Kay & Akin, of Wichita Falls, for appellants. Arnold & Arnold, of Graham, and Kimbrough, Underwood & Jackson, of Amarillo, for appellee. BOYCE, J. This suit involves the title to 160 acres of land in Young county. The appellants own the superior record title, and the appellee claims by limitation. The land was patented to Jacob Werts, and the appellants are his heirs. On September 1, 1880, by a written lease, duly recorded, Jacob Werts, in consideration of $250 paid, leased the land in controversy for the period of 50 years to J. H. Carter, through whom appellee claims. In 1881 the said J. H. Carter bought the land at sale for taxes, and the sheriff and tax collector executed and delivered tax deed therefor, which was duly recorded. In 1883 Carter executed quitclaim deed to the land to J. S. Timmons, who in 1911 conveyed it by general warranty deed to other parties. The land thereafter passed through several successive grantees by warranty deeds, being ultimately conveyed by such deed to appellee, D. G. Vick, in the year of 1915. The conveyances referred to were duly recorded at the time of their execution. The case was tried upon an agreed state ment, and it was agreed, in addition to the facts already stated: "That D. G. Vick has title to said land by limitation, unless such limitation title is defeated by the lease above mentioned from Werts to Carter. * * * That neither said Vick nor those under whom he claims have ever given to Jacob Werts, or his said heirs, any actual notice that the relation of landlord and tenant was repudiated; the recording of adverse deeds and open possession thereunder being the only repudiation of such relationshp." Appellee, Vick, brought this suit against the unknown heirs of Jacob Werts in the form of trespass to try title, and also set up title by limitation under the 5 and 10 year statute. The appellees appeared, pleaded not guilty, and by a cross-action, in form of trespass to try title, prayed for judgment for the land. [1-3] It was not shown or claimed that the tax deed taken by Carter conveyed the title; no evidence being offered to show that the prerequisites to a valid sale had been complied with. Such deed was therefore a nullity, and conveyed no more right than would have been acquired by a deed from a stranger to the title. Appellee, however, relies upon the taking and record of the deed as a repudiation, and notice thereof to the landlord, Werts, of the tenancy, and thus starting limitation to run. It is the law familiar to all that the possession of the tenant is the possession of the landlord, and possession acquired under tenancy cannot be said to be adverse in support of limitations until such time as it is shown that the landlord had notice of the repudiation of the tenancy and adverse claim of his tenant. It was held in the case of Udell v. Peak, 70 Tex. 547, 7 S. taken by a tenant in hostility to the title of his landlord will not be imputed from the mere record thereof, if he did not in fact know of it, and that the court should have instructed the jury in that case that the recording of the deed would not be evidence of an adverse holding or the repudiation of the tenancy. The reasoning on which this conclusion was reached is sound, and the conclusion itself is conducive to the enforcement of the right and prevention of wrong. The registration of a deed does not have the broad effect of notice contended for by appellee, and as might be inferred from the literal construction of the provisions of article 6842, R. S. It has been frequently announced that the purpose of the registration law was to protect those subsequently dealing with the land and the record of a deed is notice only to those claiming under the grantor. White v. McGregor, 92 Tex. 556, 50 S. W. 564, 71 Am. St. Rep. 875. The owner of the land is not required to constantly examine the records, to ascertain whether some one has placed of record some instrument affecting his title. If possession of the land is disturbed, he is bound by notice of such fact, and by virtue of the limitation statutes may then be said to be affected with notice of the claim evidenced by the deed under which the possession was taken. But Werts' possession of the land was not disturbed, and on principle he is not to be charged with notice of the fact of the registration of a hostile deed to his tenant. The case of Udell V. Peak, supra, was referred to with approval in the case of Bryson v. Boyce, 41 Tex. Civ. App. 415, 92 S. W. 820, where the adverse possession of the tenant was attempted to be supported by the purchase of the land under a tax deed during the tenancy. See, also, Hintze v. Krabbenschmidt, 44 S. W. 39; Reichstetter v. Reese, 39 S. W. 596. The evidence, therefore, fails to show that limitation began to run in favor of the original lessee, Carter, by reason of his record of the tax deed. The distinction between this case and that of Crosby v. Bonnowsky, 29 Tex. Civ. App. 455, 69 S. W. 212, is that in said case the tax sale itself conveyed a good title, and was not merely relied upon to support a title by limitations, as in this case. [4] It is also, we think, rightly settled that all entering possession under the tenant or lessee occupy the same position as the original tenant and lessee, and are equally estopped to deny that the possession thus acquired is that of the landlord. Cobb v. Robertson, 99 Tex. 138, 86 S. W. 748, 87 S. W. 1148, 122 Am. St. Rep. 609; Richardson v. Houston Oil Co., 176 S. W. 628; Buford v. Wasson, 49 Tex. Civ. App. 454, 109 S. W. 275. It makes no difference that such possession is taken under a warranty deed from the tenant conveying the property absolutely. Reichstetter v. Reese, supra; Tiffany on on Landlord & Tenant, § 564; Jones on Landlord & Tenant, § 699; Phillips v. Rothwell, 4 Bibb. (7 Ky.) 33; Emerick v. Tavener, 9 Grat. (Va.) 220, 58 Am. Dec. 217; Rose v. Davis, 11 Cal. 133; McLennan v. Grant, 8 Wash. 603, 36 Pac. 682. Appellee, Vick, therefore, is in no better position than Carter, the original lessee, would have been, and since it was agreed that no notice of the repudiation of the tenancy, other than the recording of the various deeds of conveyance above referred to, was given to the landlord, we conclude that no adverse possession sufficient to support limitations is shown. [5] The possession of the appellee and that of his vendors is to be regarded as possession of the landlord until the repudiation by the institution of this suit. This repudiation forfeits the right of appellee to claim further under the lease. Reese v. Swartz, 187 S. W. 245; Wildey Lodge v. City of Paris, 31 Tex. Civ. App. 632, 73 S. W. 69. Under the agreed facts in this case, we think that appellants are entitled to judgment, and we therefore reverse the judgment of the court below, and here render judg ment in their favor. HALL, J., not sitting. SIDES v. KNOX et al. (No. 1932.) 1. BILLS AND NOTES 134-CONTRACT FOR At the same time of the execution of the notes the maker of the notes and each payee therein executed a written agreement, setting forth the circumstances inducing and the consideration for the execution thereof, and containing the following stipulation: "We, the said Henry Ward and H. A. Knox, recognizing and agreeing that the said L. H. against J. V. Wiggins, which amounts to more Sides has a just and valid cause of action than the notes above described, therefore by these presents agree to accept in settlement in full of the above-described notes an amount sufficient to discharge them out of the damages sustained by L. H. Sides for the reasons assigned above against J. V. Wiggins; the said L. H. Sides agreeing to pay said notes out of the event the court should hold that the said said money. But it is further understood, in L. H. Sides is not entitled to recover any amount of damage or money or offset on the note owed J. V. Wiggins by him, then the said Henry Ward and H. A. Knox agree to deliver said notes to L. H. Sides and cancel all demand by reason thereof against him. The said L. H. Sides agrees not to pay over to the said J. V. Wiggins any part of the purchase money due on said land until the court should adjudge that he shall pay the same. It is further agreed that, if either party shall act in bad faith or breach this contract, it shall be void." It appears that J. V. Wiggins conveyed to L. H. Sides a tract of land, retaining a vendor's lien to secure payment of a part of the purchase money, amounting to $5,000. The purchase-money note of $5,000 was due February 15, 1912, and bears 10 per cent. interest per annum from maturity, and provides that all past-due interest shall bear 10 per cent. interest, and, if collected by suit, 10 per cent. of the principal and interest due shall be paid as attorney's fees. H. A. Knox and Henry Ward were tenants on the place at the time of the sale to L. H. Sides, and they claimed to have rented it for the year 1912. L. H. Sides claimed that J. V. Wiggins agreed to give him possession of the place on January 1, 1912. L. H. Sides sued for possession of the land, but judgment was Where a payee sued on notes and contract rendered for the tenants, Knox and Ward. with the maker that the notes should be paid J. V. Wiggins afterwards brought suit against only out of a special fund to be recovered by the maker as a set-off against his vendor's L. H. Sides on the vendor's lien note; and mortgage, evidence that the claim was disallow- L. H. Sides, as testified by his attorney, "filed ed, and that through error the maker did not the defenses as set out in said contract to pay the full amount of the mortgage and costs said suit by Wiggins, and we urged them beupon foreclosure, is insufficient to entitle plain-fore the court; but the court held that they An agreement that certain notes were to be paid only from damages recovered by the maker from his vendor of premises, and if the court should hold the maker not entitled to damages the notes should be canceled and surrendered to the maker without payment, held valid. 2. BILLS AND NOTES 516-ACTIONS-EVIDENCE-SUFFICIENCY. tiffs to recover. were not proper defenses to said suit on the $5.000 note, and we abandoned our defense when the court so held. Mr. Sides then made settlement of the note." L. H. Sides paid. to J. V. Wiggins in settlement of the note $6,549.96, which was in fact $603.34 less than the principal, interest, and attorney's fees due on the note at the date of settlement. The witness Cox, acting for Sides, testified: "I made the settlement with Mr. Wiggins in to the note. I do not now remember the exact amount of the note, but know that we figured it and intended to pay the full amount of the note, including compound interest. We paid [giving the amounts]. If the amount thus figured and paid was not the entire amount that On April 30, 1912, the appellant executed a note for $750 to H. A. Knox and a note for $500 to Henry Ward. Each note was due on or before January 1, 1915, and was "with-person, after the court overruled the defenses out interest." Each note recited: "This note is given for value received, but it is not negotiable without the written consent of L. H. Sides, the maker, indorsed on the back of said note." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-5 the notes came to, with compound interest, then | But this underpayment may not, in the eviit was a mistake, as we intended to pay that much." Henry Ward and H. A. Knox brought suit on the notes and contract, alleging that L. H. Sides, in the suit brought by J. V. Wiggins against him on the vendor's lien note, recovered an offset against the vendor's lien note of more than $1,250. The defendant answered by denial, and specially that he made claim for damages and offset in the suit of J. V. Wiggins against him, but that the court denied the claim. The court peremptorily instructed a verdict for the plaintiffs for $603.34. Stanford, Sanders & Stanford, of Canton, for appellant. C. L. Hubbard, of Grand Saline, Walter Jones, of Mineola, and Jones & Jones, of Kerrville, for appellees. dence, be said to be, within the meaning of the contract, "a recovery by L. H. Sides" of that sum as "damage or money or offset on the note owed J. V. Wiggins by him." For, as clearly shown by the witness Cox, the underpayment of the $603.34 by L. H. Sides to J. V. Wiggins was inadvertent, and a mistake due solely to erroneous calculation by the parties of the amount then due on the note being settled. The witness Cox testified that: "We figured and intended to pay the full amount of the note. *If the entire amount thus figured and paid was not the entire amount that the note came to, with compound interest, then it was a mistake, as we intended to pay that much." Thus it is evident that, if the mistake in calculation had not occurred, the underpayment of the amount due would not have been made; and L. H. Sides would not have the right, in view of the mutual mistake, to retain the amount of underpayment, for J. V. Wiggins has, under such proof, ground for relief to recover such unpaid amount. Hummel v. Flores, 39 S. W. 309; Emerson v. Navarro, 31 Tex. 335, 98 Am. Dec. 534; Alston v. Richardson, 51 Tex. 1. And such evidence so far fails to show an "agreed reduction" of $603.34 from the vendor's lien note, so that it may not properly be said as a fact that L. H. Sides has received "damage or money or offset," within the meaning of the contract, on the vendor's lien note. As the plaintiffs in the petition predicate a recovery upon the terms of the contract, and upon no other ground, a recovery, in the evidence, may not be allowed them. The judgment is reversed, and judgment is here entered for the appellant, with costs of the trial court and of this appeal. LEVY, J. (after stating the facts as above). [1, 2] It is believed, as insisted by appellant, that the evidence does not warrant the judgment in favor of the appellees. Contemporaneous with the execution of the nonnegotiable notes in evidence was a written agreement of the parties having the effect to make the payment of the note out of a special fund on a specified contingency, and not otherwise. The agreement of the parties to make the payment of the note subservient to the limitations and restrictions of such agreement is valid. Rogers v. Broadnax, 24 Tex. 538; National Bank v. Smith, 22 S. W. 1056. The payee was to accept and the maker to make payment of the notes "out of the damages" that might be recovered by L. H. Sides in his certain claim for damages founded on an alleged breach of agreement on the part of J. V. Wiggins to place L. H. Sides in possession of the land on January 1, 1912. But, as further stipulated, "in the event the court should hold that the said L. H. Sides is not entitled to recover any damage or money or offset on the note owed J. V. Wiggins by (Court of Civil Appeals of Texas. Amarillo. him," then the notes were not to be paid at all, but were to be canceled and surrendered 1. APPEAL AND ERROR 193(5) to the maker; and it is believed that the evidence does not support the plaintiffs' allegation in the petition, in order to support the action, that L. H. Sides recovered and was allowed an offset against the vendor's lien in the suit on said notes by J. V. Wiggins. According to the evidence of the at-2. COURTS 170-PLEADING "AMOUNT IN torney representing Sides: "L. H. Sides filed the defenses as set out in the contract to said suit by J. V. Wiggins, and they were urged before the court, but the court held they were not proper defenses to said suit on the $5,000 note, and such defenses were abandoned when the court so held. Mr. Sides then made settlement of the note." PEOPLE'S ICE CO. v. PHARISS et al. (No. 1342.) SURE. April 24, 1918.) FORECLOIn suit to foreclose chattel mortgage, failure to secure the debt is fundamental error apparent to allege the value of the property mortgaged of record, requiring reversal, whether or not there was an exception, plea, or other objection to the petition on that ground in the court below. CONTROVERSY." Where petition seeking foreclosure of chattel mortgage alleged that a third person set up some claim to the property, the value of the property, and not the debt due from mortgagor to mortgagee, was the "amount in controversy"; and, if such value was not alleged, the petition did not affirmatively show jurisdiction as to the third person. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Amount in Controversy.] And in the "settlement of the note" referred to it appears that the appellant paid $603.34 less than the principal, interest, and attorney's fees due under the terms of the Appeal from Wichita County Court; Harvendor's lien note at the date of settlement.vey Harris, Judge. Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. S. O. Jones, of Wichita Falls, for appellees. HUFF, C. J. The appellees acquiesce in the statement made by appellant under its proposition, which we adopt: * Action by W. N. C. Phariss and others in he cites the various decisions up to that against W. F. McKown and the People's Ice time. Lawson v. Lynch, 9 Tex. Civ. App. Company. From judgment for plaintiffs, the 582, 29 S. W. 1128. The holdings uow are to Ice Company appeals. Reversed and re- the effect that a failure to allege the value manded. of the property mortgaged to secure the debt is fundamental error apparent of record, requiring reversal, whether or not there was an exception, plea, or other objection to the petition on that ground in the court below. Stricklin v. Arrington, 141 S. W. 189; Bates v. Hill, 144 S. W. 289; Marshall v. Stowers Furniture Co., 167 S. W. 230; Wilson v. Ford, "The plaintiff's petition in this case, which 159 S. W. 73; Randals v. Bank, 162 S. W.. was filed on August 31, 1916, sought to recover 1190; Walker v. Raney, 154 S. W. 317; Brown a judgment against W. F. McKown, upon a v. March, 149 S. W. 353; Style v. Lantrip, promissory note executed by him dated the 21st day of February, 1916, by which the said Mc- 171 S. W. 786; Richardson v. Hethcock, 173 Kown promised to pay to the plaintiff the sum S. W. 1006; Lusk v. Hardin, 176 S. W. 787; of $200, said note being due six months after Reeves v. Faris, 186 S. W. 772; Bush v. date and bearing interest at the rate of 10 per Campbell, 201 S. W. 1055. The case of Mancent. per annum and providing for 10 per cent. additional as attorney's fees if sued on or placed gaham v. Buffalo-Pitts Co., 131 S. W. 1196, in the hands of an attorney for collection, as we read it, does not hold to the contrary, The plaintiff alleged that the note had but expressly holds that good pleading rebeen placed in the hands of an attorney for quires that the value of the mortgaged propcollection, and sought a judgment for the amount of the note, for interest, and attorney's erty should be alleged. The court in that fees. The plaintiff also alleged that in order case declined to pass upon the question to secure said note W. F. McKown had execut- whether it could be considered upon an aped a chattel mortgage upon the following de- peal without a demurrer or plea in the scribed personal property situated in Wichita Falls, in Wichita county, Tex., to wit: One lower court, for the reason that the case was electric pump, two roller top desks, one fire- reversed upon other grounds. The case of proof safe, and all shelving, paneling, and wood- Walker v. Ramsey, supra, has apparently en partition in said building. The plaintiff al- been cited as holding to the contrary. It leged that the People's Ice Company was setting up a claim to said property, and sought a fore- will be found upon reading that case that it closure of said chattel mortgage, both as against cites with approval Stricklin v. Arrington, McKown and the People's Ice Company. On supra, and, as pointed out in Reeves v. Faris, the 5th day of December, 1916, the court rendered a judgment by default as shown by the supra, is distinguished from Austin v. Bahn, record against W. F. McKown for the amount 87 Tex. 582, 29 S. W. 646, 30 S. W. 430. In of the note, including interest and attorney's the case of Style v. Lantrip, 171 S. W. 786, fees, and also rendered a judgment foreclosing in considering the necessity of alleging the the chattel mortgage lien against W. F. Mc- value of the property for which a receiver Kown and the People's Ice Company. plaintiff's petition above referred to nowhere was applied, Mr. Justice Hodges cited the alleged the value of the personal property upon Stricklin Case and others, and said: which a foreclosure of the chattel mortgage was sought, and nowhere alleged, as will appear from said petition, the value of any item of said personal property. In fact, the petition makes mention whatever of the value of said property."volved in the litigation, but it should also show The The appellant's only assignment is that the court erred in rendering judgment because it did not appear from the petition of plaintiff affirmatively that the court had jurisdiction of the cause, in that it sought to foreclose a chattel mortgage lien upon certain property without alleging its value. The suit was instituted in the county court. [1] Since it is established by the Supreme Court of this state from Marshal v. Taylor, 7 Tex. 235, down, that the matter in controversy is not only the debt, but the value of the property covered by the mortgage given to secure its payment, and that the foreclosure proceedings comprehends as well the subject-matter of the mortgage as the debt, all the Courts of Civil Appeals passing upon the subject hold that it is necessary to allege the value of the property upon which foreclosure is sought. However, the holding of the Supreme Court has been questioned by Judge Williams, while on the Court of Civil Appeals, in a well-considered opinion, where should state grounds calling for the appointment "It is not only essential that the petition of the receiver to take charge of the property in upon its face an independent cause of action within the jurisdiction of the court. It should show that the subject-matter or amount in controversy is within the court's jurisdiction." Among other citations that case refers to Smith v. Horton, 92 Tex. 21, 46 S. W. 627. In the latter case the Supreme Court, speaking through Judge Gaines, said, with reference to jurisdiction and the amount in controversy as to injunctions where the value was not specifically alleged: "The value of the property not appearing by worth between $200 and $1,000. If so, the counaverment in the petition, it may be that it was ty court would have had jurisdiction of the case, and power to grant the writ of injunction. It follows that it does not appear affirmatively from the petition that the district court had exclusive jurisdiction of the controversy. We, therefore, incline to the opinion that we have no jurisdiction to grant the writ of error." The only case holding to the contrary which we have been able to find is Cantrell v. Cawyer, 162 S. W. 920. That case is in conflict with all the other cases above cited, We must therefore hold the rule to be set tled otherwise. We may say, however, that the reasoning in the Cantrell Case by Judge Jenkins appeals to us, but no good purpose can be subserved by following it in this case. Certainly in the interest of good pleading the value of the property should be required to be alleged. [2] The petition also avers that appellant was setting up some claim to the property upon which it was sought to foreclose the lien. As between appellant and appellee Phariss the subject-matter of the suit was the mortgaged property, and the petition for writ of error brings up for review the judgment on that controversy. The value of the property was therefore the amount in controversy between them. The debt due Phariss by McKown was not the amount in controversy between appellant and Phariss, and for that reason, if for no other, the petition did not show affirmatively jurisdiction as to the amount in controversy between appellant and Phariss. Fisher v. Bogarth, 2 Willson, Civ. Cas. Ct. §§ 120, 121. The judgment will be reversed, and the cause remanded. Where a mining company and its grantors vendors, and have done the annual assessment are holding a claim under valid location by their work, an attempted relocation of the claim by others is void, actual possession under such void location availing them nothing. 8. MINES AND MINERALS 51(3, 5) — CONVERSION OF ORE-RECOVERY OF EXPENSESABSENCE OF PLEADING AND PROOF. In an action for the conversion of ore, in the absence of pleading and evidence as to the cost of shipping the ore or the charge for smelting, defendant lumber company cannot get judgment for such items, and the converters of the ore who shipped to the lumber company, being trespassers, are not entitled to recover expenses. 9. EVIDENCE 186(6)-EVIDENCE-DEED EXECUTED AFTER SUIT BROUGHT. In an action for the conversion of ore, a deed executed after suit was brought, and showing on its face that it was executed in lieu of a prior deed which had been lost, was admissible in support of the evidence that plaintiff's purto any attempted relocation by defendants. KELVIN LUMBER & SUPPLY CO. et al. v. chase of the mining claim had been made prior COPPER STATE MINING CO. (No. 810.) (Court of Civil Appeals of Texas. El Paso. In such action, the allegation that plaintiff mining company was the owner of a named claim in Arizona, and that defendants entered upon "the" claim and extracted ores therefrom, was meager as to the ownership of plaintiff, and, if it had been especially excepted to, the exception should have been sustained and plaintiff required to amend. 3. APPEAL AND ERROR 80(1) JUDGMENT 622(1)-RES JUDICATA-SET-OFF. If a set-off is presented by defendant in his pleadings, and attempted to be supported, whether allowed or disallowed it will become res judicata, being settled by the judgment as conclusively when it does not appear to have been allowed as though there were an express finding against it; and hence judgment for plaintiff for less than claimed, though not finding as to set-off, is a final appealable judgment. On Rehearing. 10. COURTS 7 - LOCAL OR TRANSITORY CONVERSION OF ORE. - Action by a mining company for the value of ores from its alleged claim converted by individuals and a lumber company, if defendants were in adverse peaceable possession of the claim or property at the time of taking the ore, will not lie in a foreign state or jurisdiction, the title to the realty being directly in issue between the parties, and it being the policy of the law that such direct issue be tried in the local court. Appeal from District Court, El Paso County; W. D. Howe, Judge. Action by the Copper State Mining Company against the Kelvin Lumber & Supply Company and others. From a judgment for plaintiff, defendants appeal. Action ordered dismissed. Davis, Goggin & Harrington and R. M. Reed, all of El Paso, and C. H. Studley, of Hayden, Ariz., for appellants. F. E. Hunter and McKenzie & Loomis, all of El Paso, and Jno. B. Wright, of Tucson, Ariz., for appellee. HARPER, C. J. The Copper State Mining Company brought this suit in El Paso county, Tex., against the Kelvin Lumber Company, and H. E. Kidder and F. Burns, for certain ore, or the sum of $2,500, the alleged value of said ores taken from a mining claim in the state of Arizona by said Kidder and Burns, and sued out writ of garnishment against the Consolidated Kansas City Smelt5. ESTOPPEL 70(1) ESTOPPEL IN PAIS-ing & Refining Company of El Paso, Tex., OWNERSHIP OF PROPERTY. 4. MINES AND MINERALS 48-ORE AS PERSONALTY-EXTRACTION. Ore, after its extraction from a mining claim, becomes personal property. Where the owner of property, or one hav and the latter answered that it owed the ap ing a right to its possession, permits another, pellant $1,710. |