text:
    Edward Perry v. Y. S. Coleman et al.
    (Case No. 2635.)
    1. Pre-emptions.— The act of May 26, 1873, entitled “An act for the benefit of actual occupants of the public land,” extended the time in which to make affidavit of settlement and return field-notes to the general land office, twelve months from its passage, to all claimants who had occupied or who were occupying public lands. It revived the dormant equities of pre-emptors who had failed'to return affidavit and field-notes within the required time, and they had the right to proceed under the pre-emption laws. The location of a land certificate on land so occupied was invalid as against the pre-emption.
    Appeal from Grayson. Tried below before the Hon.' J. M. Lindsay.
    June 30, 1874, Perry brought an action of trespass to try title against Y. S. Coleman, D. L. Coleman and H. A. Coleman for a tract of one hundred and sixty-one and one-half acres of land described in the petition, and alleged to have been patented to plaintiff March 26, 1874, under a file made August 25, 1873.
    The defendants pleaded that on February 11, 1871, they in good faith settled upon a tract of land described substantially as in the petition, but not stating the number of acres, same being vacant public domain;-that continuously from that date they have resided thereon, having made thereon valuable improvements; that on August 19,1873, they made their affidavit, supported by oath of two credible witnessés, as required by an act entitled “An act for the benefit of actual occupants of the public lands,” approved May 26, 1873, and returned the same to the general land office, as required by law; that they, on August 25, 1873, caused the same to be surveyed by the county surveyor, and had field-notes regularly returned to the land office, and that plaintiff had full knowledge, etc.
    A jury was waived, and judgment rendered for the defendants. The plaintiff appealed, assigning error: (1) the judgment is contrary to law, and (2) it is contrary to the evidence and unsupported by it.

      The agreed statement upon which the trial was had, and which is made the statement of facts, is as follows:
    1. That defendants settled upon the land in controversy in good faith on the 11th day of February, A. D. 1871, and have remained in possession ever since, improving the land.
    2. That on the 19th August, 1873, defendants made their affidavit of settlement before the district clerk of Grayson county, and had the same filed in the surveyor’s office of said county, in accordance with the provisions of an act entitled “ Ah act for the benefit of actual occupants of the public land,” approved May 26, 1873.
    3. That afterwards, '25th August, 1873, defendants had said land surveyed by virtue of this previous affidavit, etc., by the "lawful surveyor of Grayson county, and returned said field-notes immediately to the general land office of the state of Texas, where they have remained ever osince; and filed their affidavit, as prescribed by section 1 of said act, in the general land office in accordance therewith, supported by two credible witnesses.
    4. It is agreed that plaintiff filed on said land on the 25th day of May, 1873, by virtue of the bounty warrant Ho. 351, issued to Francisco Garcia; that said Garcia certificate was a valid, subsisting claim against the state for land, and the plaintiff was and is the legal owner thereof.
    5. That plaintiff, on the 14th day of June, 1873, had said land surveyed by virtue of the above named certificate, and, within the time prescribed by law, had said field-notes returned to the land office.
    6. That, on 26th March, 1874, the land was patented to plaintiff, as assignee of said Francisco Garcia, by virtue of the above mentioned certificate, by letter patent Ho. 512, vol. 14, class Bounty; which patent is made a part of this statement of facts and filed (patent inserted, and calling for one hundred and sixty-one and a half acres).
    7. That the agent of plaintiff, at the time he filed upon said land, knew that defendants were occupying the same; and; at the date of the issuing of said patent to plaintiff, his agent knew that the affidavit and field-notes of defendants were on file in the general land office of Texas.

      Gunter dc Combs and Hancock, West & North,, for appel-' lant.

      Throcl&morton c& Browns, for appellees.
   A. S. Walker, J.

The construction and effect to be given to “An act for the benefit of actual occupants of the public lands,” taking effect May 26, 1873, must determine this case.

Under the constitution of 1869, and laws passed carrying it into effect, the defendants settled upon the land. They occupied it, making improvements upon it. These acts were done in good faith.

The “ act to regulate the disposal of the public lands of the state of Texas,” of August 12, 1870, and amended May 16, 1871, required such occupants claiming homesteads “to have the same surveyed and the field-notes returned to the land office within twelve months after settling upon the same,” etc. (Pas. Dig., 7046).

The defendants had not complied with the law in having the survey made and field-notes returned, etc.

In this state of facts, and with full knowledge of the rights, if any, of the defendants to the land, the plaintiff made his file May 25, 1873, under which patent was subsequently issued.

Did the act of May 26,1873, revive the equity of defendants, so as to take the land, by their subsequent compliance with the law in making their survey, returning field-notes, and making the required proof, etc. ?

Hemphill, O. J., in Jennings v. De Cordova, 20 Tex., 514, in discussing the effect of the act' of August 16, 1856, to extend the time in which pre-emption claimants could make surveys, etc., as against an intervening locator, held, “ The pre-emption claim is in effect recognized as a dormant equity, as one which had been a valid right to the land, but which from delay had lost its force; which was not extinguished, but by indulgence on the part of the grantor, could be restored to life and vigor; and which, as long as the government retained the fee in the land, might be consummated into a perfect title. If, in the mean time, and before the passage of this act, the land had been located, surveyed and patented by another, the pre-emptionist would have lost all claim, and the statute could afford him no relief; but if the patent to the opposing claim had not issued prior to the statute, the original right of the pre-emptionist would be revived in all its force, and effectually preclude further action, and defeat the right under the location.” Citing Warren v. Shuman, 5 Tex., 441, etc., etc.

The effect of this reasoning is not weakened by the fact that the case could probably have been decided upon other grounds.

The same doctrine as to the power of the state to revive a dormant equity as against a subsequent locator is given by Judge Roberts in Hamilton v. Avery, 20 Tex., 634 and 635, citing from the opinion.

“ This court has held that the state, by a legislative act, may waive its right to exact of the citizen a strict and full performance of any one or more of his duties which have been imposed on him by these rules ” (relating to process in obtaining lands). Citing the eases of Hart v. Gibbons, 14 Tex., 216; Warren v. Shuman, 5 Tex., 456; Lewis v. Mixon, 11 Tex., 570, and Jennings v. De Cordova, above, the opinion proceeds:

“ In all the cases of this character, the right of the party had legally attached to the land, by the performance of duty in some of the steps; by a legal survey, pre-emption settlement, etc.; and this is what is called an equity. As soon as a party was in default by not performing a further duty enjoined upon him', the obligation of the government to make a grant to that land ceased to be imperative. Hone of its officers could be enforced by judicial process to recognize it as a subsisting right.

“It was discretionary with the government whether it would grant the land to another or not, and whether or not it would waive the non-performance of the neglected duty and give further time to do it. But if it chose to waive it, and in the mean time a third party had surveyed the land, without getting a perfect title, during the dormancy of the original right, here we are presented two claimants to the land, equal in right so far as the performance of duty in the steps of acquisition are concerned; and it is reasonable, in deciding between them, that the older right, other things being equal, shall be preferred.”

In construing the effect of an act confirming certain patents in the M. & P. railroad reservation, passed January 10, 1860, Wheeler, C. J., in holding that the act validating the patents issued during the existence of the reservation had-no retroactive effect, remarks: “As between these parties the defendant’s right had its inception with the passage of the act in question. His (the holder of the patent held to have been illegally1' issued) location and patent being void, there was nothing on which it (the act) could operate by relation back to any antecedent time. The plaintiff’s (the new locator subsequent to the lifting of the reservation) was prior in time and superior in right, and must therefore prevail.” Sherwood v. Fleming, 25 Tex. Sup., 429.

This was followed and approved in Wright v. Hawkins, 29 Tex., 471, in favor of a locator and against a patent issued by direct legislative act upon a survey made during the existence, of the reservation and within its limits.

This distinction between the two classes of cases is recognized in Miller v. Hays, 42 Tex., 485. The pre-emptor, who by settlement, occupancy and improvements on vacant land, has commenced the series of acts designated as conditions to the grant to him, and those who have no claim nor such equity in the land, and who may be made the beneficiaries of legislative favor, as against adverse locations.

Beeves, J., in arguing says: “The plaintiff’s claim does not come within the protection of the decisions referred to in the brief for him. Jennings v. De Cordova, Cravens v. Booth, etc. In those cases the settlement and improvement had been made during the time the statute donating lands to settlers was in force, but the claimant had failed to comply with the statute and was relieved by subsequent legislation. ... In such cases the settler had such equities as would prevail over a survey made for another party in the interval between the old law and the passage of the relief law.”

Add to these cases the reasoning of Judge Moore in Johnson v. Eldridge, 49 Tex., 523, that “ the actual settler and occupant of the soil has always been regarded with peculiar favor, both by the legislature and the courts. Statutes giving pre-emptions and laws for the protection of actual occupants have always been construed most liberally in favor of such pre-eraptors and occupants,” etc. “ Actual settlers and occupants are always favored by our laws.” Justice Gould, in Summers v. Davis, 49 Tex., 554. “ Remedial acts should be construed liberally.” Potter’s Dwarr. on Stat., 231. By giving a liberal construction to the act of May 26, 1873, it can be regarded as extending the time for twelve months from its date to all claimants who had occupied public lands, and were occupying the same, subject to such occupancy, under existing laws (evidently as to continuity, good faith and duration), to have the land so occupied surveyed and the field-not'es returned to the general land office. Ho exceptions exist in the act as to the extent of its operations or as to rights secured.

Following this train of decisions, the right of defendants to proceed under the pre-emption or homestead laws was restored. Their dormant equity being revived, plaintiff’s location became invalid as against the pre-emption.

In this examination the following authorities have been consulted. We find nothing in them inconsistent with or adverse to the right of the legislature to extend the time in favor of the pre-emptor to comply with conditions in obtaining his title when such exemption wTas granted before the issuance of a patent to an adverse locator:

Hosner v. De Young, 1 Tex., 764; Trimble v. Smithers, 1 Tex., 790; Howard v. Perry, 7 Tex., 266; Warren v. Shuman, 5 Tex., 456; Lewis v. Mixon, 11 Tex., 570; Gibbons v. Hart, 14 Tex., 216; Cravens v. Booth, 17 Tex., 273; Jennings v. De Cordova, 20 Tex., 514; Hamilton v. Avery, 20 Tex., 634; Teel v. Huffman, 21 Tex., 782; Fowler v. Alred, 24 Tex., 185; Sherwood v. Fleming, 25 Tex. Sup., 428; Todd v. Fisher & Miller, 26 Tex., 239; Kohlhass v. Linney, 26 Tex., 334; Spier v. Lamon, 27 Tex., 216; Wright v. Hawkins, 28 Tex., 471; Pain v. Miller, 35 Tex., 79; Turner v. Ferguson, 39 Tex., 508; Miller v. Hays, 42 Tex., 479; Johnson v. Eldridge, 49 Tex., 523.

[Opinion delivered May 24, 1880.]

We do not regard the excess in quantity as stated in the petition as sufficiently shown in the record, or, if so, that it would render void the pre-emption or homestead claim. The quantity'of acres included in the survey, as described in the answer and as in the judgment, is not given. The patent in evidence recites that the quantity is one hundred and sixty-one and one-half acres. The actual airea covered by the lines, as given in the field-notes, is not shown. Before patenting, if the excess exists and was of sufficient importance under the rules of the land office, the survey would be corrected so as to reduce its quantity.

There being no error in the judgment, it should be affirmed.

Affirmed.


source: Caselaw Access Project

author: Walkeb, P. J.

license: Public Domain

text:
    William B. Aiken v. Hale & McDonald.
    (Case Ne. 2931.)
    I. Statute of frauds — Specific performance — Parol agreement to CONVEY.—Land located, surveyed and ready for patent, has; in contemplation of law, been acquired by the owner of the certificate, and a verbal agreement to convey an interest in it to one who procures a patent thereon is not an agreement between the parties whereby each would be entitled to a designated portion, but is within the statute of frauds, and specific performance cannot be enforced.
    3. Pleading, — The objection that an agreement for the sale of land was verbal may be raised by demurrer, if the fact appears from the petition (5 Tex., 552); and where the defendant pleads general issue, the burden is upon the plaintiff of proving a valid agreement capable of being enforced, 29 Tex., 411,

      Appeal from Lamar. Tried below before the Hon. John C. Easton.
    The opinion states the facts.
    Maxey, Lightfoot & Gill, for appellant.
    Bennett, Ballinger <& Bennett, Dohoney c§ Bilis, H. D. McDonald and D. S. Scott, for appellees.
   Walkeb, P. J.

This was a suit brought by the appellees against the appellant, for damages for the breach of a verbal contract respecting land; by a subsequent amendment of the original petition, the plaintiffs prayed for a specific enforcement of the contract, whereby one-third of the land should be decreed to them under the contract, and also alternatively praying for their damages, if they were not entitled to a specific performance of the contract.

The contract between the parties above referred to, as described and set forth in the plaintiffs’ petition, was in effect as follows: W. B. Aiken stated to the plaintiffs'that he and one W. M. Campbell jointly had purchased from a certain assignee in bankruptcy, at a bankrupt sale, a tract of land consisting of seven hundred and sixty-two acres, situated in Grayson county, Texas, to wit: seven hundred and sixty-two acres surveyed for Henry D. Woodsworth, assignee of Geo. H. Hall, by virtue of duplicate, dated April 17,1847, Ho. fif, issued by Thomas W. Ward, commissioner of general land office, it being the unlocated balance of said Hall’s head-right of one thousand two hundred and eighty acres, and situated on the east fork of Trinity waters; beginning at the southwest corner of Page Stanley’s six hundred and forty acre survey, thence, etc., giving fully the field-notes of said tract of land.

“ That said defendant stated that he did not know anything about the land, or the title thereto, except as has been stated, and that he desired the plaintiffs (who were attorneys at law) to ascertain whether or not his and Campbell’s title was good; and, if not, to take whatever legal steps might be necessary to perfect it. Plaintiffs allege that, through correspondence with other attorneys at law at Sherman, Grayson county, they obtained an abstract of the title to said land, and on the 16th day of May, 1872, presented the same, with other information connected with the same, to the defendant, all of which is made an exhibit to the petition.” . . . “ Whereupon the defendant said that if we (the plaintiffs) would cause to be issued, or procure a patent from the state of Texas to said IT. D. Woodsworth, his remote vendor, in consideration therefor he, defendant, would grant and convey to plaintiffs one undivided one-fourth part of his half of the land described, which would be ninety-five and one-quarter acres thereof; that he was satisfied his title would be good if the patent be issued to Woodsworth.”

“Plaintiffs alleged an acceptance of said proposition” (which was verbal) “ at once.” . . . The petition alleged that they had complied with their undertaking; causing patent to issue as was contemplated by the contract.

The petition made all further essential allegations of demand of defendant for compliance with his promise to convey to them the said one-fourth; his refusal to do so, together with prayers for relief, in original and amended petitions, as has been already stated.

The defendant answered by general demurrer, and excepting specially because the amended petition “ sets up a verbal contract for a specific performance;” a general denial, and an answer to the facts, which specially controverts plaintiffs’ allegations as to their compliance with their contract. The demurrer of the defendant, together with his exceptions, were overruled by the court. The cause was submitted to a jury, who found a verdict for the plaintiffs for one-fourth of the undivided half of the land owned by the defendant; upon which the court decreed the same to the plaintiffs.

Motions for new trial and in arrest of judgment were made by the defendant, and were overruled; who then appealed, and assigns numerous grounds of error, among which are these, viz.:

The overruling of defendant’s demurrer and exceptions; and the overruling defendant’s motion for new trial for the reasons therein stated.

Under the view -which we take of the case, we shall not deem it necessary to state the record more fully than we have done, nor to consider any other assignments of error than those which we have designated.

The important and decisive question involved in this case is whether the contract relied on by the plaintiffs is or is not within the statute of frauds. It was presented properly by the defendant’s pleadings; the petition alleged that the contract was verbal. The objection that an agreement for the sale of land was merely verbal, if the fact appears from the petition, may be raised by demurrer. Garner v. Stubblefield, 5 Tex., 552. And where the defendant pleads the general issue, and denies the agreement in toto, he throws on the plaintiff the burden of proving a valid agreement, capable of being enforced. Patton v. Rucker, 29 Tex., 411; citing Ridgway v. Wharton, 3 DeG., McM. & God., 689; Ontario Bank v. Root, 3 Paige, 378; 6 B. Mon., 104; 2 Pars, on Cont., 548, note. Thus it is seen the question is fully made and arises under defendant’s pleadings, both upon the demurrer and upon the facts and merits of the case on the trial before the jury.

The first section of the statute of frauds provides that no action shall be brought . . . upon any contract for the sale of lands, tenements or hereditaments, or,” etc., . . . “ unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith, or by some person by him lawfully authorized.”

The contract relied upon by the plaintiffs was an agreement to convey to the plaintiffs a portion of the land when it should be patented, according to the other conditions attached thereto; and the true inquiry is whether the same constituted an agreement between the parties whereby they would acquire together certain land, and thereafter or thereupon the plaintiffs should be entitled to a designated portion of the same. If it allows of that interpretation, under numerous decisions of our supreme court, the contract would clearly not fall within the terms or meaning of the statute. James v. Fulcrod, 5 Tex., 512.

If the land is to be acquired, the party who obtains it in pursuance of such a contract holds the legal title in trust for both. Such parol contract thus to acquire land is valid. James v. Fulcrod, supra; Watkins v. Gilkerson, 10 Tex., 350; Ross v. Armstrong, 25 Tex. Sup., 355; Smock v. Tandy, 28 Tex., 132.

In Gibbons v. Bell, 45 Tex., 423, the court clearly discriminates the ground upon which such a contract is withdrawn from the influence of the statute of frauds; citing some of the above cases, and also Miller v. Roberts, 18 Tex., 19, and Evans v. Hardeman, 15 Tex., 480; Hemming v. Zimmerschitte, 4 Tex., 159, and De Cordova v. Smith, 9 Tex., 129. The court said, “ a contract by which parties agree to acquire land together, one furnishing the certificate, and the other the labor and expense of surveying and patenting it, is not a contract for the purchase and sale of land by one to the other, but, as has been frequently held by this court, it is an agreement by which they are to acquire the land jointly.”

It may also be partitioned by parol agreement to do so. Stuart v. Baker, 17 Tex., 417; Houston v. Sneed, 15 Tex., 307.

“ The equitable title of the locator, who has fulfilled all-stipulations on his part, is similar to that of a vendee under a bond for title, when the entire consideration has been paid.” Gibbons v. Bell, 45 Tex., 423.

All the cases, from James v. Fulcrod, 5 Tex., 512, down to the present time, which have maintained agreements relating to lands as not having been within the operation of the statute of frauds, will be found to be entirely consistent with the foregoing exposition of the doctrine contained in the case of Gibbons v. Bell, supra. And not one of them will be found to encourage the idea that an agreement to convey lands already located, surveyed, and ready for patent, would be embraced within their scope and meaning; lands thus situated have already been acquired by the locator and owner of the certificate, if the latter is genuine, and the survey a valid one, and are not the subjects of agreements of that kind, so far as relates to obtaining title from the government. “ All certificates for headrights, land scrip, bounty warrant, or any other evidence of right of land, recognized by the laws of this government, which have been located or surveyed, shall be deemed and held as sufficient title to authorize the maintenance of actions of ejectment, trespass, or any other legal remedy given by law, all laws to the contrary notwithstanding.” Pasch. Dig., art. 5303.

“ Our courts have recognized a survey, by virtue of a valid certificate, as a valid right; a right of property, as fully as any other rights. . . . It is recognized by the government as the property of the locator and his assigns, and not public domain, by being taxed and sold for taxes, the same as other lands: ... It gives a right which is the subject of possession; of purchase; and of inheritance. It is sold under execution, and administered in the probate court. It is regarded in the community as possessing but little less marketable value than patented land.” Hamilton v. Avery, 20 Tex., 635. The recognition by our courts of this right in and to the land by virtue of the location and survey thereof by virtue of a certificate, and right to hold, possess and sue for it, or for injuries to the owner’s rights thereto, and to compel even the issuance of a patent thereto (Comm’r Gen. Land Office v. Smith, 5 Tex., 480; Hart v. Turner, 2 Tex., 374; Hughes v. Lane, 6 Tex., 294; Howard v. Perry, 7 Tex., 267), determines beyond controversy• that the tract of land concerning which the plaintiffs and defendant contracted was not a floating and uncertain expectancy; a mere possible right to be afterwards acquired for their mutual advantage and interest; but was then, at the time of the contract, a valid survey of land, the title to which was then as perfect and available in the assignees or vendees of the original grantee for most purposes, as it became after the issuance of the patent. The verbal agreement, therefore, had no relation to a tract of land to be acquired by the parties, but it was ;one which provided that the owner of the same should, in consideration of certain specified services to be performed .in relation to the completion of the title in all its parts, convey to the plaintiffs one-fourth thereof. “ A contract to convey lands for certain services is within the statute of frauds; and if the services are rendered, the contract cannot be enforced unless in writing.” Parsons on Con., 3d vol., p. 35. A contract of this kind cannot be distinguished from an agreement to convey land at a future day upon consideration .of a pecuniary equivalent to be paid. We entertain no doubt whatever on the question, and are well satisfied that the contract alleged was one falling clearly within the statute, and for the breach thereof cannot be enforced at law. We will not, however, dismiss the cause, but will award that it be reversed and remanded for further proceedings, in order that the plaintiffs may, if they desire to do so, and the facts enable them to do it, set up by amendment their cause of action upon a qiiantum, meruit for the value of their services.

A sale of land, or an agreement to convey lands, under contracts which are within the statute of frauds, will, when there has been part performance of the contract by the purchaser, under certain circumstances, be enforced in equity. Those circumstances, however, to warrant the specific enforcement. of the contract, must consist in such facts, in addition to that of having received the consideration, as would render it inequitable to permit the vendor to retain the benefit of his advantage; as where he has placed the vendee in possession of the land, and he has expended labor and means in making improvements. Reynolds v. Johnson, 13 Tex., 215; Taylor v. Ashley, 15 Tex., 50; Dugan v. Colville, 8 Tex., 128; Neatherly v. Ripley, 21 Tex., 435.

In this case the plaintiffs do not assert nor claim any other equity than that which proceeds from the bare compliance with their part of the contract; the defendant has persistently refused to recognize its binding force; and it presents the naked question whether such contract can be enforced by damages for its breach, or by decreeing a specific performarme of its terms, based solely upon the performance of the services — or payment, as it were, of purchase price agreed upon by the parties. It was held in Ann Berta Lodge v. Leverton, 42 Tex., 18, “ that tender of purchase money, making improvements by the vendee (it not appearing that the vendee expended beyond rents received by him), and possession, do not constitute such fart performance of a parol agreement for sale of land as will justify a decree for specific performance of such parol agreement.”

[Opinion delivered May 24, 1880.]

The contract being within the statute of frauds, and there being no equities in favor of the plaintiffs which can be invoked to vary the ordinary consequence which attaches to the restrictions of that statute, it must be held that no action lies upon it.

The judgment of the district court will be reversed and the cause remanded.

Reversed and remanded.


author: A. S. Walker, J.

text:
    M. Schwarzhoff v. Anna Necker et al.
    (Case No. 4043.)
    1. Hearsay.— If the declarant be living he must be produced in court, and to permit one to testify over objection as to declarations of a party concerning the death of the declarant’s mother is erroneous. 1 Wharton on Ev., sec. 215; Johns v. Northcutt, 49 Tex., 554.
    2. Proof of death.— Testimony of witnesses, one that “the last I heard of -Mrs. Harms was during the war after the divorce. I understood she lived with a man named Eisemann in 1863 or 1864, in Galveston. There was a report that she was dead, but I cannot say anything about her. I think I heard the report of her death several years ago;” another, that “ the last I heard of Mrs. Harms was during the late war.” “ I never heard of Mrs. Harms after she left old Mr. Harms; that is, since eighteen or twenty years; ” and another, that “ I have heard nothing from my former wife since the divorce. Anna Necker told me her mother was dead; that a report of her death reached her; that she died not long since. I never inquired as to my former wife in Galveston,” is insufficient to prove the death of a party. 2 Wharton on Ev., sec. 1274.

      3. Homestead.— The grandson of a divorced wife forms no constituent of a family within the meaning of the law regulating the homestead.
    4. Abandonment of husband by wife fobfeits homestead.— The wife who abandons the husband without cause is not entitled to homestead rights. Sears v. Sears, 45 Tex., 557; Newland v. Holland, id., 588.
    g. Homestead — Remaining- constituents.— As the remaining constituent of the family the husband may dispose of the entire interest in the homestead; the remainder, after his death, in the wife’s community, to go to her heirs at his death.
    Ebbob from Comal. Tried below before the Hon. Q-. H. Moon an .
    M. Schwarzhoff brought an action of trespass to try title for a house and lot in Mew Braunfels against Julius Harms.
    : Harms pleaded not guilty; that the lot was his homestead, etc.; reconvened in damages for wrongful suing out sequestration, etc.
    Pending the suit, Anna Meeker and her husband intervened, alleging that she was the daughter of Mrs. Lina Harms, the divorced wife of defendant, by a former marriage; that the lot was community property of defendant and Lina Harms; that it was their homestead; that they had been divorced in 1863 at husband’s suit; that she was dead, and intervenor was her heir and entitled to half of the property; asking partition, etc.
    -Plaintiff replied to the intervention, substantially, that Mrs. Lina Harms had abandoned defendant, Julius Harms, and had lived in adultery, and that she was not dead; replied to the claim for homestead rights, that it was res adjudicates in a foreclosure suit against defendant, under which proceedings plaintiff had purchased; that at time of the mortgage, etc., defendant Harms had occupied the lot and had no family; that intervenor had cbeen married several •times and formed no part of his family, etc. On the trial plaintiff read the mortgage by Harms to plaintiff, of date May 15, 1876, decree of foreclosure, order of sale and sheriff’s deed to herself.
    It was in evidence that defendant and Lina Harms married between 1846 and 1850; that they settled on the lot in 1856, and defendant had lived there ever since; that Lina abandoned her husband in 1859 or 1860, having eloped with one Eisemann, and lived with him in Galveston; that intervenor was her daughter by a former marriage, and had been married three times; was about forty years of age; had at times lived with defendant, but not since 1866. Witness Seele testified as to the death of Lina Harms as follows: “ The last I heard of Mrs. Harms was during the war after the divorce. I understood she lived with a man named Eisemann, in 1863 or 1864, in Galveston. There was a report that she was dead, but I cannot say anything about her. I think I heard the report of her death several years ago.”
    F. Wagenfuhr testified: “ I knew Mrs. Harms and defendant Harm's; the last I heard of Mrs. Harms was during the late war.”
    Bichólas Holtz testified: “ I never heard of Mrs. Harms after she had left old Mr. Harms — that is, since eighteen or twenty years; I never heard anything from her.”
    Julius Harms, defendant, testified: “ I have heard nothing from my former wife since the divorce (over objection by plaintiff). Anna Becker, the intervenor, told me that her mother was dead; that a report of her death had reached her; that she had died long since.” On cross-examination he stated: “ I never inquired as to my former wife in Galveston.” The decree of divorce made no disposition of the property. Herman, a son of intervenor, had lived much of the time with defendant.
    Other than the son of the intervenor, the defendant had no family after his wife left. The son was about twenty-three years of age at trial.
    Judgment was rendered for plaintiff for half of the lot and for intervenor for the other half. Partition ordered. Plaintiff appealed, assigning errors:
    1. Error in allowing witness Harris to testify to the statements of Mrs. Becker, the intervenor, as to the death of her mother, formerly the wife of said defendant.

      2. Error in decreeing to intervenor one-half interest in the property sued for.
    3. Error in not decreeing a, writ of possession to plaintiff.

      Jno. Ireland, for plaintiff in error.

      Shook dé Dittmar, for defendants in error.
   A. S. Walker, J.

The record shows that the witness Harms was allowed to testify, over objections of the plaintiff, to the declarations of the intervenor touching the death of her mother. The bill of exceptions shows that the objections were carefully made and overruled.

The rule is, “if the declarant be living, he must be produced in court.” 1 Wharton on Ev., sec. 215; Johns v. Northcutt, 49 Tex., 454, 455, and cases cited.

There was no other sufficient evidence of the death of Mrs. Lina Harms. Ho one who testified seemed to have taken any interest in ascertaining whether she was living or dead. The circumstances of her leaving home, and the cloud which no one wished to remove, resting upon her character, are reasons for her continued absence. There is no testimony showing the age she would be, to add to the mere lapse of time since she has been heard from. She is not shown to have left the country. Her last residence was at Galveston and she is not shown to have left that place. That no one has inquired may be sufficient reasons why no one had heard of her. It seems that something more should be shown than the merest negative testimony here given to raise the presumption of death from her absence from Hew Braunfels, her former residence. 2 Wharton on Ev., sec. 1274.

The title exhibited by plaintiff, under the testimony which was properly admitted, was sufficient to authorize a judgment for plaintiff. Harms had been in the possession of the lot since 1866; was himself the family; the grandson of his divorced wife formed no constituent part of his family. Besides, the homestead right could not be set up in the second suit. The foreclosure decree was conclusive against whatever of right defendant had therein. i

[Opinion delivered May 24, 1880.]

The wife who abandoned the husband without cause would not be entitled to homestead rights. Sears v. Sears, 45 Tex., 557; Newland v. Holland, 45 Tex., 588.

To assert rights as heir, the death of the ancestor was a necessary part in the intervenor’s case. This, as was stated above, was not proven by admissible testimony.

As the remaining constituent of the family) it would seem that the husband could dispose of the entire interest in the homestead; the remainder, after his death, in the wife’s community, to go to her heirs at his death.

For the error in admitting improper testimony as to the death of the ancestor of intervenor, the case should be reversed.

Attention is called to the general nature of the allegations as to the time of the death of the divorced wife; to the uncertainty in that respect of all the testimony; also, to the absence of testimony to the status of the family occupying or entitled to the statutory homestead. Hnder what probate act would the rights be determined; whether the surviving husband may not by survivorship have become sole owner, are matters which may arise. 17 Tex., 187; 44 Tex., 249; 47 Tex., 380, etc.

The judgment should be reversed.

Revebsed aetd bemaitoed.


author: Quinan, J.

text:
    Heirs of Annie Fisher, deceased, v. R. Leisweitz et als.
    (Case No. 3912.)
    1. Agreed case.—statement of facts agreed upon before trial between the parties to a cause upon which the court below may render judgment according to the law arising upon the facts as agreed upon, cannot, on appeal, be considered, within the meaning of art. 1516, Revised Statutes, an “agreed case.”
    2. Appeal—Transcript —Agreed case.—The statute provides that parties desiring to appeal without the necessity of setting out all the proceedings at length in the transcript, may, with the consent and approval of the judge trying the cause, agree upon a statement of the case and of the facts proven, which, signed and certified to by the judge, and filed as a part of the record, shall, with a copy of the judgment, assignment of errors, bond, etc., be a sufficient transcript of the proceedings to be taken to the supreme court; and a statement which fails to state the nature and character of the suit, the plaintiff’s claim, and defendant’s defense, and which does not appear to have been filed, is insufficient as an “agreed case.”
    Appeal from Washington. Tried below before the Hon. E. B. Turner.
    The transcript sets out with what purports to be an “ agreed case,” the introduction to which reads as follows:
    “Heirs of Annie Fisher, deceased, v. E. Leisweitz and others.
    “It is agreed that the case shall be submitted to the court, waiving a jury, upon the following agreed statement of facts, and that judgment.shall be rendered for the plaintiffs, or defendants, according as the law, arising upon the said facts, may be for the one or the other. (It is understood that the issues between the defendants and their warrantors are to stand over for trial at some future time, should there be a necessity therefor.) ”
    This agreement is signed by counsel, and filed January 8, 1879. Judgment was' rendered on the same day. Appended to the agreed case in the transcript is the following certificate, which does not appear to have been filed:
    “ Austin, February 28, 1879.
    “ I do hereby certify that at the January term of the district court for the county of Washington, ,A. D. 1879, this cause, Ho.- 5277, was submitted to me upon the facts agreed upon as set forth in the foregoing statement, and that upon those facts, and those alone, I determined the case and rendered judgment for the defendants. I think I bad the foregoing statement in hand, but do not remember to have been asked to sign and approve the same as the statement of facts, as I should most cheerfully have done so. The court has now adjourned, and if the authority still resides in me to do so, I desire that this signing shall be in all things regarded as now for then, viz.: January 8, 1879. The facts were agreed upon and signed by counsel during the term. In testimony whereof, I hereunto set my official signature, the day and date first above written, to this certificate.
    “E. B. Turner,
    “ Judge 16th District Texas.”
    In addition to the foregoing, the transcript contains a copy of the judgment, an assignment of errors, and an affidavit of inability to give an appeal bond.
    The judgment in the district court recites “that the parties, by consent, waived a jury, and the cause was submitted to the court upon an agreed statement of facts.”

      P. IL. & J. T. Swearingen, for appellants.

      Sayle-s dt Bassett, for appellees.
   Quinan, J.

It is insisted by the appellees that upon this transcript a judgment of affirmance, without reference to the merits, is the only judgment that can properly be rendered.

The appellants contend that this is “an agreed case,” under article 1516, and that they are entitled to a revision of the proceedings in the district court.

The article 1516, under the title “ Agreed Case,” reads as follows:

“ After the trial of any cause, when either party intends to remove the same into the supreme court for revision, the parties may, with the consent and approval of the judge who tried the cause, and without the necessity of copying the entire proceedings, agree upon such a statement .of the case, and the facts proven, if any, as in their opinion will be necessary to show whether there has been any error in the proceedings, and such statement shall be signed by the attorneys of the parties, and certified by the judge, and filed as a part of the record of the cause; and a copy of such statement and of the judgment in the case, and the assignment of errors, certified by the clerk of the court,''shall be a sufficient transcript of the proceedings to be taken to the supreme court, and to entitle the parties to a trial therein upon the points presented for revision.” “ In all cases proposed to be removed to the supreme court where such agreed statement is not made, approved and filed as in this section provided, the clerk shall make out and send up the full transcript of the proceedings as is now provided by law.”

We are of opinion that the agreed case” in this transcript is not a sufficient compliance with the statute to authorize or enable us to revise the proceedings in the district court in the case.

1. It contains no statement of the case. Beyond the statement, which occurs casually in a lengthy recital of facts, that “ the plaintiffs brought this suit on the 20th March, 1876,” it is utterly silent for what it was brought; it contains no information of the nature or character of the suit; what claim the plaintiffs make, or what defenses the defendants have. The judgment discloses that the defendants recovered their costs and that the plaintiffs took nothing by their suit; but what issues were involved in the controversy, or what questions were raised upon the facts recited in the statement, it is not possible to state with that accuracy necessary to an intelligent decision of the case. And, if we could look outside of it to ascertain its objects, the assignment of errors sheds but an ineffectual ray upon the subject.

2. Article 1516 requires a statement of the case, as well as of the facts proven,” and that this shall' be with the consent and approval of the judge. The certificate of the judge does not purport to consent to and approve this statementi as an agreed case, but simply as “ the statement of facts.”

[Opinion delivered May 31, 1880.]

3. The statement is required to be signed arid certified by the judge and filed as a part of the record. .The certificate of the judge to this paper, made the 28th February, 1878, does not appear to have been filed.

4. It is evident that this statement was not only not such a statement of an agreed case as is required by law, to bring up a case for revision, but that it was not so intended to be.

It is not made out after the trial, but before the trial, and, as is shown upon its face, for the purposes of the trial, as an agreed statement of facts ” upon which the court below might render judgment according to the law arising upon the said facts.” It neither had, nor required for that purpose, nor did it contemplate, the consent or approval of the judge; nor could it, indeed, have derived any efficacy from the approval of the judge, unless we can attribute to him judicial knowledge of the facts of a case as yet untried. There is nothing in this statement to indicate that it was ever intended to be or agreed upon as a statement of the case and the facts proven, with a view to revision of the case upon appeal.

The transcript in this case is too imperfect to require an affirmance of the judgment. In accordance with article 1033 of the Revised Statutes, we are of opinion that the proper judgment to be rendered is a dismissal of the appeal.

And we so conclude, and award that this appeal be dismissed.

Dismissed.


author: Walker, P. J.

text:
    Ann Burcham et al. v. W. O. Gann.
    (Case No. 3296.)
    1. Homestead—Abandonment — Evidence.— A husband and wife owned land in Texas and lived upon it as a homestead. The wife becoming dissatisfied they went to another state. Afterwards the husband returned to Texas and sold the land, the wife not joining in the deed. In a suit by the wife, against the purchaser, after the death of the husband, to recover the property as her homestead, her declarations, made before leaving the state, showing dissatisfaction with the country and intention of leaving it permanently, are admissible in evidence as tending to show abandonment, even though not made to the purchaser or known to him at the time of-his purchase.
    2. Pleadings — Practice—Trespass to try title.—The defendant has the right, under the plea of not guilty in an action of trespass to try title, to prove such facts as may show that the plaintiff has no right to recover, and when the plaintiff claims the property as homestead, testimony of witnesses as to declarations of the plaintiff showing intention to abandon it as a homestead, is admissible without any plea on the part of the defendant alleging abandonment. No other plea than that of “ not guilty” is required to admit evidence which disputes and controverts the homestead claim. 3 Tex., 60; 10 Tex., 34; 11 Tex., 662; 16 Tex., 563; 25 Tex., 271.
    8. Homestead.— One who has ceased to be a citizen of Texas cannot claim a homestead or homestead rights in this state. 19 Tex., 275; 8 Tex., 312. “
    4 Charge of the court — Weight of evidence.— It is improper for the court to call the attention of the jury to particular parts of the evidence; and a charge which instructs the jury to “ look to the declarations of the plaintiff to see whether she ever claimed the property in question as her homestead, and to her declarations about leaving it, and they will look to the evidence to see whether she did leave it, or leave the state in accordance with her declarations, and if so, then her declarations are evidence of her intention, and if the evidence shows that she left the state in 1866 and infused to return when requested by her husband by letter, then the abandonment is complete, and the jury will find for defendant,” is a charge upon the weight of evidence and erroneous. 28 Tex., 666; 26 Tex., 212; 13 Tex., 175;. 20 Tex., 247 ; 22 Tex., 479.
    Appeal from Navarro. Tried beloxv before the Hon-. F. P. Wood.
    Ann Bureham, joined by her husband, brought suit, in form of trespass to try title, to recover of the appellee a certain tract' of land described in their petition, on September 4, 1874. Mrs. Burcham, formerly Mrs. Cowan, with her first husband, Datus Gowan, acquired the land during their marriage; they occupied it as a homestead from the year 1861 until the year 1866, in the fall of which year they went out of the state; whether with the intention of abancloning their homestead, and to leave the state without the intention of returning to it, or not, is a material and controverted issue in this case. A few weeks after thus leaving, with the intention, at all events, of going out of the state, Datus Cowan returned to Navarro county, and, in the month of January, 1867, conveyed, by warranty deed, the said land to William O. Gann, the appellee, for the consideration, as expressed in the deed, of $1,200. Shortly afterwards, in the spring of the same year, he started back to rejoin his family, and was murdered in the Indian Nation.
    The petition alleges that the plaintiffs reside in the county of Henry, state of Missouri; that the plaintiff Ann Burcham has never, at any time since her occupation and designation of said tract of land as her homestead, nor at any time, abandoned, or in any manner or form relinquished, her claim or right to said land as a homestead; but alleges that" she still claims and is legally entitled to the possession of said tract of land as her homestead, and was lawfully seized and possessed of said tract of land on the-day of-, A. D. 1867, holding the same in fee-simple. The petition alleges that, on the day last aforesaid, the defendant entered upon said premises and ejected her therefrom, etc.; claiming damages and the recovery of possession.
    The defendant answered by a plea of “not guilty,” three years’ limitation, and a suggestion of good faith and valuable improvements. The cause was submitted to a jury; verdict and judgment for the defendant. The charge given to the jury had regard alone to the question of right of the plaintiff, Ann Burcham, to recover on the facts respecting her homestead rights in the land, as the same may have been affected by abandonment of the same or by domiciliation in another state. Mrs. Burcham never returned to Texas from the time she left in 1866 up to the time of instituting her suit, nor until a few months before the trial of the cause at the July term, A. D. 1875. There was considerable evidence, given through the testimony of several witnesses, tending»to establish her dissatisfaction with Texas as a place of residence, and a desire to leave it, and to return to the north, whence she had removed when she migrated to Texas. This evidence consisted in declarations made by her in conversations at different times before she left Texas; the witnesses who detailed them were Davis Meador, A. T. Barton, B. F. Cummings, John Brumbelow and John Ballevv; to the introduction of which she objected, but which was allowed by the court. Mrs. Burnham testified fully as to her acts and intentions respecting her homestead rights from the date of her original removal to Texas down to the date of the institution of suit, and of the trial; the purport of which was an emphatic denial of' intention to abandon her home; ignorance of the sale of the land by her husband until about three years before the trial; affirming that she had not received anything whatever as- the equivalent for the sale of the property; that she has never acquired any other homestead ; that she and her former husband left Texas in April, 1866, on a visit to their friends in the north, leaving two good log houses on the land, a good well and a small field inclosed. She also testified that they left at their home their stock and farming utensils on the land. That after the death of her husband she went from Blinois to Missouri, hoping to come to Texas; that she married in Pettis county, Missouri, her present husband in the year 1869; • that he, like herself, had no homestead; that she had been too poor to return to Texas, and had to borrow money to enable her to do so when she did come. She stated that she and her former husband owned one thousand two hundred and eighty acres of land in Navarro county; that after the war the living in Texas was very hard; that they had no tea or coffee, and she wanted to go where she could get it. On cross-examination she stated “that she never had intended to leave her home for always;” that she had never said to Davis Meador or others “that her bones should not be buried in Texas, or, that if her husband died here, that he should not be buried in Texas.” R. G. Burcham, her husband, testified that when he married the plaintiff, she was living with the family of one Wilson, from* Blinois; that his wife had no home when. he married her, except a home which she said she had in Texas; that he had no homestead then, nor has he acquired one since. He stated that he Avas lixfing on a rented farm in Missouri when he married in I860;' and that this suit was pending when he came to Texas.
    The testimony of the witnesses for the defense, Brumbelow; Meador, Ballew and Cummings, consisted of evidences of dissatisfaction with the people and the country on the part of Mrs. Burcham, then Mrs. Cowan, as indicated by decided expressions repeatedly made from a period as far back as 1864, up to the time of her leaving the state; that both she and her husband had so expressed themselves. Among the various statements and remarks which were attributed to her were such as these, viz.: “ that she had a home in the north and was going back to it; ” “ that she wouldn’t stay in this country; ” “ that if Mr. Cowan died here his bones should not remain;” and a short time before she left “that she was going right north; that she didn’t claim Texas as her home.” Also, “ that there was nothing to eat here, and she Avas going north among her friends where she could enjoy the luxuries of life; ” “ that she was going north and Avouldn’t live here.” Ballew stated that she was dissatisfied generally with the people and country; that her husband was likewise dissatisfied; that their dissatisfaction arose from the fact that, as northern people, they Avere afraid to live here until times got more quiet. It was admitted on the trial that Mrs. Burcham, up to the time of. her leaving the county and state, ah\rays told Mr. Cummings that she did not claim her home here, but that her home was in Wisconsin, and that she intended leaving the state and did not intend to live here any more; that she was dissatisfied with the country and people. It was admitted on the trial that B. F. Cummings will testify that while Datus Cowan was in Texas in 1867, he got. said Cummings to write to Mrs. Cowan (the plaintiff), in Illinois, to come back to Texas and live with him on the place in controversy, and that Datus CoAvan received an answer from her in response to said letter, in due course of mail, stating in substance that she would not return to Texas, as she had determined to live here no more; which letter was read by Cummings, which was shown to him by Cowan. It'was also admitted that Datus Cowan signed his wife’s mark to the deed to W. O. Gann; that she was not present when the deed was executed, and also that Cowan signed her mark at his own instance, stating that he had been requested by his wife to sign it.
    ’ The plaintiff objected to so much of the foregoingevidence of said witnesses as was offered to prove the declarations of the plaintiff, Mrs. Burcham, before her departure from ■ Eavarro county, in order to show an abandonment of her homestead, upon the grounds: 1st. That the defendant had ..filed no plea in this suit alleging the abandonment of said premises by the plaintiff. 2d. Because the defendant never heard any of these declarations proposed to be proved, and was not induced by reason of them to purchase the premises in controversy from Datus Cowan without the signature, or consent of the plaintiff, Ann Burcham. 3d. Because most of said declarations were prpved to have been made at too ■ distant a period from the date of the plaintiff’s departure from her homestead, to be competent evidence to establish an intention on her part to abandon it. Exceptions were also taken to charges of the court Eos. 3, 4, 5 and 6, at the time they were given, because they are not in accordance with law; because not applicable to the facts; and because they conflict with charges given by the court of its own motion, and with charges given the jury at the request of the plaintiffs.
    The plaintiffs’ motion for a new trial was overruled, and they appealed; they assign numerous grounds of error, but none other of them need be considered, except those which relate to the introduction of the evidence over their objections, which has been sufficiently stated, and the errors alleged to have been made in charges Eos. 3, 4, 5 and 6.

      B. C. Beale and Sam. B. Frost, for appellant.

      W. Croft, for appellee.
   Walker, P. J.

The first ground of objection to the testimony of witnesses as to the plaintiff’s declarations is that the defendant had filed no plea alleging abandonment by the plaintiff. This ground of objection is not well taken. This action, being in form an action of trespass to try title, it admitted, under the plea of “not guilty,” evidence of such facts as may show that the plaintiff has no right to recover. The plaintiffs in their petition set out the right or title under which Mrs. Burcham claims, viz., her right to the premises in virtue of her homestead rights in the same, which sh'e alleges she still claims, and has never at any time since her occupation and designation of said tract of land, nor at any time, abandoned nor relinquished her claims or right to said land as her homestead.

The case which the plaintiff presents by her petition is that she was, at the date of the institution of the suit, entitled to recover by virtue of her homestead rights in the premises; she sets out distinctly the right and title under which she claims, as has been "above stated. Mo other plea than that of “ not guilty ” was required to admit evidence which disputed and controverted the title and claim thus set up by her. Punderson v. Love, 3 Tex., 60; Blair v. Cisneros, 10 Tex., 34; Rivers v. Foote, 11 Tex., 662; Dalby v. Booth, 16 Tex., 563; Mann v. Falcon, 25 Tex., 271.

The cases to which we have been cited by the appellant’s brief do not conflict, we think, with the view taken by us. Such evidence is strictly in rebuttal of the allegations made by the plaintiff’s petition.

The other grounds of objection are equally untenable; to render such evidence admissible it was not essential that the defendant should have known of its existence when he purchased, and that he should have been influenced by and relied on it as assertions on the part of Mrs. Burcham, disclaiming further claim to her homestead, so as to estop her from now setting up a claim thereto as against the conveyance to him. The material issue was of a character that essentially involved the inquiry as to Mrs. Burcham’s intentions in respect to returning again to her home in Texas at the time she left, and during the subsequent period of her continuing absence. Her expressions from time to time going to show the state of her mind respecting a disposition to remaining temporarily or permanently; admissions or statements indicating a reason or motive for a departure from her home, and which would tend to explain whether her contemplated absence was intended by her to be permanent or otherwise, whilst they do not constitute of themselves the act of abandonment, nor are they conclusive evidence of such intention, nor that such intention, if existing at the time of making such declarations, continued after-wards to remain the same, nevertheless they are facts and circumstances, which, together with all the other evidence, may properly be adduced and considered in determining the true motives which influenced her departure, and from which may be interpreted and construed the actual intentions of Mrs. Burcham in respect to her domicile during a long protracted absence from her former residence and home. •

The remaining ground of objection, of remoteness of the period when most of the declarations were made, when considered in relation to the nature of the facts sought to be established by the evidence, must be regarded as insufficient to exclude it. The continuity, consistency and persistency in making similar expressions on the same subject during a period of consecutive years would afford a proper basis for judgment and discrimination, on the part of the jury, in determining the weight to be given to exclamations of dissatisfaction with the country, made just before leaving it. It would be proper evidence whereby to distinguish, at their just value, between expressions which might otherwise be deemed ill considered, hasty sallies of petulant humor, arising from irritation produced by care and anxiety, and a sedate and fixed dissatisfaction which may at last have culmination in a stern resolution to pursue a given course with a mind fully made up as to the future. We conclude that the evidence was properly admitted, over the objections which were made to its introduction.

The third assignment of errors is, that the court erred in instructing the jury that citizens resident in another state cannot claim homestead rights in this state; and if the pleadings show the plaintiffs are domiciliated [citizens] of Missouri, and the evidence is that plaintiffs have come to Texas only to attend to this suit, they have no rights in this court/’ because the same is not applicable to the evidence.

The fourth assignment is that the court erred in instructing the jury.11 that in this case, if the jury believe from the evidence that the plaintiff was nota citizen of Missouri by actual domicile, but was only remaining in the state until she could come to Texas, and that she was not domiciled in Missouri, then she cannot assert her claim to homestead rights as alleged in this case,” because the same is not applicable to the evidence and was therefore calculated to mislead the jury. The verbiage of the first recited instruction appears to be subject to some criticism; the idea, however, which is prominently developed in it, presented properly the law on the question. It would have been more accurate for the court to have wholly pretermitted the reference which is made to the pleadings, unless it bad in that connection-^ stated what they contained, and to have explained the purport and effect thereof, and to have submitted plainly the legal proposition that a citizen of another state cannot claim a homestead nor homestead rights in this state, and that the jury would, from all the evidence before them, determine whether the plaintiffs, at the date of the institution of their suit, were or were not domiciliated in the state of Missouri, as resident citizens of that state. The jury have nothing to do with the pleadings as such. Bradshaw v. Mayfield, 24 Tex., 482.

The reference made in the charge to the plaintiffs coming to Texas merely to attend to this suit is rather an antithetical statement—a supposed fact, which is propounded as the converse of citizenship in Texas, and defining it to be citizenship in Missouri, rather than a charge upon the weight of evidence; nevertheless, that form of propounding the legal proposition is objectionable, as savoring at least Of emphasizing certain parts of the evidence, if not as charging on the weight of the evidence. The plaintiffs’ petition alleges that they are residents of the state of Missouri, and the evidence left it a disputable fact whether Mrs. Burcham was simply eommorant in Missouri, or whether the facts relating to her residence or inhabitancy there at that time, and previous thereto, were not characteristic of actual domiciliation as a citizen of Missouri. A charge presenting somewhat more clearly the legal proposition which was evidently aimed tó be presented by the court would not have been incorrect in law, and would have been applicable to the evidence; and we do not suppose that the want of exact precision'in the terms of this charge caused any misapprehension by or misled the jury.

The other charge, above quoted, cannot be objected to by the plaintiffs; itnvas given upon the same legal proposition as that above discussed, and is but the converse of it, to the effect that if the plaintiff, Mrs. Burcham, was then not a citizen of Missouri by actual domicile, etc., that she could assert Ber homestead rights, as alleged in her petition. The charge was more favorable to her in connection with the subject of residence and citizenship, as applied to the issue in the case, than she had a right to ask; for it makes her right to'sue here for her homestead rights depend too much on whether the jury believed her to be a citizen of the state of Missouri; whereas, if she "was not a citizen of Texas, that fact was quite sufficient to defeat her right to recovera homestead right in this state, even though she may have acquired no permanent domiciliation or citizenship in the state of Missouri or elsewhere, provided she had definitely abandoned her residence and homestead in Texas. If she had ceased to be, and was not then, a citizen of Texas, she did not answer to the class of persons for whom the laws of Texas provide the benefits of homestead privileges, estates and exemptions. Jordan v. Goodman, 19 Tex., 275; Trawick v. Harris, 8 Tex., 312.

The sixth assignment of errors, objecting^ to the sixth charge because it is contrary to the law and the evidence, arid was, therefore, calculated to mislead the jury, is vague and general. The main proposition in it, that actual abandonment of a homestead and taking up a domicile in another state is the same in effect as acquiring a new homestead in it, is abstractly correct; it is, however, subject to this criticism, that the proposition is unnecessarily prefáced with this "statement, viz.: “ it matters not what may be the secret intent of a person abandoning her homestead, if it is actually done,” which was calculated to confuse and even to mislead. It would have been unexceptionable in a charge on those points if the court had carefully defined the elements which constituted an actual abandonment, as to both the intent of the mind and also the corresponding act or fact, and then to have followed that explanation with the main proposition; otherwise, the charge, as given, was liable to lead the jury to infer that a bona fide intention, if unexpressed, not to abandon nor relinquish the homestead right, would not avail against the mere fact of protracted absence from the home. The charge of the court had elsewhere, however, very well defined what was required to constitute abandonment; still, on the proposition of law having, as it might have seemed to the jury, a specific application to a domiciliation abroad, rendered it proper for the court either to have presented the two subjects separately and disconnected from each other, or else to have preserved clearly, by discriminating explanations, the elements of both subjects, if they are presented together in the same proposition. Hot-withstanding the criticism we do not regard the inaccuracy referred to such as probably liad the effect to mislead the jury, nor would the judgment be reversed therefor.

The fifth assignment of errors is that the court erred in the following instruction, viz.: “The jury will look to the declarations of the'plaintiff, Mrs. Cowan, to see whether she ever claimed the property in question as her homestead, and to her declarations about leaving it; and they will look to the evidence to see whether she did leave it or leave the state in accordance with her declarations, and if so, then her declarations are evidence of her intention, and if the evidence shows that she left the state in 1866 and refused to return when requested by her husband by letter, then the abandonment is complete and the jury will find for defendant.” The assignment complains that this instruction is contrary to law and the evidence, and is without any pertinent meaning, and was, therefore, calculated to mislead the jury.^

This charge is materially and essentially erroneous; it confines the jury to the consideration of plaintiff’s, Mrs. Buiv. chain’s, declarations, from which to determine whether she claimed the property as her homestead, instead of leaving the jury to determine that fact from all the evidence before them, tending to show her claim and intention, continuously, to claim the same as her homestead. The jury are further instructed to look to the evidence to determine whether she left her home, or left the state in accordance with her declarations, and if they were satisfied of that fact from the entire evidence, that her declarations are evidence of her intention. Intention to do what? The jury rightly would imply the meaning to be, intention to permanently abandon her home and the state. Such a limitation, thus confining the jury to the consideration of her declarations, was in effect instructing them that they would not regard, in that connection, any other fact or evidence which may have tended to prove her intention of permanently abandoning her home and the state, except her declarations. These declarations must have been understood by the jury to refer, not to her testimony explanatory of her actions and motives, but to the remarks and declarations testified to by several witnesses concerning her intention to leave the state.

The charge further instructed them that, if she refused to return when requested by her husband by letter, that then the abandonment was complete, and the jury would find for the defendant. This portion of the charge was clearly a construction placed by the judge upon the force which he assigned to the act in question, and the jury were directed to act upon it as a conclusive fact against the plaintiffs. It was manifestly a charge upon the weight of the evidence; it was a charge in express derogation of the peculiar province of the jury to weigh all the evidence before them, and is in contravention of the letter and spirit of the law regulating trials by jury. Kimbro v. Hamilton, 28 Tex., 566; Andrews v. Marshall, 26 Tex., 212. The judge should not decide upon the facts, nor endeavor to influence the jury in their decision upon the facts. Jones v. The State, 13 Tex., 175. It is improper for the court to call attention of the jury to particular parts of the evidence. Woods v. Chambers, 20 Tex., 247; Castro v. Illies, 22 Tex., 479.

“The judge should distinctly separate questions of law from questions of fact; and a charge which determines both, without separating them, and without submitting the questions of fact to the decision of the jury, is erroneous.” Rogers v. Broadnax, 24 Tex., 538, If an erroneous charge has been given to the jury, which may have influenced the finding, and in the absence of which the finding might have been different, a new trial will be granted, although the court may be satisfied with the verdict. Mims v. Mitchell, 1 Tex., 443; Chandler v. Fulton, 10 Tex., 2; Bailey v. Mills, 27 Tex., 434. The charge which was given was well calculated to influence the finding of the jury; and if a proper charge had been given instead, we are not authorized to determine that the jury might not have found a different verdict. We cannot weigh probabilities as to the conclusions the jury might have reached under a correct instruction, where, as in this case, they may have been and probably -were influenced to act decisively against the plaintiff, Mrs. Burcham, under a positive charge bearing upon the effect of the plaintiff’s refusal to return to Texas at the request of her husband. The evidence before the jury was not such as to leád to but one possible result, and that result a verdict in favor of the defendant; and unless the verdict rendered by the jury was necessarily correct, and one which the jury, under proper instructions, must have rendered, it cannot be sustained, and for the error in the charge the judgment should be reversed.

It is not necessary to consider any other of the numerous assignments of error, as those which we have noticed embrace substantially all the rulings of the court which have been definitely presented involving questions subject to recur on another trial.

[Opinion delivered May 31, 1880.]

We conclude that there is error in the judgment, for which it ought to be reversed and the cause remanded for further proceedings.

Reversed and remanded.


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    J. L. Fisher v. O. P. Bowser.
    (Case No. 3319.)
    1. Land — Memorandum of sale —Statute of frauds.—“ Received. of J. L, Fisher twenty dollars gold coin, in part pay for a tract of land (1)4) acres in the town of Dallas, the same tract sold to O. P. Bowser by Sarah H. Moore. Having this day sold the same to said J, L, Fisher for one thousand dollars gold coin.
    “Ault, Jenkins & Ault,
    “Agents for O. P. Bowser.”
    is, under the statute of frauds, a sufficient memorandum of sale.
    2. Pleading—Non est factum.— A plea of non est factum, not sworn to, only requires, as does a general denial, the production of the instrument declared on, but does not require proof of execution.
    3. Evidence — Burden of proof.— In the absence of a plea of non est factum denying the execution of the instrument sued on, the burden of proving want of authority in the agent making it devolves upon the party denying it.
    Appeal from Dallas. Tried below before the Hon. Jeff. Word, Jr., Special Judge.
    April 19, 1872, Fisher brought suit against Bowser to enforce specific performance of a contract; the written memorandum of its terms is as follows:
    “Received of J. L. Fisher twenty dollars gold coin, in part pay for a tract of land (1J) acres in the town of Dallas, the same tract sold to O. P. Bowser by Sarah IT. Moore. .Having this day sold the same to said J. L. Fisher for one thousand dollars gold coin.
    (Signed) “Ault, Jenkins & Ault,
    “April 19,, 1872. Agents for O. P. Bowser.”

      It was alleged that Ault, Jenkins & Ault were authorized to make said contract; tender of the remainder, $980; refusal, and refusal to make deed, were alleged.
    A demurrer to the petition was sustained, and on appeal the petition was held good. 41 Tex., 222.
    The defendant pleaded general denial; want of authority in the alleged agents; that the instrument was not his act, nor executed by any one authorized. That he had withdrawn their.authority to act; that Fisher knew that defendant had refused to sell at the price which she named; combination between Fisher and the agents to defraud defendant; and that Fisher made the contract for one Ban da'll on speculation, etc. Hone of the pleas were verified by affidavits. Exceptions were made to the answer, but were not acted on by the court.
    The testimony was conflicting as to the authority of Ault, Jenkins & Ault, and to Fisher’s knowledge of the want of authority.
    The general charge of the .court fairly enough presents the law upon the testimony.
    The plaintiff asked the court to instruct the jury:
    “That the instrument sued on is prima facie evidence of the agency of Ault, Jenkins & Ault, as well as the other facts stated therein; and the burden of proof devolves upon the defendant to show that the said Ault, Jenkins & Ault had no authority to make the said instrument, or to sign the same as his agents. If this is not done to your satisfaction by the defendant, you will find for the plaintiff.”
    This was refused.
    The jury found for defendant; judgment was rendered upon the verdict. Plaintiff appealed.

      John M. Stemmons and Ellen c& Sterrett, for appellant.

      John J. Goof for appellee.
   A. S. Walker, J.

There are many errors assigned, consideration of which will not be taken, as they are not likely to arise on another trial.

On the former appeal, it was practically held that the memorandum was sufficient to take the contract out of the statute of frauds, and that the authority might be proven by parol.

The mode of proof of agency, which of necessity devolves on the party asserting the benefit of the act, must be regulated by the rules of practice and pleading in the courts where the rights under it are asserted.

By statute, “ no plea of non est factum shall be received or admitted, . . . unless the party pleading the same shall make affidavit of the truth thereof.” Pas. Dig., 1442.

And 1443: “When any petition, answer or other pleading shall be founded, in whole or in part, on any instrument or note in writing, charged to have been executed by the other party, or by his authority, . . . shall be received as evidence without the necessity of proving its execution,”

“ unless the party by whom, or by whose authority, such instrument or note in writing is charged to have been executed, shall file his affidavit, in writing, denying the execution thereof,” etc.

These statutes have no ambiguity in language used, and the courts have applied them as written. A plea of non est factum not sworn to requires, as does a general denial, the production of the instrument declared on. As to imposing upon the party pleading such instrument the burden of proving its execution, or his cause of action stated therein, it is(a nullity. It may, if not excepted to, perhaps, form the basis of allowing,the defendant the right to introduce his testimony, with the burden against him. Williams v. Bailes, 9 Tex., 64; Drew v. Harrison, 12 Tex., 282.

The instrument in this case having been pleaded as the foundation of plaintiff’s action was admissible in evidence — evidence of all its contents and of what it purported to be. That exceptions to the answer were not urged for its want of verification did not cure its defects. It was the duty of defendant to perfect his plea to obtain the full benefit of the plea. The court was required to apply to the pleadings the law, whenever invoked; the law applied to the case when ruling upon it.

[Opinion delivered May 31, 1880.]

In this case all the testimony of the defendant was admitted as if the pleadings were good, and the court was asked to charge the jury upon the legal effect of the written instrument sued on in the state of the case when it went to the jury. This the plaintiff was entitled to, and its refusal was error.

It is held that, under the statute, it devolved upon the defendant to deny the execution of the paper or of the authority of Ault, .Jenkins & Ault to bind him; otherwise, at least, the burden of proving want of authority would lie upon him, upon the introduction of the instrument.

For error in refusing the charges asked by plaintiff, the judgment should be reversed.

Beversed and remanded.


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    W. D. Ryburn, Sheriff, v. W. H. Getzendaner.
    (Case No. 3449.)
    1. Injunction — Parties.— The plaintiff in execution is a necessary-party to a suit against a sheriff to enjoin the sale of property levied on under execution.

      2. Removing cloud from title.—The remedy by injunction to prevent a cloud upon a title by a sale of the property under execution will only lie where the invalidity or illegality of the title alleged to be a cloud can alone be shown by evidence dehors the record, and not where such illegality or invalidity^ appears upon the face of the proceedings themselves.
    3. Execution sale — Injunction.— A second sale of the same interest in property under execution on the same judgment does not create such a clGud upon the title as injunction will lie to prevent.
    Appeal from Ellis. Tried below before the Hon. Hat. M. Burford.
    This was an injunction proceeding instituted by the appellee to enjoin the appellant, as sheriff, from selling a certain tract of land under an execution in favor of L. S. Boss and others, which was issued and levied on said land to satisfy a -judgment in favor of the plaintiffs in execution, against one Thomas Wardlow. The petition showed that said land had but recently before'the filing of said plaintiffs’ petition been levied on and sold at sheriff’s sale under execution issued on the same judgment, at which sale petitioner purchased the land and paid the amount of his bid therefor, viz.: $200. The petition alleges that notwithstanding said sale, purchase and deed from said sheriff, that the defendant has levied on said land under an execution issued on said judgment, and will unless restrained sell the said land; that such sale will cast a cloud upon his title and greatly impair its value. The petition made no other parties defendant than said Rvburn. The writ of injunction was issued as prayed for. The defendant answered, excepting to the sufficiency of the petition, and filed a motion to dissolve the injunction and dismiss the bill on various grounds, among which are, that there is no sufficient equity shown on the face of the bill to authorize the granting of the injunction, and because it appears .therefrom that the plaintiffs in the execution mentioned in the petition ought to have been made parties defendant; and because it is shown upon the face of the bill that the defendant, in the matters complained of, is and has been acting in his official capacity only, and the facts which might compel him to act are not denied in the bill, nor are the persons who are plaintiffs in the execution, wrho have the right to control his aetinn in the matter, made parties defendant.- The defendant also filed an answer to the facts, which advñitted the truth of nearly or quite all of the facts alleged in the plaintiff’s bill, which related to the judgment, the issuance of the first execution, sale and deed to plaintiff under it, and also the issuance of the execution which is enjoined, the levy by virtue thereof and the advertisement thereof for sale; but the answer proceeds to deny that the plaintiff became the true owner of the land by’virtue of his said bid and conveyance to him by said respondent as sheriff, and alleges that the equitable title to said land remained in the defendant in execution, Thomas Wardlow, and was and is subject to the'execution levied on it, as complained of in the bill. The answer undertakes to show the existence of said equitable interest by reason of an agreement entered into before the purchase by plaintiff, between said plaintiff and said Wardlow, whereby the former would bid for said land the amount of the judgment, interest and costs, amounting to about $750, and would take a deed thereto and hold the same for said Wardlow, and permit him to redeem the same at a future time by repayment of the money bid, with interest. The answer insists that by virtue of his deed, he took nothing more in equity than a security for the $200 paid, as is alleged and admitted, and that the land is still subject to levy and sale on said judgment, subject to the lien for the $200 in favor of said plaintiff.
    The plaintiff excepted to the sufficiency of the defendant’s answers. The court overruled the defendant’s motion to dissolve and dismiss; and sustained the plaintiff’s exceptions to defendant’s answer, and the defendant excepted to the said rulings of the court, and declined to answer further, and elected to abide by said pleadings. Whereupon the court, by its decree, perpetuated the injunction, and decreed that said W. D. Byburn, sheriff as aforesaid, be forever enjoined and restrained from selling the land described in plaintiff’s petition underand by virtue of any levy made by him herein, or by any other writ based upon a judgment rendered in the district court of Ellis county on the 9th day of May, 1874, in a cause then pending, wherein L. S. Boss and others, executors of the last will and testament of J. W. Tinsley, deceased, are plaintiffs, and Thomas Wardlow is defendant. The judgment thus described being the same whereon said executions are based, according to the allegations of the plaintiff’s petition. The defendant appealed to the supreme court, and assigns the following as grounds of error, viz.:
    1. Tue court erred in overruling defendant’s motion to dissolve the injunction.
    2. The court erred in sustaining plaintiff’s exceptions to defendant’s answer.

      3. The court erred in the judgment perpetuating the injunction.

      A. A. Kemble, for appellant.

      Ferris & Rainey, for appellee.
   Walker, P. J.

The petition in this case shows upon its face that the defendant is but a formal party, having no interest in the subject-matter of the litigation, and that the plaintiffs in the judgment and execution are the parties in actual interest. “The execution creditor is a proper and necessary party to a.bill to stay proceedings upon an execution, instead of the officer.” Hilliard on Injunctions, sec. 139; Bean v. Blanton, 3 Ired. Ch., 59.

The officer is usually made a party defendant in injunction suits, although he has no interest. It is not necessary to determine whether or not he is an indispensable party, but certairfly the plaintiff in the execution is a necessary party, and the defendant a formal one. There is no rule of law more universal than that which requires all persons having an interest to be affected by the result of the suit, to be made parties to it. Denison v. League, 16 Tex., 409. And it is an elementary rule that no person should be made a party who has no interest in the suit, and against whom, if brought to a hearing, no decree can be had. Story’s Eq. Pl., sec. 231.

The petition in this case seeks to conclude, without a hearing, the interests of the only persons really interested to contest it; and the decree of the court rendered in pursuance of the prayer of the bill has determined that no writ shall issue on their judgment henceforth forever, to be enforced against the property in question. Such a result ■ does not concern the defendant in this suit, but it materially affects the only persons who are concerned in the satisfaction of the judgment. See Story’s Eq. Pl., sec. 83; Crowne v. Blount, 2 Russ. & M., 83. Upon an application for a mandamus, it is the duty of the plaintiff to summon, by proper process, all parties who are interested, if known, to come in and defend their interests. Smith v. Power, 2 Tex., 57. "Where, in such case, “ the plaintiff would not ask to have such parties made, or refused to have them. made, when it was ruled that they were necessary to any judicial action on their rights, the court was right in dismissing the petition.” Watkins v. Kerchain, 10 Tex., 381. The principle is not less applicable to suits of injunction.

The defendant’s motion to dissolve the injunction on the first ground ought to have been sustained, with leave granted the plaintiff to amend his petition by making proper parties, and failing to do so, the bill should then have been dismissed.

The petition was otherwise defective; it alleged no facts entitling the plaintiff to the remedy by injunction. “ The clear weight of authority,” says Mr. High in his work on injunctions, “ is in favor of the proposition that, in the absence of fraud, or gross injustice and irremediable injury, courts of equity will not entertain jurisdiction in restraint of judicial sales under executions against third parties having no title to the property sold.” Sec. 266. This principle has been distinctly recognized and acted upon by our supreme court. Henderson v. Morrill, 12 Tex., 1; Carlin v. Hudson, id., 202.

The remedy by injunction to prevent a cloud upon the title is an equally well recognized head of equitable relief. The petition in this case fails to show facts which entitle the plaintiff to enjoin the sale <yi that ground. A case lately considered and disposed of by us (Roe v. Dailey, from Dallas) presented a state of facts which properly entitled the petitioner to enjoin a sheriff’s sale to prevent a cloud upon his title. We stated, in our opinion in that case, the rule of law, as we understand it to be, which determines what character of title it is that is regarded as a cloud upon a valid title, to prevent which an injunction will be granted. “ In the exercise of the jurisdiction for the prevention of cloud upon title, a distinction is drawn between cases where the invalidity or illegality charged as the cloud is shown.by evidence dehors the record, and where it appears upon the proceedings themselves. And while in the former case the relief is freely granted, in the latter, courts of equity will not interpose.” “ Where, therefore, the cloud which it is sought to remove can only be shown to be a good title by leaving that of complainant out of the question, an injunction will be refused.” High on Inj., sec.. 272. The title which the plaintiff in this case fears will becloud his, so far as the petition discloses, appears on the face of the record to be wholly invalid, and no evidence dehors the record is required to exhibit that fact; and a title derived through the second sale by the sheriff of the same interest in the land as that which was acquired by plaintiff under the first sale, could only appear to be a good title by leaving the plaintiff’s out of the question. . The plaintiff alleges no fact, beyond this bare comparison of titles, to show that he is entitled to equitable relief upon grounds showing that he is remediless at law.

There was no trial upon the facts of th.e case, and the judgment of the court has no other support than the petition, which, as has been seen, affords no basis for a judgment for the plaintiff, if the proper parties even had been before the court. It is not necessary for us to determine whether the answer' of the defendant was amenable to the plaintiff’s exceptions or not. Whether the equitable right of Thomas Wardlovv, arising under his agreement with the plaintiff, to refund to the latter the purchase price paid for the lan^, and to become again invested with the title to the land, is the subject of levy and sale urtder execution, is a question which requires consideration. In the case of Daugherty v. Cox, 13 Tex., 212, it was said, in effect, by Justice Lipscomb, that, although’ it is in a certain sense correct to say that an equitable interest in property may be levied on and sold under execution; that whilst it may be that an equitable claim to title or a resulting trust may sometimes be subject to sale by execution, yet every equity may not be subject to"sale. “If, for instance,” he remarked, “a purchaser had paid for the land and taken a bond for title, the land would be subject to execution against the purchaser, because there would be nothing uncertain, nothing to be done on the part of the purchaser, nor on the part of the vendor, but to make the title. If, however, other things were to be done by the parties, . . . until these things were done there would be no. such equity ... as would make it subject to the levy of an execution against the holder of such equity.” It seems at least questionable whether the equity set up by the answer is such as might be sold under the execution, and if it is not, the court did not err in sustaining the plaintiff’s exceptions- to the answer. We will not, however, determine that question, as to do so cannot upon another trial serve any beneficial purpose, unless the plaintiff shall be able, by amendment of his petition, to present a case essentially different from that set out in his petition.

[Opinion delivered May 31, 1880.]

We are of the opinion that there is manifest error in the judgment, for which it must be reversed.

Beversed and remanded.


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    William Blackburn et als. v. Alexander McDonald.
    (Case No. 3336.)
    1.. Deed—Description.—Where land in a deed is described by number of acres, grant and county, and the grantor owned, at the date of his grant, that- or a less number of acres, the deed will convey the land, such facts being shown. When a larger number of acres is owned than that granted, the grantee becomes by the deed a co-owner or tenant in common with right of selection or partition. 46 Tex., 335; 23 Tex., 36; id., 136; 48 Tex., 379; 46 Tex., 99; 50 Tex., 369; 51 Tex., 614; 52 Tex., 246 ; 25 Tex., 519; 29 Tex., 201; 18 Tex., 116; 14 Tex., 270.
    Error from Bobertson. Tried below before the Hon. John B. Bector.
    September 19,1871, Wm. Blackburn and others, plaintiffs, brought an action of trespass to try title against Alex. McDonald, and for partition against other defendants named in the petition and alleged to be joint tenants with .plaintiffs in certain lands. The lands were alleged to have been conveyed by a warranty deed, April 8, 1870, by B. C. Blackburn to said co-owners, described as “lying and being situated in the county of Robertson and state of Texas, it being a part of the headright of H. Reed and containing five hundred and forty acres.” Annexed to the petition as an exhibit was a copy of the deed, being “ deed of gift ” in consideration of her love and affection to the grantees, who are in the deed stated to be her children. The deed, closed with covenant of warranty.
    June 4, 1872, McDonald filed general demurrer and amended, pleading not guilty.
    June 11, 1873, plaintiffs amended, alleging that the grantees, five in number, were the only children of the grantor, and that by virtue of said deed the said vendees became and were, on 8th of April, 1870, seized and possessed in -fee-simple of said land, each as joint tenant of an undivided one-fifth interest in said land, which is fully described as follows: lying and being situated in Robertson county, state of Texas, a part of the headright of Henry Reed, deceased, consisting of two surveys described as follows (giving field-notes) ; the two tracts containing together but four hundred and fifty. acres; that the said grantor, subsequent to her deed to plaintiffs, had executed to defendant McDonald, who had full knowledge of the facts and of plaintiffs’ rights, a d'eed for three hundred and twenty acres of the land so conveyed to her children as aforesaid.
    Defendant, by amendment, excepted to the petition as amended, and particularly to the insufficiency of the deed alleged as the evidence of title by plaintiffs, as void for Uncertainty of description, etc. Matters in bar were also pleaded, not necessary to be stated.
    June 20, 1874, plaintiffs further amended, alleging “ that the land intended to be conveyed by said deed of 8th April was two tracts containing together four hundred and fifty acres conveyed by deed from P. H. Smith and wife to Wm. Blackburn (the deceased husband of the grantor), of date 22d June, 1855, and also described in a certain decree of title of the district court of Robertson county, at its fall term, 1866, “ which deed and decree is herewith filed in evidence to identify said land;” . . . “that the above described land was the only land owned by the said'Bethenia” (the grantor) at the time of the execution of the said deed of the 8th day of April, 1870, being a part of the H. Reed headright in Robertson county, and the land on which she resided at the time of the sale.”
    June 30, 1874, the demurrer and exceptions of defendant to the petition were sustained, and plaintiffs declining to amend, judgment final was rendered for the defendant; from which plaintiffs appealed by writ of error.
    The errors assigned are the sustaining the demurrer and exceptions of defendant, and rendering judgment for the defendant.

      Davis <& Beall, for plaintiffs in error.

      William R. Ramman, for defendant in error.
   A. S. Walker, J.

The only question presented is the sufficiency of the deed set out in the petition.

The appellee insists that it is void for uncertainty; 'and urges that the allegation of mistake in the number of acres, as stated in the amendments to have occurred in writing, the deed, changes the suit into a proceeding to correct,such, mistake, and without making the grantor a party. To this we cannot assent.

In suing for the land in trespass to try title the plaintiffs are entitled to a liberal construction of the terms of description; such also follows from the disposition of the case.upon demurrer. The description in the deed is supplemented by allegations to which parol evidence may be admitted.

The question cannot be considered an open one. In 46 Tex., 335, Roberts, C. J., delivering the opinion (Flanagan v. Boggess), in discussing the validity of a tax deed, containing as description six hundred and twenty acres of the head-right of David Brown,” it is stated, “the deed in the case before us does not purport to convey an undivided part of a larger tract of land as in the case of Wofford v. McKinna. The ‘six hundred and twenty acres of the headright of David Brown ’ may be all of the D. Brown headright located. in that survey, the balance being elsewhere,” etc.

Referring to the case of Wofford v. McKinna, 23 Tex., 45, Justice Wheeler discusses the principles controlling' such deficient descriptions, as follows: “A grant by the owner of a certain number of acres in a particular tract would confer the right of election upon the grantee, and authorize him to locate the quantity upon any part of the tract he saw proper to elect, upon the principle that a conveyance must be held to pass some interest, if such effect may be given to it, consistently with the rules of law; and that if uncertain or ambiguous it must be construed most .strongly against the grantor. But in this respect, it is said, there is a wide difference between a conveyance by the owner and by a public officer. The former may sell upon his own terms, and may confer a right of election upon his grantee.”

The right of the grantee to explain the intent by parol evidence to aid a latent ambiguity in description, recognized as existing in deeds made by the owner, obtains equally in deeds for a good as for a valuable consideration. The limitation upon deeds by public officers is based upon the want of power of such officers. By the amendments to the petition in this case the land is described as being in Robertson countjq state of Texas, five hundred and forty acres of the H. Reed survey, all she had on the survey; being that deeded to her and on which she resided; described by metes and bounds.

• Such descrijftion fully answers the requisites when sus- ’ tained by testimony, validating a deed equally indefinite as that described. It does not appear but that five hundred and forty acres was all of the headright. of H. Reed, located in Robertson county.

It is not perceived why a deed by the owner for a definite number of acres out of a larger tract sufficiently indicated would not convey a right to that number of acres, with the right to select by the grantee, from the force of the terms of the conveyance; or with right to enforce a partition with the co-owners of the tract. It is believed that by custom much conveyancing has been of this nature, and to hold, as between parties, such deeds invalid would unsettle land titles to an injurious extent. Such deeds have not in terms been declared invalid; yet when supported they have been upheld upon other principles than those enunciated in McKinna v. Wofford. The true rule is believed to be, when the land is described by number of acres, grant and county, and the grantor owned, at date of his grant, that or a less number of acre§, the deed would convey the land, such facts being shown. Where a larger number of acres was owned than that granted, then the grantee would by the deed become a co-owner or tenant in common with right to partition, or with right to select the quantity from the larger tract. “If the owner of a tract convey a number of acres less than the whole, without any designation of their locality, the grantee thereby acquires an interest in the whole tract, as a tenant in common with the grantor.” Freeman on Co-tenancy & Partition, § 96 and authorities. The discussion in Norris v. Hunt, 51 Tex., 609, was with reference to a sale by the United States marshal; and not authoritative as to deeds by the owner, as above stated.

[Opinion delivered May 31, 1880.]

The subject is discussed or noticed in the following cases: Flanagan v. Boggess, 46 Tex., 335; Wofford v. McKinna, 23 Tex., 36; Kilpatrick v. Sisneros, 23 Tex., 136; Ragsdale v. Robinson, 48 Tex., 379; Kingston v. Pickens, 46 Tex., 99; Wilson v. Smith, 50 Tex., 369; Norris v. Hunt, 51 Tex., 614; Rainbolt et al. v. March, 52 Tex., 246; Davenport v. Chilton, 25 Tex., 519; Presley v. Testard, 29 Tax., 201; Early v. Sterrett, 18 Tex., 116; Berry v. Wright, 14 Tex., 270.

For the error in sustaining the demurrer to the petition, the judgment below should be reversed.

Reversed and remanded.