme court, June 23, 1891.

CABLE V. DIGNOWITTY. (Supreme Court of Texas. June 23, 1891.) TRESPASS TO TRY TITLE-CONFLICTING EVIDENCE.

Where, in trespass to try title, plaintiff's right to recover depends upon the location of a