(No. 842.)

Nov. 6, 1915.)

Amarillo.

245-AMENDMENTS TIME TO

that appellant was negligent in respect to was permissible that the rail was not suffiboth of the broken rails in evidence; and ciently spiked to the ties, which were shown such finding may seem, as appellant insists to be new ties laid on a well ballasted roadit is, apparently inconsistent with the the bed, to hold it as nearly as possible in place further finding in the special answer that if a break in the rail should occur. It is not appellant was not negligent in respect to shown that it was a new rail, nor that its the breakage in the north rail. But when But when weakness could not have been as well ascerthe findings are read in the light of the tained before the break as after. further finding by the court, as comprehended The judgment is affirmed. in his judgment, of the proximate cause of the derailment and injury being the south rail, any legal inconsistency or contradiction disappears. If the appellant were neg- MEMPHIS COTTON OIL CO. et al. v. GIST. ligent in respect to the north rail, but such negligence did not cause the derailment, the (Court of Civil Appeals of Texas. appellee could not, as a matter of law, recover on this particular ground of negligence had it been the only ground. And likewise, if the appellant were not negligent in respect to the north rail, it would not, as a matter of law, be entitled to a judgment, unless it appeared as a further fact that the defective north rail, for which condition appellant was not legally responsible, was the proximate cause of the derailment and injury. But if the broken south rail, respecting which the jury found negligence, was the proximate cause of the derailment and injury, as comprehended in the judgment of the court, the appellee was entitled to a judgment, irrespective of whether appellant was negligent or not negligent respecting the north rail, which appeared, as a fact, not to be the proximate cause of the injury.

[5] A finding upon a special issue submitted to the jury becomes immaterial when other facts have the legal effect to eliminate the issue embodied in such finding. Hill V. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 40 L. R. A. (N. S.) 672. Therefore, in the light of the finding by the court, as comprehended in his judgment, there was no such legal conflict in the findings of the jury as to warrant a reversal.

It is contended by the second assignment of error that the court erred in submitting certain matters in question 3 about which there was no dispute in the evidence. It is not believed that this worked any injury to appellant such as to warrant a reversal.

1. PLEADING
AMEND.

Where, in foreclosure proceedings, a misdescription of the note sued on, as to date and amount is corrected by trial amendment, an assignment of error will not lie thereto where defendants were not misled or surprised; the record showing that they were only expected to defend against one note and mortgage.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 635, 653-675; Dec. Dig. 245.j 2. CONTINUANCE 30-GROUNDS-SURPRISE -AMENDMENT OF PETITION.

Where defendants in a foreclosure suit were not surprised or misled by a trial amendment to the petition, correcting a misdescription of the note as to date and amount, it was not error nouncement of ready for trial and to grant a to refuse to permit them to withdraw their ancontinuance.

[Ed. Note.-For other cases, see Continuance, Cent. Dig. §§ 99-112; Dec. Dig.

30.]

3. BANKS AND BANKING 262 POWER OF CASHIER-TRANSFER OF SECURITIES.

to transfer notes and bills receivable, payable The cashier of a national bank has power to the bank, without special authority from the directors.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 1001-1006; Dec. Dig. mm 262.]

4. REFORMATION OF INSTRUMENTS 19-MISTAKE EVIDENCE.

In foreclosure proceedings, it was not error to refuse to correct a deed of trust running to defendants as to a misdescription, where it does not appear that a mutual mistake as to such description had been made.

[Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. §§ 74-78; Dec. Dig. 19.]

5. MORTGAGES 274 RIGHTS OF SUBSE-, QUENT PURCHASER-IMPROVEMENTS.

Purchasers of land under a deed of trust, property with a belief in the sufficiency of the who placed improvements in good faith upon the title, which they deraigned through the mortgagor, cannot recover, as against a prior mortgagee, the value of such improvements.

[6] It is thought that there is evidence in the record to establish in favor of appellee the issue of negligence proximately causing the injury, in respect to the broken south rail in the track; and the fifth and seventh assignments of error are overruled. It appears that the end of the south rail broke entirely off, and to such an extent as to permit and allow a derailment. There was no hidden flaw or defect in this rail, as affirmatively appears; and its breaking is accounted for by the weight of the engine passing over it. The engine drawing the Action by John M. Gist against the Memtrain was large and heavy; and from the phis Cotton Oil Company and others, upon a fact that the broken part was found hanging note and mortgage. Judgment for plaintiff, in the trucks of the chair car the inference and defendants appeal. Affirmed.

Cent. Dig. 88 718-724, 728; Dec. Dig. 274.] [Ed. Note.-For other cases, see Mortgages,

Appeal from District Court, Hall County; J. A. Nabors, Judge.

Arnold & Taylor, of Henrietta, and Presler | by Gist upon his mortgage and note executed & Thorne, of Memphis, for appellants. Jos. in 1908, against the Oil Company, Willingham H. Aynesworth, of Childress, and Moss & Bros., Shepperd, and Bennett. The defendLeak and H. D. Spencer, all of Memphis, ants, Oil Company, Shepperd, and Bennett, for appellee. pleaded a mutual mistake as to the beginning call of 196 varas south of the northwest corner of section 55, asking for a reformation of the instrument, and Shepperd and Bennett especially claimed valuable improvements upon the property in good faith; and the court found, at the request of said defendants, the value of the improvements on that part of the land found subject to plaintiff's lien, and placed there by said defendants, to be $1,200. The trial court without the assistance of a jury, rendered judgment in favor of Gist for the amount of the debt and a foreclosure against all of the appellants for his mortgage lien, securing said debt, and rejected the plea of improvements in good faith.

[1] Appellants' first assignment of error is overruled. The misdescription of the note as to the date and as to amount, was met by trial amendment. The record shows that the appellants were only expected to defend against one note and mortgage, and could not have been misled or surprised.

"If the misdescription will tend to mislead and surprise the adverse party, it should be noticed by the court; if not, it may be disregarded." S. W. 583, and cases cited. National Bank v. Stephenson, 82 Tex. 436, 18

[2] For the same reason, we think the trial court properly refused to permit the defendants to withdraw their announcement of ready for trial and continue the case, raised under their second assignment.

HENDRICKS, J. In 1906 John M. Gist, the owner of property in the town of Eli, Hall county, Tex., conveyed five acres of land to Fred L. and A. M. Willingham, in consideration that the latter would build, equip, and operate a gin at that place. This property was a part of section 55, block No. 18, H. & G. N. Ry. Co. survey, and the location began at a point 106 varas south of the northwest corner of said section No. 55; thence east 106 varas for corner; thence south 228 varas for corner; thence west 106 varas for the southwest corner of the tract; thence north with section line 228 varas to the place of beginning. That same year Willingham Bros. executed a deed of trust to the Continental Gin Company of Dallas, Tex., to secure certain indebtedness for gin machinery. The land described in this deed of trust began at a point 196 varas south of the northwest corner of section No. 55, block 18, H. & G. N. Ry. Co.; thence east 106 varas for corner; thence south 228 varas for corner; thence west 106 varas for the southwest corner of the tract; thence north with section line 228 varas to the place of beginning. In 1908 John M. Gist, the appellee herein, for the purpose of assisting Willingham Bros. the proprietors of the gin, in continuing the operation of the ginning business, became their surety on a note made to the Hall County National Bank for about $3,000, and thereafter, on account of the failure of Willingham Bros. to pay said note, Gist paid the amount due upon the note to the bank, and received a transfer of said note and the mortgage securing the same. This deed of trust to the bank embraced the correct field notes identifying the land, beginning at a point 106 varas south of the northwest corner of section 55, while the deed of trust to the Gin Company, prior in time to the bank's, called, as stated, for the beginning point at 196 varas of the northwest corner of said section, 90 varas south from the point of the other beginning call. On account of the failure of the Willingham Bros. to pay the Continental Gin Company, the Memphis Cotton Oil Company, likewise interested in the gin's operations, for the purpose of assisting the Willinghams, paid the Gin Company the amount of the debt, receiving the transfer of the debt and mortgage to it. Willingham Bros. failed to pay the Memphis Cotton Oil Company the amount of the last mortgage mentioned, and a substitute trustee, appointed by said Oil Company, purported to sell the property embraced therein, and the Oil Company became the purchaser at said sale; and thereafter W. [4] The fourth assignment of error comA. Bennett and one Shepperd became the os- plains that the court should have corrected tensible owners of the property embraced in the Continental Gin Company's deed of trust,

[3] The appellants' third assignment challenges the action of the court in permitting the plaintiff to establish by parol testimony the note transferred by the Hall County National Bank, "for the reason that the cashier of the National Bank had no power or authority to sell or transfer notes and bills receivable, payable to said bank, and by such actions transcended his power," and for the further reason that within the scope of his authority the cashier could not transfer the paper of the bank without a resolution of the board of directors, which is not shown to have been made. The Supreme Court of the United States said, in the case of Merchants' National Bank v. State National Bank, 10 Wall. 650, 19 L. Ed. 1008:

"The cashier is the executive officer, through whom the whole financial operations of the bank are conducted. He receives and pays out ceives and transfers its commercial securities." its moneys, collects and pays its debts, and re

See, also, Rosenberg v. First National Bank, 27 S. W. 897; Arnold v. Swenson, 44 S. W. 870; Morse on Banks and Banking, § 158, under Indorsement.

lieu of 196. The statement made under this assignment, for the purpose of sustaining its tenability, is bare of any fact, or equity pointing to a mutual mistake; nor does it afford, by inference or otherwise, any explanation of the error, the circumstances of the execution of the instrument, or whether the mistake was mutual or unilateral. It may be surmised, on account of the circumstances of the ownership of the five acres, the furnishing of the gin machinery by the Continental Gin Company, and its location upon the property, that a mistake was made, but whether intentional or mutual, or unilateral, is not shown. San Antonio National Bank v. McLane, 96 Tex. 48-55, 70 S. W. 201, and cases cited. We understood appellants' counsel in the oral argument to admit the insufficiency of this record for the purpose of correcting the alleged mistake. The trial court, in foreclosing plaintiff's mortgage, only foreclosed the same to the extent of 90 varas, instead of 106 varas, from the northwest corner of section 55, for the reason, we presume, that, the Continental Gin Company's mortgage being prior in time and calling for the land 196 varas from said corner, the later covered 16 varas of the land embraced in appellee's mort

gage.

[5] The fifth assignment of error is seriously insisted upon, complaining of the court's action in refusing the value of the improvements found by the court, made in good faith, on that part of the land adjudged to faith, on that part of the land adjudged to appellee, Gist. The statute, providing for compensation for improvements made in good faith under claim of title, of course cannot be invoked upon the question. The right to recover the value of improvements placed upon another's land in good faith may exist, however, under principles of equity independent of any statute. Scott v. Mather, 14 Tex. 235; Eberling v. Deutscher Verein, 72 Tex. 339, 12 S. W. 205; Van Zandt v. Brantley, 16 Tex. Civ. App. 420, 42 S. W. 617; Patrick v. Roach, 21 Tex. 251; Wood v. Cahill, 21 Tex. Civ. App. 40, 50 S. W. 1071.

The Supreme Court of North Carolina said, in the case of Wharton v. Moore, 84 N. C. 479, 37 Am. Rep. 627:

* *

"The land in the unimproved state when Carter received his mortgage was worth only $250; Adams after the conveyance to them, which enand improvements were put on it by Moore and hanced its value at least $1,000. * * * "" And the latter insists "that by reason of their improvements they have a right to so much of thereby. This right to betterments is a doctrine the proceeds as the lot has been enhanced that has gradually grown up in the practice of the courts of equity. But it may now be considered as an established principle of equity that whenever a plaintiff seeks the aid of a court of equity to enforce his title against an innocent person, who has made improvements on land, without notice of a superior title, believing himself to be the absolute owner, aid will be given to him, only upon the terms that he shall make due compensation to such innocent person to the extent of the enhanced tions or improvements, upon the principle that value of the premises, by reason of the meliorahe who seeks equity must do equity. But we have been unable to find any case in which the doctrine has been held to apply to mortgages."

*

*

The North Carolina Supreme Court said that the statute of that state, providing a remedy for the recovery of betterments for that its provisions shall not apply to a suit innocent defendants, in expressly declaring that the Legislature was simply re-enacting brought by a mortgagee against a mortgagor, the generally admitted principle that the right to betterments is not conceded to mortgagors or parties claiming under them, and that court further quotes Washburn on Real Property, vol. 2:

"If the mortgagor, or any one standing in his place, enhances the value of the premises by improvements, they become additional security for the debt, and he can only claim the surplus, any, upon such sale being made after satisfying the debt."

if

To the same effect are Childs v. Dolan, 5 Allen (Mass.) 319, and Martin v. Beatty, 54 Ill. 100; Rice v. Dewey, 54 Barb. (N. Y.) 455, which later case holds"improvements that constitute a part of the realty, irrespective of the question by whom made, are subject to the lien of the mortgage."

We are unable to work out the proffered equity in this case upon any satisfactory basis, and there is no assignment, or position assumed in this court, asking that the excess, if any, resultant from the proceeds of the sale, be granted to appellants. We feel impelled to affirm the judgment of the lower court; and it is so ordered.

This cause stands upon the record with the appellee as a prior mortgagee; the insufficiency of the record in regard to mistake and the lack of equity for reformation against Gist resolves the status in that manner. We can find no authority whatever, and we are cited to none, that purchasers placing improvements in good faith upon property, with a belief in the sufficiency of the title, and deraigning the same through the mortgagor, can prevail against a mortgagee in equity for the value of such improvements. J. B. FARTHING LUMBER CO. v. ILLIG Jones on Mortgages, vol. 1, § 147 (6th Ed.) says:

"A lien of a mortgage extends to all improvements and repairs subsequently made upon the mortgaged premises, whether made by the mortgagor or by a purchaser from him, without equal notice of the existence of the mortgage.'

et ux. (No. 483.)

(Court of Civil Appeals of Texas. El Paso. Nov. 4, 1915.)

1. APPEAL AND ERROR 569-STATEMENT OF FACTS-PREPARATION.

Under the statute, appellant without consent of appellee may, without the reporter's

Under the rules for briefing, Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136 (Vernon's Sayles' Ann. Civ. St. 1914, art. 1612), making grounds assigned in a motion for new trial assignments of error, the assignments in the brief must be true copies of such grounds,

and not reconstructions thereof.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. 758.] 3. APPEAL AND ERROR 758-ASSIGNMENTS OF ERROR-GROUNDS OF MOTION FOR NEW TRIAL-REFERENCE.

Where assignments of error are grounds assigned in a motion for new trial, they, as given in the brief, must, as required by Rule 25 (142 S. W. xii), refer to the portion of the motion in which they are complained of.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. 758.] 4. APPEAL AND ERROR 499-BILL OF EXCEPTIONS REFUSAL OF CHARGES-SUBMISSION TO COUNSEL.

Bills of exceptions to refusal of requested special charges must disclose that such charges were submitted to opposing counsel for examination and objection, as required by Rev. St. art. 1973, as amended by Acts 33d Leg. c. 59 (Vernon's Sayles' Ann. Civ. St. 1914, art. 1973). [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig.

499.]

Appeal from Harris County Court, at Law; Clark C. Wren, Judge.

Action by R. C. Illig and wife against the J. B. Farthing Lumber Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

paid out of the contract price for tin work, which was not done; and that the owner of the claim for tin work was threatening to file a mechanic's lien; that there remains an unused balance in the hands of appellant of the $4,069, the sum of $279, which appellant had converted to its own use.

Appellant specially denied that the contract price for the house was $3,750, and alleged that the contract price was $4,860 and evidenced by 73 notes, 71 of which notes for the sum of $40 each, one note for $20, one for $2,000, all payable to the order of Brunson, all bearing interest and secured by a mortgage, mechanic's and materialman's lien : that Brunson sold the notes to Burkitt for $4,200, upon agreement to pay Brunson $2,100 upon an order from appellee R. C. Illig and $2,100 on completion of building and acceptance by appellee; that Brunson with said acceptance and contract, and with the knowledge and acquiescence of appellees, represented to appellant that he was to receive cash for said notes to enable him to build said house for the sum of $4,200 less $131 brokerage; that Brunson was the owner of said notes and entitled to $4,069 with which to build said house; that appellees knew that Brunson had the notes in his possession and the agreement of Burkitt to buy the notes at said price and the said representations then being made by Brunson with reference to them. Appellant alleged that appellees, by reason of said facts, were estopped from denying that Brunson was the owner of said notes and entitled to the proceeds of their sale; that Brunson agreed with appellant that appellant, for the net proceeds of the sale of said notes, should furnish to Brunson

Jno. C. Williams, of Houston, for appel- certain lumber and material for the construclant. Fisher, Campbell & Amerman, of Hous-tion of said house and assigned to appellant ton, for appellees.

the proceeds of the said notes, upon acceptance by Burkitt; that thereupon appellant furnished to Brunson material to build said house at an agreed price, and advanced to Brunson, for labor performed, out of said funds, stating the items. Appellant denied the statements of appellees contained in the several paragraphs of their petition.

WALTHALL, J. Appellees, R. C. Illig and wife, plaintiffs below, sued the appellant, J. B. Farthing Lumber Company, in the county court at law of Harris county, Tex., for a balance which they alleged was due them on a contract with W. W. Brunson for the construction of their residence in Houston, at Appellees, by supplemental petition, adthe contract price of $3,750. Appellees al- mitted the execution of the notes described in lege that to build the house they borrowed the answer, and alleged that the aggregate $4,200 from G. W. Burkitt; that, with the amount stated embraced and included the acconsent of appellees and Brunson, Burkitt cumulated interest on the deferred payments; paid over to appellant the sum of $4,069, for denied any knowledge of the alleged dealings which appellant agreed on behalf of appel-between Brunson and appellant; denied that lees and Burkitt to have the house built by they ever consented to any money, the proBrunson and to pay off and become responsi- ceeds of said notes being paid by Burkitt to ble for all bills for labor and material fur- appellant, except upon the express undernished in the construction of the house and standing that appellant would see that the to return any balance not used by it to ap- said house was completed and all labor and pellees; that appellee R. C. Illig is a paper material claims paid and all money accounthanger and painter, and undertook to do that ed for as stated, and that the acceptance by part of the work for which he was to be Burkitt agreeing to pay all labor claims, as paid out of the contract price by appellant; stated. Appellees denied the several matters that he was paid for his work except a alleged in the answer, except such as were balance of $79.50; that $275 should have been admitted.

At the request of appellees, the case was ticles 1924 and 2070, Revised Statutes of submitted to the jury on special issues, and 1911. the jury found as follows: (1) The contract price agreed upon between R. C. Illig and Brunson for the construction of the house was $3,750. (2) The item of painting and paper hanging was included in the contract price. (3) The item of electric fixtures was included in the contract price. (4) The sum of $425 was the allowance in the contract price for painting and paper hanging. (5) The amount agreed upon between Brunson and Illig for doing the painting and paper hanging was $425. (6) The amount Illig had received for doing the painting and paper hanging was $370. (7) That there were no extras placed in the house during its construction not covered by the contract price. The appellant presented special issues to the court to be submitted to the jury, all of which were refused by the court.

There is some conflict in the cases reported on the construction to be placed on the above articles of the statute. Counsel presenting the motion refers us to the cases of Buffalo Bayou Co. v. Lorentz, 170 S. W. 1052. On somewhat similar conditions to the instant case, the Galveston court, on motion in the first case above, struck out the statement of facts and overruled a motion to reinstate. The case was thereafter transferred to the San Antonio court. That court overruled a motion to reinstate the statements of facts (175 S. W. 736), but later, on its own motion and for reasons given, set aside its former order and reinstated the statement (177 S. W. 1183). In passing on the motion, we need not do more than refer to the case of Camden Fire Ins. Ass'n v. M., K. & T. Ry. Co., 175 S. W. 816, and Ft. Worth Pub. Co. v. Armstrong, 175 S. W. 1113. The reasoning of the courts in the last two cases construing the articles of the statutes referred to meets our approval. The motion is overruled.

The court entered its judgment in favor of appellees in the aggregate sum of $373.50, and that appellant take nothing upon any claim or set-off. The appellant presented its motion to set aside the judgment rendered and grant it a new trial, one of the grounds [2-4] Appellees move to strike out appelbeing that the uncontradicted evidence show-lant's three assignments of error and the ed that $40 extras had been placed upon said propositions thereunder as appearing in aphouse and that said amount was included in pellant's brief, because appellant's brief, in the judgment entered. The appellees filed a presenting said assignments, does not conremittitur of said item of $40, and the mo- form to the rules governing the preparation tion for new trial was overruled. Appellant of causes for submission. The brief makes gave notice of and perfected its appeal. no pretense to copy the verbiage of the motion for new trial, made the basis of the first assignment of error; nor does it refer to that portion of the motion for new trial in which the errors are complained of, as required by the latter part of Rule 25 (142 S. W. xii).

[1] Appellees have filed in this court a motion to strike out the statement of facts and bills of exceptions filed in this court on the ground: That the statement of facts filed was not agreed to by them, and is filed by them as a statement of facts prepared by the judge of the trial court after the par- Article 1612, Revised Statutes, as amended ties had failed to agree. That no question by chapter That no question by chapter 136, Thirty-Third Legislature, and answer transcript was filed in the trial makes the grounds assigned in the motion court in time and in the manner required by for new trial to constitute the assignments law, in that no question and answer tran- of error. The Courts of Civil Appeals have script was in fact filed by the stenographer uniformly held that the rules for briefing as required by law, but that a question and cases contemplate that the assignments in the answer transcript was prepared in duplicate brief shall be true copies of the correspondby the stenographer and turned over to coun- ing paragraphs of the motion for new trial, sel for appellant. That, exactly 90 days and not rewritten or reconstructed assignafter the adjournment of the term at which ments or grounds. Ruth v. Cobe, 165 S. W. the cause was tried, the attorney for appel-530; Coons v. Lain, 168 S. W. 981; Overton lant filed with the clerk of the court one copy of a question and answer transcript, and upon the next day filed a duplicate thereof, the record showing that the first copy filed by appellant's attorney at the same time the trial judge filed his statement of facts, and that the duplicate question and answer transcript was not filed by appellant's at-nation the issue of estoppel as requested by torney until the day after the trial court had filed his statement of facts, the parties not agreeing. The proposition of appellees is that the circumstances and times under which the said question and answer transcript was filed, and with reference to the time the trial judge filed his statement of

v. Colored Knights of Pythias, 163 S. W. 1053; Hayes v. Groesbeck, 146 S. W. 327, Smith v. Bogle, 165 S. W. 35; Dees v. Thompson, 166 S. W. 56.

The assignment, as copied in the brief, complains of error of the trial court "in not submitting to the jury for its determi

appellant in special issues Nos. 5, 6, and 7.” The subject-matter of these proposed special issues requested covers 28 pages of the transcript, and by this brief assignment this court is asked to go through the transcript to discover whether the special charges should have been given. An inspection of