$100 par value per share, for which he had paid $50 per share, or $1,500.

Passing, for the present, the contested question as to whether the Interstate Building & Loan Association made a foreclosure sale under the mortgage before taking possession of the mortgaged property and collecting rents thereon, and before the sale of it to Hogan, we proceed to state the relations between the two defendants. These relations are as follows, viz.: In substance, that the Citizens' Building & Loan Association took over all the assets of the Interstate Building & Loan Association, and assumed all of its liabilities. This contract was evidenced by an entry on the minutes of the Citizens' Building & Loan Association of date November 4, 1896.

We now approach the only contested question of fact in this case. That question is whether the Interstate Building & Loan Association foreclosed the above-mentioned mortgage. That it sold the property to Hogan is not disputed, but the question is whether before it sold to Hogan it had by foreclosure sale acquired the title and the right to sell. It would seem that there should be no doubt existing upon a question like this; that the deed of the trustee, by its recitals and its conveying words, would make the proof desired. And, ordinarily, such is the case. But in the present case there is no deed, and we are left alone to the deposition of J. R. McCullum, every interrogatory and answer of which is made the subject of an exception.

Mr. McCullum testifies to the following: That he became president of the Interstate Building & Loan Association in 1894, and so continued up to 1895 (answer 1). That as such president he inserted an advertisement in a paper in Knoxville for sale of the land mortgaged to the association by Mrs. Mincey on October 16, 1894, and sold it on Saturday, November 17, 1894, at the court-house door, in Knoxville, to the highest bidder for cash, and that W. T. Mitchell became the purchaser, at the price of $600 (answer 2). That he was present and sold the property in person, as auctioneer (answer 3). That at the time he made such sale he made a pencil memorandum on the margin of the newspaper, showing the person to whom the sale had been made (answer 4). That the advertisement was in the following words: "Trust Sale of Valuable North Knoxville Lot. On Saturday, the 17th day of November, 1894, at 11 o'clock a. m.. at the court-house door in Knoxville, we will sell the following lot: In the Second civil district of Knox county, a lot with two houses thereon, beginning at a point on the north side of Baxter avenue, which is fortytwo feet from the beginning corner of a lot conveyed to one T. W. Flenniken by T. J. Grubb and G. W. Ray by a deed dated February 6, 1886, registered in Knox county in Book 4D, page 640; thence, with Baxter avenue, northerly 150 feet, to an alley; thence easterly, with said alley, 44 feet; thence 53 S. W.-64

southwardly 150 feet, to the point of beginning on Baxter avenue. Said lot will be sold for cash in hand, and in bar of the equity of redemption, to satisfy a debt due from Letha J. Mincey to the Interstate Building & Loan Association, pursuant to the terms of a mortgage, with power of sale, of record in Knox county, in Trust Book No. 32, page 177. October 6, 1894. J. R. McCullum, Prest. J. L. Jackson, Sec." That the advertisement was clipped from the newspaper in which it appeared, and was put on page 67 of a record book of the Interstate Building & Loan Association, and that he made on the margin of the clipping a pencil memorandum thus, "$600.00, W. T. Mitchell" (answer 5). The petitioner, Mrs. Mincey, by her solicitor of record, made an agreement, embraced in the body of the deposition, that the foregoing advertisement is a copy of the said newspaper clipping, and that there appears in pencil, just to the right, on the margin of the newspaper clipping, the figures "$600.00," and the words "W. T. Mitchell," and that these penciled words and figures are in the handwriting of the witness, "and that he made [them] at the time of said sale." The witness further testified: That at the date last referred to W. T. Mitchell was a director in the Interstate Building & Loan Association (answer 6). That the understanding between Mitchell and the association was that he was to pur.chase the property, and get a deed from the association, and then reconvey it to the as sociation (answer 7.) That the sale was in fact made in exact accordance with the advertisement (answer 8). That what actually transpired at the time was that "we met at the north door of the court house, at 11 o'clock," and the witness announced that the sale would take place for the building and loan association of the before-mentioned lot, and he read the notice or advertisement of sale, and sold the lot or real estate in question in this lawsuit, and at the time he sold it he made the before-mentioned entry upon the margin of the advertisement (answer 9).

Each of the interrogatories and answers were objected to on the hearing below, on the ground that the interrogatories were leading. We have not thought it necessary to set forth the interrogatories. It is sufficient to say that not one of them is leading, and, further, that, even if leading, the objection should have been made before the commissioner, and should have been acted on by him. The question whether an interrogatory is leading is one so purely formal that advantage ought not to be allowed to be taken of it for the first time on the hearing, when it is impossible to correct the error, the witness being no longer before the commissioner. In such cases, the proper practice is that the attention of opposing counsel to the leading character of the interrogatory should be called by an exception, and a ruling should be asked on that exception before the commissioner. If the commissioner allows the question to be asked

when it is in fact leading, the error can be corrected by the chancellor on the hearing. Likewise, if he refuses to allow the question to be asked in the form in which it is put, that can be corrected before the chancellor by retaking the deposition on that point. But practically it is a very easy matter to determine whether a question is a leading one, and usually, when an objection is made, the examining counsel, on a ruling being made against him, will restate the question in an unobjectionable form. He always has the opportunity of so doing. It is rare that counsel will obstinately refuse to do this. If he does refuse, however, and is content to go before the chancellor upon the bare question as to whether the interrogatory is leading, and he encounters an adverse ruling, he has no one to blame but himself, and his client must bear the penalty of the want of skill and caution upon the part of his lawyer. It would be an intolerable practice to allow such exceptions to be made in the first instance upon the hearing, and so take the opposing counsel by surprise. If no objection is made to the form of the question before the commissioner, we must assume that all objection thereto was waived.

There is an exception, also, to each one of the answers, that it is "irrelevant and immaterial, incompetent and inadmissible." The objection that testimony is "incompetent and inadmissible" is too general to put the court below in error. Moore v. State, 96 Tenn. 209, 213, 214, 33 S. W. 1046; Rielly v. English, 9 Lea, 20; Miller v. State, 12 Lea, 223; Crane v. State, 94 Tenn. 86, 89, 28 S. W. 317; Baxter v. State, 15 Lea, 657; Iron Co. v. Dobson, Id. 409; Druggist Cases, 85 Tenn. 449, 3 S. W. 490; Powers v. McKenzie, 90 Tenn. 167, 16 S. W. 559; Railway Co. v. Beeler, 90 Tenn. 548, 18 S. W. 391; Graham v. McReynolds. 90 Tenn. 674, 689, 18 S. W. 272: Telephone Co. v. Poston, 94 Tenn. 696, 30 S. W. 1040; Jackson v. Pool, 91 Tenn. 448, 19 S. W. 324; Garner v. State, 5 Lea, 218.

As to the objection that the testimony giv en in each and every answer is "irrelevant and immaterial," it is sufficient to say that the testimony is neither irrelevant nor immaterial.

There is a further exception that each answer is incompetent, because not the best evidence of the supposed fact or facts which it purports to state. This exception is overruled as to the first answer, no better evidence being indicated in the record than the testimony of the president himself.

As to the second answer, the further specification is made that the supposed advertisement and deed inquired of are the best evidence of the facts which said answer purports to relate. This exception is overruled on the following ground: As to so much of it as réfers to the advertisement, it is immaterial, because the advertisement appears as an exhibit to the deposition, and is admitted

by petitioner to be a correct copy of the insertion in the newspaper. And, as to so much of the exception as refers to the absence of the deed, it is sufficient to say that, while the testimony may not be sufficient to establish the fact of the sale, it is competent, as far as it goes, to show that the property was offered for sale for cash on the date mentioned, and at the place mentioned, to the highest bidder, and that a certain person became a bidder at the sum of $600. Whether this was sufficient to consummate the sale, without the subsequent execution of the deed by the trustee, is another matter. That is to say, we hold that the testimony given in answer No. 2 is competent. We do not at this point hold that it is sufficient to establish a legal sale. That will be considered later. The same objection is made to answer No. 3, and upon this we make the same ruling and for the same reason. The same objection is made to answer No. 4. This objection is overruled, on the ground that the petitioner agreed in the body of the deposition to the truth of the statement contained in answer No. 4. The same objection is made to answer No. 5. This objection is overruled, on the ground that petitioner, in the body of the deposition, agreed to the substance of the contents of said answer No. 5. The same objection is made to the contents of answer No. 6. It is overruled, because the evidence does not indicate any better source of knowledge than the testimony of the president. The same objection is made to answer No. 7. This is also overruled. The same objection is made to answer No. 8, and is overruled. The same objection is made to answer No. 9, and is overruled.

There is another objection to answer No. 8, on the ground that it purports to give the opinion and judgment of the witness instead of facts. This is not well taken. The witness purports to state as a fact that, in making the sale, he had followed the terms of the advertisement. The same objection is made to interrogatory No. 9, and is overruled.

There is another exception in the following words: "Said Mincey excepts to the agreement which is written in the body of said deposition because the supposed newspaper clipping and pencil memoranda '$600' and 'W. T. Mitchell' are irrelevant and immaterial, incompetent and inadmissible, being wholly ineffectual to convey the land in controversy, or to extinguish said Mincey's interest therein." The exception is overruled, on the ground that the petitioner cannot except to the admission of her own agreement. We do not decide at this point that there is sufficient proof to establish a legal sale. The evidence is competent. We reserve the question of its weight.

The petition states substantially all of the above facts, except those touching the foreclosure, or what is claimed to have been a foreclosure. With regard to this matter, the petition states that the mortgage was never

foreclosed; that the defendant associations, or one of them, took possession of the lot, and held possession until it was sold to W. J. Hogan, and while in their possession they received considerable rent, for which defendants should account to petitioner on settlement. The petition further charges that the petitioner has the option to repudiate and disaffirm the sale of the lot to Hogan, or to affirm it, and demand the payment of the surplus remaining after the payment of whatever may be found to be due from petitioner on said note and mortgage. The petition continues: "And petitioner does hereby elect to affirm and ratify the sale to said Hogan, provided that defendant shall be compelled to account to her for the surplus remaining after the payment of said note and mortgage, and she hereby offers to execute to said Hogan, or to said association, a quitclaim deed, conveying to him or them all of her right, title, interest, and estate within and to said lot, provided they account for and pay over all of the $1,500 which may remain after the payment of the $1,000, after applying thereto the interest, premiums, etc., so paid by the petitioner." The petition adds: "Although the deed to Hogan,was made by the Interstate Building & Loan Association, yet defendant Citizens' Building & Loan Association got the benefit of the proceeds thereof, and both associations are liable to petitioner for the $1,500 received therefor, less what she owes on her note and mortgage." The prayer of the petition is that a reference be had to the clerk and master to take and state an account between defendant association and their receiver on the one side, and petitioner on the other, charging petitioner with the sum of money loaned to her, and crediting her with all interest, premiums, and dues paid on said note and stock as partial payments, and also with the proceeds of said lot of land as of the date of the sale thereof to Hogan,that is, January 26, 1897,-and also with all the rents received therefor before the sale, and that a decree be rendered against both of said associations for the amount of the balance found due to her. An answer was filed by A. W. Burrows, receiver of the two defendants, admitting most of the allegations in the petition, but denying that there was no foreclosure, and insisting, on the contrary, that there was a legal foreclosure, and therefore that the property was the property of the defendant Interstate Building & Loan Association at the time the sale was made to Hogan, and before the rents mentioned in the statement of facts above were collected.

The main question to be decided is whether there is sufficient proof of a foreclosure, or, rather, whether the facts found above show that there had been a legal foreclosure before the sale to Hogan and before the collection of the rents. It is perceived that the substance of the proof upon this point is that the sale was advertised in a newspaper, the advertisement being dated October 16, 1894, advertis

ing the property for sale on the 17th of November, 1894, for cash, and in bar of the equity of redemption, "to satisfy a debt due from Letha J. Mincey to the Interstate Building & Loan Association, pursuant to the terms of a mortgage with power of sale, of record in Knox county, in Trust Book No. 32, page 177"; that on the 17th day of November, 1894, the president of the Interstate Building & Loan Association, who, by the terms of the mortgage, was authorized to sell the property, offered it for sale at 11 o'clock on the day above mentioned, and that at this sale W. T. Mitchell became the highest bidder, and the property was struck off to him at $600. There the matter stopped. It does not appear that the bidder paid the said sum, or that he even demanded or received a deed from the trustee or otherwise. It is perceived, also, from the statement of facts above, that the mortgage, required three insertions in a newspaper preliminary to a sale, but whether there was more than one insertion the proof does not show. It is further perceived that, after the property was so put up and bid off, the Interstate Building & Loan Association took charge of it, and rented it out, and received therefor $200 in rents; and subsequently the defendant Citizens' Building & Loan Association, which in the meantime had succeeded to the rights and liabilities of the Interstate Building & Loan Association, sold the same property, by its private deed, to W. L. Hogan, at the price of $1,500.

As to the advertisement, the presumption is that it was made pursuant to the terms of the power, and the burden of proof rests upon the petitioner to remove this presumption. 26 Am. & Eng. Enc. Law, p. 903, § 3. But as to the payment of the purchase money by the bidder, and the execution of the deed to him by the trustee, no such presumption can be indulged. Leaving out of view all questions arising under the statute of frauds, which is not pleaded in this case by the petitioner,—and, indeed, could not be pleaded by her for the bidder,the question resolves itself into the proposition that, before the bidder could demand a conveyance from the trustee, he would have to pay or tender the amount of his bid. 26 Am. & Eng. Enc. Law, p. 940. But it not appearing that the bid was ever paid or tendered, or that any deed was ever made by the trustee, we must conclude that the bidder never became entitled to the deed. In short, the legal result of the facts stated is that there was a mere offer on the part of Mitchell to buy at the price of $600, but that the offer was never made good by payment or tender of the purchase money; hence there was no legal sale, and he was entitled to no deed, and rightly received none, from the trustee.

It results from this that, when the defendant the Interstate Building & Loan Association collected the $200 rents on this property, it was using property that belonged, not to it, but to the petitioner, and she is entitled to have an account of these rents. It also results

that, when the defendant the Citizens' Building & Loan Association sold the same house and lot to Hogan, it sold property that belonged to the petitioner. The defendants have no right to complain if the petitioner adopts the last-mentioned sale, and demands a settlement on the basis of the purchase money received, inasmuch as she offers to make a suitable deed to the purchaser, Hogan, or to the defendants for him.

Let the cause be remanded to the chancery court of Knox county, with directions to settle complainant's liabilities to defendants, and vice versa, on the following basis: Let Mrs. Mincey be charged with $1,000, and interest thereon from September 1, 1893, and be creditedFirst, with the $200 rents as of the date of their collection; second, with the $1,500 as of the date of the sale to Hogan. The balance so found in her favor will be decreed a debt against both defendants, and fixed as the sum which she is entitled to file against them for pro rata distribution in the insolvent proceeding, she being allowed interest, of course, on such balance. But, as a condition of entering upon this account, the petitioner must first deposit with the clerk and master a deed, properly acknowledged, quitclaiming and conveying to said Hogan the before-mentioned real estate, and ratifying the sale made by defendant the Citizens' Building & Loan Association to him, which deed may be withdrawn by the receiver of the defendant for delivery to said Hogan, or may be delivered to said Hogan directly, if he appear in the cause and demand it. In fixing the basis of the account, we have not allowed petitioner any credit for the various sums paid by her on stock dues, premium, and interest, for the reason that, in making these payments, she but complied with the terms of her contract; and we have not charged interest, except from September 1, 1893, thus indirectly allowing her the interest payments up to that time on the $1,000. This reaches the equitable result. Let this cause be remanded to the court below for further proceedings, and the costs of this court and of the court below touching this claim will be paid out of the funds in the hands of the receiver. All the judges concur.

On Rehearing.

(April 29, 1899.)

This case was decided at a former day of the term, and an opinion was then filed. We are now asked to rehear it on one point. That is as to the consideration received by the defendant on the sale of the property to Hogan. Instead of finding as a fact, as we did in our former opinion, that that consideration amounted to $1,500, we are asked to include that point in the reference directed to the master below. In our opinion, the proof in the record is sufficient to establish the point as found heretofore, and we must decline the rehearing on that ground, and also on the further ground that no reason is given why the defendant

could not get in its proof upon this point in the court below before the cause came here, and no reason is apparent in the record. The distinct issue was made in the pleadings, and the defendant was contented to go into the trial with the proof in its present condition, and it must abide the result. The proof in the record upon the point is meager, to be sure, but it is sufficient. In substance, it is about as follows: The complainant alleged in the petition that the property had brought $1,500 on the sale to Hogan, and she was willing to adopt that sale, and make a suitable deed to Hogan. The defendant replied in the answer that, while $1,500 was the amount recited in the deed, the consideration was in fact certain stock, which was worth not exceeding $750. An agreement as to facts was filed, which recited that the consideration was stock of the face value of $3,000, and that it had cost Hogan $1,500. Then came the deed, reciting a consideration of $1,500. To this we must add the fact that the defendant, when it took the mortgage, considered the property sufficient security for a $1,000 loan; and the further fact that for two years and two months' rent it collected on the property $200, which would be about 6 per cent. on $1,500, which is a fair rental estimate. Taking all these facts together, we think it fairly proven that $1,500 was the value of the property, and that the defendant received that much value when it sold it, and we so find the facts. This opinion will be filed with our former opinion, and attached to the record as part thereof. All the judges concur.

Affirmed orally by supreme court, October 25, 1899.

PIERSON v. SANGER et al. (Supreme Court of Texas. Dec. 4, 1899.) TRUST DEED-DESCRIPTION-ACTION TO EN

FORCE JUDGMENT LIEN-PLEADING. Allegations in an answer that defendant claims title under a trust deed to his predecessors, in which the property was described as "the separate property of P. [one of such predecessors], as follows: 100 acres of land out of the W. survey, * * 420 acres out of the M. survey, *

* 160 acres out of the T. survey," and that the records of the county in which the property was situated showed that P. had owned each of the surveys named, and had conveyed to other persons certain described portions out of each survey, leaving in each the exact amount conveyed by the deed, clearly show that the land conveyed by the trust deed can be identified by extrinsic evidence, and hence the description thereof in that deed is sufficient.

Error to court of civil appeals of Second supreme judicial district.

Action by Sanger Bros. against Peter J. Pierson. Judgment for plaintiffs was affirmed by the court of civil appeals (51 S. W. 869), and defendant brings error. Reversed.

A. C. Prendergast and Gillett & Hale, for plaintiff in error. S. H. Lumpkin and Boynton & Boynton, for defendants in error.

*

*

*

BROWN, J. Sanger Bros. brought suit in the district court of Bosque county against the firm of Pierson, Peterson & Co. upon a debt, and sued out a writ of attachment, which was levied upon original surveys of land in that county, in the names, respectively, of William Winkler, 640 acres, W. B. Morris, 480 acres, Thomas Toby, 640 acres, as the property of P. Pierson. Pierson died, and administration was had upon his estate, after which judgment was entered against the firm and against the administrator, foreclosing the lien of the attachment upon the entire Winkler, Morris, and Toby tracts. This suit was filed by Sanger Bros. against Peter J. Pierson and others to enforce the lien of their judgment upon the land in controversy. Peter J. Pierson answered substantially as follows: P. Pierson, the father of plaintiff in error, was a member of the firm of Pierson, Peterson & Co., merchants, doing business in Bosque county. On the 17th day of December, 1894, the firm made a deed of trust, conveying to Frank Kell, as trustee, for the benefit of certain creditors, the property of the partnership, and contained this language: "Also the separate property of P. Pierson, as follows: One hundred acres of land out of the Wm. Winkler survey on the waters of Neil's Creek; four hundred and twenty acres out of the W. B. Morris survey, situated adjoining the above one hundred acres; one hundred and sixty acres out of the Thos. Toby survey. All of said property is situated in Bosque county, and particularly described in deeds to me of record on the deed records of the said county, and which are made a part hereof." The deed records of Bosque county showed that P. Pierson had owned each of the surveys named, and had conveyed to other persons all of the land contained in each, except 420 acres in the W. B. Morris survey, 160 acres of the Thomas Toby survey, and 100 acres in the William Winkler survey, which tracts he owned at the time the deed of trust was made. Huey & Philp, creditors of Pierson, Peterson & Co., obtained judgment against the firm, and levied upon P. Pierson's interest in all of the named surveys, and in his lifetime caused the land to be sold under execution, and bought the lands in, after which they conveyed them to Rotan Grocery Company. P. Pierson died after the sale, and subsequently the trustee sold the lands under the deed of trust, which were bought in by Rotan Grocery Company, of Waco, under whom Peter J. Pierson claims title. Plaintiffs excepted to the answer upon the ground that the description of the lands in the deed of trust was not sufficient to convey them to the trus tee. The trial court sustained the exception. The case was tried before the court without a jury, and judgment rendered in favor of the plaintiffs, which was affirmed by the court of civil appeals. The correctness of this judgment depends upon the construction of the deed of trust as to the sufficiency of

the description given to convey the land to the trustee. It is the duty of the court to so construe the deed of trust as to give effect to the intention of the parties, if that intention can be legally ascertained. Faulk v. Dashiell, 62 Tex. 646. The language of the deed of trust under which the plaintiff in error claims title is not of such a character that the court can say that the description of the land cannot be made certain by extrinsic evidence, and, taken in connection with the facts alleged in the defendant's answer, showed a good defense to the plaintiff's claim of a lien upon the land. Wilson v. Smith, 50 Tex. 365; Smith v. Westall, 76 Tex. 509, 13 S. W. 540; Hermann v. Likens, 90 Tex. 448, 39 S. W. 282. The word "separate," used in the deed of trust, designated the property thereafter described as the individual property of Peter Pierson in contradistinction to the partnership property which had been previously conveyed by that instrument. The language, "all of said property is situated in Bosque county, and particularly described in deeds to me of record on the deed records of the said county, and which are made a part hereof," had reference to and described the original surveys out of which the smaller tracts conveyed were taken. It does not appear upon the face of the paper that Pierson owned a greater quantity of land in either of the original surveys than that conveyed, but the facts alleged in the answer showed that before that time he had owned each of the original surveys, and had conveyed all of the land in each except the quantity specified in and conveyed by the deed of trust. It was competent for the defendant to prove these facts upon the trial, and thereby to give effect to the instrument. In the case of Wilson v. Smith, cited above, James Bankston owned a survey of 1,280 acres, and at various times conveyed to different people portions of that survey until his possession was reduced to 360 acres. Upon the 360 acres he had a homestead, which was not designated. A judgment was rendered against him, and execution levied upon the excess of his homestead, in which the land levied upon was described as "one hundred and sixty acres of land, being a part of the homestead tract of James Bankston, exclusive of two hundred acres, exempt by law." It was proved in that case that Bankston had owned all of the survey, and had conveyed it to other parties, as above stated. It was objected that the deed was void upon its face for want of a proper description of the land levied upon. This court said: "Apparently the court held the defendant's title insufficient because of uncertainty of description of the land sold in the sheriff's deed and in the levy. If so, we are of opinion that the court erred. Certainly the deed cannot be pronounced void upon mere inspection, for it cannot be said that it appears from the face of the deed that the land cannot be identified by the aid of extrinsic evidence." In Hermann v. Likens,