dence showing a contrary intention. In these circumstances any other construction of the deed would render it wholly inoperative, or, as said by Judge Gaines in the case of Lewis v. Simon, 72 Tex. 470, 10 S. W. 554, "would be equivalent to holding that it passed the title from the community to the community; or, in other words, that it passed nothing." Story v. Marshall, 24 Tex. 306, 76 Am. Dec. 106; Lewis v. Simon, 72 Tex. 470, 10 S. W. 554; Swearingen v. Reed, 2 Tex. Civ. App. 364, 21 S. W. 383; Hunter v. Hunter, 45 S. W. 820; Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825. This construction cannot, however, be placed upon the deed from Barry to appellant. When a third party conveys to the wife by a deed which does not in terms convey to her separate use, nor show that the consideration was paid out of her separate estate, the title so conveyed vests prima facie in the community. If the consideration in such case was paid out of the wife's separate estate, or if the intention of the grantor was to convey the property to the wife for her separate use and benefit, these facts could be shown, and in such case the title would vest in the separate estate of the wife. Appellant concedes that upon the face of the record the title to the property is in the community, and that to entitle her to recover in this suit she must show that appellee intended by the conveyance to Barry, and from Barry to appellant, to give her the property in her separate right. The trial court finds that this was not the intention of the parties, but their intention was to have the title to the property placed in appellant merely for the purpose of preventing any attempt upon the part of appellee's creditors to subject it to the payment of his debts; and we think this intention must determine the rights of the parties in the property.

and it was not the intention of my husband that I should have the property, yet because he did intend that the deed should place the apparent title in my separate estate, the property is mine." We do not think this contention is sound. The second objection to the judgment is also untenable. The testimony was conflicting upon the question of the intention of the parties, but the evidence is sufficient to sustain the finding that it was agreed and understood, by both appellant and appellee, that appellant was not to have the property, but that the title was to be placed in her for the sole purpose of preventing appellee's creditors from attempting to subject it to his debts. We think, if the property had been conveyed to her separate use under this understanding, she would hold it in trust for appellee's benefit.

Appellee had no intention of defrauding his creditors in making said conveyance. The property was his homestead, and he had no intention of abandoning it at the time the conveyance was made. Under these facts, if the title had been in fact placed in the appellant for the purpose of protecting the homestead, appellee would not be denied the right to recover the property thus held in trust for his benefit. Newman v. Newman, 86 S. W. 635; Rivera v. White, 94 Tex. 538, 63 S. W. 125.

We think the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.

COTULLA v. URBAIN.†
(Court of Civil Appeals of Texas. Feb. 9, 1910.
Rehearing Denied March 9, 1910.)
180*)-PLEAD-

1. LIMITATION OF ACTIONS
ING LIMITATIONS-DEmurrer.

face of the petition that more than four years
In a suit on a note, if it appears upon the
had elapsed since its maturity, the petition is
subject to exception.

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 670-675; Dec. Dig. § 180.*]

2. LIMITATION OF ACTIONS (§ 190*)-PLEADING

IN AVOIDANCE OF DEFENSE.

A supplemental petition may contain allegations of new facts not before alleged in reply to those alleged by defendant, and where, in an action on a note brought more than four years after maturity, defendant pleaded limitations. plaintiff could allege in a supplemental petition facts constituting a new promise to pay by defendant made less than four years before the bringing of the action.

If the deed had by its terms conveyed the property to appellant in her separate right, still it might be shown that she took the title upon an express trust, and held it for the benefit of appellee or for the use and benefit of the community estate, but we do not think the rights of the parties are the same as they would be had the deed conveyed the property to appellant's separate use and benefit. In such case, no express trust being shown, appellee would be estopped to claim that he did not intend to give the property to his wife. The deed to appellant does not convey the property to her separate use, and it seems to us that it would be an unreasonable extension of the doctrine of estoppel to hold that, because appellee intended it should contain such recital, he will not be heard to say it was not his intention to give her the property. Estoppel arises from words or acts, and not from intention alone. Upon the An action on a note brought more than four facts found by the trial court appellant's years after its maturity is barred by limitacontention is, in effect, this: "While the deed [Ed. Note.-For other cases, see Limitation of on its face gives me no title to the property, Actions, Dec. Dig. § 25.*]

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 698, 703; Dec. Dig. § 190.*]

3. LIMITATION OF ACTIONS (§ 25*)-STATUTE APPLICABLE-DEFENSES-BILLS AND NOTES.

tions.

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

Plaintiff's action on a note is not barred

because more than four years elapsed from the date of the writings containing a new promise to pay the note to the time of filing plaintiff's first amended original petition, where the promises were pleaded in his previous supplemental petition filed within four years after they were made.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*] 5. LIMITATION OF ACTIONS (§ 190*)-PLEADING IN AVOIDANCE OF DEFENSE.

4. LIMITATION OF ACTIONS (8 127*)-PLEADING [ed his first supplemental petition, setting out -BILLS AND NOTES. four instruments in writing, signed by defendant, dated, respectively, December 9, 1904, January 27, 1905, February 11, 1905, and May 9, 1905, each of which was alleged to contain a new promise made by him to pay the note sued on. To this amended supplemental petition the defendant on November 30, 1908, filed his second amended supplemental answer, which contained exceptions to said pleading of the plaintiff, a general denial, and a plea to the effect that the writings set out therein had no reference to the note sued on, but related to a debt that defendant owed the Milmo National Bank, to whom said writings were addressed. On May 11, 1909, the defendant's exceptions contained in his original answer to plaintiff's original petition were heard and sustained by the court, whereupon the plaintiff, by leave of the court, on May 12, 1909, filed his first amended original petition, in which he alleged all the facts contained in his origThe deinal and supplemental petitions. fendant then, by his third supplemental answer, filed May 13, 1909, specially excepted to said amended original petition, pleaded a general denial and the four-year statute of

In an action on a note brought more than four years after its maturity, plaintiff's supplemental petition alleging facts constituting a new promise to pay the note by defendant, made less than four years before the bringing of the action, was a complete answer to defendant's defense of limitation, and stopped the running of the statute.

[Ed. Note.-For other cases, see Limitation

of Actions, Cent. Dig. § 697; Dec. Dig. § 190.*] 6. APPEAL And Error (§ 742*)—ASSIGNMENTS OF ERROR-NECESSITY FOR PURPOSE OF RE

VIEW.

Where an assignment of error is not submitted as in itself a proposition, and it is clear that neither of the propositions asserted under it can be evolved from nor have any relation to it, it will not be considered on appeal.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 742.*]

Appeal from District Court, Webb County; limitation. The exceptions thus interposed J. F. Mullally, Judge.

Affirmed.

to plaintiff's first amended original petition were overruled, and the case was tried before a jury, and upon its verdict judgment was entered in favor of the plaintiff for the

Action by Albert Urbahn against Joseph Cotulla. From a judgment for plaintiff, defendant appeals. A. Winslow, for appellant. Atlee & Atlee, amount, principal, and interest due on the for appellee.

note.

It will be seen from the foregoing stateNEILL, J. This suit was brought Octo- ment that more than four years had elapsed ber 21, 1907, by Albert Urbahn against Jo- after the maturity of the note before plainseph Cotulla upon a promissory note executed tiff's suit was filed, which, if a new promise on December 29, 1898, by him to the plaintiff had not been pleaded, would have rendered for the sum of $4,152.50, payable February the petition subject to the exception that it 10, 1899, at the Milmo National Bank, in appeared upon its face that it was barred by Laredo, Tex., with interest from maturity the statute, and the action would have also at the rate of 10 per cent. per annum. On been defeated by defendant's plea of limitaMarch 14, 1908, the defendant answered by tion. The plaintiff, however, in his suppledemurring to plaintiff's original petition, on mental petitions, pleaded the defendant's the ground that it appeared from the face new promises in writing to pay the notes. thereof that his action was barred by the It is contended by the defendant that the four-year statute of limitations, and by supplemental petition did not stop the runpleading such statute in bar of the action. ning of the statute, and that an exception Then, on November 11, 1908, the plaintiff, should have been sustained to it for that reaby supplemental petition, pleaded that on or son. A supplemental petition may contain about February 15, 1905, less than four years allegations of new facts not before alleged prior to the date of filing his original peti- by the plaintiff in reply to those alleged by tion, defendant, by a written instrument sign- the defendant. Rule 5 of the District Court ed by him, acknowledged such debt to be (67 S. W. xx); Standifer v. Bond Hardware just, and expressly promised plaintiff in such Co., 94 S. W. 144; City of San Antonio v. instrument to pay the same, whereupon the Wildenstein, 109 S. W. 239. When the dedefendant on November 14, 1908, filed his fendant pleaded the statute of four-year limfirst supplemental answer, in which he ex-itations, the proper practice was for the cepted to plaintiff's first supplemental peti- plaintiff to allege by supplemental petition tion, renewed his plea of limitation, and any facts in reply which would, if true, depleaded non est factum as to the alleged feat such plea. And it was unnecessary for writing containing the new promise. The him in doing so to remould his entire pleadplaintiff then, on November 16, 1908, amend-ings, but only to allege the facts constituting

the new promise of the defendant to pay the | first question, answer 'Yes.' To second quesnote. Having specifically alleged such facts, tion, answer 'Yes.' To the third question we and four years not having elapsed from the find that the defendant's letters dated Detime any of the alleged promises in writing cember 9, 1904, January 27, 1905, February were made until the date of such supple- 11, 1905, and May 9, 1905, referred to said mental petition, the reply of plaintiff to de- note due plaintiff, as well as to a note or infendant's plea of limitation was a complete debtedness due to said bank." The evidence, answer to such defense, and stopped the run- in our opinion, was reasonably sufficient to ning of the statute. Howard v. Windom, 86 support the verdict. We therefore overrule Tex. 560, 26 S. W. 483; Wells v. Moor, 42 the assignments, and affirm the judgment. Tex. Civ. App. 47, 93 S. W. 220. Affirmed.

And the jury returned the following verdict: "We, the jury in the above-entitled cause, find for the plaintiff as follows: To •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

6. TRIAL (8 250*) — INSTRUCTIONS BILITY TO ISSUES.

APPLICA- the same resulting in throwing him down
and in dragging him after he fell. It was
"Plaintiff was thrown with
alleged that:
great force and violence down on the step or
footboard of the car, his head and body strik-
ing the said board or plank heavily and with
great force, and, partially on said board, and
with his feet on the ground, plaintiff was
dragged 30 or 40 feet before the car was
stopped; that defendant, so starting the car
while plaintiff was in the act of getting in it,
threw plaintiff as aforesaid, and by continu-
ing the movement of the car dragged plaintiff
as aforesaid, and thereby seriously and per-
manently injured him," etc. These allega-
tions set up one ground of negligence, namely,
moving the car while appellant was in the
act of getting on the car, and then gave the
results; one being dragging him 30 or 40
feet. The court restricted the jury to that
result of moving the car by which appellant
was thrown to the footboard, omitting any
mention of dragging him along the street.
There was evidence tending to show that ap-
pellant was dragged across the street. Ap-
pellant may not have been injured by being
thrown down, and yet may have been serious-
ly injured by being dragged for such a dis-
tance as he claimed he was dragged. The
court should not have excluded from the con-
sideration of the jury any consequence of
moving the car that was alleged by appel-
lant, and sustained by the evidence. It
amounted to an assumption upon the part
of the court that the dragging did not take
place, or, if it did, that it did not injure ap-
pellant. The charge, in thus withdrawing
from the jury the chief result of moving the
car, may have prejudiced the case of appel-
lant. The error is intensified in another part
of the charge, where the court refers to ap-
pellant "falling from said car," although
there was neither pleading nor evidence as
to a fall from the car. The issue as to appel-
lant being dragged was not referred to in the
charge. The court did not have the authority
to withdraw the issue as to the result of ap-
pellant being negligently dragged 30 or 40
feet from the jury, and appellant has the
right to attack the charge on that ground,
without having requested a special charge on
the subject. Scott v. Railway, 93 Tex. 625,
57 S. W. 801.

There is no merit in the fifth and sixth assignments of error, and they are overruled.

We believe the seventh assignment of error, which assails that part of the charge, hereinbefore referred to, which limited the recovery to injuries sustained in falling from the car, is well founded. It had the tendency to lead the jury off on an issue not made by pleadings or evidence.

In an action for injuries from the sudden starting of the car as plaintiff was getting on, it was error in the charge to refer to plaintiff's falling from the car, where there was no averment or evidence that he did so.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 584-586; Dec. Dig. § 250.*] 7. APPEAL AND Error (§ 662*)—RECORD-CON

CLUSIVENESS OF RECITALS.

Where the record shows that a special charge was requested by both parties, and the -charge, although signed by defendant's attorney alone, stated that a verbal request that it be given was made by plaintiff's attorney, plaintiff cannot complain of it, as the reviewing court is bound by the recital made by the trial court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2851; Dec. Dig. § 662*.]

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by Thomas Settle against the San Antonio Traction Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

C. S. Robinson, for appellant. Ogden, Brooks & Napier, for appellee.

FLY, J. Appellant sued appellee to recover damages alleged to have arisen from injuries inflicted on his person through the negligence of appellee in starting its car while he was in the act of getting on the same. A trial by jury resulted in a verdict and judgment for appellee.

The first assignment of error is: "The verdict is contrary to the law and against the evidence." The assignment is obnoxious to rules 24, 25, and 26 for Courts of Civil Appeals (67 S. W. xv), and will not be considered. Harvey v. Ogilvie, 66 Tex. 185, 18 S. W. 448; Garcia v. Gray, 67 Tex. 282, 3 S. W. 42; Siddall v. Goggan, 68 Tex. 708, 5 S. W. 668; American Legion of Honor v. Rowell, 78 Tex. 677, 15 S. W. 217; Bonner v. Whitcomb, 80 Tex. 178, 15 S. W. 899.

The second assignment of error, which assails the action of the court in overruling the special exception to the answer of appellee, is not followed by a statement, as required by the rules, and will not be considered.

The court in the general charge placed the date of the accident "on or about the 15th day of May, 1908," while the evidence showed that it occurred on May 16, 1908. In the petition the date was fixed as "on or about 16th day of May, 1908." The statement of the date in the charge is made the subject of the third assignment of error. The statement thereunder that the petition fixed May 16th and the charge May 15th is not borne out by the record. It is inconceivable that a jury should have been influenced to find against appellant by the statement as to the date of the accident being on or about May 15, 1908, instead of May 16th.

The negligence alleged was starting the car while appellant was in the act of getting on

The eighth, ninth, and tenth assignments are overruled, and the eleventh is in effect repetition of the fourth, which has been considered.

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 126 S.W.-2