text:
    Hester A. Lyttle et al. v. E. P. Harris et al.
    (November 12, 1879.)
    Married women, suits by.—Eight to sue for a separate interest in property. When joinder of husband and wife is proper. Assertion of wife’s homestead right.
    Petition.—Sufficiency of allegation of joinder of husband as plaintiff.
    Same.— Sufficiency of allegation of estate owned by plaintiffs.
    Appeal from Johnson county. Opinion by Walker, P. J.
    Statement.— This was a suit, as shown by the amended petition, brought by Hester A. Lyttle joined by her husband, J. J. Lyttle, for the recovery against E. P. Harris of a certain lot in the town of Cleburne, and for rents. The petition alleges that the property was purchased by said plaintiffs in'the year 1867, from B. J. Chambers; was fully paid for by them, the greater part of the consideration paid being the separate property and funds of said Hester A.; that the deed was made to said J. J. Lyttle; that they moved on said lot and resided upon it, and that it was their homestead and is still their homestead. The petition alleges that, being so possessed of their homestead, the defendant, on the 2d day of November, 1868, unlawfully entered upon their said premises and homestead and ejected plaintiffs therefrom; and wrongfully withholds possession of same, to plaintiffs’ damage $500. The petition alleges that plaintiffs, since their ejection, have owned no other real estate, and have acquired no other homestead; plaintiff Hester A. says that, after said ejection, her husband moved her axvay from Cleburne, and has wandered about xvith his family from one place to .another, in the counties adjoining Johnson county, living most of the time in a tent. She alleges that soon after their said dispossession she applied to her husband to join her in a suit to recover possession; that he refused to do so at the time; she also alleges that in the year 1870 she engaged the services of a lawyer to institute suit to recover possession of said homestead, who declined doing so for the reason that the supreme court had decided, during that year, that a xvife could not maintain a suit for such a purpose alone; that afterxvards, by frequent persuasions, she succeeded in obtaining the consent of her husband, in the year 1878,"to bring the suit, and this action was at once commenced on the 10th of June of the year last mentioned. The petition proceeds to allege, further, that “ plaintiff Hester A. says she never intended to abandon her homestead and has never abandoned it; that she did not return to it simply because she could not get possession; that plaintiffs were not residing upon said lot at the time defendant got possession of the same; that plaintiffs had been sending their children to school and xvere indebted for their tuition; that plaintiffs moved off from their said home and rented the same by the month in order to raise funds to settle said tuition, and while said property ivas so rented plaintiffs lived on a vacant lot in the said town of Cleburne in a tent, and whilst so living in said tent defendant got possession of their homestead.”
    The petition concludes with a prayer for relief in behalf of the plaintiffs. “They pray,” etc., “that plaintiffs have judgment in said premises, damages, rents, and that they have a writ of restitution, and for general relief.”
    It appears from the answer that the original defendant disclaiming, A. Q-. Jones, by leave of court, defends, and in his amended ansiver files a general demurrer to the peti- ■ tion, and as grounds therefor:
    1. That it is not averred what amount of the purchase money was paid out of the separate funds of said Hester A., nor that any part of said lot is her separate property, or whether the same is community property or not.
    2. That it is not averred that the husband, J. J. Lyttle, did not. abandon their said homestead, nor that the said Hester A. refused to follow her husband, or ivas compelled by him to leave Johnson county and live in a tent with her said husband and family.
    3. That the petition does not allege what estate the plaintiffs claim in said premises.
    4. That the cause of action for rents appears on the face of the petition to be barred by the two years’ statute of limitations. The demurrer was sustained by the court, and, plaintiffs declining to amend, judgment ivas rendered for the defendants; the plaintiffs on their appeal assign as error the sustaining the general demurrer and rendering final judgment against plaintiffs'.
   Opinion.— Ho brief or argument has been offered by the appellees, and the brief of the appellants submits to us the hypothesis that the ruling complained of wras based on the assumption that the husband, J. J. Lyttle, was a mere formal party and not a real plaintiff, notwithstanding his joinder in the petition with his wife, and that she, therefore, in effect, suing alone, could not, under the allegations made, maintain this action. The husband, J. J. Lyttle, under the averment that Hester A. Lyttle sues, joined by her husband, J. J. Lyttle, certainly affirms as effectually as she does that he joins her in the prosecution of the suit, and, therefore, that he consents and unites with her as plaintiff in so doing; the extent and degree to which he does so may be entire and absolute or qualified, according to the allegations of the petition taken and construed as a whole. Assuming that ordinarily the wife cannot sue for community property or interests unless under some one of the recognized exceptions to that general rule, and that in such case the husband should be the sole actor, yet, in respect to her separate property, she may join with her husband; he may sue alone and under certain circumstances she may sue alone. McIntyre v. Chappell, 2 Tex., 378; Cannon v. Hemphill, 7 Tex., 184; O’Brien v. Hilburn, 9 Tex., 299; Chapman v. Allen, 15 Tex., 284; Edwards v. Dismukes, 53 Tex., 605.

In this case the question need not be determined with reference to the rule to be applied to the petition viewed as a suit for the recovery of community property. The petition alleges that her separate funds, to the extent of the larger share of the purchase money of the lot, were paid in the acquisition of the title to the property sued for, and therefore, irrespective of her homestead rights, she shows, under a very general averment, it is true, yet not specially excepted to, that her separate property contributed at least one-half to the purchase of the lot in dispute, and she may when joined with her husband, or in other words both may jointly, sue for her interest in it, and if he refuses to join her she may sue alone. Where it is established that the property was purchased with the separate money of one of the parties, it remains the separate property of the party with whose money it was purchased. Love v. Robertson, 7 Tex., 6; Huston v. Curl, 8 Tex., 240. Yet if she had no interest in the lot as her separate property, and considering it as community property, if it were necessary to assert in a suit her right to it as a homestead, that she would be a proper party cannot be questioned, and that her husband joined with her as plaintiff, or, if necessary, made defendant, is also a proper if not a necessary party, is not questioned. Under either aspect these are proper parties to this suit if the husband has indeed joined the wife in this suit.

The allegation that they join as plaintiffs in bringing the suit is prima facie sufficient, and indicative that he is plaintiff with her for all the purposes for which he may be allowed to assist in asserting her rights, even though he may claim none in his own individual behalf or interest; or according to the case which may be made by the petition, he may, in joinder with his wife, assert and maintain rights and interests connected with those of his wife pertaining to the subject-matter of the suit. They are co-plain tiffs, and he assumes, under the averments of the petition, all the responsibilities of a real and voluntary litigant as to costs, and the conclusive effectiveness of the judgment which shall bo rendered. The petition proceeds explicitly, in addition to the formal recital of joining his wife, etc., to distinctly allege the specific time and circumstances when he consented to join in the suit, and that then the suit was brought; true, the allegation referred to is made in the connection of showing why the seeming delay to sue had occurred, thus accounting for a seeming abandonment of the claim specially set up by his wife to the homestead; but it is to be observed that all the allegations of the entire petition are those made and adopted by both plaintiffs jointly, and the material averments in the terms used in the petition are charged by them jointly, and they jointly pray for the same relief, pertinent and appropriate to a joint complaint and cause of action. The petition shows, therefore, that the husband and wife do sue jointly. Uor does the form of expression employed in the introductory part of the petition, to wit: “Hester A. Lyttle, joined by the husband, J. J. Lyttle,” negative or qualify the proposition that they both are real parties, and that the husband is not a fictitious, nominal or formal party.

There exists abundant good reason, under our system of laws, to construé the right of the wife to sue jointly with her husband, or alone if necessary, in the assertion of her homestead rights, under similar privileges as those accorded to her in respect to her separate property. Although, in the strict technical legal sense, her homestead right may not be appropriately comprehended by the term “effects of the wife,” used in the act of 1840 (P. D., art. 4638), yet to render effectual the guaranties afforded to her by the constitution and laws of the land to rights of homestead, around which are sought to be established the most effective guards and impregnable barriers for her protection and security, the right, on her part, alone if necessary, to - assert them in the courts, is an incident without which the right itself would perish, and the beneficent policj'' for the protection of wives and mothers, a feature of the general homestead system which, of all others, shines forth most conspicuously, would be vain, and the great and wise design of the law frustrated.

It is held in Kelley v. Whitmore, 41 Tex., 647, that the wife may maintain an action to protect the homestead when the.husband is absent or refuses to join in the suit. The maintenance of this right is not restricted or qualified by any difference as to whether tbe homestead property belongs to the separate estate of husband or wife or to the community. Carter v. Randolph, 47 Tex., 380. The right of the wife to join with her husband for the recovery of the homestead as such, being community property, has not been questioned; nor ought her right to sue alone in such case be questioned, if her husband refuses to join her in the suit. The application of such a principle to the rights of the wife, in suits for her separate property, is of familiar application. The supreme court said in a case involving the wife’s separate estate, recently decided: “ Dismukes, the husband, having refused to join in the suit, was not a necessary party, and the dismissal of the suit as to him did not operate a discontinuance.” Edwards v. Dismukes, 53 Tex., 605.

In Murphey v. Coffee, 33 Tex., 509, it was held that the wife cannot maintain a suit in her own name in regard to community property, her husband not being a party, notwithstanding the property be the homestead. Mr. Justice Gould, reviewing that case in Kelley v Whitmore, 41 Tex., 648, construed it as having no reference to well-established exceptions to that rule, and proceeds to remark: “ That there are cases where the wife, being abandoned by the husband, her power to manage and control the community property, and of necessity to enforce her rights by suit, is certainly the settled law of the state.” Citing Fulton v. Doyle, 18 Tex., 14; Wright v. Hays, 10 Tex., 132. So, then, it would seem that the right of the wife to sue alone is not, in respect to any right she may have either in community or separate property, or in respect to the homestead, further limited than by the necessity imposed upon her resulting either from the wrongful acts of her husband (O’Brien v. Hilburn, 9 Tex., 290) or by the abandonment, continued absence of her husband, or his refusal to join her in the assertion of her rights, according to the circumstances of the particular case.

The discussion of the right of the wife to sue alone has been by us further extended than a decision of the exact question in the record might seem to require, because of the allegations in the petition of the former refusal of the husband to join in this suit; and, in view of further proceedings, it is deemed proper to express fully our view as to the right of the wife to sue, either alone or by making her husband defendant, in case the question should arise growing out of his withdrawal from or refusal to further prosecute with his wife this suit.

The grounds of exception relied on by the defendant are not well taken, nor is the petition obnoxious to a general demurrer. The petition alleges facts which constitute the property a homestead. Its actual possession and occupancy as such until it was rented, and the temporary removal from it, did not affect the homestead quality and rights thereto. Thomas v. Williams, 50 Tex., 269. It continued to be the homestead when the alleged eviction occurred.

The other facts alleged relating to absence therefrom, failure to sue, etc., account for, explain and sufficiently negative acquiescence on the part of the wife in whatever intention the husband may have entertained of abandoning a right shown to have been possessed by both, or that another homestead may have been acquired. “If a homestead may be disrobed of its guaranties and the protection lost,” said Chief Justice Hemphill, in Gouhenant v. Cockrell, 20 Tex., 96, “ before a new and permanent one has been acquired, it must be undeniably clear and beyond almost the shadow, at least all reasonable ground, of dispute, that there has been a total abandonment, with an intention not to return and claim the exemption;” and in many other cases decided by the supreme court the above-quoted maxim has been applied to facts in favor of the homestead claimant in cases where the intention to abandon the home seemed far more equivocal than those which the plaintiffs here allege to have existed.

It was not necessary for plaintiffs to allege the estate owned by them in the land with greater particularity than was done; they alleged a conveyance to them by deed, ownership and payment of the purchase money. A grant or conveyance of land without the use of words necessary at common law to transfer an estate in fee-simple shall be deemed a fee-simple if a less estate be not limited by express words. P. D., art. 999; Bell County v. Alexander, 22 Tex., 358. And the allegation that a conveyance by deed was made of the property to J. J. Lyttle imported sufficiently that the fee-simple title was vested in the purchasers by such conveyance. But aside from this view, the general averment of ownership at the time suit was instituted would be deemed sufficient.

It is not deemed necessary, under the views already expressed upon the- case, to discuss further the grounds of exception relied on in the court below. We conclude, therefore, that there was error in sustaining the demurrer of the defendant, and that the judgment must be reversed and the cause remanded for further proceedings.


source: Caselaw Access Project

license: Public Domain

text:
    B. F. Hammond et al. v. G. M. Coursey et al.
    (November 30, 1880.)
    PcWEr OE ATTORNEY.— A copy of a power of attorney properly authenticated is not admissible in evidence without showing the loss of the original or accounting for its non-production.
    It is not necessary for a power- of attorney to describe the lands authorized to be conveyed with particularity: it will be sufficient if it can be shown what were intended.
    Evidence.—It is error for the judge, in his charge, to recite the evidence and call the attention of the jury to particular portions of it, and tell the jury from such evidence they might presume a certain fact to exist. This would be a charge upon the weight of evidence.
    When one side introduces evidence the other may use it for every legitimate purpose.
    Appeal from Falls county. Opinion by Quinan, J.
    Statement.— From the state of the case it will be seen that many of the numerous questions which have been raised by the assignment of errors in this case have already been considered and determined in the cases in the supreme court between the plaintiffs here and other parties growing out of the same titles and testimony, and we are, therefore, relieved of the necessity of reconsidering them. See Hammond v. Hough, 52 Tex., 03. The questions now to be considered. are as to the admissibility in evidence of the power of attorney of October, 1838, from Steele to Livermore, the admissibility of the testimony of Gonnally as to his understanding how Livermore acquired the land in controversy, etc., and the admission of the transcript of proceedings in the succession of Livermore, and the judge’s charges.

      The admissibility of the power of attorney was objected to on the ground that it was but a copy; that no predicate was laid for its admission by proof of the loss of the original, or its non-production accounted for. The court permitted it to be read as an ancient document. This instrument, or the original of which it is a copy, appears to have been drawn up and executed before the notary, Harvey, in accordance with the laws in force in the year 1836. Smith v. Townsend, Dallam, 569. Acts of this character were performed in the notary’s office, and they remained there as a part of his record. He authenticated his acts with instrumental witnesses, and gave copies to serve the parties as testimony, signing his name as notary, with witnesses of his existence. Seals were then unknown as means of authentication. This, inconvenient method for the execution of instruments was novel and unaccustomed to our people, and it was doubtless with a view to the adoption of a mode with which they were more familiar, that the several Statutes were passed by the congress of the republic for the appointment of notaries public, and providing the manner in which their acts should be authenticated. The act of December 20, 1836, made the chief justices of the county courts ex officio notaries public, and directed that the seal of the county court should be their notarial seal, and be affixed to all instruments and attestations. The act of November 16, 1837, provided for the appointment of notaries for the ports of entry (of which Matagorda was one),'and its second section declared “ That the several notaries public shall have a seal of office, and all certificates or other acts performed by them shall be signed by the said notaries, and the seal of office thereunto affixed.”
   Opinion.— We have little doubt that these acts were intended to supersede the former cumbersome mode of the authentication of instruments and supply its place. Instead of authenticating his acts with assisting witnesses, after the adoption of these statutes, the notary could only do so by his signature and seal of office. The instrument of which that offered here in evidence purports to be a copy does not appear to have been so authenticated. Wanting the seal of the notary, it is not an authentic act, but simply a private writing; effectual, doubtless, as any other instrument, signed by the maker and attested by subscribing witnesses, but nothing more. It was the original, but not authenticated so as to be, of itself, proof, or form a part of the notary’s archives. A copy of it, under the notary’s hand and seal, does not prove that the original was ever executed. Hor would the original, if offered, prove itself, except as all other private writings may, in certain circumstances, be considered as proven. The question, then, as to the admissibility of this instrument must be determined by the same rules as other private writings; and it is manifest that, as a copy, it was but secondary evidence, and not admissible without proving the loss of the original or accounting for its non-production. The original power of attorney was the best evidence and should have been produced, or some good reason given why it was not.

But this copy seems to have been considered by the court as a testimonio or second original, and so admitted as an ancient instrument upon the supplanatory proof of its having been found in the custody of parties claiming under it, and that it had been acted upon. This, as we have shown, was a mistake. If it was a “second original” it needed no supplanatory proof, because it was given under the hand and seal of the notary, and his certificate was neither better nor worse because of its antiquity.

The objections, therefore, of plaintiffs to the introduction of this instrument were well taken and should have been sustained.

An objection is made also to this instrument on the ground that it does not sufficiently describe the lands which it is intended the attorney shall be authorized to sell, but this, we think, is untenable. The document says, “those lands contained in three deeds in favor of said affiant, containing nine thousand five hundred acres more or less, which deeds are in the hands of his said attorney, or would be more particularly described.” It was perfectly competent to show, by proof, what lands were meant. The fact that the deeds for lands corresponding to that amount were in the possession of the curator of Livermore would tend strongly to establish that fact. The conveyance by Livermore of the land under this power of attorney and other circumstances might be adduced which would render it perfectly clear what lands it was intended to embrace. Hughes v. Sandal, 25 Tex., 164. It was a question of fact for the jury to determine, and properly submitted to them. It cannot be said that there was no evidence to warrant its submission. Dunnegan v. Butler, 25 Tex., 501; Burleson v. Burleson, 28 Tex., 415; Early v. Sterrett, 18 Tex., 116.

The judge, on the trial, charged the jury, in effect, that “ this power of attorney from Steele to Livermore, dated October 6, 1838, proves itself as an ancient document, and proves that Livermore had power to make a valid conveyance of the lands described in said power,” etc., and this charge is assigned as error. From what we have said it follows that this charge is erroneous. The instrument was improperly admitted in evidence.

The sixth division of the judge’s charge is assigned for error:

6. “In determining the question whether the said power of 1838 included the land'in controversy, you will consider the fact that the deed was made by the attorney soon after its execution, reciting said power as his authority, then recorded at the same time, the defendants claiming and asserting title under them, made the instruments, being in the custody, the lapse of time since the transaction, the exercise of right of ownership and payment of taxes on the same by the defendants or their vendor, under whom they claim, together with power of 1839 from Steele to Liver-

more to the lands therein described, which power does not include the land in controversy, together with all the facts in evidence before you, in determining whether the land in controversy is a part of the nine thousand five hundred acres named in said power of 1838; and in the absence of direct proof you are authorized to presume from such facts and circumstances that the land in controversy is part of that named in said power dated in 1838. Such presumption is not a legal presumption by which yon are so bound to find; .but you are to find the fact or not from a consideration of the facts and circumstances in evidence.”

We are of opinion that this instruction is obnoxious to the objection made as a charge upon the weight of evidence. It was improper to recite the documents and facts given in evidence, calling the attention of the jury to the power of attorney of 1839, and then instruct them that, from these facts and circumstances, they were authorized to presume that the land in controversy was part of that named in the power of attorney of 1838; nor was the. error remedied by telling them that this was not a legal presumption by which they were bound to find. Woods v. Chambers, 20 Tex., 247; Castro v. Illies, 22 Tex., 479. See Gray v. Burk, 19 Tex., 228; Rogers v. Broadnax, 24 Tex., 538; McFall v. Walker, 25 Tex., 327; Kimbro v. Hamilton, 28 Tex., 560; Bryant v. Kelton, 1 Tex., 415.

The admission of the transcript of the record of the district court of the parish of Orleans is assigned for error. This objection is not well taken. The plaintiffs themselves introduced it in evidence, and the defendants had the right to use it to show all the proceedings in the administration of- Livermore. It was relevant and important as tending to rebut the charge of fraud or concealment of the acts of Livermore, for it disclosed how readily Steele or his heirs could have obtained specific information of the existence of this power of attorney of October 4, 1838, and the conveyance of the land in controversy by virtue of it.

The objection to the testimony of Connally is not well taken. It appears from this record that the plaintiffs themselves introduced it. It was taken by them upon a bill of discovery. It was admissible as tending to show his good faith in the purchase of the Bailey bond. He had been charged with knowledge of the alleged fraud committed by Livermore, and he had a right to purge himself of it. In so much of his testimony as tends to prove facts in controversy by his understanding of them, the charge of the judge directed the jury that “his opinions or conjectures are not proof of-the facts so-believed or conjectured by him,” and the jury could not, therefore, have been misled by the testimony. ;

The other points which have been raised by the assignments in this case have been determined in the cases referred to, and it would be quite unnecessary to reconsider them here. It is only useful to refer to them. For the errors indicated the judgment is reversed and the cause remanded.


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    William Green v. Guadalupe County and James A. Wren.
    (November 15, 1880.)
    Drafts, suit on — Evidence.— Plaintiff sued upon certain drafts, and a demurrer to his petition was overruled; the court below after-wards refused to allow said drafts to be introduced in evidence. Held, error.
    Appeal from Guadalupe county. . Opinion by Quinan, J.
    Statement.— This suit was instituted by Green against Guadalupe county and one James A. Wren upon three warrants or drafts drawn b}^ the presiding justice of Hays county on the treasurer of Guadalupe county in favor of James A. Wren, sheriff of Hays county, for keeping prisoners of Guadalupe county in Hays county jail, etc., as allowed by the county court of Hays county. The drafts were indorsed, approved by the district judge, and were indorsed and assigned to the plaintiff, Green, by Wren. They were registered by the county treasurer of Guadalupe county, and were duly presented to the commissioners’ court of that county for recognition and payment, but were rejected, and thereupon plaintiff sued.
    The defendant demurred, but the demurrer was overruled. Guadalupe county answered' denying its liability upon the drafts, alleging that the presiding justice had no authority to draw the drafts, and that they are for a larger amount than Guadalupe county is indebted, etc. Defendant Wren answered denying his liability. The case was submitted to the judge. Upon the trial the plaintiff offered these drafts in evidence, and they were objected to, for what cause does not appear, and the objection was sustained, to which plaintiff filed his bill of exceptions, and, declining to proceed further, judgment was rendered for the defendants. This judgment is brought up for revision by writ of error.
   Opinion.— It is not easy to perceive upon what ground the court rejected these drafts when offered in testimony. It is not suggested anywhere in the record, and the appellee has filed no briefs. The overruling of the general demurrer to the petition based upon them indicates that in the opinion of the judge they were a good cause of action.

Without doubt Wren was responsible upon them by reason of his indorsement. And prima facie the county of Guadalupe was liable thereon. On their face they purport to be on account of Guadalupe countv7 prisoners kept in Hays county jail. Guadalupe county was responsible for the payment of the charges of keeping and guarding them. And the manner in which that liability shall be fixed is determined by the statute. P. D., art. 3395. It provides that the chief justice “ shall also give the said sheriff a draft for the amount of each account allowed by him on account of any prisoners brought from another count}7 for safe keeping or trial, or change of venue, on the county treasurer of the county from which such prisoner may have been brought, and the same, when presented to the treasurer of-such last-named county, shall be paid out of any money in his hands.” '

Whether further proof than these drafts afforded of the justice of the claim upon the county of Guadalupe might be required, or what defense could be made to them, is not the question presented. But they were given to the sheriff apparently in substantial compliance with the statute, and as a necessary prerequisite to the collection of his claim against the county. The holder of them could not recover in this suit without putting them in testimony; and manifestly it was error to reject them.

The judgment will therefore be reversed and the cause remanded.


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    John Webb v. Jim Brown.
    (November 15, 1880.)
    Deeds, conflicting calls. — It is settled, as a general rule in the construction of deeds, that, in case of a discrepancy in the description of the premises between the distances and the boundaries, the former are to be controlled by the latter, on the ground that the lesser must yield to the greater certainty.
    Still, the course or distance is made to prevail over boundaries when, upon applying the calls of the grant to the land, the surrounding and connected circumstances adduced in proof to explain the discrepancy show that course or distance is the most certain and reliable evidence of the true locality of the grant.
    The court will not presume that a surveyor did not actually run the lines of a survey in the absence of testimony.
    It may be generally stated that where the number of acres is referred to as an “ estimated ” quantity, or coupled with the clause “more or less,” or is clearly a matter of description, it is not a covenant.
    Damages; measure of, for breach of warranty.—The general rule applicable to the measure of damages, where the eviction is only partial, as in this case, is that the grantee can recover only in the proportion which the value of the premises from which he has been thus evicted bears to the whole premises, and the interest thereon and costs and expenses, subject to the same qualifications and conditions applicable in cases of total eviction.

      Appeal from Kaufman county. Opinion by Walker. P. J.
    Statement. — The appellant assigned, among other grounds of error, the following, viz. s
    4. That the court erred in permitting plaintiff to recover on breach of warranty to title of the E. A. Terrell survey, when the proof showed that title to said Terrell survey had i not failed.
    5. That the court erred in giving judgment for plaintiff for damages growing out of breach of warranty of title, when all the proof only tended to show a shortage in the quantity of acreage; that the title to said survey was admitted and proved to be good.
    These two assignments may be considered together. As applied to the, facts of this case, they involve the proposition whether, when the description given in a deed by metes and bounds, under a survey which has been made of the land, and the line of tíie survey of a different tract of land is called for, and the line as purporting to have been run according to distance shall pass over said line of such other survey, and thereby embrace within said metes and bounds a part of said adjoining tract of land, whether the line or boundary of the latter tract thus called for shall necessarily and conclusively control the calls of the lines for course and distance; whether, in other words, by the terms of the deed and its legal effect, containing such a description of the land conveyed, the boundaries are restricted to the line of such adjoining survey. If they are not, the further proposition contained in the fifth assignment of errors need not be considered, because there would not be, in fact, any “ shortage ” in the number of acres intended to be conveyed, and the question involved would be that which arises on a failure of title as to part of the land conveyed.
   Opinion.— It is settled, as a general rule in the construction of deeds, that, in case of a discrepancy in the description of the premises between the distances and the boundaries, the former are to be controlled by the latter, on the ground that the lesser must yield to the greater certainty. The rules by which courts are governed in determining from the description of the land given by the calls in a deed are but those of reason, founded on experience and observation, applied to the subject for the purpose of identifying and rendering certain the true locality of the land as the same has been actually located or surveyed.

Justice Roberts, in Booth v. Upshur, 26 Tex., 70, thus stated the principle with its mode of proper application: “ There is no law fixing the effect of any call found in a grant or giving one any more weight or importance than another. Therefore, by merely looking at the face of the grant, which has several calls, the controlling call cannot be determined. Courts that have had to determine between conflicting calls, upon motions for new trials and otherwise, have laid down rules for their decision, founded on reason, experience and observation, which are rules pertaining, not to the admissibility, but to the weight of evidence. They have generally agreed upon a classification of and gradation of calls in a grant, survey or entry of land, by which their relative importance and weight are to be determined. The first class of calls are natural objects, such as rivers, creeks, mountains, etc. The second are artificial objects, such as marks on trees, and marked lines, etc.; and the third are course and distance. Thus, in the abstract, or other things being equal, a river prevails over a marked line, and a marked line over course and distance. Still, the lowest grade, to wit, course or distance, is made to prevail over the highest grade, to wit, rivers, creeks, etc., when, upon applying the calls of the grant to the land, the surrounding and connected circumstances adduced in proof to explain the discrepancy show that course or distance is the 2nost certain and reliable evidence of the true locality of the grant.”

The practical application of the foregoing rules has been illustrated in the decisions of our supreme court under very many varying, important and interesting phases in cases too numerous to require citation. See Urquhart v. Burleson, 6 Tex., 511; Bass Mitchell, 22 Tex., 294; Mitchell v. Burdett, id., 535; Booth v. Strippleman, 26 Tex., 442; Bolton v. Lann, 16 Tex., 111; McCown v. Hill, 26 Tex., 361; Castleman v. Ponton, 51 Tex., 84.

It is contended by the appellant under the fourth assignment that the title convreyed to the plaintiff had not failed, notwithstanding the admitted fact that the deed recited the contents of the tract to be one hundred and sixty acres, and that it contained but ninety acres, because, as he urges, that the field-notes recited in the deed call for the boundary line of the Bennett survey, and that the tract, being thus limited by that call, and embracing thereby only ninety acres, that the other calls by course and distance, which, if they should prevail, would include a part of the land embraced in the Bennett survey (admitted to be an older and a valid title), must be disregarded, and that in consequence there was no failure in the title con\Teyed by the deed. The plaintiff’s cause of action, being based upon the defendant’s warranty of title, relies upon the existence of the actual survey, as described in the deed, to the points indicated according to the courses and distances set forth in the field-notes, and alleges eviction from the excess of land thus embraced in the one hundred and sixty acre survey, and surrender to the adverse paramount title.

A discrepancy as to the actual lines and boundaries of the survey as actually made by the surveyor exists not on. the face of the deed, but under the facts admitted, xvhich demonstrate that if the survey does include one hundred and sixty acres, that the call for the Bennett line is incorrect, and that the lines of the survey passed over it and included within them seventy acres of the Bennett tract.

Whether the survey was in fact thus made or not xvas a fact to be ascertained by the judge who tried the case. There was evidence before him strongly tending to estabfish the existence of the survey upon the ground in accordance with the courses and distances indicated in the field-notes. In determining a question of this kind, where a seeming repugnance exists in the calls like that which is presented here, no unfavorable presumption, in the absence of proof, will be indulged against the truthfulness and correctness of the calls; it will be presumed that the surveyor did actually make the survey as indicated in his field-notes. Stafford v. King, 30 Tex., 257. The court will not presume that a surveyor did not actually run the fines of a survey in the absence of testimony. Castleman v. Ponton, 51 Tex., 84. It was proper, therefore, in attempting to reconcile the discrepancy in the calls of the survey, to adopt the rule which would explain, if possible, a mistake, if any existed in them, and which would thereby establish with reasonable certainty where the survey in fact was made; to follow, indeed, the footsteps which the surveyor made upon the ground.

It is admitted that both of the surveys or tracts of land were in the prairie and unoccupied, and that neither of the parties knew anything of the boundaries of either tract.

Ko evidence on either side was adduced in anywise explanatory of the field-notes of the survey of the land conveyed to the plaintiff. The field-notes are as follows, to wit: Beginning at the north corner of A. J. Batts’ survey, from which two post oaks six and ten inches in diameter bear north thirty-seven east twenty-five varas' distant; thence south forty-five east four hundred and seventy-five varas to corner, from which a pecan twelve inches in diameter bears north forty-five west seventy varas distant, a walnut ten inches in diameter bears north, north thirty-three, east fifty-five varas distant; thence north forty-five east nine hundred and fifty varas, corner, from which a post oak bears north eighty-eight west one hundred and thirty varas distant; thence south forty-five east eight hundred and fifteen varas, corner; thence north forty-five east three hundred and fifty varas, corner on southwest line of A. Bennett’s survey; thence north forty-five west one thousand two hundred and ninety varas to a corner in the prairie; thence south forty-five west one thousand three hundred varas to the place of beginning.

The admission of the parties, taken in connection with the foregoing field-notes, “ that it was proven on the trial that the land conveyed by the defendant to the plaintiff contained only ninety acres — that it was short seventy acres,” established these facts,- viz.: that the lines, if actually run by course and distance, ran across and into the Bennett survey and did not corner on it, including within them seventy acres of the Bennett; that the line from the fourth to the fifth corner, calling for the Bennett line by a line in the field-notes of three hundred and fifty varas, should have stopped at forty-four varas distant from the fourth corner, and if the fifth corner was really established on the Bennett line, the surveyor made a mistake in the call for distance of three hundred and six varas in respect to a line which ought only to have been forty-four varas in length. It also shows that if the actual survey made ran on and with the Bennett line from the fifth to the sixth corner, that he made a like mistake in distance in the call of one thousand three hundred varas from the sixth corner to the place of beginning, when instead thereof the distance would have been a few varas less than one thousand. The survey purports to contain one hundred and sixty acres of land; according to the lines run by the courses and distances called for, the area embraced within them includes that number of acres, otherwise there exists a deficiency of about seventy acres. The field-notes and the admitted facts show the lines and cornel’s connecting these two surveys were in an unoccupied prairie, and the field-notes of that portion of the survey do not point to nor call for any natural boundary or visible landmark, natural or artificial; and there may have been none on the face of the ground whereby to identify or signalize the locality of the line of the Bennett survey, thus giving rise to the opportunity for error and mistake on the part of the surveyor in his supposed ascertainment of the locality of the Bennett line, on which he proposed to establish the fifth corner of his survey. It is thus further established that the configuration of the survey, if the lines were not run by the distances as stated in the field-notes, but according to the line of the Bennett survey, would have given a strip of land, as a part of the tract, eight hundred and fifteen- varas in length and in breadth only forty-four varas — a shape so awkward and impracticable as to amount to a circumstance to be weighed with the other evidence in favor of the integrity of the lines as to distance.

These circumstances, in evidence before the judge, were proper to be considered by him, and from which he well might have determined that the survey was actually made according to the courses and distances indicated in the deed, and that "they should prevail over the call for the Bennett line.

The opinion of the court in Castleman v. Ponton, 51 Tex., 84, delivered by Justice Gould, upon the facts of a case sufficiently analogous to well illustrate the rule of law properly applicable to this, may be here appositely referred ■ to. He remarks: “In view of the difficulty of believing that, in measuring in a line of eight hundred and eight varas, a surveyor could commit a mistake of about six hundred varas, so as to enlarge a survey intended to embrace but four hundred and twenty-one acres, to over seven hundred acres, and of the facility with which a marked line parallel to the east line of the Hope survey might be mistaken for that east line, we are of opinion that the additional evidence was sufficient to support the judgment, treating the calls for course and distance as, under the surrounding circumstances, the controlling calls.”

Another case lately decided at Austin (1880) has, I learn, if possible, even more exact application here than the case above quoted from. I regret that the opinion in it is not readily accessible to us.

It results from these views taken of the question before ns that the court did not err in determining that the de- • fendant did purport to convey by deed the tract of land described by metes and bounds, according to the courses and distances given, and, if so, it is clear from the statement of facts that there was a breach of the covenant of warranty contained in the deed, to the extent of so much of the land as was embraced in the Bennett survey. Authority need not be cited to show that, in such state of case, an action lies upon the covenant of warranty of title; it being admitted that the Bennett survey was, at the date of the deed, and still is, the superior title, and belongs to Mrs. Grinnan, as is admitted in the plaintiff’s petition, in whose favor he disclaims, and to whom he alleges he has surrendered the possession.

As already stated, we need not consider the fifth assignment of errors; under the view taken by us the question therein presented does not arise in the case. If the call in the deed for the Bennett line had proved to be one which controlled the other calls of the survey, then, indeed, the question presented under the fifth assignment would have been raised for decision; but under the view which we take of the case no question of that kind occurs; it becomes a pure question of whether there has been a failure of title to the land purported to be conveyed, as we have interpreted the law applicable to the facts. We have, nevertheless, examined, with no small degree of care, and with some research, the merits of the question involved in that assignment. Besides the covenant of warranty of title contained in the deed, and the calls and descriptive boundaries of the land conveyed, the field-notes in the deed are prefaced with the following introductory statement, viz.:

“ Situated in Kaufman county, on the waters of Kings Fork of Cedar creek, about eleven miles $L 29 E. from the town of Kaufman, being a survey of one hundred and sixty acres, beginning,” etc. The field-notes conclude, after giving metes and bounds, thus: uincluding one hundred and sixty acres.” The number of acres contained in the tract, or to be conveyed, do not-elsewhere, nor in any other connection than has been above stated, occur in the deed. The evidence showed that this tract of land was taken in part payment of a farm sold by plaintiff to defendant, and which satisfied §960 of the price agreed on for the farm, the tract of land here involved being “reckoned at"§6 per acre.”

The question presented under the assignment of error is whether the reference tó quantity is a part of the description of what is intended to be granted, of intended as an assurance of the quantity mentioned, and if it be the latter, whether the plaintiff is protected under the general covenant in the deed of warranty of the title. According to the face of the deed, taken even in connection with the other facts attending the sale, the purchase of the land was in gross and not by the acre. See the facts of the case and the opinion in Daughtrey v. Knolle, 44 Tex., 457. Under all the authorities bearing upon the question, this conclusion is decisive, that no action on the general covenant of warranty will lie for deficiency in the quantity or number of acres. Daughtrey v. Knolle, supra.

The principle of law applicable to the extension of the benefits of such general covenant of warranty of title to the inclusion of a deficiency in the quantity of land is laid down to the same effect, in substance, though in different terms, both by Mr. Eawle in his treatise on Covenants for Title, p. 521, and by Mr. Washburn (in his treatise on Eeal Property), 3 Wash., p. 418, sec. 36, and to quote from the latter authority: “ It may be stated, generally, that where the number of acres is referred to as an ‘ estimated ’ quantity, or coupled with the clause of ‘ more or less,’ or is clearly a matter of description, it is not a covenant. So where the quantity is mentioned in addition to the boundaries in the description of the estate, the quantity yields to the boundaries if they do not coincide. If, on the other hand, the quantity be-of the essence of the contract between the parties, the covenant is construed relatively to the quantity of land conveyed, and is to be ■ deemed an assurance to the purchaser of the existence of that quantity.”

Among the numerous cases cited by Rawle, notes 1, 2 and 3, p. 521, and by Washburn (3d vol., notes 1, 2 and 3, p. 418, 3d ed.), the following may be selected as furnishing valuable illustrations of the application which courts have made to the subject, viz.: Snow v. Chapman, 1 Root, 528; Morris v. Owens, 3 Strobhart (S. C.), 199; Steiner v. Baughman, 2 Jones (Pa.), 106; Pecare v. Chouteau, 13 Missouri, 527; Hall v. Mayhew, 15 Md., 551; Wright v. Wright, 34 Ala., 194; Beal v. Burkhalter, 26 Ga., 564-567; Powell v. Clark, 5 Mass., 355; Mann v. Pierson, 2 Johns., 37; Perkins v. Webster, 2 N. H., 287.

Although we rest our opinion upon the right to sue foe-breach of covenant of warranty in this case upon the grounds which we discussed under the fourth assignment of errors, and not upon the question presented under the fifth, we have seen proper to make this rather extended comment upon the latter because it seems, from the briefs and arguments of both of the counsel, that the legal propositions involved under it have been treated by them, and possibly by the district court, as controlling and decisive of the result; besides, in view of the general importance of the subject, we have considered it appropriate to make such suggestions and references under this head as have resulted from our consideration of the discussion of counsel and the authorities examined by us.

The second assignment of errors is as follows: “The court erred in giving judgment for seventy acres shortage, and rating the same at over §7 per acre, when no witness claimed the land was worth over $6 per acre.”

This assignment seems to be predicated upon the idea that the judgment of the court was based upon the deficiency in quantity of land, and the recovery had upon the' warranty to cover the deficit. Whether the court took that view or not is not indicated in the record; the judgment is simply in favor of the plaintiff for $669.04, as the result of the law applied by him to the pleadings and the evidence. The petition contained an alternative prayer for a rescission of the contract, and for damages on the covenant of warranty of title. The judgment plainly shows that the action of the court did not operate upon the contract, but had respect to the prayer for damages on the covenant.

The rule for the measurement of damages for deficiency in quantity, and that for partial failure of the title, is different. It is sufficient to say that it does not appear from the record that the court committed the error complained of in the second assignment, nor yet does it appear by what rule the court acted in reaching the result. We will, however, consider under the sixth assignment of error, complaining of the overruling of the motion for new trial, one of the grounds of which was that the assessment of damages was excessive, whether or not there was error in respect to the amount of damages given under any legal aspect of the case.

The evidence showed that this tract of land was conveyed to the plaintiff in part paj'ment of the price of the farm heretofore mentioned, and accepted at the estimate price of $960, the land being reckoned as worth $6 per acre. It was proven on the trial that the part of the said survey which conflicted with the A. Bennett survey, as determined by course and distance, was twice as valuable by the acre as the rest of the said survey, that is, the remaining ninety acres. The plaintiff testified that his price for his farm was $6,000; that he held it at that; that defendant offered him $6,000 for it a few days before, but when they came to draw writings defendant stated that he was not able to pay him all in money, and thereupon the said two tracts of land were conveyed by defendant to plaintiff, reckoned and valued as aforesaid; that he traded for the B. A. Terrell survey at $6 per acre, and supposed it to be worth that amount.

The defendant testified that at the time of the trade the tract—the B. A. Terrell one hundred and sixty acre survey — was not worth exceeding $4 per acre.

The general rule applicable to the measure of damages, where the eviction is only partial, as in this case, is, that the grantee can recover only in the proportion which the value of the premises from which he has been thus evicted bears to the whole premises, and the interest thereon, and costs and expenses, subject to the same qualifications and conditions applicable in cases of total eviction. Field on Damages, sec.-475, and authorities cited. This rule bears with entire equality on both parties; for whilst the grantee may show, if"he can, a value to the premises from which he has been evicted relatively greater than the balance of the tract, it is competent for the grantor to show that the part in reference to which the title has failed was inferior to the remaining portion of the tract. Morris v. Phelps, 5 Johns., 49; Rawle on Cov. for Title, p. 113.

The consideration named in the deed was 8900, which is at least prima facie evidence that it was the true one; but it is not conclusive, and the true consideration may be shown by parol evidence. Field on Damages, sec. 462, p. 386, and authorities cited. The consideration was shown to be $960 in property, the price of which was agreed upon, as has been already stated. In such case it seems that the recovery may be based upon the value fixed on the property by the parties at the time of the trade, and taken in payment for the land conveyed, rather than upon its actual value. This rule, Judge Field shows (sec. 462, id.), was applied in Iowa in an action on a covenant of warranty in a deed expressing a consideration of 8150,000, but which consideration was personal property. Williamson v. Test, 24 Iowa, 138.

Now, applying these rules of laxv for the measurement of the plaintiff’s damages to all the evidence which legitimately may be considered, it is ascertained by calculation, upon the basis that the sexrenty acres are txvice as valuable per acre as the remainder of the tract xvhich xxms convejmd, that the damages sustained by the plaintiff were 8584.35. To this amount should be added legal interest from the time of eviction or of. surrender to the superior title, not from, the date of the conveyance; this action not being founded on a covenant of seizin, but of general warranty of title, interest can be recovered only under the rule above prescribed. There is no evidence of actual ouster, nor is there any other evidence of a surrender to the true owner than is exhibited by the disclaimer of title contained in the petition. Therefore, interest is allowable only from date of filing petition, viz., September 1, 1879, -which, up to the 17th day of April, 1880, date of the judgment, amounts to $46.74, making in the aggregate $613.81. The difference between that sum and $669.04, the amount of the judgment as rendered, is $55.23, which is thus much in excess of the true amount of damages which the evidence establishes were sustained by the plaintiff.

The judgment of the district court must, therefore, be reversed for the error above indicated; but inasmuch as the amount of the damage is not uncertain, but is rendered certain under the -agreed facts, which recites that “ it was proven on the trial that the part of the said survey sold by defendant to plaintiff in conflict with the A. Bennett, as determined by course and distance, was twice as valuable by the acre as the rest of the said survey, that is, the remaining ninety acres,” and as there is no other evidence in the case which can properly qualify the force of this evidence, it is our opinion that the supreme court should proceed to render such judgment in the premises as the district court should have rendered, which we determine shall be a judgment for the plaintiff against the defendant for the sum of $619.81, with legal interest thereon from the date of the judgment in the district court, viz., the 17th day of April, 1880, with all costs of suit, and that the appellee be adjudged to pay the costs of this appeal.

In accordance with this opinion will be our award.


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    D. McGregor and A. J. Burke v. Paul Goldammer.
    (February 17, 1880.)
    Limitation—Constitution of T869 Construed.— The fourteenth section of the general provisions of the constitution of 1869, which provided that “ married women, infants and insane persons shall not be barred of their rights of property by adverse possession, or law of limitation, of less than seven years from and after the removal of each and all of their respective legal disabilities,” operates prospectively only, and only those that were under such disabilities at the time the constitution went into effect are entitled to the benefit of said provision.
    Appeal from Harris county. Opinion by Walkeb, P. J.
    Statement.— The question of controlling consequence to the rights of the parties to this suit arises out of the construction to be placed upon the fourteenth section of the general provisions of the constitution of 1869, which reads as follows: “The rights of married women to their separate property, real and personal, and the increase of the same, shall be protected by law; and married women, infants and insane persons shall not be barred of their rights of property by adverse possession, or law of limitation, of less than seven years from and after the removal of each and all of their respective legal disabilities.”
    The first .clause contains an instruction to the legislative department requiring the enactment of proper laws for the purpose therein named, and the remaining portion of the . section is a limitation upon the power of the legislature to prescribe a bar against the classes of persons therein protected, of a shorter period than seven years from the period of the removal of their respective disabilities, and, at the same time, is a complete rule governing the subject to which it applies without needing the aid of the law-making power to give it immediate effect.
   Opinion.— The construction is urged, by counsel for the appellee, that the limitation clause, as it may, for convenience be termed, has a retrospective operation in its application to the defense or plea of the statutes of limitation, and that any person against whom the statutes of limitation shall be pleaded after the adoption of the constitution of 1869 is entitled to have the period of adverse possession which is pleaded against him computed at seven years, commencing from the date of the removal of the disability protecting him, irrespective of the fact that at the date of the adoption of the constitution his pre-existing disability had been removed. Authority is cited (De Cordova v. The City of Galveston, 4 Tex., 470) by the counsel in his brief to support the propósition that acts of limitation apply as well to causes of action existing preceding their enactment as to those accruing subsequently. It cannot be questioned but that laws which (as, for instance, statutes of limitation) affect the remedy merely are not within the scope of the inhibition against retrospective laws unless the remedy be entirely taken away, or be incumbered with conditions that would render it useless or impracticable; there cannot be a vested right to any particular remedy. It has been held that even when a suit has been definitively decided and no appeal taken, and the time for appealing expired, that a right of appeal can be given by a statute passed for that purpose. United States v. Samperyac, 7 Peters, 222; Hempstead’s Arkansas C. C. R., 119. The unquestionable, conclusive operation of laws pertaining to the remedy to affect and determine the rights of parties which may have previously accrued and have become the subject of judicial determination is illustrated by abundant authority everywhere, and upon very numerous Subjects testing the application of the principle.

The question here for solution, however, is not whether a law of limitation would be applicable to past as well as prospective conditions or relations when falling under the operation of a general law, but it rather is, whether any such general rule has, in fact, been prescribed, which, according to its terms and intent, embraces within its operation persons other than those who meet the description given in the law at the time of its enactment. In a word, is the oíanse in question a rule or law prescribing, in effect, that where the statute of limitations is relied on as a defense, where the party to be aifected by the lapse of time has been under disability during any portion of the period of adverse possession of the party pleading the statute, that not less than seven years of such possession after the removal of such disability, regardless of the time when the disability may have determined, shall bar the right of action? If it admits of such an interpretation, it follows, from the concession which has been allowed respecting statutes affecting the remedy, that a remedial rule of that kind would be applied to all cases arising after the law went into force, and would not be inhibited as a retrospective law. Such, however, is not the purport of that clause; it is not such a rule or declaration of law applicable to the subject of defense under the plea of the statutes of limitation. It is, however, the declaration of a rule of law, and fixing a right in favor of the classes of persons embraced within it, and who, when the constitution shall take effect, and thereafter, being married women, infants or insane persons, shall not be barred of their rights of property by adverse possession, or law of limitation, of less than seven years from, and after the removal of each and all of their respective disabilities.

It was not the purpose of the framers of the constitution, in thus establishing the fundamental law, “ intended mainly to contain the principles upon xvhick the government is founded, regulating the division of the sovereign powers, and directing to what persons each of these powers is to be confided, and the manner in which it is to be executed,” to establish in such an instrument rules and laws of proceeding pertaining to. remedial laxvs; and when a provision of this character is found in the constitution, unless the plain language of its terms required it, it should be construed rather as a limitation upon the power of the legislature to abridge the period of time fixed in the clause, and as the declaration of a maxim and rule applicable to then existing and future rights and remedies, than as a mere legislative enactment for the administration of the law applicable to the defense of the statutes of limitation. Unless expressions contained in it indicated an intention to give it a retrospective effect, such intent would not be presumed, but rather the reverse. To give the clause or section referred to a retrospective operation, in accordance with the construction contended for by the appellee’s counsel, would result in determining that the bare declaration, in the constitution, of an extension of the periods of time fixed previously by law in favor of a designated class of persons, is equivalent to a rule of law applicable to other persons as well, viz., adults, who previously, and before the enactment of the section, may have once answered to the description contained in the constitution. Thus, the construction insisted upon is not maintainable upon the liberal terms of the law, and it is confronted with still more grave impediments in the general rules and maxims of constitutional and statutory construction, as will be seen from the commentaries and decisions which lay down and determine the principles applicable to retrospective laws.

Chancellor Kent, in Dash v. Van Kleeck, 7 Johns., 477, remarked: “Ithink it can be shown that the act cannot be adjudged to operate • either as a new rule for the government of a past case, or as interpreting a former statute for the direction of the courts; and I should be unwilling to consider any act so intended, unless the intention was made manifest by express words, because it would be a violation of fundamental principles, which is never presumed.”

Justice Thompson, in the same case, said: “It may, in general, be truly observed of retrospective laws of every description, that they neither accord with sound legislation nor the fundamental principles of the social compact.” How unjust, then, the imputation against the .legislature that they intend a law to be of that description unless the most clear and unequivocal expressions are adopted.

Judge Cooley, in his treatise on Constitutional Limitations, deduces from his exploration of the subject the opinion that “a constitution should operate prospectively only unless the words employed show a clear intention that it should have a retrospective effect.” It is the rule applicable to statutes, and one that is followed and approved as correct.

“Retrospective legislation, except when designed to cure formal defects, or otherwise operate remedially, is commonly objectionable in principle and apt to result in injustice; and it is a sound rule of construction which refuses lightly to imply an intent to enact it.” And the learned author proceeds to add, “ and we are aware of no reasons applicable to ordinary legislation which do not, upon this point, apply equally -well to constitutions.” Oooley on Const. Lira., p. 62, citing Allbyer v. The State, 10 Ohio, N. S., 588, and several others from other states.

It is evident, therefore, that the construction contended for by the appellee’s counsel is not favored, nor will the courts incline to its adoption; and in declining to yield to its correct application here, we believe that we reach a result not only in accord with the formulated legal rules of construction applicable to the subject-matter, but that it is in consonance with the actual intention of the framers of the constitution and alike consistent with expedience and public policy. Under the view, therefore, which we entertain of the true construction of section 14 of the general provisions of the constitution of 1869, the appellee not being a minor at the date of the enactment, or of the adoption of said constitution, but was then an adult, we conclude that except for the fact that the statutes of limitation were, by the same instrument, suspended in their operation, the statute of five years would then have been running against him, and would have continued to run until the bar would have been complete; but that owing to such suspension the statute did not run against him until the' 30th day of March, 1870, and at the expiration of five years from that date the bar was compíete against him. in favor of the defendants, the appellants.

The appellants’ counsel, in their brief, contend that if it should be held that section 14, general provisions of the constitution of 1869, had a retrospective effect, and that it applied to appellee, who was of age at the time the constitution went into effect, that the provision should be construed strictly, and that the limitation of seven years commenced to run from the date of his majority, which was March 29, 1869, and was completed seven years from that date, viz., March 29,1876, which was several months before the institution of this suit.

There is much force in the proposition, and I incline to accept it as correct. Statutes of limitation are justly held “as statutes of repose, to quiet titles, to suppress frauds, and to supply the deficiencies of proof arising from the ambiguity, obscurity and antiquity of transactions.” “They should be regarded with favor by courts of justice, and receive such interpretation, consistent with their terms, as will defeat the mischief intended to be suppressed, and advance the policy and remedy they were designated to promote.” Gautier v. Franklin, 1 Tex., 732.

The leading object and policy of the fourteenth section of the general provisions of the constitution of 1869 was, as has been already stated, to declare at once a rule operative without the aid of further legislation to give it effect, and to limit the power of the legislature to abridge it; to establish the period of seven years instead of shorter periods of time as an indispensable requirement to bar the rights of minors and others therein designated. The general object and policy of the forty-third section of the general provisions, in the same constitution, was to suspend the operation of the statutes of limitation until the acceptance of said constitution by the United States (the 30th of March, 1870), and to expunge from their operation all the time intervening between the last-named period and the 28th day of January, 1861.

When these provisions were enacted there existed, under the authority of the constitution of 1866, a similar suspensive provision, by the terms of which the statutes of limitation again came into force and operation on the 2d of September, 1866. During the intervening period between September 2, 1866, and the adoption of the constitution of 1869, the statutes of limitation were in full force, running, and, under their operation, completing lawful and effectual bars to rights of action.

Under the construction placed by the courts upon the forty-third section, above referred to, in Bender v. Crawford, 33 Tex., 745, and in other succeeding cases, it has been held that the period of limitation from the 2d of September, 1866, until the adoption of the constitution of 1869, was embraced by the act of suspension and exclusion of time, under the fourteenth section, general provisions of the constitution of 1869. The question, nevertheless, is presented, if a retrospective effect is to be given to the fourteenth section of general provisions, whether it will fall within the general scope and objects of both of the provisions, when construed together, to allow to those embraced within their operations advantages beyond:

1. The exclusion of the time which had lawfully run against them between the 2d of September, 1866, and the last of November, 1869, when the constitution of 1869 was adopted by the people.

2. The exclusion of all time from the 28th of January, 1861, until the adoption of the constitution, by congress, March 30, 1870; and

3. The supéradded advantage of exacting from adverse claimants a possession of seven years, instead of five years and shorter periods, before being barred of the rights to property.

The converse rule to that urged by the appellants3 counsel would not only suspend the operation of the statute until March 30, 1870, and extinguish the effect of the period of adverse possession during which the defendants held the property after the plaintiff’s majority under the laws and constitution of 1866, and before the enactment of the fourteenth section, general provisions of the constitution of 1869, but would also give to the plaintiff, not merely seven years from his majority, but also seven years from the 30th day of March, 1870, when the suspension of limitations was withdrawn. In the application of the rule, as supposed, to the facts of this case, the suit being filed September 13, 1876, seven years and nearly six months had elapsed since the removal of plaintiff’s disabilities.

I do not agree to a construction which would produce results which ascribe to the framers of the constitution an intent thus to defeat the beneficial objects of the statutes of limitation, especially when, from the history of the country and a knowledge of the extraordinary necessities which superinduced such abnormal legislation, we are at no loss to perceive that the general scope and purposes of the provisions which have been referred to was not so much to alter and make rules of limitation as to preserve in statu quo rights of citizens until the embarrassments and confusion resulting from a recent unsuccessful revolution should have been superseded by peace and good order.

It is, besides, a rule of construction that a statute, retrospective in its effects, should be construed strictly. Sedgwick on Stat. and Cons. Construction, p. 163 (note); Hedger v. Renwater, 3 Mete. (Ky.), 255; McGowan v. Davidson, 43 Ga., 480.

If the fourteenth section of the general provisions ought to have a retrospective effect, I think, under a sound construction of the entire legislation existing and bearing upon the question, the proper effect to be given to the facts of this case would be to hold that if, when the suit was instituted, seven years had elapsed since the plaintiff attained his majority, and more than five years had elapsed from the 30th of March, 1870, up. to the date of filing his petition, that he would be barred of his action.

We rest our decision of the case, however, on the ground first discussed, and the opinion expressed on. the last proposition urged by the appellants3 counsel is not, in oar view, essential to the disposition of the case.

This case having been tried below before the judge without a jury, and the facts being agreed upon, and thus presenting simply the questions of law arising upon them, we deem it proper to render such award upon the merits of the case as ought to have been determined below; we therefore conclude that the judgment of the district court shall be reversed, and that the plaintiff take nothing by his action; that the defendants go hence without dai7, and that they recover of the plaintiff all costs of this suit in both the district and supreme courts.


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    Geo. F. Bradford v. Geo. F. Rogers et al.
    (January 16, 1880.)
    Judgment — Evidence.—A judgment is not void because it fails to give the Christian name of the defendants. Parol evidence is admissible to identify the parties to such a judgment.
    Ebbob from Victoria county. Opinion by Quinan, J.
    Statement.— This is an action of trespass to try title instituted by the plaintiff against the defendants for the recovery of certain lands in Victoria county. The petition is in the common form of trespass to try title. The defendants pleaded not guilty, and among other things set up the nullity of the title under which they alleged plaintiff claimed. Upon the trial the plaintiff proved title to the land in controversy in Geo. F. Bogers and Andrew Oliver, under whom defendants also claimed.
    Plaintiff then offered in evidence a judgment of the district court of Victoria county, rendered therein in the suit $To. 837, in favor of Longstreet, Bradford & Co., plaintiffs, against Bogers and Oliver, defendants, and executions issued thereon levied upon the lands in controversy, and the sheriff’s return thereon, and deeds to himself, as purchaser of part of the land, and to H. E. Bradford, and from him to Longstreet, Bradford & Co., of the other interest in the land. Plaintiff also offered in evidence: 1. The petition in the suit, Bo. 837. 2. The certified copy of the citation issued thereon (proving the loss of the original). 3.- The note upon which the petition declares, made by Bogers and Oliver to Longstreet, Bradford & Co.
    In the margin of this note are the names “ Cornelius T. Longstreet, George P. Bradford, James F. Gilbert, Geo. H. Wells.”
    Cunningham testified that he, as sheriff, served the copy of citation; thought his return on the original was in the usual form; that his impression was, a month before, that the returns on the original showed the Christian name of Bogers and Oliver, but could not now state positively; that the Christian name of Bogers was George F., and of Oliver, Andrew, whom he had known for fifteen to thirty years. Callender testified he was the clerk who issued the citation, and had no doubt he issued one original citation, and two copies of it and of the petition; that he had seen the return; that it was by “delivering” to Bogers and Oliver; he acted on it and entered the judgment by default. Peticolas testified for defendants that he knows the return was just as the citation is, “ Bogers and Oliver; ” that it did not show the given name or initials of either Bogers or of Oliver.
    In the papers of the suit Bo. 837, and the judgment and executions, returns and deeds, there is no other name for the plaintiffs given than Longstreet, Bradford & Co., and no other name for the defendants therein than Bogers and Oliver. Beither the plaintiffs nor the defendants therein are styled partners. To the introduction of the judgment and the proceedings under it, and the testimony of the witnesses, Cunningham and Callender, the defendants objected, but the testimony was admitted. And then the defendants moved the court to exclude it from, the jury, on the ground that the judgment and all proceedings under it were void, for the reason that no names of parties appeared in the judgment, or in the petition, or in the citation. The court sustained the motion and charged the jury that the plaintiff had shown no title; that they must find for the defendants; which they accordingly did.
    The plaintiff moved for a new trial, which was overruled, and the case is brought here by writ of error. The assignments of error cover two propositions: 1. Was the judgment a nullity in the case Ho. 837? 2. Was parol testimony admissible to identify the parties to the suit?
   Opinion.— Upon the first proposition the question presented is not whether the judgment in favor of Longstreet, Bradford & Go. against Rogers and Oliver, if it were before us upon appeal or writ of error, could be sustained. Authorities are not wanting that the omission of the names of parties, or of a fuller description of them, would, if the objection was properly made, prove fatal to it. But a judgment may be erroneous without being void. Thouvenin v. Rodriguez, 24 Tex., 479. The question here is, whether the judgment in this collateral action can be held void upon its face for want of jurisdiction or for uncertainty.

1. That the court had jurisdiction of the persons, Rogers and Oliver, is conclusively proven by the judgment itself. It recites that the defendants were duly cited, and this declaration cannot be contradicted by plea or proof. The fact of jurisdiction appearing on the record, it cannot be contradicted. Freeman on Judgments, sec. 131. Thus, though the return upon a summons against A. B. certities a service of such summons on C. B., and the judgment states that A. B. has been summoned, . . . the judgment will be impregnable to any collateral assault. Quivey v. Baker, 37 Cal., 465. And even where the record is silent upon the subject of notice, the judgment of a court of general jurisdiction will support itself, and cannot be collaterally impeached or called in question because of any alleged want of jurisdiction over the parties to the decree. Lawler v. White, 27 Tex., 253. In Guilford v. Love, 49 Tex., 715, Roberts, C. J., quoting from 35 CaL, says: “It is of no consequence whether the jurisdiction of the court appears affirmatively or not on the judgment roll, for if it does not it will be conclusively presumed.”

2. Is the judgment void because rendered in favor of Longstreet, Bradford & Co. against Rogers and Oliver? In reply to this question the authorities are numerous. In Pate v. Bacon, 5 Munf., 219; Tottey v. Donald, 4 Munf., 430; Barnet v. Watson, 1 Wash., 372; Porter v. Cresson, 10 Serg. & Rawle, 457, it is held that a declaration by the firm name, without mentioning the names of the partners, is good after verdict. And these are none the less persuasive as authority because the parties appeared and pleaded without objecting to the want of the names. In McHance v. Huffman, judgment in favor of partners, by their partnership name, was held good. 3 Harring., 425. In Lutz & Co. v. Buffum, 14 Penn. St., 69, it was held that if a partnership is sued in the firm name, without naming its members, the defect is cured by verdict; and if a suit is in the firm name, the court will presume it, after verdict, to be the name of real persons. In Hyde v. Clapp, 43 Tex., 546, the judgment was in favor of Clapp & Co. Moore, J., says: If any question could be made as to the manner in which the plaintiff's are described in the judgment, . . . it could only be by a direct proceeding to this end, and not in a collateral action. It clearly appeared from the evidence, to which exceptions were taken, that there was a judgment to support the execution under which the land was sold. This being the case, it was certainly admissible, as tending to establish the title of the purchaser under the execution, while the judgment stood in force, though it appeared on its face to be erroneous and voidable.”

In Hays v. Yarbrough, 21 Tex., 488, where the petition gave the names of the parties in full, but the judgment was rendered in favor of Yarbrough and Ferguson, without giving their Christian names, held, there was no error, and if was affirmed with damages. This was upon appeal. In Smith v. Chenault, 48 Tex., 455, judgment was rendered in favor of A. T. Chenault & Co., plaintiffs, v. Smith & Young. Moore, J., says: “The judgment is believed to be in conformity with the usage and practice of many of our courts in similar cases. The alleged defect is believed, at most, to be a mere irregularity, not of a character to avoid the judgment or afford ground of complaint in a collateral proceeding.” In Shackelford v. Fountain, 1 Monroe, 252, it was held that a judgment in favor of J. T.’s heirs, without naming them, was not void. In Newcomb v. Peck, 17 Vt., 302, it was decided that a judgment against a defendant, omitting his. Christian name, was not void, and that an action might be maintained thereon by averring the identity of the defendant. In Root v. Fellows, 6 Cush., 29, the judgment was entered against William B. Fellows and-Day. In an action of debt upon it, Day’s counsel objected to the admission of parol evidence to prove that Newberry Day was the Day named in the judgment. The court say: “The omission of Day’s Christian name, in the writ on which the judgment was reversed, was a matter which might have been pleaded in abatement, but he suffered judgment to go against him. „ . . An execution on that judgment by the same defective name would have been valid and might have been legally enforced. In this suit on the judgment, if the writ had omitted his Christian name he might have pleaded in abatement. It was therefore proper foy the plaintiffs to insert his "full name and aver, as they have done, that they recovered judgment against him by the name of Day. So are the precedents. 1 Mass., 76; 2 Ch. Pl., 484. How, then, are the plaintiffs to prove this allegation in their writ unless by parol evidence? The counsel for Day has not informed us and we do not know.

These eases are sufficient to establish the proposition that this judgment is not void because it fails to give the Christian name of the defendants. It is not the less a judgment against Oliver and against Rogers, because the given name of either may have been unknown or because he may have had none. The reason for requiring the full name of the parties to be given is that, ordinarily, identity of names is sufficient proof of identity of persons. But it is not always so. In many portions of the country a judgment against John Smith, or George Washington, would convey less intimation of the man meant by it than w'ould a judgment against Hr. Rogers or against Hr. Oliver. And wTe can well conceive that the Rogers, of Rogers & Oliver, or the Oliver, of Rogers & Oliver, might be a more definite description of either individual and serve better to identify them than the names of George and William.

3. Was parol evidence admissible to identify the parties to the suit? TJpon this point the case cited, of Root y. Fellows, is authority. In Wharton on Evidence, 986, it is said: c' Like all other instruments, a record, when silent or am- . biguous, may be explained by parol. Thus, where the record gives the name of the party ambiguously, the ambiguity may be cleared and the party identified by parol extrinsic proof.” See, also, Garwood v. Garwood, 29 Cal., 514; Thompson v. Marrow, 1 Cal., 428; Newcomb v. Peck, 17 Vt., 302; Lafayette Ins. Co. v. French, 18 Howard, 409. The parol testimony in this case could not have been received to amend or correct the judgment or supply any omissions requisite to its validity. If, upon its face, it was void, it could not have been validated by parol proof. If it were not void, as we have shown, it needed, and could derive, no support from extrinsic evidence; but it was perfectly competent for the parties claiming under it to prove, by any evidence the proceedings in the case afforded, or any testimony outside of it, the identity of the parties against whom it was rendered.

Our conclusion is that the judgment of Longstreet, Bradford & Oo. against Sogers & Oliver was not a void judgment; that the testimony was properly admissible to identify the parties to it, and that the court erred in excluding it from the jury. Because of these errors we decidé that the case be reversed and remanded.