(238 S.W.) ever, this is not a finding that it was not then the purpose to vest the entire estate in the land in the wife, both by the money paid by her and a gift of the community interest in the land. The deed evidences the fact that the entire property in the land was in the separate estate of the wife when the deed in 1915 was made. [8] As above shown, the appellee was not then a creditor, and the conveyance thereof to her was no fraud upon appellee. If the husband and wife are to be believed in this case, the land was conveyed to her to pay a debt due her by him. That issue in terms was not submitted to the jury; but, if the jury meant to find that the wife held the community interest in her name only, then we think the finding that it was conveyed to her in 1915 and the undisputed fact that the deed of 1920, giving notice that it was her separate estate, are so contradictory that a judgment ought not to have been rendered on the verdict of the jury against her. We cite the case of McClintic v. Midland Grocery Co., etc., 106 Tex. 32, 154 S. W. 1157, discussing property rights between husband and wife, where the authorities are collated and discussed. The appellant contends that upon the finding that the deferred payments were made out of the community, etc., that there is no evidence in the record supporting such finding. We would not feel justified in so holding. The source of the money so paid is not, as we read the record, clearly traced. David would seem to say in some parts of his testimony that he paid this money out of crops and from community sources. It is true both husband and wife testify that the husband used her separate funds and was indebted to her therefor, and it would seem therefrom that the conveyance was made to pay this indebtedness according to their testimony. We have concluded not to discuss this evidence, as the case will be reversed, and at this time we are unwilling to hold there is no evidence supporting the verdict of the jury thereon. 1920, the land was the separate property of | lant is not supported by the evidence. HowMrs. David, when it was executed, and there was then no evidence of that fact upon the record, it was no fraud upon appellee or any other creditor of Thomas J. David to make the record speak the truth. The last deed, therefore, would not be void as to appellee for the reason that it took from the creditor no property upon which it had a right to rely for the payment of its debt. Barnett v. Vincent, 69 Tex. 685, 7 S. W. 525, 5 Am. St. Rep. 98; Peck v. Jones, 10 Tex. Civ. App. 335, 30 S. W. 382; De Berry v. Wheeler, 128 Mo. 84, 30 S. W. 338, 49 Am. St. Rep. 538; | Fidelity Trust Co. v. Rector (Tex. Civ. App.) 190 S. W. 842 (2). Whether the deed executed in 1915 was upon a valid consideration or a voluntary conveyance, it would not be fraudulent and void as to appellee under either article 3966 or 3967, R. C. S., unless at that time appellee was a creditor of the husband. This fact the burden was upon appellee to establish. De Garca v. Galvan, 55 Tex. 53; Reynolds v. Lansford, 16 Tex. 287; Gonzales v. Adoue, 94 Tex. 120-124, 58 S. W. 951; Dosche v. Natte, 81 Tex. 265, 16 S. W. 1013; Bank v. Hall (Tex. Civ. App.) 30 S. W. 73. [5-7] As we understand, it will not affect Mrs. David's right if appellee did not have notice of the existence of the deed made in 1915, if it was charged with notice that the land was the separate property of the wife when it filed its abstract of judgment. The deed of July 28, 1920, was then duly recorded, and it was notice to appellee and to all the world that the property was the wife's separate estate, and paid for by her separate money. The jury found the cash payment of $4,000 was out of her separate funds. It is conceded that 200 acres thereof is the homestead. If the deferred payment was made out of the community funds, this did not render her title as to that portion fraudulent as to appellee, as it was not then a creditor of David. The husband then had the right to convey to his wife the land, either by gift or upon the consideration that she had furnished the purchase money, and he could have given her the community funds [9-12] We do not think the mere fact that which went in to the land. The mere fact the wife was living on the land with her that the appellee did not receive notice of husband sufficient to afford, notice of her her title until after it became a creditor will separate right thereto, when the deed of not defeat her rights if it had notice before record placed the title in the community. its lien attached. We conclude that the find- | Parker v. Coop, 60 Tex. 111; Allday v. Whiting that the husband did not have property aker, 66 Tex. 669, 1 S. W. 794; McKamey v. to pay the bank after the conveyance to the Thorp, 61 Tex. 648; Blankenship v. Doughwife, July 28, 1920, and that such convey- las, 26 Tex. 225, 82 Am. Dec. 608. In so far ance was made to hinder and delay the bank as the $4,000 paid on the original purchase or his creditors, will not affect the rights is concerned, a trust for that amount was which had previously vested in the wife and created in favor of the wife and was not of which right the last deed gave notice. subject to the registration laws. As to the The finding that the deferred payments were balance of the consideration paid, and whethpaid out of the community estate, and that er the conveyance was made as a gift or to it was not the intention of David that the pay a pre-existing debt in favor of the wife, consideration paid out of the community fund the registration laws will apply as to that should be applied on the indebtedness due portion of the land represented by the payby him to his wife, it is claimed by appel- ments on the deferred consideration. The appellee would not be an innocent purchaser, which was attached to a draft drawn by seller if before he secured a lien as a creditor the records afforded notice that the land belonged to the wife's separate estate, and the appellee would not be protected as a creditor under article 6824, R. C. S., unless it secured a lien on the property without notice. Tur ner v. Cochran, 94 Tex. 480, 61 S. W. 923. The creditor who is protected under the statute is one who has acquired a lien by a proceeding at law, and not a simple contract creditor or one holding a contract lien. The above case discusses the distinction as to the creditors mentioned in the statute. upon the purchaser's place of residence, and St. Supp. 1918, art. 1903]), does not, when Appeal from District Court, Harris County; J. D. Harvey, Judge. Suit by the Industrial Cotton Oil Properties against Leo Malloy. Judgment for plaintiff, and defendant appeals. Affirmed. Doss & Baugh, of Ballinger, and Kennerly, Williams, Lee & Hill, Richard T. Fleming, and Irl F. Kennerly, all of Houston, for appellant. [13] There is a suggestion that by permit ting the title to remain on record in the name of the husband and wife that Mrs. David would be charged with negligence, inducing the appellee to extend credit to her husband. There is no testimony in this case raising the issue of estoppel. The bank does not show that it extended credit to David on the faith of his apparent ownership of the land. The records show that the debt upon which the judgment of appellee was obtained was secured by a chattel mortgage on cattle, horses, farming implements, and growing crops. In so far as this record shows, the security for the debt was the personal property above mentioned and was the inducement to appellee in extending credit to the husband. The trial court was not, therefore, warranted in rendering judgment on the ground of estoppel. We have not endeavored to determine the law with reference to estoppel as a PLEASANTS, C. J. This suit was brought defense by appellee on the issue here sug- by the appellée, a business association organgested, as the issue is not raised by the evi-ized under a declaration of trust, in the disdence. However, if the wife had the title to this land before the appellee became a creditor, as found by the jury, it well may be questioned whether estoppel could in any event be invoked. The Supreme Court of this state has given this question a very full and exhaustive discussion in the case of Bicocchi v. Casey-Swasey Co., 91 Tex. 259, 42 S. W. 963, 66 Am. St. Rep. 875. We respectfully refer to that case as possibly furnishing the rule of law governing estoppel that may arise in another trial of this case. We believe the judgment of the trial court should be reversed and the case remanded. MALLOY v. INDUSTRIAL COTTON OIL (Court of Civil Appeals of Texas. Galveston. 1. Sales 79-Venue 7-Consignment un- Where goods were consigned by seller under a "shipper's order," "notify," bill of lading, Baker, Botts, Parker & Garwood, of Houston (Palmer Hutcheson, of Houston, of counsel), for appellee. trict court of Harris county, to recover from appellant, who resides in Concho county, the sum of $812 alleged to be due appellee as the difference in value between a car of cotton seed delivered to appellee at Houston, Tex., under a contract of purchase from appellant, and the car of cotton seed contracted to be sold appellee by the appellant. The appellant in due time filed a plea of privilege to be sued in the county of his residence. The plea was controverted by appellee, and upon a hearing on the plea and contracting affidavit the trial court overruled the plea. This appeal is from the order or judgment of the court overruling the plea of privilege. The following facts were established on the hearing: On December 2, 1919, J. W. Hooker, a traveling purchasing agent for plaintiff, called on defendant at Paint Rock in Concho county, where the defendant then and has since resided, and there entered into an agreement with him for the purchase by plaintiff of a carload of sound dry cotton seed, to be delivered to plaintiff at Houston, Harris county, upon payment of draft attached to bill of lading. The price agreed to be paid by plaintiff for the seed was "$75 per ton f. o. b. Paint Rock." After this agree For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (238 S.W.) ment had been made, Hooker executed and delivered to the defendant the following confirmation of the agreement: "This is to confirm purchase of one car, 22 to 25 tons, sound dry cotton seed, from Leo Malloy, at $75.00 per ton, f. o. b. Paint Rock, to be shipped soon as car can be obtained for loading. [Signed] J. W. Hooker, Traveling Representative for Industrial Cotton Oil Properties, Houston, Texas. "Union National Bank. "South Texas Commercial Bank." The names "Union National Bank" and "South Texas Commercial Bank" were added to the agreement by the defendant as a memorandum of the names of the Houston banks with which plaintiff did business. On the same day the defendant delivered the car of seed to the railway company at Paint Rock for shipment and delivery at Houston to defendant's order. and that we would unload and account $39.00 On the 24th day of December, 1919, the defendant sent to plaintiff the following telegram: "December 24, 1919. "Industrial Cotton Oil Properties, Houston, Texas. Will stand no damage on seed. Your Mr. Hooker looked at and bought seed. Can prove seed were in good shape when loaded. Unload at your expense. "[Signed] Leo Malloy." The difference in the value of the seed re ceived by plaintiff and seed which defendant for which plaintiff brings this suit. contracted to sell it was $812, the amount The confirmation of sale, draft, bill of The bill of lading received by the defendant is in the regular and usual form of a bill of lading by which goods are consigned lading, and telegrams before set out constito the shipper's order, and contains the nota-tute all the writings evidencing the contract tion "Notify Industrial Cotton Oil Properties between the parties. at Houston, Tex." On the next day, Decem- In addition to the facts above stated, the ber 3, 1919, the defendant drew the following trial court made the following finding of draft on plaintiff, to which he attached the bill of lading and delivered both to the Guaranty State Bank at Paint Rock: "Paint Rock, Texas, December 3, 1919. Pay to the order of Guaranty State Bank, Paint Rock, Texas, $1677.60, sixteen hundred seventy seven and 60/100 dollars. "[Signed] Leo Malloy. "To Industrial Cotton Oil Properties, Houston, Texas. "At Union National Bank." Thereupon the bank credited defendant's account with the sum of $1,677.60 and forwarded draft to the Union National Bank at Houston. This draft was paid by plaintiff on December 9th, and the bill of lading delivered to it. The shipment was received in Houston on December 20th, and the freight charges paid by plaintiff. Upon examination of the seed the plaintiff sent the defendant the following telegram: "Houston, Tex., Dec. 20, 1919. "Leo Malloy, Paint Rock, Texas. Received today car seed AT&SF 42459 which is 60 per cent damaged and worth under interstate rules $39.00 per ton f. o. b. Paint Rock. Telegraph if satisfactory unload and account at this price, otherwise advise disposition. Present condition of seed does not indicate damage en route, damage being heat field and faulty. "[Signed] Industrial Cotton Oil Properties." Receiving no reply to this telegram, plaintiff, on December 23d, again wired the defendant: fact: "I find that it was a universal and well-established custom of the trade, with knowledge of which plaintiff was chargeable, that weight and quality of a shipment of this nature was guaranteed at destination by the shipper, and that this custom entered into this contract." [1] We find nothing in the facts of this case which, in our opinion, distinguishes it from the cases of Seley v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399, and Callender-Holder & Co. v. Short, 34 Tex. Civ. App. 364, 78 S. W. 366, in both of which this court in effect held that a consignment of goods by a seller under a "shipper's order," "notify," bill of lading, which was attached to a draft drawn by the seller upon the purchaser's place of residence, constituted a written obligation of the seller to deliver the goods contracted to be sold to the purchaser in the county of his residence, unless there is an express agreement to the contrary. Appellant very earnestly insists that the holding in the cases cited is not the law of this case, because the written confirmation of the verbal contract of sale contains the clause, "at $75.00 per ton f. o. b. Paint Rock," and the freight charges on the shipment were paid by the appellee. When the confirmation of the contract of sale is considered together with the draft and bill of lading, we think it clear that the clause "at $75.00 per ton f. o. b. Paint Rock" was only for the purpose of fixing the price "Houston, Texas, December 23, 1919. of the cotton seed, and binding the appellee "Leo Malloy, Paint Rock, Texas. We wired to pay the freight charges to Houston, the you 20th instant car seed AT&SF 42459 re- place of final delivery. If the contract of ceived and found to be 70 per cent damaged, sale, as shown by the draft and bill of lading, required the delivery of the cotton seed at [despino v. Dorrance (Tex. Civ. App.) 207 S. Houston, the agreement of appellee to pay the freight charges would not affect the obligation of appellant to deliver the seed at Houston. If the written confirmation of the contract was the only written evidence of the contract, it goes without saying that the place of final delivery of the seed should be held to be at Paint Rock. W. 649, in no way changes the express holding in the former cases when applied to the facts shown by this record. The holding in those cases has been followed by other courts of Civil Appeals, and in the case of People's Ice Co. v. Interstate Oil Refining Co. (Tex. Civ. App.) 182 S. W. 1163, in which the holding in the Seley and Callender-Holder Cases A similar written confirmation of a verbal was approved and followed by the Court of contract of sale was under consideration by Civil Appeals, the Supreme Court, in refusthe court in the case of Lee v. Gilchrist Cot-ing an application for a writ of error, neceston Oil Co. (Tex. Civ. App.) 215 S. W. 977, sarily approved the holding. and the holding of the court in that case that the contract did not obligate the shipper to deliver the goods in the county of the buyer's residence was clearly sound, and in no way conflicts with the holding of this court in the cases first above cited. The Gilchrist case was decided long after the Seley and Callender-Holder Cases, and it is manifest that the learned court by which that case was decided did not regard that decision as in conflict with the earlier cases, or as involving the same question, because no reference is made to these cases in the court's opinion in the Gilchrist Case. The cases of Southwestern Grain & Seed Co. v. Blumberg (Tex. Civ. App.) 162 S. W. 1, and Gottlieb v. Ainsworth (Tex. Civ. App.) 229 S. W. 341, are also cited by appellant in support of his contention that no written obligation of his performance in Harris county is shown by the evidence in this case. In the Blumberg Case, appellee Blumberg, who resided in Guadeloupe county, contracted with the appellant to sell it a carload of corn to be delivered on board the cars at Seguin, in Guadeloupe county, for shipment to El Paso county. The appellant resided in Bexar county, and, in order to collect the amount agreed to be paid him for the corn, Blumberg drew a draft on the appellant, and attached thereto the bill of lading for the corn which he had delivered on the cars at Seguin for shipment to El Paso county. This draft and bill of lading was deposited in a Seguin bank, and by it transmitted to a bank in San Antonio, where the draft was paid by the appellant and the bill of lading delivered to it. From this statement of the case it is perfectly clear that Blumberg did not contract in writing to deliver the corn or to perform any part of his contract in Bexar county. [2] The amendment of the statute declaring the requisites of a plea of privilege and providing that such plea when filed shall be prima facie proof of defendant's right to a change of venue (Acts 1917, c. 176, § 1 [Vernon's Ann. Civ. St. Supp. 1918, art. 1903]), does not, when the plea is controverted, add anything to the burden resting upon the plaintiff prior to said amendment to show the exception to the general venue statute relied on to defeat the plea. We are not inclined to question the soundness of our former holding in the cases cited, nor its application to the facts of this case. We are of opinion that the judgment of the court below should be affirmed; and it has been so ordered Affirmed. 1. Tender 13(1)—Certified check is good tender. A tender by certified check payable to the creditor is good. 2. Action 48(1)-Claim for amount guaranteed purchaser of pledged cotton held properly joined in pledgee's cross-bill. In an action for possession of pledged cotton, where plaintiff tendered pledgee all sums owing it, the pledgee's cross-bill included all sums it claimed was due it by plaintiff, claim for an amount paid a purchaser for loss of weight in cotton sold by pledgee was properly joined with the other items in its cross-bill. 3. Pledges 29-Weight of cotton sold by pledgee bank's president held to have been guaranteed by him on bank's behalf with pledgor's knowledge. In the Ainsworth Case the corn contracted to be sold was never shipped by the seller, and consequently no bill of lading was issued and no draft drawn. We do not see A pledgor of cotton who requested the how it can be seriously argued that either of these cases conflict with the decisions of pledgee, a bank, to sell a part and guarantee the weights to the purchaser, could not avoid this court in the cases before cited. The in- liability to the bank for the amount paid the terpretation placed upon the Seley and Cal- purchaser and charged against pledgor's aclender-Holder Cases by this court in the sub-count for shortage in weights on the ground sequent cases of Sanders v. Hester Cotton the guaranty was made with the president of Co. (Tex. Civ. App.) 195 S. W. 269, and Val- the bank personally, his acts being done in beFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Writ of error dismissed for want of jurisdiction April 12, 1922. (238 S.W.) half of the bank, which was bound thereby, | 9. Interest 50 Tender to stop interest of which facts plaintiff knew. 5. Banks and banking 101-Pledgor held precluded from claiming that pledgee bank's guarantee of weight of pledged cotton sold by it was ultra vires. A pledgor of cotton sold by pledgee, a bank, with full knowledge by pledgor of the terms of the purchaser's offer, which required the bank to guarantee the weights, was precluded from urging that such guaranty was ultra vires so as to defeat the bank's claim for reimbursement for the amount paid the purchaser for loss of weight. must be unconditional and of entire sum due. To stop the running of interest, the debtor must tender the entire sum due, unless he owes two or more debts, especially where one is secured by a mortgage or pledge, in which case the debtor may tender payment of the secured debt only, but such offer cannot be conditioned on the creditor's surrender of his remaining claims. Appeal from District Court, Coleman County; J. O. Woodward, Judge. Action by F. Wal Taylor against C. W. Hemphill and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded in part and affirmed in part. Snodgrass & Dibrell, of Coleman, for appellant. Baker & Weatherred, of Coleman, for appellees. BRADY, J. Appellant filed this suit for 6. Evidence 334(5), 383 (4)-Certificates of the recovery of the possession of 75' bales of public weigher as to excess moisture in cot-cotton, which he alleged had been pledged to ton admissible to establish shortage in weight and prima facie evidence. Under Acts 36th Leg. (1919) c. 76, § 8, authorizing the Commissioner of Markets and Warehouses to prescribe forms of weight certificates by public weighers, a certificate in the form prescribed by a ruling of the Market and Warehouse Department, as to the amount of excess moisture in cotton sold by a pledgee, was admissible to establish its claim for an amount paid the purchaser for loss of weight, and was sufficient to prima facie establish the shortage, though the statute did not require such data. 7. Pledges 29-Certificate of weights ac Central State Bank of Coleman, Tex., to secure certain sums of money advanced to him by the bank to purchase the cotton. He alleged a tender of all the money due, which was secured by a lien on the cotton, and a demand of possession of same, and the refusal by the bank. In addition to the bank, C. W. Hemphill and others were named as defendants, upon the ground that they were setting up some claim to the cotton. All the defendants filed disclaimers except Central State Bank and Richardson & Co. The answer of the bank consisted of general exceptions, general denial, and a cross-bill cording to standard selected by parties held against the plaintiff and the sureties on his admissible and conclusive. Where a pledgor of cotton agreed that pledgee should sell a part and guarantee the weights according to Brownwood Compress weights, a public weigher's certificate as to the amount of excess moisture, according to such weights, was admissible to establish pledgee's claim for reimbursement for the amount paid the purchaser for loss of weight and at least prima facie conclusive, irrespective of the Market and Warehouse Department's authority to require such data. On Rehearing. 8. Tender 29 Whether tender of full amount due was valid and unconditional held for jury. In an action for possession of pledged cotton, whether plaintiff made a valid and unconditional tender of the full amount due with interest, so as to bar recovery of interest on the amount tendered, or whether his tender was on condition that pledgee waive or surrender its claim for reimbursement for the amount paid a purchaser of part of the cotton for a loss of weight, held for the jury. replevy bond and sequestration, asking judgment in the sum of $12,837.08. Richardson & Co. filed a general denial and specially adopted the answer and cross-bill of the bank. Among the items set up by the bank in its cross-bill was one for the sum of $258.29, which it was claimed arose out of the loss of weight in 100 bales of cotton sold by the bank for the account of appellant to W. L. Ellis & Co., and which it was alleged the bank, at the instance and request of appellant, guaranteed to the purchaser. The court gave a peremptory instruction to find for the bank on its cross-action in the sum of $13,974.57. It is conceded by both sides that this amount was arrived at by the trial court in the following manner: $12,972.09 as the amount tendered and deposited in court by appellant on the trial; the further sum of $258.29, the item above referred to, arising out of the sale to W. L. Ellis & Co., which two sums aggregated $13,238, and which, with interest thereon from December 20, 1919, the date of appellant's For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |