were submitted to the court without a jury. The plaintiff read the tax bill in evidence and rested. The bill is as follows: ST. LOUIS. Jan. 8, 1889. (Contractor,) SPECIAL TAX BILL. Office of President of Public Improvements. Dr. For Constructing Sewers in Vandeventer Avenue Sewer District No. 1 under Authority of Ordinance No. 14625, 14630, 13076, 13482 and 13596 and under Contract No. 1454. ELIZABETH A. FARISH, 3833 Delmar Ave. (Wife of Edward T.) BOUNDARIES. No. 7038. TO AUGUST HEMAN, North. East. South. West. No. of Block. No. of Lot. Square Rate per 100 AMOUNT. Square Feet. Dolls. Cents. Dolls. Cents. Dolls. Cents. Alley. Williamson. Delmar Ave. Valle. 3750. 35.0 150.0 16,706,365 5250 243,336 Int to 12-4-1891 1 45 655 76 Received Payment in full of the above amount, I hereby Certify, That as shown by the Certificate of the Sewer Commissioner, on file in this Office, the above mentioned work was done and material furnished by the above mentioned Contractor. I further certify that the Board of Public Improvements has assessed the cost of the sewers in said district upon the property-owners thereof according to law; that the rates, or prices and amount, viz:-Seventy-six-47-100 Dollars are correct, and that the person herein named as the owner of the land, and charged with the bill, is liable to pay the same. R. A. CAMPBELL. By section 25, art. 6, of the charter of the city of St. Louis, the certificate to the tax bill is made "prima facie evidence that the work and material charged in such bill shall have been furnished and of the execution of the work, and of the correctness of the rates of prices, amount thereof, and of the liability of the person therein named as the owner of the land charged with such bill to pay the same." The tax bill, therefore, made out a prima facie case in favor of the plaintiff. Section 22, art. 6, of the city charter, provides that "as soon as a district sewer, with its inlets, man-holes and other appurtenances is fully completed, the said board [referring to the board of public improvements] shall cause to be computed the whole cost thereof, and shall assess it as a special tax against all the lots of ground in this district respectively, without regard to improvements and in proportion as their respective areas bear to the area of the whole district, exclusive of the public highway; and the board shall cause to be made out a certified bill of such assessment against each lot in the district, in the name of the owner thereof." The tax bill in suit, as shown on its face, was issued on account of a district sewer in Vandeventer avenue sewer district, No. 1, constructed by plaintiff under a valid contract made with the city in pursuance of the ordinances named in the tax bill. To overcome the prima facie case made by plaintiff the defendants offered the following: "Q. What is your position, if any, in the city government, here? A. Secretary of the board of public improvements. Q. As such, have you custody of the records of the board of public improvements? A. I have, sir. Q. You have brought them here to court, have you, in obedience to a subpoena? A. Yes, sir. Q. I will get you, if you please, to turn to date December 11, 1888, page 356, of volume 16 of the records of the board of public improvements, and read there what occurs with reference to the communication of the sewer commissioner to the board of public improvements? A. The sewer commissioner submitted the following report: 'St. Louis, December 11, 1888. I hereby certify that August Heman has completed the work embraced in his contract, number 1,454, for the construction of sewer in Vandeventer sewer district, number one, as shown on the accompanying diagram, and that I have accepted the same in accordance with the specifications and stipulations in his said contract. I have also caused the said work to be carefully measured, and the whole cost thereof to be computed according to the terms and prices of his said contract, and I hereby report that the same amounts to $243,336.09, as shown in detail by the statement hereto attached. [Signed] Robert E. McMath, Sewer Commissioner.' Attached is the computation No. 254, "Computation of the total cost of sewers in Vandeventer sewer district, No. 1, constructed by August Heman under contract No. 1,454 and ordinances 13,076, 13,482, 13,625, 14,596, and 14,630.' There is a very long lot of figures there. I do not know whether you want them all read? Q. No, sir. A. And at the bottom is the action of the board. Q. Read that, after those figures. A. 'Referred to the president, with instructions to make out the necessary special tax bills.' That is on page 360, volume 16. Q. And the first that you read? A. The first was on page 356, volume 16. Q. What you read as being on page 356? A. Excerpt from the records of December 11, 1888. Q. Was it a report of the sewer commissioner? A. Report of the sewer commissioner, with the computation of the work done attached. Q. By which he certified that August Heman had completed the work embraced in his contract No. 1,454 for the construction of sewers in Vandeventer avenue sewer district, No. 1, as shown in the accompanying diagram. Is there any diagram here? A. No, sir; the diagram is on file in the office, but there is a copy of the computation. The Court: What is the description of the lot in controversy here? (Mr. Rodgers read the description from the tax bill.) Witness (referring to the record): That is a computation of the whole area in the district; that is, to show that the president was authorized and directed to draw the tax bill. Mr. Farish: I understand this to be a report, your honor, of the sewer commissioner, signed by Robert E. McMath, sewer commissioner, in which is set forth the brick sewer, dimensions, diameters, etc., pipe sewers, total length of brick and pipe sewers, inlets, manholes, and work computed December 1, 1888, and dimensions of brick sewers, and so on. It commences on page 356, and extends over pages 357, 358, 359, 360, 361, and 362, and, after footing up all these amounts and the areas of these different sewers, gives the aggregate amount. This report was referred to the president, with instructions to make out the necessary special tax bills. Then that is the end of it (to witness), is it not? A. Yes, sir; that is the end of it, until the tax bill was brought in to be approved. Q. I will get you to turn to volume 16, page 433, under date of January 8, 1889, and read the excerpt there, if you please. A. In reference to the president submitting tax bills? Q. For Vandeventer avenue; yes, sir. A. The president submitted special tax bills for the construction of the sewer in Vandeventer sewer district, No. 1, by August Heman, under contract No. 1,454 and Ordinances Nos. 13,076, 13,482, 13,625, 13,596, 14,630, approved by the following votes: Ayes, Burnett, Holman, McMath, Klemm, Murphy, and President Flad,-6. Nays, none.' Mr. Farish: I submit the foregoing excerpts from the records of the proceeding of the board of public improvements, with the assertion that that is all the minutes of the board showing any action towards making an assessment of all the property embraced in that sewer district. The said records are here produced under a subpoena duces tecum, and, if there is any other matter appearing thereby which counsel would like to call the court's attention to, he may do so." This was all the evidence. At the request of defendants the court made a finding of facts. This finding is as follows: "The court finds that the tax bill sued on was certified by the president of the board of public improvements, and that his certificate contains the following as a part thereof: 'I further certify that the board of public improvements has assessed the cost of the sewers in said district upon the property owners thereof according to law; that the rates or prices and amounts, viz., seventy-six and forty-seven hundredths dollars ($76.47), are correct; and that the person herein named as the owner of the land, and charged with the bill, is liable to pay the same.' And the court further finds that in December, 1888, the sewer commissioner computed the whole cost of the Vandeventer avenue and lateral sewers, giving a detailed statement of the cost of each portion of the work, and stating that he had accepted the work, and that the aggregate cost was $243,336.09, and reported the same to the board of public improvements, and said report was by the board referred to the president thereof, with instructions to make out the necessary tax bills; and afterwards, on January 8, 1889, the president submitted the special tax bills for the construction of sewers in Vandeventer avenue sewer district, No. 1, by August Heman, under contract No. 1,454, and Ordinances Nos. 13,076, 13,482, 14,625, 13,596, and 14,630, to the board for approval, and said tax bills were approved by the following vote: Ayes, Burnett, Holman, McMath, Klemm, and Murphy, and President Flad. Nays, none. I further find that the tax bill sued on is one of the foregoing, and is dated January 8, 1889,-the same day on which it was submitted to the board and approved by it, and presumptively and in accordance with the certificate of the president of the board, I find it was signed and issued by him after it was approved by the board. I further find that no demand was made upon Mrs. Farish for the amount of said tax bill prior to the institution of this suit." Defendants saved exceptions to the finding of the facts, and moved the court to give certain instructions, which the court refused to do. The court found the issues for plaintiff, and gave judgment for the face of the tax bill ($76.47), and 15 per cent. interest per annum thereon from December 24, 1890, to the date of the rendition of the judgment. Defendants filed a timely motion for new trial. This the court overruled, and defendants appealed. 1. The contention of appellants is that the board of public improvements did not make the assessment required by section 22, art. 6, of the city charter. As an assessment is the basis of taxation, the special tax bill sued on is void unless grounded on a valid the board approving the tax bills, as presented by the president of the board, prior to their being dated and signed, and before they took effect as tax bills, was, in form and substance, an assessment, within the meaning of section 22, Id., and affirm the judgment. BARCLAY and GOODE, JJ., concur. ROBERSON v. STERRETT." 1. Under 2 Batts' Ann. Civ. St. art. 4218fff, authorizing a purchase of additional lands by an owner and occupant of school lands, and providing that a failure to make such ownership and occupancy continuous for three years shall work a forfeiture of the additional lands to the state, unless he shall have sold his land to another, who completes such three-years occupancy, where a purchaser of additional school lands attempts to sell the same to another, who is not an actual settler thereon, the sale is void, and does not work a forfeiture, and replace such land in the market, to be sold by the state, but leaves the title of the vendor unim. paired. Motion for rehearing of an application for a writ of error by G. L. Roberson against Frank K. Sterrett. Overruled. Legett & Kirby and Thomas L. Blanton, for applicant. assessment made by the tribunal to whom We think, therefore, that the resolution of the power to make the assessment is delegated by the charter. Collins v. Trotter, 81 Mo., loc. cit. 283; State v. Wabash R. Co., 114 Mo. 1, 21 S. W. 26; City of St. Louis v. Wenneker, 145 Mo. 230, 47 S. W. 105, 68 Am. St. Rep. 561; State v. Kansas City, St. J. & C. B. R. Co., 149 Mo. 635, 51 S. W. 479. The scheme of assessment provided by the charter for raising money to pay for the construction of district sewers is to divide the cost of the construction of the sewer by the whole number of square feet of ground in the sewer district, excluding public highways, and thus find the percentage with which each square foot of ground should be charged. This percentage forms the basis of the assessment, and its ascertainment is to fix or determine the rate of special taxes. The board of public improvements is not required by the charter or by any ordinance to list the lots in the sewer district, or to make out any form of tax list. The charter provides simply that the board shall make the assessment, that is, ascertain the rate of taxation, and the portion of cost of construction each lot shall bear,-after having approved the construction and cost of construction. The board had before it the report of the sewer commissioner, showing in detail and in the aggregate the entire cost of construction. This report it approved. It had also a computation of the whole area of the sewer district, excluding public highways, and presumably the area of each lot within the district. The ascertainment of the rate of taxation, therefore, and of the amount with which each lot should be assessed, were matters of mathematical calculations, which would take considerable time to work out. Had the board directed its president or its clerk to make these calculations and ascertain the amount of taxes against each lot, and then approved the work and directed its president to make out tax bills from such list, it could not be contended that the board did not assess the lots in advance of its order to the president to make out the tax bills. Yet this is substantially what was done. The tax bills, as made out and presented to the board, are only tax bills in form, for they were neither dated or signed. Collectively they showed all the lots in the district, the area of each lot, the rate of taxation, and the taxes to be assessed against each lot, and the aggregate of taxes the assessment would raise. In this condition they were submitted to the board, and by it approved. They did not become tax bills in fact until after the order of the board approving them was made, as is shown by the findings of the court. When approved, they were but descriptions of each lot to be assessed, with the rate of taxation and the amount of taxes stated opposite the description of the lot. They did not become tax bills, within the meaning of section 24, art. 6, of the charter, until after they were dated and signed by the president of the board. 71 S.W.-25 GAINES, C. J. This is a motion for a rehearing of an application for a writ of error, and is supported by a citation of a new authority, namely, the case of Spence v. Dawson, 70 S. W. 73, recently decided in this court, and not yet officially reported. It was held in the case referred to that a sale by a purchaser of school lands of a part of his additional lands to another, who was not an actual settler upon the lands so bought, passed no title, although the vendee was, as the owner of other lands within a radius of five miles of the lands purchased by him, entitled to purchase the same from the state without making actual settlement thereon. In the present case, Sterrett, who was the original purchaser of the land in controversy, as additional lands to his home section, before he had completed his three-years term of occupancy conveyed the same to one Lazarus, who never settled thereon. The point made is that the sale to Lazarus was void, and that therefore the title was lost, and the land became the property of the state, and subject to sale to an actual settler. We did not so decide in Spence v. Dawson. Spence as administrator of the estate of one Franklin, was the plaintiff in that suit, and claimed title in part under a purchase by his intestate from one Taylor, an original purchaser from the state. We determined, for the reason already stated, that the attempted sale was *Writ of error denied by supreme court. void, and that, since the plaintiff showed no title in his intestate to the premises in controversy, judgment was properly rendered for the defendant in the action. The question whether, after the attempted sale by Taylor to Franklin, the title remained in Taylor, or was forfeited to the state, was not involved in that case, and was not decided. It is insisted, however, in the argument in support of this motion, that article 4218fff, 2 Batts' Ann. Civ. St., provides, in effect, that an attempted sale by an original purchaser to one who is not an actual settler forfeits the title to the state, and we have no doubt that the legislature might have so provided. But without entering upon a discussion of the language relied upon, we deem it sufficient to say that we do not regard it as capable of that construction. Under the colonization law of Coahuila and Texas of April 28, 1832, colonists were prohibited from selling their lands until after six years from the time of taking possession. Attempted sales within the prohibited period were uniformly held void, but it has never been held that they created a forfeiture. Hunt's Heir v. Robinson's Heirs, 1 Tex. 748; Brown v. Simpson's Heirs, 67 Tex. 225, 2 S. W. 644, and many intermediate cases. The effect of the holding is that, the attempted sale being void, the title remained in the vendor. Applying the rule to this case, the title was still in Sterrett, notwithstanding his purported sale to Lazarus; and, no forfeiture having occurred for nonpayment of interest or other cause, when Roberson made application to purchase it was not then on the market for sale, and he acquired no right thereby. The motion for a rehearing of the application for the writ of error is overruled. ST. PAUL FIRE & MARINE INS. CO. ▼. HODGE. (Court of Civil Appeals of Texas. Dec. 24, 1902.) FIRE POLICY-CONDITIONS PRECEDENT TO ACTION-PLEADING PERFORM ANCE-VARIANCE. 1. Proof of a waiver of the conditions precedent to an action on a fire policy is not admissible under the general allegation of perform ance. On motion for rehearing. Overruled. STREETMAN, J. Appellee has filed a motion for rehearing in this cause, in which it is insisted that he should have been permitted to show a waiver of the conditions of the policy with reference to proofs of loss, under his allegation that such conditions had been performed. In support of their motion, counsel cite 2 May, Ins. § 589, which says that the weight of authority seems to be that proof of waiver is admissible under allega 1. See Insurance, vol. 28, Cent. Dig. §§ 1640, 1642. tion of performance of a condition in a policy of insurance. We have taken occasion to examine carefully the authorities cited by this author in support of this proposition. We find that some of the authorities hold directly that proof of waiver is proof of performance. The principal line of authorities, however, holding this doctrine, are the decisions of the supreme court of Missouri. These cases, however, the latest of which is McCullough v. Insurance Co., 21 S. W. 207, recognize that this is an exception which they have adopted only in insurance cases; and the courts of that state do not seem to be altogether satisfied with their holding upon this subject, as appears from the following, taken from the opinion of the court of appeals in the case of Roy v. Boteler, 40 Mo. App. 226: "The plaintiff's further contention is that, even if the production of the architect's certificate was a condition precedent, the defendant could waive it, and that the proof of waiver sustains the allegations of performance. It seems that this construction finds some support in the cases of Insurance Co. v. Kyle, 11 Mo. 278, 49 Am. Dec. 74; Okey v. Insurance Co., 29 Mo. App. 110; Travis v. Insurance Co., 32 Mo. App. 198. The cases cited by plaintiff, and others which might have been cited, assert the doctrine for which he contends only in insurance cases. Why the rules of pleading and practice should be different in actions in insurance contracts from other actions is quite difficult to understand. The rule invoked by plaintiff seems to have so far been only made applicable to actions arising on insurance policies. Why so limited, is nowhere made to appear. However this may all be, the cases cited by plaintiff can have no application to a case of this kind, or, if so, then the same are not in harmony with the last utterance of the supreme court, by which we must be governed in this case. [Citing Lanitz v. King, 93 Mo. 518, 6 S. W. 263, and other cases.] It is not pretended that the plaintiff has pleaded a waiver by defendant of the performance of any of the conditions precedent. If the plaintiff's offer of evidence tended to show a waiver of a condition preIcedent of the contract, or an excuse on his part for nonperformance, it was inadmissible and properly rejected, unless the petition had alleged such waiver or excuse for nonperformance, of which there is no pretense. In view of the rule declared in Lanitz v. King, and the other cases to the same effect which we have cited, it is quite clear that, under the general allegation of performance of all the conditions of a contract, evidence of waiver of performance of such conditions is inadmissible." It is perhaps true that none of the decisions of our state are precisely in point, but we think that the rule established by our supreme court in similar cases is sufficiently plain to indicate that an allegation of waiver is necessary to admit proof. In the case of Insurance Co. v. Lacroix, 45 Tex. 158, a question somewhat similar was presented; and appellees in that case contended that their plea of waiver was sufficient, and said: "So far from observing so strict a rule, other courts have held it unnecessary for the pleader to aver waiver, and that proof of waiver may be adduced under the general allegation of performance." And in support of this proposition they cited all of the authorities cited by May on Insurance, including the Missouri cases. Our supreme court, however, sustained the objections to the plea of waiver, and, in effect, overruled their contention. In the case of Denison v. League, 16 Tex. 400, it is said: "There is no rule that has been so stringently enforced in this court as the rule that the allegata must be broad enough to let in the proof, and that no evidence not supported by the allegata can sustain a verdict. This rule has always been considered essential to our system of jurisprudence, and giving harmony to the system. It was commented on and enforced in the case of Mims v. Mitchell, 1 Tex. 443, and in Hall v. Jackson, 3 Tex. 305, and in fact by a train of decisions without ever having been relaxed in a single instance." This rule has since been strictly adhered to by our supreme court, and, in view of this tendency, we do not feel authorized to follow the decisions of the Missouri courts and those other courts which permit proof of a waiver under the general allegation of performance. It certainly violates the rule that the proof must correspond to the allegations, and, as we have seen, the courts which have adopted the rule are now plainly manifesting dissatisfaction with their rulings. The motion for rehearing is therefore overruled. Motion overruled. DENNIS v. NEAL et al. (Court of Civil Appeals of Texas. Oct. 29, 1902.) PROBATE OF WILL-ADMISSIONS OF DEVISEES -ADMISSIBILITY-APPEAL STATEMENT OF FACTS UNAUTHORIZED FILING AFTER ADJOURNMENT-SUFFICIENCY OF EVIDENCEPRESUMPTION - JUROR -IMPEACHMENT OF VERDICT. 1. Where no order appears in the record authorizing the filing of the statement of facts after adjournment, the statement will be disregarded on appeal, though no motion to strike it out has been made. 2. In the absence of a statement of facts, it will be presumed on appeal that the evidence was sufficient to sustain the verdict and judgment. 3. Where there is no statement of facts, the affidavit of a juror will not be permitted on appeal to impeach the verdict, since it may be that the evidence would have warranted a peremptory instruction for the successful party. 4. The affidavit of a juror that he consented to the verdict only because he was sick, and unable longer to endure the confinement, and he understood that the jury were to be kept together indefinitely until agreement, cannot be received to impeach the verdict. On Rehearing. 5. In proceedings for the probate of a will, contested on the ground of undue influence, it is error to admit evidence of admissions of some of the devisees, made after the execution of the will, tending to show such influence; it being impossible in such a proceeding to so limit the testimony as to avoid its prejudicial effect on the interests of the other devisees. Appeal from district court, Bell county; John M. Furman, Judge. Proceedings by W. N. Dennis, as executor, for the probate of the will of Isa Dennis, deceased, in which Robert Neal and others became contestants. From a judgment refusing probate, proponent appeals. Reversed on rehearing. A. J. Harris, for appellant. A. M. Monteith, for appellees. STREETMAN, J. W. N. Dennis made application in the county court of Bell county to probate the will of his mother, Mrs. Isa Dennis. Robert Neal and others, heirs of Mrs. Isa Dennis, contested the probate, alleging that Mrs. Isa Dennis did not have mental capacity to execute a will; and, further, that she was induced to sign the paper offered for probate by the undue influence of her daughter, Mrs. Hamrick, and husband, D. R. Hamrick. On appeal to the district court, a jury found in favor of the contestants on both issues, and judgment was entered accordingly, refusing to probate the will, from which judgment W. N. Dennis has appealed. The district court in which the case was tried adjourned for the term on the 7th day of September, 1901. There is in the record what purports to be a statement of facts, agreed upon by the parties, and approved by the district judge, but it appears to have been filed on the 10th day of September, 1901, three days after the adjournment of court. There is no order authorizing the statement to be filed after adjournment. While no motion has been made to strike out the statement of facts, yet, in the condition in which we find the record, it is our duty to disregard it, and dispose of the case as if it were not in the record. Matthews v. Boydstun (Tex. Civ. App.) 31 S. W. 814; Raleigh v. Cook, 60 Tex. 440. Several assignments of error complain of the action of the court in overruling special exceptions made by appellant to the pleadings of appellees. These pleadings perhaps were in some respects more full than necessary, yet we are unable to say that any of the special exceptions should have been sustained. It was proper that the pleadings should show the relations of the parties, the condition of the property, the disposition made by the will, whether unequal or otherwise, and also the facts necessary to show how an undue influence had been acquired and exercised. This was the evident purpose of the allegations complained of, and we do not |