ETTA ESPEY V. JOE BOONE ET AL.

Decided June 16, 1903.

1.-Jurisdiction-County Court-Title to Land.

Where plaintiff conveyed land to defendants by a deed which was absolute on its face but in fact a mortgage, and defendants sold the land to an innocent purchaser without notice of the trust, plaintiff's action to recover damages for the fraudulent conversion was not one to try title to land, nor one in which the title to land was directly involved, that issue being only an incidental one, and the amount claimed being within the jurisdiction of the county court, it had jurisdiction to try the case.

2. Same Conversion.

Where one has been deprived of his title to land by the wrongful and fraudulent act of another, he may sue for the value of the land, and is not restricted to an action for the land itself. Willis v. Morris, 66 Texas, 28, distinguished.

3. Pleading-Description of Land.

Where in an action of damages for the wrongful conversion of land the petition stated its location and referred to a judgment of the district court of that county for a full description of it, alleging that the judgment described the land, this was a sufficient description of the property.

Appeal from the County Court of Wharton. Tried below before Hon. G. S. Gordon.

Brooks & Cline, for appellant.

1. N. & J. H. H. Dennis, for appellees.

PLEASANTS, ASSOCIATE JUSTICE.-Appellant brought this suit to recover damages for the alleged wrongful and fraudulent sale by appellees of property belonging to appellant, the title to which she had placed in appellee, Lucy Boone, in trust. The petition alleges that during December, 1901, or January, 1902, plaintiff conveyed to defendant Lucy Boone certain lots in Cleburne, Texas, by deed absolute on its face. That in fact such instrument was intended as a mortgage to secure a loan of $60 then made by defendants to plaintiff. That defendants took charge of said property and collected the rents from same to an amount sufficient or nearly sufficient to repay said loan. That on October 4, 1902, defendants, in violation of the trust reposed in them, sold said property to one Minnie Williams for a consideration of $350, of which $100 was paid in cash and $250 in notes. That said Minnie Williams was a purchaser in good faith and without knowledge of the secret trust ingrafted on said deed, and that plaintiff was without remedy for the recovery of said land.

Defendants filed four special exceptions to said petition, same going to the jurisdiction of the court, which were all sustained, and plaintiff declining to amend, the suit was dismissed, and from the judgment dismissing same appellant prosecutes this appeal.

This is not a suit to try title to land, nor one in which title to land

is directly involved, that issue being only incidental to the question of the defendants' liability for the sale of the property. The amount claimed in the petition being within the jurisdiction of the county court, that court had jurisdiction of the cause of action set up in the petition, and the exceptions to the petition should [not] have been sustained. Melvin v. Chancy, 8 Texas Civ. App., 252, 28 S. W. Rep., 241. Appellee contends that plaintiff under the facts alleged in the petition could only sue for the land, and is not entitled to recover damages for its conversion by appellants, and in support of this contention cites Willis v. Morris, 66 Texas, 628. There is no merit in the contention, and it finds no support in the authority cited. That case announces the well established rule that when the owner of real estate is dispossessed by a trespasser, he can not abandon his claim to the property and sue for its value, but must sue to recover the property. It is manifest that this rule has no application to a case in which the plaintiff has been deprived of his title to land by the wrongful and fraudulent act of the defendant. It is well settled that in such case the person injured may sue for the value of the property of which he has been deprived. Phillips v. Herndon, 14 S. W. Rep., 857; Boothe v. Feist, 80 Texas, 141, 15 S. W. Rep., 799; Boothe v. Feist, 19 S. W. Rep., 398.

The exception to the petition on the ground that the description of the land alleged to have been fraudulently conveyed by the defendants was insufficient should not have been sustained. The petition states the location of the property and refers to a judgment of the District Court of Wharton County for a full and accurate description. If, as alleged in the petition, the judgment referred to describes the property, reference to said judgment was sufficient to put the defendants upon notice of what property they were charged to have fraudulently conveyed, and it was not necessary that the petition contain any further description. The judgment of the court below is reversed and this cause remanded for a trial upon the merits. Reversed and remanded.

CASEY-SWASEY COMPANY ET AL. V. VIRGINIA STATE INSURANCE COMPANY.

Decided June 16, 1903.

Witness-Impeachment-Indictment Pending.

Except on cross-examination, a witness can not be impeached by showing that an indictment for perjury is pending against him; nor can he be impeached by the party offering him as a witness.

Appeal from the District Court of Comanche. Tried below before Hon. John C. Randolph, Special Judge.

Geo. E. Smith and Orrick & Terrell, for appellants.

G. H. Goodson, for appellee.

STEPHENS, ASSOCIATE JUSTICE.-Appellee was permitted, against the objections of appellant, to prove by witness Z. P. West that two indictments for perjury were pending against him (West) in the District Court of Comanche County, Texas; and by witness J. T. Maroney that he, too, had been indicted in the same court for the same offense. That it is incompetent to thus impeach a witness, except on crossexamination, is well settled. Texas Brewing Co. v. Dickey, 43 S. W. Rep., 577. True, it has been held by this court and several others that a witness may be thus discredited on cross-examination, but there are numerous authorities, including some from our courts of civil appeals, to the contrary. See cases cited by us in Texas Brewing Company v. Dickey, supra, and the following cited by appellant: Hill v. Dons, 37 S. W. Rep., 638; Freedman v. Bonner, 40 S. W. Rep., 49; Kruger v. Spachek, 22 Texas Civ. Apr., 307, 54 S. W. Rep., 295; Van Bokelin v. Berdell, 130 N. Y., 141, 29 N. E. Rep., 254; 66 S. W. Rep. (Ark.), 432; 64 S. W. Rep. (Ky.), 954; Lewis v. Commonwealth, 42 S. W. Rep. (Ky.), 1127; Millers v. Curtis, 158 Mass., 137.

The rulings in this instance are not brought within the exception. to the general rule, since the record refutes the idea that this testimony was drawn out on cross-examination. It was not until after West, who was an important witness for appellant, had been examined in chief and cross-examined, and not until after appellant had rested and appellee had offered him as a witness, as appears from the statement of facts, that the fact of his having been indicted was proven. Maroney was not offered as a witness by appellant at all, though his testimony in the main was favorable to appellant, agreeing substantially with that of West, and the fact of his having been indicted appears to have been. drawn out on his direct examination by appellee. The bills of exception, besides showing that the testimony was introduced on the trial over objection, only show the questions, answers and objections, and do not therefore of themselves show how it was introduced, but, read in

connection with the agreed statement of facts, leave no room for the inference that it was drawn out on cross-examination, particularly as to witness Maroney. The objections stated in the bills of exception were prima facie good, and the record as a whole, so far from bringing the case within the exception to the general rule, which exception at best rests upon conflicting authority, affirmatively excludes that view, at least as to Maroney.

Another well settled rule of evidence was violated in the admission of this testimony of Maroney,-that which forbids the impeachment of the character of a witness by the party offering him.

That the evidence objected to was prejudicial will not be disputed, and its admission necessitates a reversal of the judgment.

In view of a retrial, we venture to suggest that if in the pending indictments perjury was assigned upon statements made after this controversy arose, and about the matters out of which it arose, we very much doubt the admissibility of such testimony, even when drawn out on cross-examination. Reversed and remanded.

Reversed and remanded.

JAMES A. WREN ET AL. V. AMELIA HOWLAND.

Decided June 17, 1903.

1.-Limitations-Married Woman-Coverture.

Where a married woman owning land in her separate right remained under coverture from the time she acquired the title in 1858 until her death in 1896, which was after she had instituted suit for the land, the defendants, who had gone into adverse possession during such period of coverture, could not avail themselves of limitations as a defense under the three, five or ten years statute. 2.-Deed by Foreign Guardian-Orders of Foreign Court.

The deed of a curatrix acting under the orders of a probate court of Louisiana will not convey the title of the ward to lands situated in Texas. 3.-Deed-Proof for Record by Subscribing Witness.

Proof of a deed for record made by a subscribing witness under the Act of May 12, 1846 (Hart. Dig., art. 2791) was sufficient where it stated that the witness swore that the grantor "acknowledged same to be his act and deed,” etc., instead of “acknowledged in his presence that he had subscribed and executed the same," etc., and it was not necessary that the officer should certify that the witness was known to him.

4.-Evidence-Objection Too General.

Objection to the introduction of a statement in a deed as a whole is not sufficient to raise the question of the admissibility of a specific part of the statement, and it was not error to admit the entire statement if any part of it was admissible, as the court could, upon proper request, control the objectionable portion by charge, or exclude it.

5. Same-Pedigree-Declarations in Deed.

A declaration or statement contained in a deed executed by one who has since deceased is admissible on the subject of his pedigree, which includes the facts of birth, marriage and death, and may be used as original evidence even against strangers to the title.

6. Common Source-Void Deed-Trespass to Try Title.

A void deed under which one of the parties claims in trespass to try title is admissible in evidence to show common source of title. 7.-Innocent Purchaser-Void Deed.

A person can not be regarded as an innocent purchaser of land where one of the deeds constituting an essential link in his chain of title is void. 8.-Evidence-Records of Court of Another State.

The full faith and credit required by the act of Congress to be given to the judicial proceedings of a sister State applies only to those of a court having jurisdiction over the subject matter with which it is attempting to deal, and certified copies of the proceedings of a probate court in Louisiana ordering a sale of land situated in Texas are not admissible in evidence by virtue of that act, nor could partial contents of such copies be used to prove statements therein contained.

9. Same Proof of Heirship and Pedigree.

Where defendants denied that a remote grantor of plaintiffs was a son of the patentee of the land in controversy, the pleadings in a suit for divorce in the courts of this State, brought by the wife of such patentee, in which she prayed for the custody of a minor child who was afterwards plaintiffs' remote grantor, were admissible in evidence, the wife having since died, and there being no controversy at the date of the divorce suit as to the heirship of the child.

10.—Same-Judicial Proceedings of Home Court-Certified Copy.

Such proceedings of a court of this State could, under the statute, be proven by certified copies thereof. Rev. Stats., art. 2306.