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pp. 341, 790; Waite on Fraud. Conveyances, § 177; Bump on Fraud. Conveyances, 567; Moore on Fraud. Conveyances, Vol. 2, 743; 20 Cyc. 663; Interstate Rubber Co. V. Kaufman et al. (Neb.) 153 N. W. 585; Ferguson v. Hillman, 55 Wis. 181, 12 N. W. 394; Musselman Grocery Co. v. Kidd, Dater & Price Company, 151 Mich. 478, 115 N. W. 409; Marquette County Savings Bank V. Koivisto, 162 Mich. 554, 127 N. W. 680; Jaques & Tinsley Co. v. Carstarphen Warehouse Co., 131 Ga. 1, 62 S. E. 82; Kohn V. Fishbach, 36 Wash. 69, 78 Pac. 199, 104 Am. St. Rep. 941; Armstrong v. Elbert, 14 Tex. Civ. App. 141, 36 S. W. 139; Willis v. Yates, 12 S. W. 232; Holloway V. Bank, 92 Tex. 187, 47 S. W. 95.

This holding is not in conflict with Legeirse v. Kellum, 66 Tex. 243, 18 S. W. 509, Kessler V. Halff, 21 Tex. Civ. App. 91, 51 S. W. 48, and Blum V. Goldman, 66 Tex. 623, 1 S. W. 899. The holding in those decisions is to the effect that a Creditor of an insolvent debtor cannot in a direct proceeding, Without the aid of garnishment or other lien, obtain personal judgment against the purchaser, even though he purchase for the purpose of hindering, delaying, and defrauding the Creditors Of Such debtor. The SOundness Of Such holding could hardly be questioned, Since in such a case the creditor did not lose anything by the Wrongdoing of the fraudulent creditor in making the purchase. All the creditor lost was an opportunity to levy upon the goods of the debtor, but this damage is too remote to Create a cause of action. In those cases no lien by garnishment, attachment, or otherwise, had been acquired by the Creditor, While in the instant Case a garnishment lien was secured.

The complaint by the defendants in error that there Was error in rendering judgment for the plaintiffs in error because they failed to allege that the merchandise had been sold prior to the service of the Writ of garnishment is Without merit, Since, as noted in this opinion, the defendants in error were indebted to SWeet for the Value Of the merchandise at the time the Writ of garnishment was served, and it would seem unnecessary to plead in what manner they became so indebted. However this may be, they did not except to the pleading on said ground, and themselves made the allegation that they had disposed of the property prior to the Service of the Writ. They also allowed the proof to be offered without objection. Under Such Circumstances they ShOuld be held to have waived error On the question.

[3] There being no cross-assignment of errors by the plaintiff in error before this court, complaining of the action of the trial court in not rendering judgment for the entire debt due by Sweet, it is unnecessary for us to decide whether a judgment should have been rendered for the entire debt due by SWeet to them.

For the reasons indicated, the judgment of the Court of Civil Appeals should be reversed, and the judgment of the trial court Should be affirmed, and it is so ordered.

STEPHENSON v. LUTTRELL. (No. 2770.) (Supreme Court of Texas. Oct. 20, 1915.)

1. TENANCY IN COMMON 3-929 — IMPROVE

MENTS-RIGHT TO CONTRIBUTION.

A tenant in common who improved the com

mon property by having it filled in and its level raised by a dredging company could not recover from his cotenant his share of a portion of the agreed price for doing the work, which he had not paid, and against which limitations had run, as he was only entitled to reimbursement for the money spent by him in making the improvement, and could not speculate on the transaction or obtain a profit from his cotenant, even though the cotenant received the benefit of the work which had not been paid for.

[Ed. Note.—For other cases, see Tenancy in Common, Cent. Dig. §§ 89–92, 94; Dec. Dig. c3:29.]

2. TENANCY IN COMMON 8:38—ACTIONS FOR CONTRIBUTION-JUDGMENT—CoNFORMITY To PLEADINGS. In an action by one tenant in common against another to recover defendant's share of the cost of improving the property by filling it in and raising its level, plaintiff could not recover defendant's share of the cost of filling in a street adjacent to the property, where there was no allegation in the petition that he had incurred any expense in filling the street, or that it was necessary to fill the street as a benefit to the property. [Ed. Note.—For other cases, see Tenancy in Common, Cent. Dig. §§ 100–104, 107–118; Dec. Dig. 3:38.]

3. TRIAL &76—OBJECTION TO TESTIMONYTIME FOR OBJECTION. In an action by one tenant in common against another to recover defendant's share of the expense of improving the property by filling it in and raising its level, the petition did not allege that plaintiff had incurred any expense in filling an adjacent street, or that it was necessary to fill the street as a benefit to the lot, but did allege that the lot was filled at an expense of $6,825.87. Plaintiff testified without objection that the expense of filling the lot and the street was $6,825.87, and was then asked whether it was necessary to fill the street as a benefit to the lot, to which question defendant objected. Held, that the objection was timely interposed, and there was no waiver of the objection on the ground of variance, since the testimony admitted without objection showed that only a part of the expense alleged was incurred in filling the lot, and thus contradicted the allegation of the petition, and defendant was . not required to object thereto. [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 172, 183–190, 237; Dec. Dig. 3:576.]

Error to Court of Civil Appeals, Fourth Supreme Judicial District.

Suit by R. W. Luttrell against John Stephenson and others. A judgment for plaintiff was reformed and affirmed by the Court of Civil Appeals, Fourth District (160 S. W. 666), and the defendant named brings error. Reversed and remanded.

Geo. G. Clough, of Galveston, for plaintiff in error. Stewarts and J. E. Quaid, all of Galveston, for defendant in eITOT,

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

YANTIS, J. R. W. Luttrell, defendant in error, sued John Stephenson, the plaintiff in error, William E. Stringfellow, Jas. W. Walker, Mrs. Jas. A. Borard, and husband, Jas. A. Borard, in trespass to try title for “out lot No. 7,” in the city and county of Galveston, and, in the alternative, sued them for contribution to recover their proportion of the expense incurred by the defendant in error in filling said lot and raising its level, if it should be decided that Said StephenSOn, plaintiff in error, and others sued with him, owned any interest in the lot. The defendant in error, Luttrell, alleged in his petition that at the time he contracted to purchase said lot it was a part of a low marsh, worth about $3,500, and that prepara

tions were then being made to fill up the

surrounding territory, which was in a like condition, and that a necessity existed for the owners of Said lot to fill Same, and that he made a contract with the North American Dredging Company, with whom he was employed in doing other work, to fill said lot, at a cost of 171% cents per cubic yard, Or at a cost of $6,825.87 for the entire lot; that the filling was to be done by hydraulic process, the solid material being held in position by the water by which it was borne into the lot and there allowed to settle, and, unless the opportunity then offered for filling the lot was availed of, it would have been left a hole in the ground, which could not afterWards have been filled, except at a COSt greatly in excess of its value; that for his own protection, and that of his co-owners, it was necessary that the filling of the lot be done at that time in connection with the general scheme for filling the surrounding territory; and that OtherWise it Would have been rendered absolutely worthless, whereas after it was filled it was worth from $10,000 to $12,000, having been raised to a grade of 5.5 feet above mean low tide, as required by an Ordinance of the city of Galveston. The defendant in error, Luttrell, in addition to his claim for contribution, Sued for the eStablishment of a lien On the undivided Onethird interest of the plaintiff in error and those under whom he claimed for a proportionate part of the expense incurred in filling said lot. The plaintiff in error, John Stephenson, assumed the defense for himself and those under whom he claimed, and alleged that about the 7th day of June, 1909, the defendant Stringfellow sold to George Clough, and that about the 18th Of the Same month he purchased from said Clough. The undisputed evidence established Said dates Of Sale and purchase. He also alleged that neither he nor his vendors had any notice of the claim of a lien by the defendant in error, Luttrell, and that they purchased in good faith for value without notice; that the property was already filled to grade when they bought; that the defendant in error, Luttrell, had no

his expense; and that it was an unnecessary act of an intermeddler. There is evidence to support the finding that the lot had not been filled When plaintiff in error purchased it, but that the filling began while owned by his vendor the latter part of May, 1909, and continued until July 12th, thereafter. It was purchased by plaintiff in error June 18, 1909, and his deed withheld from record. At the trial the defendant in error, Luttrell, dismissed as to the defendants Jas. W. Walker, Jas. A. Borard, and Mrs. Jas. A. BOrard, and also as to Stringfellow, though in the judgment that was entered after the trial the last name was omitted therefrom by a “Clear OverSight.” After the trial the district court corrected the oversight by rendering a judgment nunc pro tunc, dismissing Said Stringfellow from the Suit. The Case Was tried before the court Without a jury, and the findings of fact filed by the trial court are as follows:

. “I find the facts to be as stated in the petition, except as to the ownership of the onethird interest in out lot No. 7, formerly owned by the defendant Stringfellow, and that the ownership of that interest is as stated in the answer of the defendant Stephenson. I find that the plaintiff acted in good faith and with due diligence in seeking to learn the true ownership of the one-third interest not owned by him, with the purpose of trying to get the owner to join in availing of the opportunity of having the , whole out lot filled at the moderate cost, made practical at the time by the North American Dredging Company being in position to do it, growing out of the fulfillment of contracts with the city of Galveston; that, if it had not been filled at the time, the out lot would have become a public nuisance, a menace to the life and health of the inhabitants of the city; and that it could not have been filled later except at a cost entirely prohibitory, because greatly in excess of the value of the property after being filled. I find that the plaintiff, in having the out lot filled without the co-operation of the owner of the Stringfellow interest, did so because he was unable to learn who the owner was, the deeds of Stringfellow to Clough and of Clough to Stephenson having been withheld from record until after the filing of this suit, and was compelled to do it to save the common property and his own interest in it from being entirely lost and destroyed; that it was properly filled, at moderate cost; and that the plaintiff has paid to the North American Dredging Company in services the cost of the filling, except the sum of $1,000, which he still owes. find that said filling operations for the area including this out lot, began about the last of May, 1909, and were completed on July 12, 1909, and that defendant Stephenson and those under whom he claims, knowing they were going on, stood by mute, and speculated in the chance of not having to pay for it. The total cost of filling the out lot was $6,825.87, payable July 12, 1909. I find that the filling saved the property from becoming valueless and increased its value by a sum at least equal to the expenSe.

There is evidence of probative force to support all of the findings of fact by the trial Court, except the finding that the total cost of filling the lot was $6,825.87, and this finding is true if a filling of a portion of the Street adjacent to the lot Should be treated evidence shows that 24,358 cubic yards went into the lot, which, at 17% cents per cubic yard, Would be $4,262.65, which represents the total amount expended by the defendant in error, Luttrell, in filling said lot; that 14,652 cubic yards went to fill the street, Which, at 17% cents per cubic yard, would be $2,564.10. The defendant in error, Luttrell, in his amended petition, upon which trial Was had, did not allege that he had included any expense of filling any portion of the Street. His allegation Was, in substance, that he filled out lot No. 7 to the established grade, at an expense of $6,825.87. The evidence ShoWS that this sum covered the expense incurred by him in filling both the lot and the street. [1] It is contended by the plaintiff in error that he should not be held liable for any portion of the $1,000 which the defendant in error, Luttrell, still owes the North American Dredging Company, since it appears from the undisputed evidence that, as between said dredging company and Luttrell, the defendant in error, the said $1,000 is barred by the two-year statute of limitation, and, not having been paid by the defendant in error, and there being a legal defense to its payment by Luttrell, there should be no contribution required of the plaintiff in error, the expense not having been actually incurred by Luttrell, until he has paid the same. We think this Contention must be sustained. When two persons are cotenants in the ownership of land, and One of them incurs expense in the improvement of the property which is necesSary and beneficial, it is equitable that the One incurring the expense shall have contribution from his cotenant in an amount which is in proportion to the undivided interest OWhed by Such Cotenant; but there is no principle of equity that will permit him to speculate on the transaction, and require his cotenant to return to him any greater Sum than his proportion of the money actually expended. It is not an undertaking where he would be permitted to profit in any way except in proportion as his cotenant would also make profit. He could not claim more from his Cotenant than his proportion of the money actually expended; for equity Only allows a reimbursement of the money spent by him in making the improvement. The law implies a contract between him and his cotenant, authorizing him to spend for him the money which was necessarily spent, but further than this there is no implied Contract. The cause of action allowed in such cases is not grounded on benefits received, though this be considered an element necessary to recovery, for he would not be authorized in law to spend money for his Cotenant for a useless and unnecessary improvement; but the Cause is founded On reimbursement for money necessarily, Or beneficially Spent. He could not contend that he drove a good bargain in the improvements, and that they Were really Worth more to his cotenant than

they cost him, and that he should have his Cotenant contribute to him in proportion to What it should have cost under ordinary cirCumstances. He must not be permitted to profit either by business ability or otherwise. His cotenant, by rules of equity and justice, is required to contribute back to him his proportion of the expense actually incurred, and no more. He is required to share the burdens of the expense incurred, and, being SO required, he is in justice allowed the benefits that might accrue by reason of the busineSS Sagacity of his cotenant making the illnp1:OWellmentS. In this case the defendant in error, Luttrell, has expended for filling the lot and the Street the Sum of $5,825.87. The plaintiff in error Owns a one-third interest in the lot, and should be required to refund to Luttrell one-third of the expense incurred in filling the lot, but nothing for filling the Street, in the present state of the pleadings, as indicated later herein. The defendant in error, Luttrell, still owes the North American Dredging Company $1,000 for filling said lot and street, which amount is barred by the two-year statute of limitation, since it became due on July 12, 1909, and had not been paid at the time of the trial of this suit, which was had on the 22d day of March, 1912, nearly three years having elapsed since the maturity of the account. Now, the defendant in error, Luttrell, has the legal right to defeat the payment of this claim to said dredging company by pleading the statute Of limitation. We Would not presume that he would plead the statute of limitation, neither Should We aSSert that he WOuld not, as he has a legal right to do it. But suppose he does plead the statute of limitation against the dredging company, and defeats the claim; would equity require that the plaintiff in error, Stephenson, refund to him one-third of this $1,000, disregarding for the sake of discussion that a portion of it was spent in filling the street, when the amount has never been expended by Luttrell ? Would a court of equity require the plaintiff in error, Stephenson, to return to Luttrell money that Luttrell had never spent for his benefit? All equity Should require would be that Stephenson refund to Luttrell the money that Luttrell Spent for his benefit. In no circumstances would Luttrell be allowed, While demanding that Stephenson do equity, to speculate on him in the transaction. It is no answer to this position to say that Stephenson received the benefits of the $1,000 which has not been paid by Luttrell, for a suit for contribution is not based alone On the benefits received by his Cotenant. For instance, the improvements placed on the lot by Luttrell, at an expense of $5,825.87, may have been Worth much more than that to Stephenson, but Luttrell would not be heard to deliland it, for this would be speculating on his cotenant, Whereas the principle of contribution has no element of speculation in it. In cases of this kind it is implied that the person seeking contribution had authority from his cotenant to expend the money that was actually Spent. It is the Same as if he had been actually instructed by his cotenant to expend that much money for him in improving the lot. This much is implied by law. And if he spent it, equity would demand that it be returned to him ; but if he failed to spend it, it Would be an injustice to say that it Should be returned to him anyhow, by his Cotenant. It follows, from what we have said, that the plaintiff in error, Stephenson, should not be held, as the judgment of the lower court undertakes to hold him, for the refund to Luttrell of one-third of $1,000, Which has not been expended by Luttrell, and which may never be expended by him. [2, 3] The recovery in favor of the defendant in error, Luttrell, against the plaintiff in error, Stephenson, for one-third the expense of filling the street adjacent to the lot, should not have been allowed; there being no allegation in the amended petition by Luttrell upon Which the Case Was tried that he had incurred any expense in filling the Street, and no allegation that it was necessary to do so as a benefit to said lot. Not having sued for this item, he should not be permitted to recover it in the State Of the pleadings. It is contended that there was no objection. On the part of the plaintiff in error to the evidence as to the expense incurred in filling the street at the time it was offered, and that by reason of the failure to make a timely objection the error Was Waived. But We find from the record that the plaintiff in error, StephensOn, did Object at the proper time to make the objection. The defendant in error, Luttrell, testified that the expense of filling the lot and the Street Was $6,825.87, all of Which had been paid by him, except $1,000. There Was no objection made to this evidence, but when the defendant in error Was asked by his Counsel Whether it was necessary to fill said street as a benefit to the lot, the plaintiff in error objected to the evidence, on the ground that there was no allegation in the pleading to support the proof. This objection Was Overruled, and the plaintiff in error excepted. The objection Was made at the proper time. It was permissible for Luttrell to testify that the total expense of $6,825.87 Covered the expense of filling the lot and the street, and the plaintiff in error was not called upon to object, for the Sufficient reason that the evidence as Offered Was contradictory of Luttrell’s allegation that he had expended said amount in filling the lot. It established for the plaintiff in error that he only expended in filling the lot a portion of the sum ; and the evidence Went further and established the number of cubic yards which went into the street, whereby night—at the time of his injury setting the brakes on a car which had been shunted or “kicked in” by the switch engine on a side track, and Which Violently collided With anOther car stationary On the track, causing him to be thrown to the ground—With its electric headlight brilliantly burning, which, it was claimed, had the effect of blinding him, and rendering his work dangerous by obscuring his vision, and because of Which he Was unable to Set the brakes On the Car before the Collision. The honorable Court Of Civil Appeals, upon the original hearing, reversed the judgment obtained by Flanders in the trial court because of the submission of this issue, holding that, while there was sufficient evidence to warrant a finding that this was an act of negligence, yet, under the evidence, it could not have contributed to the injury. On rehearing it affirmed the trial court judgment, because of its View that the error in Submitting the issue had been invited by certain instructions requested on the trial by the railway company. The writ of error was granted on this latter ruling. It presents the Only question which it is necessary to discuss; on all other questions the judgment, in our opinion, being entitled to affirmance. [1] The rule of invited error rests in the principle of estoppel; its reason being that a party is in no position to complain of an error Which he has induced the Court to COmmit. It may easily be carried too far, especially in the case of requested instructions, which, in general, are as often framed by Counsel for the purpose of adapting the submission of issues to what are understood to be the Views Of the court upon the questions involved as inducing the submission of a particular issue, or an issue in a particular Way. The consequence of an evident error on the part of the court substantially affecting a party's rights and depriving the trial of the legal character Which it is the duty of the court to maintain Ought not to be avoided by its technical application. For their elements of finality and Conclusiveness the judgments of courts are dependent upon a legal trial. The conduct of the proceeding So as to insure Such a trial is an obligation resting primarily upon the court itself; and the responsibility for the court's action in the commission of hurtful errors Ought not to be transferred to a litigant unless it is reasonably plain that through the action of his counsel he is equally chargeable With the mistake. As applied to errors in the charge apparently induced by requested instructions, the test of the question, therefore, is that definitely announced in the thoughtful opinion of Chief Justice Gaines in Railway Co. v. Eyer, 96 Tex. 73, 70 S. W. 529, following but limiting Railway Co. v. Sein, 89 Tex. 63, 33 S. W. 215, 558, namely, whether by means of a special instruction requested before the charge is read to the jury the court

it was shown that only $4,262.65 went into the lot, instead of $6,825.87 alleged by Luttrell, the defendant in error. The balance, $2,564.10, went towards filling the street. As the evidence of Luttrell about filling the Street reduced the claim Which he had pleaded against the plaintiff in error $2,564.10, it Should not be expected that the plaintiff in error, Stephenson, would object to its introduction. But when it was attempted to fasten on the plaintiff in error the expense of filling the Street, by showing that it was necessary to do so, and a benefit to the lot in order to have a Way Of ingress and egress, the plaintiff in error objected, because there was mo pleading to support it. This was the appropriate place to make the objection, and we cannot treat the error as having been waived.

We have carefully examined the other assignments, and find no error in them which Would likely arise upon another trial.

For the errors indicated, the judgments of the Court of Civil Appeals and of the trial Court are reversed, and the cause is remanded for another trial.

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iS asked to affirm the proposition Which is erroneously affirmed in the given charge. If S0, the rule applies; otherwise it does not.

Making use of that test here, it is manifest that the error of the court in submitting in the general charge as an issue of negligence the presence of the brilliant headlight

..in the railway yards while Flanders was

engaged in his particular duties must be regarded as having been invited by at least One of the special instructions requested by the railway company. The instruction referred to is in the following language:

“If you should believe from the evidence that the light from the headlight of one of the defendants' locomotives in the yard at the time of the plaintiff's injury shone on plaintiff while he was in performance of his work in such manner as to render the performance of same dangerous, and if you should further believe from the evidence that plaintiff had knowledge of the presence of said light before beginning his work, or that a person exercising such care under the same circumstances would have had knowledge of the presence, position, and probable effect of said light upon a person attempting to perform the duties plaintiff was to perform on said track, and you further find from the evidence that plaintiff, in attempting to perform his duties, under the circumstances, failed to exercise ordinary care for his own safety, if he did, or if you believe from the evidence that by the exercise of ordinary care in the performance of his duty, plaintiff could by changing his position on the car, if you find he did not do so, have avoided the effect of said light and danger therefrom, then in event you find that in either or all of the instances above named plaintiff failed to exercise ordinary care, and that such failure, if any, proximately caused or contributed to his injury, you are instructed that same would not bar a recovery by plaintiff, but the damage, if any, should be diminished by you in proportion to the amount of negligence attributed to plaintiff.”

The purpose of this special instruction was the Submission Of the issue of contributory negligence, predicated upon the plaintiff's attempting the particular Work with knowledge of the presence of the headlight, or under circumstances charging him with such knowledge, and in making no effort to avoid its effect. But in its direction “that, if the jury Should believe from the evidence that the light from the headlight shone on the plaintiff while he was in the performance of his Work, in Such manner as to render its performance dangerous,” and should further find in accordance with the additional part of the instruction “a recovery would not be barred,” but the damages should only be diminished in proportion to the negligence attributable to him, the plain sense of the instruction is that On the issue of the headlight the plaintiff Was entitled to recover in some amount, if the effect of its presence was to render dangerous the performance of his work. By its terms the recovery by the plaintiff, which it says Would not be barred by a consistent finding under the entire instruction, is as definitely based upon that issue as a diminution of the damages is related to the issue of contributory negligence,

In the general charge the issue as to the

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