source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    EVANS v. WILLIAMS et al.
    (No. 5688.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 8, 1916.
    On Motion for Rehearing, March 7, 1917. Further Rehearing Denied April 18, 1917.)
    1. Judgment <©b=91 — Consent Judgment — Intent oe Parties.
    Where a consent judgment provided that the trustee might sell the lands for the best price obtainable within his discretion, for part cash and the balance secured by vendor’s lien notes, the court cannot read into the judgment a provision for sale at the reasonable market value, since the judgment is in effect a contract between the parties which is not ambiguous, and the intent of the parties must therefore be gathered from its terms.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 150.]
    2. Judgment <§^>919 — Suits to Enforce — Evidence — Fraud.
    In a suit based on a consent judgment, appointing a trustee to sell lands, in which the judgment creditors alleged fraud by the trustee in making the sale, evidence as to value of the land sold was admissible on the issue of fraud.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1750.]
    On Motion for Behearing.
    3. Appeal and Error <®^>1010(2) — Beview— Findings by Trial Court.
    The trial judge is the exclusive judge of the facts, and his finding will not be reviewed, unless it becomes a matter of law, because the finding is without any competent testimony to sustain it, or so overwhelmingly against the preponderance of the testimony as to amount to a lack of testimony.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3982.]
    4. Judicial Sales <©=>15 — Evidence—Beport by Trustee.
    In a suit by a judgment debtor to compel the trustee, appointed by the judgment to sell certain lands to pay the judgment, to convey to the debtor the residue of the lands after the sale of a portion for a price sufficient to pay the judgment, the cash payment 'having been advanced to the purchaser by the judgment debtor, which sale the judgment creditors refused to approve, because the price was so exorbitant that there was not sufficient security for the deferred payments, evidence held to sustain the trial court’s finding that the trustee did not report to the creditors that he had in the exercise of his discretion approved the sale, so as to require the creditors to elect whether to ratify the sale and accept the cash payment and notes, or to take the land at the price stated, but that the trustee had merely reported that he had received an offer to purchasej and had asked the creditors for advice with reference thereto.
    [Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. § 31.]
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Action by W. O. Evans against Lizzie E. Williams and others. Judgment for defendants, and plaintiff appeals.
    Judgment affirmed on rehearing.
    Nelms & Platt, of Groveton, W. B. Tea-garden, of San Antonio, and W. B. Garrett, of Austin, for appellant. Hutcheson & Hutcheson, of Houston, for appellees.
   Bindings of Fact.

JENKINS, J.

On May 11, 1914, the following agreed judgment was entered in the district court of Travis county:

“Lizzie E. Williams et al. v. W. O. Evans et al.
“No. 29979. May 11, 1914.
“This cause being on trial, the parties, plaintiffs and defendant, on this day came before the court and announced to the court that they had agreed on a judgment to be entered in this cause, whereupon the cause was withdrawn from the jury, and the following judgment is entered by agreement of the parties and adopted by the court, to wit: That judgment be and the same is hereby rendered in favor of the plaintiffs Lizzie E. Williams and H. G. Williams for the sum of $37,000, the same to bear 6 per cent, interest from this date, and the same to be a charge and lien against the following described lands and real estate, situated and lying in Trinity county, Tex., to wit: [Here follows a description of 14 tracts of land, including the 875 acres hereinafter mentioned, and aggregating nearly 4,000 acres.] And that said land shall be sold and the proceeds thereof applied to the payment and discharge of the amount of said judgment above stated, with interest.
“It is further ordered and decreed by 'the court, as per sai'd agreement, that L. P. Atmar, of Groveton, Trinity county, Tex., be and he is hereby appointed as special trustee to take charge of said lands above described at once and have control of same and to make sales of said lands at private sales for the best price obtainable, within his discretion, and said lands to be sold in bulk or in small tracts, as is deemed best within the discretion of said trustee, and in making sales of said lands, said trustee shall receive not less than one-third cash of the sale price, and the deferred payments to bear not less than 6 per cent, interest and secured by vendor’s lien on the land sold, and in the event the said L. P. Atmar should refuse to act as said trustee or become otherwise disqualified, the judge of this court shall appoint a trustee in his stead, who shall have and possess all of the powers as given herein to the said L. P. Atmar. It is hereby made the duty of the said trustee L. P. Atmar or his successor to make-report of each sale of said lands, giving the price and name of purchaser, to the law firm of Hutcheson & Hutch-eson, of Houston, Tex., .who shall at once approve the sale or take the property at same price and credit on judgment. It is further ordered and decreed that the said trustee L. P. Atmar, or his successor shall have 12' months from this date within which to sell said lands as provided herein, and if all of said lands are not sold within said time any balance left shall be deeded to plaintiffs in full satisfaction of said judgment.
“It is also ordered and decreed by the court that, as each sale is made by the said trustee, the' amount of the cash money received, and the amount of the purchase-money notes, shall then and there be applied and operate as a credit on the sum above stated as the judgment of the court, and that the said cash, together with the notes secured by vendor’s lien, indorsed by 'said trustee without recourse, shall be delivered to the said H. G. Williams and Lizzie E. Williams, or their attorneys of record Hutcheson & Hutch-eson, less such reasonable expenses as may be necessary to incur by said trustees in the payment of taxes or other charges incident to sales, not including any commissions.
“It is further ordered and decreed by the court that in the event the proceeds of the sale of said lands, including cash and vendor’s lien notes, should amount to more than enough to pay off and satisfy the said sum above stated, and accrued interest, after the payment of such expenses as above referred to, then any such sum over and above said amount and accrued interest shall be paid and turned over to the said defendant W. O. Evans by the said trustee. '
“It is further ordered and adjudged by this court that in the event said lands should not sell for enough to pay this judgment and interest and the costs incident to the sale of said lands as above mentioned, the said W. O. Evans shall be and he is hereby fully and absolutely discharged from any and all further liability under this judgment, and in no event is he to be held personally liable on said judgment.
“It is further ordered by the court that the title to all of said land is hereby vested in tlm said L. P. Atmar, trustee, or his successor, fOT the purpose of selling said lands, and carrying-out this decree; all the title and interest in said lands being hereby divested out of the said Lizzie E. Williams and H. G. Williams and the said defendant W. O. Evans for said purpose.
“It is further ordered and adjudged by the court that the plaintiffs Lizzie E. Williams and H. G. Williams take nothing as against the defendant W. O. Evans in their suit on the said note for $6,000 and on the note of $12,500 sued on in this case, ■ and as to both of said notes and indebtedness the same are hereby canceled by the court and ordered surrendered to said W. O. E'vans; and it is further ordered that the policy of insurance on the life of said W. O. Evans for the sum of $12,500 in - being No.-, be and the same is -hereby ordered by this court to be surrendered and delivered by the plaintiffs to the said defendant, W. O. Evans, free from any and all liens or incum-brances whatsoever, by reason of the execution and delivery of said note for $12,500, dated September 18, 1911, or otherwise.
“It is further ordered and adjudged by the court that in the event it should develop that ■ there are any claims or charges whatever against the real estate above described, such as taxes, vendor’s lien notes, or interest charges, up to this time, then all such charges or claims shall be and are hereby charged against and applied as a'credit on the judgment above stated herein.
“It is further ordered and adjudged by the court that the plaintiffs Lizzie E. Williams and I-I. G. Williams take nothing as to their suit against the defendant A. J. Wood, and that said defendant A. J. Wood go hence without day and recover all costs herein.
“It is further ordered by the court that the plaintiffs herein and the defendant Evans each pay one-half of the costs herein.”

This suit was brought by appellant to enforce said judgment, by compelling appellee Lizzie Williams (H. G. Williams having died) to accept 875 acres of said land in discharge of said judgment. Appellant alleges that the trustee Atmar accepted said trust, and within the year mentioned in said judgment sold the 875 acres of land, referred to, to one John Shupak for the sum of $45 per acre, one-third cash, the balance by vendor’s lien note, payable on or before 10 years after date, bearing interest at the rate of 6 per cent, per annum; that said sale was made by said trustee for the best price obtainable within his discretion; that on the same day he reported said sale to the firm of Hutcheson & Hutcheson, stating the price and the name of the purchaser; that said Hutcheson & Hutcheson and appellee Lizzie E. Williams refused to approve said sale, and have refused to take said land at the price offered for the same.

Atmar, who was made a party defendant, answered, disclaiming any interest in the litigation, and that his connection therewith was in accepting a proposition to purchase the 875 acres by Shupak, which deal was never closed on account of the objections thereto by Hutcheson & Hutcheson and appel-.lee Lizzie Williams, and that he has in his possession no money arising from said contract.

J. O. Hutcheson, Sr., J. O. Hutcheson, Jr., and W. Palmer Hutcheson, composing the law firm of Hutcheson & Hutcheson, in addition to a general demurrer and general denial, answered that they had no financial interest in the judgment of the district court of Travis county hereinbefore set out, nor in the lands involved in this suit, and that their action in reference to the matters complained of was in the capacity of attorneys and representatives of appellee.

Appellee Lizzie Williams, in addition to a general demurrer and general denial, answered that, if the trustee Atmar did approve the offer of John Shupak, submitted to him on April 12, 1915, that he did not, as required by the decree, make report of said sale of said land, and did not therefore invoke the action on the part of said firm with knowledge that the offer submitted to them was accepted by the trustee, and that they were therefore not required to either approve the same or take the property at the price offered and credit the same on the judgment. On the contrary, that the only information given to them by the trustee was that an offer had been made, and that their opinion on the matter was desired, and that the report made by the trustee was intended to have that effect, or else was fraudulently or carelessly worded, and thus failed to reveal the true state of facts, and that they never construed said report as an attempt on the trustee’s part to report said offer to them for their approval, and that they did not understand that the said trustee had approved such sale, nor that they were required to exercise their election by approving the same or taking the land at the price offered. Appellee further alleged that, even if said offer was approved by said trustee, it was not such an offer as was contemplated by the decree, for the reason that the actual purchase price contemplated to be paid by the purchaser was $26,250, and that the so-called one-third cash was a sum of money contributed by appellant for the purpose of enabling Shupak to apparently comply with the terms of the decree in the payment of one-third cash, and asked that, if the court should find that the trustee otherwise complied with the terms of the agreed judgment, it find that the only sum offered for said land was $26,250, and that after crediting the same on the judgment there will be left due $13,125, and that by the terms of the judgment, this amount not having been paid prior to the expiration of the year, as therein provided, ap-pellee is entitled to the remainder of the land.

Appellee further alleged that so much of the agreed judgment as authorized the trustee At-mar to make sale of said land at private sale for the best price obtainable within his discretion only authorized a sale which would represent the fajr and reasonable market value of the land sold, so that the vendor’s lien notes to be credited on the judgment would be amply secured in the event of default by the purchaser, and that it did not authorize the trustee to sell said lands or any part thereof in excess of the market value of the land, and that Atmar, if he approved said offer, did so in violation of the power conferred upon him by said decree, and in fraud of the rights of the judgment plaintiff, because the proposed purchaser was not such a party as could in the proper exercise of his discretion as a reasonably prudent man, have justified the said Atmar in believing that the said deferred payments would be paid, he being a man of very little means, and his financial status at that time being wholly insufficient to guarantee, or even indicate, that said payments would be made; that in fact the 875 acres of land were of the value not to exceed $8 to $10 per acre; that if Atmar did in fact approve and accept said offer at the time it was made to him, such action on his part was the result of a fraudulent conspiracy between the said Atmar and the said Evans and the said Shupak to deprive the judgment plaintiff of her just rights; and that the appellant, the trustee Atmar, and the said Shupak entered into a fraudulent conspiracy to deprive appellee of such rights.

The court, trying the case without a jury, filed its findings of fact and conclusions of. law as follows:

“Findings of Fact.
“(1) I find that on the 11th day of May, 1914, there was entered in this court, in cause No. 29,979, the judgment and decree set out as an exhibit to plaintiff’s petition and introduced in evidence in this case; reference being made to said judgment for the terms thereof.
“(2) I find that L. P. Atmar, appointed therein as trustee, accepted the trust imposed upon him by the terms of said judgment.
“(3) I find that the 12 months fixed in the decree, during which time the trustee, L. P. Atmar, should make sales, expired on the 11th day of May, 1915, without any sale of said land or any part of same having been made.
“(4) I find that a short time prior to April 12, 1915, the said Evans, fearing that the time during which sales might be made would expire without sufficient sales having been made to pay off said judgment, and for the purpose of attempting to satisfy in full the judgment held by Mrs. Williams against him, and at the same time to have released to himself, clear of such lien, the bulk of the lands covered by such lien, procured one Shupak to agree to purchase 875 acres of said land upon the following terms, to wit: That the said Shupak should purchase 875 acres of said land for a consideration of $45 per acre, and the said Evans was to make a present to the said Shupak of the sum of $13,-125, which sum the said Shupak would tender as the one-third cash payment on said land, as provided by tho decree; for the balance of the agreed purchase price for said land said Shu-pak was to execute a note due on or before 10 years after date, bearing 6 per cent, interest, and to be secured by a vendor’s lien upon said 875 acres of land. -It appears that it was contemplated by said parties that the interest on said note should be payable annually, but it does not appear whether or not said notes should provide for the maturing of the principal of same in the event default should be made in the payment of any installment of annual inter-
“(5) I find that on the 12th day of April, 1915, said Evans and Shupak approached the trustee, Atmar, and reported the terms of the above agreement to him, at the same time tendering to the said trustee a sight draft drawn by Evans upon his father for the amount of the one-third cash consideration.
“(6) I find that said Atmar, trustee, agreed to report said proposed sale to the firm of Hutche-son & Hutcheson for their approval, and that said trustee at such time was willing to make such sale, provided the firm of Hutcheson & Hutcheson approved the same; but said trustee did not attempt to exercise any discretion in such matter, but referred the whole matter to the firm of Hutcheson & Hutcheson, with the intention of being guided by their discretion and their judgment in determining whether or not such contemplated sale should be made.
“(7) At the time such offer was made to the trustee, and submitted by the trustee to Hutche-son & Hutcheson, I find that the reasonable market value of said 875 acres of land was approximately $20 per acre, based upon a sale for cash, or for one-third cash, as provided by the decree, and that the sum of $45 per acre, as contemplated in the offer above referred to, was grossly excessive, and that such facts were known at the time to Atmar, the trustee, and also to Evans and Shupak.
“(8) I find that the firm of Hutcheson & Hutcheson, upon receipt of the trustee’s report of such proposed sale, refused to approve same, on the ground that the proposed price to be paid for said land was grossly excessive and fictitious, and because the notes which they would be required to take for the deferred payments would not be adequately secured. X further find that ■said firm of Hutcheson & Hutcheson acted in the utmost good faith in refusing said offer, and that in refusing same they had no intention of gaining any undue advantage over said Evans.
“(9) I find that, had said proposed sale to Shupak been made, the one-third cash proposed to be paid, together with the reasonable market value of said 875 acres of land, added to all of the property owned by Shupak subject to execution, would not have equaled the amount of the principal and interest due Mrs. Williams upon said judgment, and said transaction would have resulted in releasing from the operation of her lien much the larger portion of the lands covered by same, and at the same time would have required her to accept as security for her debt a tract of land entirely inadequate as security, based upon market values at the time.
“(10) I find that, at the time said offer was made by said Shupak, he, the said Shupak, hoped to be able to colonize said 875 acres of land with Bohemians, selling the same for ⅞1 nominal cash payment, with deferred payments extending over a long period of time, and hoped by making such sales and by having such purchasers cultivate and improve said lands to so enhance the value thereof as to be able in the course of 10 years to provide for the payment of the vendor’s lion note proposed to be given by him. However, I find that the ability of said Shupak to make such deferred payment depended upon such problematical and future contingencies as to render it entirely uncertain, and such security entirely inadequate.
“(11) I find that it was not the intention of the trustee, Atmar, in submitting to Hutcheson & Hutcheson the proposition made to him by Shupak and Evans, to place said Hutcheson & Hutcheson upon their election of either approving such proposed sale or themselves taking the land at the proposed price, and that said firm of Hutcheson & Hutcheson, upon receipt of such proposition, did not know or consider that they were being called upon to make such election.
“(12) I find that-Evans, against whom a draft for $13,125 was drawn, was solvent, and was good for the amount of said draft, and that said draft was considered by L. P. Atmar, trustee, _ at the time it was delivered to him, as the equivalent to cash, and that no objection was made to said transaction on the ground that the actual cash was not tendered. I find that the amount of said draft was equal to one-third of the purchase price of the 875 acres at $45 per acre.
“I further find that on April 12, 1915, the amount of the judgment and interest was $39,-035, and that 875 acres of land, at $45 per acre, amounted to the sum of $39,375.
“Conclusions of Law.
“I. I conclude that it was the intent and meaning of the decree appointing Atmar trustee that the said trustee should be empowered to make only such sales as that the land sold should be reasonably worth one-third more than the amount of the deferred payments due thereon, or at least that the land so sold should be worth a reasonable margin over and above the amount of the deferred payments, and that the trustee had no right or power to make any binding contract of sale at such an excessive or fictitious price as would leave no reasonable margin of security for the protection of the deferred payments.
“II. I further conclude that the proposed sale to Shupak, viewed in the light of all the facts, constitutes, if not an actual, at least a legal,, fraud upon the rights of the defendant Mrs. Williams, and I conclude that the firm of Hutcheson & Hutcheson and Mrs. Williams had the legal right under the decree to disapprove and reject said proposed sale, without being put to their election to take the land at the price offered, and that such rejection did not operate.to their prejudice in any particular.
“III. I further conclude that, the year during which said trustee was to make sales having expired without any sales having been made, under the terms of the decree the defendant Mrs. Williams is entitled to recover, as against the plaintiff Evans and the defendant L. P. Atmar, trustee, the title and possession of all said lands, and that the plaintiif Evans should take nothing by his suit.
“C. A. Wilcox, District Judge.

The findings of fact and conclusions of law and the judgment of the court were duly excepted to, as was also the action of the court in overruling appellant’s motion for new trial.

The uncontroverted facts show: (1) The entry of the agreed judgment, as above set out; (2) that Atmar accepted said trust; (3) that on April 12, 1915, within 12 months, from the date of said judgment, Shupak and Evans approached the trustee and stated to him that Shupak was willing to purchase 875 acres of said land at $45 per acre, and to pay one-third of the purchase price in cash, and give his vendor’s lien note for the balance, due on or before 10 years after date, with interest at the rate of 0 per cent, per annum. It was stated to the trustee at the time that appellant had made a present to Shupak of the one-third cash, in order to enable him to make such purchase, the purpose of Evans in so doing being to enable the purchaser to make the one-third cash pay- - ment, and to save the remainder of his land, :as provided in said judgment.

The evidence shows that Evans had been active in trying to assist Atmar to find a purchaser or purchasers, and that he was unable to do so by reason of the fact that none of the parties who desired to purchase any of said land were able to make the one-third cash payment. The one-third cash payment of $13,125 was deposited with Atmar, and he reported said sale to Hutcheson & Hutcheson, giving the name of the purchaser and describing the land sold, and asked for their approval of the sale. Hutcheson & Hutcheson refused to approve said sale.

The third finding of fact by the court, as above set out, is that Atmar did not make a sale of any part of said land prior to the 11th day of May, 1915. This is true in the sense that he did not execute any deed to any of said land; but he was not authorized by the decree to execute a deed without the approval of Hutcheson and Hutcheson. He made a contract for the sale of said 775 acres, which was all that he could do until such sale was approved; and, as the court finds in its sixth finding of fact, the trustee was willing to consummate such sale, provided the same was approved by Hutcheson & Hutcheson.

So much of the sixth finding of fact by the court, that the trustee did not attempt to exercise any discretion in such matter, but referred the whole matter to the firm of Hutcheson & Hutcheson, is not sustained by the evidence.

Witnesses vary greatly as to the market value of the land, but the evidence is sufficient to justify the finding of the court that its market value was approximately $20 per acre at the time Shupak agreed to purchase the same. The evidence further shows that Shupak was a Bohemian engaged in the land business, and that his purpose was to clear the land and put the same in cultivation, with a view of selling the same to Bohemians on long time at an advanced price, and that he acted in good faith in the matter.

The eleventh finding of fact by the court, that it was not the intention of the trustee, Atmar, in submitting to Hutcheson & Hut-cheson the proposition made to him by Shu-pak and Evans, to place said Hutcheson & Hutcheson upon their election of either approving such proposed sale or themselves taking the land at the proposed price, is not sustained by the evidence. We think so much of said finding as states that the firm of Hutcheson & Hutcheson, upon receipt of such proposition, did not know or consider that they were being called upon to make such election, is sustained by the evidence.

Opinion.

The first conclusion of law filed by the court- is to the effect that the meaning of the decree appointing Atmar trustee was that he should be empowered to make such sales as that the land sold should be reasonably worth one-third more than the amount of due deferred payments thereon. This conclusion of law is, in effect, that the decree required the trustee to sell the lands at their reasonable market value. This is reading into the decree a clause not contained therein. This judgment is a contract between the parties, and we do not think it is ambiguous in this regard. It plainly states that the land is to be sold by the trustee “at private sales for the best price obtainable within his discretion,” and that said land shall be sold in bulk or small tracts, “as is deemed best, within the discretion of said trustee.” Where a contract is free from ambiguity, the intent of the parties must be gathered from its terms. Curtain v. Churchhill, 126 Mo. App. 462, 104 S. W. 476. It was held in Kelly v. Corrington, 105 S. W. 1155, that where a party contracted to use his best judgment in efforts to furnish water, if he did so, he is not responsible for failure to furnish water, though his judgment may have been at fault. As between the parties, courts do not inquire whether they contracted wisely or foolishly. Hansen v. Yturria, 48 S. W. 795. The court cannot add to or take from an unambiguous contract. St. Louis v. Ry. Co., 228 Mo. 712, 129 S. W. 691. When parties agree that a matter arising under a contract shall be left to a third party, the decision of such party, in the absence of fraud or such gross mistake as to imply a failure to exercise any judgment in the matter, is binding upon the parties. Jones v. Gilchrist, 88 Tex. 88, 30 S. W. 442; Buchanan v. Gibbs, 156 S. W. 914; Zinc Co. v. Patterson, 79 Ark. 506, 96 S. W. 170; Carlile v. Corrigan, 83 Ark. 136, 103 S. W. 620; Railway Co. v. March, 114 U. S. 549, 5 Sup. Ct. 1035, 29 L. Ed. 255.

The appellant objected to all testimony with reference to the market value of said land, for the reason that the same was irrelevant and immaterial; and but for the allegation of appellees that the trustee, At-mar, in making the sale to Shupak at a price far in excess of the value of the land, was guilty of actual fraud, we would sustain appellant’s assignments of error with reference to the admission of such testimony. We think that the testimony with reference to the market value of the land was admissible upon the issue of fraud on the part of the trustee, but for no other purpose. The court did not make a finding upon the issue as to whether the trustee was guilty of actual fraud, but only found that the contemplated sale at $45 per acre was constructive fraud. There was evidence which would have supported a finding that the vendor’s lien to be executed by Shupak was good security for the amount of said note; and as Atmar was to exercise his discretion in making such sale, if he did so in good faith, there could be no constructive fraud. If he did not act in good faith, hut entered into a conspiracy, as alleged by appellees, to defraud Mrs. Williams of her security for her judgment, the transaction would be void.

Eor the reasons stated, the judgment of the trial court herein will be reversed, in order that the issue of fact as to the alleged fraud of the trustee may be determined by the court or a jury. By reason of the fact that the time in which the trustee was permitted to make sale having expired, and by reason of the further fact that the offer of Shupak not having been accepted, and the cash deposit made by him having been withdrawn, if judgment should be rendered for appellant, as prayed for by him, it would result in compelling Mrs. Williams to accept the land without the cash payment or the notes that were to be executed being received by her. This might work a hardship upon her, and would do so, if the land is worth no more than $20 per acre. Erom an equitable standpoint, she ought not to be compelled to receive said land in full payment of her judgment, if she and her attorneys acted in good faith in the matter, believing that a conspiracy had been entered into to unjustly deprive her of the security for her debt. On the other hand, if this transaction was in good faith on the part of Evans and Shupak and the trustee, to compel Evans to lose all of his land by reason of the time having expired in which the trustee could sell the same would seem to be inequitable as to him. The trial court, sitting as a court of equity as well as of law, we think has power to adjust the equities between the parties hereto ; and appellant prayed that the court should do so, if it did not sustain his view of the transaction.

We will not undertake to suggest to the trial court what its decree should be in the event it is found that all parties acted in good faith in reference to this matter; but it appears to us that, if all parties acted in good faith, justice might be done by giving a reasonable time in which Shupak might renew his offer, and perhaps in that event that appellee Williams be compelled to accept the one-third cash payment and the vendor’s lien notes, or, if Shupak should now be unable or unwilling to renew his oifer, that the trustee be given a reasonable extension of time provided in the decree for the sale of the land mentioned in said decree. But for the fact that there is an issue of fact remaining undetermined by the trial court, as herein stated, we would be inclined to reverse and render this judgment as above indicated, or, at least, we would make some effort to adjust the equities between the parties. For the reasons stated, the judgment of the trial court is reversed, and this cause is remanded for further proceedings in accordance with this opinion.

Reversed and remanded.

On Motion for Rehearing.

As will be seen by reference to the findings of fact by the trial court, set out in our opinion herein, the court, in effect, found that the' trustee, Atmar, never accepted the offer of Shupak, and reported to Hutcheson & Hutcheson that he had sold the 875 acres of land at the price and upon the terms stated, and called upon them to make their election to accept the proceeds of such sale, and credit the same on the judgment, or to take said land at the price offered, as under the terms of the agreed judgment he might have done in the exercise of his discretion, and in the absence of fraud. The finding of the trial court is, in effect, that there was no contract of sale, but only a report of an offer, as to which the trustee sought the advice of Hutcheson. The effect of our findings of fact is that these findings of the trial court were not supported by the evidence. In this, upon further examination of the record, we have concluded that we were in error. If there is any competent evidence to sustain the findings of fact by the trial court, it is our duty to sustain the same. The issues of fact are for the trial court. The jury, if there be one, and, if not, the judge trying the case, are the exclusive judges of the facts proven, and their finding will not be reviewed by an appellate court, unless it becomes a matter of law by reason of such finding being without any legal testimony to sustain it, or so overwhelmingly against the preponderance of the testimony as to amount to a lack of testimony to sustain such finding. This proposition is too well established to require the citation of authorities in its support.

On April 12, 1915, the trustee wrote to Oapt. Hutcheson, senior member of the law firm of Hutcheson & Hutcheson, as follows:

“Oapt. J. C. Hutcheson, Houston, Texas-Dear Sir: I am offered by Mr. John Shupak, a real estate man here, $45 per acre for 875 acres of the H. G. Williams land which is involved in the AVilliams-Bvans matter. The tract of land the party wants to buy is as follows: 369 acres of block No. 6, and 2SO acres of block No. 8, said blocks being the original subdivisions of the S. W. ⅛ of the I. Chapa league and 220 acres of the G. C. Shaw survey. Mr. Shupak offers to pay one-third cash, and the balance on or before ten years after date’, interest at the rate of 6 per cent, on deferred payments. Kindly advise me your opinion in the matter and authorize me to close the deal, and oblige,
“Tours very truly, [Signed] L. P. Atmar.”

To this letter Oapt. Hutcheson replied, expressing his surprise that an offer of $45 an acre should be made for the land, saying that it looked to him like a crazy proposition, and inquiring as to Shupak, and closing his letter as follows:

“In the meantime, write me what you think of the proposition, why the man makes such an immense offer at this time, and why he delays the balance of the payment so long.”

To this Atmar replied as follows:

“April 26, 1915.
“Capt. J. C. Hutcheson, Houston, Texas— Dear Capt: Your favor of the 24th inst. received, and I am advised that Mr. W. O. Evans is giving to Mr. Shupak the sum of $13,125 to make the cash payment on the 875 acres of land that said Shupak is trying to buy from the Williams estate, and that it is Mr. Shupak’s idea to get a bunch of Bohemians on the land, giving them what they make for the first two or three years, and in that way get it in a good state of cultivation, and by these means enabling him to then sell the lands at advanced prices. Mr. Shupak doesn’t own any considerable property, but he has been successful in colonizing a good many Bohemians in this section of the country. I haven’t a copy of the decree of the court at hand, but from memory I will state that I think it bears date of May 11, 1914. You will kindly advise me when you have had a report from Mrs. L. E. Williams, and oblige.
“Yours very truly, [Signed] L. P. Atmar.”

Capt. Hutcheson replied to this letter, declining to advise the deal, stating, among other things:

“That if the sale had been made under the terms of the judgment, Mrs. Williams would have received about $13,125 in cash, and she would credit, not only this $13,125 on the judgment, but also the balance of $26,150 on account of these notes, made on an exaggerated scale of prices for the land, and the vendor’s lien on which it should operate, and they would not possibly have realized more, according to my information as to the lands, than $7,500 to $10;000 on the market, if she had really been selling it, and would have had an excess judgment against a pauper for the whole value of the notes for Evans’ debt, and he would have had his judgment canceled, all of which would have been an iniquity which it is impossible for me to conceive of.”

On May 11, 1915, W. O. Evans wrote the trustee, demanding all of the land except 875 acres be deeded to him. On the same day the trustee wrote to Capt. Hutcheson, informing him of this demand, and that one-third of the purchase money had been tendered by Shupak at the time he offered to purchase the land. To this Capt. Hutcheson replied, quoting from the first letter written him by Atmar, and saying:

“Now there is no allusion to anything but an oiler by him, and no recital of a tender, nor is there any statement that you accepted the offer or the money subject to my approval, because in your letter you asked my views about it, and stated nothing that you had done, other than receive their offer”

—and asking for further information with reference to the tender of one-third of the purchase money, and offering to sell to Mr. Shupak the 875 acres for the cash sum of $13,125, without requiring him to execute any note for the balance of the purchase money, $26,150, and suggesting that the matter be taken up with Judge Wilcox, for him to interpret the judgment and the effect of this offer. This offer to sell the 875 acres was based on the theory that, the time having expired in which the trustee was to sell the lands, they became the property of Mrs. Williams. To this latter suggestion the trustee, Atmar, agreed.

Thereupon Evans filed suit in the district court of Trinity county to require the trustee to deed him the entire tract of land, less the 875 acres, making Mrs. Williams and Hutch-eson & Hutcheson parties to the suit. Hutch-eson & Hutcheson filed pleas in abatement for all parties. Mr. Palmer Hutcheson, a member of the law firm of Hutcheson & Hutcheson, went to Groveton, the county seat of Trinity county, to present the pleas in abatement, and prepared an answer for Mr. Atmar, to be filed in the case, should the pleas in abatement be overruled. This answer was submitted by Mr. Hutcheson to Mr. Atmar, and Mr. Palmer Hutcheson testified on the trial of this ease with reference to the same as follows:

“I went to Mr. Atmar’s office and explained to Mm that it was possible that the pleas might be overruled, and that, if so, it would be necessary to file answers at once for all defendants, to prevent default from being taken. * ⅜ ⅜ Mr. Atmar took the pleadings, and saw that the first two paragraphs were either copies literally or in substance of the plea in abatement, and read the third paragraph in my presence, and considered it before me, for some little time, and then made the statement that he did not like in this answer the statement ‘that the said lands only had a reasonable market value of approximately $4 per acre.’ I then took a pencil and put a parenthesis around that, and asked him if the balance was satisfactory. He then looked at it more carefully, if possible, and said that he preferred not to make the statement in the answer ‘that the price offered by the said Shupak was far in advance of the actual value of the lands involved,’ which immediately precedes the statement that they were only worth about $4, for the purpose of maintaining, as much as possible, a neutral attitude in this ease, and merely presenting the facts as to what he had done, without going into any question as to the value of the lands. I said, ‘All right, Mr. Atmar-,’ and then extended my paragraph — my parenthesis — so as to include the words ‘but he alleges that the price offered by the said Shupak was far in advance of the actual value of the lands involved.’ I then asked Mr. Atmar if that was satisfactory, and he said that it was. I said, ‘Now, Mr. Atmar, those pleas have to be ruled on, and as this is marked up some, I will not ask you to sign this in its present form, unless it becomes necessary at the time the pleas are overruled; you are right here, and I can get you to sign this, if I don’t get time to have it recast; if the pleas are sustained, the appearance day is off a month, and I will send you the answer, with corrections made, at my leisure,’ to which he assented at the time.”

This answer, after striking out that part objected to by Mr. Atmar, contained the following:

“With reference to the allegations of plaintiff’s petition as to an offer of purchase of certain lands by John Shupak, this defendant says it is true that such offer was made, as described in plaintiff’s petition, but states that he never, in the exercise of his discretion or otherwise, approved the offer made by said Shu-pak, and never agreed to sell or sold the lands offered to be purchased, and that he merely submitted said offer to the firm of Hutcheson & Hutcheson, as provided by the decree, who rejected the same, all of which is fully evidenced by the correspondence passing between the parties hereinbefore referred to, and which represent the only negotiations between said parties, material to and relevant to said proposed offer of purchase.”

Mr. Palmer Hutcheson further testified:

“Now, at the same time that I was in conversation with Mr. Atmar, I began discussing with him the question of the values of these lands independently of what he was willing to say in his answer, and I asked Mr. Atmar whether or not he actually thought those lands worth what was offered; he said he did not. I then asked Mr. Atmar what he thought was the value of those lands, and, after some meditation on the thing, he said he thought they were worth about $15 per acre; that is, the lands offered to be purchased by Shupak. I then said: ‘Well, Mr. Atmar, regardless of what is the legal effect of the depreo, if this decree had meant, and you had known that it meant, for you to pass on the matter in the exercise of your discretion, and that you should only submit to the firm such matters as you yourself approved of, or they would die a death without ever being submitted to the firm, what would you have done?’ He said, T could not have approved it.’ I said, ‘Could you, in justice to Mrs. Williams — you represent both parties — could you, in connection with your duties under this decree, have approved it, and would you?’ and he said, ‘No.’ ”

Mr. Palmer Hutcheson testified that he explained to Mr. Atmar that, in the event the pleas in abatement were overruled, it might be necessary to file an answer immediately to prevent judgment by default, and, if so, he would file for Mr. Atmar the answer which he had drawn with the erasures therein; but, if it was not necessary to file the same at that time, he would rewrite it, leaving out the objectionable part, to which Mr. Atmar agreed.

We think the testimony above set out is sufficient to sustain the finding of the court that there.was, in fact, no contract of sale made to Shupak, but only an offer, the acceptance of which depended on its being approved by Hutcheson & Hutcheson.

For the reasons stated, the motion for rehearing is granted, and the judgment of the trial court is affirmed.

Motion granted. Judgment affirmed.
      «te^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSÜND, J.

text:
    HULING et al. v. MOORE et al.
    (No. 5795.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 14, 1917.
    Rehearing Denied April 11, 1917.)
    1. Adverse Possession @=>S5(2) — Admissibility of Evidence — Deeds.
    Where defendants claimed title by adverse possession, but plaintiffs claimed they were only eotenants, deeds constituting defendants’ chain of title are admissible to show their adverse holding.
    [Ed. Note. — 'For othler cases', see Adverse Possession, Cent. Dig. §§ 501-503.]
    2. Evidence @=3366(1) — Admissibility of Deeds — Acknowledgment.
    A land certificate is not rendered inadmissible because it fails to show the seal of the officer taking the acknowledgment, or his recital that he affixed the seal.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1521, 1524, 1525.]
    3. Evidence @=>383(7) — Copies op Ancient Instruments — Admissibility.
    Certified copies of ancient instruments are entitled to the same weight as the ancient instruments themselves.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1608.]
    4. Evidence @=>70 — Power of Attorney-Presumption.
    The execution of a power of attorney under which an ancient instrument purports to have been made will be presumed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 91.]
    5. Public Hands @=>178(3) — Unlocated Hand Certieicates — Sale and Delivery.
    Unlocated land certificates are personal property, subject to verbal sale and delivery.
    [Ed. Note. — For other cases, see Public Hands, Cent. Dig. § 581.]
    6. Property <§==>9 — Unlocated Hand Certificates — Possession.
    Possession of unlocated land certificates is prima facie evidence of ownership.
    [Ed. Note. — For other cases, see Property. Cent. Dig. § 9; Evidence, § 78.]
    7. Evidence @s=70 — Unlocated Hand Certificates — Presumptions.
    Where an unlocated land certificate was transferred many years ago pursuant to a power of attorney recited in the conveyance, the transfer will be presumed to have been executed under sufficient authority.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 91.]
    8. Deeds @=>116 — 'Warranty Deed — After-Acquired Title.
    A general warranty deed conveys an after-acquired title.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 330.]
    9. Evidence @=>97 — Burden of Proof — Equitable Title to Real Property.
    One holding the equitable title to real estate has the burden of showing that his title is superior to the legal title.
    10. Husband and Wife @=>0(1) — Real Estate-Nature of Wife’s Rights.
    Where the legal title to real estate is vested in the husband, the wife and her heirs have only an equitable title.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 13-15.]
    11. Covenants <@=?48¡ — Special Warranty— Notice of Defects.
    A special warranty deed does not charge the grantee with notice of an outstanding equitable title.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. § 48.]
    12. Vendor and Purchaser @=3238 — Bona Fide Purchasers.
    Where title to real estate vests in a purchaser for value without notice of an outstanding equitable title, persons claiming under him acquire a valid title, although they had actual notice of the outstanding equity.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 580-582.]
    13. UlMITATION OF ACTIONS @=3187 — PLEADING— Statutory Exceptions.
    Rev. St. 1911, arts. 5677, 5678, providing that possession of land shall not be adverse in certain cases unless fenced, etc., constitutes matter in avoidance of the limitation statute, ■which need not be negatived by the party pleading limitations.
    [Ed. Note — For other cases, see Limitation of Actions, Cent. Dig. § 696.]
    14. Adverse Possession <@==>19 — Statutes— Construction.
    Rev. St. 1911, arts. 5677, 5678, providing that possession of land in certain cases is not adverse unless inclosed, etc., applies only to the 10-year, and not to the 5-year, statute.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 99-105.]
    15. Adverse Possession <@=>57 — Sueeiciency oe Evidence.
    Evidence held to establish adverse possession under the 5-year statute where the property, together with some other tracts, was fenced on three sides, the other side being bounded by a river which usually kept in the cattle, stock was grazed upon .it, portions cultivated, and taxes paid.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 277, 278, 655, 667, 687.]
    16. Adverse Possession <@=>31 — Notice oe Adverse Claim — What Constitutes.
    The registration of defendants’ conveyances and payment of taxes, as shown on .the tax rolls, together with their use of the land, held to conclusively charge plaintiffs with notice of their adverse holding.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 128-133.]
    17. Limitation 'oe Actions <@=>73(5) — When Statute Runs — Minor.
    Under the direct provisions of Rev. St, 1911, art. 5684, subdiv. 3, the statute limiting time to sue for recovery of real property does not run against a married woman until she. is 21 years of age.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 403.]
    IS. Limitation oe Actions <®=»80 — Interruption by Minority or Insanity.
    Where the adverse possession limitation statute commences to run against a person, his death will not interrupt its running, although his heirs are minors or of unsound mind.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 424-430.]
    19. Adverse Possession <@=>57— Sueeiciency oe Evidence.
    Evidence does not establish title by adverse possession under the 10-year statute, where over 5,000 acres were inclosed, but one-tenth of each survey was not cultivated as required by Rev. St. 1911, art 5678.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 277, 278, 655, 667, 687.]
    20. Appeal and Error <@==>643(1) — Amendment oe Record — Permission oe Appellate Court.
    Motion to amend the record presented the day preceding submission of the ease with no excuse offered for the delay will be overruled under rule 22 for Courts of Civil Appeals (142 S. W. xii), providing that parties should see before submission that the record is properly prepared, etc.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2791-2794.]
    Appeal from District Court, Maverick County; Joseph Jones, Judge.
    Action by Thomas B. Huling and others against G. Bedell Moore and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    John Dowell, of Houston, and O. R. Sho-lars, of Orange, for appellants. Lewright & Douglas, of San Antonio, and Ben V. King, of Eagle Pass, for appellees.
   MOURSÜND, J.

Appellants Thos. B. Hul-ing, by his guardian, and Maud Edgerton, joined by her husband, sued G. Bedell Moore and Elizabeth Blasdéll Moore to recover an interest of i»/82 in three surveys of land in Maverick county, known as survey No. 67, in name of Peter Rockerfellow, survey No. 68 in the name of James Eaves, and survey No. 69 in name of Robert Wheally, each calling for .738 acres of land. The petition first stated a cause of action in the form of trespass to try title and for rents, and then plaintiffs specially pleaded that they were the owners of said interest in the lands by virtue of the fact that said lands were the community property of Thos. R Huling and Sarah Hul-ing, his first wife; that Sarah Huling died in February, 1839; that Thos. B. Huling died about November 2, 1865; that their only son, Thos.. Huling, died about 1899; that plaintiffs are the only children and heirs of Thos. Hul-ing; that said Thos. B. Huling married again, and by his second wife had seven children ; that Thos. Huling inherited his mother’s half interest in the lands sued for herein, and said Thos. Huling and said seven children by the second wife jointly inherited the Other one half of the land; ¿at, therefore, Thos. Huling owned an undivided interest of *8/32 in said land, which was inherited by plaintiffs. Appellees answered by plea of not guilty, a general denial, pleas of limitation of 3, 5 and 10 years, and impleaded their warrantors,-and they adopted the answers of defendants.

Appellants replied to the answer with a general demurrer, special exceptions, and a general denial, and pleaded in avoidance of the pleas of limitation the coverture of plaintiff Maud Edgerton, and insanity of plaintiff Thos. B. Huling; also that plaintiffs and defendants were joint owners and tenants in common of the land sued for, and that defendants had never notified plaintiffs of holding adversely to them; also that the lands were situated in an inclosure containing more than 5,000 acres of land; that there was no fence around the lands sued for segregating it as required by law, and that the possession of defendants and those under whom they claimed had never been exclusive as they were joint users with others having lands in the inclosure in which such lands were situated. They also pleaded that defendants were not purchasers of said lands in good faith for value, but had actual and constructive notice of plaintiffs’ claim, and were joint owners and tenants in common, and could not be purchasers for value. Defendants, by supplemental answer, denied all of the allegations contained in plaintiffs’ supplemental petition. The court instructed the jury to return a verdict in favor of appellees, which, having been done, judgment was entered thereon that appellants tafee nothing by their suit.

On June 5, 1838, certificate No. 303'was issued to Thos. B. Huling, assignee of James Wheally, for one-third of a league of land, and certificate No. 302 for a like amount of land was issued to him as assignee of Peter Rockerfellow. On June 6, 1838, certificate No. 312 was issued to him as assignee of James Eaves for one-third of a league of land. Huling was a married man at the time he acquired such certificates. His wife, Sarah Huling, died in February, 1839, leaving surviving her her husband and her only child, Thomas Huling. Thomas B. Huling died November ‘2, 1865. His son, Thomas Huling, died approximately 14 years prior to the institution of this suit, leaving surviving him as his only heirs his two children, Maud Ed-gferton, wife of Parley Edgerton, and Thomas Huling, the plaintiffs in this cause; the mother of the plaintiffs having died prior to the death of said Thomas Huling. This suit was filed September 28,1914. Maud Edgerton was horn July 29,1882, and married when she was about 20 years of age. Plaintiff Thomas Hul-ing was born July 26, 1885.

On October 30, 1838, James Huling as attorney in fact for Thos. B. Huling transferred certificate No. 302 to Rafael de la Garza by conveyance reciting the delivery thereof to Garza. On November 12, 1838, James Hul-ing transferred certificates Nos. 303 and 312 to Samuel A. Maverick, and in the transfer recited the delivery of such certificates to said Maverick. This transfer contained a copy of the power of attorney by virtue of which James Huling purported to act for Thomas B. Huling, said power of attorney being dated August 12, 1838, and executed by Thomas B. Huling and Thomas H. Espy.

On December 30, 1838, Rafael Garza transferred certificate No. 302 to Peter Fohr, and on September 8, 1842, Peter Fohr transferred the same to Samuel A. Maverick. The certificates were located upon the lands in com troversy. On February 7, 1852, survey 68 was patented to Thos. B. Huling, assignee of James Eaves. On February 9, 1852, survey 69 was patented to said Huling as assignee of Robert Wheally. On October 4,1870, the will of Samuel A. Maverick was probated; he bequeathed half of his estate to his wife, Mary A., and the other half to his children, Sam, George M., Willie H., Mary B., and Albert. Mary A. Maverick was appointed independent executrix without bond and with power of sale. On July 15, 1873, survey No. 67 was patented to Thos. B.. Huling, assignee of Peter Rockerfellow. On January 3, 1876, Mary A. Maverick, in her own right, and as independent executrix of the will of Samuel A. Maverick, conveyed the three tracts of land to Albert Maverick. On January 11, 1879, Albert Maverick executed a power of attorney to W, H. Maverick, authorizing the sale and conveyance of his Texas lands. On May 22, 1882, Albert Maverick, by W. H. Maverick, attorney in fact, conveyed the three surveys to John T. Lytle, Thos. M. McDaniel, and P. W. Thompson, composing the firm of John T. Lytle & Co.

On May 16,1888, the will of Thomas M. McDaniel was probated, by which his entire estate was left to Josephine McDaniel, his wife. John T. Lytle was appointed independent executor without bond. On June 1, 1889, said Lytle, in his own right and as such executor, and Josephine McDaniel conveyed the three surveys to P. W. Thompson. On June 4, 1897, P. W. Thompson for himself and as survivor of the community estate of himself and Janet E. Thompson, deceased, conveyed the three tracts to T. O. Frost, J. P. Barclay, and J. T. Woodhull. On December 22, 1902, Barclay conveyed said surveys to T. O. Frost. On March 23, 1903, said Frost and Woodhull conveyed the same to P. W. Thompson and to F. V. Blesse as guardian of Walter, Mary, and Kenneth Thompson, minors. On March 21, 1903, said Thompson for himself and as survivor of the community estate himself and Janet E. Thompson, and F. V. Blesse as guardian of the estate of Walter, Mary, and Kenneth Thompson, conveyed said three surveys to G. Bedell Moore. On November 4, 1908, the will of G. Bedell Moore was admitted to probate, in which his estate was left to. his wife, Elizabeth B. Moore, and to any child or children which might survive him of such marriage. In 1909, by decree of the district court, Fifty-Seventh district of Bexar county, confirming partition of the G. Bedell Moore estate, the surveys were awarded to G. Bedell Moore, minor.

* The defendants also claim under the following chain of title: On June 1, 1854, Thos. B. Huling conveyed the Eaves and Wheally •surveys to M. H. Bowers, and on June 1, 1854, conveyed to' said Bowers one-half of one-third of a league out of the headright of Peter Rockerfellow, described as situated in Kinney county and patented to Huling; but date of patent' left blank. As the Rock-erfellow survey in controversy was not patented until 1873, we cannot identify the same as being the one conveyed to Bowers. On June 8, 1872, the will of W. H. Bowers was probated, by which his estate passed to his wife, Mary M., who, joined by her second husband, in 1892 conveyed the three surveys in controversy to Albert Maverick by special warranty deeds.

It also appears that on March 29, 1890, the children of Thos. B. Huling, by his second wife, conveyed to their mother, Elizabeth Huling, the lands in controversy, and on April 24, 1890, said Elizabeth Huling conveyed the same to O. F. Hodges; also that on May 8, 1893, in cause'No. 260, in the district court of Maverick county, entitled O. F. Hodges v. P. W. Thompson, judgment by agreement was entered in favor of Thompson for said lands.

The instruments above mentioned constituted the chains of title under which defendants claimed, and were all admissible in evidence, especially as limitation had been pleaded and it was contended that plaintiffs were cotenants, and that the facts were not sufficient to apprise them that the holding by defendants and their predecessors in interest was adverse to plaintiffs and plaintiffs’ father. The objections urged in assignments of error Nos. 2 to 8, inclusive, go to the legal effect of the instruments, and not to their admissibility. Sydnor v. Tex. Savings Ass’n, 42 Tex. Civ. App. 145, 94 S. W. 451. By the ninth assignment complaint is made of the admission of deed from P. M. Thompson and IP. Y. Blesse, guardian, on the ground that it is a quitclaim deed, and could not support the defense of limitation or that of innocent purchaser for value. The only deed by P. W. Thompson and IP. Y. Blesse, guardian, is the one to G. Bedell Moore, dated March 21, 1903, and we find that appellants have erred in designating it as a quitclaim deed, for it is a general warranty deed.

In determining the question whether the court ruled correctly in instructing a verdict for defendants, we will consider the legal effect of the conveyances in so far as is necessary to pass upon the theories advanced in support of the rulings of the court.

If the transfers by James Huling, purporting to be made as attorney in fact for Thos. B. Huling to Samuel Maverick and Rafael de la Garza are sufficient to pass title to the certificates therein described, it follows that the title held by the community estate of Thos. B. Huling and his first wife, Sarah Huling, was thereby divested, and plaintiffs are not entitled to recover. Said transfers were acknowledged by the maker thereof and duly recorded in 1838, and certified copies thereof introduced in evidence. The evidence was ample to show that the instruments had been acted upon by the grantees therein named and their successors. The objection that the record of the transfer to Maverick fails to show the seal of the officer who took the acknowledgment and recited that he affixed the seal is without merit. Ballard v. Perry, 28 Tex. 348; Witt v. Harlan, 66 Tex. 660, 2 S. W. 41. The copies were entitled to the same weight as ancient instruments as would have been given to the originals had .they been produced. Holmes v. Coryell, 58 Tex. 680; Wacaser v. Bank, 172 S. W. 737. The execution of a power of attorney under which an ancient instrument purports to have been made will be presumed. Garner v. Lasker, 71 Tex. 435, 9 S. W. 332; Jones v. Neal, 44 Tex. Civ. App. 418, 98 S. W. 417; McDonald v. Hanks, 52 Tex. Civ. App. 140, 113 S. W. 604; Robertson v. Brothers, 139 S. W. 657; Ferguson v. Ricketts, 55 S. W. 975. The transfer to Maverick contains a copy of the power of attorney under which Jas. Huling purported to make such transfer, reading as follows:

“Know all men by these presents, that, we, James B. Huling and Thomas H. Espy, do by these presents constitute and appoint James Huling our true and lawful attorney to sell, locate, survey and obtain titles to any of our certificates of land where we are assignees; to let out on the shares apart and to obtain titles to the same and to do anything as regards the aforesaid certificates and it shall be binding on us and our heirs as though done' by ourselves in our own proper persons.”

Said power of attorney was dated August 12,1838, and the transfer to De la Garza was made on October 30, 1838, and appellants contend that we must find that the transfer to De la Garza was also executed under such power of attorney and that both transfers should be held insufficient to transfer the title of Thos. B. Huling because the power should be construed only to authorize the sale of certificates held by Espy and Huling jointly. The transfer to De la Garza contains neither copy nor description of the power of attorney under which it was made.

Unloeated land certificates are held to be personal property subject to verbal sale and delivery. Stone v. Brown, 54 Tex. 330; Crosby v. Ardoin, 145 S. W. 717. The transfers recite delivery of the certificates, and the field notes of all the surveys prove that Maverick held the certificates in 1848 when the surveys were located. It has been held that possession of unloeated land certificates is prima facie evidence that the same are owned by the person ’having such possession. Alford Bros. v. Williams, 41 Tex. Civ. App. 436, 91 S. W. 636. See, also, Hill v. Templeton, 29 S. W. 537. As Thos. B. Huling could sell his unloeated certificates by verbal sale and delivery, he could deliver them to James Huling and verbally authorize him to sell them, and the possession by James Huling of the certificates was prima facie evidence of his power to dispose of the same. So far as the transfer to De la Garza is concerned, there is nothing on its face to disprove that the power existed, and in view of its age and of the delivery of the certificate, its location, etc., the law indulges the presumption that the transfer was executed by virtue of a legally sufficient authorization. That presumption cannot, be destroyed by proof that other certificates were sold to another person by virtue of an insufficient power of attorney. When we consider the transfer to Maverick, however, which purports to be executed by virtue of the power of attorney therein copied, we are confronted with a serious question. See Gilbert v. How, 45 Minn. 121, 47 N. W. 643, 22 Am. St. Rep. 724; Devlin on Real Estate (3d Ed.) § 381. In view of the fact that, even if the transfer to Maverick should be held not to divest the title of Thos. B. Huling and his first wife, the giving of the peremptory instruction must be sustained on other grounds, we find it unnecessary to decide the question thus presented.

If the transfer to Maverick did not divest the title of Thos. B. Huling and wife, then on June 1, 1854, Thos; B. Huling, to whom surveys 68 and 69 had been patented, held the legal title to said surveys. Such legal title then passed to M. H. Bowers by virtue of the deed to him by Thos. B. Huling, and passed to Albert Maverick by the deed from Bowers’ wife joined by her second husband. As Maverick had executed a general warranty deed to Lytle & Co., it follows that by virtue of such deed the after-acquired title, namely, the one obtained from Mrs. Bowers, passed to Lytle & Co., and his assigns, and is now held by defendants. If Thos. Huling, plaintiffs’ father, had any title to these surveys, it was an equitable one, and' the burden rested upon plaintiffs to prove that Bowers had notice of the title of their father at the time the deed was made to him by plaintiffs’ grandfather. This burden they wholly failed to discharge. In support of the proposition that Sarah' Huling and her heirs had only an equitable title, we cite the following cases: Mitchell v. Schofield, 106 Tex. 512, 171 S. W. 1121; Baldwin v. Root, 90 Tex. 546, 40 S. W. 3; Ferguson v. Dodd, 183 S. W. 391.

In support of the proposition that the burden of pi’oof rests upon the holder of an equitable title to show that his title Is superior to that of the holder of the legal title, which carries with it the burden of showing that the purchaser of the legal title had notice of the existence of the equitable title or that the purchaser of the legal title failed to pay value for the land, we cite Barnes v. Jamison, 24 Tex. 362; Baldwin v. Root, supra ; Rogers v. Houston, 94 Tex. 403, 60 S. W. 869; Teagarden v. Godley Lumber Co., 105 Tex. 616, 154 S. W. 973; Catrett v. Brown Hdw. Co., 86 S. W. 1045; Brown Hdw. Co. v. Catrett, 45 Tex. Civ. App. 647, 101 S. W. 559; Fergusoh v. Dodd, supra. In said case of Barnes v. Jamison the court was asked to instruct the jury that in order for the defendant Bundy to protect himself under his purchase from Walton he must have pleaded in his answer that Walton was an innocent purchaser for a valuable consideration without notice, and must prove that Walton had, in good faith, paid such valuable consideration. The court refused to give the instruction, and such ruling was approved by the Supreme Court on the ground that the legal title was in Bundy, and it was for plaintiff to show a superior title in himself. This case was cited with approval in the ease of Teagarden v. Godley, 105 Tex. 616, 154 S. W. 973. No attempt was made to prove that Bowers had notice of Thos. B. Huling’s first marriage, or that he failed to pay the recited consideration. If Bowers was chargeable with notice of the instruments under which Maverick claimed, such notice would not be notice of a defect in the title existing by virtue of the fact that Sarah Huling and her heirs had an equitable interest therein. Allen v. Anderson, 96 S. W. 54; Middleton v. Johnston, 110 S. W. 789. The deeds to Bowers were not quitelaim deeds, but conveyed the land itself, and the mere fact that they contained only a special warranty would not establish that he was not an innocent purchaser. Richardson v. Levi, 67 Tex. 359, 3 S. W. 444; Threadgill v. Bickerstaff, 87 Tex. 520, 29 S. W. 757. It is, of course, well settled that if a good title vested in Bowers as an innocent purchaser for value, such title could be availed of by parties holding under him, even though they had notice of Thos. B. Huling’s first marriage. Baldwin v. Root, supra; Long v. Fields, 31 Tex. Civ. App. 241, 71 S. W. 774; Francis v. Cornelius, 173 S. W. 951, and cases therein cited.

We therefore conclude that defendants were entitled to recover said two surveys upon the record title, even though the power of attorney recited by James Hailing be held insufficient, and his deed to Maverick, therefore, insufficient to pass the title of Thos. B. Huling and Sarah Huling. We are also of the opinion that the peremptory instruction must be sustained on the ground that defendants conclusively established title by limitation under the' 5-year statute.

Appellants contend the court erred in overruling their special exceptions to the pleas of limitation interposed by defendants, which exceptions were directed at the failure to allege that the inclosure embraced 5,000 acres or less, and that the lands were not entirely surrounded by a tract or tracts owned, claimed, or fenced by another. The ruling was correct. Montague County v. Meadows, 42 S. W. 326. The exceptions mentioned in articles 5677 and 5678, R. S., are matters in avoidance of limitation, unnecessary to be negatived by the party who pleads limitation. Besides, said exceptions apply only to the 10-year statute, and not to the 5-year statute. We will therefore pass to the discussion of the evidence relating to limitation.

In 1892 or 1893 the surveys in controversy were inclosed by P.-W. Thompson. The fence was a four-strand barbed wire fence surrounding the lands dn all sides, except where the same touched the Rio Grande river. The inclosure contained about 16,000 acres. The lands in controversy have been thus inclosed from 1892 to 1893 until the date of the filing of this suit There were several tracts of land in the inelosure not owned by defendants, and those under whom they hold, and the owners of which exercised dominion over their said lands and grazed stock thereon, but the inclosure was made and maintained by Thompson and his successors in interest, and with the exception of the few tracts mentioned as owned by others they exercised dominion over the lands therein situated, including the lands in controversy, claiming the same as their own and making use thereof for grazing stock of their own or of tenants continuously from the time the inclosure was first made until the time the suit was filed. It is also shown tliat a portion of tlie lands designated as vegas ánd lying along the Rio Grande was cultivated during all of this time, and cut off from the remainder of the pasture by a brush fence and other fences, which were opened up in the winter so as to permit stock to graze upon the vegas. Thompson and his successors in interest held said lands under deeds duly registered, and paid all taxes which accrued thereon during the time said lands were inclosed, as above stated. It was shown that the surveys in controversy were assessed by the estate of S. A. Maverick as early as 1871, and from 1877 to 1883, and from 1883 to 1889 by J. T. Lytle & Co., and thereafter by Thompson, but the payment of taxes prior to inclosing the land is not material on the issues of limitation, but is material on whether the facts were sufficient to put Thos. Huling on notice that Maverick and his successors in interest claimed all of the land.

As articles 5677 and 5678, R. S. 1911, relate only to the 10-year statute of limitations, the size of the inclosure will not prevent the acquisition of title under the 5-year statute. Dunn v. Taylor, 102 Tex. 80, 113 S. W. 269; Cunningham v. Mathews, 57 S. W. 1115; Hardy Oil Co. v. Burnham, 58 Tex. Civ. App. 285, 124 S. W. 221; Harris v. Bryson & Hartgrove, 34 Tex. Civ. App. 532, 80 S. W. 105. It is contended by appellants, however, that as there were several tracts of land in the inclosure owned by others, limitation did not apply. Said parties recognized the rights of appellees and those under whom appellees claim to dominion over the surveys in controversy and the other lands not claimed by said parties, and Thompson and his successors in interest down to and including defendants claimed as their own the lands in controversy and other lands in the pasture, except the few tracts owned by the parties whose title was recognized. It is well settled that this kind of possession is sufficient under our statutes.. Taliaferro v. Butler, 77 Tex. 578, 14 S. W. 191; Church v. Waggoner, 78 Tex. 200, 14 S. W. 581; Barker v. Newberry, 83 Tex. 431, 18 S. W. 815; Harris v. Bryson & Hartgrove, 34 Tex. Civ. App. 532, 80 S. W. 105; League v. Stock Co., 2 Tex. Civ. App. 448, 21 S. W. 307.

It is also contended that the inclosure was not sufficient because the Rio Grande river formed the western side of the same. One witness testified that cattle could come across the river, and would do it if they were used to doing so. The witness Staffel, who, together with T. B. Jones, used.the lands 5 years, testified that during such time the river was a solid running stream, and they considered it sufficiently broad to turn cattle ; that they had no trouble with cattle coming across from the Mexican side. He said that when the water was low cattle could cross, but they did not do it often; that ordinarily it was a sufficient barrier. The bottom land, about 1,200 acres along the river, was cultivated every year since 1892,- and even prior thereto, and the river formed one side of the indosure of such cultivated land. This shows that the river must have been a fairly effective barrier to stock, and in view of the other fences and the cultivation of the land the use of the river was such as to indicate' that it was relied upon to inclose the land. That appellants’ contention is without merit is established by our decisions. Dunn v. Taylor, 102 Tex. 87, 113 S. W. 269; Randolph v. Lewis, 163 S. W. 649; Dawson v. Groesbeeck, 183 S. W. 866.

It is also contended that plaintiffs and their father were joint owners and tenants in common with defendants and those under whom defendants hold, and that, therefore, limitation has not barred plaintiffs’ claim. We have described all the conveyances under which defendants claimed. These conveyances were on record in Maverick county. They showed that defendants, and those under whom they hold, claimed to own the entire surveys. The tax rolls showed a similar claim. We therefore conclude that appellants’ contention that plaintiffs and their father were not notified of the adverse claim is -without merit. The registration of the conveyances, tax rolls, and payment of taxes, in connection with the use of the land, conclusively charged appellants and their father with such notice. Church v. Waggoner, 78 Tex. 200, 14 S. W. 581; Humphreys v. Edwards, 89 Tex. 518, 36 S. W. 333, 434; Miller v. Gist, 91 Tex. 335, 43 S. W. 263; Eastham v. Gibbs, 58 Tex. Civ. App. 627, 125 S. W. 372; Puckett v. McDaniel, 8 Tex. Civ. App. 631, 28 S. W. 360; Byers v. Carll, 7 Tex. Civ. App. 423, 27 S. W. 190; Jacks v. Dillon, 6 Tex. Civ. App. 192, 25 S. W. 645.

As plaintiff Maud Edgerton was 21 years of age on July 29, 1903, limitation began to run against her from that date, under the provisions of subdivision 3 of article 5684 (R. S. 1911), as amended in 1895. Plaintiff Thos. Huling was 21 years of age on July 26, 1906, and limitation of 5 years was completed in 1911, unless he was of unsound mind during a part of such period of time. This suit was filed September 28, 1914. Said plaintiff was not adjudged to be of unsound mind until July 13, 1915. On October 31, 1912, he executed an instrument, described by plaintiffs as a power of attorney and contended by defendants to be a deed, giving and granting to C. E. Davis certain powers and rights with respect to lands owned by his grandfather. His sister testified he had been weak-minded all his life, but had grown worse the last 2 or 3 years. He had worked as a section hand and- in the sawmill business at $2 a day, and had belonged to the militia. This testimony and the other testimony is rather unsatisfactory so far as it is attempted to show unsound mind for tlie first 5 years after attaining his majority. However, we regard the issue as immaterial because, at the time the lands were first inclosed in 1892 or 1893, the witness’ best recollection being that it was in the fall of 1892, the father of appellants was alive, and his death did not occur until about 1900, so it appears that his title had .been lost under the 5-year statute of limitation prior to his death. In addition, if limitation began at any time before his death it would continue to run, as it will not be interrupted by death, even though the heirs are under disability of minority or unsound mind. Johnson v. Schumacher, 72 Tex. 338, 12 S. W. 207; Harris v. Wells, 85 Tex. 312, 20 S. W. 68; Moody v. Moeller, 72 Tex. 635, 10 S. W. 727, 13 Am. St. Rep. 839; Howard v. Stubblefield, 79 Tex. 1, 14 S. W. 1044. It therefore appears, conclusively, that the disabilities urged in behalf of appellants cannot affect the result of this suit.

We are of the opinion that the judgment of the trial court cannot be sustained on the theory that defendants conclusively proved title by virtue of the 10-year statute of limitation. The inclosure contained more than 5,000 acres exclusive of the lands in controversy, and while there is evidence of cultivation and use of portions of the surveys for agricultural purposes, such evidence does not show that as much as one-tenth of each of the three surveys or any of them was thus used, and while there is evidence of residence by tenants on the vega lands,, the evidence does not show whether such residence was maintained upon the surveys in controversy or any of them, so it will not be necessary to determine whether there was such “actual possession” thereof as is meant in the concluding portion of article 5678.

The record fails to disclose that any objections were made by appellants to^ the giving of the peremptory instruction. This court has held in several cases that unless the record discloses that objections were presented before the charge is read to the jury, parties cannot assign the ruling of the court as error. Strong v. Harwell, 185 S. W. 676; McCall & Roemer, 186 S. W. 409; Pearce v. Supreme Lodge, 190 S. W. 1156. As the Courts of Civil Appeals are not in accord on the question, and a writ of error has- been granted by the Supreme Court in the case of Walker v. Haley, 181 S. W. 559, because of such conflict, we have deemed it best to state our views upon the merits of the case.

Assignments 22, 23, and 24 relate to matters which cannot affect our holding that the judgment should be affirmed. In addition, such assignments are not supported by bills of exception. A motion has been filed to amend the record so as to include a motion presented to the trial judge and filed below long after the record had been filed here, asking him to approve a bill of exceptions showing that C. E. Davis attempted to intervene when the testimony had been practically all introduced, and that his request had been denied, and that he had excepted to the ruling. The motion was refused, and the court indorsed thereon his reasons, which were that he had no authority to act at the time, and no means of verifying the bill, as he did not have the stenographer’s transcript. No diligence has been used in presenting the motion in this court to amend the record, such motion being presented on the day preceding the submission of the case, and no excuse being offered for the delay, and we therefore overrule the same. Rule 22 (142 S. W. xii) for Courts of Civil Appeals. Hill v. Kincaid, 193 S. W. 185, decided by this court, but not yet officially reported. In addition, if the motion was granted, appellants would derive no benefit, because we would not have such a bill of exceptions before us as is required by our statutes, for the bill was not approved by the judge, nor was it verified as provided in articles 2067 and 1607, R. S. 1911.

All the assignments of error are overruled, and the judgment is affirmed.
      <§=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes