were recoverable, if at all, because it was necessary for the wife to incur them in the preservation of rights given her by the law. McClelland v. McClelland, supra; Bord v. Stubbs, 22 Tex. Civ. App. 242, 54 S. W. 634. The right to sue for and recover them, if they were recoverable as "necessaries," did not arise in favor of the wife, but in favor of the attorneys who rendered the servicesjust as it would have arisen in their favor and not in her favor, if, instead of rendering her service as attorneys, they had furnished to her food, or clothing, or medicines. It will hardly be contended that, had a dealer furnished to her such necessaries as food, clothing, or medicine, she could maintain a suit therefor against her husband. The cause of action against the husband in such a case would be in favor of the dealer alone, just as it is in this case in favor of the attorneys alone.

in so far as it decreed a recovery in appel- | suit. McClelland v. McClelland, supra. They lee's favor against appellant for the sum of $150 as attorney's fees, and in so far as it declared a lien to exist in appellee's favor against the personal property belonging to the marriage to secure the payment of said sum of $150 and the costs of the suit, and in so far as it directed that said personal property be sold in satisfaction of said sum so adjudged and said costs, are sustained. Having refused to grant a divorce to the parties, it was error for the court to render a judgment in favor of the wife against the husband for attorney's fees, and it was error at appellee's insistence to adjudge such attorney's fees and costs to be a charge against the personal property referred to, and to direct its sale in satisfaction of such fees and costs of the suit. If the indebtedness incurred by the wife was an indebtedness she was authorized to incur, it became a charge against her husband, and not against her, and would be recoverable in a suit against the husband by the parties in whose favor it was incurred. It could not be recovered by her for them. In so far as the judgment is in favor of appellee for attorney's fees, and in so far as it adjudges such fees and the costs of the suit to be a charge on personal property therein described, and in so far as it directs the sale of such property to pay such attorney's fees and costs, it will be reversed, and judgment will be here rendered denying such relief to appellee. In all other respects the judgment will be affirmed. The costs of this appeal will be adjudged against appellant.

On Motion for a Rehearing.

The motion is overruled.

WETZEL v. SATTERWHITE. Court of Civil Appeals of Texas. Jan. 24, 1910.)

1. TRESPASS (§ 68*) - BURNING HOUSE-IN

STRUCTIONS.

In an action against several defendants for unintentionally burning a house belonging to charge that if one or either of three of defendplaintiff while trespassing on plaintiff's land, a ants named, without plaintiff's consent, invited, directed, or suggested to another that he enter the house and build a fire, either and all of the parties so entering, directing, or suggesting will be liable for damages, was not error though inaccurately worded, assuming that it was intended to say all persons "so advising, directing, or suggesting," instead of all persons "so entering, directing, or suggesting," would be liable.

[Ed. Note.-For other cases, see Trespass, Cent. Dig. § 151; Dec. Dig. § 68.*]

2. TRESPASS (§ 30*)-ENTERING AND BUILDING FIRE IN HOUSE-PERSONS LIABLE. house without the owner's consent is a trespass The act of entering and building a fire in a without regard to any question of negligence, and renders any of the parties participating therein, or aiding, abetting, inciting, encouraging, of the fire, liable for the proximate consequences. or directing, by conduct or words, the building

[Ed. Note. For other cases, see Trespass, Cent. Dig. § 69; Dec. Dig. § 30.*]

3. TRESPASS (§ 20*)-BURNING HOUSE-PosSESSION AND TRESPASSES BY OTHERS-EFFECT AS TO LIABILITY.

In reaching the conclusion that the ruling made by this court is in conflict with the rulings made in McClelland v. McClelland, 37 S. W. 350, and Woeltz v. Woeltz, 57 S. W. 905, appellee either misapprehended the effect of the holding on this appeal or the effect of the holding in those cases. In McClelland v. McClelland a divorce as prayed for by the wife was granted, and she was held to be entitled to recover as against her former husband reasonable fees of attorneys representing her in the suit. A similar ruling on similar facts was made in Woeltz v. Woeltz. In the case before us the divorce sought by the parties was not granted, but, on the contrary, was refused. Because, and only because, a divorce as prayed for by them was refused, and they continued to be husband and wife, as they were before the suit was commenced, we held the recovery for attorney's fees in favor of the wife against her husband to be erroneous. Such fees were not recoverable under the statute (Sayles' Persons unintentionally burning a house Ann. Civ. St. 1897, art. 2986) as alimony to the while trespassing on land are liable, though othwife pending the suit. Ceccato v. Deutsch-land and made use of the house. er persons had theretofore trespassed on the man, 19 Tex. Civ. App. 434, 47 S. W. 739. [Ed. Note.-For other cases, see Trespass, They were not recoverable as costs of the Cent. Dig. § 48; Dec. Dig. § 23.*]

It does not matter as to the liability for entering a house without the owner's consent and building a fire in the fireplace, thereby burning the house, that the owner was not at the time in actual possession.

Cent. Dig. § 34; Dec. Dig. § 20.*]
[Ed. Note. For other cases, see Trespass,
4. TRESPASS (§ 23*) — DEFENSES-TRESPASSES

BY OTHERS.

5. TRESPASS (§ 14*)-BURNING HOUSE-LIA- | 14. TRESPASS (§ 30*)—BurninG HOUSE-PERBILITY AS DEPENDING ON NEGLIGENCE. SONS LIABLE.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106; Dec. Dig. §cember 16, 1907, appellant Wetzel, together 770.*1

It was not error to charge the jury that if the fire would assist in determining the Hale, Wetzel, and Newman, or either of amount of damage, according to the measure them, without the consent of Satterwhite, in-stated in the court's charge.

vited, directed, or suggested to Badu that he There was no error in the admission of enter the house and build a fire, either or all the testimony of Satterwhite as to his ownerof said parties so entering, directing, or sug- ship, as set out in the tenth assignment. gesting would be liable for the damages. The eleventh assignment assails the verThe charge, however, is not accurately word-dict and judgment as being without evidence ed. We assume that the court intended to to support them, and must be sustained as to say that all persons "so advising, directing, the appellant Wetzel. There being no briefs or suggesting," instead of all persons "so en- on file for appellee, we are required to take tering, directing, or suggesting," would be lia- as true the statement from the record in ble. Merely suggesting or advising Badu to appellant's brief as to the evidence, and that go into the house, without any suggestion or it constitutes all the evidence in support of advice to build the fire, would not render the verdict. If appellee was not satisfied such person so liable. It could not be rea- with the correctness of this statement, he sonably anticipated that from such sugges- should have filed a brief denying its correcttion or advice Badu would build the fire, and ness and setting cut such evidence, if there this principle was recognized in the charge. is any in the record. Rules 31, 40, 41 (94 The act of entering and building a fire with- Tex. 660-662, 67 S. W. xvi, xvii). We have, out Satterwhite's consent was a trespass, however, on account of the meager statement without regard to any question of negligence, following this assignment, examined the recand rendered any of the parties participating ord carefully, and we fail to find any evitherein or aiding, abetting, inciting, encour- | dence tending in any legitimate way to show aging, or directing, by conduct or words, the building of the fire, liable for the proximate consequences. 28 Am. & Eng. Ency. of Law, 566, 567; 1 Waterman, Tres. § 23; Wolf v. Perryman, 82 Tex. 120, 17 S. W. 772. The first and second assignments of error presenting the point are overruled.

It was not error to refuse the instruction requested as set out in the third assignment. If it had referred to appellant Wetzel alone, we think it should have been given. Nor did it matter that the owner was not at the time in actual possession of the house, or that other persons had committed trespass by entering and making use of the same without the owner's consent. That it was appellee's house was sufficiently shown by uncontroverted evidence. The fourth assignment is overruled.

The fifth and sixth assignments are overruled without further discussion, except to say that it was not a question of negligence at all. It did not at all matter how careful the parties causing the fire may have been.

The requested charge referred to in the seventh assignment should have been given. There was some evidence that the person or persons who told or suggested to Badu to make a fire did not tell him to build a fire in the house.

The eighth assignment is overruled. If error at all, it was a mere omission in the charge, and should have been supplied by a requested charge. We are inclined to think that it was error to admit, over objection, the testimony of the witness Brown as to the price of new lumber, as set out in the ninth assignment. The true measure of damages, as submitted in the court's charge, was the difference between the value of the premises just before and just after the destruction of the house. It was quite an old house, considerably out of repair. We can hardly see

that appellant, either by himself or acting with either or all of the other parties, had anything to do with the making of the fire in the house, or with advising, directing, or suggesting to Badu to make such fire. There were five persons in the party. The only testimony on this point for appellee is that of Badu and the testimony of T. B. Satterwhite, which, although hearsay (except as to Newman and Hale), was not objected to on that ground, and must therefore be considered, as to what Newman and Hale told him. Neither of them mentioned Wetzel's name as having either had anything to do with building the fire, or with suggesting that Badu build one in the house. The statement that "they" or "we" did or said so and so, with nothing to indicate that it referred to all of them, in view of the fact that there were four persons there in addition to Badu, is not inconsistent with the entire innocence of Wetzel, who cannot be condemned for his silence alone when any of the others spoke. It might serve to create a bare surmise or suspicion of his guilty participation in the trespass, but no more, and that is not sufficient-is, in fact, no evidence. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059. The fire was not built for the comfort of Wetzel, nor is there any evidence to show that he shared in its benefits. The evidence does not tend to show a common design in which Wetzel shared. He cannot be condemned on the principle illustrated by the story of old dog Tray, simply because he was in bad company. The evidence should show, or at least tend to show, that he did something by way of encouragement, advice, or suggestion which led, or helped to lead, to the building of the fire, or that there was a common design or purpose of which he knew and in which he participated that a fire be built in the house, and this must be shown by something more

2. RAILROADS (§ 72*)-CONVEYANCE OF RIGHT
OF WAY-FORFEITURE FOR BREACH OF CON-
DITION-ACTION TO RECOVER LAND-NECES-lows:

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

This suit was instituted by the appellee | Reeves took advantage of that situation to during the year 1908, for the purpose of re- demand and exact exorbitant terms from covering the strip of land occupied by the it; that there was no consideration whatright of way, the petition alleging that none ever for such requirement to charter and inof the conditions upon which the grant had corporate a railroad, as he (the appellee) been made, except the payment of the $500, well knew, the defendant being at the time had been complied with, and that by the a private manufacturing corporation and terms of the deed above referred to he was having no right or power under the laws of entitled to recover possession of the land. Texas to so incorporate and construct or The testimony was undisputed that no rail- operate a railroad as a public highway and road company authorized to engage in the common carrier; and alleges that such conbusiness of a common carrier under the laws dition was capricious, unreasonable, illegal, of this state had been incorporated to oper- impossible of performance, and void; that ate over this right of way; that the tram- it consented to the same only because the road which the appellant had constructed exigency of the situation required that apwas being used solely for the purpose of con- pellant should use said road or abandon its veying timber from the forest to its mill at mill, as there was no other way to get out Naples. Reeves testified that he was in its timber without going through plaintiff's California when the appellant commenced land. It is also alleged that at the time of grading its track over his land; that he had the conveyance from the appellee certain not given permission, and objected to their parties named were contemplating and engoing over his land, and finally secured an deavoring to organize a railroad to run from injunction to that effect; that he finally con- Naples, Tex., to Clarksville, Tex., and that sented that appellant should build its tram- appellant believed that such railroad comroad over his land if it would construct a pany would be organized and would by lease railroad track. By a railroad track he or otherwise take over the appellant's mill meant a regular passenger road for carrying road between Naples and Sulphur River, freight and passengers. He stated that the and that such road would be chartered and appellant now had what he called a "tram-operated within two years; that the parties road" across his land. They do not haul referred to went so far as to subscribe in passengers or freight for the public, and good faith for stock and prepare an aphave no depot or agent at Naples or any-plication for a charter for a railroad to be where else on the track. The road is used called the Naples and Sulphur River Road, by the mill people. That the appellant prom- to run along said route, but by reason of the ised that a railroad would be built. The occurrence of a great financial panic and road runs a little over 4,000 feet through great stringency in money matters the proj his land. The right of way is not fenced, ect was abandoned. This testimony was not nor are there any crossings or cattle guards contradicted in any particular. The court put in. He also stated that at the time he gave a peremptory instruction to return a objected to the construction of the road the verdict for the appellee. The appellant conappellant was building a road for the pur- tends that this was error, and contends that pose of hauling logs; that it was merely a the deed in question passed the title to the log road; that it was not building a trunk appellant lumber company incumbered only line railroad. with a condition subsequent, the breach of which would not operate as a forfeiture, but would give a right to specific performance, or grounds for damages. It is also insisted that the condition is unreasonable and impossible of performance because the appellant company is a private corporation, and could not under the laws and public policy of Texas either charter or operate, or cause to be chartered or operated, a railroad as a common carrier, and such condition is contrary to law and public policy and is void: but that the conveyance is good and absolute. It will be observed that the appellant relies practically upon the proposition that the condition incorporated in the deed from Reeves to it was a condition subsequent, and that, being impossible of performance, it was void, and the appellant therefore took an absolute conveyance to the right of way.

The appellee offered in evidence the abandoned pleading of the appellant, in which appears substantially the following statements: That the appellant in 1906 began the construction of its road over the appellee's land, under the impression that it had a license from the appellee to do so; that upon his objection to its proceeding a settlement was made by which the appellant agreed to pay him $500; that the sum of $500 was paid and accepted, and that it is far more than the land is actually worth. After the settlement was agreed on, but before the deed was executed, Reeves insisted that a clause should be inserted in the deed providing that defendants should charter and incorporate a railroad over said land within two years, and refused to sign the deed without such provision; that it (appellant) had a mill plant and timber in which it had a large amount of money invested, and unless it could haul its logs over said road its mill could not operate, and that

Admitting that the restrictions imposed in the deed amounted to a condition subsequent, it does not follow that it was void as being impossible of performance. It could