was no more authority in law for a disregard of this provision of their tariff than any other. "The Commission cannot regard the excuses offered as entire justification for the course pursued. When it becomes apparent to carriers that they cannot, ought not, or will not enforce the provisions contained in their established tariffs, whether in regard to matters of the kind here involved, demurrage, reconsignment, or other like practices, as well as to rates, they should change their tariffs in the manner prescribed by law, so that their practices may be in conformity thereto. The Commission has not the authority under the law to order them to disregard their tariffs, nor does it feel justified in acquiescing in the adjustment of matters brought into the condition here presented, by reason of disregard of tariff provisions, except from the necessity of a situation like this, when to do otherwise would leave uncorrected grossly unjust and widespread discriminations. "For reasons indicated, we cannot feel otherwise than that, for the purpose of preventing such results, the carriers should deal with all claims of this character, within the dates herein specified, upon their merits, without discrimination with respect to this rule regarding the period of time within which they should have been presented. It is expected that this will be done in good faith, and that hereafter, in order to avoid discriminations of the kind here presented, the tariff provisions of carriers respecting this question will be rigidly adhered to. "The Commission does not here express any opinion with respect to the reasonableness of the period of limitation contained in this provision, that being a matter for determination in connection with the proceeding of general inquiry above referred to.' [4-6] It will be readily seen from the statement of the Interstate Commerce Commis sion itself, as contained in the above, that that Commission was clearly of the opinion that it had no authority to authorize appellant to waive the stipulation in question, same being a part of its tariff schedule; and if it be true that the Interstate Commerce Commission had no authority to authorize appellant to waive this stipulation, and if appellant, without such authorization, was without authority to waive the same, then it follows that, from a legal standpoint, there could be no waiver of this stipulation in this bill of lading, either express or by implication; and we are inclined to think that the Interstate Commerce Commission did not, as admitted by it, have the authority to em power appellant, as an interstate commerce carrier, to do that which, under the acts of Congress, appellant was forbidden to do. If, however, we should not be correct in this, still we think that the implied authority from the Interstate Commerce Commission to appellant to waive this stipulation, as might be gathered from the report of the Commission above set out, could not have controlling effect in this case, for the reason that this order by the Interstate Commerce Commission was not in existence at the time this cause of action arose nor at the time this suit was commenced; and, therefore, waiving the question of authority of that Commission to authorize appellant to disregard this stipulation in the bill of lading, we must hold that this order of the Interstate Commerce Commission could not have the effect T contended for by appellee in this case. Banaka v. Ry. Co., 193 Mo. App. 345, 186 S. W. 7. This opinion has become already lengthy, and any further discussion would make it unreasonably lengthy. It is manifest from the record that the appellee had a just and meritorious cause of action against appellant, but that it lost the same by reason of its failure to comply with the requirements in the bill of lading under which the shipment in question moved, with respect to giving to appellant the notice of damage, etc., within four months, as stipulated in that contract. It As to the plea of estoppel set up in the supplemental petition, we will only say that the same finds no support in the evidence, even if that character of plea would be available here from a legal standpoint. is with reluctance that this court reverses the judgment in this case, since, as stated, appellee has sustained the full amount of damages recovered by him, but, from a legal standpoint, this court has no other alternative, and the judgment of the trial court is therefore reversed; and, since it is clear from the record that appellee could not recover upon another trial, judgment will be here rendered in favor of appellant, and it is so ordered. Reversed and rendered. DELANO v. DELANO. (No. 325.) -- Suit by J. R. Delano against L. S. Delano. From judgment for defendant, plaintiff appeals. Affirmed. See, also, 189 S. W. 972. E. A. Wallace, of Cameron, for appellant. 1. EVIDENCE 419(2) DEEDS SHOWING J. W. Garner, of Rockdale, and Henderson, REAL CONSIDERATION CONTRACTUAL RE- Kidd & Henderson, of Cameron, for appellee. CITAL. Parties may show the real consideration for HIGHTOWER, C. J. The following statea deed, regardless of the consideration expressed on the face of the instrument, except ment of the nature and result of this suit that, where the recitation in the deed with ref- is found in appellant's brief, and is not queserence to the consideration is of a contractual tioned by appellee, except as to the effect nature, it cannot be disputed, altered, contra- of the allegations contained in appellant's dicted, or modified by oral evidence. 2. EVIDENCE 419(2)-DEEDS-PAROL EVI- supplemental petition: DENCE-RECITAL OF CONSIDERATION. Mrs. E. J. Delano, who was the mother of In a mother's deed conveying fee simple ti- appellant, J. R. Delano, and appellee, L. S. tle to her son, the recital of consideration of Delano, died intestate in Milam county in cash paid, and also that the son's stepdaughter 1913, leaving surviving her, as her only heirs, should receive the same interest in the land as his own children, was not contractual, so that, said parties. Her estate, at the time of her in the son's action for partition against his death, consisted of 140 acres of land in Milam brother, parol evidence was admissible to show county, Tex. No administration was had and that the deed was intended as an advancement none was necessary. to the son of his interest in his mother's estate. 3. DEEDS 120-ESTATES CREATED. A deed whereby a mother conveyed land to her son, acknowledging consideration of cash paid, on the further consideration that the step; child of the son should receive an equal and exact share of the property conveyed as if she were the daughter of the son, passed fee-simple title to the son, and did not create any estate, in trust or otherwise, in his stepdaughter or in any of his own children. 4. APPEAL AND ERROR ERROR-INSTRUCTION. 1064(1)-HARMLESS In suit for partition by a son claiming under deed from his mother, which recited that his stepdaughter should have the same interest in the land as his own children, an instruction that the deed conveyed no interest to the stepdaughter, and that, in considering whether it was an advancement to the son, the jury would not consider the recitation with reference to the stepdaughter, was error harmless to the son, if erroneous as eliminating from the consideration of the jury the recital as evidence of intent, and submitting the remainder of the deed as evidence, thus constituting a charge on the weight of the evidence. 5. TRIAL 350(4)-SPECIAL ISSUE-SUBMISSION OF QUESTION OF LAW "ADVANCE MENT." In suit for partition by a son claiming under his mother's deed, the submission of the special issue, whether the land described in the deed was conveyed to the son as an advancement, was not erroneous as the submission of a question of law, an advancement being defined by the court as a gift of land, money, or other property by a parent to a child with the intention that it shall be all of, or a portion of, the child's share in the parent's estate at the parent's death. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Advancement.] 6. APPEAL AND ERROR 699(4), 704(1)-RE VIEW-REFUSAL OF SPECIAL CHARGES. The refusal of special charges and issues will not be reviewed on appeal, where the record fails to show they were presented to opposing counsel for examination and objection, as required by Acts 33d Leg. c. 59, § 3. Appeal from District Court, Milam County; John Watson, Judge. Appellant brought this suit to partition, as between himself and appellee, said estate of their mother. Appellee answered and resisted such partition, upon the ground that prior to their mother's death she had deeded to appellant the same quantity of land in settlement of his inheritance, and that in recognition of such fact appellant deeded to appellee this particular 140 acres of land in controVersy, and that, after he had fully executed such deed of conveyance, appellant unlawfully and without authority erased his signature therefrom. To this answer appellant replied by supplemental petition, in which he alleged that the land deeded to him by his mother about two years prior to her death was for a valuable consideration, and partly in trust for one Annie Roberson, a stepchild of appellant, and not as an advancement, which he claimed was shown by the recitals in said deed. And, further, it was alleged by appellant in the supplemental petition that the deed which appellee claimed appellant had executed to him for the land in controversy was obtained by fraudulent representations and statements made to him by appellee and one Wells, which induced its execution, in that, as he alleges, appellee and Wells, at the time, stated and represented to appellant that such deed was for only 70 acres of the land in controversy, and that appellant, at the time of its execution, believed that the deed conveyed only 70 acres of such land; that he was afterwards informed by the said Wells that he, said Wells, had changed said deed, after its execution by appellant, so as to make it convey 140 acres, the whole tract here in controversy, instead of only 70 acres ; that thereupon appellant erased his name from said deed, and that, on account of such alleged change in said deed, there was an insufficient execution of same, and that appellant was entitled to receive said deed back from the said Wells and to erase his name therefrom; and he For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes further alleges that after he erased his name from said deed the said Wells, who had taken his acknowledgment thereto, also erased his certificate of acknowledgment. This is the second appeal in this case, and the report of the case on the first appeal will be found in 189 S. W. 972, where the history and facts in full relating to this controversy may be found, and we refer thereto for a more complete understanding of the nature of the controversy and the issues involved. Mrs. E. J. Delano, the mother of these parties, and a widow, on the 25th day of February, 1911, appears to have owned in her own. separate right a tract of land containing 280 acres, a part of the 'Delgado survey in Milam county, and on that date she executed to appellant a deed to 140 acres of such tract, being the east half thereof, which deed, with the exception of the description of the land conveyed thereby, was as follows: "Know all men by these presents, that I. Mrs. E. J. Delano (widow), of the county of Milam, state of Texas, for and in consideration of the sum of $4,320.00 cash to me on hand paid by J. R. Delano (my son), the receipt of which J. R. Delano (my son), the receipt of which is hereby acknowledged, and the further consideration that Annie Roberson, a child of the wife of said J. R. Delano by her former marriage, and who is a half-sister to the children of the grantee herein, shall receive an equal and exact share of the property hereby conveyed, the same as if she were the daughter of my said son, have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto the said J. R. Delano, of the county of Milam, state of Texas, all that certain lot, tract, or parcel of land, to wit: [Here follows description of the land.] To have and to hold the above-described premises, together with all and singular the rights and appurte: nances thereto in any wise belonging, unto said J. R. Delano; and I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto said J. R. Delano, his heirs and assigns, against every person whomsoever claiming or to claim the same or any part thereof." The case was tried with a jury, to whom the case was submitted upon special issues, as follows: "This case is submitted to you on what is known as special issues. Certain questions will be propounded to you and appropriate instructions given, and you will answer said will render judgment. questions, and upon your answers the court "You are instructed that a gift of land, money, or other property by a parent to a child, with the intention that such money, land, or the child's share in the parent's estate at the other property shall be all of or a portion of parent's death, is in law an advancement. "Governed by the foregoing instructions, you will answer the following: "Special Issue No. 1: Was the 140 acres of land described in the deed from Mrs. E. J. Delano to J. R. Delano, dated February 25, 1911, conveyed to J. R. Delano as an advancement? Answer 'Yes' or 'No.' The burden of proof is upon the defendant to show by a preponderance of the evidence the affirmative of the foregoing issue. (To this question the jury answered 'Yes.') sent for and authorize the deed from him to Special Issue No. 2: Did J. R. Delano conL. S. Delano, dated January 19, 1913, to be so changed and altered as to cause it to convey the 140 acres of land therein described? Answer 'Yes' or 'No.' The burden of proof is upon the plaintiff to show by a preponderance of the evidence the negative of the next preceding issue. (To this question the jury answered 'Yes.') "You are instructed that the deed from Mrs. E. J. Delano to J. R. Delano, dated February 25, 1911, conveyed no interest in said land to Annie Roberson; and, in arriving at your answer to question No. 1 hereof, you will not consider the recitations in said deed with reference to the said Annie Roberson. proven, the credibility of the witnesses, and the "You are the exclusive judges of the facts weight to be given their testimony; but you will receive the law from the court as herein given and be governed thereby." This deed was duly signed and acknowl- tion for new trial having been overruled, edged. It was the contention of the appellee, who was defendant below, that this deed from his mother to his brother, the appellant, was made as an advancement to appellant of the interest in said 280-acre tract that he would have inherited from his said mother, and being one-half of such tract, and that it was so understood and intended by both appellant and their said mother, and that it was in fact intended to be a partition of their said mother's estate during her lifetime of said 280-acre tract of land, as between appellant and appellee, and that appellant in fact paid no consideration for the land conveyed by said deed, and was not entitled to partition or have any interest in the remaining half of said 280-acre tract, which was the west half, and which is now sought to be partitioned by appellant, and of which he claims to be an owner to the extent of a one and the action of the court in that regard properly excepted to, the case was brought here by appeal, and is properly here for revision. The first assignment of error found in appellant's brief complains of the action of the trial court in refusing to peremptorily instruct a verdict in favor of appellant. The proposition under this assignment is as follows: "The recital of consideration in the deed from appellant's mother expressly shows that the consideration was that his stepchild should receive an equal and exact share of the property conveyed. the same as if she were a child of the appellant, and that such recital was contractual in its nature, establishing by its terms the nature of appellant's title under said deed; and, being contractual in nature, conclusively established the nature and character of the deed as one of purchase as contradistinguished from a deed of gift by way of advancement; and such recital was therefore not subject to impeachment by parol, in the absence of plead And the second proposition was: consideration may be expressed to be on the "The recited consideration in the deed to ap- face of the deed, which exception is that, pellant from his mother clearly established a where the recitation in the deed with refertrust estate in the land in favor of Annie Rob-ence to the consideration is of a contractual erson to a portion of the land." [1, 2] The second, third, and fourth assignments of error complain of the action of the trial court in admitting evidence of certain witnesses in support of appellee's contention that the deed to appellant from his mother, above mentioned, was intended as an advancement to appellant of his interest in her estate, as claimed by appeilee, all of which evidence was objected to by appellant, and such assignments, therefore, practically raise the same legal point as that raised by the first assignment, and what we shall say in this connection will dispose of all of said assignments. That it is a well-established rule in this state that the true consideration for a deed may always be shown by parol is not questioned by appellant, but it is contended by him that the recitation as to the consideration contained in the deed from his mother to himself is of a contractual nature, and, that being so, it was not competent to permit evidence that tended to impeach, alter, qualify, or contradict such contractual recitation in said deed, but that, on the contrary, in the absence of an allegation of fraud or mistake, the deed spoke for itself, and its legal effect was to constitute appellant a purchaser of the land thereby conveyed for a valuable consideration, charged only with a trust for a portion thereof in favor of Annie Roberson; and that the court should, therefore, have instructed a verdict for appellant, and was in error in permitting appellee to offer any parol evidence whatever showing, or tending to show, that said deed was intended to convey the land therein mentioned to appellant as an advancement of his interest in his mother's estate, as claimed by appellee. This precise question was decided adversely to appellant's contention on the former appeal in this case. Delano v. Delano, 189 S. W. 972. Appellant insists, however, that the Court of Civil Appeals, deciding this question on the former appeal, was clearly in error, and we are earnestly urged to disagree with that holding, and sustain appellant's contention, notwithstanding the same. We have very carefully considered the question raised by these assignments, and have reached the conclusion that the Court of Civil Appeals for the Third District was correct in holding that the recitation as to consideration contained in the deed in question was not one of a contractual nature, and that it was permissible to prove by parol the real intention and purpose of the parties to said deed. Of course, this court recognizes and admits the exception to the general rule, which permits parties to show the real consideration for a deed, regardless of what the nature, it cannot be disputed, altered, contradicted, or modified by oral evidence, but what we hold is that the recitation in this deed as to consideration is not of a contractual nature. As said by the court on the former appeal: "It will be observed that the recital does not bind the grantee to do or not to do anything. It merely recites that Annie Roberson shall receive such an interest in the land as the children of J. R. Delano should receive. And it further appears from such conveyance that his own children did not receive anything, but that he himself took the fee-simple title to the land in question, without remainder to any one. Hence Annie Roberson could take nothing under this stipulation, and such recital had no binding legal effect. The court was therefore in error in finding, as a conclusion of law, that such recital was contractual." Appellant cites, as the main authorities in support of his contention on these points, Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825; Ry. Co. v. Garrett, 52 Tex. 133; and Ry. Co. v. Pfeuffer, 56 Tex. 66. The deed under consideration in the Kahn Case was one from a husband to his wife. It was recited in the deed that the consideration paid therefor was out of the separate means of the wife, and it was further recited in the deed that the conveyance was made to the wife for her sole and separate use and beneAfterwards Kahn and his wife were fit. divorced, and subsequent to the divorce Mrs. Kahn brought suit against her former husband to recover from him the land described in this deed to her, claiming the same as her separate property, and that Kahn had no interest of any character in the land. Kahn answered, and, among other things, alleged that while it was true that the deed from him to the plaintiff recited that it was made for her sole and separate use and benefit, and also that the land mentioned therein was paid for out of her separate money, yet such recitations were made by the draftsman, without the knowledge or consent of either himself or Mrs. Kahn, and that such recitations were not true in fact, and that he did not, at the time of the execution of such deed, intend to convey the property to his wife for her own sole and separate use and benefit, or to make it her separate property, and that the property was in fact community property between himself and the plaintiff, and, over the objection of the plaintiff, Mr. Kahn was permitted to testify in support of his allegations on that point. The trial resulted in a judgment to the effect that the property was community property, and the plaintiff, Mrs. Kahn, was only permitted to recover a one-half interest in the same. That judgment was affirmed by the Court of Civil Appeals, but writ of error was granted by the Supreme Court, and the judgments of the lower court and Court of Civil Appeals were both reversed. The opinion of the Supreme Court in the case was written by Associate Justice Williams, and is a very interesting and clear discussion of the rules of construction to be applied where a deed from a husband to a wife during the marital relation is under consideration; but none of the rules there discussed have application here, and we pretermit any further reference to them. It was unequivocally held by the Supreme Court in that case that: "Where a deed from a husband to a wife clearly expressed an intention to make the property conveyed her separate estate, by reciting payment of consideration from her separate funds, parol evidence is not admissible, without proof of fraud or mistake in the insertion of such recitals, to show that the grantor did not intend to convey to her as her separate property." It was further held in the case: "The statement in a deed from husband to wife of a consideration received from the wife's separate property is a contractual recital showing the character of the right created, and cannot be varied by parol evidence of a different consideration which would make the deed inoperative." Among other things the court said: "There can therefore be no doubt that the deed before us upon its face unequivocally expresses the purpose of Kahn to convey to his wife in her separate right, and he cannot be permitted, consistently with correct principles, to show that he did not so intend. The evidence admitted does not come within the rule which permits the true consideration of an instrument to be shown to have been different from that recited. This principle, properly applied, admits the evidence where the consideration has been stated as a fact, but not where the recital is contractual in its nature." Further: "The statement in the deed from Kahn to his wife is more than the mere statement of a fact. Under the decisions referred to, its legal form is to show the character of the right to be created by his deed, and is as much a contractual recital as any in the instrument, and belongs to that class of particular and contractual recitals which, in deeds, estop the parties from denying them. Another limitation upon the rule is that a grantee [grantor?] in a deed will not be permitted to defeat it as a conveyance by showing that there was no consideration, and the effort here is to defeat the deed as a conveyance of the property to Mrs. Kahn in her separate right, which would be to make it wholly inoperative, since the legal title was already in the community estate. Evidence that no consideration passed would doubtless be permissible where such fact would be of any importance upon the issues of a case, but it could not have the effect of defeating the operation of the deed." [3] We think, clearly, that this case cannot be invoked in support of appellant's contention here, because, in our opinion, the purpose of offering the parol testimony in the Kahn Case was entirely different from the purpose in offering such testimony in this case, in that in the Kahn Case the purpose of offering the parol testimony was to de destroy all rights recited thereby to be in the grantee, while in the instant case the purpose of the parol testimony was not to destroy or in any manner affect the deed from appellant's mother to him as a conveyance of the land thereby conveyed, or to limit or affect his interest therein to any extent whatever; on the contrary, its purpose and effect was to confirm the deed and the estate thereby conveyed in appellant. Such testimony was only offered to show that appellant's mother, in making the deed to him, intended that he should have the land thereby conveyed as his interest in her estate, which, under the law of descent and distribution, he would have received after her death without such deed, and that it was further her intention to partition her estate during life between her only children. Appellant is mistaken in his contention that the recitations in this deed, in so far as they relate to his stepchild, Annie Roberson, create a trust of any character in her behalf touching the land thereby conveyed, but, on the contrary, this deed passed the title to the land thereby conveyed to appellant in fee simple, and neither in Annie Roberson nor in any of his own children was any estate created by said deed. In the Garrett Case, Garrett brought suit against the railroad company, alleging that the company had forcibly and without his consent entered upon and appropriated a portion of his land, and constructed its roadbed thereover for a named distance, and had appropriated approximately 12 acres thereof, of the value of $20 per acre, and claiming damages for timber cut and other trespasses. The railroad company answered, denying the allegations in Garrett's petition attributing any wrong to it, admitting that its road had been constructed over his land, but alleging that the right of way over same had been acquired by it through deed duly executed by Garrett, and that such deed was executed without any reservation and for the consideration only as expressed in the deed. Garrett filed a supplemental petition, in which he alleged, among other things, that if he executed the deed to the railroad company as claimed by it, the same was procured by false and fraudulent representations on the part of the company and its agents, in that the railroad company verbally agreed and promised Garrett that, if he would make the deed to it, the company would place a depot on the land near his residence and establish a shipping point there; that solely on the faith of this promise and agreement, and for this consideration only, he executed the deed referred to; that the company failed to so locate the depot, but placed it at another place beyond his land; and there were other allegations setting up a breach of verbal promises on the part of the railroad company. For these reasons |