The plaintiffs, L. W. Mathews and J. A. [ proceeds of one-fourth of said wheat, by virtue Ballentine, brought the suit against Mattie of their purchase of said land," etc. Solomon, Will Solomon, John Jasper, and Boss Jasper, alleging that the plaintiffs, on January 4, 1921, purchased, at foreclosure sale duly made, certain land in Hutchinson county, Tex., which had theretofore been owned by Mattie Solomon and Will Solomon, thereby acquiring the title of the said Solomons; that at the time of the sale John Jasper and Boss Jasper were cultivating a portion of said lands as tenants under contract previously made with the Solomons, and there was at such time a growing crop of unmatured wheat on the said land, planted by the said Jaspers; that under such rental contract the landlord was entitled to one-fourth of the wheat harvested and placed in a granary on the land by the tenants; that the plaintiffs have succeeded to the rights of the said Solomons in said rental contract, and are entitled to the landlord's interest in said wheat; that after the foreclosure sale Mattie Solomon brought suit against the plaintiffs to set aside the sale on account of certain alleged irregularities, and that such suit is now pending in the district court of Hutchinson county, being cause No. 498 on the docket of said court; that the plaintiffs herein "will appear and contest the said suit; that they have a meritorious defense therein; that they bought the said land in good faith and without notice of any vices in the proceedings, and that they will be able to show that the claims of Mattie Solomon are unfounded"; that the wheat above referred to "has lately matured and is now being harvested, and is being placed in a granary near to the said land; that there were produced from said lord's share going to said Solomons would be one-fourth, or 1,750 bushels, which is of the value of 95 cents per bushel; * that the defendants Jasper have notified plaintiffs that they do not recognize the rights of plaintiffs in said wheat, and that they will turn the same over to defendant Will Solomon, and plaintiffs land 7,000 bushels of wheat and that the land believe that the said Solomon will convert the same into cash and place the funds beyond the reach of plaintiffs; that plaintiffs' interest in the property or funds is in danger of being lost, removed, or materially injured, unless your honor would appoint a receiver to take charge thereof and sell the same and preserve the funds for plaintiffs; * * that the defendants Jaspers and Will Solomon, who now have possession of said wheat, are wholly irresponsible, and could not be made to respond in dam ages for the conversion of said wheat because they are insolvent; and that the defendant Mattie Solomon is wholly insolvent and not lia ble on execution." The prayer of this petition is: "That a receiver be appointed herein, with power to take charge of and sell one-fourth of the total yield of wheat from said place at private sale out of the wheat that is now on the place, and to pay the expense of said sale and hold securely the net proceeds thereof for final disposition in accordance with the further orders of this court, and that upon a final judgment the plaintiffs be decreed entitled to the This petition was sworn to by the plaintiffs, and on August 17, 1921, the district judge indorsed thereon his order appointing R. B. Archer receiver and providing: "That he shall be qualified upon taking the oath and giving bond in the sum of $1,662, with power to do the things prayed for in said petition and to perform such other duties as may arise by law or be further ordered by this court." The petition with oath and bond of the receiver was filed with the clerk of the district court of Hutchinson county on the 19th day of August, 1921, and the cause numbered 499 on the docket of said court. [1, 2] We do not think that the allegations of the petition warranted the appointment of a receiver without notice. It would appear that a preliminary restraining order would have effectually maintained the status of the property until notice could be given and a hearing had on the application for a receiver, and no facts are alleged which negative this conclusion. Our statutes do not require that notice be given before the appointment of a receiver, but the propriety of making such appointment without notice is governed by the rules of equity in such a matter not inconsistent with the provisions of the statute. Simpson v. Alexander (Tex. Civ. App.) 188 S. W. 285; Arnold v. Meyer (Tex. Civ. App.) 198 S. W. 602; Hodges Drilling Co. v. Tyler (Tex. Civ. App.) 233 S. W. 548. It is universally held that appointments of receivers on ex parte application should be made only in exceptional and extreme cases. of receivers may be stated as follows: A receiv"The rule in respect to ex parte appointments defendant is beyond the jurisdiction of the er may be appointed without notice where the court or cannot be found, or where some emerfore the giving of notice necessary to prevent gency is shown rendering the appointment beimminent and irreparable injury, waste, destruction or loss, or when notice itself will which the receivership is to be extended. The jeopardize the delivery of the property over situation must be such as to be of such imperi ous necessity that it requires immediate action and of a character that no other protection can * The powbe accorded to the plaintiff. * er to make such appointments should not be exercised in doubtful cases, or where sufficient protection could be afforded in some other way, such as, for instance, by means of an in junctional order until notice can be given and the application for a receiver heard and determined." Tardy's Smith on Receivers (2d Ed.) par. 731. The proposition stated in the last sentence above quoted seems to us to be sound and salutary, and is well sustained by authority. Haywood v. Scarborough, 41 Tex. Civ. App. (238 S.W.) recites: 443, 92 S. W. 815; Claunch v. Claunch (Tex. GRAVES, J. The judgment in this cause Civ. App.) 203 S. W. 930; Security Land Co. V. Southern Texas Development Co. (Tex. Civ. App.) 142 S. W. 1191; Henderson v. Reynolds, 168 Ind. 522, 81 N. E. 494, 11 L. R. A. (N. S.) 960, 11 Ann. Cas. 977; note, Ann. Cas. 1915C, 899; High on Receivers, par. 112; 23 R. C. L. p. 39. In the cases of Bingham v. Graham (Tex. Civ. App.) 220 S. W. 105, and Temple State Bank v. Mansfield (Tex. Civ. App.) 215 S. W. 154, the allegations were held to be sufficient to show that "full protection" of the plaintiff's rights, pending notice and preliminary hearing of the application for a receiver, might not be afforded by the issuance of a temporary restraining order, and we do not consider the cases as announcing a rule contrary to that above stated. The purpose of a receivership of this character is to preserve and protect the property pending a decision of the rights of the parties thereto. Ordinarily, the court should not order a sale of the property until a final decree in the case. There are many exceptions, of course, to this rule. But when the property is not of a perishable character and no special facts shown requiring an immediate sale thereof, we do not think it proper for the court, on ex parte application for a receiver, to summarily authorize the sale of the property, as was done in this case. Tardy's Smith on Receivership, p. 1784. [3] There was also fundamental error in the appointment of the receiver prior to the institution of the suit by filing of the petition. R. C. S. art. 2128; Bingham v. Graham (Tex. Civ. App.) 220 S. W. 108; Webb v. Allen, 15 Tex. Civ. App. 605, 40 S. W. 342. The order appointing a receiver will therefore be set aside. "On this, the 11th day of February, A. D. 1921, this cause being regularly called, the plaintiff, Geo. S. Wood, appearing in person and by his attorneys and announced ready for trial, and the defendant, T. S. Hill, appeared by his attorney, W. S. Barron, and thereupon came on to be considered the petition and bond for writ of error filed in said court on the 10th day of February, 1921, by the defendant, T. S. Hill, and the court, having read the same, and fully understanding the same and having heard the argument of both counsel for plaintiff and defendant thereon, is of the opinion that the judgment heretofore entered in said cause overruling the plea of privilege of the defendant, T. S. Hill, is an interlocutory one such as cannot be the basis for a writ of error because the same is not final. It is therefore, ordered, adjudged, and decreed by the court that the filing of said application for writ of error and bond therefor constitute no legal reason why said cause should not be tried on its merits at this time to which ruling of the court the defendant, T. S. Hill, by his attorney in open court duly excepted. Thereupon plaintiff announced ready for trial, and the defendant, though cited, and though being regularly called, failed further to appear, but wholly made default." The court then proceeded to a trial upon the merits of the cause, and rendered a judgment in favor of the plaintiff and against the defendant pursuant to its findings. The defendant appeals, assigning as error this action of the court in hearing and disposing of the cause upon its merits, notwithstanding the perfection by him on the day before of his appeal from the decree overruling his plea of privilege, and the fact that such appeal had not been disposed of in the appellate court. We think the position well taken, and reverse the judgment. Appellant, under the express provisions of Revised Statutes, art. 1903, had the right to appeal separately from the judgment overruling his plea of privilege, and, that having been done, and no action having been taken above, the trial court in the meantime had no authority to proceed further with the cause. See Cecil v. Fox (Tex. Civ. App.) 208 S. W. 954; Bennett v. Rose Mfg. Co. (Tex. Civ. App.) 226 S. W. 143. This court, in a cause not now in mind, has heretofore so construed amended article 1903, and, in keeping with what it deemed the spirit and purpose of that enactment, on the 17th day of February, 1921, adopted a Appeal from Grimes County Court; R. M. general rule providing for the advancement West, Judge. Action by George S. Wood against T. S. Hill. Judgment for plaintiff, and defendant appeals. Reversed and remanded. W. S. Barron, of Bryan, for appellant. of such appeals upon its docket. Under this For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes For the reason given, the judgment herein appealed from is reversed, and the cause remanded. Reversed and remanded. THWEATT v. WICHITA COUNTY LUMBER CO. (No. 9722.) COMMERCIAL ACCEPTANCE TRUST v. (Court of Civil Appeals of Texas. Fort Worth. Subrogation 17-One advancing money to take up mortgage notes entitled to subrogation. A third mortgagee, who advanced money to take up notes secured by a first chattel mort '(Court of Civil Appeals of Texas. Fort Worth.gage, was entitled to be subrogated to the Jan. 21, 1922.) Appeal and error 773(4)—Judgment affirmed when authorized by appellee's brief, none being filed by appellant. Under rule 42 for Courts of Civil Appeals (142 S. W. xiv), where appellant files no brief, and the propositions and statements in appellee's brief and the quotations from the statement of facts authorizes an affirmance, the judgment will be affirmed. rights of the holder to have a lien superior to liens of second and fourth mortgages, though the third mortgage was recorded subsequent to the dates of the second and fourth mortgages. Appeal from District Court, Tarrant County; Ben M. Terrell, Judge. Action by the Commercial Acceptance Trust against Victor A. Viel and others. From an adverse judgment, plaintiff appeals. Appeal from District Court, Wichita Coun- Reversed and remanded. ty; P. A. Martin, Judge. Action by the Wichita County Lumber Company against J. D. Thweatt. Judgment for plaintiff, and defendant appeals. Affirmed. Bullington, Boone, Humphrey & Hoffman, BUCK, J. The Wichita County Lumber Company sued Ed Harrison and J. D. Thweatt, alleged to be doing business under the firm name of Harrison & Thweatt, for a bill of lumber alleged to have been bought by the defendants, amounting to $2,781.67. Plaintiff also alleged a materialman's lien against certain described land, and sought a foreclosure. Harrison and Thweatt both filed a plea of privilege, to be sued in Dallas county, and plaintiff filed a controverting affidavit. The court ovèrruled said plea. Harrison then filed a motion to quash the citation as to him, which motion was sustained, and plaintiff took a nonsuit as to Harrison, and the case was prosecuted to judgment against Thweatt individually, and from a judgment in the amount sued for, with 6 per cent. interest, with a foreclosure of the materialman's lien, Thweatt has appealed. A. H. Eaton, of Fort Worth, for appellant. Julian C. Kyer and H. S. Lattimore, both of Fort Worth, for appellees. DUNKLIN, J. Victor A. Viel purchased an automobile from the Hall Motor Car Company, paying therefor the sum of $600 cash, and executing twelve promissory notes for $110 each, aggregating $1,320, and securing the same by a mortgage upon the car so purchased. The notes and mortgage were dated February 22, 1919, and the mortgage was filed for record in the chattel mortgage records of Tarrant county, in which county the sale was made, on March 6, 1919. Thereafter the mortgage and notes were sold by the Hall Motor Car Company to TennisonBaer & Frey, of Dallas, Tex. Later, on June 11, 1919, Viel executed another mortgage on the same car to secure the payment of ten promissory notes of $124.61, given to the Hall Motor Car Company, aggregating $1,246.10. That mortgage recited that it was given in part payment for the same automobile which the Hall Motor Car Company "does hereby sell" and Victor A. Viel "does hereby purchase" for the sum of $2,131.12, of which amount the sum of $885 was recited as having been paid cash, and the notes above mentioned were executed for the balAppellant has not filed a brief in this ance. That mortgage was filed in the chatcourt, but appellee has done so, under rule tel mortgage records of Tarrant county on 42 (142 S. W. xiv) promulgated by the Su- June 23, 1919. On June 11th, the same day preme Court for the government of Courts that mortgage was executed, those notes and of Civil Appeals, and has framed its proposi- that mortgage were, for a valuable considertions so as to authorize us to affirm the judg-ation, transferred and assigned by the Hall ment below. Under the statements in ap- Motor Car Company to the American Motors pellee's brief, and the quotations from the Finance Company of Dallas. At the time of statement of facts, it becomes our duty to the execution of that mortgage, and in, oraffirm the judgment below, which is accord-der to induce the purchase of said notes, the ingly done. Reece v. Langley (Tex. Civ. Hall Motor Car Company, by G. O. Hall, its App.) 230 S. W. 509. agent and representative, executed and de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (238 S.W.) livered to the purchaser, the American Mo- | those liens the plaintiff has prosecuted this tors Finance Company, a written statement appeal. to the effect that Viel had actually paid to Victor A. Viel executed to the Hall Motor the Hall Motor Car Company the amount of Car Company two checks, one dated March cash, to wit, $885, recited in said mortgage, 22, 1919, for the sum of $110, and another and that at that time there were no other dated March 31, 1919, for $1,150; the first prior liens or claims against the automobile. check bearing a notation showing that it was That statement was false, as shown by un-made as a payment on the car in controvercontroverted proof, including the testimony sy, and the second check for $1,150 bore of G. O. Hall himself, since the mortgage first | the notation in one of its corners, "Check to noted was then outstanding and unsatisfied. pay note in full March 31, 1919." Both of But the American Motors Finance Company those checks were collected by the Hall Momade said purchase in good faith and paid tor Car Company. That transaction importa valuable consideration for the notes with-ed an understanding between Viel and the out actual notice of the first mortgage. Hall Motor Car Company that the notes orig February 22, 1919, and secured by the first mortgage, should be fully satisfied and discharged. But the evidence further shows that at that time the Hall Motor Car Com On September 10, 1919, Victor A. Viel ex-inally given to that company by Viel dated ecuted another chattel mortgage on the same car in favor of Martin McMains Motor Company, of Fort Worth, to secure a promissory note in favor of that company in the sum of $1,136. That mortgage was filed for rec-pany did not own those notes and that the ord in Tarrant county on September 12, 1919. On the same day of its execution, the mortgagee transferred the lien and note to the Commercial Acceptance Trust of Dallas, for a valuable consideration paid, who took the same without actual notice of the second mortgage. The mortgage recited that it was given to secure the balance of the purchase money for the car. According to the undisputed proof that mortgage and that note were given for the purpose of procuring the amount necessary to pay off and discharge the first mortgage then held by TennisonBaer & Frey, and with the further under- The notes first given were introduced in standing that the legal holder of the mort-evidence and showed that they had been gage should be subrogated to all the rights of the holder of the first mortgage. On September 10, 1919, the same day the third mortgage was given, Victor A. Viel executed to the Fort Worth State Bank another note for the sum of $500, together with a chattel mortgage in the form of a conditional bill of sale, reciting that if the note so given was not paid by a certain date then the car was to become the property of the bank. This mortgage was not recorded, but possession of the car was delivered to the bank as soon as the note and mortgage were executed. The bank had no actual notice of any other liens outstanding against the car and paid to Viel a valuable consideration therefor at the time. money so paid was not delivered to TennisonBaer & Frey, who then held the same. In other words, it appears that Viel in paying the notes took chances on the money being delivered to the holder of the notes, although Hall testified that at the time the checks were taken there was an understanding between him and Viel that Hall might use the money in his business and take up the notes later, and that he did use the money in his business instead of taking up the first notes. Viel did not testify in the case at all, either by deposition or in person. indorsed in blank by the Hall Motor Car Company, by G. O. Hall, and there was also an indorsement across the face of the notes, "Paid 9-22-19." According to testimony of Hall, which was not controverted by the testimony of any other witness, the date of the payment so marked on the notes was correct, and on that date those notes were paid off and discharged with the money ad. vanced by plaintiff Commercial Acceptance Trust at the time it took over the third mortgage and notes from Martin-McMains Company, which were dated September 10, 1919. At that time the first mortgage had never been released of record and there was no testimony from any witness that Tennison-Baer & Frey did not then hold those notes. If the notes were then unsatisfied and outstanding, as the great preponderance of the evidence seems to show, and if the plaintiff by advancing the money to take up those notes became subrogated to the rights of their holder, as the great preponderance of the evidence tends to show, then plaintiff's lien was superior to all other liens and Thereafter Viel seems to have left the country, and controversies between the respective mortgage holders over the car so mortgaged resulted in the institution of this suit by the Commercial Acceptance Trust, the holder of the third mortgage, which was executed September 10, 1919. All of the other claimants became parties to the suit, either as defendants or interveners, and a judgment claims, even though the third mortgage unwas rendered fixing the second mortgage, der which the right of subrogation arose was dated June 11th, as a superior lien, also fix-recorded subsequently to the dates of the ing the fourth mortgage as second in superi- second and fourth mortgages. Randolph v. ority, and from the judgment with respect to Brown, 21 Tex. Civ. App. 617, 53 S. W. 825; Whiteselle v. Texas Loan Agency (Tex. Civ. S. W. 348. Since plaintiff's claim for a superior lien upon the car was supported by such a preponderance of the evidence as indicated above, the judgment of the trial court is reversed, and the cause is remanded for another trial. PALM v. PALM. (No. 1289.) (Court of Civil Appeals of Texas. El Paso. Feb. 23, 1922.) of the court's charge that possession and valuable improvements were necessary to support a parol gift. 6. Gifts 25-Actual possession of whole premises unnecessary under parol gift. A parol gift of a tract of land may be good as to the whole tract though the donee only fences, improves, and goes into actual possession of a part of it. Appeal from District Court, Shackelford County; W. R. Ely, Judge. Suit by Mrs. Valina Palm against Oliver Palm. Judgment for defendant, and plaintiff appeals. Affirmed. Slay, Simon, Smith & Morris, of Fort Worth, and M. S. Long, of Albany, for ap 1. Trial 295 (1)—Charge construed as a pellant. whole. Charge must be construed as a whole. 2. Trial 191 (4) Charge held not to assume that defendant made improvements on land. In trespass to try title, a charge that if "defendant went into possession of the land in controversy, and made valuable improvements thereon under a parol gift from his father, then you are instructed not to consider any agreements to convey the land back," etc.held not objectionable as assuming that defendant entered on the land and made valuable improvements under a parol gift. 3. Trial 253(11)—Instruction held not objectionable as telling the jury not to consider certain statements of party admissible to affect his credibility. A. A. Clarke, of Albany, and Claude C. Wild, of Dallas, for appellee. HARPER, C. J. Mrs. Valina Palm, appellant, brought this suit in trespass to try title against Oliver Palm, appellee, to recover 207.1 acres of land. The defendant pleaded not guilty and the 10-year statute of limitations to 123.7 acres of the land. The plaintiff is the surviving wife of Henry Palm, deceased, and they were the father and mother of defendant, Oliver Palm. The land in controversy is a part of a 640-acre tract originally granted to Henry Palm. He having left a will by which all of his property passed to his wife, plaintiff, In trespass to try title, an instruction that record title is now in her. Upon the trial the if "defendant went into possession of the land defendant introduced evidence to prove a pain controversy, and made valuable improve- rol gift from his father of the 207.1 acres sued ments thereon under a parol gift from his fa- for, with his mother being present and assentther, then you are not to consider any agree-ing, followed by his taking actual possession ments to convey the land back unless such agreements were in writing and supported by a consideration; neither will you consider any verbal agreements to convey the land back by O. P. (the defendant) made after the 10-year period has elapsed," etc.-held not objectionable as charging the jury that statements made by the defendant as to paying rent upon the land should not be considered for any purpose, in that such testimony was offered and should have been considered for the purpose of passing on the credibility of the witness. In trespass to try title to 207.1 acres of land which defendant claimed under a parol gift and possession for 10 years, held that a verdict for defendant for 123.7 acres could properly be a finding in favor of the parol gift, in view by fencing 123.7 acres of the land, and making other permanent and valuable improvements; and also offered evidence in support of his plea of limitations. The contention of plaintiff as to the defendant's claim under parol gift, as revealed by the evidence in her behalf, is that the defendant was permitted to go upon the land under the agreement that he should occupy, cultivate, etc., it for three years, rent free, as a consideration for improvements, and at the expiration of the three years he was to purchase at $20 per acre. The case was submitted upon a general charge, and the jury made the following finding: "We the jury, find for the defendant, Oliver Palm, 123.7 acres of land which he now has under fence." And judgment was entered accordingly, from which it is properly here for review. First assignment is: "The court erred in his charge to the jury, wherein he charged the jury as follows: "If you should find and believe from the evidence that the defendant went into posses For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |