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    Ernest Hollman v. H. & T. C. R. R. Co.
    (No. 45.)
    Damages fob injuries.
    Contributory negligence.—If risk is taken voluntarily by a passenger, without fault of the company, etc., it is contributory negligence.
    Assignment of errors.—An assignment of errors which has reference to a supposed error of law in the charge of the court, if it is obnoxious to the established rule as being too vague and general in failing So point out the special ground .of objection to it, will not require a. critical revision of the charge unless the error is of a controlling character, plainly obvious on an inspection of the charge.
    Practice.™ Where, upon the whole case, the verdict could not ‘ have been different under the law and evidence, the giving or refusing instructions will not necessarily work a reversal of the judgment.
    Appeal from Travis county: Opinion by Walker, P. J.
    Statement.—The appellant, Hollinan, brought this suit for damages against the appellee, the Houston «fe Texas Central Bailway Co., for serious bodily injury which was done to him by its train when attempting, as a passenger, to get on board of it. The plaintiff’s petition and amended petitions rest the cause of action and right to recover upon the allegations that he was thus injured by the wilful, wrongful and careless acts of the defendant’s agents and employees; that they permitted him to be thrown from the platform and steps of the car into which he attempted to enter; that said agents and employees “carelessly and wilfully permitted said steps and platform to be so obstructed by other persons that he was unable to get securely on the same, by reason of which he was thrown and fell from the steps and platform of said car with great force and violence upon the track of the railroad belonging to defendant; that after he was so thrown upon the track of said road, and before he could get off the same, the car of the defendant ran over his body, greatly wounding, mashing and breaking both of his legs.”
    The defendant’s answer denied specially the imputed fault, carelessness and wrong, and charged that said injury was caused by defendant’s own act in attempting to enter said car and train at an improper time and place, contrary to the rules of the defendant, which were well known to the plaintiff; and that the injury occurred entirely from the carelessness and negligence of the plaintiff. Verdict and judgment for the defendant. The plaintiff appealed, and by his assignment of errors brings under review, as the principal and controlling question in the case, whether the jury were, or not, properly instructed by the court as to the law applicable to the case before them.
    The appellant’s assignment of errors is exceedingly general. It points out no particular instruction which was given or refused, as specially" erroneous as applicable to the case, but it assigns, as generally erroneous, the refusal of the court to give the six separate, several instructions asked by the plaintiff. All the charges given are assigned as erroneous, except a single instruction asked by plaintiff, which was given. The language of that assignment is as follows: “ The district court erred in each and every one of the instructions given to the jury, except the one that was asked by the plaintiff.” The instruction excepted from the above general charge of erroneousness was as follows: “ The plaintiff is not deemed guilty of contributory negligence if he only took such risks as a prudent man would have taken under the same circumstances.”
   Opinion,— A sufficiently careful consideration of the record in this case determines us to apply to the assignment of errors filed by the appellant the rule of practice laid down in Fisk v. Wilson, 15 Tex., 430, which has never since been questioned, and which has been approved, acted on and followed ever since. Justice Wheeler in that case said: “Where the assignment of errors indicates no particular charge or ruling of the court upon instructions which is complained of, but refers in general terms to the several charges refused, and each several charge and instruction given, and on reference to them they are found to be numerous, this court will not deem it necessary to revise them, unless the right and justice of the case may seem to demand it.”

An assignment of error which has reference' to a supposed error of law in the charge of the court, if it is obnoxious to the above rule, as being too vague and general in failing to point out the special ground of objection to it, will not requiré a critical revision of the charge, unless the error is of a controlling character, plainly obvious on an inspection of the charge. Norvell v. Phillips, 46 Tex., 176. See, also, Trammel v. McDade, 29 Tex., 362; Pearson v. Flannegan, 52 Tex., 266; Green v. Dallahan, 54 Tex., 285. The case of H. & T. C. R. R. Co. v. Shafer, 54 Tex., 647, is in point on a record almost identical with this as respects the charges given and refused, and the assignment of error in reference to them. There the court refused to consider the error assigned and to revise the charge. The rule was applied also in Gilleland v. Drake, p. 507, ante, and Smith and wife v. City of Dallas, p. 627, post.

As applied to the evidence before the jury, the charge given by the court contained no legal proposition that was obviously or clearly wrong, and calculated to mislead the jury to a wrong determination of the issues between the parties. The issue in the case was whether the railroad company was liable, when a man not an employee, by standing on the platform of the moving train, so obstructed the way as to cause plaintiff to lose his footing and fall from the train, thereby causing the injury complained of. The plaintiff’s petition and his own testimony ascribes the accident to the presence and action taken on the occasion by the passenger in question, but ho evidence before the jury entitled them to ascribe the consequences of the acts of that man to the defendant and render the company accountable therefor, by reason of a want of care on its part in permitting him to be where he was- when plaintiff attempted to clamber into the car while in motion. If this view of the case is correct, it must follow from it that, under no charge which might properly have been given, was the plaintiff entitled to recover under the evidence. Where, upon the whole case, the verdict could not have been different under the law and evidence, the giving or refusing instructions will not necessarily work a reversal of the judgment. Sypert v. McCowan, 28 Tex., 639; Bohannan v. Haus, 26 Tex., 551; Fisk v. Wilson, supra; Davis v. Loftin, 6 Tex., 489. If the risk is taken voluntarily by the passenger, without fault of the company, or inducement to procure him to do so, and he is injured, andsaid injury is attributable to the motion and speed the cars are making, without the accident being associated with any other fault or act of the agents of the railroad company, the misfortune, in such case, even if not wholly chargeable to himself, is contributed to by his own rashness.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    D. B. Hartzell v. W. D. Jones.
    (No. 327.)
    Trespass Tq try title —New trial.—An order of the court granting a new trial, made at the second term of the court after the rendition of the judgment, is in direct violation of the statute and is void.

      Appeal from Havarro county. Opinion by Watts, J.
    Statement.— Appellee instituted this suit against appellant, July 18, 1870, to recover a certain tract of land situated in Eavarro county. The form of the action was trespass to try title, and appellee also sought therein to remove a cloud from his asserted title. By amended petitions filed at different times, appellee claimed title to the land by purchase from Henry Cooke; alleged that appellant also claimed title to the land by a purchase from Cook prior in point of time to the purchase by appellee, but that said purchase by appellant was fraudulent and void, and Cooke's deed to appellant was obtained by the fraud of the latter, and therefore appellant did not get any title to the land thereby. He also alleged that he purchased from the children and heirs of Mrs. Cooke, deceased, wife of Henry Cooke, a one-half interest in the land, alleging the death of Mrs. Cooke prior to Cooke’s sale to appellant, etc.
    The appellant answered by general and special demurrer, and general denial, and by special plea denied the fraud, and claimed to be the owner of the land.
    The trial of the case was had April 1, 1872, and resulted in a verdict and judgment for the appellant for one-half and one-seventh of one-half of the land, and for the appellee for the balance, and commissioners were appointed to partition the land accordingly. Appellee, at that term of the court, made a motion for new trial, which was overruled. At the next succeeding term of the court the appellant made what he designated a “ motion to correct the judgment,” but which was, in fact, a motion for new trial, based upon two grounds as follows:
    1. “ Because said judgment is not responsive to the verdict of the jury.
    2., “ Because said judgment gave to the plaintiff a larger quantity of the land in controversy than found in his favor by the jury, all which he is ready to verify by the record now here in court.”

      This motion was filed July 23,1872; on the 25 th day of July, 1872, the court entered an order setting aside the judgment and granting a new trial.
    At the March term, 1874, the appellee filed a motion to vacate the order granting a new trial, and to enter judgment confirming the report of the1 commissioners.
    On March 23,1874, judgment was rendered vacating the order granting a new trial, and in all things confirming the report of the commissioners, and divesting and investing title according to the partition. Appellant brings the judgment before the court by appeal, and assigns as errors matters occurring on the trial in 1872, and also in vacating the order granting the new trial. There is no statement of facts in the record.
   Opinion.— The statute, in effect, provides that all motions for new trial, in arrest of judgment, or to set aside a judgment, shall be made within two days after the rendition of the verdict, if the term continues that long, and if not, then before the end of the term; and that such motion shall be determined at the term when made.

In the case of McKean v. Ziller, 9 Tex., 58, a motion for new trial was made at the term when the judgment was rendered. The court took the same under advisement, and at the next term sustained the motion and granted a new trial. The court held that the statute is peremptory and must be obeyed; and the order granting the new trial was void.

Obviously the order of the court granting the motion for new trial, made at the second term of the court after the rendition of the judgment, was in direct violation of the statute and therefore void.

The doctrine is well established in this state that the court has control over, and for good cause may alter and vacate, its judgments during the term at which they are rendered; but after the term expires that control is lost, and such judgments can only be set aside or vacated by an original proceeding instituted for that purpose, setting forth equitable grounds sufficient to entitle the party to a rehearing. Goss v. McClaran, 8 Tex., 241; McKean v. Ziller, supra; Overton v. Blum, 50 Tex., 417; Bryorly v. Clark, 48 Tex., 345.

The court did not err in vacating the void order , granting a new trial at the term of the court next after the judgment was rendered.

Appellant’s counsel insist that the appeal from the judgment, confirming the report of the. commissioners, and divesting and investing title in accordance therewith, brings the whole case before the court for review, and authorizes this court to examine and revise any errors that may have been committed in the trial resulting in the judgment determining the title and=-appointing commissioners to partition the land.

The case of Cannon v. Hemphill, 7 Tex., 196, is directly in point. Hemphill, Chief Justice, delivering the opinion of the court, said: “ And whatever may be the character of such decrees, when considered with reference to the question solely of susceptibility of 'appeals, yet if they be no further acted upon, and no appeal is taken, they must be considered for the purpose of putting an end to litigation, as sufficient to secure the parties in their rights as adjudicated, and would, in this respect, be final and conclusive.” See, also, Marle v. Andrews, 4 Tex., 208; McFarland v. Hall, 17 Tex., 676.

The only questions that could be considered on this appeal are such as properly arise on the report of the commissioners, and that would be only as to the conformity of the division of the land with the rules settled by the decree, and such as would arise upon the acts of the commissioners.

There is no statement of facts, and there is no such error disclosed by the record as would, under such circumstances, authorize a reversal of the judgment.

Affirmed.


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    E. S. Hull v. Geo. D. Quest.
    (December 13, 1879.)
    Mortgage — Injunction.— Where the statutory remedy by sequestration can be used to protect personal property pending proceedings to foreclose a mortgage thereon, it is improper to apply for an injunction to accomplish the purpose.
    Foreclosure of deed of trust.—An unrecorded deed of trust is not void as to creditors with notice. Such deed, on proof of its execution, is admissible in evidence in a suit against the maker of the deed and a junior incumbrancer with notice.
    Justice’s court, jurisdiction of.—A judgment in a justice’s court against an intervenor resisting the claim of a plaintiff in an attachment suit before such justice, and when the claim exhibited by the intervenor is in excess of the jurisdiction of the justice, does not conclude his rights in another suit and before a court having jurisdiction over the subject-matter.
    Appeal from. Panola county. Opinion by Walker, J.
   Opinion,— The question litigated below and presented on appeal is the priority of lien upon five thousand three hundred pounds of seed cotton claimed by each party.

This suit was brought by Quest against Long, a justice of the peace, E. S. Hull and Wilson Holland, to foreclose a trust deed mortgage on Hqlland’s cotton crop, executed by him to secure an indebtedness to Quest for about §350, and to enjoin Hull and Long from proceeding to sale upon a judgment rendered before Long, November 7, 1878, in an attachment suit by Hull and against Holland, in which proceedings the cotton had been seized.

The petition sufficiently alleged the debt, mortgage, proceedings before the justice, notice to Hull before the seizure by attachment, and that Holland had no other property subject to execution; prayer was asked for judgment for foreclosure, and that Hull and Long be enjoined, etc.

Holland confessed judgment. Hull carefully urged objections to the petition in a motion to dissolve the injunction and in exceptions to the petition. He also answered that Quest had intervened in the suit before the justice, Long; was present by attorney and in person at the trial; had moved for a new trial; which being overruled, he had appealed to the county court, but had abandoned the appeal; also that Quest’s mortgage, not having been recorded, was void as to the attachment lien.

On the trial notice of Quest’s lien was proved on Hull before his levy of attachment. The deed of trust was in evidence; also the judgment before the justice, Long, as alleged in the petition. The judgment is quite formal, adjudicating to the plaintiff his debt and costs, and (the judgment proceeds), “ as to the claim of the intervener, Quest, it is the judgment of the court that the claim of the said Quest which is alleged to be a lien on the cotton attached in this case is void against the plaintiff, Hull; it is therefore considered that the intervenor take nothing by reason of his intervention,” etc.

It is also shown that Quest filed a written motion for a new trial and had given notice of appeal. It also appeared that Holland had no other property liable to execution; that Holland had replevied the cotton, Quest being surety on the replevy bond, and that the cotton was in Quest’s possession.

Judgment was rendered for Quest in the county court perpetuating the injunction and ordering the foreclosure by sale. From this judgment Hull appealed.

The many errors assigned raise, 1, the propriety of t'he remedy of injunction and the sufficiency of the petition for such relief; 2, the effect of the unrecorded deed of trust as against the attachment lien; and 3, the plea of former judgment.

1. The allegations in the petition were sufficiently formal; but the statutory remed_y by sequestration was the more direct, and we think the proper, remed}?-. Being a junior incumbrancer, Hull was a necessary party to the suit for foreclosure to conclude his interest. The injunction proceedings, therefore, were unnecessary, and the costs arising from the injunction should be taxed against Quest.

2. The unrecorded deed of trust is not void as to creditors with notice. In this case Hull did not deny notice. The deed of trust upon proof of its execution was properly admitted in evidence, and had full force as a lien against Hoiland and Hull.

3. The judgment in the justice’s court does .not seem to have affirmatively adjudicated upon the liability of the cotton to the attachment proceedings. The justice, after rendering a general judgment for the plaintiff for the amount sued for and costs, adjudges that Quest’s claim is void. Without determining that it would or would not be different in effect had the parties affirmatively condemned the cotton to sale under the attachment, we regard his attempt to disclose the invalidity of the deed of trust as beyond bis jurisdiction and ineffectual when invoked to conclude Quest’s right to foreclosure in a tribunal having jurisdiction.

The judgment should be reformed in accordance with these views.


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    J. A. Holland v. Frock and Williams.
    (No. 4027.)
    Charge.— Where it is clear from the evidence that a different verdict could not have been properly rendered, an erroneous charge will be held merely an abstract errpr, affording no ground for reversal.
    Evidence.—Eefusal to -admit evidence which, if admitted, could not have caused a rendition of a different verdict, no ground for reversal.
    Exemption.— Deed of trust will not exempt property described in it from seizure and sale under legal process to satisfy other debts subject to said deed of trust.
    Mortgage is but a security, and the title remains in the mortgagor, subject to be divested by foreclosure of the mortgage.
    Appeal from Limestone county. Opinion by Walker, P. J.
    The opinion states the case.
   Opinion.— Unless the evidence was such as entitled Holland, the claimant of the goods, to recover, or unless there exists such error committed on the trial by the court as requires that the cause shall be remanded for another trial, the judgment must be affirmed.

In respect to the alternative first named, it is clear that, for want of evidence to show the existence of the deed of trust, which claimant relied on under the issue which was made up to establish his right to the property, which, on the plaintiff’s objections, was excluded by the court, the verdict of the jury was not simply sustained by the evidence, but the verdict could not properly have been different; and, in such state of the case, so far as concerns the charge of the court which is complained of, as no other verdict than one for the plaintiffs could be rendered, an erroneous charge would be merely an abstract error, and afford no ground for reversal. Erwin v. Bowman, 51 Tex., 518; Sypert v. McCowen, 28 Tex., 639; Bohannan v. Haus, 26 Tex., 451; Fisk v. Wilson, 15 Tex., 435.

It is assigned as error that the court excluded the deed of trust under which the defendant claimed the goods on the plaintiff’s objections.

The deed of trust was but a security for the debt due to the creditors named in it, and that fact did not have the effect to exempt the property described in it from seizure and sale under legal process to satisfy other debts subject to the mortgage or deed of trust. Wright v. Henderson, 12 Tex., 44; Wooten v. Wheeler, 22 Tex., 338; Raysor v. Reed, 55 Tex., 270, The distinctive difference between an issue to try the right to the property on which exists a prior lien, and that which pertains to a controversy as to the priority of a claimant’s lien, is to be borne in mind.

The defendant (claimant) does not in this suit seek a remedy whereby to protect his lien from being impaired or endangered by proceedings for relief addressed to the equitable powers of the court, as he well might do if the facts of the case entitled him thereto, but he elects rather to claim the right to the possession and title of the goods under an assertion of exclusive right, and this he .cannot successfully do in an action of this kind. Belt v. Raguet, 21 Tex., 482. Where the rulings of the court below relate to questions which are superseded in their application to the particular case by some principle which underlies them, they are immaterial, and therefore can afford no ground for-reversing the judgment. Davis v. Loftin, 6 Tex., 489. The court, under the evidence in the case, correctly charged the jury to find their verdict for plaintiffs.

Affirmed.


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    H. H. Lenon v. James C. Walker.
    (No. 3775.)
    Trespass to try title.
    Description in deed.— The following description in a deed held sufficient: “One hundred acres known in the division as part of that lot having the original lines of the league for its northern and southern boundaries and adjoining on the east the lot No. 11.”
    Appeal from McLennan county. Opinion by Quinan, J.
    Statement.— This suit in trespass to try title was brought by Walker against Lenon for the recovery of land which is described in the petition as “four hundred acres of land, being a part of the Géorge Morgan headright league; . . . the said four hundred acres being known
    and designated in the partition gf said league among the heirs of said Morgan . . . - as lot ¡No. 12, and is bounded on the south by a five-league survey in the name of T. J. Chambers, on the north by the Brazos river.”
    Lenon pleaded not guilty, and that he holds possession of the land as agent and superintendent for W. S. and J.L. Lenon, who are the heirs of W. T. Lenon, deceased. He pleads that said W. S. and J. L. Lenon, through and by him and their ancestor, from whom they inherited the land, had possession, etc., for more than three and five and ten years, etc., in conformity with the statute of limitations, and that plaintiff’s action is barred. lie suggests improvements.
    The case was submitted to the judge, a jury being waived. We find in the transcript an agreement by the attorneys of the parties for the reading of original muniments of title, copies, etc., to facilitate the trial. Among the muniments of title to be used by defendant are the following:
    Basquez’s title to eleven leagues of land, office copy. Manchaca’s title to eleven leagues of land, office copy. The statement of facts recites that the plaintiff read in evidence:
    1. “ Land office copy of a title to one league of land, issued by Win. H. Steele, commissioner for Bobertson’s colony, to George Morgan as a colonist, dated September 7, 1835.
    2. “ Certified copy of partition of the estate of George Morgan, deceased, among his heirs, June 8, 1810, from which it appeared that lot 6 and lot 12 were set apart to George W. Morgan.
    3. “ Copy of deed from Geo. W. Morgan to Mandred Stroud, dated October 8, 1815, conveying the lot 6, describing it as bounded on the east by lot 3, on the west by lot 7, and having the original lines of the league for its north and south boundaries, and then conveying the land in controversy as follows:
    "Also one hundred acres of land known in the division of the afore-mentioned league of land of George Morgan, deceased, as part of the lot on block No. 12, having the original lines of the said league for its north and south boundaries, and adjoined on the east by lot or block No. 11, known in the division of said league of land as being numbered as hereinafter set forth.
    4. “ Certified copy of deed from Mandred Stroud to J. C, Walker, dated June 23, 1857, conveying the block known in the division of the league of land granted to Morgan as the block Ho. 14, etc.; and
    “ Also one hundred acres undivided out of block Ho. 12, according to said division of said league among said heirs, being a portion of said league.”
    The defendant admitted he was in possession now and when the suit was brought of the land claimed.
    The defendant then read in evidence a certified copy from the general land office of “ a translation of a title issued to J. 0. Peyton as attorney for Gregorio Basquez.”
    Aso similar title issued to Bobert Barr as attorney for Jose Antonio Man chaca.
    Both these titles were issued in 1833, and it was admitted cover the land in controversy.
    To the admission of these' documents to prove an outstanding title plaintiff objected, “ because no offer was made to prove that said titles were now valid and subsisting and superior to plaintiff’s title.” The objection was overruled.
    The plaintiff, in rebuttal, introduced testimony tending to show that George Morgan and his family had at one time lived upon the league granted to him; that George Morgan was killed by the Indians on the land in 1839. Some persons were living on the land in 1840 and 1841, but who they were is not shown; there were then indications of improvements of several years’ standing. There was proof of the occupancy of the lot Ho. 13 by one Fortune, claiming under the Morgan title, in 1853, and of claim to a large part of the league under it by Fortune. In 1858 or 1859 the witness Fortune says he first heard of the Basquez and Manchaca titles. He says: “My father being then in possession under the Morgan title, made some trade for these titles and had some litigation with B. G. Shields, which was compromised.” There was never any entry under those titles.
    In 1856 or 1857 the Basquez land was assessed for taxes.

      Plaintiff Walker, for himself, testified substantially to these facts:
    That he sold the block Ho. 14, in the Morgan league, containing four hundred acres, to old Lenon, through Gen. Harrison, acting as Lenon’s agent. He had refused to sell this lot Ho. 14 unless the one hundred acres also were purchased, and all taken into actual possession. He says: “ After some negotiations Gen. Harrison, as the agent of Lenon, said that he expected Lenon out from Mississippi; . . . that he would advise him to take the one hundred acres at the same price, and that he had no doubt that Lenon would do as he advised; that he intended to open a new field or extend a field, and would so run the fence as to include a part of my one hundred acres; that he would hold possession under and for me, so that, in this way, my title would receive the benefit of actuaf possession as much as if included in the sale. Upon the strength of this promise of General Harrison, acting as the agent of Lenon, I made a deed to Lenon for the four hundred acres; . . . I refused to make it until Harrison had made me that assurance and promise, and consequently I say I authorized Gen. Harrison, as the agent of Lenon, to take possession and cultivate at least a portion of the one hundred acres. I intrusted my business at tha,t time in Falls county to Mr. Crailt; ... I do not know whether or not he ever saw or had any definite understanding with Mr. Lenon, deceased, but I never received any notice to the contrary from Mr. Lenon or Gen. Harrison, but that the promise and agreement of Harrison and myself in regard to the taking of actual possession of the one hundred acres was carried out according to the understanding between Harrison and myself.”
    At the spring term, 1862, of Falls county court, Walker saw the defendant, old Lenon having died, and spoke to him about the agreement with Harrison as to the possession, and “ requested him to continue to hold possession for me, to which he assented.” Soon after defendant wrote to Walker as follows: “As it might be prejudicial to the interest of the estate of my brother, I cannot act as a tenant or an agent in any capacity for you.” Walker says: “ This was the first intimation I ever received of any adverse interest or claim by Lenon or his estate. Up to the time that the defendant refused to hold as my tenant or agent, as above stated, I supposed and believed actual possession of the one hundred acres was taken by Harrison, . . . and continued by Lenon, to whom I sold the four hundred acres, and, after his death, by the defendant in this case.”
    This is the material testimony in the case.
    The court rendered judgment for the plaintiff for the four hundred acres against H. H. Lenon in his own right, and as agent of W. S. Lenon and J. L. Lenon, from which this appeal is prosecuted. ,
    The assignment of errors states them in a lengthy and argumentative way, but in brief they substantially present these points:
    1. That the conveyance from Morgan to Stroud conveys not an undivided interest, but a specific one hundred acres, and that plaintiff could not recover the whole block.
    2. That the Basquez and Manchaca grants were a superior outstanding title.
    3. That there was no proof that defendant or those for whom he holds, or Lenon, senior, was ever tenant of plaintiff, or held the land for him.
    4. That there was no proof of defendant’s agency, and it was error to render judgment against him as agent.
    5. That the proper parties were not made.
    6. That there was no presumption or limitation shown against the outstanding titles.
   Opmiok.— The first assignment of error presents the question, what is the proper construction of the deed in respect to the description of the land it purports to convey from Morgan to Stroud, under which the plaintiff claims? The description of the deed is: “ One hundred acres of the land known in the division of the Morgan league as part of the lot No. 12, having the original lines of the said league for its north and south boundaries, and adjoined on the east by lot No. 11, known in the division, etc., as hereinafter set forth.”

The partition referred to in the transcript has a plat attached which indicates plainly the location of the lot No. 12. Its north line is the boundary line of the league; its southern boundary is the Brazos river, also the boundary line of the league. On the east is the lot No. 11, on the west the lot No. 13. The lines which separate the lots are perpendicular to the southern boundary line of the league. Upon the face of the plat is marked its number, 12. A perfect and accurate description of the land it covers is given simply by reference to its number in the partition. Reference to its northern or southern boundary or what lot bounds it on the east is mere surplusage and adds nothing to proof of its identity.

The description in the deed: aone hundred acres known in the division as part of that lot having the original lines of the league for its northern and southern boundaries, and adjoining on the east the lot No. 11,” if we assume, as seems to be the most natural assumption, that the grantor is endeavoring to designate the land he had sold, employs all the terms which would be necessary to do so, and the omission of which would render the description indefinite. The one hundred acres can, by that description, be accurately located. Its eastern boundary is the lot 11. Its northern and southern boundaries the league lines; and its western boundary, of course, to include one hundred acres adjoining the lot 11, should, it would seem, be a parallel line with the line of that lot. This would be readily understood by any competent surveyor, and he would have no hesitation, by the description in the deed, in so running the lines. And this rule has been often received and declared by the courts. The west half of a lot has been held to be a definite description of a lot of land, and separates it into two parts by a line parallel with the east or west line. Schmitz v. Schmitz, 19 Wis., 226.

The words used as west or east half are said to have a very precise meaning. So a deed for land which describes it as the northwest corner of a particular section was held good as conveying the land in the form of a square in that corner. Bybee v. Hagerman, 46 Ill., 519.

And in Arnold v. Cauble, 49 Tex., 528, the descriptive terms, the north half, the south half, are recognized as vest-' ing separate interests in severalty in the grantees. In truth, this yule of describing lands in Texas as by the upper or lower half or portion of a tract of land, or such a number of acres off a particular end of a survey, is very common. It has, we believe, never been considered as creating a tenancy in common. To give such construction now to the terms would very greatly unsettle and disturb very many titles to lands in this state.

If then, as we think, the description in this deed is sufficiently accurate to designate a separate plat of land, what is there in it to indicate a contrary design in the grantor? Had it been intended to convey an undivided interest, words expressive of that intent would doubtless have been used. The terms employed are not the natural ones indicative of such intention. “ One hundred acres of land, known in the division as part of the lot Ho. 12,” seems to us to be as specific a designation of a separate interest as could well be employed. It means one hundred acres, known in the division. How known? As adjoining the lot Ho. 12. Where the land is can be determined instantly by looking at the plat. But it is suggested by the appellant that the word “ known ” in the deed must apply to the lot and not to the one hundred acres, because there is no division of that one hundred marked in the plat. This would be to torture language out of its plain meaning. One hundred acres, known in the division as part of the lot Ho. 12,” is not an ambiguous expression; it is the one hund'red acres which is known, and not the lot. Again, it is said that the conclusion of the sentence, “having the northern and southern lines of the league for its boundaries, and adjoining lot Ho. 11,” must be held to apply to the lot Ho. 12. We have seen that this would be an unnecessary particularity of description of that lot. The thing to be described was the one hundred acres; the controlling subject in the sentence is the land, the part of the lot, and the plain sense of it is, that the description in the latter portion of the sentence has relation to that and that only.

We have no hesitation in saying that, in our opinion, the land conveyed was not an undivided interest, and that, consequently, the first assignment of error is well taken. Walker had no right to a recovery of the whole four hundred acres.

The second assignment is that the Basquez and Manchaca grants should have been held to be superior outstanding titles.

Unless it were shown that the defendant occupied such relation towards the plaintiff as would preclude him from setting up a valid subsisting superior title to the land against him, we perceive no good reason why these grants, as presented, did not make out such a title. The objection offered by the appellant to their reception in evidence, because no offer was made to prove that said titles were valid and subsisting and.superior titles to plaintiff’s, was properly overruled.

It is urged by appellee that something more than the mere production of the grant is necessary to establish the superiority of the “title;” he cites as authority 10 and 28 Tex. The title under which he claims from the government to Morgan, issued in 1835, is proven in this record by certified copies from the general land office, and so are the titles to Manchaca and Basquez. They are all grants from the sovereignty of the soil, authenticated as of equal dignity and imparting equal verity. But the titles to Basquez and Manchaca are prior in point of time as issued in 1833, and are, therefore, upon the face of them, superior titles.

And as is said in Williams v. Conger, 49 Tex., 602, in respect to a similar title, “ we know of no authority to warrant us in holding that the mere failure to pay taxes, or the laches or delay of the owner in bringing suit for the recovery of the land to which he has a legal title, will defeat his action where there has not been actual adverse possession for a sufficient length of time to support the plea of limitation.”

And it is quite certain that there is no testimony to show that the titles of Manchaca and Basquez, which it is admitted cover the land in controversy, are barred by lapse of time. The partition of the George Morgan league among his heirs was made in 1840, when the lot No. 12 was allotted to George W. Morgan. There is no proof of possession by him or by any one claiming under him of that lot since that period. If we suppose that the Basquez and Manchaca titles were the superior titles to the land, this claim to the lot No. 12 would not be defeated by limitation because other persons occupying other portions of this grant might have acquired title to such other portions by adverse possession. Since the partition, which was made before the passage of the limitation law, no one claiming under the partition the lot No. 12 could derive any benefit from the possession of other parties holding other lots, or set up their possession of other lots to aid him in defeating the claim of the true owner of the lot No. 12 by the plea of limitation.

Judging, then, from what appears in this record, there is nothing to impeach the validity of the Basquez and Manchaca titles, or defeat the conclusion that, being the elder, they have the better title.

3. But it remains to consider whether defendant’s relations to the plaintiff preclude him from setting this up. We have carefully considered the testimony, and we are unable to find the least testimony to support the claim of the plaintiff that Lenon was at any time his tenant, or that the land was ever, before the date of Lenon’s letter to him declining to act as his tenant or agent, in the possession of the land, or Harrison or any person whatever. Harrison’s promise to take possession of the land and hold it for plaintiff was not equivalent to actual possession.

4. It is assigned for error that judgment was improperly rendered against Lenon as agent.

If judgment was properly rendered against him at all, styling him agent of Lenon, etc., would not vitiate it. It was a description of the person. It bound no one but himself, and though certainly very unusual and irregular, was simply immaterial.

Bevebsed and remanded.


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    J. T. Litton v. Jennie Thompson.
    (No. 2843.)
    Sura on account.
    Statement op facts.
    Practice.— As a general rule a statement of facts is necessary to show error in the admission or rejection of evidence and in giving and refusing charges, and when the absence of a statement of facts is attempted to be supplied by bills of exception the bill or bills of exception must disclose facts enough to show that the supposed error is not merely abstract, but one which may have operated to the injury of the complaining party.
    Opinion by Walker, P. J.
    Statement.— This suit was brought by the plaintiff in error against Jennie Thompson, on an account for goods, wares, lumber and merchandise alleged to have been sold by plaintiff to her through and at the request of her agent and attorney in fact, John Lear. The account, the petition alleges, was contracted by John Lear with the mercantile firm of Litton & Hearn, of which the plaintiff is the surviving partner; that the goods, etc., were sold and delivered to said Lear, who, they afterwards learned, was agent and bought for said Jennie Thompson said goods, wares, merchandise, etc., described in the exhibit attached to the petition; that they, were received and used by said defendant Thompson. Plaintiff’s account admitted credits amounting to $617.94, leaving a balance due of $456.31, for which plaintiff prayed judgment. The items of the account consist wholty of articles of dry goods, some few articles of provisions and liquor, and cash paid on orders, without stating whose order; also items of cash paid to divers persons named, without stating the charge otherwise than simply cash paid (naming the person and the amount). There was no item of charge for lumber. The items of credit given in the account were equally indefinite; no statement in the item indicating who made the payment. The account is headed, “John Lear, bot. of Litton & Hearn.”
    The defendant answered by a general exception and a general denial. The cause was submitted to a jury, and a verdict was rendered for the defendant. The record contains no statement of facts. The plaintiff appeals and assigns numerous grounds of error; they all relate to the exclusion of testimony; the refusal of the court to cause a certain witness to be brought into court to testify in plaintiff’s behalf, who was at the time confined in the county jail; and to the charge given by the court, and to the refusal of the court to give certain instructions asked for by the plaintiff.
   Opinion.— As a general rule a statement of facts is necessary to show error in the admission or rejection of evidence, and in giving or refusing charges, Hutchins v. Wade, 20 Tex., 7; May v. Ferrell, 22 Tex., 340; 23 Tex., 670; 23 Tex., 64; 25 Tex., 317; 2 Tex., 297; 11 Tex., 649; 16 Tex., 335.

To this general rule there are well-established excepfiions, as where, under the pleadings, the charges complained of as being given are necessarily erroneous (Best v. Alford, 22 Tex., 397; Anding v. Perkins, 348), or where the bill of exceptions discloses facts enough to show that com-' petent testimony has been excluded, the relevancy and materiality of which is disclosed by the pleadings. 7 Tex., 591; 17 Tex., 62; Galbreath v. Templeton, 20 Tex.. 45; Fox v. Sturm, 21 Tex., 406; 29 Tex., 418; 27 Tex., 438.

But this case is not brought within the operation of the exceptions; there is nothing in the record whereby we are enabled to determine that a wrong result had been attained by the verdict which was rendered. The evidence, before the jury may have been such as to have entitled the defendant to a verdict under the law properly applicable to •the case, without regard to whether the charge given was correct or not, and irrespective of the refusal to give the instructions which were asked to be given.

The charge given by the court indicates that the evidence before the jury may have been of such a character that the defendant’s liability for the goods may have depended upon circumstances which would not be controlled by the simple fact that John Lear may have been her general agent in some particular hind of business/ and the charge may possibly have been wholly applicable to the state of evidence before the jury. Without a statement of facts we are certainly unable to assert the contrary as being a logical, necessary legal deduction. For the same reason we are unable to say that the plaintiff was injured by the refusal of the court to give the instructions asked for.

The same reasoning, remarks and authorities are alike applicable to each and all of the bills of exception. The bills of exception do not supply, by their fullness of statement of the evidence before the jury, or by showing the relevancy, materiality and connection, of that which the court refused to admit as proper testimony, such facts as, if shown, would enable us to perceive whether the action of the court which is complained of could have re-suited to the plaintiff’s injury under the evidence which was before the jury. ’

The charge of the court to the jury plainly indicates that the judge meant to rest the decision of the case upon certain evidence before them, concerning dealings between the plaintiff and defendant, which were had under terms and understandings defined betweenJ them, either by special agreement or else by a custom or course of dealing between them. The evidence may have shown that Lear was not the defendant’s general agent for the transaction of all of the defendant’s business, but that his authority may have been limited to a special subject or object which would not include his right to purchase goods, borrow money, draw orders for money, etc,, on defendant’s account. In the absence of a statement of facts, in order to show that an error has been committed to the plaintiff’s injury, either in the charge of the court, the refusal of instructions or the rejection of evidence, the bill or bills of exception must disclose facts enough to show that the supposed error is not merely abstract, but one which may have operated to the injury of the complaining party. Nor are we able to determine the correctness or incorrectness of the court’s ruling by the test of the “contention” between the court and counsel as to evidence- which the appellant has not favored us with the opportunity of inspecting. This bill of exceptions is otherwise objectionable in several particulars, especially in that it does not specify what admission of fact made by Lear it was that the appellant proposed to prove to show the correctness of the account. See Styles v. Gray, 10 Tex., 503. The bill of exceptions must distinctly show that the evi- • dence was offered at the proper time and that the court refused to admit it." Anderson v. Anderson, 23 Tex., 639. A bill stating that the plaintiff objected to the defendant proving certain facts is too general, it not appearing that objection was taken to the testimony of any witness in particular, or to any particular evidence when offered. Rains v. Hood, 23 Tex., 555.

If the plaintiff in this case has sustained an injury through the erroneous proceedings of the district court, he has failed on his appeal to adopt the means allowed by law to enable this court to inspect, and if found to be erroneous to revise and correct them. The record as presented does not disclose any error of which he may complain.

Affirmed.


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    D. C. Lyons v. Jas. P. Reed et al.
    (No. 2732.)
    Wrongful levy by sheriff—Damages.— Where a sheriff, who is being sued for damages for an illegal seizure of. property, pleads that the seizure was made under an execution against a third, party, held, that his plea was properly stricken out on motion of plaintiff; that he could not justify the seizure of plaintiff’s property under an execution against a third party, but would still be responsible for the damages he had done.
    Evidence,—Oral testimony not admissible to prove that A. H." Beed owned the AR brand. Book of marks and brands better
    Appeal from Karnes county. Opinion by Quinan, J.
   Opinion.— This suit was brought by the appellees against the appellant and one Burke, the sheriff of Goliad county, and others to enjoin the sale of twenty-nine head of horses, levied on by said sheriff by virtue of an execution upon a judgment against one A. H„ Keed, who, at the date of the levy, was dead, and for damages, the property being alleged to be the property of the appellees. The case was submitted to a jury, who found a verdict for the appellees and for §150 damages,

Burke, the sheriff, pleaded that he' seized the horses under the execution against Eeed; that the horses were in the brand owned in his life-time by Eeed; that the execution was regular on its face, and that he acted only in the regular discharge of his duties.

This plea was on motion stricken out, and rightly so. The sheriff could not justify the seizure of the property of plaintiff under an execution against a third party. He would still be responsible for the damages he had done.

Bills of exception have been reserved to the ruling of the judge in admitting testimony.

Jas. P. Reed, the plaintiff, was asked by his counsel: “How much were you damaged by the seizure .of your horses? ” To which defendants objected on the ground, not that it was incompetent or mere matter of opinion, but that it was too general. It would have been, perhaps, more regular to have inquired whether he was damaged, how he was damaged, and in what the damages consisted; but the mere asking the question cannot be objected as error unless it was shown that injury resulted from it; that improper testimony xvas thereby elicited which had a prejudicial effect upon the jury.

The witness stated facts from which his damage resulted. He shows that the horses were seized and driven some six or seven miles from their range on Oavasos creek to the town of Goliad, and kept their for eight or nine days, and ridden by herders; that they were in good condition w’hen taken away and very poor when returned. From these facts the jury for themselves might determine the injury and the amount which they should give as compensation. It is true the witness also stated that he considered himself damaged by the levy and detention of bis horses $300, but this testimony was not objected to nor any motion made to strike it out. The objection made was to the generality of the question, and injury from that cause might easily have been obviated by an examination upon the special facts or losses which went to make up that estimate, if he so desired.

It is often said'that the opinions of witnesses are not admissible, and doubtless this is the general rule, but there are exceptions to it. Witnesses must often be permitted to testify as to values, which strictly is but matter, oftentimes, of opinion. The difference in the value of the horses seized, when fat and when poor, the cost incurred in consequence of their being driven out of their range, the value of their use,— these were subjects to which the witness might testify, and the sum of these values was his damage. If it were error to receive his estimate in gross of the amount, it is not perceived, however, that injury resulted from it. The verdict of the jury seems not to have been influenced by it. The amount is only for half his estimate. Whart. Ev., 509,1011; Sedgwick on Measure of Damages, pp. 635, 637.

Another objection made on the trial was as to the admission of a bill of sale to Mrs. Beed to prove her interest in the property. The point of this objection is not made apparent by the bill of exceptions or the brief, but whether rightly or wrongfully admitted is immaterial, for there was abundant testimony otherwise to establish her ownership.

Another objection was to the refusal of the court to permit a witness to answer whether A. H. Beed did not own the AB brand, which, we think, was properly refused. The book of marks and brands would have been better proof, but such proof was altogether irrelevant. That A. H. Beed, in his life-time, owned that brand, in no way tended to justify the sheriff or Lyons in levying upon the property of plaintiff.

The charge of the court, taken as a whole, was not unfavorable to the defendants. The jury were limited in their findings to such damages as the testimony proved the plaintiff had sustained. There could be no question of exemplary damages under his charge.

On the whole there was no error in refusing a new trial. The judge was satisfied with the verdict of the jury. We cannot say that there was no testimony to sustain it.

This disposes of all the alleged errors which the appellant has specified.

Affibmed.


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    John Heathcock v. W. E. Goodrich.
    (No. 318.)
    Allowance in lieu or homestead.—Bight of surviving widow to, there being no homestead.
    Appeal from Guadalupe county. Opinion by Watts, J.
    Statement.— Thomas Goodbread died intestate December, 1872. At the time of his death he left surviving two married daughters, then living with their respective husbands; also Ms widow, Malinda Goodbread, and two minor grandchildren, Laura and Douglas Yan Dorn; the last named was living with deceased at and before his death. He left a personal estate valued at about $2,450, his separate property. He had no other property and no homestead. W. E. Goodrich was appointed and qualified as the administrator of the estate in 1873, and that, to wit, the 18th day of June, 1873, the district court, acting in matters of probate, made and entered an order setting apart to said Malinda Goodbread and said two minors for a year’s allowanee and in lieu of exempted property the sum of $2,450.
    The said married daughters, joined by their husbands, instituted this suit the 23d day of November, 1874, against the administrator, Goodrich, and Malinda Goodbread, to have said order vacated and set aside, and for partition or distribution of said estate, which consisted of notes and money, claiming as heirs of said Thomas Goodbread.
    To this the defendants answered "setting up the facts as stated above. The case was tried December 12, 1874, before the court (a jury being waived), and resulted in a judgment for defendants, which judgment is now before the court on appeal. There is no assignment of errors in the record.
   Opinion.;— The statute in force at the time the order was made, setting apart said amount to the widow and minor grandchildren as a year’s allowance and in lieu of exempted property, provided that “the property reserved from forced sale by the constitution and laws of this state, or its value if there be no such property, does not form any part' of the estate of a deceased person when a constituent of the family survives.” P. D., art. 5478.

In Mayman v. Reviere, 47 Tex., 357, it was held that under the probate act of 1870 the surviving widow was entitled to an allowance in lien of a homestead and in. lieu of such exempted personal property as the husband did not leave her at the time of his-death; and that so much of the property as was necessary to make good such allowanees was not subject to administration.

If there should be any doubt as to whether the said grandchildren were or not constituents of the family, or of their right to participate in such allowances, that Mrs, Good bread was a constituent of the family, and entitled to the allowances as made, does not admit of doubt. And if she is willing to divide the allowances with the grandchildren, certainly appellants have no right to complain.

An examination of the record does not disclose any such errors as would authorize a reversal of the judgment.

Affirmed.


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    Henry Magel et al. v. C. M. Hitchcock.
    (No. 2749.)
    Trespass "to try title — Evidence.— It is not sufficient to reverse a judgment simply because the court below may have erred in its rulings as abstract propositions of law, or because it may have given reasons not deemed sufficient. But the com- . plaining party must make it appear also that he has been deprived of some right or has been injured by the erroneous ruling.
    Appeal from Guadalupe county. Opinion bv Walker, P. J.
    Statement.— This was a suit brought by . the appellee against the defendants to remove a cloud from his title to a certain tract of land. The defendants set up no defense other’ than the plea of “not guilty ” of the alleged trespasses alleged in the petition; that they have held and possessed the land in controversy for thirty years before the institution of this suit, holding the same under deeds duly recorded, paying taxes thereon; that the plaintiff’s was, therefore, a stale demand. The defendants also pleaded that the suit was vexatious, and prayed for damages in re-convention against plaintiff. The defendants’ answers did not set forth any specific title under which they claimed, nor otherwise deraign the same except in the general allegations above set forth.
    The cause was submitted to the judge without a jury. On the trial the defendant offered parol testimony to prove the contents of a certain judgment of a justice of the peace in 1840, upon which an execution was issued and this land was sold. The defendant, Neill, had filed an affidavit to establish loss of and search for the docket containing the judgment; the testimony offered was objected to by the plaintiff on the ground that the evidence offered was secondary, and no proper or sufficient predicate for its introduction had been laid in the affidavit to dispense with the production of the original, and to allow of secondary evidence of its contents. The court sustained the objection and . excluded the testimony, to which the defendants excepted; the court rendered judgment for the plaintiff, and defendants prosecute this writ of error.
    The record contains no statement of facts. The appellants assign the ruling of the court excluding the testimony as grounds of error.
   Opinion.— It is not necessary to consider the grounds upon which the ruling complained of was based, nor whether it was abstractly correct as a legal proposition or not, because, there being no statement of facts in the record, under the pleadings in the case, the supposed error is not the proper subject of revision by this court.

This case is not brought within the exceptions to the general rale, that, ordinarily, the supreme court will not revise errors of the court below in admitting or rejecting evidence. See Galbreath v. Templeton, 20 Tex., 45; Fox v. Sturm, 21 Tex., 406.

The bill of exceptions does not recite any evidence which was adduced to the court, or which was offered to be adduced by the defendants in connection with the testimony which was offered by them and excluded under plaintiff’s objections, whereby, and from which, we are enabled to perceive that they sustained any injury by reason of such exclusion. “It is not sufficient to reversea judgment simply because the court below may have erred in its rulings as abstract propositions of law, or because it may have given reasons not deemed sufficient. But the complaining party must make it appear, also, that he has been deprived of some right or has been injured bj7 the erroneous ruling.” Jones v. Cavasos, 29 Tex., 433.

Neither do the defendants’ pleadings, when considered in connection with their bill of exceptions, have the effect to vary the application of the general rule. Their answers .disclosed no title pleaded or described by them which can, upon the face of the evidence which was offered and excluded, enable us to connect the one with the other, and to determine that the exclusion of the testimony operated upon a matter which was, under the issues, necessarily material and relevant. Fox v. Sturm, 21 Tex., 406.

Affirmed.


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    The Navarro Publishing Company and St. Louis Type Foundry Company v. J. W. Fishburn, L. K. Tarver and G. P. Miller.
    (No. 4191.)
    Rescission op contract.— A contract cannot, ordinarily, be rescinded unless both parties can be reinstated in their original situation in respect of the contract, and the party desiring to rescind the contract must do or offer to do all in his power to restore the other party to his original situation to entitle him to recover his damages.
    Fraud.— The fraud which is the ground for relief against a contract is fraud at the time of the execution of the contract; and a contract, though induced by fraud, cannot be avoided if the rights of an innocent vendee have, in the meantime, intervened.
    Appeal from Navarro county. Opinion by Walker, J.
    Statement.— The briefs of counsel on both sides being under the “New Bules,” and the statement of the case made by the counsel for the appellants being .agreed to as correct by the counsel for the appellee, we shall adopt such statement as the same has been presented in the appellants’ brief, and it is as follows:
    The appellants brought suit in the district court of Navarro county on the-day of-, A. D.-, against appellees to annul a contract made on October 13, 1876, by and between the Navarro Publishing Company and J. W. Fishburn, by virtue of, which contract Fishburn got possession of the paper published by the Navarro Publishing Company, with its press and material, type, etc.; also for the recovery of a job press, with its type and material, which was delivered to the said Fishburn by the Navarro Publishing Company under said contract, that the same might be sold for the benefit of the St. Louis Type Foundry, from whom the said press had been purchased by the Navarro Publishing Company and not paid for. Or in case this relief is not granted, then, plaintiffs pray for a judgment for the sum of $2,000 against Fishburn, being the value of and the amount agreed to be paid by Fishburn for the Corsicana Index, job press, material, etc.
    The contract is sought to be annulled on the ground of fraud- on the part of Fishburn in inducing the contract, as well as his fraudulent acts in wilfully destroying the value of the security given by him to secure the purchase money of paper, press, etc., and the payment of the indebtedness to the St. Louis Type Foundry Company.

      Tarver & Miller, the defendants, are purchasers from Fishburn with notice.
    A general demurrer was filed to the petition by defendants, which was sustained by the court, whereupon plaintiffs declined to amend and judgment was entered for de-. fendants, to which plaintiffs excepted and gave notice of appeal.
    The petition alleged that on the 13th of May, 1876, the Navarro Publishing Company were the owners and publishers of a certain newspaper in Navarro county, known and styled as the Corsicana Weekly Index, w.hich said paper was published weekly, having °a wide circulation in Navarro county and surrounding counties; also with a pajring subscription list and advertising patronage of the value of §200 per month; that the Navarro Publishing Company purchased from the St. Louis Type Foundry Company, on or about the 1st day of April, A. D. 1876, the job press, with type and material, for which the Navarro Publishing Company agreed to pay the sum of §775.25; that about the 13th day of October, 1876, while the Navarro Publishing Company was still indebted to the St, Louis Type Foundry in the aforesaid sum of money, the said Navarro Publishing Company received from defendant Fishburn a proposition to purchase the Corsicana Weekly Index, with its job press, type, material, properties, etc.; that the Navarro Publishing Company, earnestly desiring to obtain the means of paying the St. Louis Type Foundry Company, or to provide a security for its payment,- and having fully informed the said Fishburn of the indebtedness as aforesaid, and their desire to pay or secure the same, did enter into a contract with Fishburn, in which Fishburn agreed to purchase the newspaper, job press, etc., for the sum of §2,000; that the said Fishburn, having no money to pay cash, agreed to execute certain instruments in writing, each for the sum of §50, payable one-half in twelve months and the other half in twenty-four months from date, payable to the Navarro Publishing Company or bearer. The bearer was entitled to have one-half of his account in advertising, job printing, etc., credited upon the note or instrument until paid.
    That the Navarro Publishing Company was to receive a sufficient number of these instruments to aggregate the sum of §2,000; that the said Fishburn agreed to guaranty their negotiability and ready sale by so conducting the "paper as to extend its influence as an advertising medium as to create a demand for these advertising notes among all classes who desired to advertise; that by his conduct of the paper the Navarro Publishing Company could easily sell the paper or advertising notes and raise the money to pay the St. Louis Type Foundry Company; that the Navarro Publishing Company, induced and relying upon the promises of said Fishburn, agreed to accept forty of said written instruments, payable as aforesaid, and did accept them and delivered to said Fishburn the Corsicana Weekly Index, with the job press, type and material of all kinds pertaining thereto; that the Corsicana Index, or rather the Navarro Publishing Company, delivered twenty of said instruments to the St. Louis Type Foundry Company for sale, to secure and discharge the indebtedness as aforesaid, and the Navarro Publishing Company retained the balance. The petition alleges that these written instruments given by the said Fishburn were at once placed on the market by plaintiffs as contemplated by all parties to the contract, and the said written instruments or advertising notes could not be disposed of for any sum of money whatever. The petition alleges that the failure to sell said notes arose from the failure of Fishburn in any manner to carry but his contract in the conduct of the paper, or to perform any of the many promises set out in the petition; but, on the contrary, he allowed the newspaper to depreciate in credit, to wit: The Corsicana Weekly Index, and its influence as an advertising medium, to be destroyed; that no one would advertise in said Corsicana Weekly Index but those merchants who furnished said Fishburn and his employees with supplies, and only in payment of merchandise so obtained.
    The petition further alleges that the said Fishburn, contrary to his promises, did wilfully and fraudulently destroy the negotiability and sale of said advertising notes, by representing on the streets of Corsicana that parties desiring to advertise in his paper could make better terms by direct application to him than could be obtained by purchasing said notes. That these fraudulent representations and the failure of Fishburn to fulfill any of the promises by him made to induce said contract, rendered said advertising notes absolutely valueless in the hands of plaintiffs. That the said Fishburn has obtained the property of plaintiffs without consideration, and held the same until 1878, when he sold the Corsicana Weekly Index, with the job press, type and material, to his co-defendants, Miller & Tarver, who, it is alleged, purchased with notice of all equities, etc. The relief prayed for is set forth above in statement of the case.
    Plaintiffs assign errors as follows:
    1. The court erred in sustaining defendants3 general demurrer to plaintiffs3 petition.
    2. The court erred in holding that parol evidence was inadmissible to show the circumstances, inducements and objects with -which the contract of purchase was made.
   Opinion.— The plaintiffs, in their petition, disclose no privity of contract with the defendant, nor any joint cause of action to enforce the remedy which the petition seeks. Whatever cause of complaint exists to rescind the contract pertains to “The Navarro Publishing Company.33 The contract, according to the allegations of the petition, was for the sale of a certain newspaper and materials connected with it, which belonged to, and was the property of, “ The Navarro Publishing Company,33 which it sold and delivered to the defendant for the negotiable securities described-in the petition, which were delivered to the Publishing Company in pursuance of their agreement. The St. Louis Type Foundry Company had no connection whatever with the contract, the making nor the consummation thereof, nor did it have any rights or ownership in the subject-matter of the contract between the parties which entitled such company to the enforcement or the cancellation of the contract so made between the parties. The St. Louis Type Foundry Company was not, in any sense, either a party or a privy to that contract. The petition alleges no facts connecting the Type Foundry Company further with this cause of action than that the Navarro Publishing Company was indebted to it, and that one-half of the proceeds of the consideration agreed by defendant to be paid the Publishing Company, and which were paid by defendant in the purchase of the newspaper and materials, was turned over or delivered to the Type Foundry Company in order to enable the Publishing Company to pay its aforesaid debt. These facts do not give to the St. Louis company any right or cause of action to recover the property' sued for, nor to cause a rescission of a contract to which he was neither a party, nor for the performance of which he was in anywise connected or obligated, nor to the benefits of which he was in anywise directly interested. The misjoinder of parties plaintiff is apparent on the face of the petition, and the defect was reached 'by an exception. May v. Slade, 24 Tex., 208; Murray v. Webster, 5 N. H., 391.

If, however, this objection to the petition was removed and it was treated as the suit alone of the Navarro Publishing Company, obviously it must be held that the demurrer was properly sustained.

The petition sets forth, in effect, but two grounds for rescission, one of which is the failure, as alleged, of the defendant to manage his newspaper so as to render the securities given to defendant available in the market, or of any value to the holders of them, thereby committing a breach of his express stipulation and guaranty; he does not allege that this failure on his part was fraudulent. The other ground is, in effect, that he fraudulently sought to render them less valuable by offering inducements to the public to advertise with him in his newspaper at lower rates than could be secured by virtue of said negotiable securities; that both these causes combined had the effect to render the securities valueless and destroyed their negotiability.

Flo fraud nor misrepresentation is alleged against the defendant in the making of the contract; whatever cause of complaint is alleged to exist concerning it appears to have arisen subsequently, very long subsequently, and after the contract had been mutually acted upon with apparent satisfaction from aught that is shown in the petition, and acquiesced in for two years, more or less,

“ The fraud which is the ground for relief against a contract is fraud at the time of the execution of the instrument.” Chesterman v. Gardner, 5 Johns. Ch., 29. If, however, the facts alleged in regard to the making of the contract could, by possibility, be construed to imply a charge of' fraud on the defendant in the making of it, the knowledge of the fraud was not concealed by the defendant for two years, so as to account for and excuse the plaintiff’s delay and apparent acquiescence in it. “ Acquiescence or delay for a length of time after a man is in a situation to enforce a right, and with a full knowledge of facts, is, in equity, cogent evidence of a waiver and abandonment of the right. If a voidable contract or other transaction is voluntarily acted on, with a knowledge of all the facts, in the hope that it may turn out to the advantage of a party who might have avoided it, he may not avoid it when, after abiding that event, it has turned out to his disadvantage.” Kerr on Fraud and Mistake, 299, and authorities cited. But the plaintiff, indeed, does not pretend that there was any fraud in the making of the contract, nor any concealment by defendant of fraud alleged to have been subsequently discovered. The case which is made by plaintiff notonly negatives the existence of fraud in the making of the contract, but the allegations of the petition create a strong implication of acquiescence therein, if there had been any. The petition certainly alleges no fraudulent act of omission or commission against the defendant in respect to the contract, except acts which would constitute, at most, but a breach of the conditions and stipulations of the contract.

The facts alleged in the petition otherwise negative, very conclusively, the plaintiff’s right to rescind this contract. The plaintiff does not allege that,' before instituting his suit, he ever made an offer to the defendant to rescind, and the plaintiff shows, prima facie, its inability to restore the defendant to the position in which he was at the time of making the contract. The plaintiff obtained from him negotiable personal obligations which he shows have been, to a large extent, placed in the hands of other persons, and it neither accounts for the others nor is there an offer to surrender them to defendant and cause them to be canceled. The property sold to defendant has been, in the meanwhile, sold by defendant to other parties. “A contract cannot, ordinarily, be rescinded unless both parties can be reinstated in their original situation in respect to the contract, and if one party has already received benefit from the contract he cannot rescind it wholly, but is put to his action for damages, or he may set up the default of the other party to perform his part of the contract as a defense pro tanto.” Story on Contracts, sec. 977. “But where the party desiring to rescind a contract has been defrauded, and it is impossible for him to reinstate the other party in precisely the same condition, it will be sufficient if he do or offer to do all that is in his power in this respect, in order to entitle him to recover his damages.” Id. The plaintiffs, in their petition, show that the defendant delivered his obligations to the number of forty, payable to bearer, and intended, by the understanding of the parties, to have free negotiability, payable at twelve and twenty-four months, in sums of $50 each, and, as has been already said, one-half of them had been delivered to the St. Louis Type Foundry Co. for negotiation, and the plaintiffs neither offer to return and cancel them, nor do they allege what has been done with them, nor in whose hands they now are, nor to whom they or any of them now belong. The defendant,primafacie, is liable for their payment in the hands of bona fide holders for value, and he cannot be placed in the condition in which he is entitled to be placed in respect to the subject-matter of this contract under the rescission which is asked to be made of it.

The printing material and newspaper sold to defendant has been sold by him to parties who are made co-defendants, under allegations against them “ that they bought with full notice of the facts as set forth in the petition, and of the contract with said Fishburn, and. his failure to perform it,” and that “ they knew that a suit was being brought for said paper.” These allegations do not place the purchasers in a position which' disable them to have acquired a valid title to the property. A knowledge of facts which did not entitle the plaintiff to rescind the contract of course would not affect the right of those parties to purchase the property; but aside from this axiomatic proposition, it is not to be maintained that the free alienation of property is to be thus restrained. In the absence of fraud in the transaction they had a right to purchase property, the apparent ownership of which the Navarro Publishing Company had invested in the defendant by all the required indicia of a valid title, accompanied by possession long enough, perhaps, to have even conferred title under the laws of limitation. With a knowledge of all the facts which the plaintiffs charge against the defendant, third parties could not know that the plaintiff, the Navarro Publishing Company, would elect a remedy for rescission of the contract, rather than that of damages for breach of the contract, and after so long a period of delay, certainly, and of acquiescence, seemingly, a purchaser might well be regarded as such in good faith who bought and paid for the property under such circumstances. It is not alleged that this suit was then pending, but merely that the purchasers “ knew that suit was being brought for the paper.” The doctrine of lis pendens rests upon the existence of the open facts of record which disclose to the world, and which third parties are conclusively required to take notice of, what claims are made by the suit. Until the suit is brought for the paper the world will not be required to anticipate, at its peril, and be bound by constructive notice of the contents of an embryo petition having its existence only in the brain of legal counsel, as to whether the suit for the paper Will be developed, when matured in the shape of a judicial demand, into a suit for cancellation of the contract set forth in the petition or not. Such charges are, by far, too indefinite and vague, at best, if they were not otherwise insufficient, whereby to restrict the right of these purchasers to acquire, by a fair and honest purchase, without fraud, the property in question.

The correct principles of law applicable to the subject are succinctly and clearly stated by ICerr thus: “ FTor can a contract be rescinded if the circumstances have, in the meantime, so far changed that the parties cannot be restored to the position in which they stood before or at the time of the contract. The effect of the avoidance of an agreement on the ground of fraud is to place the parties in the same position as if it had never been made; and all rights which are transferred or created by the agreement are revested or discharged by the avoidance. If, when it is avoided, nothing has occurred to alter the position of affairs, the rights and remedies of the parties are the same as if it had been void from the beginning; but if any alteration has taken place, their rights and remedies are subject to the effect of that alteration. A contract, though induced by fraud, cannot be avoided if the rights of an innocent vendee have, in the meantime, intervened. If, before disaffirmance, the goods or chattels have been resold or transferred, either in whole or in part, to an innocent vendee, the title of such vendee is good against the original vendor. So, also, where a negotiable instrument gives a. valid title to a transferee who takes it without notice of the fraud.” Kerr on Fraud and Mistake, p. 329. The application of these principles of law withdraw the question presented by this appeal from the region of doubt. Indeed, the petition seems to be wanting in the statement of any substantial ground for relief.

Affirmed.


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    J. R. O’Neal et al. v. Peyton Lockhart et al.
    (No. 317.)
    Non-joinder.— Where non-joinder of parties plaintiff appears from the allegations in the petition, the objection may be taken by exception.
    Appeal from Comanche county. Opinion by Watts, J.
    Statement.— This suit was commenced December 23, 1873, by Peyton Lockhart, Dinah Hope, Fred Douglass, Eeese Sloan and Moses Jones, against G. E. O’Neal and S. M. Sowell, to recover five separate and distinct tracts of land claimed respectively by the plaintiffs as their preemption surveys.
    It is alleged in the petition that each of the plaintiffs had settled upon vacant public domain; that each of them had caused his one hundred and sixty acres to be surveyed and the field-notes recorded and copies thereof to be filed in the general land office, setting forth in the petition the field-notes of their respective surveys, and alleging a compliance with the pre-emption laws; that subsequent to their respective settlements and surveys, the defendants, O’Neal and Sowell, had located a certificate upon a large tract of land, including their respective pre-emption surveys, had caused the same to be surveyed, the field-notes recorded and a copy thereof filed in the general land office, and had wrongfully procured the issuance of a patent therefor; that plaintiffs had thereafter been forced to temporarily vacate their respective surveys by mob violence, and that defendants had wrongfully entered upon, and taken possession of, the said land, and forcibly and wrongfully detain the same from the plaintiffs. They sue to recover their respective surveys and to cancel the patent issued to defendants.
    Gr. E. O’Neal, one of the defendants in the court below, on the 12th day of February, 1874, filed a general demurrer and special exceptions to the plaintiffs’ petition,'and also a general denial and a plea of not guilty. The case was con-tinned by consent at the February term of the court. At the May term of the court, 1874, the death of the plaintiff, Peyton Lockhart, was suggested, and the case continued to make his legal representatives parties plaintiff. At the October term of the court, the plaintiffs filed amended petitions, and again at the February term, 1875, and at the same term, the defendant, J. M. Sowell, joined by his eodefendant, Gr. E. O’Neal, filed an amended answer, setting up the land claimed by them by metes and bounds, denying all the allegations in plaintiffs’ original and amended petitions, and charging the plaintiffs with negligence, laches and forfeiture.
    The cause came on for trial February 27,1875; the court overruled appellants’ exceptions, and the trial resulted in a verdict and judgment for appellees for each of their respective surveys, and cancellation of appellants’ patent. The case is now before the court on appeal.
   Opinion.— The allegations in the petition affirmatively show that there was no priority of right or claim between the several appellees with reference to the subject-matter of the litigation. Each of them claimed to be the owner of his one hundred and sixty acre pre-emption survey; neither asserted nor claimed any right or interest in the other surveys; no community of interest in the several tracts of land was claimed; on the contrary, it appears that no such interest had ever existed.

i

The question was not raised by special exceptions. Appellants’ general demurrer and special exceptions going to other supposed defects in the petition were overruled, and that ruling is assigned for error; and the appellants in their brief insist that the judgment ought to be reversed on account of the misjoinder of parties plaintiff and causes of action. In cases like the one before us the question of misjoinder, where it is obvious, may be taken advantage of by plea in abatement, under the general denial, by demurrer, motion in arrest of judgment or by writ of error. Gould’s Pleading, 273, 275.

It was held in May v. Slade, 28 Tex., 208, that when nonjoinder of parties plaintiff appeared from the allegations in the petition, that the objection might be taken by exception.

In the case of Punchard v. Delk, decided at the present term, the plaintiffs sued, as tenants in common, to recover a large tract of land; it was afterwards ascertained that a partition between the plaintiffs had been made in the probate court long prior to the institution of the suit. To avoid delay, expense and several actions, the plaintiffs and defendants entered into a written agreement waiving the misjoinder, etc. It was held that this could be done, and that the agreement was binding between the parties. That decision proceeded upon the theory that the effect of the agreement was a waiver of the petition, and placed the plaintiffs before the court, and for the purposes of the suit, as co-tenants.

In this case, however, there never had been any common interest among the plaintiffs; each was seeking to recover a separate and distinct tract of land, all joining in the same petition.

We are of opinion that the court erred in overruling appellants’ demurrers.

On the trial of the case in the court below, the appellants asked the court to charge the jury, in effect, that if appellees had settled on the land in controversy as preemption, and permitted more than one year to elapse without complying with the law in having the same surveyed and the field-notes returned to the general land office, and that during that time appellants'located a certificate upon the land and had it surveyed and the field-notes returned to the general land office, and had secured, a patent therefor, that then appellants would have the superior right to the land and ought to recover. And also that the patent, prima facie, constituted title, and that the burden was upon the appellees to establish a better title before they could recover. These charges were refused by the court and the refusal assigned as error.

In our opinion the charges ought to have been given.

The other errors complained of need not be considered as they are such as will not likely occur upon another trial.

Bbveesed and remanded.

       55 Tex., 304.


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    J. C. Rushing v. F. W. Chandler et al.
    (No. 56.)
    Trespass to try title — Possession by tenant and suit against same.— As possession by tenant is effective in securing the bar, suit against the tenant will suspend the,running- of the statute.
    Occupancy — Temporary absence of tenant does not stop running of statute.— It is a well-recognized doctrine that the fact of the premises being left without an occupant for a short time, between the removal of one tenant and the entry of his successor, where there is no intention of abandoning the possession, does not stop the running of the statute.
    Appeal from Ellis county. Opinion by Watts, J.
    Statement.— The appellees, F. W. Chandler and B. B. Townsend, as executors, and Angelina Townsend as executrix, of the last will and testament of Nathaniel Townsend, deceased, brought this suit of trespass to try title against appellant, J. C. Bushing, December 9, 1868, to recover the three hundred and seventy-six acres of land described in the pleadings, and at the same time applied for and obtained a writ of injunction, which was afterwards dissolved and need not further be noticed. The appellant answered February 26, 1869, claiming the land and setting up the three, five and ten years’ limitation. Appellees filed an amended petition May 30, 1870, claiming that for a long time prior, and at the time of the institution of this suit, they were seized and possessed of all of the said land except one hundred and sixty acres, which appellant claimed as a homestead; that appellant, after the institution of "the suit, had entered upon and ejected them, etc.
    May 3,1871, appellant filed an amended answer, pleading general denial, not guilty, the three, five and ten years’ limitation, setting out his title, and specifically his occupancy and the occupancy of those under whom he claims.
    May 7, 1872, appellants filed a replication to appellees’ answer, setting up limitation in substance as follows (except the field-notes, which are not copied), to wit: “Said defendant and the person under whom he claims have not had peaceable possession of the land claimed by him in his answer; for that they say that on, to xvit, the 29th day of August, 1851, one B. F. Wright instituted suit in the district court of Ellis county, Texas, against Lewis Godard, the husband of Jane Godard, and the head of the family, for the recovery of the possession and for title to one thousand acres of land, embracing the land claimed by the defendant, and that afterwards on, to wit, the 26th day of April, 1854, judgment was rendered in said case in favor of plaintiff against the administrator of said Lewis Godard, deceased, et aln for the recovery of said one thousand acres, described as follows: . . .
    “And it was ordered that a writ of possession issue, commanding the sheriff of Ellis county to deliver the possession of said land to said plaintiff; and your petitioners charge that afterwards on, to wit, the-day of --•, 1850, the estate of Lewis Godard, deceased, as well as Jane Godard, the wife of said Lewis Godard, was actually dispossessed of said land, which embraced almost the entire tract claimed now by defendant, and they were so dispossessed down to the date of purchase by defendantand your petitioners further state that the statutes of limitation, by the constitution of this state, were suspended from the 28th day of January, 1861, until the 30th day of March, 1870.”
    On the same day appellant filed special exceptions to the replication of appellees, and by amendment corrected the description of the three hundred and seventy-six acres of land claimed by him.
    The cause was called for trial the same day and the special exceptions of appellants to the appellees’ replication were sustained by the court and an order was entered to that effect; appellees excepted to the order, gave notice of appeal and carried the same to the supreme court, where jurisdiction was entertained, and September 15, 1873, the order or judgment was reversed and the cause remanded. 58 Tex., 591.
    Without any change in the pleadings the same was tried before a jury October 1, 1874, and the trial resulted in a verdict and judgment for the appellees and against appellant for the three hundred and seventy-six acres of land and costs of suit. Appellant filed a motion for a new trial, which was overruled, etc., and the case is before the court on appeal.
    The third assignment of error alone can be considered under the statute, and that is as follows:
    3. “ The court erred in overruling the defendant’s motion for new trial.”
    Appellees derive title as follows: Grant from Ooahuila and Texas to Nathaniel Townsend, as assignee of Bafael de Pena, dated October 2, 1834, for eleven leagues. It was admitted that Townsend was dead and that appellees were his executors.
    Appellant derived title as follows:
    1. Patent to Francis Slaughter, assignee of Edward Farris, dated February 10, 1846.
    2. Deed from Hill, executor of Slaughter, to Lucy Farris to the northeast half of the Slaughter league, dated September 2, 1848.
    3. Deed from Lucy Farris to Lewis Godard for same half of the league, dated October IT, 1848.
    4. Deed by Godard to John Baker for six hundred and seventy-two acres out of the half league, dated September 25, 1849, and filed for record December 23, 1849.
    5. Deed by Baker to Jane Godard, wife of Lewis Godard, for same six hundred and seventy-two acres, dated March 21, 1852, and recorded October 22,1852. This was a deed of gift.
    6. Deed from Jane Wilson (formerly Godard), joined by her then husband, J. R. Wilson, to J. G. Rushing, for three hundred and seventy-six acres, north part of the six hundred and seventy-two acres, dated February 9, 1865, recorded March 18, 1865.
   Opinion.—The third assignment raises the question as to the sufficiency of the evidence to sustain the verdict and judgment; and also asserts that the verdict and judgment are against the evidence. The other errors sought to be assigned are so general and indefinite that they must be considered as waived. P. D., art. 1591.

The evidence as disclosed by the record clearly and unmistakably shows that appellees have the older and superior title, and that the land claimed by appellant is embraced in their survey. Under the clear and exhaustive charge of the court, the real question presented to the jury was that of the ten years’ limitation. The evidence shows that Godard and his wife settled upon the land in the fall of 1848, claiming under the deed from Lucy Farris; that they continued their occupancy under said deed until September 25, 1849, when Godard conveyed the same to John Baker; that they still continued to occupy the land until March 21, 1852, when Baker conveyed, by deed of gift, to Mrs. Godard. About that date Godard started to California and died on the way. Mrs. Godard continued to occupy that portion of the land claimed by appellant, in person and by tenants, until about 1856 or 1857, at which time the sheriff of Ellis county dispossessed her of all the land claimed by appellant, except about one hundred and twenty acres, which embraced her dwelling-house and part of her field, by putting Wright in the possession of the same, by virtue of a writ of possession issued under the judgment in the said case of Wright v. Godard; and that she continued to occupy and cultivate said one hundred and twenty acres by tenants until the close of the war in 1865. The .evidence shovvs satisfactorily that this possession and occupancy of the land was adverse, notorious and continuous, and, so far as the one hundred and twenty acres is concerned, peaceable and uninterrupted; and that the occupancy and possession was under a claim of right; and adverse to the title of appellees. There is no evidence in the record that tends to meet and overcome the case made by appellant upon the issue of ten years’ limitation.

Mrs. Godard’s occupancy and possession by her tenants was as effective in constituting ■ the bar as if she had, in person, remained upon the land. Texas Land Co. v. Williams, 51 Tex., 62; Cochran v. Farris, 18 Tex., 856; Whitehead v. Foley, 28 Tex., 14.

It might be reasonably inferred that in removal of one tenant and the coming in of another short intervals of time may have occurred when the premises were not occupied. But if such intervals were even shown by the testimony, this would not suspend the statute, as it very fully appears that the possession was not abandoned in contemplation of law. The intent to hold this land and continue the occupancy appears from the record. In fact Mrs. God- ' ard was acting under the advice of counsel, and with a view of quieting and perfecting her title to the land by limitation. As said by Chief Justice Moore in Whitehead v. Foley, supra: .“ It is a well recognized doctrine in this court that the fact that the premises being left without an occupant for a short time between the removal of one tenant and the entry of his successor, where there is no intention of abandoning the possession, does not stop the running of the statute. A short and temporary vacation of the premises is the ordinary and frequently the unavoidable incident of the change of tenants,”' See, also, Elliott v. Mitchell, 47 Tex., 445.

The uncontradicted testimony of the Blocks and Billon is, that either Mrs. Godard or some one of her tenants was on the land claiming for her all the time until she conveyed to the appellant.

Her intention to hold and occupy the land adversely, as against and to the exclusion of all other claimants, is apparent upon all occasions.

We conclude that the verdict of the jury and judgment of the court, so far as concerns the one hundred and twenty acres not included in the Wright claim, is not supported by but is against the evidence.

The suit of Wright v. Godard was brought nearly twelve' months after Godard had conveyed the land to Baker, and it is urged that as neither Baker nor Mrs. Godard were parties to that suit, the appellant is in no way bound by the judgment. Baker was the owner of the land at the time Yvr right sued Godard, and pending that suit he conveyed the land as a gift to Mrs. Godard, which made it her separate property. Neither Baker nor Mrs. Godard were bound by that judgment, so far as the same determined the invalidity of the deed from Lucy Farris to Godard, etc. 'But as Godard was the tenant of Baker at the time the suit was instituted, the possession of the latter was interrupted to that portion of the land involved in this suit, and the running of the statute to that extent w.as suspended. For, certainly, as possession by tenant is effective in securing the bar, suit against the tenant will suspend the running of the statute.

In our opinion the suit against Godard suspended the statute to the extent of the land involved in the litigation. The court charged the jury that the deed from Lucy Farris to Godard, considered merely as her own act without- the consent or authority of her husband, would not confer title nor sustain the plea of three years’ limitation. The only evidence in the record, outside of the record of the suit of Wright v. Godard, and that was not admissible for that purpose, tending in the slightest degree to show that Lucy Farris was a married woman at the time of the conveyance to Godard, is found in the certificate of the officer taking her acknowledgment thereto. His statement that Lucy Farris, wife of “Edward,” appeared before him, is not prima facie evidence in this case that she was then a married woman. And it may be admitted that this part of the court’s charge was not authorized by the testimony, but in view of the fact that the suit of Wright against Godard interrupted the running of the statute in favor of Baker, it was an immaterial error working no injury to appellant.

If, as intimated in Thomas v. Chance, 11 Tex., 638, where this identical deed was under consideration, Edward Farris, the husband of Lucy, assented to and authorized the execution of the deed by her, then it might constitute such title as would support the three years’ limitation, as against the husband or his subsequent vendors; but xve are not called upon to" decide that point. But as to xvhether the husband did or not authorize and consent to the execution of the deed, or whether said Lucy was or not a married woman at the time of its execution, depends upon the evidence, and with reference thereto the record, in these particulars, is silent.

Revebsed and bemanded.