the location, construction, and maintenance of said railroad, and for that purpose only, and this license to operate in pepetuity if said railroad company, its successors and assigns, shall continue to maintain and operate their railroad, and cease with the nonuse of the same for such purpose." Held, that the deed should not be construed as made upon a condition that the road should have been built over the entire charter route of the grantee, and the failure so to build would not, therefore, work a forfeiture: Morrill v. Wabash etc. R'y Co., 96 Mo. 174. But where a deed made a gift of land to a corporation "for the building and maintaining on said grounds an institution of learning, as provided by " a certain statute, it was held that the deed was made upon condition subsequent that the board should maintain upon the land an institution of learning in accordance with the provisions of that statute: Mott v. Danville's Seminary, 129 Ill. 403.

FRAUD, WHAT CONSTITUTES. -Fraud must relate to facts then existing, or which had previously existed: Dawe v. Morris, 149 Mass. 188; 14 Am. St. Rep. 404; Bennett v. McIntire, 121 Ind. 231; Conant v. National Bank, 121 Ind. 323; Adams v. Schiffer, 11 Col. 15; 7 Am. St. Rep. 202; Feeny v. How ard, 79 Cal. 525; 12 Am. St. Rep. 162. A promise to perform an act, though accompanied, at the time, with an intention not to perform, is not such a representation as is ground for an action at law; the party must sue on the promise: People v. Healy, 128 Ill. 9; 15 Am. St. Rep. 90. On the other hand, under the California Code, to make a promise with no intention of performing it constitutes a fraud for which a contract may be rescinded: Lawrence v. Gayetty, 78 Cal. 126; 12 Am. St. Rep. 29.

ACKNOWLEDGMENT-SUFFICIENCY OF CERTIFICATE. — Failure, in an aoknowledgment, to show the official character of the person by whom it was taken is not fatal, and may be remedied by evidence of such official charaoter: Byer v. Etnyre, 2 Gill, 150; 41 Am. Dec. 410; Bennet v. Paine, 7 Watts, 334; 32 Am. Dec. 765. Where the clerk of the circuit court is also recorder of deeds, the addition, in the acknowledgment of a sheriff's deed, of the word "recorder," after the name of the clerk, will not vitiate a deed: Owen v. Baker, 101 Mo. 407; 20 Am. St. Rep. 618.

LIMITATIONS OF ACTIONS. FRAUD AS PREVENTING THE OPERATION OF THE STATUTES: See note to Snodgrass v. Branch Bank, 60 Am. Dec. 511-515. Where fraud or deceit is practiced, the statute of limitations does not begin to run until its discovery: See cases from the series collected in note to Runyon v. Snell, 9 Am. St. Rep. 842; Gillett v. Wiley, 126 Ill. 310; 9 Am. St. Rep. 587; Jacobs v. Snyder, 76 Iowa, 522; 14 Am. St. Rep. 235; Hawley v. Page, 77 Iowa, 239; 14 Am. St. Rep. 275; Cook v. Chicago etc. R'y Co., 81 Iowa, 551; 25 Am. St. Rep. 512; Myers v. Center, 47 Kan. 324; Miller v. Wood, 116 N. Y. 351; Lewis v. Welch, 47 Minn. 193; Wichita etc. Co. v. State, 80 Tex. 684. But the consequences of an actual discovery of the fraud will be imputed to a person who might, by the exercise of reasonable diligence, have made the discovery: Parker v. Kuhn, 21 Neb. 413; 59 Am. Rep. 838; Penobscot R. R. Co. v. Mayo, 67 Me. 470; 24 Am. Rep. 45; Boyd v. Blankman, 29 Cal. 19; 87 Am. Dec. 146; Gillett v. Wiley, 126 Ill. 310; 9 Am. St. Rep. 587; Lane v. Lane, 87 Ga. 268; Marler v. Simmons, 81 Ga. 611. Plaintiff must aver the facts constituting the fraud, and the time of its discovery; otherwise his petition will be open to demurrer: Douglas v. Corry, 46 Ohio St. 349; 15 Am. St. Rep. 604; Lataillade v. Oreña, 91 Cal. 565; 25 Am. St. Rep. 219. But, in an action for money had and received, where the complaint avers receipt of the money within the statutory period, and the answer de

nies all the material allegations of the complaint, and alleges that the cause of action is barred by the statute of limitations, the plaintiff may prove and the jury may take into consideration any evidence of concealment of facts, misrepresentations, deceit, or other facts constituting fraud on the part of the defendant which would take the case out of the statute, though the complaint contains no averment as to those matters: Williams v. Dennison, 94 Cal. 540.

BONNER v. GRIGSBY

[84 TEXAS, 830.]

JUDGMENTS-LIEN OF REGISTRY OF ABSTRACT. When the number of

a judgment is prescribed by law as a prerequisite to the record of an abstract of such judgment in order to create a lien, the number of the judgment cannot be dispensed with; and the registry of the abstract without giving such number does not create a lien. JUDGMENTS-BONA FIDE PURCHASER UNDER. — A judgment creditor who levies upon land and then takes a deed therefor from his judgment debtor, crediting the price of the land upon the judgment, but not releasing the lien of his levy, is not a bona fide purchaser, but takes only such title to the land as is possessed by the judgment debtor, and therefore subject to any prior conveyance thereof made by him.

Duncan G. Smith, for the appellant.

Frank P. McGhee, for the appellee.

GAINES, A. J. The appellee brought this suit against appellant to recover certain lots in the town of Vernon, in Wilbarger County.

Both parties claimed under one L. N. Perkins as the common source of title. On the sixteenth day of September, 1882, one J. Doane, as county judge of Wilbarger County, executed to Perkins a bond for title to the lots in controversy, which purported to bind the county to execute to the obligee a warranty deed to the lots upon his paying the purchase-money, amounting to seventy-five dollars, with interest, and upon the acquisi tion of the legal title by the county. At that time it seems the land had not been patented, and the county claimed under third parties, who were expected to execute to it a deed whenever a patent should be issued. On the first day of January, 1883, Perkins, in consideration of the sum of thirty-five dollars, and of their payment of the balance of the purchasemoney due Wilbarger County, conveyed the premises in controversy to G. W. Darby and A. Dawson. On the eighteenth day of December, 1883, Darby conveyed the lots to W. L. Gordon, who, on the 26th of August, 1886, conveyed the same to

There

appellant, who was the defendant in the court below. was parol evidence to the effect that before Darby conveyed to Gordon, Dawson conveyed his interest to Darby, though the deed could not be found. Such is the appellant's title.

The appellee, the plaintiff in the court below, claimed title as follows: 1. A judgment in the county court of Wilbarger County, rendered on the sixth day of January, 1886, in favor of appellant against Perkins for the sum of $482.82. 2. An abstract of the judgment recorded on the day of its rendition. The validity of this abstract is questioned. 3. The bond for title from Doane, as county judge, to Perkins, above described. 4. A deed from Hearne, as county judge, to Perkins, dated the twenty-eighth day of February, 1889, reciting the payment in full of the balance of the purchase-money. 5. A deed dated the twelfth day of March, 1889, from Perkins to appellee, to the premises in dispute, for the consideration, as recited, of four hundred dollars.

The plaintiff also introduced in evidence three executions which had been issued upon his judgment against Perkins, one on the 26th of February, 1886; one on the 22d of September of the same year; the third on the 24th of July, 1888; and the fourth on the seventh day of March, 1889, which was levied on the lots in controversy, but which was returned by order of plaintiff's attorney. When the levy was released and the writ ordered to be returned, the return itself does not show, but the sheriff testified that this occurred after the twelfth day of March, 1889, the day on which the lots were conveyed by Perkins to appellee.

Perkins paid a part of the note given by him for the purchase-money of the lot, and Gordon seems to have paid twenty-five dollars, leaving a balance of thirty-five dollars still due. The defendant testified that he offered to pay the balance to the county judge of the county, but that he declined to make the deed, because no provision had been made for paying the expense of a conveyance. The defendant tendered, in his answer, forty dollars to cover the balance of the purchase-money, and paid it into court.

There was a judgment for the plaintiff for the lots in con. troversy. There are no conclusions either of law or of fact in the record, though it would seem that the court must have held that the plaintiff was a bona fide purchaser without notice of defendant's title. The defendant showed an equitable title, which became perfect by the tender of the balance of the

AM. ST. REP., VOL. XXXL-4

purchase-money due under Perkins's bond for title. If the plaintiff had acquired a lien upon the lots by a record of a proper abstract of his judgment, or by a levy of his execution before he had notice of defendant's title, or that of those under whom he claimed, or knowledge of such facts as should have put him upon inquiry, and had enforced his lien by a sale under execution at which he purchased, his title would have been good: Grace v. Wade, 45 Tex. 522. But this he did not do. He took a conveyance of the lots directly from Perkins, merely crediting the price agreed upon on his judgment, without even releasing, at the time, the lien he had acquired by the levy.

The abstract of judgment filed in the county court did not give the number of the judgment, and in that respect failed to comply with one of the requirements of the statute: Rev. Stats, art. 3155. The number of the judgment is one of the requisites prescribed by the law, and we have no more right to disregard it than any other provision which the legislature has prescribed as a prerequisite of the authority to record the abstract. The failure to comply with the statute in that particular is, in our opinion, fatal to the lien claimed by virtue of the abstract.

The lien created by the levy of the execution not having been released at the time Perkins conveyed the lots to the plaintiff, the case presents itself to our minds as one in which the purchaser has neither paid value nor placed himself, by the transaction, in a worse position than that previously held by him. Having merely credited the price of the lots upon his judgment, he cannot claim to be a bona fide purchaser for a valuable consideration without notice: Steffian v. Milmo Nat. Bank, 69 Tex. 513. He took, by his conveyance, the legal title to the lots in controversy, subject to the defendant's equity, and is entitled to recover only the balance of the purchasemoney which Perkins's original vendee promised to pay for the property. The judgment is against the right of the case, and is fundamentally erroneous.

The view we take of the case renders it unnecessary to discuss the question of notice.

The judgment is reversed, and here rendered for appellant.

VENDOR AND PURCHASER. —A PERSON IS NOT A BONA FIDE purchaser who merely takes the legal estate in payment of or as security for a previous debt: Dickerson v. Tillinghast, 4 Paige, 215; 25 Am. Deo. 528; Wood v. Chapin, 13 N. Y. 509; 67 Am. Dec. 62.

MCCARN v. INTERNATIONAL AND GREAT NORTHERN RAILWAY COMPANY.

[84 TEXAS, 352.]

CARRIERS-CONNECTING RAILWAYS-CONTRACT LIMITING LIABILITY. - A connecting carrier by rail may, by contract, protect itself against liability for loss not occurring on its own line, whether the shipment is wholly within the state, or is interstate. CARRIERS-CONNECTING RAILWAY-CONTRACT LIMITING LIABILITY. — A contract between a shipper and a connecting carrier by rail, stipulating that such carrier shall not be liable for anything beyond its own line, except to protect the through-rate of freight named, is valid, and will be enforced.

Edward Dwyer, for the appellant.

Barnard and Green, for the appellee.

STAYTON, C. J. This action was brought by appellant to recover damages for injury alleged to have been caused to sixty head of cattle while in transit from San Antonio, Texas, to Chicago, in the state of Illinois.

The cause was tried without a jury, and the court found that "the contract for shipment was a through-contract from San Antonio, Texas, to Chicago, Illinois," but that the contract, among others, contained the following stipulation: "And it is further stipulated and agreed between the parties hereto, that in case the live-stock mentioned herein is to be transported over the road or roads of any other railway company, the said party of the first part [appellee] shall be released from liability of every kind after said live-stock shall have left its road; and the party of the second part hereby so expressly stipulates and agrees; the understanding of both parties hereto being, that the party of the first part shall not be held or deemed liable for anything beyond the line of the International and Great Northern Railway Company, excepting to protect the through-rate of freight named herein."

The court further found that no injury occurred to appellant's cattle while on appellee's line of railway, but that the cattle were injured while on a connecting line, to which they had been delivered by appellee, and on these findings rendered a judgment against the plaintiff.

There is no statement of facts, and under the findings it must be conceded that appellee received the cattle under an agreement that they should be transported from San Antonio to Chicago; and the inference is, that to do this it was neces