text:
    ADAMS et al. v. WM. CAMERON & CO., Inc., et al.
    (Court of Civil Appeals of Texas. Texarkana
    Nov. 20, 1913.)
    1. Marriage (§ 40) — Presumptions.
    While persons seeking to trace their title to land through a marriage of the former owner have the burden of proving a marriage, it is presumed that the marriage was valid, and the burden of proof is upon those contesting its validity; the law presuming morality and innocence rather than their opposites.
    [Ed. Note. — For other cases, see Marriage, Cent. Dig. §§ 58-69, 79; Dec. Dig. § 40.]
    2. Mabbiage (§ 52) — Instructions—Weight of Evidence.
    While there is a presumption in favor of the validity of a marriage, that presumption is not conclusive, and hence, where there is testimony tending to rebut the presumption, an instruction on the presumption is properly refused; the whole matter being for the jury.
    [Ed. Note. — For other cases, see Marriage, Cent. Dig. § 91; Dec. Dig. § 52.]
    3. Husband and Wife (§ 267) — Sabe of Community Estate by Wife.
    Where a husband deserts his wife, she may sell the community estate to provide necessaries for herself, even though she has no minor children.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 929-938; Dec. Dig. § 267.]
    4. Appeal and Eeboe (§ 719) — Assignments of Eeboe — Necessity.
    Where plaintiffs claimed as the purchasers of a community estate from the wife, the impropriety of the charge, in making her right to sell the land to provide necessaries after the husband’s desertion contingent upon her having minor children to support, will not authorize a reversal, where the error was not assigned.
    [Ed. Note. — For other cases, see Appeal andi Error,, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig.
    5. TRiai. (§ 260) — Instructions—Refusal.
    The refusal of a requested charge covered by the charges given is not error.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 651-659; Dec. Dig. § 260.]
    6. Trial (§ 252) — Instructions—Applicability to Evidence.
    A requested charge having no basis in the evidence should be refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. §’252.]
    7. Trespass to Tey Title (§ 35) — Effect-Admissibility of Evidence.
    In trespass to try title, where defendants stipulated that plaintiffs held whatever title John E. Adams had at his death, and it appeared that he died in 1870, evidence tending to shofa the acquisition of an adverse title thereafter is inadmissible.
    [Ed. Note. — For other cases, see'Trespass to Try Title, Cent. Dig. §§ 50-52; Dec. Dig. § 35.]
    8. Bastards (§ 47) — Hearsay.
    In trespass to try title, where plaintiffs claimed as the purchasers of a community estate from the wife, and defendants contested the validity of the marriage,' a witness cannot testify that he heard his father, the alleged husband, .say that he fell out with his first wife, and took the vendor of the community estate and left the country with her, such evidence being pure hearsay.
    [Ed. Note. — For other cases, see Bastards, Cent. Dig. §§ 125-137; Dec. Dig. § 47.]
    9.- Evidence (§ 317) — Establishment.
    In trespass to try title, plaintiffs claimed the land as purchasers from the wife of the owner, and defendants contended that there was never any legal marriage. Held, that evidence of subsequent declarations by the owner that lie took the woman, who sold the land, and left the country with ■ her, deserting his first wife, is not competent to show that there was no marriage.
    .[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.]
    Appeal from District Court, Trinity County; S. W. Dean, Judge.
    Consolidated actions by A. J. Adams and others against Wm. Cameron & Co., Incorporated, and others and against R. B. Glover and others. From the judgment, plaintiffs appeal, and the first-named defendants cross-appeal.
    Reversed and remanded.
    A. J. Adams and others) heirs of John E. Adams, deceased, by a statutory suit of trespass to try title against Wm. Cameron & Co., Inc., C, L. Threadgill, B. A. Platt, and A. A. Allen, appellees, and C. C. Adams and others, and another' suit of -the same nature against R. It. Glover and others, sought to recover the ,J. B. Hartin survey of 640 acres of land in Trinity county. The two 'suits were consolidated, A trial of the consolidated suit resulted in a judgment as follows, so far as it neéds -to be'stated: I-n favor of C. C. Adams for .costs, on his disclaimer of any claim of an, interest in or title to- any part of the land; in favor of appellants against Wm. Cameron & Co., Inc., on their disclaimer, tor all except 206.7 acres of the land; in favor of appellants against Polly Johnson, "on her disclaimer, for ail except 50 acres,' and in her. favor for • the ■ 50 - acres; in favor of appellants against R. L. Glover, on .his disclaimer, for all the land except 98 acres, and in his favor for the 98 acres;' in favor of appellants against S. W. Magee, on his disclaimer, for all the land except 103 acres, and in his favor for the 103 acres; in favor of appellants against A. J. Walker and Azeline Walker, on their disclaimer, for all the land except two acres, and in their favor for the two acres; in favor of appellants against C. L. Threadgill, on- his disclaimer, for all the land except 40 acres; in favor of appellants against B. A. Platt, on his disclaimer, for -all the- land except 29% acres; in favor of appellants against Wm. Cameron & Co., Inc., for one-half of the 206.7 acres mentioned, and in their favor for the other one-half thereof; in favor of appellants against G. L. Threadgill for one-half the 40 acres claimed by him, and in his favor for the other one-half thereof; in favor of appellants against B. A. Platt for one-half the 29% acres claimed by him, and in his favor for the other one-half thereof; and in favor of appellants against all the other parties' defendant, on whom service was had, for all the land.
    The parties to the appeal as appellants are said A. J. Adams and others, plaintiffs in the court below, and as appellees said Wm. Cameron & Co., Inc., C. L. Threadgill, A. A. Allen, and B. A. Platt, defendants in that court.
    From agreements of the parties and testimony heard at- the trial it appeared that Solomon Adams, also known as Solomon Stone, in 1818, in Tennessee, married Vicey Mcllhaney, by whom he had three children. In 1824 or 1825 he abandoned his said wife and their children, leaving them in Tennessee, and going with a woman named Frances Schafer to Alabama, As explanatory of the conduct of said Solomon Adams in so abandoning- his wife, appellees were permitted to prove by the witnesses C. C. Adams and J. W. Upton, over appellants’ objection, which is assigned as error, that Solomon Adams after he married Matilda Waters, as hereinafter stated, and his wife Vicey after she married W, B. Bowen, as hereinafter stated, declared in effect that Frances Schafer was a hired girl in their family, and that Solomon Adams became offended at his wife and thereupon deserted her and left with Frances for Alabama. What, if any, relation Solomon Adams and Frances Schafer thereafterwards, and before 1837, bore to each other does not appear from the record. But it does appear that on November 11, 1837, they, as husband and wife, in, Dallas, county, Ala., by then-deed of that date, in consideration of $11,-380 paid to them, conveyed a tract of land in said Dallas county to one John Heard. According to the certificate of an officer of said Dallas county, attached to the deed, the execution thereof was acknowledged before him by said Frances on November 11, 1837. In the certificate Frances is described as the wife of Solomon Adams, and it is stated therein that as his wife she acknowledged the execution of the deed, after she had been examined by. the officer with reference thereto, apart from her husband. After the execution of this deed, during said year 1837, Solomon Adams, with Frances as his wife,, came to Houston county, Tex., where they lived together as husband and wife until 1856. They had six or more children born to them, among the number being said John E. Adams, deceased. During the time they so lived together, they claimed and were reputed to be husband and wife, and were recognized as such by all tbeir neighbors and acquaintances. In 1856 Solomon Adams hilled a man named Tyler, in Trinity county. A short time thereafterwards, to avoid arrest and trial for the homicide, it seems, he abandoned his wife and children by Frances, leaving the state and going to Virginia, where, on October 27, 1857, he married Matilda Waters, by whom he had three children. After Solomon Adams abandoned his wife Vicey, and while he was living in Texas with his wife Frances, to wit, on December 6, 1841, he acquired by purchase the certificate by virtue of which the land in controversy was surveyed. He never returned to Texas during the lifetime of his said wife Frances, but for several years lived with his wife Matilda in a community in Arkansas, where his former wife Vicey lived with said Bowen as her husband, by whom she had several children. It was shown that Bowen ábandoned a wife and children he had by her in Tennessee, and, accompanied by said Vicey, moved to Arkansas; but when this occurred was not shown. After Solomon Adams had abandoned her, as stated, and while he was living out of this state with Matilda as his wife, to wit, on October 29, 1866, Frances, by her deed of that date, for a consideration as recited ther'ein of $500 paid to her and for love and affection she had for him, conveyed the land in controversy to appellants’ father, said John E. Adams, who, on August 5, 1870, died intestate. It was shown that Solomon Adams, when he left Texas after killing Tyler, was in debt, and that his son, said John E. Adams, paid a part, if not all, of his indebtedness ; and it was further shown that said John E. Adams during his father’s absence from the state furnished to his mother, said Frances, supplies needed by her to live on. It was agreed by the parties that appellants “held whatever title to the land in controversy that John E. Adams and his wife, Matilda Adams, had at the time of the death of John E. Adams.” It was further agreed that Solomon Adams died intestate in or about the year 1873; that his wife Vicey died intestate about the year 1870; that his wife Frances died intestate about said year 1870; that his wife Matilda died intestate “in or prior to the year 1897”; and that defendants held the title, if any they had, to the land of the children of Solomon Adams by his marriage with Vicey Mcllhaney and Matilda Waters. It was further agreed that the “deed records, court records, and marriage records of Warren county, Tenn., where Solomon Adams and his wife Vicey lived, Trinity and Houston counties, Tex., where he and his wife Frances lived after they came to Texas, and Madison county, Ark., where his wife Vicey lived with Bowen after they left Tennessee, were destroyed by fire in or about the year 1870; and that the marriage records of Dallas county, Ala., where Solomon Adams and his wife Frances, it seems, lived before they came to Texas, were lost or destroyed in or about the year 1862.
    Crow & Philips, of Groveton, for appellants. Sleeper, Boynton & Kendall, of Waco, and J. A. Platt, of Groveton, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      Kor other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WILLSON, C. J.

(after stating the facts as above). On the case made by the facts recited, the court told the jury there were three ways in which the existence of a marriage might be established: “First,” he said, “by proof of a ceremonial marriage under the laws of the state in which such marriage is contracted; second, by family history; third, by proof that the parties lived together as husband and wife and held themselves out as such and were reputed to be husband and wife.” He then told the jury that “when a marriage is once shown to have been contracted between parties, same is presumed to continue until same is dissolved by the death of one of the parties or by a decree of divorce entered by a court of competent jurisdiction.” He then instructed the jury to find for appellants for all the land, if they believed “that subsequent to the time of their marriage the said Solomon Adams and his wife Vicey were divorced by a court of competent jurisdiction, and that thereafter Solomon Adams and Frances were married,” and if they believed “that the said Frances Adams sold and deeded the land to J. E. Adams to pay the community debts of herself and Solomon Adams, or to provide necessities for herself and her minor children”; and to find for appellants for an undivided one-half of the land if they failed to find “that the said Solomon Adams and Vicey Adams were divorced, and that thereafter the said Frances Adams and Solomon Adams were lawfully married,” yet believed - “that the said Frances Adams in good faith believed that she was the wife of Solomon Adams, and that together they acquired the property in controversy in this suit, and that the said Solomon Adams abandoned said Frances, and thereafter she sold the property.” The verdict returned by the jury for only one-half of the land indicates they found that Solomon Adams was never divorced for his wife Vicey, and therefore that Solomon Adams and- Frances Schafer were never lawfully married. On the issues as to whether Solomon. Adams was divorced from his wife Vicey or not, and as to whether he married Frances Schafer or not, the court instructed the jury that the burden was on appellants to show by a preponderance of the evidence “that such a decree of divorce was entered by a court of competent jurisdiction, and that thereafter such marriage was contracted between Solomon and Frances Adams,” and refused a special charge requested by appellants as follows: “You are instructed that when a marriage has been shown in evidence, whether regular or irregular, and whatever the form of proofs, the law raises a presumption of its legality, not only casting the burden of proof upon the party asserting its invalidity, but requiring him throughout in every particular plainly to make the fact appear that such marriage is illegal and void. The strength of the presumption of the legality of a marriage increases with the lapse of time through which the parties are cohabiting as husband and wife. Now, in this connection, you are instructed that if you find from the evidence that a marriage between Solomon and Frances Adams, prior to December 6, 1841, has been proved by any of the methods of proof which the law recognizes as set out for your guidance in the court’s general charge, then the law presumes the legality of said marriage, and the burden is upon the defendants, who in this case are attacking it, to establish their contention by clear evidence. This they may do by showing that Solomon Adams, one of the contracting parties, if such a marriage was consummated, was under the continuing disability of a previous valid marriage; but, unless they so show, the law will presume that such disability was terminated by divorce, and you will find in favor of the validity of the marriage.”

The action of the trial court in instructing the jury that the burden was on appellants to prove that Solomon Adams was divorced from his first wife before he married Frances Schafer is complained of as erroneous. The contention must be sustained. The burden was on appellants to prove a marriage between Solomon and Frances, but not to prove that such marriage was a valid one. A presumption that the marriage was valid would arise from proof that it was contracted, and the burden of proving to the contrary would be on appellees. This they might do by showing that Solomon had not been divorced from his first wife at the time he married Frances. The rule is a well-established one, and is based on the principle that the law will presume morality and innocence rather than immorality and guilt. Nixon v. Wichita Land & Cattle Co., 84 Tex. 408, 19 S. W. 560; Wingo v. Rudder, 120 S. W. 1076; Carroll v. Carroll, 20 Tex. 741; Ross v. Sparks, 79 N. J. Eq. 649, 83 Atl. 1118; Gamble v. Rucker, 124 Tenn. 415, 137 S. W. 499; McCord v. McCord, 13 Ariz. 377, 114 Pac. 968; Lyon v. Lash, 79 Kan. 342, 99 Pac. 598; Parsons v. Grand Lodge, 108 Iowa, 6, 78 N. W. 676; 19 A. & E. Enc. Law, pp. 1208, 1209.

We do not think the court erred when he refused the special charge set out in the statement, to the effect that the burden was on appellees to prove the invalidity of the mafcriage, if there was one, existing between Solomon and Frances at the time Solomon acquired title to the land in controversy. While it is true that, to sustain the validity of a marriage shown to have been contracted, a presumption will be indulged that one of the spouses was divorced from a spouse living at the time it was contracted, the presumption is not a conclusive one. “If,” said the court in Stooksberry v. Swan (Sup.) 22 S. W. 967, “the law declares the weight that shall be given to certain evidence, a court may so inform a jury; but, if that may be overthrown by other evidence, then it becomes the duty of the court, if evidence tending to a contrary conclusion be introduced, to leave the whole question of fact to the jury.” And see Hammond v. Hammond, 43 Tex. Civ. App. 284, 94 S. W. 1068, where the court, in disposing of a contention that the jury should have been instructed that it was a presumption of law that the party had been divorced from his first wife, shown to have been alive when the second marriage was contracted, said: “Whatever might be the right of a. jury to indulge such presumption as a matter of fact, we cannot sanction the contention that the presumption exists as a matter of law.”

As noted in the statement above, the court in his charge to the jury predicated the right of Frances Adams, if she was lawfully the wife of Solomon Adams, to convey the land to John E. Adams, on the fact that she did so “to pay the community debts of herself and Solomon Adams, or to provide necessities for herself and her .minor children.” Error is not assigned on this portion of the charge, but it is nevertheless urged that it was erroneous in that it did not recognize a right in Frances Adams, after she had been permanently abandoned by Solomon Adams, to sell the land to provide necessaries for herself, but required the jury also to find that she sold it to provide necessaries for her minor children. It is insisted, and we think correctly, that there was no testimony showing she then had minor children. Undoubtedly the charge in the particular specified, for the reason suggested, was erroneous, but, in the absence of an assignment presenting it, we would not because of the error be warranted in reversing the judgment. But error is assigned on the refusal of th'e court to give a charge requested, telling the jury if she and Solomon were lawfully married at the time title to the land certificate was acquired, Frances had a right, after he abandoned her, to sell and convey the land to John E. Adams to provide means necessary for her support. On another trial the charge of the court should not be limited as specified, but should be so framed as to require the jury to'find in appellants’ favor, if they believe Frances and Solomon were lawfully married, that he afterwards permanently abandoned her, and that she sold and conveyed the land to John E. Adams for the purpose of providing means necessary to her support.

By their fourth assignment, appellants complain of the refusal of the court to give to the jury their special charge No. 3. Because we think the phase of the case presented by the charge refused was sufficiently covered by instructions the court gave, this assignment is overruled.

The fifth assignment, in which appellants complain of the action of the court in refusing to give to the jury their special charge No. 4, with reference to a ratification (as claimed) by Solomon Adams of the act of his wife Frances in conveying the land to John E. Adams, also is overruled. We do not think the testimony made a question as to estoppel against Solomon Adams and those claiming under him.

Over appellants’ objection thereto ón the ground that same was “incompetent, immaterial, and irrelevant,” the court permitted appellees to prove by the witness C. 0. Adams, whose title they had, that the land in controversy was not occupied by any one until 1881, and to prove that he (witness) and other parties thereafterwards lived on and cultivated portions of it. Appellees justify the action of the court on the ground that the testimony was admissible, in support of' their plea setting up title in themselves, under the statute of limitations. But we think their contention cannot be sustained, and that the court erred in admitting the testimony, in view of the agreement on the part of .appellees that appellants held “whatever title to the land in controversy that John E. Adams had at the time of the death of John E. Adams,” which, it was further agreed, occurred August 5, 1870. In the face of this agreement, appellees did not have a right to show title in themselves by force of the statute of limitations, based on occupancy, etc., of the land subsequent to the date of the death of said John E. Adams. Therefore the sixth and seventh assignments are sustained.

As noted in the statement above, appellees were permitted to prove by the witness O. O. Adams, a son of Solomon Adams by Matilda Adams, his third wife, that, at some timei not stated, he heard his father and Yicey Adams, his first wife, declare, with reference to their separation, that “they fell out, and that he (Solomon) taken the girl (Frances Schafer) and left the country and left her.” Appellants objected to this testimony and to testimony of the witness Upton to the same general effect, on various grounds, and assign as error the action of the court in admitting same. .Without inquiry as to whether other objections urged to it were tenable or not, we think the testimony was inadmissible because hearsay, and not within rules rendering such testimony competent. The only purpose for which there could be even the pretense of a reason for admitting it was to prove the existence of an illicit relationship between Solomon Adams and Frances Schafer in .1824 or 1825. In view of the fact that the record is silent as to what relationship, if any, existed between Solomon and Frances from 1824 or 1825, .when they went from Tennessee to Alabama, until December, 1837, when it was shown they joined as husband and wife in the conveyance of land they owned in Dallas county, Ala., a majority of the court think the testimony referred to was wholly without probative force for the purpose indicated, when considered alone, as it must have been; for there was no other testimony which can be said to have tended to make such an isstfe.

For the errors pointed out the judgment is reversed, and the cause is remanded for a new trial.


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    PRUITT v. FROST-JOHNSON LUMBER CO. OF TEXAS.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 20, 1913.)
    1. Master and Servant (§ 103) — Master’s Liability — Servant’s Knowledge or Defect! — 1Tools and Appliances.
    Where plaintiff, a foreman’s helper in a planing mill, with the duty of keeping the machines adjusted and repaired, knew that a jam nut was defective and a wrench slipped from it, in consequence of which he was injured, defendant’s liability could not have been predicated on the defect in .the nut.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. § 103.]
    2. Master and Servant (§ 233) — Master’s Liability — Tools and Appliances.
    Where a master furnished a servant wrenches free from defects and reasonably safe for use in repairing machines in a planing mill,. and the servant, instead of using one of them, chose and used a defective wrench, the master discharged his duty to use reasonable care to provide a reasonably safe wrench.
    [Ed. Note. — FOr other cases, see Master and Servant, Cent. Dig. §§ 681, 684-686, 701-742; Dee. Dig. § 233.]
    3. Master and Servant (§ 217) — Master’s Liability — Assumption of Risk.
    A servant who knew and appreciated the danger involved in the use of a wrench so defective as to slip, while he was endeavoring to loosen a nut, yet who chose such a wrench when he might have chosen one without defect and which would not have slipped, assumed the risk of injury from the defect.
    [Ed. Note. — For other cases, see Master and |ervant, Cent. Dig. §§ 574-600; Dec. Dig. §
    Appeal from District Court, Nacogdoches County; Jno. I. Perkins, Judge.
    Action by J. A. Pruitt against Frost-Johnson Lumber Company of Texas. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    King & King, of Nacogdoches, for appellant. Blount & Strong, of Nacogdoches, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig, Key-No. Series & Rep’r Indexes

   WILLSON, C. J.

Lee Johnson had charge of the operation of appellee’s planing mill near Nacogdoches. Appellant was Johnson’s “helper.” In his petition appellant alleged it was his duty, as such helper, to assist Johnson in the work of keeping the several planing machines adjusted and repaired. January 24, 1912, while appellant was attempting, with a wrench, to adjust one of said machines, as a result of a failure of the wrench to hold, on a jam nut it became necessary to turn, apppellant’s right hand and a portion of his right forearm, were thrown against knives revolving in the machine, and he was injured. In his petition he alleged as negligence on the part of appellee, which entitled him to the damages he sought to recover, (1) that the wrench “was old and worn and out of adjustment by wear and tear, so that it would not fit tightly around said nut, the mouth of said wrench being so worn as to become too wide to hold closely upon said nut when placed thereupon, and so worn that when the plaintiff attempted to use the same upon the nut the wrench refused to catch or hold the nut and slipped from around the same, which said defect in said wrench was unknown to him, but was known to defendant or its foreman (said Johnson), or could have been known to them by the exercise of proper care in the examination and inspection of said wrench, which said duty the plaintiff charges the defendant had negligently refused to perform”; and (2) that the jam nut had “become corroded, worn, and covered with resin, so as to make it difficult for the wrench furnished to hold upon said nut, and said condition permitted the wrench in its worn and defective state, when placed upon said nut for the purpose of moving the same, thereby to slip from off said nut, thereby throwing his hand into said machine as aforesaid, which said fact was unknown to this plaintiff, but which said .fact was known to the defendant, or could have been known in the exercise of the duty of examination and inspection imposed upon it by law, which said examination and inspection this plaintiff 'charges the defendant carelessly and negligently failed to perform.”

The court below, after hearing the testimony, told the jury same did not warrant a verdict in appellant’s favor, and instructed them to find for appellee. The jury so found. The appeal is from a judgment.in accordance with their finding. The complaint here is that the court erred in peremptorily instructing the jury as stated.

At the time he was injured appellant was 46 years old. He had worked in planing mills during more than 20 years of his life, and'during the 4 or 5 years immediately preceding the time when he was injured had worked in appellee’s mill as “helper” to the foreman in charge thereof. It was a part of appellant’s duty to adjust the machines, and if he found a jam nut in a bad condition to put in a new one, and if he found a wrench to be in a bad condition to either have it repaired or make a report as to its condition to the foreman. He had frequently adjusted the machine in question. The jam nut was defective in that, as appellant testified, it was “worn on the end.” Appellant knew it was so worn before he attempted to turn it on the occasion when he was injured. The wrench is described in the record as “a 34 wrench, an open set wrench at both ends.” The defect in it, appellant testified, was that it “was spread at the mouth — it was spread about i/ig of an inch or a little better.” It was one of several wrenches furnished by appellee for use in turning the nut. Appellant knew that some of the wrenches were defective and that others of them were not defective. “I knew,” he testified, “that there were wrenches there that were in bad shape and wrenches that were in good shape.” He made no examination before using the wrench to see if it was one of the clefeetive ones or not. “When,” he testified, “I went down to that machine and went to work and found this wrench on the machine, I went immediately to using it. I never made any examination of it. I made no examination of it at all.” Both the wrench and the nut were exhibited to the court and jury, and, it seems, admitted in evidence, though they were not sent to this court. Lee Johnson, the foreman, testified that the wrench “if properly put on the jam nut will not slip off.” This was not denied by appellant. He testified that he “could not get a good hold on the nut” because of its being close to the wall of the machine, and he did not know what kind of a hold he had on it when the wrench slipped. Appellant knew the danger he incurred in attempting as he did to turn the nut while the machine was in operation. “Those knives,” he said, referring to the ones with which his hand and arm came in contact when the wrench slipped, “are revolving knives. The knives are in the open where you can see them when the hood is off. The jam nut and set screw are about 6 inches, I- guess, from those knives. In putting the wrench on the jam nut to loosen it, if you would turn it, your hand would go in towards the knives. My hand on the wrench to turn the jam nut would be approximately 8 or 10 inches from the knives. On that day when I pushed the wrench, I was pushing my hand directly towards the knives.”

We think the testimony referred to suggests sufficient reasons why the judgment should not be disturbed.

Negligence on the part of appellee, of which appellant had a right to complain, could not have been predicated on the defect in the jam nut, because, as he testified, he knew it was defective, and because, as he further testified, it was his duty, knowing it was 'defective, to replace the nut with a new one. Therefore negliggnce, if there was any on appellee’s part, must have been predicated on the defect in the wrench.

It conclusively appeared that appellee had furnished appellant wrenches free of defects and reasonably safe for. use in doing the work he was engaged in doing, and that appellant, instead of using one of them, chose and used the one in'question. It would seem that appellee, having furnished such wrenches, had discharged the duty it owed to appellant to use reasonable care to provide for his use in turning the jam nut a wrench reasonably safe for the purpose, and that, if it violated a duty it owed to him, it was one he did not rely upon as a ground for the recovery sought — that is, either to separate and remove the defective wrenches from those not defective, or to instruct him how to distinguish between them. Had negligence in this respect been alleged, a sufficient answer to the charge, perhaps, would have appeared in testimony showing the wrenches to have been simple tools, with the use- of which appellant was entirely familiar, and defects in which he should have discovered.

There is another view to be taken of the testimony, which, it seems to us, justified the course pursued by the court, and that is that it conclusively appeared that appellant was in the attitude of having assumed the risk he incurred in using the defective wrench. He knew and fully appreciated the •danger involved in the use of a wrench so defective as to slip while he was endeavoring to loosen the nut, yet he chose such a wrench when he might have chosen one without defects which would not have so slipped.

We think the court did not err as claimed. Therefore the judgment is affirmed.


author: REESE, J.

text:
    GRISWOLD et al. v. COMER et al.
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 24, 1913.
    On Motion for Rehearing Nov. 13, 1913.)
    1. Adverse Possession (§ 79) — Color of Title-Sufficiency of Deed.
    A tax deed which correctly described a tract of land by metes and bounds and which further identified it by reference to the correct abstract number was not insufficient as a basis for prescription under the five-years statute because it referred to the survey thereof as in the name of S., whereas the patent was issued to the heirs of S.’s assignee, and incorrectly referred to the certificate number; especially where it did not appear that the survey was not marked on the county map as the S. survey.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 459-462; Dee. Dig. § 79.]
    2. Adverse Possession (§ 95) — Sufficiency of Evidence — Payment of Taxes.
    Where in trespass to try title it did not appear that no other evidence was introduced to show the payment of taxes, the evidence was not insufficient to show such payment merely because the tax receipts, which otherwise correctly described the land, gave a wrong certificate number, as the payment of taxes could have been shown by circumstances.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 530-532; Dec. Dig. § 95.]
    3. Adverse Possession (§ 79) — Color of ■ Title — Sufficiency of Deed.
    Where the heirs of the holder of a duly recorded tax deed by partition deed partitioned his land, the possession of one of the heirs thereafter was under a registered deed within the meaning of the five-years statute, ■ though she did not record her own deed, since she could prescribe under her ancestor’s deed as to the whole tract and not merely as to her distributive share thereof.
    [Ed. Note. — For- other cases, see Adverse Possession, Cent. Dig. §§ 459-462; Dec: Dig. § 79.]
    4. Executors and Administrators (§ 152) —Accounting and Settlement — Evidence of Settlement.
    Where in 1874 the property of an estate was partitioned by the probate court among the heirs, except as to a particular tract, as to which the administration was kept open, and the court retained jurisdiction, which tract was sold under the order of the court in 1876, the administrator in 1877 filed his application for final discharge, and the records of the court showing what other proceedings were taken were destroyed by fire, the facts sufficiently showed that the administration had been closed before 1881, when the administrator bought land awarded to one of the heirs in the partition of 1874, at a tax sale, and that no fiduciary relation then existed between him and such heir.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 621-628; Dec. Dig. § 152.]
    5. Executors and Administrators (§ 152) —Purchase of Property by Administrator.
    Where certain land of a decedent was partitioned among his heirs by the probate court, that set apart to one of the heirs ceased to be the property of the estate, the administrator ceased to have any control thei•eover, and was not bound to' pay the taxes thereon, or do anything to protect the rights of the heir, even though the administration had not been closed ; and hence he could purchase the property at a tax sale thereof.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 621-628; Dec. Dig. § 152.]
    6. Adverse Possession (§ 31) — Concealment of Possession.
    Where a tax sale was publicly made, the tax deed promptly recorded, and the heirs of the holder of the deed thereafter partitioned his land, the failure of one of the heirs to record the partition deed or to put leases thereof by her under which her lessees took actual possession on record, did not show fraud or a concealment of her claim of ownership.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ ■ 128-133; Dec. Dig. § 31.]
    7. Adverse Possession (§ 79) — Color of Title-Sufficiency of Deed.
    For a tax deed to be sufficient as a basis for prescription under the five-years statute, all the prerequisites of the law need not be complied with in making the tax sale.
    ' [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 459-462; Dec. Dig. § 79.]
    8. Adverse Possession (§ 22)-^Sufficiency of Possession.
    A person who fenced land and used it continuously, exclusively, peaceably, and notoriously for a pasture for live stock bad sufficient possession thereof within the five-years statute.
    [Ed. Note. — For other cases, see Adverse Possession ; Cent. Dig. § 111; Dec. Dig. § 22.]

      On Motion for Rehearing.
    9. Adverse Possession (§ 80) — 1Color of Title-Sufficiency of Deed.
    Under the five-years statute of limitations, which requires the adverse possession relied upon to give title to be under a deed duly registered, the deed must describe the land with sufficient certainty to identify it.
    [Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 463-467; Dec. Dig. § 80.)
    10. Deeds (§ 111) — Description of Property — Repugnancy.
    Where by the rejection of a false and impossible part of a description which is repugnant to the general intention of a deed a perfect description will remain, the false part should be rejected and effect given to the deed.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 309-315, 334, 335; Dec. Dig. § 111.]
    Appeal from District Court, Chambers County; L. B. Hightower, Judge.
    Trespass to try title by D. E. Griswold and others against Mrs. C. C. Comer and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    R. J. McMurrey, of Anahuac, and Marshall & Harrison, of Liberty, for appellants. W. R. Anderson, of Carthage, and E. B. Pickett, Jr., and Stevens & Stevens, all of Liberty, for appellees,

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig.' Key-No. Series & Rep’r Indexes

   REESE, J.

This is an action of trespass to try title, instituted by D. E. Griswold and others against Mrs. C. C. Comer, the Old River Rice & Irrigation Company, J. T. Bayliss, Joseph Raper, and Osear J. Petty, to recover a certain 320 acres of land, the east half of a section patented to the heirs of Elias Griswold. The plaintiffs also claimed damages by way of rents for two years preceding the institution of the suit.

Old River Rice & Irrigation Company answered by general denial, and alleged that it had cultivated the land, for the term during which rents were claimed, through its tenants. Other defendants adopted this as their answer, except C. O. Comer, who pleaded not guilty and the statute of limitation of five and ten years. Mrs. Comer claimed the title. The other defendants were her tenants. The case was tried without a jury, resulting in a judgment for defendants on Mrs. Comer’s limitation plea of five years. From the judgment, plaintiffs appeal. The court prepared and filed conclusions of fact and law. The findings of fact are supported by the evidence and are adopted by us.' They are as follows:

“I find that the land described in plaintiffs’ petition was patented to the heirs of Elias Griswold on the 17th day of January, 1862. I further find that S. A. Miller was administrator of the estate of Elias Griswold, and that as such administrator, on the - day of September, 1874, in the district court of Houston county, Tex., where said administration was pending, a partition was had of all the property and lands of said estate, save and except a claim of 640 acres of land situated in Madison county, Tex., known as the A. Boatwright survey.
“I find that said court, at the time of said partition in September, 1874, retained jurisdiction of said estate in order to litigate a claim to said Boatwright survey, and that the remainder of the estate, including the land in controversy, was partitioned as aforesaid by said court in September, 1874, and that said land in controversy was set aside to Ambrose Griswold, an heir and son of Elias Griswold, deceased, as his distributive share of said estate thus partitioned.
“I find that Ambrose Griswold died abou.fc the 6th day of December, 1906, and that the plaintiffs are lawful heirs. I further find that neither Ambrose Griswold nor his said heirs have ever resided in Texas, but have always resided in the states of Missouri and Illinois. I further find that during the year 1877, S. A. Miller, administrator of said estate, filed his application for final discharge, and that in 1876, acting under an order of the court having jurisdiction of said estate, the said S. A. Miller, as administrator, sold the A. Boatwright survey of land situated in Madison county, Tex.
“I further find that all of the probate records and court records of Houston county have been destroyed by fire, save and except said decree of partition and said application by said administrator for final discharge.
“From the foregoing facts the presumption arises that the administration of said estate was closed and the administrator discharged prior to the 3d day of May, 1881. I further find that S. A. Miller, on the 3d day of May, 1881, purchased the land in controversy at tax sale, and that a deed properly describing the land was executed to him by the tax collector of Chambers county on the 3d day of May, 1881, which deed was duly recorded upon the deed records of Chambers county, Tex., the same year. I further find that none of the plaintiffs had any actual knowledge of said tax sale until shortly before the institution of this suit.
“I find that after the death of S. A. Miller, about the 17th day of August, 1897, the estate of S. A. Miller was partitioned among his several heirs by partition deed, and the land in controversy described by said tax deed was conveyed by the other heirs of S. A. Miller to one of his heirs, to wit, Amelia Miller, who is now the defendant Mrs. C. C. Comer, and that said deed was duly registered in Chambers county, Tex., on the 4th day of September, 1911.
“I further find that from the-day of October, 1904, the defendant Mrs. C. C. Comer has had enclosed, used, and held in peaceable adverse possession the land in controversy up to the present time, and that said defendant, Mrs. G. C: Comer, formerly Amelia Miller, has paid all taxes on said land annually as the same accrued during said occupancy by her.”

The first assignment of error assails the judgment on the ground that the tax collector’s deed to S. A. Miller does not describe the land in controversy and did not afford a basis for prescription under the five-years statute. The findings of fact do not show the facts with regard to this deed which are urged as' a basis for this assignment, but simply that the deed properly described the land. The record shows that the land was patented to the heirs of Elias Griswold, as-signee of George L. Short, patent No. 370, certificate No. 436, issued to George L. Short. The tax collector’s deed to S. A. Miller, under whom Mrs. C. G. Comer claims title, describes the land as ‘‘320 acres, the east half of a 640-acre survey in the name of George L. Short, abstract No. 228, certificate No. 426,” followed by a full description of the 320 acres by metes and bounds, definitely and accurately describing the east half of the 640 acres described in the patent. This particular description, if taken alone, clearly and unmistakably identifies the. land. Appellants’ contention, as presented in the assignment, is based upon the reference in the deed to the survey as in the name of George L. Short, when the patent was issued to the heirs of Elias Griswold, assignee of George L. Short, and the further fact that the certificate is referred to as No. 426, while the correct number is 436, as shown by the patent. These mistakes are unimportant in view of the unmistakably correct description and identification of the land by the particular description contained in the field notes. It may be that the survey was marked on the county map as the George L. Short. The record does not show. All of the witnesses refer to it as the George L. -Short survey. The tax collector so speaks of it, identifying further by giving the correct abstract number and the particular description by field notes, showing metes and bounds. The description was clearly sufficient to convey the land in controversy, and the record thereof was sufficient notice to the true owner, under the five-years statute of limitation. In construing the deed the “falsa demonstratio” would be discarded, and regard only had to the correct description afforded by the field notes. Arambula v. Sullivan, 80 Tex. 619, 16 S. W. 436. In the light of the evidence, the reference to the survey as in the name of George L. Short really serves more clearly to identify the land. In all the cases cited by appellants in support of their contention there was no particular description by which the land could be identified. They have no application to the present case. The assignment and the several propositions thereunder are overruled.

It is contended by appellants under their second assignment of error that the evidence was insufficient to support appel-lee’s claim of title under the five-years statute, because in the tax receipt a wrong certificate number is given. The receipts otherwise correctly described the land, and the evidence was sufficient to show payment of taxes under the statute. The court finds that the taxes were paid. This could have been shown by circumstances. Watson v. Hopkins, 27 Tex. 642; Irvine v. Grady, 85 Tex. 120, 19 S. W. 1028. No objection was made to the introduction in evidence of the tax receipts, so far as is shown by the briefs, nor does it appear that no other evidence was introduced to show such payment. The assignment is overruled.

It appears from the court’s findings that the defendant Mrs. Comer was one of the children of S. A. Miller, the grantee in the tax deed, who was dead, and one of the distributors of his estate, and that after Miller’s death, “and about August 17, 1897, his estate was partitioned among his several heirs by partition deed, and the land in controversy described by said tax deed was conveyed by the other heirs of S. A. Miller to one of his heirs, to wit, Amelia Miller, who is now the defendant Mrs. C. C. Comer, and that said deed was duly registered in Chambers county on September 4, 1911.” This was after the institution of this suit. The actual possession of the land upon which the limitation claim is based began in October, 1904. The suit was begun June 5, 1911. By appropriate assignments of error appellants present the contention that under the facts stated, except as to her distributive interest as one of the heirs of S. A. Miller (either one-sixth or one-eighth), Mrs. Comer could not prescribe under the deed to Miller, which was duly registered in 1881; but that, as to the remainder of the tract, she held title under the deed from the other heirs, which was not registered until after this suit was filed, from which the legal conclusion is asserted that, except as to her distributive share, her possession was not under a registered deed as required by the five-years statute.

We think this case falls within the general principle which was relied on in the case of McLavy v. Jones, 31 Tex. Civ. App. 354, 72 S. W. 407, decided by this court, the opinion being by Chief Justice Garrett. Writ of error was denied by the Supreme Court. Stated generally, the facts in that case were as follows: The land in controversy was part of the estate of Byrd Eastham, who died leaving a widow, who was his executrix without bond with power to sell real estate, etc., and several, children, among them Mrs. Jones, the appellee. The deed of the land in controversy to Byrd Eastham was recorded in 1878. He died in 1883. By his will East-ham devised one half of his estate as community property to his widow, and the other half, share and share alike, to his children. On August 17, 1886, the probate court approved a report of partition filed in the estate by the executrix, setting apart to Mrs. Jones the land in controversy, and ordered that all the right, title, and interest of the other heirs in and to said land be divested out of them and be vested in her, and that the executrix deliver the same to her as her share of the estate. About March 1, 1886, the executrix took possession of this tract by tenant. This tenant so held possession until the land was set apart to Mrs. Jones, when he continued to hold it for her until 1897. The taxes were paid up to 1886 by the estate, and from 1886 to 1897 by Mrs. Jones. We quote from the opinion: “We are of the opinion that the plea of the statute of five-years limitation was sustained by the. evidence. Byrd Eastham claimed the land under a deed duly acknowledged and recorded. The deed was dated February 14, 1876, and was filed for record May 29, 1876. Payment of taxes by him was shown to have been made from 1880 to his death, and by his executrix to 1886, when the land was set apart to his heir and devisee, the defendant Helen M. Jones, as a part of her share of the estate. The taxes were shown to have been paid by the defendants from 1886 to 1897, inclusive. Possession under the deed to Byrd Eastham was commenced by his executrix March 1, 1886, and on August 17, 1886, the date of the order of the probate court, it was commenced by the defendants, and continued for more than ten years, accompanied by payment of taxes. Helen M. Jones, as the heir and devisee of Byrd East-ham, could prescribe under the deed to him without regard to the order of the probate court. Motley v. Corn (Tex. Sup.) 11 S. W. 850; Carothers v. Covington, 27 S. W. 1040; Poster v. Johnson, 89 Tex. 640, 36 S. W. 67; Possett v. McMahan, 74 Tex. 546, 12 S. W. 324; Olive v. Bevil, 55 Tex. 423; Cochrane v. Parris, 18 Tex. 850. The purpose of the statute requiring possession under a recorded deed is to give notice of the character of the adverse possession, and it must be such as is required in the registration of deeds, and the right of the party in possession to prescribe may be derived from a deed to a predecessor in title in privity with whom he holds.”

The court in the opinion recognizes fully the doctrine of the cases cited by appellant. (Sorley v. Matlock, 79 Tex. 306, 15 S. W. 261; Porter v. Chronister, 58 Tex. 56, and others) but in distinguishing the case under consideration proceeds: “Helen M. Jones was the heir and devisee of Byrd Eastham. As such she took the legal title by devise and inheritance. The will disposed of the property in accordance with the statute of descent and distribution, but this fact does not affect the principle involved, as the will is not such a muniment of title as is required by the law of registration to be recorded in the record of deeds.”

There are only two grounds upon which this case can be' distinguished from the present case. And those are the possession of the executrix prior to the partition, and the fact that the partition in that case was made in probate proceedings, while in the present case it was done by a deed of the other heirs to Mrs. Comer. So far as this prior possession is concerned the court seems to lay no stress upon it. The law has no regard to any possession except that which is held during the five years necessary to create the bar. The possession prior or subsequent to that is of no importance. Wp think it clear from the reasons given in the opinion that it would have made no difference if the first possession had been by Mrs. Jones after the property was set apart to her in the partition. As to the other point of difference, we do not think the ease can be distinguished on that ground. Equally in that case as in this it might be said that Mrs. Jones only held her distributive interest as one of the heirs and devisees under the will, under the recorded- deed to Byrd Eastham, and that as to the distributive interest of the other heirs, after the partition and when she took possession, she held under the partition decree. The law makes no concession in the matter of a claim of title under the five-years statute to one who claims under some title which is not capable of registration, if the partition decree comes within that class. He must hold under a registered deed. An equitable title, good against the world but not capable of registration, cannot be made the basis of prescription. The court held that in that case the registered deed to Byrd East-ham was sufficient basis for Mrs. Jones’ claim under the five-years statute to the entire tract. By the same reasoning, we are unable to see why the registered deed to S. A. Miller, Mrs. Comer’s father, in privity with whom she claims to exactly the same extent that Mrs. Jones claimed in privity with Byrd Eastham, her father, would not afford lawful basis for prescription under the statute. So far as the notice to appellants is concerned, and that is the purpose of this requirement, we think Mrs. Comer’s possession, the fact that she was one of the heirs of S. A. Miller, together with the record of the deed to Miller and payment of taxes, afforded appellants all the notice required by the statute. We are of the opinion that the court did not err in the matter complained of in the assignment referred to.

S. A. Miller was administrator of the estate of Elias Griswold. In 1874 all of the property of the estate was partitioned by the probate court among his heirs, except a claim to 640 acres of land in Madison county, and the administration was kept open, and the court retained jurisdiction of the estate in order to litigate such claim. Thereafter in 1876, acting under the order of the court, the administrator sold this Madison county land. In 1877 the administrator filed in said court his application for final discharge. All of the records of said court were destroyed by fire in 1885. In the partition of all the property of the estate in 1874, the tract of land in question was set apart to Ambrose Griswold. The plaintiffs are his heirs. The court did not err in finding from the above facts that the administration had been closed before 1881, when Miller bought the land in controversy, and that no fiduciary relation existed between Miller and the heirs that would prevent his buying this property at tax sale. The facts present a different and a much stronger case than a mere absence of any action taken in the administration. The affirmative facts that all of the property was partitioned in 1874, except the claim to the Madison county land, which was sold in 1876, leaving nothing farther to be done in the administration, followed by the filing of the application to be discharged by the administrator in 1877, in view of the further fact that the destruction of the records in 1885, rendering it impossible to furnish by the records proof of that fact, afforded sufficient grounds for the finding that such application was acted upon and the administration closed. Obviously this was the proper, and the only proper, thing to do. But the right of Miller to buy does not depend upon this. Whether the administration was closed and the administrator discharged, as found, or not, all the property of the estate was partitioned among the heirs in 1874, and the land in controversy was then set apart to Ambrose Griswold. By this act this property ceased to be the property of the estate. The administrator ceased to have any control over it, or the probate court to have any further jurisdiction of it. Henderson v. Lindley, 75 Tex. 185 [12 S. W. 979]. Having no control over the property, it was not the duty of the administrator to pay the taxes, or to do anything to protect the rights of the owner, whose absolute property it had become. So far as Miller was concerned, even if the administration had not been closed, he stood in no other relation to this property than he did to any other property belonging to Ambrose Gris-wold. Owing the owner no duty which the law could recognize in the matter, he had the same right to buy this property as any one else. There was no fraud, no concealment of any fact on his part. Miller had nothing to do with its being offered for sale, which was done by a public officer in the discharge of his lawful duty. “There is an exception to the general rule that one who occupies a fiduciary relation may not lawfully purchase the property of his correlate for his own benefit, as well established as the rule itself. It is that an agent or trustee may lawfully buy the property of his principal or cestui que trust at a judicial sale caused by a third party which he has no part in procuring and over which he can exercise no control.” 39 Cyc. 185. But it is not necessary to invoke this principle in the present case. Under no view of the facts did Miller occupy towards the owner of this property, at the time of the tax sale or with regard to the tax sale, any fiduciary or trust relation whatever. What we have said disposes of the questions presented by the fourth, fifth, sixth, and seventh assignments of error, and the several propositions thereunder, which are overruled.

The eighth assignment of error is without merit. There was no concealment by appellees of any fact with regard to their claim of title. The tax sale was publicly made, and the tax deed promptly recorded. Certainly there is not a hint of fraud. No purpose to conceal her claim of ownership by Mrs. Comer can be inferred from the fact that she did not put her leases on record, under which the lessees inclosed the land and took actual possession. Nor from the fact that she did not put on record .the partition deed. Certainly the facts show that the slightest diligence on the part of appellants would have enabled them to learn of this adverse claim, and of its active assertion. .

It is not necessary, to enable appellee to prescribe under the tax deed, that she should show that all of the prerequisites of the law had been complied with in making the sale. In such case she would not need to have resorted to the statute of limitation. The deed was sufficient to afford a' basis for the claim under the statute as a registered deed. Schleicher v. Gatlan, 85 Tex. 273, 20 S. W. 120.

The evidence was amply sufficient to show such adverse possession, use, and enjoyment in appellee, through her tenant, from October, 1904, up to the filing of the suit in April, 1911, as to fulfill the requirements of the statute. Such possession and use consisted in fencing the land and using it for a pasture for live stock, such use being continuous and exclusive and, without dispute, visible and notorious. There is no merit in the tenth assignment of error, complaining of the Insufficiency of the evidence to support the claim under the statute.

We have carefully examined the several assignments of error, together with the propositions thereunder, and conclude that none of them presents any grounds for reversal. The judgment is therefore affirmed.

Affirmed.

On Motion for Rehearing.

In our original opinion it is stated that none of the cases cited in the brief of appellants, to support their contention that the deed from the tax collector to S. A. Miller was insufficient as a basis for prescription under the five-years statute of limitation, are based upon a deed in which there is a full description of the land by metes and bounds, as in the Miller deed, and this, is true. However, in their motion for rehearing they cité the case of McDonald v. Hamblen, 78 Tex. 628, 14 S. W. 1042, in which the land sued for was described as a part of the George A. Campbell survey. It was, in fact, part of a tract patented to De Cordova, as-signee of Campbell. The tax deed described the land as a part of the R. A. Campbell survey, giving also metes and bounds. No objection was made to the description of the survey by giving the name of the original grantee of the certificate, but the objection was that the name of the survey was given as the R. A. Campbell instead of the George A. Campbell survey. In the opinion the survey is spoken of as the George A. Campbell survey. This appears to sustain our opinion on the point that the description of the land in the tax deed in the present case as the east half of a survey in the name of George L. Short, the original grantee in the certificate, was sufficient, as far as that part of the description is concerned. The tax deed in the present case further gives the correct abstract number, omits the number of the patent (which it was unnecessary to give) and gives a wrong certificate number. We quote so much of the opinion in the case cited as bears upon the question here presented: “In support of the plea of five-years limitation the defendants offered in evidence a tax deed by John P. Cox, tax collector of Hill county, to W. H. McDonald to 984 acres of land of the R. A. Campbell survey, and describing the land by metes and bounds. In connection with this deed it appears that the county map of Hill county was offered to ‘show the locality of the George A. Campbell survey and surrounding surveys.’ The deed was dated June 4, 1878, and duly registered on the 2d day of April, 1879. The petition was filed May 3, 1886. The plaintiff objected to its introduction, ‘first, because it was void on its face, no authority appearing for the execution of the deed; second, because it does not support the plea of limitation, as the description fails to identify the land and is not sufficient to apprise the owner of the land of an invasion thereof by the grantee in the tax deed.’ The court sustained the second objection and excluded the deed and the map. This is assigned as error. The assignment is not well made. The deed shows on its face that the tract of land against which the assessment was made, and which was sold to pay said assessment, was a different tract of land from that sued for. The deed recites that the land assessed was 984 acres of the R. A. Campbell survey, and the land which the field notes described as conveyed is a part of the said Campbell survey. The land sued for is a part of the George A. Campbell one-third league.”

It is not contended that the fact that it was not shown that the prerequisites of the statute were not complied with by the tax collector would be a valid objection to the deed as a basis of prescription under the five-years statute. Schleicher v. Gatlin, 85 Tex. 270, 20 S. W. 120. One of the conditions for the acquisition of title under the statute is that the party setting up such title must have been in adverse possession for that length of time, “claiming under a deed or deeds duly registered.” It is not necessary that the deed convey good title (Hunton v. Nichols, 55 Tex. 217), but the deed must describe the land with sufficient certainty to identify it. Murphy v. Welder, 58 Tex. 235. A description of land in a deed otherwise identifying it is not vitiated by a mistake in giving the number of the certificate. Stout v. Taul, 71 Tex. 438, 9 S. W. 329.

Appellant insists that the ease of Arambula v. Sullivan, 80 Tex. 619, 16 S. W. 43, cited by us, has no analogy to the present case. It was cited merely in support of the general and well-settled rule in the construction of deeds that “where by rejection of a false and impossible part of a description which is repugnant to the general intention of the instrument a perfect description will remain, the false part should be rejected and effect given to the deed.” 13 Cyc. 630. The general principle is thus stated in Smith v. Chatham, 14 Tex. 328: “Counsel do not differ as to the law applicable to this question ; but only as to its application. It is ingeniously, and very justly, admitted by counsel for the appellee, that ‘there are numerous cases in which it has been decided, that, where the body of the land is sufficiently described to identify it beyond doubt, and control, with sufficient certainty, erroneous particular descriptions, the latter may be rejected, to give effect to the former and uphold the deed.’ Such unquestionably is the well-settled law; and. such, we think, is this case. The description identified, beyond doubt, the land actually conveyed to the plaintiff by the sheriff’s deed; and the court therefore erred in excluding the evidence.”

The deed referred to was a sheriff’s deed. See, also, West v. Houston Oil Co., 46 Tex. Civ. App. 102, 102 S. W. 927; Pinckney v. Young, 107 S. W. 622.

Under these well-settled principles we think it requires no further citation of authority to show that the tax deed was, on its face, a sufficient conveyance of the land claimed by appellants to constitute it, when duly recorded, a “registered deed” to this land.

Appellants’ main contention is that the registration of the deed was insufficient to give appellants notice that their possession was invaded under this deed. We do not understand by what course of legal reasoning it can be successfully contended that the registration of a deed, which on its face conveyed by definite and accurate description the land of appellants, when accompanied with actual possession and payment of taxes, was not such notice to them as they were entitled to under the statute, whether it be a tax deed or one voluntarily made by the grantor. If this deed, describing the land exactly as it is described, had been by a stranger to the title, who had not title, to appellee, and had been duly registered, we think it would hardly be contended that it would not have afforded a basis for prescription under tbe statute of limitation of five years, on tbe ground that tbe registration did not afford notice to tbe owner. Tbe tax deed in tbis case, by field notes giving tbe metes and bounds, definitely and accurately described a tract of land wbicb is, in fact, tbe east balf of tbe 640 acres patented to Elias Griswold, assignee of George L. Short, and, under well-settled rules of construction of deeds, was, on its face, and not by reference to anything extrinsic of tbe contents of tbe deed, as stated in Brokel v. McKechnie, 69 Tex. 32, 6 S. W. 623, a deed to tbe land claimed by appellants. It was duly registered and we think satisfied tbis condition of the statute. Appellants have urged their contention of tbis point with so much earnestness that we have thought proper to state our views more fully.


author: LEVX, J.

text:
    HAYS et al. v. TALLEY.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 11, 1913.
    Rehearing Denied Nov. 27, 1913.)
    1. Limitation of Actions (§ 47) — Breach of Covenants — Warranty of Title.
    Limitations against an action for breach of a covenant of warranty of realty do not commence to run until actual or constructive eviction under a superior outstanding title.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 254-258; Dec. Dig. § 47.]
    2. Limitation of Actions (§ 47) — Limitations — Breach.
    Where there was a conflict in tbe title or location of the land conveyed by defendant to plaintiff and county school land, which required a decision of the courts to determine the rights of the parties, limitations against an action by plaintiff against defendant for breach of warranty of title only began to run from the final judgment of the Supreme Court, adjudging that the county had title as against plaintiff in an action between them, and not from the date of plaintiff’s deed or of the filing of such action.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 254-258; Dec. Dig. § 47.]
    Appeal from District Court, Delta County; Wm. Pierson, Judge.
    Action by J. T. Talley against J. M. Hays and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Appellee brought tbe suit on June 25, 1912, against tbe appellants upon a covenant of general warranty contained in tbe deed of May 22, 1889, by wbicb appellants bad conveyed 80 acres of land in Delta county in tbe headrigbt of J. J. Nidever to Martha .Neathery, by whom, joined by her husband, R. E. Neathery, it bad been conveyed by deed, with covenants of general warranty, on October 22, 1900, to appellee. Tbe covenant of warranty, as alleged, is “to forever warrant and defend tbe title to said land unto tbe said Martha Neathery and her heirs and assigns against tbe claims of all others.” Appellants answered by demurrer and by general denial, and specially pleading tbe statute of limitation of four years in bar of tbe action. Appgllee, in a trial to tbe court, recovered a judgment against appellants on their warranty of title for $500, with 6 per cent, interest from August 1, 1911.
    Tbe court overruled the following special demurrer: “(3) Tbe defendants specially demur to said petition, and say tbe same shows on its face that if plaintiff ever bad a cause of action against defendants, that tbe same is barred by tbe statute of limitation of four years, and that defendants are not required to further answer thereto.” Tbe particular allegations of tbe petition to wbicb tbe demurrer was directed reads: “Plaintiff avers that since tbe conveyance from tbe defendants to Martha H. Neathery, and since the conveyance from Martha H. Neathery and R. E. Neathery to tbe plaintiff as set forth above, tbe title as attempted to be conveyed from tbe defendants to Martha Neathery and from her to tbe plaintiff herein has failed in whole. Plaintiff avers tbe facts to be: That at tbe time of each of tbe two conveyances above mentioned the superior and outstanding title to tbe said 80 acres of land was vested in Lamar county, Tex., and title to tbe same was not in tbe defendants or Martha Neathery at the time of each or either of tbe conveyances mentioned above. That Lamar county was tbe owner of said tract of land as and the same constituted a portion of tbe school land owned by Lamar county, wbicb fact was unknown to tbe plaintiff herein at tbe time of his purchase from tbe Neatberys. That Lamar county, in tbe assertion of its claim of title to said land, instituted its suit in tbe district court of Delta county, Tex., on tbe - day of May, 1905, for tbe recovery against tbe plaintiff herein of tbe title and possession of said tract of land. Said suit was styled ‘Lamar County v. J. T. Talley et al.,’ and numbered upon tbe docket of said court 1309; said suit was against other persons than tbis plaintiff and for tbe recovery of other lands not necessary here to mention. That upon a trial of said cause in tbe district court of Delta county on tbe 22d day of January, 1909, judgment was rendered in favor of tbis plaintiff and tbe other defendants in said cause and against Lamar county appealed to tbe Court of Civil Appeals of tbe Fifth Supreme Judicial District of Texas, wbicb last-named court beard said cause on tbe 26th day of February, 1910 (127 S. W. 272), and rendered its judgment reversing tbe judgment of tbe district court of Delta county rendered therein, and entered judgment in favor of Lamar county and against tbis plaintiff for tbe title and possession of said tract of land. That tbis plaintiff and tbe other defendants in said cause appealed from tbe judgment rendered by tbe Court of Civil Appeals to tbe Supreme Court of tbe state of Texas, wbicb last-named court beard said cause on tbe 24th day of May, 1911 (Talley v. Lamar County, 104 Tex. 295,137 S. W. 1125), and rendered its judgment affirming in all things the judgment as rendered by the Court of Civil Appeals in said cause, which last-mentioned judgment was final and from which there was no further appeal. On August 1, 1911, Immediately after the final judgment of the Supreme Court, Lamar county tocfk possession of the said tract of land and ousted the plaintiff herein from possession of the same. That plaintiff in good faith defended his title to said tract of land, expending in the defense of said suit the sum of $500. That defendants have failed to defend the title to said property. That by reason of the covenant of warranty contained in the said conveyance from the defendants to Martha H. Neathery and the conveyance from Martha H. Neathery to the plaintiff as set out above, and by reason of the failure of the title to said land as set out above, the defendants are liable to the plaintiff upon their covenant of warranty as made to Martha H. Neathery and her assigns for the said sum of $560, paid to Martha and R. B. Neathery by the plaintiff as purchase money for the said land, together with interest on said amount at 6 per cent, from August 1, 1911,” etc.
    Patteson & Patteson, of Cooper, for appellants. Newman Phillips, of Cooper, for ap-pellee.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   LEVX, J.

(after stating the facts as above). The first assignment predicates error on the' part of the court in overruling the special demurrer of limitation to the petition. According to the allegations in the petition, Lamar county ousted appellee from the actual possession of the land on August 1, 1911, after the decision and judgment of the Supreme Court on May 24, 1911, in the appeal of the causé of Lamar county against appellee, which finally decreed title to the land to be residing in Lamar county, and made evident the want of any title in appellee. The effect of the allegations is to show an actual eviction of appellee from the land on August 1, 1911, and a complete legal failure of title in appellee, claiming under deed from appellants relating to the time of such conveyance, as finally determined by a contest in the courts under judgment of the Supreme Court on May 24, 1911.

It is laid down as a rule that the statute of limitations against an action on the breach of a covenant of warranty of realty does not commence to run until an eviction, actual or constructive, under a superior outstanding title. Jones v. Paul, 59 Tex. 41; Westrope v. Chambers, 51 Tex. 178; Clark v. Mumford, 62 Tex. 531; Alvord v. Waggoner, 29 S. W. 797; Wood on Limitations, § 173.

And whatever may be said concerning the ultimate fact that Lamar county was the superior owner of the land as a part of her public school lands, and about limitation not operating as in similar suits against private individuals, we think that in the instant suit limitation should not be held to have run against the suit on warranty of title against appellants until after the alleged eviction and failure of title. Por the facts pleaded show, when properly construed, that the parties were dealing with each other about the land as being “in the headright of J. J. Nidever,” and were not undertaking to contract about school lands belonging to Lamar county; and1 if there was any conflict of title or location of the land as between the Nidever survey and Lamar county school land, as we must presume from the facts, it was upon such facts and law as to require the courts to' determine the rights of parties, and hence limitation began to run against the warranty of title only from the final judgment of the Supreme Court as pleaded, and not from the date of the deed or date of filing of the suit. Alvord v. Waggoner, 29 S. W. 797, approved by Supreme Court on limitations; Eustis v. Fosdick, 88 Tex. 615, 32 S. W. 872; Williams v. Finley, 99 Tex. 468, 90 S. W. 1087; Trevino v. Cantu, 61 Tex. 88: Sievert v. Underwood, 124 S. W. 721. Reference: Seibert v. Bergman, 91 Tex. 411, 44 S. W. 68.

The second assignment, which is the only other assignment, cannot be considered, for the motion for new trial does not contain such assignment.

The judgment is affirmed.