author: FLY, C. J.

text:
    ROWE v. DYESS et al.
    (No. 5471.)

    (Court of Civil Appeals of Texas. San Antonio.
    May 12, 1915.
    Rehearing Denied June 16, 1915.)
    Executors and Administrators ®=7 — Withdrawal oe Administration — Right of As-signee of Heir — Statute.
    • Rev. St. art. 3384, providing that at any time after the return of inventory, appraisement, and list of claims, any one entitled to a part of an estate may file a complaint to cause the administrator to render an exhibit of the condition of the estate, and article 3385, providing that the persons so entitled.to such estate may execute a bond for double its appraised value, conditioned to pay all the unpaid debts against the estate, and to pay the administrator any balance due him by the judgment of the court on his exhibit, whereupon the court shall declare the administration closed, the assignee of an heir complying therewith was entitled to have the estate withdrawn from administration.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 19, 20; Dec. Dig. <§=>7.]
    Appeal from District Court, Wharton County; Sam’l J. Styles, Judge.
    Application by A. D. Dyess and another to withdraw the administration of the estate of John T. and Josephine Rowe from the court, opposed by S. P. Rowe. From an order granting the application on appeal from a denial thereof in the county court, the opponent appeals.
    Affirmed.
    Rowe & Doughty, of Houston, and G. G. Kelley and W. L. Hall, both of Wharton, for appellant. Dufrett & Dyess, of Temple, and H. A. Cline and Jno. A. Barclay, both of Wharton, for appellees.

       Writ of error pending In Supreme Court.

   FLY, C. J.

In the county court of Wharton county appellees filed an application to withdraw the administration of the estate of John T. and Josephine Rowe from the court. A plea to the jurisdiction and in abatement were filed by appellant to the application of appellees. The application to withdraw the administration was denied by the county court, and the cause was appealed to the district court, where the application to withdraw was granted. The appeal to this court is from that order. There is no statement of facts filed in this court, and of course any and all assignments of error based on facts cannot be considered.

It is admitted that appellees own the half interest of S. P. Hill, an heir to one-half of the estate, and the latter sought to join in the application for withdrawal of administration, but that privilege was denied him by the court There is nothing to show that any debts existed against the estate, unless the exhibit of the administrator be evidence, and the record does not disclose to whom the remaining half of the estate belongs.

It is provided in article 3384, Revised Statutes, that:

“At any time after the return of inventory, appraisement and list of claims of a deceased person, any one entitled to a portion of said estate, as heir, devisee or legatee, or his guardian, if he be a minor, may, by a complaint in writing, filed in the court where such inventory, appraisement and list of claims have been returned, cause the executor or administrator of the estate to be cited to appear at some regular term of the1 court and render an exhibit under oath of the condition of such estate.”

In the succeeding article it is provided that “the persons so entitled to such estate, or any of them, or any persons for them may execute” a bond for an amount at least double the appraised value of the estate conditioned that the persons executing the bond shall pay all the debts against the estate unpaid, that have been allowed by the executor or administrator and approved by the county judge, or that have been established by suit, or tha,t may be so established and will pay the executor or administrator any balance found to be due him by the judgment of the court on his exhibit. When the provisions of the law are complied with it is made the duty of the court to discharge the executor or administrator and declare the administration closed.

It is not denied that every requirement of the articles cited were fully complied with, but the contention is that the assignee of an heir, devisee, or legatee has no authority under the statute to give the bond and withdraw the estate from administration. The case of Wadsworth v. Chick, 55 Tex. 241, is cited as sustaining the proposition. The opinion in that case is obscure, and not at all satisfactory. However, it is not applicable to the facts of this case. Mrs. Wadsworth claimed that the decedent causa mortis, in view of death, gave her the whole estate, and sought to take possession by giving the bond hereinbefore described. It was held that she was neither heir, devisee, or legatee, and could not obtain possession except by instituting suit in a court of competent jurisdiction and proving that she owned the property. The court did not undertake to say that she could not have given bond and have obtained possession of the property if she had owned the property through a conveyance from the heirs, devisees, or legatees. No Texas case has ever so held.

In this case there was no contest as to the ownership of one-half of the property being in appellees, who had bought it from 1-Iill, an heir of decedent. No issue as to ownership arose, the only question being: Did the ven-dees of the heir to the estate have the same rights given him as to the withdrawal of the estate from administration? If taken literally, there is no provision in the statute giving authority to the assignee or vendee of an heir, devisee, or legatee to withdraw the estate, in which he has bought an interest, from administration. The act in question is, however, a remedial statute, its object being to save the expenses of administration, which is undoubtedly conducive to the public good. The same benefit would accrue, the same good be accomplished, the samé beneficent ends attained by permitting the assignee or vendee of the heir, devisee, or legatee to withdraw the estate from administration as would be attained by the withdrawal at the instance of the heir, devisee, or legatee. The same .arguments in favor of the one can be advanced as reasonably and forcefully in favor of the other. All the reasons which induced the passage of the law apply to the one class as the other. Remedial statutes must be construed most liberally to effectuate the remedy and gain the desired end, and the remedy in view and the end sought for in this case being the prevention of accumulated costs! to estates and the placing of those entitled to the same in possession thereof without long delays, the Legislature must have intended to give the benefits of the law, not only to the heirs themselves, but to those who have purchased their interests in the estate. Courts should follow the reason and spirit of remedial statutes in order to accomplish the good to be attained in the one instance, or the evil to be destroyed in the other, and in doing these things courts are justified in going beyond the letter of the statute. “What is within the intention is within the statute though not within the letter ; and what is within the letter but not within the intention is not within the statute.” Sutherland, Stat. Constr. § 411. As said by the same author in section 410:

“A remedial statute must be construed, if possible, so as to correct the mischief at which it is aimed. * * * ”

We think the object of the law in question was to authorize any one owning an interest in the estate to withdraw it from administration by complying with the terms of the statute.

The intention of the Legislature may be ascertained by the terms of like statutes bearing upon estates. For instance, in article 32.63, Rev. Stats., it is provided that “when application is made for letters of administration upon an estate by a creditor, and those interested in the estate do not desire an administration thereupon, they can defeat such application” by either paying the creditor, by proving that the claim is not well-founded, or by giving bond to pay the debt if established in a suit. It cannot be doubted that under the terms of that statute the assignee or ven-dee of heirs to their portion of the estate could prevent the estate from being administered, for such vendee would be interested in the estate. If it be deemed expedient to lodge such power in a vendee in the inception of an administration, no sound reason can be urged against giving him power to withdraw the administration after it had been entered into. We draw the inference from the provisions of article 3263 that the Legislature intended to include within its provisions not only heirs, devisees, and legatees, but also their assignees or vendees.

'Heirs, devisees, or legatees can alienate their interest in an estate, and in reason and common sense those who purchase from them should occupy the same position of advantage or disadvantage as that occupied by their vendors, and it will not be assumed that the Legislature intended to take from the as-signee or vendee any power or authority given to the heir. No good could possibly result from withholding from a vendee of an heir the power of withdrawal of the estate from administration, and the same rights would be conserved in giving such vendee the power of withdrawal as in giving the authority to the heir. We cannot imagine that the omission in the law was one intentionally made, and that it would not have been remedied had it been deemed that the law was not full enough to include vendees, and it was the intention of the Legislature to extend the benefits and burdens of the statute to all persons interested in the estate, that is, every one owning a part of the estate. The Legislature may have deemed it unnecessary to mention vendees or assignees of heirs, devi-sees, and legatees, but reasonably concluded that they would occupy exactly the same relation to the estate as their vendors. The vendee does in truth obtain through his vendor all the rights of the latter in connection with the property, not expressly reserved by the vendor. So if the vendor has had adverse possession of the property for a certain length of time, that inures to the benefit of the vendee, and he can use that time in making out a title by limitation, although a strict construction of the statute would lead to the ruling that the possession must be held by one person for the statutory time. Courts have uniformly held, however, that those statutes mean that a person can avail himself of the adverse possession of those under whom he claims, although in article 5679 it is provided:

“That the person having such peaceable and adverse possession shall be held to have full title, precluding all claims.”

The Legislature and the courts have acted on the principle that the vendee obtained all rights given by law to the vendor.

In article 3455 it is provided that heirs, devisees or legatees are not compelled to present their claims as such to an executor or administrator, and it has never been held, and it would be utterly unreasonable to hold, that the assignee or vendee of either of the persons mentioned would be required to present a claim for his part of the estate. The mere fact that he had a conveyance from the heir, devisee, or legatee, puts the vendee in the place of the vendor, and gives the vendee all the rights of the vendor. We are of the opinion that the irresistible conclusion must prevail that the deeds of S. P. Hill to appel-lees placed in their hands the rights given to heirs, devisees, or legatees by articles 3384, 3385, and 3386. It may be true, as claimed by appellant, that' whenever by statute a right is given a particular class of persons only such persons have the right given, but we are of opinion that appellees, as vendees of the heir to one-half the Bowe estate, were in the class with heirs, devisees, or legatees of the estate.

There is no merit in the contention that the court erred in allowing appellees one-half the estate “in face of paid claims of the estate,” for their bond covered all the debts justly chargeable to their part of the estate. The judgment followed the statute.

The judgment is affirmed.
      <g=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    DYESS et al. v. ROWE.
    (No. 5476.)

    (Court of Civil Appeals of Texas. San Antonio.
    May 12, 1915.
    Rehearing Denied June 16, 1915.)
    1. Executors and Administrators <§s=>lll — • Allowance to — Attorney’s Fees.
    An administrator who contested the right of an heir of one-half of the estate for the place, engaged three attorneys who represented him in that suit and established a claim by the administrator as an individual, against the estate. Held, that for such services as well as for defeating a contest to withdraw the estate from administration, the administrator was not entitled to an allowance for fees paid the attorneys, for such services were for the benefit of the administrator and not the estate.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 25; Dec. Dig. <®^111.]
    2. Executors and Administrators @=^7 — Withdrawal of Estate from Administration.
    Upon compliance with Bev. St. 1913, arts. 3384-3386, an estate may be withdrawn from administration, and it is the duty of the court under article 2025 to discharge the administrator, and attorneys’ services rendered in resisting the discharge should not be paid by the estate.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 19, 20; Dec. Dig. <S=»7.]
    Appeal from District Court, Wharton County; Sam’l J. Styles, Judge.
    Claim for attorney’s fees by S. P. Bowe, as administrator, -was allowed, and A. D. Dyess and another, who objected, appealed to the district court. From a judgment there allowing the full claim, they again appeal.
    Be-versed and rendered.
    Durrett & Dyess and Edmund Heinsohn, all of Temple, and H. A. Cline and John A. Barclay, both of Wharton, for appellants. D. F. Bowe, Leonard Doughty, and John A. Bal-lowe, all of Houston, and G. G. Kelley and W. L. Hall, both of Wharton, for appellee.

       Writ of error pending in Supreme Court.

   FLY, C. J.

The record in this case indicates that appellants own a half interest in the estate of John T. and Josephine B. Bowe, deceased, and are contesting the claim of ap-pellee, the administrator of the estate, for $1,000 claimed to have been incurred for attorney’s fees. The claim was approved by the county court, and the cause was appealed by appellants to the district court, where judgment for the full amount of the claim was rendered. From that judgment this appeal has been perfected.

The evidence shows that appellee had employed three attorneys, to whom he was to pay, one $400, one S350, and another $250, making in the aggregate $1,000. The estate is valued at $15,000 or $16,000. The fees were to be paid for services performed in a contest between S. P. Hill and appellee for the place of administrator, and in the contest as to withdrawing the estate from administration, and also for services in establishing a claim by appellee as an individual for $7,-000 against the estate. It was stated by the attorneys that they were representing the estate, but the facts show that they were representing all the claims against the estate made by appellee as an individual, as well as the administratorship.

It has been held in some states that executors or administrators would be entitled to reimbursement for attorney’s fees expended in good faith in establishing or resisting a will, or in maintaining an administration. The test, it is held, must be that the fees were expended for the benefit of the estate, or those ultimately entitled to the property. Woerner, Am. Law of Administration, § 517. The fees involved in this case were not incurred by an administrator in defending the estate against the claims of some outside party, but as against an heir to half the property, to prevent him from being appointed administrator, and to prevent the administration from being withdrawn. The evidence fails to show that the contest for the admin-istratorship was in the interest of the estate, but indicates it was rather in the interest of appellee, and even under the rule adopted in some states, appellee should not have recovered the attorney’s fees. .

There is no provision in the statutes of Texas for the payment of expenses incurre,d in the contest of an administration. The statute authorizes a contest of an application for administration by any person interested in an estate, and it will not be contended that if such contest is successful that the person applying for administration would have any claim against the estate for fees paid to his attorney for services rendered in the contest. Such fees would be the debt of the applicant for letters and not that of the estate, because it is a debt not authorized by the estate or any one qualified to act for it. The applicant would hold no higher position than the contestant, and though the applicant may have been the winner in the contest, we are unable to see that his attitude toward the estate, before the appointment, was changed. If the successful party in the contest could make the estate pay for the contest, it puts the opposing party at a disadvantage seemingly not contemplated by the statute. There is no authority in Texas directly on this point, the Supreme Court having only held that an executor or administrator has the authority to employ an attorney to represent the estate “while in course of administration by him.” Callaghan v. Grenet, 66 Tex. 236, 18 S. W. 507. The statute provides for the payment of “reasonable expenses necessarily incurred by them in the preservation, safe-keeping, and management of the estate and reasonable attorney’s fees that may be necessarily incurred by them in the course of the administration,” and while courts have allowed attorney’s fees for filing an application for letters, it is as far as the courts of Texas have gone. It seems like an unwarranted expansion of the term “expenses of administration” to extend it to counsel fees incurred in a contest, between an heir and a person who has bought the interests of other heirs, for the administration of an estate. If the counsel fees of one should be paid, why not the other? In this case we have a concrete example of what may be expected if such claims are sustained. Three attorneys were employed, at an expense of $1,000, to obtain letters of administration, nothing more, if appellee’s theory of the evidence be correct. For such purposes one attorney or firm would, it seems, be amply sufficient to perform the service mentioned, at a much less fee than was given to either of the attorneys in this case. For such service it may be permissible to pay a reasonable fee, but no estate should be made to pay for the luxury of a contest among heirs or legatees as to the administration, and incidentally allow fees for legal services performed in obtaining approval of other claims in favor of the administrator to consume a large portion of the estate. Bell v. Goss, 33 Tex. Civ. App. 158, 76 S. W. 315.

In the case last cited the temporary administrator sought to recover an attorney’s fee for legal services rendered in a case between him and heirs of the estate, and the court held:

“The appellant in his answer asked that a reasonable fee be allowed for his attorney representing him on appeal to the district court, which was denied, and of this he complains. We see no error in this action. This was not a matter concerning the proper administration of the estate, but one in which his interest was antagonistic to that of the estate, which con■cerned him personally and an expense for which the estate was not liable.”

In an old probate act quoted from by the Supreme Court in Williams v. Robinson, 56 Tex. 347, it was provided:

“That the attorney fees, which are allowable as part of the expenses of administration, are those which were for services in a controversy or controversies between the estate and other persons, and includes fees for advice or assistance in administering the estate.”

The true rule is contained in that quotation. The suit contesting the appointment of appellee was not a controversy between the estate and other persons, but was a contest between Hill and appellee for the appointment Speaking in a similar case, the Supreme Court held:

“A part of the fee was for services rendered to appellee in resisting the attempt to have him removed from the administration, and for which, it would seem, he would be individually liable.”

That is decisive of this case in so far as the services rendered to prevent Hill from being appointed administrator.

If appellants sought to withdraw the estate under the terms of articles 3384, 3385, and 3386, Revised Statutes, no contest should have been made, and appellee should not have opposed such withdrawal, and legal services rendered to prevent the withdrawal should not be paid for by the estate. It was the duty of the court, if the statutes were complied with, to discharge the administrator without a contest. Article 2025; Houston v. Mayes, 66 Tex. 297, 17 S. W. 729.

The proof in this case showed that appel-lee paid only $400 on the attorney’s fees, and there is no authority for him claiming that more than that amount is due him. If the attorneys had claims against the estate they should have presented them in the legal manner. The evidence in this case shows that the services of the attorneys were rendered largely in prosecuting the claims of ap-pellee against the estate of which he was the administrator, and the estate should not be forced to pay for such services. It should not be held to pay for the ammunition which was discharged into its vitals, but the man who used the services and to whom they proved of great benefit should pay the bills. Outside of the contests in which appellee was individually concerned, the administration of the estate was of the simplest nature, and a small fee would have been amply adequate for the services rendered.

The evidence indicates that the attorneys were representing the estate and the conflicting interests of appellee. The attorneys admitted that they were representing appellee in his claims against the estate, in resisting the withdrawal of the estate from administration, in the contest as to the administrator and in this suit to establish this claim for $1,000. It cannot be said that the attorneys were representing the estate in pressing claims against it for at least $8,000, and, whether any fee was charged for that service or not, the conflict of interests is exactly the same. No court should sanction such actiou, however innocently the attorneys may have acted in the premises, for if it be contrary to public policy to permit counsel in a receivership case, who had served the interests of another party at the same time he was serving the receiver, to recover a fee from the receiver, as held by the Illinois Supreme Court in Strong v. Brennan, 183 Ill. 97, 55 N. E. 675, 47 L. R. A. 792, how much more would it be contrary to public policy to permit counsel to recover fees from an estate when they were admittedly also in the employment of an individual whose interests were antagonistic to those of the estate. It is true that appellee, and not the attorneys, is suing for the fee, hut if it he contrary to public policy for them to recover the fee, it is contrary to public policy to permit the administrator to recover it for them. It is admitted by appel-lee that attorneys are not permitted to represent conflicting interests, hut his position seems to be that if the services are given to one of the parties and a heavy fee charged against the other, there is nothing reprehensible in it. Each one of the attorneys admitted that he was representing Rowe as administrator and Rowe as an individual, and while this court is inclined to the opinion that all the services were performed for the individual, in either event he should not recover the attorneys’ fees from the estate. It is not a question of who is called upon to pay the fee, but a question of whether an attorney, who is acting adversely to an estate, should be allowed to recover pay for his services from the estate. As said by the Supreme Court, in Douglass v. Blount, 95 Tex. 369, 67 S. W. 484, 58 L. R. A. 699:

“The relation that attorneys occupy towards their clients is of a very delicate character, in the highest degree confidential, and demands of the attorney the utmost good faith and that he refrain from ‘the appearance of evil’ in the conduct of his client’s business.”

It would be unconscionable and in the face of public policy to hold that an administrator could recover attorneys’ fees for attorneys who were engaged in representing him in his fiduciary capacity as administrator, and at the same time were representing him in contested claims against the estate of which he was the administrator. Such divided service cannot be requited by the innocent client.

The judgment of the trial court is reversed, and judgment here rendered that appellee take nothing by his suit and pay all costs in this behalf expended.
      <gn^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. RYON.
    (No. 7311.)

    (Court of Civil Appeals of Texas. Dallas.
    April 10, 1915.
    Rehearing Denied June 19, 1915.)
    1. Negligence <§=>56 — “Proximate Cause” —What is.
    A proximate cause is not necessarily the last cause that produces a result, but is that which produces or actively aids in producing the result, or that which concurs with the last cause to produce the result which might reasonably have been contemplated under the attending circumstances.
    [Ed. Note. — Por other cases, 'see Negligence, Cent. Dig. §§ 69, 70; Dec. Dig. <§=>56.
    Eor other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]
    2. Carriers <§=>320 — Carriage oe Live Stock —Negligence—Proximate Cause.
    An initial earner of live stock required the shipper to accompany the stock, and at intervals look after the same. It failed to properly bed the car, which, while on a side track of the connecting carrier, was struck by cars operated by the connecting carrier, so violently as to throw one of the animals on the floor, injuring the shipper then in the car. Held that, whether the failure to properly bed the car was negligence, and, if negligence, it concurred with the act producing the result, was for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1283, 1244, 1248, 1315-1325; Dee, Dig. <§=>320.]
    3. Carriers <§=>290 — Carriage oe Dive Stock —Negligence—Proximate Cause.
    The failure of the initial carrier to properly bed the car rendered it liable for the injury to the shipper, since the result could reasonably have been anticipated by the initial carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1168, 1169, 1177, 1178, 1180, 1182-1184; Dec. Dig. <§=>290.]
    4. Carriers <§=>306 — Carriage oe Live Stock —Negligence—Proximate Cause.
    The initial carrier selling a passenger ticket entitling the purchaser to ride over the line of the initial and connecting carriers, but without any stipulations as to liability for accidents, did not thereby relieve itself from liability for injuries received on the line of the connecting carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1249-1251; Dec. Dig. <§=53(36.]
    5. Customs and Usages <§=>10, 21 — Validity —Evidence.
    Customs of trades and provisions not repugnant to express statutes or rules of law have the force of law, but whether a custom exists, is one of fact.

    [Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. §§ 9, 17; Dee. Dig. <§=510, 21.]
    6. Negligence <§=>61 — Proximate Cause.
    Negligence of intermediate agencies may be the proximate cause which sets in motion the concurring act of negligence of another for which the latter will, in ease of loss or injury, be liable.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 74, 75; Dec. Dig. <§=>61.]
    7. Evidence <§=>481 — Opinion Evidence — Admissibilty.
    One having an experience of 15 or 20 years of shipping live stock, may testify that it is usual and customary to bed cars with sand or hay to enable stock to stand.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2248-2254; Dec. Dig. <§=>481.]
    8. Appeal and Error <§=>1040 — Harmless Error — Erroneous Rulings on Pleadings.
    Where issues raised by allegations in a petition to which special exceptions were overruled, were not submitted, and defendant’s liability was predicated on other facts, the ruling was immaterial.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. <§=> 1040.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Claude Ryon against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    C. C. Huff, and Lawther, Pope & Mays, all of Dallas, for appellant. W. W. Helms and El. J. Oibson, both of Dallas, for appellee.

       Writ of error pending in Supreme Court.

   RASBURY, J.

Appellee sued appellant for damages for personal injuries alleged to have been negligently inflicted upon him by the appellant and its connecting line, the Missouri, Kansas & Texas Railway Company. The negligence alleged was the act of appellant’s said connecting line in driving an engine and cars violently against a detached box car, containing two mules accepted by appellant for shipment from Dallas, Tex., to Oklahoma City, Okl., while appellee was in the car safeguarding the mules, and the act of appellant in failing to bed the car in which the mules were shipped, by reason of which acts appellee and one of the mules in the car were thrown violently to the car floor, the mule falling upon appellee’s right leg, breaking same in two places and injuring his ■ right ankle. Appellee also alleged that appellant and its connecting line, the Missouri, Kansas & Texas Railway Company, while existing under separate charters, were in fact one and the same corporation, reciting certain facts ip support of the allegation; also, alternately, that if not in fact identical they were partnership corporations, reciting also certain facts in support of that allegation.

In addition to the general demurrer and several special exceptions hereinafter referred to, appellant denied that it and the Missouri, Kansas & Texas Railway Company was -in fact one line or partners; that if appellee was injured as claimed such injury occurred on the line of the latter company, and as the result of the wrongful acts of its agents and servants, over whom appellant • had no control, direction or authority, and in which acts if true, it in no respect participated. ' All demurrers were overruled and the case submitted to the jury upon special issues of fact. Upon the jury’s findings upon the issues so submitted the court upon motion rendered judgment for appellee for $1,-500. Motion for new trial was overruled, and the appellant, within the time and manner provided by law, has brought the case to this court for review upon proper assignments of error.

The jury adopted appellee’s version of the facts, and in deference to such finding the evidence will support the following conclusions thereon stated in our own language, to wit,’ J. B. Pace, engaged in buying and selling mules, employed appellee in compliance with appellant’s regulations in that respect, to accompany and safeguard two mules which he was about to-ship from Dallas to Oklahoma City, and made his arrangements in that behalf with appellant the day before he delivered them for shipment. When the mules were presented the following day appellant did not have a car ready. Pace inquired of the agent concerning the matter and the agent explained that he did not have a stock ear and that the mules would have to be transported in a box car. Pace remonstrated on the ground that a box car was unsuitable and not bedded. The agent indicated that the box ear was the best at hand and declined to bed the car. Pace acquiesced, and the mules were loaded into the box car and tied or hitched- therein with halters and proceeded on their journey, accompanied by appellee, as a part of a train of cars made up by appellant at Dallas. The train left Dallas on a Friday about 6 p. m., and continued its journey uninterrupted by change until it reached Atoka, Okl., about 2:30 in the afternoon of Saturday following, at which place and time it was detached from the train and placed upon a switch track in the yards, the conductor explaining to appellee that the car would remain there until the afternoon of Sunday, when it would be picked up by another train and carried to destination. After the car containing the mules had been placed on the switch appel-lee looked into the ear and discovered that one of the mules was loose. He entered the car and retied the mule. Just as appellee had completed his task and was turning to leave the car a “string” of cars was driven against the car containing the mules with great violence, throwing the mule to the floor. As the mule fell he struck appellee, throwing him to the floor and falling upon him, breaking his leg and injuring his ankle. No issue is made in reference to the extent of appel-lee’s injuries or any physical pain, etc., resulting therefrom while he remained in Ato-ka, and for that reason we do not deduce from the evidence the salient facts in that respect. The appellant, in addition to requiring the mules to be accompanied by a drover (appellee), also required the shipper to-purchase for the drover a first-class railroad ticket, which was done. In connection with the ticket appellant also issued appellee a drover’s pass, a part of the contract of shipment, regulating the manner and method of caring for the stock by the drover, etc., and his entry into the car containing the mules. The ticket so sold was issued by the officers of appellant and was a first-class ticket for which appellee’s employer paid full fare and was known as a coupon ticket, the first coupon entitling appellee to travel over the line of appellant to Red River or the state line, the other’ coupon entitling him ■ to ride over the line of .the Missouri, Kansas & Texas Railway Company from Red River, the state line, to Oklahoma City. The ticket also required appellee to make a continuous journey after boarding the cars to destination, and contained no provision limiting appellant’s liability to its own line. The contract of shipment also provided for a through shipment from Dallas to Oklahoma City over the line of appellant and its connecting line, the Missouri, Kansas & Texas Railway Company,’ and was issued by the agents of appellant. It is proper and customary to bed cars with straw, sand, or cinders when shipping stock, in order to prevent them from falling to the floor of the car in- case of sudden jolts or jars of the car; such danger, in • the absence of bedding being enhanced by the urine and droppings from the animals. It is not safe to ship them- in uhbedded cars. It is proper to say that on all material issues of fact, save and except as to the character of the ticket and the provisions of the contract of shipment, there was sharp conflict, and a verdict for appellant could have been sustained thereby.

Without reference to the arrangement of the issues in the briefs we consider first appellant’s claim that by the evidence it was entitled to verdict, and that the court erred in refusing to so peremptorily instruct the jury. In this respect it is first urged that fhe direct and proximate cause of the injury to appellee was the negligence of another. Simply stated appellant contends, waiving for the time all other collateral issues, that the injury would not have occurred but for the negligent act of its connecting line, the Missouri, Kansas & Texas Railway Company, in driving its engine and cars against the car in which appellee was at the ■time of his injury. We thinlr not. The proposition ignores, as a concurring cause of the injury, the negligence of appellant in failing to properly bed the car. The evidence tends to show that in order to make the floor of the car safe both for the mules and the drover (appellee) it was necessary to bed same. It also appears from the shipping contract that it was contemplated that appellee would at intervals enter the car to look after the mules. Thus it could be argued with equal force that the injury would not have occurred but for the slippery condition of the ear floor resulting from the failure to bed same. The case presented here is controlled by the rule that holds that proximate cause is not necessarily the last cause that produces a result, though it may be, but is that which produces or actively aids in producing the same; or stated in other words, that which concurs with the last cause to produce the result, and which might reasonably have been contemplated under the attending circumstances. Gonzales v. City of Galveston, 84 Tex. 3, 19 S. W. 284, 31 Am. St. Rep. 17; M., K. & T. Ry. Co. v. Harrison (Civ. App.) 77 S. W. 1036. The rule being, as we have indicated, the act of appel-lant’s connecting line in driving its cars against the ear containing appellee and the mules was not conclusive of the issue, and a peremptory instruction would have been improper, since it remained for the jury to determine whether appellant’s failure to bed the car was negligence, and if negligence whether same concurred with the last act in producing me injury to appellee; for as said in M., K. & T. Ry. Co. v. Harrison, supra:

“If the injury is- produced by the concurrent acts of negligence of two or more persons, although their acts are distinct and separate, they incur a joint liability for the injury they pro-duce.” ■ • ■

But it is urged in effect that failure to bed the car even if negligence is not available to appellee, since the duty to bed was for the protection of the mules and not appellee, to whom appellant owed no duty in that respect. The correctness of the point thus raised depends, as was said in T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, upon “whether a reasonably prudent man, in view of all the facts, would have anticipated the result — not necessarily the precise actual injury, but some like injury — produced by similar intervening agencies” and as said in the earlier case of Seale v. Railway Co., 65 Tex. 274, 57 Am. Rep. 602, upon whether the intervening or concurring cause “and its probable or reasonable consequences be such as could reasonably have been anticipated by the original wrongdoer.” Applying the rule stated to the facts of this ease we are compelled to the conclusion that what resulted should reasonably have been anticipated. Appellant would not agree to accept the mules for transportation unless they were accompanied by a drover (appellee), who was required to look after the welfare of the mules, feeding dnd watering them and otherwise preserving their safety. To perform such duties it was necessary, of course, for appel-lee to enter the car where the stock was. Appellant knew the drover would enter the car, in fact required him to do so, and regulated the time and manner of such entry. Possessing such knowledge we think it clear that a reasonably prudent person would have anticipated what did happen or some like or similar result.

It is also urged that appellants connecting line,- the Missouri, Kansas & Texas Railway Company, is alone liable to appellee for the reason that appellee was on its line of railway by virtue of a ticket' issued over its line when he received his injuries. We are of opinion that the railway ticket issued to appellee and by virtue of which alone he was entitled to be upon the cars in no respect, affected appellant’s liability for its act of concurrent negligence, since-obviously appellant would in any event be liable for its own negligence. The ticket sold appellee by appellant entitled him to ride over the line of appellant from Dallas to Red River, the state line, and from thence over the line of the Missouri, Kansas & Texas Railway Company to Oklahoma City, without limitation or reservation. It is in effect held in Harris v. Howe, Rec., 74 Tex. 534, 12 S. W. 224, 5 L. R. A. 777, 15 Am. St. Rep. 862, that a carrier may voluntarily contract to transport a passenger beyond its own lines, and may for that purpose employ the agents and lines of subsidiary carriers; and, in . view' of such rule it is common, as appears from the cases, for carriers to provide, in tickets calling for transportation over several lines, that •the. carrier selling same acts as agent for the connecting carriers. Such provision is held to limit liability against thé selling carrier to acts of negligence occurring upon its own line. Appellee’s ticket had no such provision. Whether therefore the ticket upon which ap-pellee was traveling was an express contract to safely transport appellee at all events to his destination and could support this cause of action independent of appellant’s concurring negligence, it is not necessary to decide, but that it did not have the effect, under the facts of this case, to exempt appellant for its concurring negligence under the rules stated, we think certain.

It is further urged that verdict should have been directed for appellant, for the reason that it is not customary for carriers to bed cars for the safety of stock, especially in less than full cars. This question was for the jury. Usages and customs of particular trades and professions, when not repugnant to express statutes or rules of law, have the force of law, and whether they exist as indicated is a question of fact to be proven under the rules of evidence, from which it follows, as matter of course, that the district judge did not err in refusing to direct verdict for appellant in that respect.

It is next urged that the court erred in defining proximate cause as that which “produces or contributes to produce an event, and without which such event would not have occurred” and in refusing to define proximate cause as requested by appellant as “that which * * * produces an event’without any other cause intervening,” etc. The requested charge is clearly erroneous. All authority concedes that the negligence of intermediate agencies may be the proximate cause which sets. in motion the concurring act of negligence on the part of another agency for which the latter will in case of loss or injury be liable. This rule the requested charge not only omits, but, on the contrary, affirmatively directs the jury that it may not be considered, since it is there declared that the cause must be produced “without any other cause intervening.” The rule stated in the charge is the antithesis of the rule as it exists.

There was no error in permitting the witness Race to detail what would probably result if the mules were shipped in a car not properly bedded, and to detail what would probably result to them if shipped in ears not bedded at all, and what would probably result to the stock in either case if a string of cars was driven against the car containing such mules. Pace had had an experience of 15 or 20 years in shipping stock, and testified that it was usual and customary to bed the cars with sand or hay to enable stock to stand, while if not bedded the cars for the reasons herein stated would become so slippery as to make it impossible for the stock to stand in case of slight jar of the car. If such was the custom, and the jury so found, the evidence was admissible and entirely proper for the purpose of showing that upon failure to bed the appellant could reasonably have anticipated the intervening act of the Missouri, Kansas & Texas Railway Company and its consequences.

The remaining issues relate to the action of the court in overruling the general demurrer, and certain special exceptions directed by appellant to the sufficiency of the facts, by which it was sought to establish that appellant and its connecting line was in fact one and the same corporation and in the alternative partners. The action of the court in the respect stated is immaterial, since neither issue was submitted to the jury, and for the further reason that appellant’s liability is predicated upon facts entirely disassociated from the facts constituting the legal status of appellant and its connecting line.

Finding no reversible error in the record, the judgment of the court below is affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    NATIONAL STATE BANK OF MT. PLEASANT, IOWA, v. RICKETTS et al.
    (No. 713.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 1, 1915.
    On Motion for Rehearing, June 12, 1915.)
    1. Sales <$^>364 — Breach of Warranty — Constructions — Applicability to Evi-bence.
    In an action on notes given for the purchase price of a horse, where the defense was that he was not registered as represented, and there was evidence on behalf of plaintiff that the former owner had applied for and received a certificate of registration for the horse sold, but that by mistake the certificate described him as having a star, it was error to refuse a requested charge that, although the certificate described a horse with a star, still if it was issued for the horse sold the jury should find he was a registered horse.
    [Ed. Note.—Eor other cases, see Sales, Cent. Dig. §§ 10G5-1076; Dec. Dig. <@=^364.]
    2. Trial <@=^260—Requested Charges—Repetition—General Charge.
    A charge by the court, that if the jury should find that the horse was registered plaintiff could recover, does not justify , the refusal of such requested charge, since a charge generally stating the principle of law does not justify the refusal of a requested instruction specifically applying the law to the facts stated.
    TEd. Note.—Eor other cases, see Trial, Cent.Dig. §§ 651-659; Dec. Dig. <®^>260.]
    3. Exceptions, Bill op <@=38 — Presenting Exception — Refusal of Requested Charge.
    A bill of exceptions, which recites that plaintiff’s counsel, before the judge’s charge was read to the jury, but after it had been submitted to counsel, submitted to the. court and with the opposing counsel, eight special charges, and that the court refused to submit the same, and plaintiff then and there excepted to the action and ruling of the const, sufficiently shows an exception- to the refusal of a certain charge, to comply with the requirements of the act of the Thirty-Third Legislature.
    [Ed. Note.—Por other cases, see Exceptions, Bill of, Cent. Dig. § 10; Dec. Dig. <§=8J

      4. Bills and Notes @=537 — S-ueeiciency oe Evidence.
    In an action by the indorsee of two of a series of notes, evidence held sufficient to take to the jury the question whether the notes were indorsed after the first of the series became overdue.
    [Ed. Note. — For other cases, see Bills and Notes,.Cent. Dig. §§ 1862-1893; Dec. Dig. @^> 537.]
    5. Bills and Notes @=344 — Bona Fide PURCHASER — INDORSEE OE A PAET OE A SE-eies oe Notes.
    Where notes upon their face are parts of the same transaction, and the first was overdue when transferred, the transferee is charged with notice of defenses as to all the notes.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 866-868; Dec. Dig. @= 344.]
    6. Bills and Notes @=497 — Bona Fide Purchaser — Fraudulent Notes.
    Where it is shown that notes were put in circulation fraudulently, there is no presumption that the indorsee is an innocent holder.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1448, 1675-1681, 1683-1687; Dec. Dig. @=497.]
    On Motion for Rehearing.
    7. Sales @=355 — Action eor Price — Pleading — Mistake.
    In an action on notes given for the purchase price of a horse, where the defense was that he was not registered as represented, plaintiff can show that the horse was registered, but that the certificate of registration had a mistake in the description without pleading such mistake.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1025-1043; Dee. Dig. @=355.]
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Action by the National State Bank of Mt. Pleasant, Iowa, against' L. A. Ricketts and others. Judgment for the defendants, and plaintiff appeals.
    Reversed and remanded, and motion for rehearing overruled.
    See, also, 152 S. W. 646.
    Knight & Slaton and C. D. Wright, all of Hereford, for appellant. Carl Gilliland, of Hereford, for appellees.
   HENDRICKS, J.

The appellant bank instituted this suit on two promissory notes, each for the sum of $700, dated March 25, 1909, and maturing respectively one and two years after date, executed by the several defendants, and payable to B. M. Hartley, or his order. Defendants admitted the plaintiff’s cause of action, except in so far as it may be defeated in whole or in part by the facts set up in their answer, and were thereby granted the privilege of opening and concluding the cause as to the evidence and argument. The defendants, appellees herein, alleged a partial failure of consideration ; and that said notes were given as the purchase price of a certain stallion, which was represented to be a registered animal, relied upon by them as an inducement in executing the notes; and further charged that the particular hors.e was neither registered, nor entitled to registration. Defendants also alleged that the two notes were acquired by the plaintiff after the first note of the series had matured, and contend that the plaintiff could not be protected as a purchaser for value without notice, for that the notes, by reference to each other, exhibited that they were companion notes produced by the same transaction.

The trial court submitted two special issues to the jury, as follows;

First. “Was the horse in controversy registered at the time defendants purchased him and delivered their notes in payment for him?”
Second. “Were the two notes in controversy purchased by the plaintiff bank prior to the 26th day of March, 1910” — which was the recited due date of the first note?

This is the second appeal by the plaintiff, as the losing litigant, • to this court; the opinion on the first appeal being reported in 152 S. W. page 646.

The horse was sold by Maxey, an agent and salesman of one Hartley of Salem, Iowa, the latter a heavy dealer in blooded horses; and the certificate of registration, in the National French Draft Horse Association, delivered by Hartley’s salesman, Maxey, to the defendant Bowe (who was acting for himself and the other defendants in the purchase of the horse), gave the register number as 14973 of a stallion “Wiertz” with the color and description in the certificate as “black, star”; also, as having been foaled June 19, 1905, bred by L. M. Hartley, Salem, Iowa, the certificate reciting the name of the sire and dam, with the lineage of each, signed by C. C. Stubbs, secretary of said association. The horse sold to the defendants by Hartley, the previous owner, is one entirely black in color, without any white upon him.

The testimony suggests that a horse of the description, as indicated in the certificate of registration as to color, would mean a black horse with a white star in his forehead. The bill of sale delivered with this horse describes him as “Wiertz, No. 14973, Vol. 10.” Hartley, the breeder of the horse, claimed to have identified the same as the horse “Wiertz” at Witherspoon’s farm, near Hereford, in May, 1913, as one formerly owned by him. He also testified that he bred and raised the horse, and that the sire and dam were both registered, and that he made application for the registration of this horse in the particular association, under the name of “Wiertz” ; that it was the only horse that he had ever applied for registration in the association under that name. He also testified that misdescriptions often occur in certificates of registration, giving as an example that a horse will sometimes be described as having the left hind foot white, when it should have been described as the right hind foot; that “horsemen go by pedigree as applied to registration of horses, and, as used in certificates of registry, it would not necessarily mean that a horse had a star, for the reason'that errors often creep into the description of horses in the certificate of registry. * * * In the registered horse business, horsemen loot at the breeding of the horse, rather than the description.”

One O. D. Stubbs, the present assistant secretary of this association, testified, by deposition, that:

“The record book shows the stallion Wiertz, 14973, to joe a black, with star, foaled June 19, 1905; while the application shows that he is just plain black” — also attaching to said deposition what he claims to be an examined copy of Hartley’s application for the registration of the horse.

The copy of the application purports to give the name of the animal, when he was foaled (June 19, 1905), the name and address of the breeder, and the sire and dam of said horse, with their respective numbers.

Bowe, the defendant who conducted the purchase of the horse, testified that, at the time he was negotiating for this horse, Max-ey, the salesman, gave him the names of the sire and the dam for several preceding generations, and that the breeding, as represented, was the same as it appears in the cer-ficate; and that the certificate described the horse accurately as to breeding, age, and color, as represented by Maxey, except as to the star. Bowe said that he was familiar with the breeding of the particular horse represented when it was shown to him. He also said:

“It is a fact that, if the breeding of this horse was as the certificate represented him to be, he would be eligible to registration with the French Draft Association.”

We are reproducing a part of the testimony as above, as exhibiting the pertinency of the following special charge requested by the plaintiffs, and refused by the trial court:

“Although you may believe that the certificate of registration, read in evidence, described the horse as a black star horse, when thehorse sold to the defendants has no star in its forehead, yet if you believe that such certificate was issued for, and intended to be, the certificate evidencing the registration of the horse sold to the defendants, and that he was described as a black star borse by a mistake of the association issuing the certificate, you should find that he was a registered animal.”

This court, on the former appeal of this case, in speaking of a special charge requested by plaintiff at the former trial, not as full and as accurate as the present charge, suggesting, however, the same question, said:

“The evidence of Hartley raises the question of mistake in describing the horse, which should have been submitted to the jury for their consideration.”

The charge quoted should also have been given, as the testimony in accordance with appellant’s theory clearly raised the issue of mistake as to the “star” in the registration certificate. Upon this theory the jury could have found that the horse sold to the defendants may have been a registered' animal, though a partial mistake in his description had been made by the association in registering him, with a sufficient description left, however, as to name, owner, breeding, and birth, to identify the particular horse.

It is true that the trial court charged the jury that, if they found that the horse in controversy was registered at the time defendants purchased said horse and gave their notes in payment for same, to find in favor of the plaintiffs; and further charged, if they found that he was not registered, to find in favor of the defendants. Of course, this particular question, as a last analysis, is registration, or nonregistration, under the pieadings; however, the particular phase, presenting the question, was not in reality submitted; and the Supreme Court of this state holds that a requested instruction applying the law to the specific facts on an issue raised is improperly refused, though the principle of law, generally stated, had been embraced in the charge given. Yellow Pine Oil Co. v. Noble, 101 Tex. page 125, 105 S. W. 318; also, see Ft. Worth & Denver City Railway Co. v. Taylor, 153 S. W. page 355; s. c., 162 S. W. pages 971, 972, where a considerable number of authorities, as to special charges, when the refusal constitutes error, are collated.

Appellee claims that the assignment based upon a refusal of the particular instruction, as well as other assignments upon other refused instructions in this record, should not be considered, for the reason that an exception at the proper time is not shown to have been made by the appellant, in accordance with the acts of the Thirty-Third Legislature.

In the transcript there appears a bill of exceptions referred to by the appellant in its brief, stating, in substance, that before the court read his charge to the jury, but after the same had been submitted to counsel on both sides, and within a reasonable time thereafter, the plaintiff’s counsel presented to the court eight special charges, numbered from 1 to 8, inclusive, which were also submitted to opposing counsel, and that the court refused to submit any of the same, and that plaintiff then and there excepted to the action and ruling of the court. The approval of this bill is as follows; “Allowed, and ordered filed. D. B. Hill.” This is an approval by the trial judge of the fact of the presentation of -the charges, before he read his charge to the jury, and a refusal of the same with appellant’s exceptions thereto. We find eight special charges in the transcript, and we think that the law, with reference to exceptions to special charges, and when the same are to be made, with the action of the court thereupon, as evidenced by the bill, is sufficiently complied with.

This is a different question than the' one presented in Insurance' Co. v. Rhoderick, 164 S. W. page 1067, the nearest case to the question presented we have found, but also substantially different.

• We have'- attempted to carefully analyze this record upon the question raised by appeh-lant as to the insufficiency of the same to prove the nonregistration of the particular horse, and. viewing the record from appel-lees’ standpoint, as it should be viewed— especially considering the testimony as to Maxey’s conduct, in regard to the certificate at the time the horse was sold — the failure by Hartley to answer some letters claimed to have been written him by Bowe, in regard to the particular horse (though just what was written is not stated), and the direct conflict between Bartley, formerly of the Hereford bank, and Whiting and Hartley, as to the in-dorsement of the latter’s name upon the first note, “without recourse,” at a time when the plaintiff claims to have become the sole owner of the same (without desiring to discuss the inferences in connection with the whole case, we are of opinion that the trial court should let the cause go to the jury), whatever action thereafter should be proper by the court, we are not deciding.

We think the trial court correctly rejected the purported corrected certificate of registry received by the district clerk of Deaf Smith county from O. D. Stubbs, by registered mail.

The jury’s finding against the bank’s ownership before the maturity of the notes can be sustained from the testimony. Whiting and Hartley are emphatic and positive that the indorsement “without recourse,” as an evidence of transfer of ownership, occurred at the time the notes were claimed to have been purchased; Bartley is equally positive that there was no indorsement at the time the notes were sent to the bank for collection. It is affirmed and denied that the notes were purchased and indorsed at the same time. The Supreme Court holds that where notes upon their face are given as parts of the same transaction and are installments of one common consideration, the first being overdue when transferred, the assignee is charged with notice of the defense as to all the notes. Harrington v. Claflin & Co., 91 Tex. 295, 42 S. W. 1055. These notes upon their face bring them within the principle of the case cited. All assignments upon this question are overruled.

The effect of special charge No. 5, requested by appellant and refused by the trial court, is to give the possession of the notes, under the facts of this case, prima facie ownership of the notes before maturity. In an ordinary case of this character, appellant’s rule does not apply:

“If the averments of the answer are true, there can be no doubt that the paper was put in circulation fraudulently; and, when this is shown to be the case, the presumption that an indorsee is an innocent holder cannot be indulged,_ and the burden of proving that he had acquired the paper in ordinary course of business, for valuable consideration, rests upon him.” Rische & Sons v. Bank, 84 Tex. p. 420, 19 S. W. 610.

Neither do we think, as applied to the record, notwithstanding appellees’ admissions, possession should be given the effect to the jury, evidenced by the charge.

It is not • necessary to discuss the alleged error of the court, in permitting a part of a letter written by Stubbs, the old secretary of the association — in regard to what Hart-ley’s application showed — to go to the jury, and then the withdrawal of the same, by the court, of his own motion. In a case of this character, of course, the practice is dangerous, as the ex parte letter was in direct conflict with his brother’s testimony.

The case is reversed and remanded.

On Motion for Rehearing.

The appellee wholly misconceives the application of the- case of Hovey v. Sanders, 174 S. W. page 1026, to the bill of exceptions discussed by us as presenting the error of the court in failing to give special charge No. 8, mentioned in the main opinion. In that case the special issues requested were presented as a whole, and the action of the court in refusing all, not any particular one, was excepted to as an entirety. Here the record shows the special charges were presented and refused singly as shown by the indorsement of the trial judge upon the charges, and the bill states in effect that, when he refused to “give any of such special charges,” the plaintiff excepted to the action of the court. It would be arbitrarily technical to condemn such a bill — a procedure to be commended instead of reprehended.

The objection now urged for the first timé that there was no pleading to support the issue embodied in special charge No. 8, discussed in the main opinion, which has halted our ruling upon this motion, we think is equally untenable. We think it would be better to plead it, but conclude that it is not the character of mistake vel non required to be pleaded. The issue was registration or nonregistration. The appellees present the issue of nonregistration on account of the descriptive “star” in the certificate. The appellees s'ay that the horse was registered on a proper description in the application for registration, and the remaining description in the certificate, which can be regarded as a showing that the certificate did not prove What the defendant claimed it proved.

•Motion overruled.
      ®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    HIGGINBOTHAM et al. v. WEAVER.
    (No. 694.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 24, 1915.
    Rehearing Denied June 5, 1915.)
    1. Boundaries @=>41 — Instructions—Applicability to Evidence.
    In an action where the boundary line of a railroad grant block was in dispute, and there was evidence by defendants’ witnesses that they had surveyed the lines of the block many years before, and found some of the original monuments, and that the line so surveyed ran east of certain wells still in existence, defendant was entitled to a requested special charge that, if the witnesses found original corners on the line, and those corners were east of the wells, the jury should answer a special issue as to the location of the line contrary to plaintiff’s contention.
    [Ed. Note. — Por other cases, see Boundaries, Cent. Dig. §§ 205-207; Dec. Dig. @=>41.]
    2. Triad @=260— Requested Instructions— Special Issue.
    That charge was not covered 'by a special issue as to whether the true corner of the tract was established by running certain lines as contended by defendant.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 651-659; Doc. Dig. <£=260.]
    3. Trial @=>350 — Special Issues — Eviden-tiary Pact.
    In an action where the location of the west line of a block in a railroad land grant was in issue, a special issue as to whether a certain corner was the true corner of another block in the grant, not directly affecting the line in controversy, called for a finding of evidence, and should not have been submitted under Vernon’s Say les’ Ann. Civ. St. 1914, art. 1985, requiring the special verdict to find the facts established by the evidence, and not the evidence by which they are established.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. @=>350.]
    4. Trial @=>260 — Special Issues — Requested Charge.
    The refusal of a requested instruction applied to the facts for the finding of a substantive issue, when not presented in the main charge, is error.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. @=>260.]
    .5. Boundaries @=>33 — Burden op Proop— Location op Line.
    Where the plaintiff’s right to recover rested on the establishment of a disputed line, he could not object that defendant’s evidence tending to show that the 'line was not as claimed did not definitely locate the line; since the burden of proving the line was on him; not on defendant.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 146-152; Dec. Dig. @=>33.]
    6. Adverse Possession @=>73 — State School Lands.
    A grantee under a deed conveying school lands, who assumed the deferred payments, went into possession, and paid taxes on the land, can rely on the five-year statute of limitations, though his claim conflicts with patented lands under a senior_ survey.
    [Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 435“442; Dec. Dig. @=> 73.]
    Appeal from District Court, Garza County; W. R. Spencer, Judge.
    Action by F. M. Weaver against R. W. .Higginbotham and others. Judgment for the plaintiff, and defendants appeal.
    Reversed and remanded.
    J. E. Garland, of Lamesa, Gustavus & Jackson, of Amarillo, Ellis Douthit, of Sweet-water, and S. H. Morrison, of Big Springs, for appellants. Beall & Spencer and W. W. Beall, all of Sweetwater, Jas. L. Shepherd, of Colorado, Tex., W. D. Benson, of Lubbock, and W. P. Robinson, of Lamesa, for appellee.
   HENDRICKS, J.

The Texas & Pacific Railway Company surveys involved in this record are embraced within the large grant commonly known as the Texas & Pacific Railway 80-mile reservation, partly situated in Dawson county, Tex., and was one granted by the Legislature of the state, extending 40 miles south and 40 miles north of what is designated in this record as the center line, which also was a base line for the construction of said surveys. This 80-mile reservation, extending 40 miles north and 40 miles south of the center line, is divided into different blocks, each of which extends from the center line to the north boundary line of said reservation (likewise from the center line to the south boundary line of said reservation, with which we are not concerned); and said blocks lying north of said center line are divided into numerical townships, beginning at said center line, and numbered from the south to the north as Nos. 1, 2, 3, 4, and 5, said townships containing eight sections north and south, and six sections east and west.

As pertinent to this litigation, the 40-mile blocks north of the center line begin from the east as blocks numbered 33, 34, 35, and 36, and east of and adjoining block No. 36, at an approximate distance of about 24 miles, there is situated a system of league surveys granted to Glasscock, Moore, Borden, Ward, Wheeler, and Dickens counties, at some period between 1883 and 1889 — just when is not definitely stated. South of the league surveys is block 37 of the Texas & Pacific reservation, shortened, of course, in distance north from the center line, by the county school land surveys, as indicated. Situated north of the county school land surveys mentioned, and of block No. 36 of the Texas & Pacific Railway Company grant, is the Taylor county school land four-league survey, located in the year -, with intervening school land surveys, however, of narrow width and of rather irregular shape, between the county school land leagues on the north and the county grants on the south, and known as the Godair surveys — presumably placed on an intervening vacancy. The six sections in the township lying east and west, and in the different blocks, begin with the initial section No. 1 at the northeast corner of the respective townships and blocks, extending west, and thence east numerically to the terminal section No. 48, in. each township ; hence section 6 of block No. 36 is the northwest section oí said block, as well as of township No. 5. The principal issue in this case is the true location of the northwest corner of this section, bringing into dispute the true location of the western boundary line of said block No. 36 and the northern boundary line of said reservation, the location of the latter, at least, across blocks 35 and 36.

Quoting from appellee’s brief:

“The plaintiff in this case contended that the true location of the northwest corner of section 6, block 36, township 5 north, was 12 miles S. 75° 15' W. of the northeast corner of section 1, block 35, township 5 north, and the northwest corner of section 6, block 34, township 5 north, Texas & Pacific Railway Company surveys, the ‘Coffee Corner,’ to an intersection with a line drawn N. 15° 15' W. from the northwest corner of section 6, block 36, township 2 north, about 24 miles, or to an iron pin set in ground by R. E. Estes, as stated in first issue of the court’s charge. The' contention of the defendants was that the true location of the northwest corner of section 6, block 36, township 5 north, was at a point 560 varas east and 145 varas north of the Estes corner, known as the ‘Dodd Corner,’ as stated in second issue in court’s charge.”

Tbe cause was submitted to tbe jury by tbe trial court on special issues, consisting of tbe three following, tbe first and tbe third of which were answered affirmatively by tbe jury in favor of tbe plaintiff, and the second answered negatively against tbe defendants:

“First Special Issue.
“Do you find the western boundary line of block 36 and section No. 6 at its northwest corner is located by projecting the north line of block No. 34, township 5 north, from the known corners, on its northern boundary line, on the angle shown by said corners, 12 miles west to its intersection with a line extending north 15 deg. 15 min. west from known corners on the western boundary line of block No. 36?”
“Second Special Issue.
“Do you find tbe northwest corner of survey No. 6, block 36, township 5 north, and the west boundary line of block No. 36 aforesaid are established by running a line north 14 deg. 4 min. west from the corner at the southeast corner of survey No. 48, block 35, township 4 north, 16 miles, and from thence south 75 deg. 41 min. westerly 12 miles?”
“Third Special Issue.
“Is the rock pile known hs the ‘Coffee Corner’ laced at the true northeast corner of section , block 35, township 5 north, Texas & Pacific Railway Company surveys, Dawson county, Tex.?”

Appellants introduced tbe deposition testimony of S. H. Cowan, who said that at a period in tbe past be bad been engaged in surveying for 15 years, and at one time was the county surveyor of Howard county, and by virtue of that office was designated tbe district surveyor for tbe Howard county land district, which comprehended ten other counties, including Dawson county, all attached to Howard county for surveying purposes, and held this position from 1884 to 1888. Tbe Texas & Pacific reservation surveys, with which we are immediately interested, were senior surveys to the county school land surveys, and the Godair survey, as mentioned — block 36 on the west, and block 37 south of the county grants — with which we are directly interested, were located in January, 1876. The northern part of block 34 was located in April and May, 1876, and block 33 in December, 1875. Oowan said:

“I knew a great deal about these surveys, because I surveyed all over these counties during the time I was district surveyor in Martin and Dawson counties in what are known as the Texas & Pacific Railway Company surveys. I began to do such surveying before I became district surveyor of that land district in 1884.”

He said that in 1889 he surveyed from the northwest corner of the Buffalo pasture of O. 0. Slaughter’s ranch across block 36, and thence north on the western boundary line of said block 36 to the northern boundary line of the Texas & Pacific 80-mile reservation; which was done for the purpose of locating other lines, and particularly the school land leagues west of block 36. He testified that he made memoranda with reference to his surveys in block 36 at the time of making the same for the purpose of keeping a 'record of the work performed by him, and for the purpose of knowing what he found on the ground in running the lines. In making this particular survey he claimed to have begun at what he designates as the northwest corner of the old Buffalo pasture of O. O. Slaughter, and then ran 2 miles north to the dividing lines between townships 4 and 5, and thence west 6 miles to the western boundary line of block 36. The field book and testimony as to the western boundary of block 36 is quoted from the record as follows :

“Survey for C. O. Slaughter, July 5th, 1889: July 6th came to Buffalo — began at N. W. corner Buffalo pasture, thence north 13 W. with old fence 2 miles — couldn’t find comer (I may explain that this is the old fence line which I surveyed in 1884); thence S. 77 on Tsp. line —no old corners found, 1 mile. Dinner. Six miles found old corner — four pits and mound on Tsp. line 4 and 5 blk. 36 — plain—began at that point N. 13 W. var. 12 36 min. 1 mile old mound and pits. Missed it 24 feet. Changed var. to 12 20 min. N. 13 W. at 2 miles old corner plain — cedar stake at about 300 feet to N. — put there 1887 by me. At 3 miles, no corner found — 4 miles none — 5 miles none — 6 miles none — 7 miles found 140 feet to the west showing that var. too small by about 15 min. (My var. of about 12 36 min. would have fit the line almost exactly. Windmills 200 yards N. W. of corner at 7 miles and 700 vars. being 3,336 feet, the N. W. corner of league 277.) (I should explain that I didn’t find nor did 1 expect to find league corner, but this was the point which the field notes of league 277 calls as with the T. & P. line.)”

Oowan further said that he was acquainted with two of the original surveyors of the Texas & Pacific reservation grant, one Sid Woods having been a deputy surveyor under him when holding the office of district surveyor of Howard county, and further testified:

“We all knew there were no corners or markings except block or township lines, and on those lines the original surveyors made markings with an earth mound and two pits at every half mile, an earth mound and four pits at the mile corners, to which sometimes rock was added and stakes.”

The testimony and memoranda of Cowan, exhibiting what is claimed to be a short run on the northern boundary of block No. 36, and a partial run of the Taylor county school land, is as follows :

“Survey for W. C. Bishop Nov. 11, 18S9, Taylor county school land. Beginning at the N. E. corner survey 4 block 36, Tsp. 5 N. T & P.— old mound rock had been added (cor. Bishop’s pasture); thence S. 77 W. (var. 12 30 min.) 1 mile old mound and 4 pits, added cedar post, crossing old cedar lake road; thence S. 77 W. 1 mile old mound and pits, at 2 miles mound and pits cedar stake marked 130 T. P. (130 mile on north boundary line T. & P. 80-mile reservation). Missed it 18 feet S. var. therefore 12 min. too great. Begin at N. E. 5 cedar stake being S. E. corner Taylor county land (meaning corner of survey 5 T. & P. survey and S. E. corner of Taylor county school land) ; thence N. 13 W. (var. 12 22 min.) at 6,945 feet went south 77 W. 6,945 feet to center of league and returned to said point (meaning point from which he had gone S. 77 W.), continued N. 13 W. 17889 ft. put in cedar stake for N. E. corner league 3 — Taylor county land. * * ' * ”

Dalmont, a witness for defendants, testified he was with Cowan on this run, and said:

“There was a well put down there in the place where Mr. Cowan drove that stake for the center of that league [No. 1]. I know that well was put down there in pasture, but I don’t know whether it was put down where he drove that stake or not. * * * I know that Mr. Cowan drove that stake down there for the center of the league, and I saw the well that was subsequently put down. * * * The position of the well with reference to the position of the stake that had been driven there for the center of the league by Mr. Cowan looked just the same to me. * * * He drove the pin down there, and Holloway drilled the well, and I went and put up the mill, and if there was any difference I never paid any attention to it, and I never noticed it or paid any attention to it; if I did I don’t remember now. That is the circumstances of the thing. I never could tell that the pin was moved or whether the well was drilled where the pin was or not.”

And, speaking of the beginning of the Taylor county survey, he said:

“There was a mound there at the time. It was probably four or five feet across and a foot high: that was where he turned east there. It was crossed [grassed] over, and apparently seemed to be an old mound. It must have been in the winter of 1889 or 1S80 that we did that.”

Cowan also testified:

“In my survey in block 36, and in running my line north to the reservation line, I did pass windmills, and made a note of that fact in my field book, which is shown in the mem-oranda. ® * * Independent of this record, however, I remember the fact of having passed windmills, and independent of my notes made at the time, I remember that I observed that each of the corners of the Texas & Pacific Railway Company surveys which I have referred to in my memorandum were original corners.”

T. M. Lightfoot, the present county and district surveyor of Howard county, also a witness for defendants, testified that he ran the western boundary line of block 36 in 1893; that he put down the “Kid Camp” wells in 1888, “up towards the northeast corner of [league] 277,” which were the wells referred to by Cowan in his memoranda of his run of the western boundary of block 36, and with reference to which Lightfoot claimed that he ran east of said wells “about 200 varas.” The wells are still existent, though dismantled as to the windmills.

Lightfoot said that he was testifying from memory, and a comparison of his run with that of Cowan exhibits that neither found the same corners claimed by each to have been found in making the respective surveys. With reference to Cowan’s run of the west boundary line of block 36, as indicated by quotations from his memoranda, Cowan’s field book discloses a further run west for eight miles on a claimed continuation of the northern Texas & Pacific line to a mound and four pits and an old stake marked “131-36,” which Cowan said meant the 131st mile in block 36, and which, with reference to said milepost, is necessarily a mistake, and which, according to the field notes, the 131st mile is situated many miles east of said eight-mile run; and when Mr. Cowan made the run of two miles in surveying for Bishop, for the northeast corner of 4 and the northwest corner of 5, in block 36, for the purpose of making the partial survey of Taylor county school land, there is also a mistake, as follows : At the end of the two-mile run he mentions in his field book “mound and pits, and cedar stake marked 130 T. P.” If he were at the northeast corner of 5, and the northwest corner of 4, in block 36, he was not at the 130th mile, according to the original field notes; the 130th mile was three miles east of that point. Erom the testimony of Dal-mont and of surveyors with reference to the location of the Taylor county school land, inferentially showing where the same is now situated, the jury could believe that Cowan was at the point he said he was; and the strictures of appellee as to the testimony of Cowan and Lightfoot is a jury, and not a judicial question.

Appellants assign error on account of the action of the trial court in refusing to submit to the jury the following specially requested charge:

“If you find and believe from the evidence that the witnesses Cowan and Lightfoot surveyed a part of the west line of block 36 of the Texas & Pacific Railway Company surveys, and you believe that they or either of them found original corners of the Texas & Pacific work on said line, and, if any, were east of what is mentioned in the evidence ‘Kid Camp’ Wells, then you will answer question submitted in paragraph 3 of the court’s charge by saying, ‘No.’ ”

Appellants’ proposition is that the location of the west line could be determined from the original monuments on the ground contiguous to the land in controversy, and hence were entitled to an affirmative charge, presenting their theory with reference to this particular line, and which the court did not present in either of the three issues submitted.

If the footsteps of the original surveyor were east of the Kid Camp wells, plaintiff could not recover, at least as to the west slide. Tlie special charge requested by appellants was the presentation of a substantive issue, more so than the presentation of the third issue submitted by the court as to the “Coffee Corner,” whether it was the true northeast corner of section 35, township 5 north, of the T. & P. survey, which is calling for a finding of evidence. The second special issue submitted in favor of defendants did not submit, nor tend to submit, the issue presented in appellants’ special charge, and which, from appellants’ theory, as a jury question, could have been sustained by the testimony.

The refusal of a requested instruction applied to the facts for the finding of a substantive issue, when not presented in the main charge, is error. Yellow Pine Oil Co. v. Noble, 101 Tex. 125, 105 S. W. 318; Ft. Worth & Denver City Ry. Co. v. Taylor, 153 S. W. 359, and eases cited. We overrule the first assignment, based upon a requested peremptory instruction under which appellants assert that the issue is undisputed, but sustain the second assignment, presenting the special charge embodying the issue as a jury question.

The court, in the submission of special issues, “shall submit the cause * * * raised by the pleadings and evidence,” and “the special verdict must find the facts established by the evidence, and not the evidence by which they are established.” Articles 1984 and 1985, Yernon’s Rev. Civ. Statutes.

The Western boundary of block 30, an essential disputed issue, of course, was a prerequisite ascertainment by plaintiff to recover; the burden was upon him, and not upon defendants, so that the court could decree the lines; and, if this burden was not maintained, to that extent he failed; and the criticism of plaintiff that defendants did not exactly define the west line, or the exact distance from the “Kid Camp wells,” is not tenable under the plea of not guilty. We think, however, that the issues requested to be submitted by defendants, whether the other windmill was in the center of Taylor county league No. 1, and whether Cowan began his survey of the east boundary line of the Taylor county leagues from an original mound as the northeast corner of section 5, would have been the submission of findings for evidence. Again, if the court should submit the special charge discussed by us, the requested charge No. 6, as to the division fence, is unnecessary.

Considering the testimony of Harris, of the firm of Higginbotham, Harris & Co., as to the character of the claim of the defendants to the true line, we overrule the eighth assignment of error, challenging the action of the trial court in not submitting the statute of limitations. Hand v. Swann, 1 Tex. Civ. App. 245, 21 S. W. 283; Shaw v. Windham, 155 S. W. 638.

Appellants’ fifteenth assignment of error, aided by the statement in their brief, does not sufficiently show error, referring to the first special issue submitted by the court as to the projection of certain lines from known corners, as being upon the weight of the testimony. All the witnesses who testified as to the north line of block 34 testified to some original corners. Estes testified with reference to undisputed corners on 36, along the division line between 36 and 37, from the center line—as to those corners he is uncon-tradicted—unless it may be that the common corner of blocks 37 and 36 where the county school land surveys begin would be in doubt; and as the question and statements are presented we are unable to say there was error.

The appellant Cumpton assigns error on account of the failure of the trial court to submit to the jury the plea of the five-year statute of limitations. Appellee argues that, as Cumpton’s claim is in conflict with patented land under a senior survey, the land being held as school land, the statute of limitation does not apply. The deeds are not void upon their face, but’ simply show to be conveyances of school land with the assumption by Cumpton of the deferred payments to the state. If Godair had conveyed the same land without having mentioned it as school land, and Cumpton had gone into possession under proper claim, and held the land and paid the taxes under said deed, for the required period, under the proper possession, of course, the statute of limitations would have been complied with, though Godair never had title from any source.

If we properly construe the case of Dutton v. Thompson, 85 Tex. 117, 19 S. W. 1027, by Chief Justice Stayton, the matter of the claim of school land by the five-year statute of limitations, though patented to another by the state, has been, in substance, decided. The school land in that cause had been patented to the appellant as the assignee of another. The trial court held that the appel-lee was entitled to hold a part of the land under his plea of statute of limitations, based on adverse possession under recorded deed and the payment of taxes. Chief Justice Stayton said:

“It is claimed on this appeal [in that cause] that limitation would not run in favor of ap-pellee until the patent issued; but appellant, and the person through whom she acquired the right to a patent, had such interest in the land as would have entitled either of them to have maintained an action of trespass to try title to the land against any person entering upon it during the time of their respective ownerships, and we see no reason why limitation would not run against a person having such interest in land, although the state could not be thus barred. This was the holding in reference to University' lands in the case of Parker v. Brown, 80 Tex. 557, 16 S. W. 262.” Converse v. Ringer, 6 Tex. Civ. App. 51, 24 S. W. 705; Paterson v. Rector, 127 S.W. 561.

We are not prepared to say, as the evidence is presented in the two briefs of appellants and appellee, that the evidence sustaining the five-year statute of limitation is undisputed, and that Oumpton deserved a peremptory instruction.

Though there are agreements with reference to title of the respective parties to the suit, it would be better if plaintiff more specifically set out the boundaries of his lands.

For the errors indicated, the cause is reversed and remanded.
      (®=>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes