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    W. C. Daugherty v. L. B. Harris.
    (No. 4840.)
    Bill of exceptions.— Case reversed, because appellant was not allowed to file affidavits to prove that the persons who made oath to application for change of venue were not credible persons.
    Appeal from Wilson county. Opinion by Watts, J.
    Statement.— Suit was filed in Atascosa county by W. 0. Daugherty against John II. Slaughter upon a debt due by Slaughter to Daugherty. Service on Slaughter was made by publication, he being a non-resident of the state. At the time of filing the suit, attachment was issued against Slaughter and levied upon thirteen hundred head of cattle and one hundred and fifty head of horses as the property of Slaughter, the said property being in the possession of L. B. Harris, also of said county-of Atascosa.
    On March 24,1877, Harris filed a claim to said property, and also a claim bond under the statute. Issues were made up as to the right of the property under the direction of the court. The case was tried in Atascosa county; where there was a disagreement of the jury resulting in a mistrial. Harris then made application for change of venue supported by the affidavit of three persons. Daugherty contested the application upon the ground that the affiants were not credible persons. Upon the hearing of the application the court granted the same, and ordered that the same be sent to Wilson county. A bill of exceptions wras reserved to that ruling.
    The case was tried in June, 1881, by the district court of Wilson county, resulting in a verdict and judgment for Harris.
    The only error assigned that will be considered is that relating to the action of the court upon the hearing of the application for change of venue.
   Opinion.—The application for change of venue was" contested upon the ground that those making the supporting affidavits were not credible persons. In the order granting the change of venue, it is stated that the affidavits in support of the application, as well as the counter-affidavits, were read and considered. But in the bill of exceptions taken to the ruling of the court upon that application, and ' which was duly allowed and signed by the presiding judge, it appears that plaintiff in error proposed, and offered to prove, that the affiants who made the supporting affidavits were not credible persons, which was refused, as stated in the bill, “ for the reason that it was not in the discretion of the court, but a matter of absolute legal right to the party presenting such affidavits for change of venue, and the court refused to hear the evidence upon the subject.”

The office of a bill of exceptions is to truly and correctly show the action or ruling of the court upon any particular question or matter, so that the action or ruling may be reviewed by the supreme court. Our statute provides that “ when application for a change of venue is made in conformity to the requirements of the preceding articles, the same shall be granted unless it appear to the satisfaction of the judge, upon proof made before him, that the persons making the affidavits are not credible persons. R. S., art. 1272; Farley v. Deslonde, 58 Tex., 589. In the case at bar a legal right was denied to plaintiff in error, and we cannot say no injury resulted therefrom. Therefore, we conclude that the judgment ought to be reversed, and the case be remanded with direction that the same be retrans- • ferred to the district court of Atascosa county.


source: Caselaw Access Project

license: Public Domain

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    W. M. Campbell v. H. Dennis et al.
    (No. 277.)
    Attorney’s fee. —Attorney entitled to pay for work done.
    Appeal from Grayson county. Opinion by Watts, J.
    Statement.— Campbell sued appellees upon a note for $500, dated June 9, 1877, due on or before the 1st of December next thereafter, and payable to Campbell & Boswell or bearer. Appellees answered admitting the execution of the note, and that they had employed Campbell & Boswell, attorneys, to prosecute for them an appeal in suit wherein--was plaintiif and appellees were defendants, and in which a judgment had been rendered against them in the district court of Grayson county, and in which a motion for new trial had been overruled and notice of appeal given; that the agreement between the parties was that if Campbell & Boswell prosecuted the appeal then appellees were to pay them the $500 (for which note was given), but if the appeal was not prosecuted then the appellees were to pay so much as Campbell & Boswell’s services were reasonably worth; that on the day of the date of the note they compromised the case, and no services were rendered and no appeal prosecuted by Campbell & Boswell, who had advised a compromise, and therefore appellees owed them nothing; also, that if the note evidenced any other than the agreement asserted above, then it was procured by the fraud of Campbell & Boswell, etc.
    Also that Campbell had abandoned the prosecution of the appeal, as shown by his letter to appellee McDonald, dated March 13, 1878, and refused to prosecute it further. That appellees G. W. and W. W. Aldridge and Harrison Dennis say that on the day the note ivas executed they compromised the case with the consent of Campbell & Boswell and released them from further prosecuting the appeal. Appellant replied denying these averments, etc. Case tried September 27, 1879, and a verdict returned and judgment rendered for appellees. The errors assigned are as to the admission of evidence and in the charge of the court.
   Opinion.— There is no basis in the pleadings for the admission of the evidence shown by appellant’s bill of exceptions. The averments in the answer are that appellees were to pay Campbell & Boswell the sum of $500 for pros-©eating the appeal, and if the appeal was not prosecuted then so much as their services were reasonably worth. From the evidence in the record it appears that prior to the date of the letter appellant had perfected the appeal in cause Ho. 3,185 by tiling an appeal bond and assignment of errors, and had procured the transcript to be made and had also made his brief. Then, considering the letter with reference to these facts, its legal effect is not that given by the court in its charge to the jury.

Appellants had perfected the appeal and placed it in an attitude to he prosecuted. The note was over-due, and they had not paid any part of it.

Then, it seems to us, that the effect of the letter is a demand upon appellees to comply with their part of the agreement, accompanied with the proposition that, if they desired to abandon the appeal, then they were to pay .him. for the reasonable value of the services rendered, which he fixed or estimated at §150,

We are of the opinion that the court erred in the charge to the jury as to the legal effect of the letter.

For errors indicated, judgment reversed and cause remanded.

Reversed and remanded.


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    Blevins et al. v. Cameron & Mayfield.
    (No. 3047.)
    Lien, mechanic’s — When the wife’s separate property and TIIE HOMESTEAD SUBJECT TO pleading.— In order to subject the wife’s separate property to mechanic’s lien for improvements, contracted for by the husband, it must be alleged and proven that the husband was acting as her authorized agent at the time; and it will not be presumed that he was such agent because he was her husband. The averment of her knowledge, of such purchase and the purpose for which it was made does not supply, by implication, that essential ingredient of her liability. In order to subject the homestead to mechanic’s lien, it is necessary that the wife’s consent to thus incumber the homestead he evidenced in the -mode prescribed by law for the alienation of her separate property.

      Appeal from Grayson county. Opinion by Walkek, J.
    Statement.-^-This suit was brought in June, 1874, by the appellees against the appellants, as husband and wife, on an account for lumber sold and delivered by them to the husband, amounting to $294.42, for the purpose of constructing a dwelling-house and outhouses on two certain lots in the town of Sherman, the title to which was in Mrs. Blevins, the wife. The plaintiffs alleged that it was not known to them at the time they furnished the lumber that she owned the lots; that her title to them was not then recorded, and that the lumber was used in the construction of said houses with the knowledge of the wife, and that the lots were rendered more valuable by the improvements, etc. Plaintiffs allege that they fixed their lien upon said property within the time and in the mode prescribed by law, setting forth the facts. Plaintiffs prayed to subject the houses and lots to their lien, and for general relief. Defendants filed a general demurrer, w'hich does not. appear to have been relied upon, as no action was had upon it by the court, nor to have called it to the court’s attention.
    The plaintiffs’ account was attached as an exhibit to the petition and its correctness sworn to. They also introduced in evidence their sworn and duly recorded statement of the verbal contract between themselves and Blevin for the sale of the lumber, which had been recorded in the proper office in order to fix their statutory lien. This instrument recited that the lumber was purchased and used by Blevins as stated in plaintiffs’ petition. The plaintiffs also proved that the house and lots described were the homestead of defendants and were só at the time the lumber was furnished. Verdict for the plaintiffs for the amount with interest, and finding the property subject to plaintiffs’ lien. Judgment accordingly rendered decreeing sale to be made. Defendants appealed and assigned as error the refusal of the court to give instructions asked, for by defendants and admission of certain evidence over their objections.
   Opinion — The plaintiffs’ petition admitted that the wife had the title to the lots at the time of the transaction with her husband in relation to the sale of the lumber, nor does the petition attempt to qualify the implication from that admission that she was the legal and equitable owner of the property. The averments in the pleadings of a party will be taken most strongly against him.

Indeed, so far from seeking to charge the property to be community property^ notwithstanding the fact that the title was held as they allege, the plaintiffs rest their right to subject the property to their supposed lien upon the wife’s knowledge and silence or acquiescence in the acts of her husband in contracting for and making improvements upon her property, and not upon the allegation that it was, in fact, property belonging to the community. The question is whether the facts which are alleged show a cause of action against the wife to subject her property to sale for the payment of the debt contracted by the husband for lumber to improve it. See Warren v. Smith, 44 Tex., 245; Magee v. White, 23 Tex., 180. See, also, third section of the act referred to, article 46-13. There was no averment in the ' petition of agency, or that it was her contract. Chief Justice Hemphill, says: “A fundamental principle in relation to suits to bind the separate estate of the wife is this: that such estate cannot be held unless in cases clearly, strictly and fully authorized by the statutes or the equitable principles of the laws of the land.” McFadden v. Crumpler, 20 Tex., 376. This rule was re-affirmed in Stansberry v. Nichols, 30 Tex., 149; Brown v. Ector, 19 Tex., 346; Haynes v. Stovall, 23 Tex., 625.

To affect the wife’s homestead rights it would be necessary that her consent be evidenced in the mode prescribed by law for the alienation of her separate property. Gaylord v. Loughridge, 50 Tex., 576; Campbell v. Fields, 35 Tex., 754.

In the charge of the court below the jury are instructed that if the plaintiffs were otherwise entitled to recover for their debt, they would also be entitled to have a lien upon the property described in the petition. The defendants excepted to the charge in these respects, by asking instructions which presented counter propositions of law, which were refused. ¡Neither the charge nor the instructions need be more specifically stated. The jury were, of course, misled in following the charge, to a wrong result, to the injury of appellants.

¡Reversed and remanded.


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    Bluford Bybee v. E. Wadlington.
    (No. 3701.)
    Suit on promissory note.—An abandonment of a .pre-emption right is a sufficient consideration to support a promise to pay a note given to induce the abandonment.
    Failure of consideration.— The production of a note and its acknowledgment on its face that it was given for value received establishes, prima facie, that it is founded on sufficient consideration.
    Writ of error from Williamson county. Opinion by Walker, P. J.
    Statement.— Plaintiff in error sued defendant in error on the 1st of December, 1876; on a promissory note executed by defendant to plaintiff for part purchase money for tract of land described in petition. In an amended petition it ■was alleged that Joseph Bond settled on the land in June, 1870; had it surveyed and field-notes returned to general land office; that he occupied it until August 23, 1873, and sold it to Wm. J. Bybee, wdio, in September, 1873, sold to defendant in error, and who executed his note for the purchase money to John Bybee. He transferred it to plaintiff in error, who had defendant renew it, substituting plaintiff’s name as payee and expressly retaining the vendor’s lien. That at the time defendant purchased, the land had not been patented, and that defendant knew the condition of the title. When the suit was filed the land was patented to defendant upon a survey made for him.
    The defendant presented three issues: 1st, A general denial, 2d. That plaintiff was not the owner of the note, but held it in trust. 3d, The consideration had failed for the reason that plaintiff in error had no title and could make none; that the land was public domain and had been located by defendant and patented to him. Tried before court and judgment rendered for defendant
   Opiistioií.— Under the issue in this case, a want of consideration for the note sued on, the burden of establishing it devolved upon the defendant. The production of the note established prima facie that it was founded on a sufficient consideration, and it acknowledged that it was given for value received on its face. That the consideration was for a tract of land which the said W, J. Bybee had sold the defendant is admitted. If any valuable interest in said land was sold to the defendant under this contract, there would not be a total want of consideration for the defendant’s promise. The vendor was in possession of the land, claiming to own it, and this possession he yielded to the defendant under circumstances whereby he lost an unquestionable right as an actual settler- to hold the land as against every other person, and to obtain a patent for it. This was at least a loss to him. The defendant acquired thereby for his advantage that precise benefit in his favor by reason of such surrender. That surely would have been a valuable consideration to support a promise to pay something to the vendor if his mere right to the possession alone of the land had been the subject of the contract. In Palmer v. Chandler, 41 Tex., 335, it is said that such an abandonment of a pre-emption right would be a sufficient consideration, perhaps, to induce the abandonment by one who wished to succeed to his rights. A pre-emptor who has so far complied with the terms and conditions prescribed by the law as to entitle him to demand and receive a patent has a vested right to the land, and might, therefore, convey it. If he had such a title, therefore, as would enable his assignee to hold by possession, and which would entitle him as such assignee to obtain a patent therefor from the government, and the defendant, with a knowledge of the condition in which the title stood, and knowing that it would be necessary, if he desired to perfect his title, that he should proceed to comply with formal matters necessary to entitle him to a patent, if he thus purchased and went into possession of the land, and saw proper to obtain a patent through his own independent pre-emption claim, most assuredly he cannot be heard to say that there has been either a want of, or failure in, the consideration.

He bought under laws which fully recognized his right to succeed as assignee to the rights to which Bond or By bee would have been entitled if they had continued on the land and perfected the title to a patent; he bought with reference to the then existing state of the title; and he knew that the law imposed upon him the duty of making the required proof of occupancy by his own affidavit corroborated by the testimony of two other persons. He knew that to be required when he received from By bee the possession of the land. It is to be fairly implied that he agreed on his part to do what was necessary to obtain a patent; and if he saw proper to take an opposite course by discarding the valid title he had acquired,, he will not be listened to by a court of equity when he asks to be relieved from paying the money which he had promised to pay to enable him to get possession of the land. See Statutes 1866, P. D., art. 7058.

His land had been duly surveyed in 1869, the field-notes were properly returned to the county surveyor and recorded, and were filed in the general land office, marked filed April 4,1873. Bond had occupied the land more than three years when he sold it to Bybee.■ Under these facts a case is made, prima facie, that the defendant acquired a good title with the possession of the land. The testimony is, too, that the requisite proof was furnished to Wadlingtom to enable him. to procure the patent by the necessary affidavits to be filed with the commissioner of the land office.

The defense relied upon has signally failed. If for any assignable cause Wadlington could not have procured a patent for want of merits in Bond’s pre-emption claim, he has not shown in what the objection consists; and it must . be held, under the circumstances and nature of the contract, and the subject-matter of it, that the title was apparently a good one, and the burden lies on the defendant to establish the contrary.

But it is urged by counsel that Bond was a single man, and admitting he would only be entitled to eighty acres, the failure of consideration would only be partial, and he would be entitled to eighty aeres and his improvements, and Bybee would be entitled to a lien upon eighty acres as against defendant. But the interpretation given by the supreme court to the term “ head of a family,” in its relation to questions involving the homestead law, justify us in saying it is by no means clear that a married son managing a household and assuming the care of its affairs, when composed of an aged parent and dependent infant nephews, is not, in the sense of the law, the head of a family. See Whitehead v. Nickelson, 48 Tex., 517; Howard v. Marshall, 48 Tex., 475; Roco v. Green, 50 Tex., 483; Wolf v. Buckley, 52 Tex., 641. If, however, it had been true that Joseph Bond had not legally been entitled to more than eighty acres on account of his not being the head of a family, and that on that account a patent would not have been issued to him as the head of a family, it does not follow as a consequence that a title to the land was not, nevertheless, acquired, and would have been patented in due season if it had been applied for.- The family may have had the mother of Joseph Bond for its head, and to her it would, perhaps, have been proper to grant the patent. Allen v. Harper, 19 Tex., 509. Whether to the one or the other, it did not affect the interest of defendant, and he will not be heard to complain. Wadlington could not have acquired title to the land except by and through the assignment made to him by By bee.

We conclude there is error in the judgment, and reverse and remand the case for further proceedings.


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    M. Y. Brackett, Adm’r of James H. Tuttle, v. Ira Hinsdale et al.
    (No. 3042.)
    Parties.— Where one party entera into an agreement with another, the performance of which entitles him to an interest in certain property, and said party was proceeding to carry out the agreement and the property was seized under writ of attachment, in a suit for wrongful seizure he is not only a proper but a necessary party to the suit, having secured a, substantial and material interest in the subject-matter thereof.
    Charge of court.— The charge of the court should be taken and construed as a whole, and when thus construed, if it presents the law applicable to the case made by the pleading and evi- . dence, as a general rule, it is sufficient.
    Evidence.— When the evidence is such that several deductions might be drawn by the jury, it is the duty of the court to so instruct the jury as to submit to them the several phases of the case made by the evidence, under the pleadings, and to apply the law to the several deductions that might be drawn therefrom.
    Appeal from Grayson county. Opinion by Watts, J.
    Statement.—Appellees, plaintiffs in the court below, brought this action against James H. Tuttle, sheriff of Grayson county, and the sureties on his official bond.; appellees alleging that the sheriff, by his deputy, had attached and sold certain blooded cattle and hogs, the property of the appellees, of the value of $2,400, and that E. M. Lyon, against whose property the attachment was sued out, and to pay whose debt the seizure was made, was not the owner of such stock, nor at any time had any interest whatever therein, and prayed for judgment for their damage, ¿etc. Pending suit Tuttle died, and appellant, as his administrator, was made a party defendant.
    Appellants answered by a general denial and specially that E. II. Lyon was the owner of the property attached, and further that appellees and E. U. Lyon had confederated together to cheat and defraud E. Sacre, one of the defendants, who, it was averred, had a valid and subsisting judgment against E. M. Lyon. The administrator of Tuttle asked for a judgment over against his co-defendants, who had given him an indemnity bond in case judgment went against him.
    The case was tried the 7th day of October, 1875, and the trial resulted in a verdict and judgment for appellees and against appellant for §1,744.40; and also in favor of Tuttle’s administrator over against E. Sacre and his sureties on the indemnifying bond for the said sum of §1,744.40. The appellant made a motion for a new trial which was overruled, and he brings the case before the court on appeal and assigns errors. Ho appeal bond was given, the judgment being against appellant as administrator.
    The errors assigned and insisted on by counsel in their brief will be noticed in the opinion so far as is necessary in making a proper disposition of the case.
   Opinion.— This is a suit against a sheriff and the sureties on his official bond for the wrongful seizure and sale of certain cattle and hogs, claimed in the petition to be the property of appellees.

The appellant insists that the evidence adduced upon the trial shows that appellee, C. W. Lyon, had no interest in the property, and was, therefore, not a proper party plaintiff.

The evidence clearly shows that appellee, Hinsdale, furnished the money, or at least the greater portion of the money, with which the property was purchased; that appellee, Lyon, purchased, took charge of, and brought the same to Texas, under an agreement or understanding between them, to the effect that Lyon would manage, control and sell the same, and that the profit arising from the speculation was to be equally divided between them.

Lyon, in pursuance of this agreement, had devoted his time and attention to hunting up and purchasing said property, and had brought the same from Missouri to Texas, and was proceeding to carry out the agreement.when the property was seized and taken from his possession by the sheriff.

In our opinion the appellee, Lyon, had such an interest in the property as not only made him a proper but a necessary party to the suit. He had devoted his time and attention to the management, control and removal of the property, which certainly vested in him a right in the same. Hinsdale could not have assumed control and possession of the property so as to have defeated the right or destroyed the interest of Lyon therein without his consent. For he had secured a substantial right in the property under the contract.

It is a familiar rule in the jurisprudence of this state that all persons having a material interest in the subject-matter of the suit ought to be made parties, either as plaintiff or defendant. See Whiteman v. Willis, 51 Tex., 425; Garrett v. Gaines, 6 Tex., 446; Allison v. Shilling, 27 Tex., 453.

The objections to the charge of the court, as presented by the assignment of errors, and urged in the brief of counsel, go to isolated paragraphs of the charge.

The charge of the court should be taken and construed as a whole, and, when thus construed, if it presents the law applicable to the case made by the pleading and evidence, as a general rule, it is sufficient. For all practical purposes it would be impossible to give all the qualifications and limitations in each paragraph of the charge, when the same qualifications and limitations apply to many of the paragraphs of the same. However, a single section of the charge might be so framed that it would mislead the jury, notwithstanding the charge, when taken as a whole, might be considered, to some extent, as correcting or modifying the error in the particular section. But after a careful examination of the charge, we find nothing in any of the • sections objected to and assigned as error, when read and considered in the light of the whole, that, in our opinion, would mislead the jury.

The defendants, in their answer, in general terms, charged a combination between appellees and E. M. Lyon to defraud the creditors of the latter. But in what the combination existed, or the particulars constituting the same, is-not averred. The evidence relied on by the defendants to defeat a recovery by appellees was, in the main, circumstantial, and from which several deductions might be drawn by the jury. Under such circumstances it was the duty of the court to so instruct the jury as to submit to them the several phases of the case made by the evidence under the pleadings, and to apply the law to the several deductions that might be drawn therefrom. A careful examination of the charge, and especially when taken in connection with the explanations given by the court in answer to interrogatories by the jury, shows that this was done.

The objection to the charge of the court, that therein the court assumed certain facts to have been established, is not sustained by the record.

The court did not err in excluding from the consideration of the jury the admissions and declarations of E. II. Lyon. He was not a party to the suit, nor, so'far as is disclosed by the record, a party at interest.

The seventh paragraph of the charge is as follows: “ Fraud will never be presumed, but must be proved; it may be proved by circumstances; but where circumstances are relied upon to establish it, they must be such as show clearly, to the satisfaction of the jury, the existence of the fraud; the circumstances should be so strong and pregnant as to admit of no other reasonable conclusion.” This was accepted by appellant in his brief, together with paragraphs 5 and 6, as correctly stating the law. This portion of the charge is not assigned as error; in fact, there is no specific error pointed out in any part of the charge by the assignment of errors. Article 1591, P. D., provides that: “ The appellant or plaintiff in error shall, in all cases, file with the clerk of the court below an assignment of errors, distinctly specifying the grounds on which he relies, before he takes the transcript of the record from the clerk’s office, and a copy of such assignment of errors shall be attached to, and form part of, the record; and all errors not so distinctly specified shall be considered by the supreme court as waived.” This article was in force when this appeal was taken and perfected, and if that portion of the charge is erroneous, it is not a fundamental error going to the foundation of the action, and not being assigned, is, therefore, waived.

We mention this portion of the charge for the purpose only of dissenting from counsel and the court below as to the correctness of the same. In the case of Sparks v. Dawson, 47 Tex., 144 and 146, Chief Justice Roberts, in delivering the opinion of the court, in his uniformly clear and perspicuous style, analyzes, reviews and criticises a charge very nearly in the identical language as that quoted above. There the charge was assigned as error in accordance with the statute, and it was held to be erroneous. In cases involving the question of fraud, no reason is perceived why the jury should not be governed by the same rule in weighing and applying the testimony as in other civil causes. The burden of proof is upon the party who asserts the fraud; and whether it is sought to be established by direct •or circumstantial evidence, if the minds of the jury are satisfied, from the evidence, of the existence of the fraud, they should so find. And any charge of the court directly or indirectly indicating the necessity of a greater degree of certainty in these than in other civil causes would be error, and if specifically assigned would generally require a reversal of the judgment.

The errors so assigned as to require consideration are not such as would authorize a reversal of the judgment, and the same is affirmed.


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    Lizzie Campbell v. H. & T. C. R. R. Co.
    (No. 112.)
    Exemplary damages,— The law giving surviving relatives actions for actual and exemplary damages is statutory.
    Same — Averments.— In order to recover for exemplary damages the plaintiff must set up, by proper averments, facts which, if true, entitle him to such damages.
    Same — Charge of court.— And where the plaintiff’s petition was brought for actual damages only, and not for exemplary damages, the court should confine its charge to the former, and abstain from charging the law applicable to the latter. It is error to charge upon an issue not made by the pleadings.
    Appeal from Ellis county. Opinion by Walker. P. J.
    Statement.— The appellant brought this suit against the appellee for §10,000 as damages for causing the death of her husband in running over him on its track. The petition alleged that at that time her husband was thus killed through “the negligence” of the officers of the railroad company, and her petition says: “ Wherefore, petitioner says she is damaged in her feelings, happiness and business in the sum of §10,000.”
    The petition made no other allegations as to the circumstances and facts than the foregoing as a basis for exemplary damages. Plea, general issue, jury. The judge charged the jury on all the material questions of law involved under the pleading and evidence essential to ascertain the grounds of the defendant’s liability for injuries such as the plaintiff complains of, which portion of the charge is not complained, of. The court proceeded then in its charge, and stated to the jury as follows: “ If the evidence satisfies you that- the plaintiff was the wife of the deceased at the time of his death, and that his death was the result of the negligence of the servants of the defendant in running its engine and cars, then you will find for the plaintiff such damages as the proof shows she has sustained by reason of the loss of her husband. If no actual damages have been proven in this case, the plaintiff cannot recover anything under her pleadings.”
    The court instructed the jury also" as to the burden of proof in cases where the injury occurs elsewhere than at the crossings of railroads; and concluded by instructing them, if they found for plaintiff, to say so in their verdict, and to determine the amount, and .if they found for defendant to say so in their finding.
    The injury occurred at a point on the road between where there were crossings, and in such case the court charged that the burden was on the plaintiff to establish a want of care on the part of the defendant. Verdict and judgment for the defendant. Plaintiff filed a motion for a new trial, which was overruled; the grounds were:
    1. Because the charge of the court was contrary to the law and facts in the case.
    2. Because the court failed to charge the law as to exemplary damages allowed the plaintiff under the constitution and laws of Texas.
    3. Because the court failed to charge the law as applicable to the case on negligence.
    The plaintiff assigns as error:
    1. The court erred in the charge to the jury as pointed out in the motion for a new trial.
    2. In refusing to grant a new trial.
   Opinion. — The assignment of errors requires of us the consideration of but one single legal proposition, and that one is whether the court erred in a failing to charge the law as to exemplary damages.” The appellant’s first ground of error refers us to the motion for new trial to indicate the subject of her complaint against the charge of the court, and the second ground ofthat motion presents the question above suggested. The two other grounds for new trial, although they relate to supposed errors in the charge, do not, in even a general way, point them out; and the assignment of errors, so far as it relates to the first and third grounds of that motion, will not be noticed. Elliot v. Mitchell, 28 Tex., 105; 46 Tex., 331; 14 Tex., 382; 46 Tex., 31; id., 585.

The court did not err in failing to charge the law as to the application of the rules of law of exemplary damages. The charge of the court must correspond with both the allegata and the probata. Smith v. Montes, 11 Tex., 24; Hughes v. Lane, 25 Tex., 356.

There was not in the evidence the least intimation of any act of commission or omission .on the part of the agents of the defendant whereupon to charge the death of Campbell as having resulted from either its wilful commission, or that it was induced by a wilful omission of duty on their part, or from gross negligence or malice. The existence of some one of those, or of elements kindred to them, must have existed in order to warrant the recovery of exemplary damages. Indeed, the plaintiff’s petition made no allegations charging that the homicide was committed by the “wilful act or omission” of the defendant’s officers or agents. In actions of this character, at the time of the accrual of plaintiff’s right of action, if any existed, the constitution of 1869, section 30, General Provisions, provided that: “Every person, corporation or company that may commit a homicide through wilful act or omission shall be responsible in exemplary damages to the surviving husband, widow, . . . without regard to any criminal prooeeding that may or may nob be had in relation to the homicide.” There existed at the same time in force the previous act of the legislature. P. D., arts. 15, 18.

The'act referred to provided for actions in cases of homi- , cide, giving compensatory damages only. The constitutional provision above quoted was cumulative of the remedy afforded by the act of the legislature (see Railroad Co. v. Le Gierse, 51 Tex., 203), and it introduced into its terms the distinct and essential ingredients which shall entitle the injured party to.the benefit of its provisions; the homicide must have been effected by a “ wilful act or omission.”

The common law gave no action whatever for damages in such case to the surviving relatives; and a party setting up a cause of action under either or (in the same suit) both kinds of damages must do so by alleging such facts as will entitle him to the one or the other respectively, or to both, if he sues to recover both. Neither the one kind nor the other being given by the common law, the plaintiff acquires his right of action for the damages he claims, by the terms of that law which sanctions its recovery. In order to recover in actions of this character, the plaintiff must frame his petition for exemplary damages with reference' to the distinguishing elements which characterize it; he must set up by proper averments facts which, if true, entitle him to such damages. Railroad Co. v. Le Gierse, 51 Tex., 203; and see Wallace v. Finberg, 46 Tex., 35.

The plaintiff’s action, tested by the foregoing rule, was brought for the recovery of actual damages only, and not for exemplary damages. The court, therefore, properly confined its charge to actual damages, and correctly abstained from charging the law applicable to exemplary damages. The charge must conform to the pleadings. Watts v. Johnson, 4 Tex., 311; Smith v. Sherwood, 2 Tex., 460.

It must agree, too, with the evidence in the case. Austin v. Talk, 20 Tex., 164; Andrews v. Southwick, 30 Tex., 111; Corzine v. Morrison, 37 Tex., 511. It is error to charge upon an issue not made by the pleadings. Markham v. Carutchers, 47 Tex., 22.

There is nothing in the record to suggest the existence of any such error committed on the trial as to require a further examination of it.

The verdict of the jury was warranted by the evidence, and no error of law going to the right and substantial justice of the case is apparent to us.

Affirmed.


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    C. H. Marshall v. J. T. Crawford.
    (No. 700.)
    Trespass to try title — Conflicting surveys — Boundaries, Differences in distances and excess of sixty or seventy acres in a survey of six hundred and forty acres are too slight to raise any presumption against boundaries.
    Calls, that can be definitely fixed on the ground by artificial and well-known marks, must control. The line of a tract of land is the subject of a call as well as anything else.
    Improvements in good faith. — Pleadings to recover must allege possession.
    Appeal from Bell county. Opinion by Quinan, J,
    Statement.-— The controversy in this case is whether the land sued for is within the boundaries of the Cervantes grant. The patent issued and the description of boundaries in it is as follows:
    "Beginning at the B. E. corner of Jos. Williams’ 640 acre survey in O. Berdle’s S. line; thence S. 71 E. 697 varas to the S. E. corner of the Holfcsman survey in the W. line of B. Strunk’s 640 acre survey; thence S. 19 deg. W. to Strunk’s S. W. corner; thence S. 71 deg. E. 2,265 varas to the S. E. corner of E. Berry, in the W. line of F. H. Miller; thence S. 19 deg. W. 1,483 varas to a corner in the B. line of B„ Strunk’s 330 acre survey; thence B. 71 deg. W. 1,583 varas to Sarah Christopher's E„ line; thence B. 19 deg. E, 764 varas to Christopher’s X. E. corner; thence X. 71 deg. W. 1,039 varas to Christopher’s X. W. corner; thence S. 19 deg. W. 514 varas to a stake in Christopher’s W. line; thence X. 71 deg. W. 340 varas to a stake in Jos. Williams’ line; thence X. 19 deg. E. wfith Williams’ E. line 1,375 varas to the place of beginning.”
    The land claimed by Marshall is bounded on the south by the north line of the B. Strunk three hundred and twenty acre survey, and is included in the Cervantes survey if that north line -is the true boundary of it.
    The proof shows that these surveys were evidently made in one block altogether.
    The lines of the surveys, called for in the Cervantes patent as adjoining it, can be found without difficulty.
   Opinion.— The proof shows that the location of the north line of the Strunk three hundred and twenty acre survey can be fixed with absolute accuracy by running the lines of that survey according to its field-notes and the marked corners on the ground. Its northeast corner is at a willow which is still standing. Its southwest corner is well known,' and its bearing trees; two of them yet stand, and the stump of the third remains. By running a6 line from this southwest corner north, nineteen degrees east, the northeast corner of the Gilmore survey is passed at six hundred and seventy-five varas; this corner of the Gilmore survey is well known, and fixed by its bearing trees, a cottonwood marked XH, and a willow. Continuing this line to a point from which a line drawn according to the calls of the patent from the northeast corner of the Strunk survey will intersect it determines with certainty the northwest corner of the survey, and this line is the true south boundary of the Cervantes survey. The distance from this Gilmore corner on the Strunk west line to the corner is but one hundred and seventy-four varas.

If we disregard the calls of the Cervantes patent for the lines and corners of other surveys and assume that other surveyors who have since surveyed the land have measured it correctly, then it is found that by measurement the lines in the field-notes would never reach the line of the Strunk three hundred and twenty acre survey, nor extend to the Christopher east line, nor to the northwest corner of that survey, but a vacancy would be left of very irregular shape, and apparently without reason for it, between the Strunk, Christopher and Cervantes surveys. It is only by attributing to these measurements controlling weight in the determination of boundary that any land would be left to satisfy the pre-emption file and location under which Marshall claims.

The proof tends to show that, in fact, the surveyor did not run all the lines of this Cervantes survey separately for it upon the ground, but that he platted his field-notes from other surveys made. He doubtless determined the distances by calculation, and manifestly designed to close the surveys upon each other.

The difference in distances and the excess of some sixty seventy acres, if so much, between the calls of the patent for distance and quantity, and the calls for lines and corners in the patent, and the quantity thereby included in this six hundred and forty acre survey, are too slight to raise any presumption against the intention that the boundaries of these adjoining surveys should be the boundaries of the Cervantes survey.

But we think the calls of the patent for the Strunk north line and the Cervantes lines, as these can be definitely fixed upon the ground by artificial and well known marks, must control the determination of these boundaries. The line of a tract of land may as well be the subject of a call as any other object, and in this case, as we have seen, where that line is can be very readily found upon the ground by the calls for its corners, which are well known and established. Bolton v. Lann, 16 Tex., 96; Johns v. Shultz, 47 Tex., 579; Booth v. Strippleman, 26 Tex., 442; Buford v. Gray, 51 Tex., 335.

The judgment of the court upon the facts ivas, in our opinion, fully supported by the testimony.

It is assigned for error that the court refused to permit the defendants to introduce proof of improvements made by them in good faith, but the right to recover for improvements was dependent upon whether the defendant had possession of the premises at least one year next before the commencement of the suit. Here the defendant had not alleged such possession, and he had, therefore, set out no right to recover for his improvements. His pleadings were not merely defective. There was an utter absence of any foundation laid to warrant a judgment in his favor. It was not error, therefore, to reject the testimony offered. E. S., art. 4813.

Affiemed.


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    L. L. Crutchfield v. E. S. Stanfield.
    (No. 2884.)
    Contract.— A party rescinding a contract on the ground of fraud must do so at once on discovering the fraud; he is not bound to rescind; and any delay, especially if it be injurious to the other party, would be regarded as a waiver of this right.
    Fraud.— The mere lapse of time, if it be considerable, goes far to establish a waiver of this right, and if it be connected with an obvious ability, on the part of the defrauded person, to discover the fraud at a much earlier period, by the exercise of ordinary care and intelligence, it would be almost conclusive.
    Appeal from Jack county. Opinion by Walker, F. J.
    Statement.— This suit was brought by the appellee on a note of $600 against the appellants. The defendants allege that the note was given for the purchase of a mare bought by Crutchfield and Howard from the plaintiff for a race mare, on March 7, 1874; that the plaintiff represented the mare uninjured for racing purposes, and that they bought her relying upon said representations. They allege that those representations were fraudulently and wilfully false in that the mare was, at that time, with foal, which fact rendered her useless for the purpose of racing, and that she brought forth a colt in the month of August succeeding. This suit was brought February, 1875. The defendants' answer was filed February 2G, 1875, setting forth the foregoing facts, and alleging in addition thereto the payment on the-day of June, 1874, by defendants to plaintiff of $100 on the note sued on, and before the defendants knew that the mare ivas in foal. Defendants also alleged the keeping of the mare from the date of purchase was worth. $30 per month.
    The answer concludes by tendering said mare to the plaintiff, praying, in effect, for cancellation of the contract, and for a judgment over against the plaintiff for the $100 which had been paid to plaintiff, and for $30 per month from the date of the purchase to the time of trial as damages for keeping and taking care of the mare. To this answer the plaintiff excepted, and the court sustained the exceptions. A jury was waived, cause submitted to the court, and judgment rendered on the note for the amount due, less the amount paid. The defendants appeal, and assign as error the ruling of the court sustaining plaintiff’s exceptions to the plea or cross-bill of defendants.
   Opinion.— The remedy sought, or the relief prayed for, by the defendants’ plea, characterizes the answer which he makes, and it indicates to the court the rules by which its sufficiency shall be tested. Under the facts which the defendants allege, they had the election to plead them defensively, as constituting-a total or a partial failure of the consideration for which the note was given, and for damages also m reconvention, if such they claimed, for the alleged fraud practiced upon them by the plaintiff. Such a' defense as that would be does not seek to avoid the sale, and would be a defense analogous in its nature to a suit for damages for deceit, as it would be termed at common law. . But such was not the nature of the defendants’ plea; they did not allege that the .mare was valueless, nor that she was intrinsically of less value than the amount which they promised to pay for her; but they set up, in.effect, that, irrespective of her value for any other purpose than that of racing, they were nevertheless entitled to rescind the contract of sale for fraud; and they asked, in their plea, no discount on the note sued on on account of any other damage than that which they alleged they sustained by reason of .her uselessness as a racer, which constituted the sole inducement for buying the animal.

The facts alleged in the plea, therefore, were insufficient as the basis of a plea of failure or partial failure of consideration arising from any actual or supposed damage occasioned them by reason of mere diminution of value, between the price agreed to be paid and her actual cash value in the market, and would be, therefore, subject to plaintiff’s exceptions, viewed as a plea of that character. The defendants rested their defense upon the merits of a plea which relied upon their right, upon the facts stated in it, to rescind the contract. The defendants do not allege, in their plea, when it was that they first made the discovery of the alleged fraud; but they do affirmatively show it was or might 'certainly have been known to them as early as the- month 'of August, 1874, and probably at an earlier period, for the plea alleges that the mare had a colt in that month. The defendants do not allege that they ever-offered to rescind the contract after their discovery of the fraud imputed to the plaintiff.

The general rule of law applicable to the rescission of contracts for fraud is that the rescission must be claimed within a reasonable, time, promptly upon information had of its violation or fraudulent misuse or diversion, or the right will be lost by acquiescence. 5 Wait’s Actions & Defenses, 508; citing Memphis & Charleston R. R. Co. v. Neighbors, 51 Miss., 412; Barfield v. Price, 40 Cal., 353; Heald v. Wright, 75 Ill.,17. The defendants allege no fact in connection with the discovery of. the fraud to rebut the inference which otherwise arises that they acquiesced in the validity of the sale and waived their right to claim a rescission of it. The answer does not show that the mare ivas of no use or service for purposes other than racing, and it does not show that for six months or more after the discovery of the fraud they continued to receive the advantage and benefit of the use and possession of the property, and did not offer to surrender it to the plaintiff nor to show any excuse for failing to do so.

The statements made in the defendants’ plea show prima facia acquiescence on their part after the discovery of the alleged fraud in the contract of sale, and the case presented by them is within the rule which denies to them a right to rescind a contract, the consequences of which they do not seek to a\S. *7oid -until the other party to it, 'after so great a period of seeming acquiescence on their part, seeks its enforcement by demanding a compliance with its terms.

Affirmed.


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    S. E. Clements v. Irvin Eggleston.
    (No. 3809.)
    Trespass to try title.
    Patent.
    Practice.
    Presumption.—It is well settled that a patent carries with it a prima facie right to the land thereby granted by the state to the patentee, and to rebut such a presumption it devolves upon the adverse claimant to clearly establish a prior or superior equitable right.
    Appeal from Fannin county. Opinion by Walker, P. J.
    Statement.— Appellant brought an action of trespass to try title in the district court of Fannin county, against appellee, for three hundred and twenty aeres of land situated in said Fannin county, claiming said tract of land under and by virtue' of a certificate granted by the state of Texas to the heirs of Solomon Watson, deceased, for six hundred and forty acres of land. The appellee presented two issues; 1. A general denial. 2, A plea of not guilty. The matter was submitted to the court, who gave a judgment for defendant Appellant made a motion for a new trial, which was overruled and cause appealed to this court,- He assigns as error that the court below erred in rendering judgment for defendant and against plaintiff upon the law and the facts,
    W. S, McClure administered upon the estate of Solomon Watson, deceased, in Bed Biver county, and as such administrator was granted an unconditional certificate for six hundred and forty acres of land, three hundred and twenty •acres of which certificate was in the year 1844 located upon the tract of land in controversy. Said tract of land was afterwards sold under án order of the- probate court of Bed Biver county and purchased by one Simeon Clement and paid for, and said sale confirmed and duly executed. Afterwards said tract of land was sold by said Simeon Clement to the present plaintiff, S, E. Clement. In the year 1860 W. S. McClure withdrew the Solomon Watson six hundred and forty acre certificate from the land office at Austin and located the balance of said certificate in Cass county. Afterwards W. S. McClure, as the administrator of Solomon Watson, deceased, instituted suit in the district court of Lamar county against the state of Texas for an unconditional certificate to the heirs of Solomon Watson, deceased, and on the 25th day of July, 1872, the district court of Lamar county granted an unconditional certificate to the heirs of said Solomon Watson for six hundred and forty acres of land.
    Plaintiff thereupon filed a copy of said judgment and certificate and demanded of the commissioner of the land office a patent, which was refused. Afterwards the commissioner declared said survey forfeited upon the following grounds:
    1. Because the unconditional certificate was not returned to the land office by the 30th of July, 1872.
    2. Because the records of the land office did show: 1st, that Solomon Watson had never received a conditional certificate from the board of land commissioners of Bed Biver county; 2d, that the traveling board never recommended any such certificate; 3d, that the commissioner of claims never approved such certificate.
    The plaintiff’s title consisted in a survey made upon an unconditional certificate, the field-notes of which are shown to have been returned to the general land office at some time after the survey of the land was made. The survey was made in the year 1844. There was no evidence showing that the field-notes were in the general land office previous to the year 1860 or 1862. At what time they were returned to that office does not appear. If there was a failure to return to the land office the field-notes of the survey claimed by the plaintiff, by the 31st day -of August, 1853, according to the requirements of article 4562, P. B., the land located by virtue of the certificate and the survey under it reverted to the public domain. Upshur v. Pace, 15 Tex., 53; Johns v. Pace, id. 271. A patent was issued in 1872 to the defendant, as assignee, for the same land, by virtue of a different certificate and a different file. The defendant claims the land under his patent.
   Opinion.— The rule laid down in Johnson v. Eldridge, 49 Tex., 507, is decisive of this case upon the evidence in the record. It is held in that case that the patent carries with it a prima facie right to the land thereby granted by the state to the patentee, and to rebut such a presumption it devolves upon' the adverse claimant to clearly establish a prior or superior equitable right; the burden being upon the plaintiff, even under the ordinary rule of law applicable to actions of this kind, to establish a perfect and valid title, or, at all events, to show a right sufficient to recover the land and superior to the defendant’s right. The weight of that burden is increased when he is met by the defendant’s .apparently perfect' title. The simple fact that his field-notes had been returned at some time or other does not meet the exigency. Sixteen years had elapsed since the survey was made under which plaintiff claims, before the field-notes are shown to have been in the land office.

The presumption which would ordinarily attach to finding the field-notes at a proper place of deposit, i. e., the land office, at a date subsequent to August 31,1853, it may be conceded, would be for some purposes that they were' duly filed at the proper time, in the absence of other proof, "and upon such state of case creating a presumption that the land had been treated at the land office, after August, 1853, as vacant public domain, and that the commissioner had patented- to an adverse claimant of the land. The presumption that the field-notes had been returned and filed in due time is neutralized by another presumption, not less forcible, that the officer whose duty it was to ascertain and know whether the land in question was vacant or not, acted upon proper information before treating it so, and accepting a file thereon and issuing a patent therefor.

It devolved upon the plaintiff, therefore, to show clearly that he had made such due return of his field-notes, and failing therein, the judgment was correctly rendered for the defendant. The correctness of the construction of articles 7096 and 7097, P. D., by the commissioner of the land office, that the withdrawal of the certificate from the land office, in order to locate the balance of the certificate, and failing to return the same within the time limited for the return of certificates, vacated the survey which had been made by-virtue of it, and under which the plaintiff claims, was immaterial if for any legal reason whatever the plaintiff was not entitled to obtain a patent.

On the trial of this case he assumed the task of showing that he was so entitled, and in our opinion he failed to do so.

Judgment aeeikmed.


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    Andrew and Jane Durnett v. Richard Whaley.
    (No. 639.)
    Bond — Motion to quash.— Motion to quash a sequestration bond must point out its supposed defects.
    Sheriff’s deed.— Where W. bid off property at sheriff’s sale and S. advanced the money, and by an arrangement between them the sheriff’s deed was made to S., there was no such irregularity as would affect the legality of the sale.
    Attorney’s fees allowed, when.— Attorney’s fees may be allowed in proper cases as actual damages, but it is necessary to plead and show such damages specially.
    Appeal from. Galveston county. Opinion by Watts, J.
    Statement.— Appellee instituted this suit against tire appellant on the 7th day of August, 1874, to recover the possession of a certain two-story wooden house and cookhouse, cistern, back-house and fencing, and all tenements situated on lot No. 12, block No. 507, in the city of Galveston. At the same time he sued out a writ of sequestration on the ground, as stated in the petition, etc., “ that he fears that defendants, Andrew and Jane A. Burnett, who are in possession of said property, will waste the said premises, houses, etc., during the pendency of this suit. The writ of sequestration was levied on the 15th day of August, 1874, and the property was left in the possession of appellants, who afterwards replevied the same. On the 10th day of August, 1874, the appellants answered by general demurrer, general denial, and further in these words: “ And further answering, defendants say that plaintiff has maliciously and wrongfully sued out a writ of sequestration in said cause, wherefore defendants say that they have been damaged in the sum of §5,000, and of this they put themselves upon the country.”
    On the 18th day of February, 1875, appellee filed an amended petition in which the cause of action is more particularly stated. '
    Among the innumerable papers filed with the record we find an amended transcript sent up by the clerk of the district court, in response to a certiorari from the supreme court. This contains what purports to be an amended answer, and has no file-mark upon it, and the district clerk certifies, in effect, that the same was not among the papers at the time the transcript was made up, and that the record showed no leave of the court to file the same, and that the district court refused to permit the same to be filed nunc pro tunc.

    The appellants moved to quash the writ of sequestration, “ because the same was issued without such a bond as the law contemplates.” This motion was overruled and the point saved by bill of exception. On the trial the court charged the jury as to the title to the property, and the right of possession thereof, but gave no charge on the question of damages for wrongfully and maliciously suing out the writ of sequestration. Appellants asked the court to give the jury three special charges.
    1. If Whaley bid off the property and failed to pay the amount of his bid on the day of sale, then that he has no title.
    2. That if the sequestration was sued out wrongfully, and without probable cause, and that defendants were not about to waste the house at the institution of the suit, then the jury are authorized to give the defendants such damages as the proof shows they have sustained.
    3. That if the same was sued out by plaintiffs without probable cause, and with the malicious intent to injure the defendants, then the jury are authorized to award exemplary damages.
    These charges were each refused by the court, and the point saved by a bill of exceptions. The trial resulted in a verdict and judgment in favor of appellee and against appellants, for the possession of the property, and $85 for rent of the same. Motion for new trial made and overruled. Appellants appealed and assigned the following errors:
    1. The court erred in refusing to quash the writ of sequestration.

      2. The court erred in refusing to give instruction No. 1, asked by defendants.
    3. The court erred in refusing to give instruction No. 2, asked by defendants.
    4. The court erred in refusing to give instruction No. 3, asked by defendants.
    5. The court erred in overruling defendants’ motion for new trial.
    6. The verdict is uncertain and vague in this: that it does not show the value of the property in controversy.
    7. The verdict and judgment are contrary to law in this: that a married woman is sought to be made liable for ground rent.
   Opinion.— The motion to quash the sequestration bond was properly overruled by the court. The bond, in its terms and conditions, is in compliance with the statute then in force; besides, the said motion fails to point out any supposed defect in the same. P. D., art. 5096.

The court did not err in refusing to give the first instruction asked by appellants. There was no evidence in the case calling for or to which the same is applicable; it appears that Whaley bid off the property at sheriff’s sale; that Strickland advanced the money, and by an arrangement between them, the sheriff’s deed was made to Strickland; and in our opinion there was no such irregularity as would affect the legality of the sale. Norvell v. Phillips, 46 Tex., 162; Norvell v. Oury, 13 Tex., 31.

General damages only are averred in the answer of appellants, while the damages claimed by the testimony is for attorney’s fees and for loss of time in getting securities on their replevy bond. The former is not allowed as actual damages in cases like the one before us. Landa v. Obert, 45 Tex., 539. The latter may be allowed in proper cases as actual damages, but it is necessary to plead and show such damage specially. Wallace v. Finberg, 46 Tex., 35; Harris v. Finberg, 46 Tex., 79.

There is no evidence whatever showing that appellee was actuated ,by malice in suing out the writ of sequestration, and on this ground the court rightly refused to give the third instruction asked by appellants.

The objection to the verdict of the jury is not well.taken. It finds for the plaintiff the possession of the property, and also §85, as the rent of the same. The value of the property in controversy was not an issue in the case.

It is objected that Mrs. Jane Durnett is a married woman and that it ivas erroneous to render judgment against her for the §85. If she is a married woman, her privilege as such is not asserted in her answer, nor is the fact shown by the evidence.

Affirmed.


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    W. Y. Davidson et al. v. Heidenheimer Bros.
    (No. 313.)
    Sheriff’s bond—Sureties.— Where the principal and sureties on a bond have been duly served, but do not appear and answer to a suit on the same, the plaintiffs may, by amendment, allege the principal’s insolvency and discontinue as to him, and take judgment by default against the sureties without having them, served with notice of such amendment.
    Service — Keturn — Practice.— Service of a citation citing the defendant to appear and answer on the “second Monday in Monday, A. D. 1874,” is insufficient to give the court jurisdiction of the person of defendant, and will not require him to answer. It is a matter of essential substance that the citation served on defendant state the time and place of holding the court, and the failure to do so cannot be supplied by implication or otherwise.
    Writ of error from Navarro county. Opinion by Watts, J.
    Statement.— This was a suit instituted by Heidenheimer Bros, to the March term, 1874, of the district court of Navarro county, against J. H. Brent as principal, and W. Y. Davidson, J. A. Gowan, B. B. Johnston, I. B. Taylor and IT. V. ITurlock, as sureties on the official bond of J. H. Brent as sheriff of Navarro county.

      The plaintiffs alleged in their petition that Brent failed to pay over to them §650, which came into his hands as sheriff,and to which they were entitled; that the residence of Brent is unknown; and for the purpose of procuring service against him by publication, for which they pray, Geo. D. Morris, Esq., one of the attorneys for plaintiffs, made and appended to their petition, at the date of tiling an affidavit, that the residence of J. H, Brent is unknown to him.
    Personal service had on each of the sureties, and publication of citation against Brent made.
    On the 25th day of the same term, none of the defendants having appeared and answered in the case, plaintiffs amended their petition, alleging in their amendment the insolvency and non-residence of Brent, discontinued as to him, and, without notice to them of the filing of such amendment, took judgment by default against the sureties, who come up to this court on error.
    The citation served on the appellant, J. A. Gowan, stated the time of holding the court to which he was cited to appear, to be on the second Monday in Monday, A. D. 1874.
    The errors assigned and relied on are, in effect, as follows:
    1. The court erred in allowing appellees to discontinue as to Brent, and giving judgment by default against appellants without any notice being given to them of such discontinuance.
    2. That the citation served on Gowan was a nullity and conferred no jurisdiction on the court, etc., because the time for holding the court was not therein stated,
   Opinion.— The amended petition filed by appellees, al- • leging the notorious insolvency of Brent, the principal in the bond sued on, did not set up a new cause of action, or so change the nature of the suit, as made by the original petition, as would require service thereof to be made upon appellants. They had been served, and were, in contemplation of law, in court, and attending to their interest, so far as said-suit was concerned; they knew or ought to have known that the law authorized a discontinuance as to Brent, upon either of the grounds alleged in the amended petition; they are, therefore, charged with the knowledge that appellees may discontinue as to Brent at any time, and if they desired to contest the fact of his being a non-resident or notoriously insolvent, they should have been in court either in person or by attorney.

The first error assigned is not well taken.

The statute imperatively requires that the citation shall state the time and place of holding the court; the citation served on appellant Gowan, in respect to the time of holding the court, is, in legal effect, precisely the same as if the month had been left blank.

Appellees insist that as the citation does state “at the next term,” etc., and as the prayer of the petition is that the appellants be cited to appear at the next term, stating the place, and the day, the month and the year, that this was sufficient.

The time of holding the court must be stated in the citation ; in this respect it is matter of essential substance, and cannot be dispensed with nor supplied by implication or cured by allegations in the petition. See Covington v. Burleson, 28 Tex., 370.

The citation is the means prescribed by the statute for acquiring jurisdiction over the person of the defendant, and there is no other mode of service that can be substituted for that prescribed.

Bevebsed and remanded.


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    James & William Vance v. Henrietta Doebbler.
    (No. 312.)
    Homestead defined.
    Appeal from Bexar county. Opinion by Watts, J.
    Statement.— On the 87th of February, 1855, F. W. Doebbler made an affidavit before the then chief justice of Gillespie county, under the pre-emption law of February 13, 1854, stating that he was on that day a resident of this state, and that he had settled on Grape Creek, in said county, in good faith, on a piece of land which he believed to be vacant and unappropriated, and “ that he makes this declaration for the purpose of securing the land to which he is entitled by an act donating to actual settlers on vacant public domain one hundred and sixty acres of land.”
    On the 15th of December, 1858, the said F. W. Doebbler, together with two other citizens of Gillespie county, made oath before the same authority to the effect that said Doebbler “ has resided upon and cultivated the tract of land surveyed for him as pre-emption claim” “for the space of three consecutive years,” and that “ he is a Iona fide settler upon vacant land.,” etc.
    A certificate under the last affidavit was filed in the general land office on December 22, 1858, and a patent was issued to said Doebbler, dated June 2G, 18G0.
    Before the making of the first of the above affidavits, Doebbler was the owner of a town lot in the town of Fredericksburg, upon which he lived with his family.
    On the 12th of April, 1856, said Doebbler, being indebted to the appellants, executed and delivered to them a mortgage upon his town lot, as well as upon his pre-emption claim, to secure the payment of $1,873.87. In this mortgage he describes his Grape Creek land as “ being the same property now occupied by me (him) as a farm.”
    Doebbler failing to pay his indebtedness to the Vances, they brought suit in the district court of Bexar county (two promissory notes, secured by the mortgage, being payable in San Antonio) to foreclose the mortgage aforesaid, which was done by the decree of that court on the 30th of May, 1868.
    Mrs. Doebbler, appellee, was not a party to that suit. Under this decree of foreclosure an order of sale was issued and the town lot in Fredericksburg was levied upon and was about being sold by the sheriff of Gillespie county.
    Mrs. Henrietta Doebler, wife of said F. W. Doebbler, on, to wit, September 11, 1874, instituted this suit in the district court of Bexar county against appellants, said sheriff and her said husband, and therein sued out am injunction restraining the sheriff and appellants from said lots.
    She alleged that said lot was the homestead of herself, husband and children; that they had continuously occupied the same as a homestead since 1853, and were occupying the same as such homestead at, before and since her husband executed said mortgage to appellants; that said mortgage was executed without her knowledge and consent, and that she did not join therein, etc.
    Appellants answered by general demurrer and general denial, and specially setting up the fact about the pre-emption, etc., and claimed that said lot was not the homestead of Doebbler and wife at the time the mortgage was executed, etc.
    F. W. Doebbler answered that the allegations contained in his wife’s petition were true.
    The case was tried' the 8th day of March, 1874, and resulted in a verdict in favor of Mrs. Doebbler, and decree perpetuating .the injunction for costs, etc. Appellants bring that judgment before the court on appeal and assign errors as follows:
    1. The court erred in its charge to the jury.
    2. The court erred in refusing to instruct the- jury as asked by the defendant.
    3. The court erred in overruling defendant’s motion for a new trial.
   Opinion.— The question sought to be presented by appellants in their assignment of errors is as to whether or not Doebbler and wife had abandoned the lot in controversy as their homestead. The assignment is obnoxious to the statute, which requires the appellant to distinctly specify the ground on which he relies, or else the errors will be considered as waived. The rule is well settled that, in the absence of such an assignment of errors as is required by law, the court would be authorized in reversing the judgment only when it is apparent from the record that an error has been committed in the court below, and that the ends of justice require that the judgment should be reversed.

The appellants claim that, as the pre-emption law then in force required Doebbler to reside for three consecutive years upon the Grape Creek land before he could, obtain a patent therefor, it follows that he did so reside on said land, and thereby abandoned his homestead in the town of Fredericksburg. The charges asked by appellants and refused by the court sought to present that view of the case. The refusal to give the charges asked was correct. Suppose the husband did perpetrate a fraud upon the state and.acquire a patent thereby for the Grape Creek land as a preemption, when, in fact, his family and himself were living upon and occupying the lot in Fredericksburg, certainly it will not be contended that Mrs. Doebbler would thereby forfeit her constitutional right to the homestead. And this would be the necessary result of the doctrine contended for by appellants.

The homestead is defined as a place of family residence or the property dedicated as such.

“The place of the house; the mansion house with adjoining land.” H. & G. N. R. Co. v. Winter, 44 Tex., 598.

“The leading idea in homestead exemptions is to furnish a home and shelter to the family.” Iken v. Olenick, 42 Tex., 195.

From these definitions it follows that the question of what constitutes, or rather, where the homestead of a family is, would be a question of fact in the determination of which the three principal .elements are ownership, occupancy and intention.

The evidence, as disclosed by the record in this case, satisfactorily shows that the family, that is, Mrs. Doebbler and children, have occupied the lot in controversy as a home since about 1854; that Doebbler remained with his family the greater portion of his time, but was occasionally with his sister, who lived on the Grape Greek place or pre-emption. The court fully submitted the question of the abandonment of the lot as a homestead to the jury in a charge quite as favorable to appellants as they ought to have expected.

In our opinion the verdict of the jury was amply sustained by the evidence; in fact they could not properly have returned any other.

It appears that in taking the mortgage the appellants must have appreciated the trouble they would have in subjecting the lot to forced sale, as they also included therein the pre-emption on Grape Greek.

Affirmed.


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    M. Drane et al. v. Alice F. Gunymere and her husband.
    (No. 333.)
    Former recovery and merger of cause of action. — It is a well-established principle that all the evidence of a right of action is merged in the judgment rendered in the suit upon such evidence of right, and such judgment is final and conclusive on all matters thereby adjudicated. And it seems to be now the settled doctrine that this rule has application as well to judgments rendered in a sister state as when rendered in the state where the suit is brought which presents the questions.
    Foreign judgment. — A proceeding in a probate court of another state against an administratrix to obtain the necessary orders for settling upon an estate, and the issuance of such orders in the ordinary current administration proceedings by which an execution or writ of fieri facias would issue against her in case she failed to comply, would not merge into a judgment a prior cause of action, but they afford strong evidences to establish the existence of it. Such orders would hardly be deemed a judgment which would merge the creditors’ right of action for damages.
    Practice.— In the absence of an averment in the petition of a law, custom, or procedure, in the courts of the state where the judgment was rendered, requiring a different construction to be given it, a foreign judgment must be interpreted and held to have the same legal effect as if it had been rendered by our own courts.
    Appeal from Navarro county. Opinion by Walker, P. J,
    Statement.— This suit was filed on the 17th of June, 1876, by plaintiffs in their right and capacity as heirs of W. F. Neal, deceased, alleging that they are the brothers and sisters (joined by the husbands of such of them as are married women), and the descendants of such brothers and sisters, and the only surviving heirs of W. F. Neal, deceased, except Alice F. Neal, who was sued in the original petition by the name of Alice F. Neal, but having since married one Q-unymere. She and her husband are now jointly sued in this action. The petition does not allege what is the relation by heirship of said Alice F., nor what is her inheritable share with the plaintiffs in the estate of W. F. Neal, but simply that plaintiffs are, as above stated, the sole surviving heirs except said defendant.
    The petition then proceeds to allege that said W. F. Neal died in the year 1875, in Caddo Parish, Louisiana, leaving an estate of real and personal property; that the portion of said property to which plaintiffs were entitled as such heirs, after the payment of all debts and liabilities against the estate, amounted to $1,510 in money, and personal property of the value of $400; that the defendant has, and since the death of said W. F„ Neal has had, the possession of said money and personal property, which they allege belongs'to plaintiffs; that said defendant is holding the same in trust for them. That on the-day of June, 1876, the plaintiffs demanded of the defendant possession and delivery to them of said money and property, which • they allege was refused, and that she has converted the same to- her own use. They allege, by reason of the premises, defendant is indebted to them in the sum of $1,910, has promised to pay them the same, but has refused to comply with her . promise; wherefore they sue and pray a personal judgment against her.
    The petition shows she was a feme sole at the institution of the suit, and that she resides in Louisiana, and that she owns a tract of land in Navarro county, Texas, and prays for an attachment against the same. The defendants answered by a general demurrer, a general denial, a plea of former recovery, which set up, in support of said plea, in an exhibit attached to their plea, certain proceedings, orders or decrees of the probate court of Oaddo Parish of Louisiana. They also plead to the merits of the action.
    To defendants’ plea of former recovery the plaintiffs replied by a supplemental petition which says, in effect, that the plea of former recovery pleaded by defendants, with the exhibit which is part of it, shows that the probate court of Oaddo Parish, on the 23d of September, 1876 (this suit was brought June 17,1876), rendered a valid judgment in favor of plaintiffs, against defendant, for $1,910, and five per cent, per annum interest. Plaintiffs say further that defendants admit, by their plea, that the foregoing is a valid subsisting judgment, subsisting against her in full force and effect. Plaintiffs allege that said judgment is the order of the probate court of said parish had in the administration of the estate of said W. F. Neal, deceased, wherein defendant was administratrix, as alleged in defendants’ plea, and that said order and decree of said parish court is a verification of the claim of plaintiffs’, and the liability of defendant alleged in plaintiffs’ original petition, in substance, the same cause of action.
    The cause was submitted to the court without a jury; the defendants did not rely on their demurrer to plaintiffs’ original petition, and their general exceptions to the plaintiffs3 supplemental petition were overruled. The court determined. the cause upon the issue of the former recovery, sustaining that defense under the evidence in support of it, and rendered a final judgment against the plaintiffs.
   Opinion.— According to the plea of former recovery as pleaded by the defendants, there existed no judgment at the date of the institution- of this suit, nor were there in the probate court any proceedings instituted at that period of time on which to procure a judgment against Alice F. Heal.

There was, at that time, an order of that court to procure the recognition of the plaintiffs as heirs of the estate, and to have a final settlement of the accounts of the administratrix, and a prayer in the petition to deliver to them the residuum, of the estate after the payment of debts of said estate. In pursuance of this proceeding, the order making such recognition of heirship was duly obtained' with order for further proceeding to settle the accounts on February 26, 1876. ¡Neither the exhibit attached to the plea, nor the transcript of the proceedings from the probate court used in evidence, show what was done in that court in respect to the adjustment of the accounts of the administratrix until August 8, 1876, at which time the judge of that court ordered, in compliance with the prayer of the petition of the heirs, that the administratrix be cited to show cause why a writ of possession should not issue as prayed for in that petition. The petition referred to does not shown when it was filed in that court; it recites, however, that the account of the administratrix had been homologated by judgment of that court, showing a balance of $1,510 in cash, and property amounting to $400, due by her to petitioner.

The petition alleged that the administratrix had failed and refused to pay over said monej1-, although more than sixty days had elapsed since said judgment had become final, and prayed for a writ of fieri facias against her to satisfy the sum. of §1,910, with ten per cent, per annum interest from the 1st day of June, 1876, at which date the petition alleged that said account had been homologated, and the petition also prayed for a writ of possession for the heirs to be placed in possession of the real estate.

In accordance with this prayer it appeared from the transcript of said probate court proceedings that an order of that court was made for the issuance of the writ of fieri facias as prayed for on the 23d of September, 1876.

It wa,s upon this state of the evidence before the court that the judgment here complained of was rendered; the court adjudging, as has been already seen, that the right of action of the plaintiffs had been merged by virtue of a recovery upon it under and by virtue of a judgment of a court of competent jurisdiction in favor of and against the same parties who are now before this court.

It is a well-established principle that all the evidence of a right of action is merged in the judgment rendered in the suit upon such evidence of right. And such judgment is final a,nd conclusive on all matters thereby adjudicated, Ayres v. Cayce, 10 Tex., 105. And it seems to be now the settled doctrine that this rule has application as well to judgments rendered in a sister state as when rendered in the state where the suit is brought which presents the question. See 1 Peters, C. C. R., 64.

A judgment in any of the state or federal courts upon valid personal service being regarded as a debt of record, and as entitled to full faith and credit, is a merger in every part of the United States in the same manner as in the state where it was rendered. Freeman on Judgments, sec. 221, citing Barnes v. Gibbs, 2 Vroom, 317. If actions are simultaneously pending upon the same cause of action in different states, a judgment in either will bar the further prosecution of the other. Freeman on Judg„, id., citing 30 Vroom, 539; 39 N. H., 522. But no judgment is to be given any greater effect elsewhere than it had in the jurisdiction in which it originated. Id. “ Every judgment is, for most purposes, to be regarded as a new debt.” Freeman on Judg., see. 217. But what obligation or debt or liability which before had existed was put in issue between the parties in the proceedings referred to, and was merged in a judgment in its stead % None whatever. They were not proceedings, as this suit is, to charge the adminis tratrix with waste and conversion of money and property, and to obtain against her a personal judgment against her estate in damages. They were simply the "ordinary current administration proceedings of a probate court in setting up the estate and turning over the residue to those entitled by law to it. The construction which we have placed upon the probate proceedings is such as might properly, we think, be given to similar petitions, orders and decrees, if they had been made in the county court of this state, and they are subject under the pleadings, as the same is presented, to be so interpreted. See Porcheler v. Bronson, 50 Tex., 561; Bradshaw v. Mayfield, 18 Tex., 21; Taylor v. Runyan, 3 Clark (Iowa), 479.

We assume, therefore, under the rule above quoted and authorities cited, that the proceedings of the probate court, which were had in Louisiana, were similar to and of no other legal effect than such would be in Texas, and that they do not support the defendants’ defense of a former recovery and merger of the cause of action here sued on.

¡Reversed and remanded.


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    F. Eberling v. F. Weyel.
    (No. 3512.)
    Suit for, damages to land — Pleadings.— Where plaintiff’s petition prayed for damagés for trespass upon his land which adjoins defendant’s and that defendant be restrained therefrom, and defendant answers denying the trespass and claiming the land as his own, whatever the character of the suit as first brought, it is by these pleadings turned virtually into a suit for the determination of disputed boundaries, and the pleadings authorize a judgment for land as well as a money compensation for damages.
    Practice—Judgment.—Where a caséis tried without the intervention of a jury, the inquiry of thee supreme court must be restricted to ascertaining whether, upon the whole case, as presented to the judge below, and set out in the statement of facts, there is ■ testimony to warrant his findings, not what their views of it might be.
    Appeal from Gaudalupe county. Opinion by Quinan, J.
    Statement.— At the December term, 1875, of the district court of Guadalupe county, appellee brought suit against appellant for damages for trespass upon his (appellee’s) land, and taking timber and rock therefrom, and building a pen or house thereon, etc., by which he was damaged in various sums, to wit, $400 by treading down the grass, tearing up the soil, cutting down the trees and building the pen or house; and $15 by hauling off his rock. Further vindictive damages were averred, but seem not to have been considered by the court.
    Appellee averred that he and appellant owned contiguous tracts of land; had agreed upon and established a division line between the tracts; and in 1875, and after the divisional line was established, the trespasses were committed and the damage done by appellant; and averred that unless restrained appellant would continue to trespass upon appellee’s tract of land. He prayed for judgment for damages, and that appellant, after final hearing, be restrained from further trespass on his land.
    ■December 10, 1875, appellant demurred to appellee’s petition, pleaded not guilty, and answered that he was seized and possessed of all the tract of land between that purchased by appellee and others of Schneider, and original northeast boundary line of survey Ho. 91, in name of Josefa Leal; and set out by metes and bounds what.part of the Leal survey he claimed. Pleaded that he has been in possession three and five years; that about the dates mentioned in the petition appellee has trespassed upon him on the land, had plowed up the land, assaulted him, etc., to his damage §2,000, ymt he (appellant) .remained, in possession, and prayed for judgment that appellee take nothing by his suit; that he have judgment for his land quieting his title; that appellee be restrained from further trespass on same, for damages and costs, and for general relief.
    Hay 11, 1876, appellee amended his petition, averring an agreement between appellee and appellant that the divisional line between their tracts of land should be located and run out by A. H. Erskine, county surveyor of Guadalupe county, and after being so run should be the divisional line dividing the tracts of appellee and appellant; averring that this divisional line ie begins at a stone mound from, which a mesquite tree four inches in diameter bears south sixty and one-half degrees, west twenty-one and one-half varas; thence north thirty degrees, west one thousand five hundred and twenty-seven varas, to the northwest line of survey ¡No. 91.”
    Hay 12, 1876, a jury not being demanded, the cause was submitted to the court on the law and testimony; without argument. The court found that the law was for appellee, and adjudged that he recover from appellant §20 and costs, and decreed that the divisional line between the tracts of land of appellee and appellant was as per their agreement the same as designated in the amended petition of appellee.
    The defendant moved for a new trial, which was overruled. The case is brought here by Eberling by writ of error.
    The assignments of error are:
    1. The court erred in rendering judgment for the plaintiff, F. Weyel.
    a. Because the plaintiff, who, in a personal action, merely sought a money compensation for alleged trespasses, obtained not only a judgment for money, but for land, too, without having asked for such relief, and such relief being inconsistent with his action.

      b. Because the court adopted the survey of the county surveyor, Erskine, based upon the impossibility that the patented survey Mo. 91 contained within its limits vacant public domain subject to appropriation by location by plaintiff, Weyel.
    c. Because the defendant, Eberling, was not estopped, from claiming up to plaintiff, Weyel’s, line, as established by the surveyors, James P. Hector and Charles P. Smith.
    d. Because the defendant, Eberling’s, deed and purchase from Bobert Schneider, Mary and Daniel Holzhauer and Eliza and Henry Eranz acting by W. D. Griffith, their attorney, dated August 20, 1875, recorded in Book M., pages 175, 176, could not be wholly disregarded and treated as wholly void or ineffectual by the court.
    e. Because plaintiff’s proof was insufficient even to entitle him to a money judgment for the alleged trespasses, having totally failed to prove possession, the evidence being that the defendant, Eberling, was the party in actual possession under a claim of right to the soil.
    2. The court erred in refusing to grant a new trial.
   Opinion.— The first objection to the judgment cannot be maintained. The plaintiff prayed that defendant might be enjoined and restrained from trespassing upon his land. The defendant answered denying the trespass, claiming the land upon which the trespass was alleged to have been committed as his own, and prayed judgment for his land, quieting his title, and that plaintiff be enjoined from trespassing upon his land.

To this answer the plaintiff replied that plaintiff and defendant had agreed upon a division line between their lands, which were contiguous, describing the line run and agreed upon. Whatever the character of the suit as first brought, it was, by these pleadings, turned virtually into a suit for the determination of disputed boundaries. The defendant made this the issue. He asked to be quieted in his possession. The effect of the decree is to settle the boundaries and quiet the title to the lands, and the defendant cannot complain of this action of the court which he himself invoked, because it may not be quite as favorable to his case as he had anticipated. There is nothing inconsistent or foreign to the claim made by the plaintiff in his petition in the judgment rendered. A prayer that defendant be enjoined from trespassing upon his land, of itself suggests the propriety of determining its boundary, and, when supported by the pleadings of the defendant in this case, fully warranted the judgment as rendered.

The other errors assigned resolve themselves into this one proposition, whether the testimony was sufficient to warrant the judgment of the court. The case was tried without the intervention of a jury. There is nothing in the record to indicate upon what peculiar views of the testimony he based his conclusions, or what his views of the law of the case were in reference to the several propositions of the plaintiff in error in his assignments. We cannot say that he looked upon Erslcine’s report as based upon an impossibility, or whether he thought Eberling estopped or not estopped from claiming up to Weyel’s line according to Hector or Smith’s survey, or whether he disregarded wholly Eberling’s purchase. It has often been said that where a cause has been submitted to the judge the presumption will be that he gave weight only to the testimony as it deserved to have weight; that he rejected what was immaterial or incompetent, and gave proper consideration to that which was relevant and pertinent to the case.

Our inquiry, then, upon these assignments of error, must be restricted to ascertaining whether, upon the whole case, as presented to the judge, and set out in the statement of facts, there is testimony to warrant his finding; not what our views of it might be, for we did not hear the witnesses, nor to us is there confided the task of judging of their credibility or the weight which should be given to the testimony. It must be a very clear case in which a re vising court would undertake to set aside the judgment of the judge or jury upon the facts.

This was a case of disputed boundary. The lands of Weyel and Eberling adjoined. The controversy was as to the location of the line between them. The tract of land formerly belonging to Bracken was divided into two equal portions; one to the legatees and one to the heirs. Weyel claims under the legatees; Eberling under the heirs. The difficulty in determining where the dividing line was resulted from uncertainty as to where the beginning corner of the survey 91 was. Several surveys had been made and the several surveyors differed. But the county surveyor, Erskine, testified on the trial that he had found this corner; that he had run this division line between the respective tracts in accordance with it, and that the parties agreed and assented to it.

Surveying Weyel’s land from the west, and surveying Eberling’s from the east, measuring the distances called for in their field-notes, the surveys did not meet by some sixty or sixty-two varas, and this distance, by agreement, he divided between them. If the lands were surveyed with absolute accuracy the surveys would meet. We have very little doubt, as the appellant’s counsel says in his brief, u that the bottom facts of the case ” are that the original division of this Bracken tract was actually made equal between the heirs and legatees; that the survey for the legatees was begun from the westward; that for the heirs from the eastward; that they adjoin; and the line run by Erskine was the exact half way between the eastern and western line, and consequently the true boundary between the tracts. There was no vacancy between them, and if his claim would not make the tracts meet, it was his duty to project the lines to that end, dividing the space equally. Equality is equity.

Other surveyors who surveyed the land differed widely from Erskine, but we believe from the evidence that Erskine’s line is the .exact division line between the parties, and that the judgment, if founded upon that, is not without evidence to support it independent of any agreement. But the agreement between the parties, we think, would warrant the judgment.

There was testimony to show that the line was run by agreement and direction of the parties by the county surveyor, Erskine, for the purpose of settling and determining what had been in dispute; ivas agreed upon and acquiesced in by them, at the time, and for more than a year after-wards there was no dissatisfaction expressed on either hand. See George v. Thomas, 16 Tex., 88. It is a well-settled doctrine that the courts will not disturb parol agreements or long acquiescence in a boundary line. See Wakefield v. Ross, 5 Mass., 16; Smith v. Hamilton, 20 Mich., 433. Such agreements are not within the statute of frauds. Hoxie v. Clay, 20 Tex., 526.

The objection that the proof was insufficient to warrant a judgment for damages is not well taken. The title to the land was in Weyel and also the right of possession. He was entitled to recover of Eberling for whatever damages he had sustained from his trespass. Hillman v. Baumbach, 21 Tex., 205.

Judgment aeeibmed.