author: LANE, J. GRAVES, J.

text:
    BANKERS’ MORTG. CO. v. HIGGINS et al.
    (No. 9030.)
    Court of Civil Appeals of Texas. Galveston.
    Dec. 20, 1927.
    Rehearing Denied March 1, 1928.
    1. Appeal and error <§=*747(3)— Objection to-cross-assignment of error as not filed in trial court' will be overruled, where only showing of want of filing is assertion in brief.
    Objection to consideration of cross-assignment of error on ground that it was not filed in trial court will be overruled, where the only showing that the cross-assignment was not filed is assertion of that fact in appellant’s supplemental brief, since cross-assignments need not be incorporated in transcript.
    2. Appeal and error <§=>747(3) — Cross-assignments of error need not be incorporated in transcript.
    Law does not require that cross-assignments of error should be incorporated in transcript on appeal.
    3. Deeds <§=>38(8) — Deed conveying portion of tract described as lying just south of specified tract held not void for uncertainty of description, where land was identifiable by reference to record.
    Deed conveying 140 acres out of 200-aere tract described as lying just south of south line of 520-acre Higgins tract, with south line of Higgins tract constituting north line of 200-acre tract, held not void for uncertainty of description of land conveyed, where such land could be identified by reference to record. ■
    4. Deeds <§=>38(1) — Deed is not void for uncertainty of description, if land can be located from it.
    Deed is not void for uncertainty of description of land conveyed, if land can be located from description in deed.
    5. Vendor and purchaser <§=>265(2) — Recorded deeds reciting vendor’s lien securing purchase-money notes charge subsequent purchaser with notice of lien.
    Duly recorded deeds reciting vendor’s lien retained to secure purchase-money notes charge subsequent purchaser of land with notice of lien.
    6. Vendor'and purchaser <§=>265(1) — Purchaser, taking possession with knowledge of purchase-money note executed by predecessor and lien securing it, holds in privity with predecessor’s vendor and consistently with his rights.
    Where purchaser goes into possession of land with knowledge of purchase-money note executed by his predecessor and of lien securing it, and that it must be paid, he holds in privity with predecessor’s vendor and consistently with rights of such vendor or holder of such note.
    7. Adverse possession <®=>63(7) — Purchaser, taking possession with knowledge of purchase-money notes executed by his grantor and lien securing them, could not secure title by adverse possession, where not repudiating subordinate relation, (Rev.-St. 1925, arts. 5509, 5510).
    Purchaser, who went into possession of land charged with knowledge of purchase-money notes executed by his predecessor and of lien securing them, held not to secure title by adverse possession under 5 and 10 years’ statutes of limitation (Rev. St. 1925, arts. 5509, 5510), as against predecessor’s vendor and those holding under him, where he did not repudiate relation of privity with predecessor’s vendor and of subordination to his rights.
    8. Homestead <§=>213 — Defendant in trespass to try title, who did not plead homestead rights, might not assert such as defense.
    Where defendant in trespass to try title did not plead directly or indirectly that land was •homestead of himself and wife when he executed deed thereto, he might not assert homestead rights as a defense.
    Graves, J., dissenting on rehearing.
    Appeal from District Court, Brazoria County; M. S. Munson, Judge.
    Suit in trespass to try title by the Bankers’ Mortgage Company against Johnson Higgins and another, who asserted title. Prom a judgment in favor of defendants, plaintiff appeals.
    Reversed and rendered.
    Harry Holmes, of Houston, and A. R. >Rueks, of Angleton, for appellant.
    J. T. Loggins, of Angleton, and John B. Warren, of Houston, for appellees.
   LANE, J.

The Bankers’ Mortgage Company brought this suit against Johnson Higgins and A. P. Purdy on the 1st day of August, 1925, in the usual form of trespass to try title, praying for a recovery, of the title and possession of a certain 75 acres of land described in plaintiff’s petition as follows:

“75 acres of land out of the John McCloskey league, in Brazoria county, Texas, described as follows: Beginning on Cedar Lake at the S. W. corner of the Higgins 529-acre tract; thence N. 45 deg. along the S. line of the Higgins 529-acre tract to the S. E. corner thereof, and the S. E. corner of the Ben Ward tract; thence S. 45 deg. E. 173 vrs. to a stake at G. T. Higgins N. E. corner; thence S. 45 deg. W. along the N. line of the Higgins and Ben Ward lands to Ward’s N. W. corner on the bank of Cedar Lake; thence northwardly meandering said Cedar Lake to the place of beginning, containing 75 acres of land.”

The plaintiff also alleged title to the land ■under the 3, 5, and 10 years’ statutes of limitation (Rev. St. 1925, arts. 5507, 5509, 5510). Defendants answered, by general demurrer, general denial, and plea of not guilty. They also specially pleaded title under the 5 and 10 years’ statutes of limitation to 75 acres of'land described as follows:

“Seventy-five (75) acres of land situated on Cedar Lake in Brazoria county, Texas, and in the McCloskey league, being a part of the Steven Winston homestead tract and out of the two hundred (200) 'acre tract, which was partitioned between Annie C. Winston and H. Masterson, by order of the district court of Brazoria county, Texas, at its November term, 1883, and being the same seventy-five acres of land set apart to Annie C. Winston in said partition decree: Beginning on Gedar Lake at the S. W. corner of the Higgins 520-acre tract; thence in an easterly direction following the south line of said Higgins tract to the S. E. corner thereof; thence in a southerly direction along the back or eastern boundary line of said two hundred (200) acre tract to a point from whence a line drawn in a westerly direction and parallel with the lower line of the said Higgins’ 520-acre tract to Cedar Lake; thence up Cedar Lake with its meanders thereof to the place of beginning, so as to include seventy-five (75) acres of land, and being the same land conveyed by Annie C. Winston to Lucretia Higgins, by deed dated March 12,1885, filed for record April 10, 1885, and recorded in volume X/p. 305, of the Deed Records of Brazoria County, Texas.”

By supplemental petition, plaintiff alleged that the occupancy of the premises described in the defendants’ answer by virtue of which they claim title thereto by limitation was permissive only and not adverse to the holder of the record title, in that defendant Johnson Higgins took and held possession of said premises in subordination to the title of plaintiff and its predecessors in title.

Plaintiff further alleged that defendants were estopped to. claim said premises under the statutes of limitation, in that plaintiff’s predecessor in title, South Texas Development Company, purchased the premises from H. Masterson, and the defendant Johnson Higgins, by virtue of whose occupancy limitation title is asserted by defendants, acknowledged that said premises were owned by plaintiff’s predecessors in title and stated that he desired to rent the same, and. thereafter became the tenant of plaintiff’s predecessor in title, and as evidence that he did not claim any interest in the land he executed and delivered to plaintiff’s predecessor in title a deed of conveyance to said land. By supplemental answer, defendants denied generally the allegations of the plaintiff’s supplemental petition.

It was shown that William Winston was in 1854 the owner of 800 acres of land in Brazoria county, a part of the John Mc-Closkey league, known as the former home place of Joseph Reese. By partition decree of the district court of Brazoria county, 200 acres of the 800 acres above mentioned was set aside to John A. and Annie C. Winston in equal portions; said 200 acres being described in said decree as follows:

“Beginning on. Cedar Lake at the southwest corner of the Higgins 520-acre tract of land; thence in an easterly direction along the lower or south line of said Higgins tract; thence in a southerly direction such a distance that a line drawn westerly parallel with said lower line of the Higgins tract to said Cedar Lake; thence ■ up Cedar Lake with its meanders to the place of beginning, will include and embrace within said lines 200 acres of land.”

On the 9th day of July, 1883, John A. Winston, by his deed of that date, conveyed to H. Masterson land described as follows:

“An undivided one-fourth (¾) of 200 acres out of the J. McCloskey league, which was set apart to us by the district court of Brazoria county, Texas, May term, 1883, by decree of John A. Winston v. Stephen P. Winston et al., No. 2909. See pages 511 and 514 of the minutes of the district court.”

And on August 27, 1883, he conveyed to H. Masterson his remaining one-fourth interest in said 200 acres, describing the same as follows:

“An undivided one-half (½) of 150 acres out of the J. McCloskey league, being my own ½ of ½ of 200 acres out of the Winston plantation on Cedar Lake after deducting 50 acres heretofore deeded to said H. Masterson, out of said 200 acres by myself and Annie C. Win.ston, said 75 acres hereby conveyed is my portion of the 200 acres, which was set apart to Annie C. Winston and myself, or to our father, S. P. Winston, by decree of the district court of Brazoria county, Texas, at May term, 1883, in suit entitled John A. Winston v. S. P. Winston et al., No. 2909.”

In a suit brought by H. Masterson against Annie C. Winston on the 16th day of November, 1883, praying' for a partition of the above-mentioned 200 acres of land, a decree was rendered setting aside to Annie C. Winston 75 acres out of the said 200 acres, describing the same as follows:

“Beginning on Cedar Lake at the S. W. corner of the Higgins 520-acre’ tract of land; thence in an easterly direction following the lower or south line of said Higgins tract to the S. E. corner of said' Higgins tract; thence in a southerly direction' along the back or eastern boundary line of said 200-aera tract to a point from whence a line drawn in a westerly direction and parallel with the said lower line of the said Higgins 520-acre tract to Cedar Lake; thence up Cedar Lake with the meanders there-' of to the place of beginning so as to include' and embrace within the above-specified bounds the said Annie C. Winston three-eighths interest or 75 acres of land out of the afore-described 200-aere tract of land.”

And setting aside to H. Masterson 125 acres of said 200 acres, describing the same as follows:

“Bounded on the upper or north side by the lower or south line of said 75-aere tract of said Annie 0. Winston, on the back or eastern end, by the back or eastern line of the afore-described 200-acre tract on the lower or southern side by the lower or southern line of said 200-acre tract above described, on the front or lake side by Cedar Lake, containing within said bounds 125 acres of land.”

On the 17th. day of March, 1885, Annie C. Winston conveyed to Lucretia Higgins the 75 acres set aside to Annie C. Winston in the decree above mentioned, and in the deed of conveyance the 75 acres is accurately described as it was in said decree. In part payment for the land, Lucretia Higgins executed and delivered to Annie C. Winston three promissory vendor’s lien notes for the aggregate sum of ⅞375, bearing interest at the rate of 8 per cent, from date until paid. The three notes before mentioned were transferred to and became the property of H. Masterson, and were in full force and effect from the time of their execution and delivery to the 5th day of January, 1892, at which time H. Masterson brought suit against the maker and her husband, and Johnson Higgins, appellee here, who was claiming title under Lucretia Hawkins, formerly Lucretia Higgins, to foreclose his vendor’s lien against said 75 acres of land. Judgment was rendered in said suit as prayed for, execution and order of sale was duly issued thereon, and the land was sold thereunder to H. Masterson on the 1st day of March, 1892, and a deed was made by the sheriff making such sale, conveying said 75 acres to H. Masterson, in which the land is described as follows:

“75 acres of land situated on Cedar Lake in Brazoria county, Texas, being a part of the Stephen Winston homestead tract of 200 acres and 75 acres are out of said 200-acre tract which was partitioned between Annie L. Winston and H. Masterson by order of the district court of Brazoria county, Texas, at its November term-, 1883, and is the same 75 acres set apart to said Annie C. Winston in said partition; said 75 acres described by metes and bounds as follows: Beginning on Cedar Lake at the S. W. comer of the Higgins 520-acre tract of land; thence in an easterly direction following the south line of said Higgins tract to the S. B. corner of said Higgins tract; thence in a southerly direction along the back or eastern boundary line of said 200-acre tract to a point from which a line drawn in a westerly direction and parallel with the lower line of the said 520-acre tract to Cedar Lake; thence up Cedar Lake with the meanders thereof to the place of beginning, so as to include within the specified bounds 75 acres of land, and for fuller description thereof reference is made to the partition of said 200 acres out of which said 75 acres is' taken as the same appears in the minutes of the district court of Brazoria county, Texas, in pages 5180, 5181, and 5182 of said court minutes.”

Napoleon Higgins, the father of Johnson Higgins, died in 1885, and Lucretia married one Hawkins. Lucretia Hawkins died in 1916. Johnson Higgins was the only child of his parents. Shortly after Lucretia Higgins purchased the 75 acres in 1883 and executed the notes above mentioned, she made a verbal gift of the land to defendant Johnson Higgins, and he moved on the same and continued to live thereon under such gift, except for a period of years, and during such period he was in possession thereof by tenants up to the time this suit was filed, but never at any time did he advise Masterson that he claimed the land adversely to him, or repudiate the possession under which he entered.

On the 18th day of September, 1905, H. Masterson conveyed, together with two other tracts of land, 140 acres of land lying in Bra-zoria county, Texas, to the South Texas Development Company, which was described in said conveyance as follows:

“140 acres out of the following described 200-acre tract: Beginning on Cedar Lake at the S. W. corner of the Higgins 520-aere tract of land; thence in an easterly direction along the lower or south line of said Higgins tract; thence in a southerly direction such a distance that a line drawn westerly parallel with said lower line of the Higgins tract to Cedar Lake; and thence up Cedar Lake with its meanders to the place of beginning, will include and embrace within said lines 200 acres of land.”

On the 20th day of May, 1910, Johnson Higgins executed and delivered to the South Texas Development Company the following instrument:

“The State of Texas, County of Brazoria.
“Know all men by these presents: That we, J. A. Higgins of the county of Brazoria, state of Texas, for and in consideration of the sum of five and 00/100 dollars to us in 'hand paid by the South Texas Development Company, the receipt whereof is hereby acknowledged, have granted, sold, remised, released and forever quitclaimed and by these presents do grant, sell, remise, release and forever quitclaim unto the said South Texas Development Company, a private corporation, its successors and assigns, all our right, title and interest in and to that certain lot, tract or parcel of land described as follows: Situated in Brazoria county, Texas, and a part of the John McCloskey league, beginning at N. Higgins lower corner on Cedar Lake from which a cedar tree 10 inches in diameter bears N. 39 deg. E. 9 ft. marked X; thence N. 45 deg. E. 865 vrs. along the lower line of the N. Higgins tract to stake on edge of a field; thence south 45 deg. E. 32½ vrs. to another stake on edge of the field; thence N. 45 deg. E. 444 vrs. to corner of Ed. Bess 40-acre tract; thence S. 45 deg. E. 1042 vrs. to Winston line; thence S. 45 deg. E. to corner of a 65-aere tract described in deed from South Texas Development Company to H. Masterson, filed for record in Brazoria county, Texas, November 13, 1907, recorded in Book 77, page 259 of Brazoria county deed records; thence south 45 deg. W. with the N. line of the said 65-acre tract to the line of the Ben Ward 60-acre tract; thence with the line of the said. Ben Ward tract to its N. corner; thence south 45 deg. W. with the line of the said Ben Ward tract to Cedar Lake; thence with the meanders of Cedar Lake to the place of beginning, comprising within the aforesaid metes and bounds the 91-acre tract of land conveyed by S. Masterson to the South Texas Development Company by deed recorded in Deed Records of Brazoria County, Texas, book 67, page 544, and the portion of the 140-acre tract conveyed by said H. Masterson to the said South Texas Development Company by the deed above mentioned remaining in the said company after deducting 65 acres recon-veyed to the said H. Masterson by the said company by the aforesaid deed, dated October 31, 1907, filed for record November 13, 1907, and recorded in Brazoria County Deed Records, book 77, page 259, to have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in anywise belonging, unto the said South Texas Development Company, its successors, heirs or assigns forever, so that neither the vendors herein, nor their heirs, nor any other person or persons for them, or in their name or behalf, shall or will hereafter claim or demand any right or title to the aforesaid premises, or any part thereof, but they and every one of them by these presents shall be excluded and forever barred.
“Witness our hands this-day of May 20, A. D. 1910 (the word ‘April’ being struck out). A. J. Higgins. Signed and delivered in the presence of-

After Masterson had purchased the one-half interest in the 200-acre tract from John A. Winston, above mentioned, to wit, on the 29th day of March, 1888, he conveyed to one' Ben Ward 60 acres, described as being a portion of 200 acres set apart to John and <Annie Winston by decree of the district court of Brazoria county, May term, 1883, and reciting in such conveyance that at that time he owned 125 acres of said 200-acre tract and that said 60 acres to be taken out of the 125 acres, by commencing on the bank of Cedar Lake on upper line of the 125 acres; “thence east along line dividing - said 125 acres, and 75 acres of Annie O. Winston, to such a distance that a line at right angles to lower Une of said 125 acres; and thence west to Cedar Lake; thence up Cedar Lake to beginning, will contain 60 acres.”

It is apparent that after Masterson had sold the 60 acres to Ward he only owned 65 acres of the 200-aere tract, and that when he purchased the 75 acres thereof set apart to Annie Winston he owned 140 acres thereof, which he intended to and did convey to the South Texas Development Company by his deed of date September 18, 1905.

As already stated, at the time Masterson brought suit on the notes executed by Lucretia Higgins as a part consideration for her purchase of the 75 acres involved in the suit and at the time the sheriff conveyed said land to Masterson op the 1st day of March, 1892, appellee Johnson Higgins was residing in a small house on said land, claiming the premises under a verbal gift thereof by his mother, Lucretia Higgins. After Masterson purchased the land as above stated, he did not dispossess appellee, but permitted him to occupy the house and cultivate a small field thereon, which he continued to do until the house was blown down in the storm of September 8, 1900. After the house was blown down appellee rebuilt 'the same in 1900. While he was occupying said house he spoke of the premises as being his home, but it is not shown that he ever talked to H. Mas-terson about the land at any time; in fact, appellee testified that he had never talked to Masterson about the land. There was no evidence that H. Masterson knew that appellee rebuilt the house or had any information of any kind that appellee was asserting any adverse claim to the land as to him.

The appellee testified that his father died in 1885, and that he moved to the land in 1885 or 1886; that H. Masterson came down to his house while he lived there, but did not know that he was down there soon after he rebuilt the house;' that he knew that Master son was down there three or four times after his (appellee’s) father died; that when he saw Masterson down there he was at appel-lee’s mother’s house.

There was no evidence that Mr. Masterson ever saw the house which appellee rebuilt or after it was rebuilt, or that had he seen same he would have known that the original house had been blown down and another rebuilt in its stead.

The case was tried before a jury and after both sides had closed their evidence, each party requested the court to instruct the jury to return a verdict in their favor. Both of these requests were refused, and the court submitted the cause to the jury upon several special issues, but instructed' the jury that, if they should answer special issue No. 1 in the affirmative, they need not answer any of the other issues. Special issue No. 1 was as follows:

“Do you believe from the evidence that the defendant Johnson Higgins has been in peaceable and adverse possession of the land described in plaintiff’s petition for a period of ten (10) years after March 1, 1892, and prior to March 17, 1910, cultivating, using, and enjoying same, and claiming the same under a survey and marked lines and corners, made more than ten (10) years prior to the last-mentioned date? Answer yes or no.”

. The jury answered such issue in the affirmative. Upon such answer, judgment was rendered, decreeing that the plaintiff, the Bankers’ Mortgage Company, take nothing by its suit against Johnson Higgins and A. E. Pur-dy, and that Johnson Higgins recover from said company title and possession of the land involved in the suit. Prom such judgment the Bankers’ Mortgage Company has appealed.

Appellant contends that the court erred in not instructing a verdict in its favor upon its request therefor, in that the undisputed evidence shows that appellee Johnson Higgins went into possession of the land in. controversy under and in privity with an executory contract of sale and purchase, being the deed with vendor’s lien retained in favor of Annie C. Winston;' that his possession as to such vendor and H. Masterson and his assigns, who were in privity with such vendor, was amicable and subordinate to the title of Annie O. Winston and those in privity with her, and could not become adverse until repudiated and notice of such repudiation was brought home to them, and in that there was no evidence showing that either Masterson or any of his assigns had any notice that appel-lee was at any time .claiming adversely to them, or any of them.

By cross-assignment appellee insists that appellant could not recover under the evidence, and that the court erred in not instructing a verdict in his behalf upon his request therefor, in that appellant, the Bankers’ Mortgage Company, has shown no title to the land in themselves, because the deed from H. Masterson to the South Texas Development Company, the predecessor in 'title of appellant, conveying the land, described no land so that it could be identified, and therefore appellee’s possession was at all times adverse to appellant.

Appellant insists that, if ther;e is any merit in appellee’s cross-assignment, which it denies, appellee cannot avail himself of such cross-assignment, in that said assignment was not filed in the trial court, -and therefore same cannot be considered by this court.

We overrule appellant’s objection to the consideration of the cross-assignment. There is no law requiring that cross-assignments shall be incorporated in the transcript. Baum v. McAfee, 59 Tex. Civ. App. 55, 125 S. W. 984, at page 987; Yates v. Watson (Tex. Civ. App.) 187 S. W. 548.

In the case last cited it is said:

“Appellee filed * * * cross-assignments of error. Appellant objects to a consideration of these cross-assignments because not filed in trial court, contending that therefore we cannot consider them. There is no other showing about the matter. The cross-assignments do not have to be copied in the transcript; so, without some other showing that they were not filed in the trial court than the assertion in appellant’s supplemental brief, the motion cannot be sustained.”

There is no showing in the present case, except- the assertion in appellant’s supplemental brief, that the cross-assignment was not filed in the trial court. Before taking up a ’Consideration of appellant’s contention we shall dispose of appellee’s cross-assignment, for if it is to .be sustained it will settle the controversy adversely to appellant’s contention that appellee’s possession of the premises from the 1st day of March, 1892, the time when Masterson purchased the same at sheriff’s sale, to March 17,1910, the time appellee executed the deed to the South Texas Development Company, was consistent with and subordinate to the title claimed by appellant, for, if appellant was not shown to have been holding under Masterson appellee’s possession was not in privity with the same, but was adverse thereto.

In determining whether the deed from H. Masterson to the South Texas Development Company of date September 18, 1905, sufficiently described the 140-acre tract sought to be conveyed .thereby, we should look to the deeds and other muniments of title hereinbe-fore set out.

The deed from Masterson to the South Texas Development Company conveys 140 acres out of a 200-aere tract which is described as lying just south of the south line 'of the 520-acre Higgins tract, with the south line of the Higgins constituting the north line of the 200-acre tract. We think the legal inference or presumption should be that Masterson by his deed to the South Texas Development Company conveyed all of that 140 acres of land owned by him within the bounds of a 200-acre tract lying just along the south line of the Higgins tract. This being true, we think the land conveyed could be identified by a resort to the record to ascertain what 200 acres was lying just south of the line mentioned out of which the 140 acres was to be taken, and if this can be done there would remain no uncertainty as to the land conveyed by Masterson’s deed.

The deed, as .already stated, shows on its face that the 140 acres was to be taken from a 200-acre tract bordering on the south line of the Higgins 520-acre survey. Is it not admissible to look to the record to determine what 200 acres is so located? If we do so look, we will find, first, that it is the 200 acres set aside to J. A. and Annie C. Winston; and, second, that the same passed from John A. and Annie Winston to H. Masterson. The general rule as to the certainty required is that a deed is not void for uncertainty if from the description given in it the property can be located.

It is well settled that, where duly recorded deeds recite vendor’s lien was retained to secure purchase-money notes, as does the deed from Annie C. Winston to Lucretia Higgins, a subsequent purchaser, such as was Johnson Higgins, was charged with notice of the lien. Ater v. Knight (Tex. Civ. App.) 218 S. W. 648. And ‘where a purchaser goes into possession with knowledge of purchase-money note and lien securing it, and that it must be paid, such purchaser holds in privity with the vendor and his possession is not inconsistent with the rights of the vendor or the holder of the note. Ater v. Knight (Tex. Civ. App.) 218 S. W. 648; Hardy v. Wright (Tex. Civ. App.) 168 S. W. 462; Burnett v. Atteberry, 105 Tex. 119, 145 S. W. 582; Id. (Tex. Civ. App.) 130 S. W. 1028; Shotwell v. McCardell, 19 Tex. Civ. App. 174, 47 S. W. 39; Smith v. Pate (Tex. Civ. App.) 43 S. W. 312; Wilson v. Nugent (Tex. Civ. App.) 91 S. W. 241.

The consistent and subordinate relation mentioned above does not cease or possession become adverse until the purchase money is paid, or the lien released, or the claimant has repudiated the same and brought notice thereof to those holding under the original vendor. Ater v. Knight, and Hardy v. Wright, supra. Neither the purchaser from a vendor who reserves a lien, nor a purchaser from the first purchaser, can hold by limitation against the original vendor, or those holding under him unless the conditions above stated, which start limitation, exist. Pearson v. Boyd, 62 Tex. 544; Thompson v. Dutton (Tex. Civ. App.) 69 S. W. 641; Runge v. Gilbough (Tex. Civ. App.) 87 S. W. 833.

We have already stated that there was no evidence showing that Masterson ever had notice that appeUee repudiated the fact that his holding was consistent and subordinate to Masterson’s title, or that any such notice was brought home to those holding under Masterson prior to March, 1910.

In view of the law as established by the cases cited, and the evidence adduced, it was error for the court to submit to the jury the question as to whether or not appellee Johnson Higgins had been in adverse possession of the land,involved, for a period of 10 years after March, 1892, and prior to March 17, 1910, and the answer of the jury that appellee had such adverse possession is contrary to both the law and the evidence.

We also find that there was no evidence showing a repudiation of the consistent holding of appellee above mentioned, brought home to appellant, or those under whom it held, after March, 1910, until about the year 1925, at which time appellee executed leases to Purdy and another.

Under the facts stated, we think the court erred in not instructing a verdict for appellant upon its request therefor. We also think the court erred in refusing such requested instruction, for the reason that it is shown that appeUee conveyed 'the land in question, by his deed of 1910, to the South Texas Development Company, appellant’s predecessor in title, notwithstanding appel-lee’s contention that such deed passed no title to the Development Company because the undisputed evidence shows that at the time of the execution of the deed the land was the homestead of himself and his wife, and that his wife did not join in the execution thereof. A complete answer to such contention is that there was no plea, either directly or indirectly, that the land in question was at the time of the execution of the deed of 1910, or at any time, the homestead of appellee and his wife, and in the absence of such plea, appel-lee could not avail himself of such defense.

Having reached the conclusion that appellant holds title under H. Masterson; that ap-peUee’s possession was as a matter of law consistent with and not adverse to such title; that there was no evidence that appellee ever brought home to Masterson, or those holding under him that he repudiated such consistent possession until in the year 1925; and also that appellee, by his deed of 1910, conveyed the land to the South Texas Development Company, appellant’s predecessor in title, we hold that appellee has no title to the land by limitation, and therefore the court should have instructed a verdict for appellant, upon its request therefor.

For the reasons above expressed, the judgment is reversed, and judgment is here rendered for appellant.

Reversed and rendered.

PER CURIAM. Rehearing denied.

GRAVES, J.

(dissenting).

Having refrained on original disposition from maturing the individual conclusions now expressed into a dissent, partly at least to await the fuller light of a rehearing, after that aid, I am unable either to yield or longer withhold them; they are:

1. Annie C. Winston did not assign the legal title to the land to H. Masterson along with the transfer of the vendor’s lien note's to him, hence, up until his purchase thereof under his own foreclosure sale on March 1, 1892, he had no title whatever thereto, his sole right then being that of a lienholder to have it sold in satisfaction of the purchase-money notes held by him, and throughout that period there was in consequence no such privity of title or interest between him and Johnson Higgins as prevented the' statute of limitation from running against him in favor of, or, as required, the latter to specially bring home to Masterson notice of the adverse character of his holding. Farmers’ Loan & Trust Co. v. Beckley, 93 Tex. 267, 54 S. W. 1027; Smith v. Pate, 91 Tex. 596, 45 S. W. 6; Robertson v. Wood, 15 Tex. 1, 65 Am. Dec,. 140; White v. Cole, 87 Tex. 500, 29 S. W. 759; Russell v. Kirkbride, 62 Tex. 455; Stephens V. Matthews’ Heirs, 69 Tex. 341, 6 S. W. 567; Barrett v. McKinney (Tex. Civ. App.) 93 S. W. 241; Converse v. Ringer, 6 Tex. Civ. App. 51, 24 S. W. 705.

2. In 'the absence of a duty upon Johnson Higgins’ part to bring home to H. Masterson, particularly, notice of bis adverse bolding of the land, the evidence abundantly justified, if it did not compel, the finding that bis adverse possession against all the world (Masterson included) begun at some unfixed date (that is, when the notes were transferred to Master-son) prior to March 1, 1892 — continued un-brokenly so from that time up until at least March 17,1910, since the undisputed evidence shows that it was never disturbed, or in any way changed, prior to this latter date by a writ of possession or other action under Mas-terson’s judgment of foreclosure. It therefore became wholly immaterial that the trial court limited the period of appellees’ claimed limitation to the time between March 1,1892, and March 17, 1910, since there was more than 10 years shown anyway. Thomson v. Weisman, 98 Tex. 172, 82 S. W. 503; Pendleton v. McMains, 32 Tex. Civ. App. 575, 75 S. W. 350.

3. The deed from H. Masterson to the S'outh Texas Development Company, of date September 18, 1905, was void on its face, in that it neither itself so described any land nor furnished such means of describing any as that it could be identified on the ground, hence could not be aided by the consideration of extrinsic or parol evidence. Continental Supply Co. v. M., K. & T. Railroad Co (Tex. Com. App.) 268 S. W. 444; Id. (Tex. Civ. App.) 250 S. W. 1095; Hermann v. Likens, 90 Tex. 448, 39 S. W. 282; Norris v. Hunt, 51 Tex. 609; Douthit v. Robinson, 55 Tex. 74; Pfeiffer v. Lindsay, 66 Tex. 125, 1 S. W. 265; Bas-sett v. Sherrod, 13 Tex. Civ. App. 333, 35 S. W. 316; Myers v. Maverick (Tex. Civ. App.) 27 S. W. 950; Curdy v. Stafford (Tex. Civ. App.) 27 S. W. 824; Crumbley v. Busse, 11 Tex. Civ. App. 323, 32 S. W. 441; Coker v. Roberts, 71 Tex. 602, 9 S. W. 667; Giddings v. Day, 84 Tex. 608, 19 S. W. 682.

4. That the instrument Johnson Higgins admitted having signed, bearing date May 20 (also referred to as being of date May 17), 1910, should not, in the circumstances, be given the effect'of a conveyance of the title to the land here involved to the South Texas Development Company. His adverse holding of it for more than 10 years prior to this date referred to in paragraph 2 hereof, and found by the jury, was undisputedly the actual occupancy of it by himself and his family as their homestead, which tenure in fact so continued undisturbed, hotwithstanding this instrument, up until this trial in 1925, thereby completing an unbroken period of 40 years’. By the uneontroverted proof this document was signed on the premises by Johnson Higgins only without reading it, his wife also being there but not being asked to sign, was wholly without consideration, and, while not acknowledged, was executed by him under circumstances which, if that had been involved, would have raised the issue of duress.

There was, it seems to me, sufficient pleading upon appellees’ part setting up the homestead claim of Johnson Higgins; the suit was regularly one in trespass to try title, the ap-pellees’ first, among other defenses, interposing a plea of not guilty; appellant then replied by supplemental petition, for the first time specifically declaring upon the instrument under consideration; to this, by supplemental answer, the. appellees responded by repeating their plea of not guilty and specially pleading the homestead defense as follows:

“IV. The defendants especially deny that they were ever the tenant of H. Masterson or any one else under whom the plaintiff claims. , The defendants say that Johnson Higgins entered into the possession of the land described in the plaintiff’s petition and in this defendant’s first amended original answer under a verbal gift from his mother and father in the year 1884 and made permanent and valuable improvements upon said property at the time and after such verbal gift and has continually remained in possession of said property from the time and after such verbal gift and has continually remained in possession of said property from the time that he entered on the place either in person or by tenant and such possession had not been disturbed. Defendants say that the possession of said Higgins was peaceable and adverse to H. Masterson and all others. Defendants say that the said Johnson Higgins resided upon said land, claiming the same as his own for over 30 years, and thereafter has been in peaceable and adverse possession of said land up until the present time, and the claim of the plaintiff or any one under whom the plaintiff claims was never heard of by the defendants until the Gulf Production Company discovered a salt dome and a prospective oil field in the neighborhood of the defendants’ land, and the claim now by the plaintiff in this case is not made in good faith in an honest belief that they have any title to the land in controversy.”

There was no exception to these averments, and, even if proof of the homestead claim could properly be said not to have been available under the reiterated plea of not guilty, they were clearly enough, I think, to let it in. That proof showed without contradiction that Johnson Higgins had then been in possession of and claiming this property as the home of ¡himself and his family for 25 years. The title to it as a homestead had therefore long since been perfected.

Just how in such circumstances a purported conveyance by the husband alone can pass any 'title to the homestead does not readily occur. Bridges v. Johnson, 69 Tex. 714, 7 S. W. 506; Coler v. Alexander, 60 Tex. Civ. App. 573, 128 S. W. 664; Lumpkin v. Woods (Tex. Civ. App.) 135 S. W. 1139; Marble v. Marble, 52 Tex. Civ. App. 380, 114 S. W. 871; Durham v. Luce (Tex. Civ. App.) 140 S. W. 850; Crutcher v. Sanders (Tex. Civ. App.) 145 S. W. 658; Powell v. Ott. (Tex. Civ. App.) 146 S. W. 1019; Harle v. Harle (Tex. Civ. App.) 166 S. W. 674; Parker v. Schrimsher (Tes. Civ. App.) 172 S. W. 165; Clark v. Tulley (Tex. Civ. App.) 200 S. W. 605 ; Constitution of Texas, art. 16, § 50; Revised Statutes of 1925, art. 1300; Hennessy v. Savings & Loan Co., 22 Tex. Civ. App. 591, 55 S. W. 124; Williams v. Rand, 9 Tex. Civ. App. 631, 30 S. W. 509.

5. This instrument from Johnson Higgins, therefore, not standing in the way, and the 10 years’ period of limitation having keen completed under the jury’s verdict prior to its date, nothing was left that could have properly caused the denial of a judgment in favor of the appellees.

Against the ever-steady pressure of individual duties of office, the privilege that was much desired of elaborating upon these views has been denied; but under them, whatever of error may have inhered in any of the learned trial court’s theories in submitting the cause as was done, its judgment should have been affirmed. This protest is earnestly entered at this court’s refusal to grant the motion for rehearing, and so order.
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source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    BISHOP-BABCOCK SALES CO. OF OHIO v. LACKMAN.
    (No. 11934.)
    Court of Civil Appeals of Texas. Fort Worth.
    March 3, 1928.
    1. Pleading <§=>111 — To overcome verified plea of privilege, plaintiff must allege and prove facts conferring venue on court in which he sues (Rev. St. 1925, art. 2007).
    In order to overcome verified plea of privilege to be sued in county of one’s residence, under Rev. St. 1925, art. 2007, plaintiff must allege and prove the fact or facts relied on to confer venue on court in which suit is instituted.
    2. Removal of causes <®=>97 — After removal to federal court and during pendency therein, defendant need not file answer in state court even to merits.
    After suit was removed from state court to federal court and during pendency in latter court, state court had no jurisdiction and defendant was not required to file answer in state court even to merits of case.
    3. Removal of causes <§=>97 — Defendant held not required to answer in state court in case transferred to federal court before time for appearing until after remand to state court.
    In suit on contract begun in state court where citation issued required defendant to appear at October term, and before such term case had been transferred to federal court, defendant was not required to answer in state ■court until after remand of case to it.
    4.Removal of causes <§=>112 — Answering to merits and filing cross-action in federal court and delay held not to waive plea of privilege in state court (Rev. St. 1925, art. 2007).
    Where defendant was cited to appear at October term, but before such time case was removed to federal court which remanded case to state court, overruling plea of privilege, under Rev. St. 1925, art. 2007, filed before first appearance term following remand of case on ground that it had been waived by answering to merits in federal court and filing cross-action therein, or by failure to file plea of privilege in state court on or before return day of original petition filed in state court, held error.
    Appeal from District Court, Johnson County; Irwin T. Ward, Judge.
    Suit by Hugo Lackman against the Bishop-Babcock Sales Company of Ohio. On defendant’s application the ease was removed to the District Court of the United States for the Northern District of Texas at Dallas, which later remanded the case to the state district court. From an order overruling defendant’s plea of privilege to be sued in another county, defendant appeals.
    Reversed, plea of privilege sustained, and case remanded, with instructions.
    Turner & Rodgers, of Dallas, R. A. Kilpat-rick, of Cleburne, and C. R. Winn, of Dallas, for appellant.
    B. Jay Jackson, of Cleburne, for appellee.
   DUNKLIN, J.

Hugo Lackman instituted this suit in the district court of Johnson county against the Bishop-Babeock Sales Company of Ohio, a private corporation, alleged to be a foreign corporation with its general offices at Cleveland, Ohio, and having a branch office in the city of Dallas, Tex.; Jack Bradford, of Dallas, being the manager of the business of the branch office and authorized by the corporation to represent it in all business transactions in the state of Texas.. In his petition plaintiff alleged that he entered into a contract with the defendant for the purchase of a certain soda water apparatus and an ice cream cabinet to be delivered to the plaintiff in the town of Cleburne where he was engaged in a business having to do with the use of such apparatus. At the time the contract was entered into plaintiff paid to the defendant $232 in cash and executed 25 promissory notes, each in the principal sum' of $38.40, and later paid the cost of transportation of the apparatus to Cleburne, in the sum of $62.43.

According to further allegations in the petition, the soda fountain and other additions thereto were found to be defective and not as represented by the defendant’s agent at the time the contract ■ of purchase was entered into; the same being improperly constructed, and it failed to function as the agent represented-that it would do. After discovering said defective condition of the apparatus, plaintiff took up his complaint with the defendant’s agent and as a'result of the negotiations with him a compromise agreement was entered into, by the terms of which the defendant agreed to cancel and surrender the notes plaintiff had theretofore executed and to ship a new soda fountain apparatus with new equipment, but defendant later failed and refused to carry out said compromise agreement and failed to either cancel the notes or to ship a new machine. The compromise agreement was upon a valuable consideration.

In a second count in plaintiff’s petition, it was alleged that damage resulted to his business in consequence of the use of the defective apparatus that was shipped to him by the defendant. Plaintiff prayed for a judgment canceling the notes he had executed to the defendant, and, in the alternative, for damages sustained by him by reason of the use of the defective apparatus.

That suit was made returnable to the October term, 1926, of the district court of Johnson county. On July 24, 1926, after service of citation, defendant filed in the district eourt of Johnson county a verified petition for the removal of the cause to the District Court of the United States for Northern District of Texas, at Dallas. At the time the petition was filed, defendant also filed its bond for removal as required by law. The bond for removal was duly approved by the district judge of Johnson county, and he, on July 24, 1926, entered an order granting the petition for removal and transferring the case to the District Court of the United States for the Northern District of Texas at Dallas, with the further order that a transcript of record be made and certified and transferred to that court.

On September 3, 1926, the defendant filed in the federal court an original answer to plaintiff’s suit, and also a cross-action seeking a recovery upon the notes executed by the plaintiff and mentioned above. A citation was issued out of that court upon the cross-action so asserted and was duly served upon the plaintiff. On January 13, 1927, plaintiff filed his first amended original petition in the federal court, reasserting the cause of action he had alleged in the state court, and also answering the cross-action filed by the defendant. On the same' day the cause was transferred to the equity docket of the federal court. On February 25, 1927, the federal court entered an order remanding the cause to the district court of Johnson county and the pleadings in the cause that had been filed in the federal court at Dallas, together with all the other papers in the cause now filed in the district court of Johnson county after the entry of the order by the federal court remanding the cause. Those documents were so filed at the instance of plaintiff and without the consent of defendant. After the case was remanded, the defendant, on April 5, 1927, filed a plea of privilege in statutory, form to be sued in Dallas county, the plea being duly verified as required by the statute.

The first term of the district court of Johnson county which convened after the cause was remanded to that court began on the first Monday in May, 1927. On April 28, 1927, plaintiff moved to dismiss the plea of privilege, first, because it had not been filed in due order of pleading; and, second, because defendant had waived his plea of privilege by filing an answer to the merits and also a cross-action in the federal court, and also by failing to file the plea in the state court on or before the 1st day of the October term, 1926.

The same points were raised in plaintiff’s controverting affidavit in reply to the plea of privilege, which controverting affidavit was filed on the 4th of May, 1927. In the controverting affidavit the only facts alleged were that the notes which plaintiff had executed were agreed to be made payable in Cleburne, Johnson county, and that if the notes which are now held by defendant do not so stipulate, then any stipulation for payment elsewhere was fraudulently inserted by defendant without plaintiff’s consent.

On June 1, 1927, the plea of privilege and plaintiff’s controverting affidavit were heard, and after hearing the same the plea of privilege was overruled. The defendant has prosecuted this appeal from that order.

The record contains a statement of facts showing that the only evidence offered by the plaintiff to overcome the plea of privilege consisted of the pleadings of the parties theretofore filed, the order of the district court of Johnson county transferring the case to the federal court at Dallas, and the order of the latter court remanding the cause to Johnson county. In other words, no oral testimony was introduced to establish the allegations of fact in the controverting affidavit. It is a well-settled rule of decisions that, in order to overcome a verified plea of privilege in statutory form, it is incumbent upon the plaintiff to allege and prove the fact or facts relied upon to confer venue in the court where the suit is instituted. Article 2007, Rev. Civ. Statutes 1925; First National Bank of Bowie v. Bulls (Tex. Civ. App.) 243 S. W. 577; Waxahachie National Bank v. Sigmond Rothschild Co. (Tex. Civ. App.) 235 S. W. 633.

The order, overruling the plea of privilege does not recite any grounds for that ruling, but in briefs of counsel filed here it has been assumed that the trial judge reached the conclusion that the plea of privilege had been waived by the defendant by answering to the merits of the case in the federal court before the filing of the plea of privilege in the state court, and also by the cross-action filed by defendant in the federal court; or else by a failure to file a plea of privilege in the state court on or before the first Monday in October, 1926, which was the return day of the original petition filed in the suit. We are of the opinion that the court erred in that ruling. After the suit was removed to the federal court and during its pendency in that court, the state court had no jurisdiction of it and the defendant was not required to file an answer in that court even to the merits of the ease. The citation issued in the state court required the defendant to appear at the October term, and since the case was not in that court during that term, necessarily the defendant was not required to answer until after the remand of the ease to that court. After the case was remanded the first appearance term of the state court was the May term, and prior to the beginning of that term the plea of privilege was filed. It would be unreasonable to hold that an answer to the merits and a cross-action filed by the defendant in the federal court would be a waiver of the right to file a plea of privilege in the state court later. Llanez v. Chisos Mining Co. (Tex. Civ. App.) 285 S. W. 646.

Accordingly, the judgment of the trial court is reversed and judgment is here rendered sustaining the appellant’s plea of privilege and is remanded, with instructions to the trial court to enter such order as is necessary to transfer the case to the district court of Dallas county in accordance with the provisions of the statutes in such cases made and' provided.
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author: FLY, C. J.

text:
    WEST’S EX’RS v. CAMERON COUNTY.
    (Nos. 7883, 7908.)
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 1, 1928.
    Rehearing Denied March 14, 1928.
    1. Publio lands i§=173(14) —Attempted acceptance by county of proposal of defaulting purchaser of school lands to discharge debt by payment of interest and one-half of principal due held settlement agreement, and not new sale (Const, art. 3, § 55, and art. 7, § 6).
    Where, after sale of school land under Const, art. 7, § 6, and purchaser’s default in payments, commissioners’ court accepted purchaser’s offer to pay interest due and one-half sum of the principal originally agreed on, proceeding was one of compromise and settlement on part of county, and did not constitute a second sale of the land on different terms, and agreement was therefore void under article 3, § 55, which denies power of Legislature to release or extinguish or to authorize releasing or extinguishing in whole or in part of indebtedness due state or county.
    2. Public lands <§=173 (14) — County’s settlement of debt due from defaulting purchaser of school lands for amount of interest and one-half principal held void (Const, art. 3, § 55, and art. 7, § 6).
    Attempted acceptance by commissioners’ court of county of proposal of purchaser, who defaulted in payment for school lands sold under Const, art. 7, § 6, to discharge debt by paying interest and one-half of principal due, held ineffectual; attempted settlement, though fully executed, being void under article 3, § 55.
    3. Interest <§=37(l) — Overdue interest install- . ments on note, merely providing for 8 per cent, interest on principal, bear interest at rate of only 6 per cent. (Const, art. 16, § II).
    Where note provides for interest at rate of 8 per cent, per annum without provision for interest on interest after annual installments become due, overdue interest installments will not be construed to bear interest at rate prescribed for principal, but, under Const, art. 16, § 11, would bear interest at rate no greater than 6 per cent, per annum.
    4. Publio lands (§==>173(14) — County’s acceptance of past-due interest installments, without exacting interest thereon, in settlement of note to county which failed to provide for compounding interest, held authorized, precluding subsequent recovery of compound interest (Const, art. 3, § 55; Const, art. 7, § 6).
    Where note given county for purchase price of school land sold under Const, art. 7, § 6, was payable in 10 years, bearing interest at 8 per cent, per annum, payable annually in advance, without provision for interest on past-due interest installments, county commissioners’ court, though unauthorized to make settlement by discounting principal sum, had authority to accept interest installments after their due date without exacting interest thereon, without infraction of article 3, § 55, which forbids releasing or extinguishing indebtedness due county, and county, in subsequent suit on note to set .aside the settlement, could not recover interest on such interest installments.
    5. Public lands >©=>173(14) — Note to county, payable in 10 years, bearing 8 per cent, interest, payable annually in advance, held to bear simple interest from due date until paid (Const, art. 3, § 55, and art. 7, § 6).
    Note given county for purchase price of school land sold under Const, art. 7, § 6, which provided for payment of principal, in 10 years, with interest at 8 per cent, per annum, payable annually in advance, held not to require payment of interest on unpaid annual installments of interest after maturity of note, in county’s suit to recover thereon and to set aside compromise settlement under article 3, § 55, there being no provision in note that interest should be paid annually after principal sum became due; but amount due on note was determined by adding simple interest from due date until paid.
    6. Payment <§=66(5) — Conclusive presumption of payment on account of lapse of time does., not apply, where uncontroverted facts show nonpayment (Acts 1913, c. 123, amending Rev. St. 1911, arts. 5693-5695).
    Act 1913, c. 123, amending Rev. St. 1911, arts. 5693-5695, which provides for conclusive presumption of payment on account of lapse of time, does not apply, where uncontroverted facts show that claim sued on has not been paid.

      7. Payment <@=>66(5) — Public land's <@=>173 (14) — Lapse of. over 30 years, held not to bar suit by county oh purchase price note to set aside, unauthorized settlement (Acts 1913, c. 123, amending Rev. St. 1911, arts. 5693-5695; Const, art. 3, § 55).
    Lapse of over 30 years before commencement of action by county to recover on note given for purchase of school lands held not to bar county’s claim by reason of laches or limitation under Acts 1913, c. 123, amending Rev. St. 1911, arts. 5693-5095, where action was brought to set aside void compromise of debt in violation of Const, art. 3, § 55, which prevents Legislature from releasing or extinguishing indebtedness due state or county, since Legislature cannot, by creating conclusive presumption of payment, do, or permit to be done, indirectly what it is forbidden to do directly.
    8. Payment <@=>66(5) — Legislature cannot make acts or laches of county conclusive proof of payment of note and cancellation of county’s lien on property for purchase money (Const, art. 3, § 55).
    Legislature cannot, by statute, make cer-tains acts or certain failure to act on part of the county, against which statutes of limitation have no force, constitute - a conclusion of payment of note and cancellation of lien on property for purchase money, under Const, art. 3, § 55, and any such presumption may be removed by proof.
    9. Limitation of actions <@=>4(2) — Payment <@=> 66(5) — Statute creating limitation period or rule of evidence cannot be permitted to release or extinguish obligations due state or county (Const, art. 3, § 55).
    Const, art. 3, § 55, providing that Legislature may not release or extinguish any part of indebtedness due state or county, extends to statute which would by its operation have the effect intended to be prevented, even though statute is made to operate as creating a period of limitation or rule of evidence.
    10. Evidence <@=>53 — Presumptions arise only ■ In absence of facts.
    It is only in ease of absence of facts that a presumption of any kind can arise.
    11. Payment <@=>66(5) — Conclusive presumption of payment created by statute of limitations, applicable to obligations, held mere sur-plusage (Acts 1913, c. 123, amending Rev. St. 1911, arts. 5693-5695).
    Acts 1913, c. 123, amending Rev. St. 1911, arts. 5693-5695, requiring that actions on obligations be brought within specified period, held to provide limitation on actions and not a rule of evidence, though bar of statute is stated to create a conclusive presumption of payment; provision creating conclusive presumption being mere surplusage.
    12. Public lands <@=>173(14) — County, suing on note to set aside void compromise settlement thereof, was required to give credit for pay- ' ments received under settlement (Const, art. * 3, § 55, art. 7, § 6).
    In county’s action on note given for purchase of school lands, sold pursuant to Const, art. 7, § 6, and to set aside settlement by county commissioners, as unauthorized under article 3, § 55, county was required to give credit for payment of principal and interest which it accepted, notwithstanding payment was made pursuant to invalid compromise contract.
    Appeal from District Court, CameroD County; A. M. Kent, Judge.
    Suit by Cameron County against George W. West and others, in which the death of defendant named was suggested, and his executors substituted as defendants. From the judgment, the substituted defendants and plaintiff appeal.
    Reversed and rendered.
    Williams, Ñeethe & Williams, of Galveston, Denman, Franklin & Denman, of San Antonio, and James R. Dougherty, of Beeville, for appellants.
    A. H. Kirby, of Fort Worth, Davenport, West & Ransome, of Brownsville, King & York, of Austin, T. H. Miller, of George West, and Jno. T. Smith, of Austin, for appellee.
   FLY, C. J.

Appellee, in 1925, filed this suit as against George W. West and others, on a promissory note executed by West to appellee on June 10, 1884, in the sum of $20,-000, due in ten years, bearing interest at the rate of 8 per cent, per annum, payable annually in advance. Together with a recovery on the note, appellee sought to foreclose a vendor’s lien on a league and one-half of land situated in Live Oak county, for the purchase money of which the promissory note was given and a vendor’s lien reserved in the deed executed to the land by Cameron county. West filed a general demurrer, pleaded payment, and invoked presumption of payment by a lapse of more than 30 years. The other parties, who were persons who had purchased parts of the land, need not be further mentioned herein as neither of them has perfected an appeal. The court decided the cause without the aid of a jury, and rendered judgment in favor of appellee as against the executors of the estate of George W. West, he having died before the trial, and administration of his estate begun, in the sum of $102,206.33, and a foreclosure of the vendor’s 'lien on the land in Live Oak county. The executors of the estate appealed, as well as Cameron county. The last named appeal is docketed in this court as Cameron County v. George W. West et al., numbered 7908, which has been consolidated in this court with cause No. 7883, and the consolidated case is now being considered.

The facts are that in 1884 Cameron county owned 6,642 acres, more or less, of school land in Live Oak county, and George W. West made an offer of $20,000 for the land, which was accepted by the commissioners’ court of Cameron county. The purchase money was to be paid in ten years, the debt being evidenced by the promissory note of West for $20,000, bearing interest a,t 8 per cent, payable annually in advance, a vendor’s lien being retained on tbe land to secure tbe debt in tbe deed executed to West by tbe county judge, Tbe deed and note were dated June 10, 1884. On September 18, 1884, West paid as interest tbe sum of $1,600; June 11, 1886, $1,600; on June 1, 1887, $500; on July 10, 1889, $3,600; and June 21, 1894, $1,000 — making in tbe aggregate the sum of $8,300. This was tbe status of the debt when, on February 12, 1895, West offered to pay in full acquittance of tbe debt tbe sum of $10,000 on tbe principal and interest in tbe sum of $8,460. The offer was attempted to be accepted by the commissioners’ court; its order of acceptance being as follows:

“In tbe opinion of the court that West is not only unable to pay the full amount owing upon his said promissory note as above stated, but such amount of money cannot be made under execution against him, and that the only available property out of which the collection of the debt to this county could be enforced on the two .grants of a league and a half of a league respectively, hereinbefore specified, and upon which the vendor’s lien exists to secure the payment of said note, and that the sáid land is not probably worth, and would not bring at execution sale more than, $1 per acre. And it further appearing to the court that the enforcement of said vendor's lien would be accompanied with great expense to this county, and in the opinion of the court the said two tracts of land are not worth, and would not sell for, the said principal sum of $10,000 now offered by the said West, and would not in any possible event bring the said sum now offered by the said West for the settlement of said debt and in consideration of a conveyance of the title in fee simple to said two grants, accordingly it is considered by the commissioners’ court of Cameron county that it is to the interest, in all things in the premises of said county of Cameron and its school fund, that the proposition of said West to pay said aggregate sum of $18,-460 in. settlement of said indebtedness be, and the same is hereby, accepted, and Hon. Thomas Carson, county judge of Cameron county, Tex., is hereby expressly made, constituted, and appointed the agent and attorney in fact of this county of Cameron, and, as such, expressly authorized and directed upon the receipt by him from the said George W. West of said sum of $18,460 to deliver to him, the said West,- the said promissory note for $20,000 above mentioned, and executed by the said West as satisfied in full, and to release said vendor’s ben now existing to secure its payment, and also to execute and deliver to the said West a deed of conveyance in fee simple with general covenants of warranty of the said grant of one league and said grant of one-half of one league of land as heretofore described.”

In obedience to that order, tbe county judge executed the following instrument:

“That, whereas, heretofore, to wit, on the 12th day of February, A. D. 1895, the commissioners’ court of Cameron county made and entered its certain order accepting from George W. West the sum of $18,460, in full settlement of all principal and interest now .owing upon the promissory note of the said West .of date June 10, 1884, and due June 10, 1894, for the principal sum of $40,000 and bearing 8 per cent, interest, payable annually, and did, in consideration of said sum of $18,460, authorize and direct the undersigned county judge of Cameron county to deliver to the said George W. West his said promissory note aforementioned, and to execute to him, the said 'George W. West, the release of the vendor’s lien and the deed of conveyance hereinafter set forth:
“Now, therefore, I, Thomas Carson, county judge of Cameron, county, Texas, in consideration of said sum of $18,460 cash to me in hand paid for the county of Cameron by George W. West of Live Oak county, Tex., have and by these presents do acknowledge full payment and satisfaction of said promissory note for $20,000 above mentioned, and do release the vendor’s lien which was retained to secure the payment of said note in the deed of conveyance of date June 10, 1884, made by James Haynes, county judge of Cameron county, to the said George W. West of the lands hereinafter described, which said conveyance is of record in live Oak county deed registry in Book H. pp. 320 to 326, inclusive, and in consideration of the premises and by virtue of the authority given to me by said order of said commissioners’ court entered as" aforesaid, in the name of the county of Cameron in the state of Texas, I grant, bargain, sell, and convey unto the said George W. West, his heirs and assigns, those two tracts of land which are more fully described in said deed recorded in Book H, pp. 320 and 326, inclusive, of Live Oak county deed registry, to which reference is here made.”

And said Thomas W. Carson, county judge, at the same time delivered to said George W. West said vendor’s lien promissory note above described, executed and delivered by said West to the proper officials of Cameron county, on June 10, 1884, in payment for ‘ said school lands; whereupon said George W. West drew a pen and ink through his signature on said note, and wrote beneath said signature the words “Paid in full.”

At,the same time the promissory note for" $20,000 was delivered to West, he paid $18,-460 to Cameron county.

The facts of this case fail to evidence a cancellation of the original sale by the county and a second sale of the land to West on different terms. It was undoubtedly, as declared by the instruments copied herein, a plain, simple compromise under and by which the county attempted to accept a less sum in payment for the land than that originally agreed upon between the parties. The court in its order recites the inability of the vendee to pay, and of the county to collect, the full amount of the purchase money. The order says that it was considered “that it is to the interest, in all things in the premises of the county of Cameron and its school fund, that the proposition of said West to pay said aggregate sum of $18,460 in settlement of said indebtedness be and the same is hereby accepted.” The whole proceeding was one of compromise and settlement, and not a new sale of the property. If the compromise had been one between individuals, no one would have ever suggested that it was a cancellation of the old contract of sale and the mating of a new sale. It was merely a compromise of the contract price of the land, whereby the county agreed to relieve West of the payment of $20,000 and accept in lieu of it $10,000. Full interest without compounding was paid, and the principal reduced by one-half. That is the sum'and substance of the agreement, and the idea of a new sale is made ..to meet a constitutional requirement and some opinions of the Supreme Court thereunder.

The county was. empowered by section 6 of article 7 of the state Constitution to “sell or dispose ot its lands in whole or in part, in manner to be provided by the commissioners’ court of the county”; that is, it may sell for cash or on credit as it may determine. Under that provision the sale in 1884 to George W. West was valid and binding, and doubtless, if afterwards West had ashed for a cancellation of the contract of sale to him, the commissioners’ court had the authority to have set aside the sale and to have sold to some one else. Those were the circumstances claimed to have existed under which the Court of Civil Appeals acted in the ease of Waggoner v. Wise County, 17 Tex. Civ. App. 220, 43 S. W. 837. The facts did not fairly show the sale of the land by the county to another person, but rather the acceptance as its creditor of a man who had bought from the vendee of the county and assumed his indebtedness to the county. The court, however, held that the transaction was, “in effect, an election on the part of the vendor trustees to reclaim the land, and sell it to another party upon apparently more advantageous terms, as the security could be more easily, quickly, and cheaply foreclosed.” The sophistry of the opinion is apparent, and yet it met with the approval of the Supreme Court, not only by the refusal of an application for a writ of error, but by being after-wards cited and followed in Delta County v. Blackburn, 100 Tex. 55, 93 S. W. 420. Putting aside any question as to the correctness of these opinions, the ease now under consideration does not come within the purview of either of them. We are willing to accept the doctrine that the commissioners’ court “is invested with the power over the title remaining in it which an ordinary grantor would usually have under a like form of contract; that its power to cancel the sale for default in performance by the vendee, to resume its title and to resell would be as perfect as would be the power of an individual under like circumstances,” but no such case is presented by the facts before this court, and we doubt that any such state of facts was before the court in Waggoner v. Wise County. No one will doubt the power of a commissioners’ court to cancel a sale made by it, resume control of the land, and subsequently sell it to another, but that ruling would not give the power, in the face of the Constitution, to compromise a debt for land so as to give the purchaser one-half of the purchase money for which the public school lands were sold. By no stretch of imagination or specious pleading can the facts of this case be construed to be a cancellation of one sale and a contract for another and different sale.

The Constitution of Texas, art. 3, § 55, is:

“The Legislature shall have no power to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, the; indebtedness, liability or obligation of any incorporation or individual, to this state, or to any county or other municipal corporation therein.”

That provision is not only plain and simple, but wise and beneficent. It has in view the protection of the state and its subdivisions from the unwise or corrupt acts of officers who for various reasons might desire to be generous to the individual at the expense of the public. As said by the Supreme Court in Lindsey v. State, 96 Tex. 586, 74 S. W. 750:

“The subject-matter of the constitutional provision is the ‘indebtedness, liability or obligation’ of persons and corporations to state, county or other municipal corporations, and it is the releasing or extinguishing of such 'indebtedness, liability or obligation that is inhibited.”

The Constitution does not inhibit the releasing of the indebtedness, but says “in whole or in part,” no part of the “indebtedness, liability or obligation of any corporation or individual to this state, or to any county or other municipal corporation,” can be released or extinguished. The Delta County v. Blackburn Case, herein cited and relied upon by appellant, sustains the view held by this court. It says:

“If the matter be regarded as the Commissioners regarded it, the conclusion is equally fatal to his defense. They simply attempted to release him from his alternative obligation to pay ‘the whole debt at once or to continue to’ pay interest at the rate of seven per cent, which, under the Constitution, they had not the power to do. It is idle to say that they exerted the power given them to sell or dispose of the land. It had been sold and neither party intended that the sale should be disturbed. Such an extension of that power is not at all essential to its full and free exercise, but would make it impinge upon the other positive constitutional provisions which restrict the authority of the counties in dealing with such subjects and would open the door for many evasions.”

These are words fitly spoken, and are “like apples of gold in pictures of silver.” The language quoted was used in regard to a case where the commissioners’ court, at the instance of the vendee, sought to lower the rate of interest on purchase-money notes given for land bought by the vendee from Delta county, from 7 to 3 per cent, and it was held that the Constitution prevented the commissioners’ court from making such reduction. In this case it was attempted to give the vendee one-half of the purchase money due on the school land. This action was and ⅛ inhibited by the Constitution. Riggins v. Post (Tex. Com. App.) 213 S. W. 600.

In the offer of compromise presented by George W. West to the commissioners’ court, he asked that the debt of $20,000 be cut in half, and that a payment of $10,000 be accepted in full payment of the original principal, and that $8,460 interest be credited on unpaid interest. If no interest be calculated on the unpaid interest, the sum paid by West fully discharged the interest due at the time of attempted settlement. No provision is made in the promissory note for interest on deferred interest payments.

There was no provision in the note for interest on interest after it became due, and the interest of 8 per cent, provided for the principal should not be made to apply to interest, the payment of which was delayed or defaulted. It was not contracted for, and a court desiring to do justice between the parties should not read the provision into the contract.

On August 11, 1891, an amendment to the state Constitution was adopted whereby it was provided that all contracts for a greater rate of interest than ten per centum per an-num should be deemed usurious and that when no rate of interest is agreed upon the rate shall not exceed six per centum per an-num. Article 16, § 11, Const. That provision went into effect on September 22,1891. From that date the interest rate on sums on which no rate is'provided for could not exceed 6 per cent. Interest payable at stated times on which default in payment is made would bear interest at the rate of only 6 per cent, per annum from the date it became due. Stone v. Pettus, 47 Tex. Civ. App. 14, 103 S. W. 413.

The Constitution provides that, when no rate of interest is specified in the contract, the rate shall not exceed 6 per cent, and we do not deem it improper to hold that as to that legal rate not named in the contract the county commissioners’ court could'without an infraction of the terms of section 55, art. 3, of the Constitution, accept the interest after its due date, and not exact interest thereon, and evidently both parties in the settlement made in 1895 accepted the $8,460 paid as interest in full payment of all interest due. Compound interest was not provided for in the contract, and did not seem to be contemplated by the parties. -We are of opinion, therefore, that, by the terms of the compromise, George West paid all of the interest due on the note up to the payments made in 1895, and that the $10,000 paid on the principal should be credited thereon, and that from the date of that payment interest at 8 per cent, per annum should be calculated on the balance of the unpaid principal, that is, $10,000, and that no interest should be calculated on interest on which default was made beginning at the time that the annual interest of each year became due.

We sustain appellants’ contention that, after the maturity of the note, on June 10, 1894, interest should not be paid on unpaid annual installments of interest. There is no provision in the note indicating that interest should be paid annually, as provided in the note, and there are no words continuing payment of interest after the due date of the note for the principal. As said in the case of Wilson v. Kelly, 19 S. C; 160, construing the continuance of annual payment of interest after the due date of the note:

“These cases determine that the question is one of intention to be deduced from the terms of the instrument upon which the question arises. If the promise is to pay a given amount at or within twelve months from date, with interest payable annually, then, in order to give the words italicized any force or effect at all, it is necessary to conclude that the intention was that the interest shall continue to be payable annually after as well as before maturity; but if the promise is to pay in installments extending over a period of two or more years, or to pay the whole sum two or morq years after date, with interest from date, payable annually, then those words may be given full force and effect without extending that mode of calculating the interest beyond the maturity of the bond, and hence the computation of interest with annual rests will then cease, and from that time only simple interest on the amount then due is chargeable, unless there are other words in the instrument—for example, ‘until the whole be paid,’, or other equivalent words—indicating an- intention that interest should continue to be payable annually as long as the debt or any part thereof remained unpaid.”

That ease meets the facts of this case, in which the principal became due in June, 1894, and it would be unreasonable to suppose that it was intended that on the due date of the note the maker of the note was obliged by the terms of his contract to pay interest for twelve months in advance. The intention was that the principal be paid on June 10, 1894, and it was not contemplated that interest should be paid after that time. The note was due at any and all times after June 10, 1894. As said by the Rhode Island court in Wheaton v. Pike, 9 R. I. 132, 98 Am. Dec. 377, 11 Am. Rep. 227:

“We think, however, that upon principle, where, at least, the note is like the one here in suit, the rule does not properly extend to interest accruing after the principal has matured. After that, both the accruing interest and the principal are due, not on a particular day, but every day, until they are paid. The amount of the judgment in this case, therefore, should be the amount of the principal of the note, with simple interest thereon to the present day.”

Numerous authorities support the decision. Following the decisions cited, which we conclude are reasonable and sound, we are of opinion that Cameron county should recover from the executors of the George W. West estate the sum of $10,000 principal, with interest thereon at 8 per cent, from February 12,1895, to date.

Presumptions are indulged in the absence of facts, and there is no basis for a conclusive presumption of payment of the balance of the note by reason of the lapse of time, because the uncontroverted facts show that it has not been paid. Neither can the lapse of over 30 years, filled with inaction on the part of Cameron county, bar the claim by laches or limitation. The law holds otherwise, although the rule in" this instance has inflicted a great wrong upon the estate of George W. West, and will cause the payment of a large sum of money that could have to a great extent been avoided by prompt action upon the part of the county. There can be, and is, no reflection upon the citizenship of Cameron county in the premises, for, if public rights were not protected against the inaction, if not neglect, of officers, great injury might be suffered, and great wrong perpetrated on the people. A heavy burden has been placed-upon the estate of a dead man by the long neglect to assert the rights of the county, but, under such circumstances, it cannot be avoided.

The legislature cannot create a presumption of payment of a note given for purchase money, as against the state or any of its constituent parts, and permit commissioners’ courts to accomplish by conclusive presumptions of payment arising from inaction and neglect of the public interest what they are forbidden by the Constitution to do directly. Const, art. 3, § 55. The Legislature cannot by statute make certain acts or a certain failure to act on the part of a county, against which statutes of limitation have no force, constitute a conclusion of the payment of a note and the cancellation of a lien on property for the purchase money. Any such presumption could be removed by proof. Clem v. Evans (Tex. Com. App.) 291 S. W. 871, 51 A. L. R. 1135. We will not attempt to reconcile the opinion in the case cited with that in McKinney v. Freestone County (Tex. Com. App.) 291 S. W. 532, in which it is held in one part of the opinion that article 5694, Vernon’s Sayles’ Ann. Civ. Stat. 1914, created a conclusive presumption of payment of purchase money of land by a lapse of four years from the due date of the vendor’s lien note, and in another place holds that the county could remove the presumption of payment of the note and ex-tinguishment of the vendor’s lien by proof. The Supreme Court did not approve the rulings of the Commission of Appeals, but merely approved the result, and ordered:

“Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed, as recommended by the Commission of Appeals.”

Article 3, § 55, of the Constitution, seems to have been lost sight' of in the endeavor of the Commission of Appeals to apply the law of conclusive presumptions to debts due the state or county, and to vendor’s liens retained by either. The Constitution denies the Legislature the power “to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part, the indebtedness, liability or obligation of any incorporation or individual, to this state, or to any county or other municipal corporation therein.” That provision of the Constitution is broad enough to cover a statute that would by its operation, whether it be made as to create a period of limitation or rule of evidence, and could not be permitted “to release or extinguish, or to authorize the releasing or extinguishing, in whole or in part,” a debt or obligation to a state or county. The law in question was passed in 1913, when the provision of the Constitution in question was in effect.

If it be conceded that the statute creating a “conclusive presumption” that a debt due on purchase money for land, and the vendor’s lien reserved to secure payment, has been paid and extinguished after the lapse of four years from due date, is constitutional as applied to the sovereign or its subdivisions, it would be in the face of common sense to hold that it could be applied where there is not only admission, in effect, that the debt has ■ not been paid, but where it is shown by the judgment of the commissioners’ court that it has not been paid. A presumption of no kind can arise except in the absence of facts, and, while the Legislature might declare a presumption of law based on the failure of the holder of a note to enforce payment for four years after the debt became due, still, when the pleadings and evidence show that the debt is not paid, it creates an absurdity to indulge in such presumption.

The act of April 3, 1913 (Acts 1913, c. 123), was not passed as a rule of evidence, but as a statute of limitations. It was enacted as an amendment to articles 5693, 5694, and 5695, of chapter 2, title 87, Revised Civil Statutes of Texas 1911, and was a statute of limitations pure and simple. In its provisions it was in no wise different from any other statute of limitation, and, if the state or any of its subdivisions can be barred by its provisions, then they can be barred by any other statute of limitations by calling it a rule of evidence. It was looked on as a part of the law of limitation, and was placed in the Revised Statutes of 1914, under the head' of limitations. All that part of the statute of 1913 stating the effect of the bar of the statute creating a “conclusive presumption” is mere surplusage, and "adds nothing to the statute. The foundation of every statute of limitations as to debts is' the presumption of payment, and there-is no peculiar significance in the declaration of the Legislature in the statute of 1913 as to “conclusive presumptions” as to payment. It is not eVen good ballast. There is no intimation in the caption or in the body of the statute that would justify that the statute of 1913 was intended to apply to rules of evidence, but it was evidently intended as an amendment, as it stated, to a statute on limitations. It does not affect the state or any of its subdivisions, and we do not propose to read into it anything that would destroy any rights of the sovereign state or any of its subdivisions.

Cameron county is before this court claiming through its petition that no payments were made on the note executed by George West' in 1884, when it had accepted payments from him of $10,000 on the principal and $8,460 as interest. It would be unconscionable to entertain such a proposition. It is not true that the sum of $26,760 payment was not shown by the answer. It matters not for what purpose the last payments were made; it matters not that the county obtained $18,460 on an invalid contract, the county received the money and used it, and all the rules of equity, good conscience, and upright dealing .would require that the appellants have credit for it.

The judgment of the district court is reversed, and judgment is here rendered that Cameron county recover of and from the estate of George W. West, deceased, the sum of $10,000, principal, with interest thereon at the rate of 8 per centum per annum from February 1, 1895, and that appellee pay all costs of the appeals in this case.
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