author: SWEARINGEN, J.

text:
    BARKSDALE v. BENSKIN et al.
    (No. 5820.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 28, 1917.
    Rehearing Denied April 25, 1917.)
    1. Deeds ©=325 — Construction — Quitclaim: Deeds.
    A deed, reciting that the grantor bargained, sold, released, and forever quitclaimed unto the grantee all his right, title, and interest in and to certain tracts and parcels of land, to have and hold the same, together with all rights and appurtenances, so that neither the grantor nor his heirs nor any person claiming under him should have any claim or title to the same, reserved a vendor’s lien upon the premises. The deed declared that the vendor’s lien note .should be payable only upon condition that the grantor should make a warranty deed to a specified section of land. Meld, that the deed must be construed as a quitclaim rather than a warranty deed; the provisions relating to the vendor’s lien not showing any indication on the part of the grantor to warrant title.
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. § 49.]
    2. Deeds ©=3110 — Province oe Court and Jury — Direction oe Verdict.
    Where from its terms a deed was ambiguous and evidence was necessary to determine whether it was a quitclaim or warranty deed, the court should submit that question to the jury instead of directing verdict.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 255, 293; Trial, Cent. Dig. § 326.]
    3. Adverse Possession ©=371(1) — Vendor and Purchaser ©=3224 — Innocent Purchaser-Quitclaim: Deed.
    A quitclaim deed requires the grantee to ascertain his grantor’s title, and ordinarily will not sustain the defense of an innocent purchaser, although it will support a claim of title under the five-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 415, 416, 427, 429; Vendor and Purchaser, Cent. Dig. §§ 469-473.]
    4. Adverse Possession <⅜3106(1) — Quitclaim-Property Covered.
    While a quitclaim deed is a deed within the five-year statute of limitations (Rev. St. art. 5674), the word “deed” as used in the 'statute having the same significance as deeds and conveyances used in other statutes, the claim under a duly registered quitclaim deed is an adverse claim of only that estate, interest, or right actually owned by the grantor at the time he executed the deed; and hence, where the grantor had only a leasehold interest in the land, the ■claim' is adverse only as to the leasehold.
    , [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 604, 619-623.]
    5. Estoppel ©=330 — Equitable Estoppel —What Constitutes.
    A landowner, having conveyed a portion in fee and received a lease to the premises, quit-claimed such premises and others. The first grantee in fee purchased a vendor’s lien note, given the grantor by defendant, the second purchaser. Meld, that the foreclosure of such note by the first grantee did not work an estop-pel, preventing her from asserting her rights to the premises conveyed to her in fee and which she leased to the grantor.
    . [Ed. Note. — For other eases, see Estoppel, •Cent. Dig. §§ IOS, 109.]
    Appeal from District Court,. Edwards County ; R. H. Burney, Judge.
    Action by K. H. Barksdale against J. M. Benskin and others. From a judgment for defendants, plaintiff appeals.
    Reversed and .rendered.
    J. E. Friestman, of Rock Springs, and Will A. Morriss and Lipscomb & Lipscomb, all of San Antonio, for appellant. Clarence Martin, of Austin, and Jno. W. Hill,, of Uvalde, for appellees.
   SWEARINGEN, J.

Appellant, K. H. Barks-dale, brought this suit against appellees in the statutory form of “trespass to try title” to recover the S. W. ⅝ of survey No. 40 and the E. ½ of survey No. 44. Appellees answered by a plea of “Not guilty” and limitation. The cause was tried with a jury, which was instructed by the court to find a verdict for appellees herein, in accordance with which verdict the court rendered judgment for appellees.

The record shows the following facts: Ellis, by general warranty deed, dated June 20, 1903, and filed for record September, 1903, conveyed the fee estate in the land herein sued for to K. H. Barksdale, in consideration of $4,500 cash paid. K. H. Barks-dale at once leased the same to Ellis, her grantor, in consideration for which Ellis promised to pay the taxes and interest as they became due to the state. Appellant, shortly after making this lease, became a nonresident of the state of Texas. Ellis continued to use the property himself, and by his subtenants until December -3, 1906, when he executed an instrument, conveying to J. M. Benskin, one of the appellees, the land involved in this suit, together with a number of other sections of land. This instrument was recorded February 7, 1907, and Benskin complied with all the requirements prescribed by article 5674, as essential to acquire land by the five-year limitation. The instrument from Ellis to Benskin was the 'deed claimed under to support the plea of five year limitation and is as follows:

“The State of Texas, County of Edwards:
“Know all men by these presents: That I, J. J. Ellis of the county of Ed.wards and state ,of Texas, for and in consideration of the sum of twenty-five ($2,500.00) hundred cash to me in hand paid by J. M. Benskin of the county of Edwards and state of Texas, the receipt of which is hereby acknowledged together with the execution and delivery to me by the said J. M. Benskin of his certain promissory note of even date with this instrument for the sum of fifteen’ hundred ($1,500.00) dollars drawing eight per cent. (8%) interest payable to the order of J. J. Ellis at Rock Springs, Texas, on the 1st day of May, 1907, which said note is secured by a vendor’s lien on the premises -hereafter conveyed and described and which said note is payable only upon the condition that the said J. J. Ellis makes to the said J. M. Benskin a warranty deed to see: 53, below with' clear title thereto, do by these presents, bargain, sell, release and forever quitclaim unto the said J. M. Benskin his heirs and assigns all of my right, title and -interest in and to that certain' tracts and parcels of land lying and being situated in Edwards county, Texas, described as follows, to wit:
39 1740 10 G., H. & S. A. Ry. Co. 581
53 68 2 Brooks & Burleson 640
45 1743 10 G., H. & S. A. Ry. Co. 640
43 1742 10 “ 640
61 1801 10 “ 640
38 1739 10 " 474⅛
S.W.% 40 1740 10 “ 527%
42 1741 10 “ 640
44 1742 10 “ 640
“To have and to hold the said premises together with all and singular the rights, privileges and appurtenances thereto in any manner belonging, unto the said J. M. Benskin, his heirs and assigns, forever, so that neither I, the said J. J. Ellis, nor my heirs, nor any person or persons claiming under mo, shall, at any time hereafter, have, claim, or demand any right or title to the aforesaid premises or appurtenances, or any part thereof. But it is expressly agreed, understood and stipulated that a vendor’s lien is retained on the aforesaid described premises until the aforementioned and described note and all interest thereon has been fully paid when this deed shall become absolute as a quitclaim deed.
“Witness my hand at Rock Springs, Texas, this the 3d day of December, 1906.
“J. J. Ellis.”

Ellis’ right, title, and. interest in several of the surveys above conveyed was only a lease, and not the fee, which fact was understood by Benskin, the grantee.

The questions presented for this court to determine are the following: Is the conveyance from Ellis to Benskin a deed, or merely a quitclaim deed? Is the instrument ambiguous, requiring extrinsic evidence for a correct determination of its intent? Is a quitclaim deed a deed such as is required by the five-year limitation statute?

The granting clau.se is:

“Bargain, sell, release and forever quitclaim” all of “my right, title and interest in and to.”

The habendum clause is:

“To have and to hold the said premises * * * so that neither I, the said Ellis, nor my heirs, nor any person or persons claiming under me shall,” etc.

Both the granting and the habendum clauses are in substantially the same terms as the granting and habendum clauses in the deed construed by the Supreme Court in the ease of Cook v. Smith (Sup.) 174 S. W. 1094, wherein Chief Justice Phillips uses the following language:

“If the character of the instrument were dependent, alone, upon the construction of these parts of it, there could be no doubt, under the authority of Threadgill v. Bickerstaff, supra (87 Tex. 520, 29 S. W. 757), and Hunter v. Eastham, 95 Tex. 648, 69 S. W. 66, of its being simply a quitclaim deed, since these clauses are in substantially the same terms as the granting and habendum clauses of the respective instruments reviewed in those decisions and there held to be quitclaim deeds.”

The Ellis deed now before us contains no words directly declaring that it was the intent by the conveyance to pass a fee-simple estate in the land as in the Cook-Smith Case, supra.

There are, however, two other clauses in the Ellis-Benskin instrument which must be considered' in determining the extent of .the estate conveyed, whether the fee or only such estate as Ellis had at the time the instrument was executed. A portion of the consideration clause is:

“Which said note is payable only upon the condition that the said J. J. Ellis makes to the said J. M. Benskin a warranty deed to sec. 53 below, with clear title thereto.”

Section 53 is one of the surveys sold and described in the Ellis-Benskin conveyance along with the land involved in this suit. The agreement that Ellis would, by a subsequent warranty deed, convey a clear title to survey 53 indicates that the instrument under consideration was not a deed conveying the fee in survey 53, but that a subsequent deed would be necessary for that purpose. It further indicates that Ellis did not claim the fee to 53 at that time. And yet 53 is conveyed by the same granting and habendum clauses as 40 and 44. If the above-quoted condition in the consideration clause could, in any event, prevail over the granting and habendum clauses of the instrument before us, it certainly is not sufficiently clear in this instance to nullify those two clauses. It seems to us that the said condition is in entire harmony with the intent expressed by both the granting and haben-dum clauses, which intent is that only such interest in the land is conveyed as the grantor actually had at that time.

The only other clause that tends to throw light on the extent of the estate intended to be conveyed is the clause reserving a vendor’s lien to secure the payment of the note referred to in the conditional part of the consideration clause. The fact that a vendor’s lien is retained in the instrument should be considered together with all other parts óf the instrument to determine the real and true intent. Chief Justice Roberts has thus expressed the rule:

“The fact appearing in the deed that the company expressly retained a vendor’s lien might be construed as tending to show that it was intended to sell the land with the absolute right of the fee, and not merely the title or chance of the title, and if that fact had been aided by proof of payment of full value of the lot, as, though no adverse interest was claimed on it, or other like circumstances, it might have been left to the jury to determine in connection with the deed whether or not the parties intended to convey such absolute right .to the land as that it was not regarded and intended by them to be a mere quitclaim deed to the land, notwithstanding it purported to convey only the company’s right and title, and contained only a special warranty. A deed, as other instruments, may be read and construed under the light of the surrounding circumstances under which it was executed.” Harrison v. Boring, 44 Tex. 255.

In the present instrument, the vendor’s, lien seems to have been only on section 53, for it is provided that the note and lien shall be canceled entirely if clear title to 53 is not subsequently deeded to the grantee. Then again a vendor’s lien can be retained on any interest or estate in land, though less than the fee. This being true, it follows that retaining a vendor’s lien in the instrument does not expressly, nor by any implication, contradict and nullify the granting and ha-bendum clauses of the instrument here considered. At the very most, the vendor’s clause could only raise the question, viz.: Does it contradict and control the granting and habendum clauses? This question is answered in the instrument itself by both the grantor and the grantee, for it is stated therein that in the event -the note is paid in full, “this deed shall become absolute as a quitclaim deed.”

Considering the instrument in the entirety, taken as a whole, its terms reveal the clear intention of grantor and grantee to convey only such right, title, and interest as the grantor had, whatever that might be, and not necessarily the fee simple absolute title. Such being the intention, the instrument under examination was in fact a quitclaim deed, and not a deed in the sense that it necessarily conveyed the largest estate in the land, which estate is the fee, sometimes called fee simple, sometimes fee simple absolute, and sometimes spoken of as the land itself, probably because usually the words used to convey the fee estate are “bargain, sell, grant and convey” the property or land described, whereas a lesser estate than the fee in land is usually conveyed by using the words, “right, title and interest in the land.”

Limitation: Kilpatrick v. Sisneros, 23 Tex. 136; Wofford v. McKinna, 23 Tex. 36, 72 Am. Dec. 53; Kirby v. Pitchfork Land & Cattle Co., 61 Tex. Civ. App. 229, 129 S. W. 1151; McDonough v. Jefferson Co., 79 Tex. 539, 15 S. W. 490; Club Land & Cattle Co. v. Wall, 99, Tex. 595, 91 S. W. 778, 122 Am. St. Rep. 666; Merriman v. Blalack, 56 Tex. Civ. App. 609, 121 S. W. 552; Schleicher v. Gatlin, 85 Tex. 271, especially dissenting opinion by Chief Justice Stayton, p. 276, 20 S. W. 120; Pry v. Baker, 59 Tex. 404; Parker v. Newberry, 83 Tex. 431, 18 S. W. 815; Clifton v. Oreason, 145 S. W. 323; Acklin v. Paschal, 48 Tex. 147; Van Rensselaer v. Kearney, 11 How. 324, 13 L. Ed. 703.

Innocent Purchasers: Harrison v. Boring, 44 Tex. 260; Richardson v. Levi, 67 Tex. 359, 3 S. W. 444; Rodgers v. Burchard, 34 Tex. 442, 7 Am. Rep. 283; Dikes v. Miller, 24 Tex. 425; Dikes v. Miller, 25 Tex. Supp. 290, 78 Am. Dec. 571; Taylor v. Harrison, 47 Tex. 460, 26 Am. Rep. 304; Threadgill v. Bickerstaff, 87 Tex. 520, 29 S. W. 757; Hunter v. Eastham, 95 Tex. 653, 69 S. W. 66; Slaughter v. Coke Co., 34 Tex. Civ. App. 602, 79 S. W. 863; Cook v. Smith (Sup.) 174 S. W. 1094; Garrett v. Christopher, 74 Tex. 454, 12 S. W. 67, 15 Am. St. Rep. 850; Bedford v. Rayner Cat. Co., 13 Tex. Civ. App. 623, 35 S. W. 931; Lumber Co. v. Hancock, 70 Tex. 314, 7 S. W. 724; Kempner v. Lumber Co., 20 Tex. Civ. App. 307, 49 S. W. 412; 2 Devlin, §§ 213, 214, 676, 837.

It may not be amiss to here observe that some confusion has been caused by saying that a sale of the fee in land is a sale of the land itself, for Judge Acker, in Garrett v. Christopher, 74 Tex. 453, 12 S. W. 67, 15 Am. St. Rep. 850, held that the word “premises” in a habendum clause meant the land, and that word, therefore, determined the instrument to be a deed as distinguished from a quitclaim deed. This opinion was followed in several cases. However, it was repudiated later by the Supreme Court in Hunter v. Eastham, 95 Tex. 653, 69 S. W. 66, as indicated by Chief Justice Phillips in Cook v. Smith (Sup.) 174 S. W. 1096, 1097.

The instrument was not ambiguous, for its terms express, without contradiction, the intent to convey only such estate as the grantor had. But, if ambiguous because of the vendor’s lien clause, then the court erred in peremptorily instructing a verdict, but should have left to the jury the finding of the fact of intent from all the circumstances attendant at the time of executing the instrument. Cook v. Smith (Sup.) 174 S. W. 1094; Harrison v. Boring, 44 Tex. 255; Threadgill v. Bickerstaff, 87 Tex. 523, 29 S. W. 757.

Conceding that the said instrument is a quitclaim conveying only such estate as the grantor had, and not a deed conveying the fee, the last question occurs: Is a quitclaim a deed which is required by article 5674 to support the claim of five-year limitation? The rules of construction to ascertain whether an instrument is a deed or a quitclaim are discussed in many'cases involving the issue of innocent purchasers, as well as many involving the five-year limitation. In so far as these cases treat of the rules to determine the character of the instrument, all are relevant. However, those opinions concerning innocent purchasers are not entirely relevant to the question here considered. It is broadly and correctly stated that a quitclaim deed will not sustain the defense of an innocent purchaser. Cook v. Smith (Sup.) 174 S. W. 1095.

It is equally broadly aud correctly stated that a quitclaim deed will support a claim of five-year limitation. Merriman v. Blalack, 56 Tex. Civ. App. 609, 121 S. W. 552; Parker v. Newberry, 83 Tex. 430, 18 S. W. 815; McDonough v. Jefferson Co., 79 Tex. 535, 15 S. W. 490; Wofford v. McKinna, 23 Tex. 36, 76 Am. Dec. 53. .

The fact that the limitation statute (article 5674), mentions only the word “deed,” whereas the innocent purchaser statutes (articles 6823, 6826-6828), mention “deeds * * * conveyances,” etc., does not indicate' that a deed must convey the fee estate in order to sustain the five-year limitation. The word “deed” used in section 5674, is the same as “conveyance.” Parker v. Newberry, 83 Tex. 431, 18 S. W. 815. Eor the deed to sustain the defense of innocent purchaser, it must upon its face clearly convey the fee simple so that the grantor, his heirs and assigns, will be .forever estopped to. deny that the pure fee was intended by him to be conveyed. Van Rensselaer v. Kearney, 11 How. 326, 13 L. Ed. 703.

A Quitclaim deed requires the grantee to ascertain for himself the true estate actually conveyed, and to take notice of recorded and unrecoi’ded defects and equities. A claim of five-year limitation under a duly registered quitclaim deed is an adverse claim of only that estate, interest, or right actually owned by the grantor at the time, he executed the deed. 2 Dev. 676; Kilpatrick v. Sisneros, 23 Tex. 136; Acklin v. Paschal, 48 Tex.. 147; Bowles v. Brice, 66 Tex. 729, 2 S. W. 729; Clifton v. Creason, 145 S. W. 323. For instance, if the grantor only owned a one-fourth undivided interest in the land described in the deed which conveys all the grantor’s right, title, and interest in the land, the grantee can acquire by the five-year limitation the actual interest owned at the date of the deed by the grantor, and only that. Acklin v. Paschal, 48 Tex. 147; Clifton v. Creason, 145 S. W. 323.

Our conclusion is that the instrument under which Benskin claimed limitation is a quitclaim deed; that this quitclaim deed is sufficient to support a defense of five-year limitation; that the grantee acquired only such a right, title, and interest as was conveyed in the deed under which he claimed. The evidence shows that Ellis only held a lease estate in the surveys 40 and 44, by the terms of which Ellis was to pay the interest and taxes due to the state and enjoy the use of the land. The quitclaim deed from Ellis to Benskin conveyed this estate or right, title, and interest, and no more. Ben-skin could acquire no greater right, title, and interest than this by claiming the land under his quitclaim deed.

The terms of the lease from Barksdale to Ellis are not sufficiently shown in the records for us to determine the lease estate. It is rather uncertain whether the lease was in writing or oral, though probably in writing.

Appellees under their plea of not guilty attempted to raise the issue that appellant was estopped to maintain the present suit in trespass to try title because of her purchase from Ellis of the $1,500 note made in 1906 by Benskin and secured by a vendor’s lien reserved in the quitclaim deed from Ellis to Benskin, and is further estopped because she filed a suit to recover on the note and foreclose the vendor’s lien.

Neither the purchase of the note nor the1 suit to foreclose the vendor’s lien securing it could have the effect to estop her from maintaining this suit. The estate or interest conveyed in the quitclaim deed and the vendor’s lien on that estate or interest was not even inconsistent with appellant’s prior title in fee, and certainly could not destroy her prior right. Van Rensselaer v. Kearney, 11 I-Iow. 326, 13 L. Ed. 703. The foreclosure suit did not involve the same cause of action as the trespass to try title suit. They were distinct and not inconsistent with each other.

The issues above discussed are presented to us by the first, second, and third assignments of error, all of which are sustained.

In view of the disposition of this cause made necessary by our ruling upon the first three assignments, we do not rule upon the question presented in the fourth assignment.

Because the evidence before us conclusively shows the fee to the land in suit vests in the appellant, and has not been divested out of her by limitation, we conclude the judgment of the trial court should be reversed, and judgment here rendered for appellant, K. H. Barksdale.

Reversed and rendered.
      ©=3For other oases see same topic, and KEY-NUMBER in all Key-Numbered Digests and Indexes,


source: Caselaw Access Project

author: . SWEARINGEN, J.

license: Public Domain

text:
    NESBIT v. NESBIT.
    (No. 5838.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 4, 1917.
    Rehearing Denied April 25, 1917.)
    1. Divorce &wkey;>124 — Actions — Evidence— Sufficiency. _ '
    _ Evidence in a divorce suit held sufficient to establish that plaintiff had been a bona fide.in-habitant of the state for 12 months at the time he exhibited his amended petition.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 392-398, 450, 455, 456.]
    2. Divorce &wkey;124 — Actions — Evidence— Sufficiency.
    In a divorce suit, evidence held to warrant finding that husband had lived in D. county as alleged for a number of years immediately preceding the filing of the suit.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 392-398, 450, 455, 456.] ,
    3. Divorce <&wkey;184(6) — Review — Unnecessary Matters — Desertion.
    Where the court’s conclusion that a husband was entitled to a divorce for cruel treatment was clearly established, an assignment of error that another ground of divorce was not properly pleaded or proven is immaterial.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 572.]
    Appeal from District Court, Dimmit County; J. F. Mullally, Judge.
    Action by J. N. Nesbit against Hettie L. Nesbit. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    L. Old, of Uvalde, for appellant. Vander-voort & Johnson, of Carrizo Springs, for ap-pellee.
   . SWEARINGEN, J.

This is a suit for divorce filed by appellee against his wife, the appellant, on the grounds of cruel treatment and 10 years’ separation. To appellee’s amended petition appellant urged a general demurrer, several special exceptions, and a general denial.

The first and second assignments complain of the general demurrer. The contention of appellant is that the petition failed to allege that appellee had been a bona fide inhabitant of the state of Texas for 12 months at the time he exhibited his amended petition, and that therefore the court was without jurisdiction of the cause.

The amended petition alleged with sufficient certainty that appellee had been a bona fide inhabitant of the state of Texas continuously from November, 1905, up to September, 1916, when the amended petition was filed.

The fourth assignment contends that the court erred in its finding of fact that ap-pellee had been a bona fide inhabitant of the state of Texas for 12 months at- the time of exhibiting his amended petition. The evidence is that appellee moved to Texas in November, 1905, for the purpose of making his permanent home in Texas, and that he has resided and been actively engaged in business in Texas continuously from that date up to the time. of the trial of the cause. There is no contrary evidence.

The first, second, and fourth assignments are overruled.

Several assignments complain that the court erred in overruling the general and special exceptions and in its conclusion of law and fact, because neither the amended petition nor evidence shows cruel treatment or 10 years’ separation. The amended petition alleges both grounds with sufficient certainty, and the uncontradicted evidence amply sustains the court’s finding of fact and the court’s conclusion of law that appellee was entitled to a divorce for cruel treatment is correct. All the last-mentioned assignments are overruled.

The fifth assignment is that the court erred in its finding of fact, that appellee had resided in Dimmit county, Tex., for the 6 months or more next preceding the filing of this suit. The undisputed evidence is that appellee has resided continuously, since November, 1905, in San Antonio, Tex., and in Dimmit county,- Tex.; that for the 5 years immediately preceding the filing of this suit he had resided in Asherton. From this the court properly concluded that the town of Asherton was not in the city of San Antonio, but was in Dimmit county, Tex., as alleged. The fifth assignment is overruled.

The issue that the 10 years’ separation was not properly pleaded nor proven is immaterial. Assignments presenting that issue are overruled.

The judgment is affirmed.
      ^rxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    NUNN v. SMITH et al.
    (No. 1127.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1917.
    Rehearing Denied April 18, 1917.)
    1.PRINCIPAL AND SURETY <&wkey; 173 — SUBROGATION <&wkey;7(2) — Rights of Surety.
    A surety and those secondarily liable for the payment of indebtedness are entitled, upon the payment thereof, to recover against the principal debtor and be subrogated to the rights of the creditor, with respect to any security given for the payment of the indebtedness.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 497-499; Subrogation, Cent. Dig. § 18.]
    2. Principal and Surety &wkey;>169 — Rights of Surety — Subrogation.
    Since the surety has an interest in the security taken by the creditor, the latter is regarded as trustee, and must exercise good faith toward the surety and- do nothing to impair or release the security.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 474⅜89.]
    3. Principal and Surety <&wkey;169 — Rights of Surety — Subrogation.
    The duty of a creditor who holds security is not ordinarily a positive duty, and he is not liable for loss resulting from mere passivity.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 474-489.]
    4. Principal and Surety <&wkey;115(2) — Release of Surety.
    Where the creditor takes a mortgage to secure the payment of a debt, he owes the surety the duty of having it recorded, and if he does not do so and the security is lost, the surety will be released pro tanto.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 249-265.]
    5. Bills and Notes <&wkey;301 — Liability of Indorser — Rights.
    The relation between the indorser and the maker of the note, even after the liability of the indorser is fixed by protest or waiver, is very similar to that of principal and surety, and most acts which will discharge the ono will discharge the other.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 706-721.]
    6. Bills and Notes <&wkey;>301 — Liability of Ind orser — Rights.
    Whore a note and mortgage were given and the payee indorsed the note, by such indorsement he impliedly agreed that he was satisfied with the transaction, and the indorsee could accept the security as tendered and rely on the indorsement, and recover thereon, though the mortgage security was impaired through failure to record the mortgage.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 706-721.]
    Appeal from District Court, Armstrong County; Hugh L. Umphres, Judge.
    Action by G. J. Nunn against Elbert F. Smith and others. Judgment for plaintiff in part, and he appeals.
    Affirmed in part, and in part reversed and remanded.
    S. E. Fish and Kimbrough, Underwood & Jackson, all of Amarillo, for appellant. C. E. Gustavus and Crudgington & Works, all of Amarillo, for appellees.
   BOYCE, J.

E. F. Smith executed and delivered to Palm Bros, a note, dated November 5, 1912, for $640, payable in one year, and secured by chattel mortgage, also executed by said E. F. Smith, on certain cattle. On,November 23d Palm Bros, delivered the note to G. J. Nunn, indorsing it to his order, as part payment for certain land conveyed by Nunn to Palm Bros. At the same time an assignment of the chattel mortgage was written on it, signed by Palm Bros, and the chattel mortgage with the assignment was delivered to Nunn with the note. The chattel mortgage had not been recorded by Palm Bros., and was not recorded by Nunn until June 7, 1913. In the meantime the cattle had been sold ■ by Smith to Louis Hansen, who was, according to the findings of the jury, an innocent purchaser for value without notice of the mortgage, and the security was thus lost. The value of the cattle covered by the mortgage was shown to be from $1,200 to $1,500, thus being more than the amount due on the note.

Appellant, Nunn, brought suit on the note against Smith, the maker, Palm Bros., as in-dorsers, and to foreclose the lien of the chattel mortgage, making Louis Hansen a party defendant for that purpose. On the trial the jury found that Hansen had bought the cattle in good faith without notice of the mortgage, and that plaintiff, Nunn, was negligent in not recording the mortgage, and this was the proximate cause of the loss of the security. Judgment was entered in favor of plaintiff against Smith for the amount of the note and foreclosing the lien as to him, but denying recovery against the indorsers, Palm Bros., and foreclosure of the lien as to Hansen, and the plaintiff, Nunn, has appealed, from this judgment.

The only question on the appeal is as to whether Nunn,, by reason of his failure to record the mortgage, thereby released the indorsers. A surety and those secondarily liable for the payment of indebtedness are entitled, upon the payment thereof, to recover against the principal debtor and be subrogat-ed to the rights of the creditor, with respect to any security given for the payment of the indebtedness. The surety therefore has an interest in the security taken to secure the indebtedness, and the creditor is regarded as a trustee, holding the securities for the benefit of all parties interested. He must exercise good faith toward the surety and do nothing to impair or release the security. His duty is not ordinarily a duty of action, so that it is usually said that he is not liable for loss resulting from mere passivity, but must do no affirmative act that will impair or release the security. The subject is treated by Story in his work on Equity Jurisprudence (section 325), under the title of “Constructive Fraud,” and the rights of the surety are thus ■stated:

“If the creditor does any act injurious to the surety or inconsistent with his rights, or if he • omits to do any act when required by the surety which his duty enjoins him to do, and the omission proves injurious to the surety, in all such • eases the latter will be discharged, and he may set up such conduct as a defense to any suit brought against him if any at law, in all events in equity.”

Chancellor Kent, in Hays v. Ward, 4 Johns. Ch. (N. Y.) 130, 8 Am. Dec. 554, states the duty of the creditor in such eases thus:

“The surety, by his very character and relation of surety, has an interest that the mortgage taken from the principal debtor, should be dealt with in good faith, and held in trust, not only for the creditor’s security, but for the surety’s indemnity. ⅜ ⅜ * The [creditor] must do no willful act, either to poison it, in the first instance, or to destroy or cancel it afterwards.”

Justice Lurton, later of the Supreme Court of the United States, in the case of Evans v. Kister, 92 Fed. 834, 35 C. C. A. 28, says:

“If, therefore, the creditor surrender such securities to the debtor without consent of the surety, or they are lost as a consequence of the failure of the creditor to discharge some duty owing to the surety in respect to their protection or preservation, the surety will be discharged to the extent that he sustains loss by such misconduct.”

It is now the generally accepted rule that, where the creditor takes a mortgage to secure the payment of the debt, he owes the surety the duty of having it recorded, and if he does not do só, and the security is lost, the surety will be released pro tanto. Bennett v. Taylor, 43 Tex. Civ. App. 30, 93 S. W. 704; Brandt on Suretyship & Guaranty, § 505; Cye. vol. 32, p. 222; Burr v. Boyer, 2 Neb. 265; Toomer v. Dickerson, 37 Ga. 428. This rule was not established without considerable dissent on the ground that the failure to record the mortgage was a passive act, and not the positive act of release that was required by the authorities to release the surety. See authorities cited, Cyc. vol. 32, p. 222, and dissenting opinion in the Georgia case, supra. The leading case in the United States on the subject seems to be that of Burr v. Boyer, supra, and it is quoted from quite extensively by Brandt and other authorities discussing this question. We will ourselves quote some of the reasons assigned by the court for its holding. After referring to the registration statutes of Nebraska, requiring the record of the mortgage to make it valid as against subsequent purchasers and creditors without notice, the court proceeds:

“The chief value, then, of the security taken here depended on the fact whether the mortgage was filed or not. With the principal debt- or so irresponsible in the eye of the creditor, that for the payment of $147 in 30 days he must give two additional names and a chattel mortgage as security, can the creditor be said to have acted fairly in omitting to do the very act that was likely to give any indemnity to the sureties? * * * The property was liable at any hour to be disposed of in a way that would render the security worthless. The simplest act on the part of the mortgagee and the custodian of the paper could save the surety harmless by reason of his friendly act for the benefit of the plaintiff. Can it be called an act of good faith for the plaintiff to omit so small a matter when of so great consequence to the defendant? Can it be contended that the defendant must have first interested himself in the matter of filing and recording the mortgage. This would have been unusual. The plaintiff, and not the sureties on the note, took the mortgage. The very taking of it carries , with it the idea that it was given for a purpose. That purpose should only be effectual by the further act of filing it. Can he who has taken the security stop short of and omit to do that which makes it chiefly valuable under the excuse that others did not urge him to file it, or furnish the pittance necessary to pay the recorder? * * * .‘The nature of the security required something to be clone at once by tbe creditor to make it a valid security; and bonce tbe law should, as it doubtless did, imply an agreement on his part to perform that act, without which tbe security was invalid. An omission to do this would be gross neglect in an agent, bailor, or trustee, and would be a breach of good faith on the part of the creditor towards the surety.’ Schroeppel v. Shaw, 5 Barb. [N. YJ 580."

The relation between the indorser and the maker of the note, even after the liability of the indorser is fixed by protest or waiver, is very similar to that of principal and surety, and “most acts which will discharge the one will discharge the other.” Brandt on Suretyship & Guaranty, § 3. But do the reasons which require the creditor, in the exercise of good faith toward the surety, to record the mortgage, taken by himself, apply to the record of a mortgage taken by the indorser? In the one case the security is taken and arranged by the creditor himself; the surety had nothing to do with it, is not in possession of the mortgage, and has no power himself to have it recorded, and himself derives no benefit from the transaction. In the other the indorser has himself arranged for and taken the security. He is in the first instance in possession of the mortgage, with the power to have it recorded, and the security is apparently arranged to his satisfaction, without the record of the mortgage. Under these circumstances he sells the note, receiving the consideration therefor, delivers the note and the mortgage in this condition to the indorsee, ,and by his indorsement binds himself to pay the note immediately upon default in payment by the maker; the indorsee being under no obligation to pursue or exhaust the security before calling on the in-dorser for payment.

We do not think that under these circumstances any duty would rest on the in-dorsee to record the mortgage. By his acts the indorser impliedly represents that the security has been arranged to his satisfaction, without the record of the mortgage, and that he is willing to enter into the contract of indorsement with the security in this condition, and we do not believe it is an act of bad faith on the part of the indorsee to fail to record the mortgage, but he may accept the security as tendered and rely on the contract of indorsement. It is recognized by the authorities that:

“A surety who expressly or impliedly consents to the risk of security is not released by resulting loss.” Brandt, § 509.'

And it seems to us that the indorser who sells and transfers’ the note with the mortgage in this condition impliedly consents to the risk, and we hold that unless the duty of recording the mortgage is assumed or imposed by some agreement or special facts attending the transfer and delivery of the note and mortgage, the indorsee is under no duty to record it. If appellant, Nunn, assumed the duty of recording the mortgage, of course his failure to do so would operate as a release (Scott v. Llano County Bank, 99 Tex. 221, 89 S. W. 751); but this assumption of duty cannot be inferred, we think, from the mere acceptance of the note and unrecorded chattel mortgage, and the duty to record the mortgage would not exist unless such facts were shown as would make it inequitable for-him to deny that such was his duty, for instance, an express or implied agreement to record the mortgage, and while we do not say that there might not be special facts and circumstances that would otherwise impose the duty, we do not now have any such in mind.

We have thus far treated the case as if no special facts, as above referred to, attended the transfer and delivery of the note and mortgage, and will now consider whether the allegations of the petition or the proof offered on the trial are sufficient to impose the duty of recording the mortgage upon the appellant, Nunn. The indorsers, Palm Bros., allege that they were for some time before indorsement of the note engaged in negotiations for the purchase of a section of land from Nunn, and that prior to the taking of the note and mortgage from Smith Nunn had agreed that, if said note should be executed and secured by mortgage on said cattle, he would accept said note as part payment on said land upon the indorsement of Palm Bros., with the obligation of said Smith, and chattel mortgage lien on said cattle and stock as the primary and original security for the payment of said note, and the said indorsers secondarily liable after the exhaustion of the other security; and they further allege that the note and mortgage were taken from Smith and delivered to Nunn, in pursuance of this arrangement. The testimony offered on the trial was that of one of the Palm Bros., who testified that there had been some discussion between them and Nunn prior to the execution of the note and chattel mortgage about its execution, and that they had intended to turn the note and chattel mortgage over to Nunn immediately after its execution, but that bad weather or-something else prevented this from being done; that it was understood that the chattel mortgage should be delivered to Nunn with the note.

We do not think that either the allegations of the petition or the evidence offered are sufficient to show that the duty of recording the mortgage was thereby imposed upon Nunn, and for this reason we will reverse the case. As the court below overruled the-demurrer to the answer, in which the foregoing facts were set up, and as the facts attending the transfer of the mortgage may not have been fully developed, we will remand the case for another trial.

The question to be determined on such trial is as to whether it was the duty of the appellant, Nunn, to record the chattel mortgage, and if the facts on the trial are sufficient to make this an issue of fact it should be submitted to the jury with appropriate instructions as to the law. If it was Nunn’s duty to record the mortgage, and he failed to do so, and loss resulted, the release would follow as a matter of law. Brandt, § 49S. And we suggest that it would he more or less confusing to the jury to submit the question as one of negligence.

The judgment will be affirmed as to the defendants Elbert IP. Smith and Louis Hansen, ¡and will be reversed and remanded for a trial of the issue of liability of the in-dorsers, Palm Bros.
      <a=s>For oilier casts see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    WHALEY v. McDONALD et al.
    (No. 1140.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 4, 1917.)
    1. Trial <&wkey;202 — Instructions—Law or the Case.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1970, providing that the judge shall prepare and deliver a written charge to the jury on the law of the case, and article 1971, requiring the charge to be presented to counsel before being read to the jury, do not relieve the trial judge of the common-law duty to give a charge on the law of the ease, unless expressly waived.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ '474, 477, 482.]
    2. Appeal and Error &wkey;>1067 — Instructions — Law or the Case.
    If the judge does not give a charge on the law of the case on controverted issues of fact, the error requires reversal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4229; Trial, Cent. Dig. § 475.]
    8. Trial <&wkey;272 — Instructions—Law of the Case.
    A party who objects to direction of verdict cannot be held to have expressly waived a charge upon the law of the case.
    [E’d. Note. — For other cases, see Trial, Cent. Dig-. §§ 678, 679.]
    4. Vendor and Purchaser <®=334(6) — Recovery op Purchase Price under Void Contract.
    While payment of purchase money under a verbal contract for sale of land gives no right to specific performance, the vendee may recover the money paid if the vendor refuses to perform.
    [Éd. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 963, 973-975.]
    5. Evidence <&wkey;419(2) — Consideration.
    The consideration in a contract for sale of real estate may be shown by parol, and the statute of frauds does not apply thereto.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1912.]
    6. Vendor and Purchaser <&wkey;334(6) — Consideration.
    Where plaintiff paid money as initial payment on the purchase price of land, and on the next day the vendors and plaintiff agreed that plaintiff should take a different tract and the money paid should apply thereto, the vendors could not retain the money and refuse to perform the oral contract, and the vendee could recover the money paid.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 963, 973-975.]
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Action by E. E. Whaley against D. L. McDonald and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    S. J. Dodson, of Hereford, and Crudging-ton & Works, of Amarillo, for appellant. Knight & Slaton and W. H. Russell, all of Hereford, for appellees.
   HUFF, C. J.

This is an appeal from a judgment rendered in favor of defendants in error. The judgment of the court was rendered upon a verdict given in obedience to a directed verdict by the court. Plaintiff in error brought suit against the defendants in error for the sum of $4,500, alleging substantially that $300 in money was paid cash and an automobile of the value of $1,500 in part payment for three-quarters of a certain section of land in Deaf Smith county, under a written contract for the purchase of the land by plaintiff in error, of date May 5, 1913. Plaintiff in error further alleged that thereafter the contract for the sale was, by mutual consent, abandoned, and that the consideration above specified as paid was, by verbal agreement of the parties, changed from the above-mentioned land and applied as cash payment on the contract of purchase by the plaintiff in error of a half section of land out of section 24, or a different section to the one originally contracted for, and known as the Estes land, that on May 6, 1913, plaintiff in error and defendants in error entered into a contract to sell the Estes land, and the $4,500 was applied as a cash payment thereon, and defendants in error agreeing to put down on the land by November 1, 1913, a McDonald irrigation well of 1,500 gallons capacity, and they were to make and deliver a deed by November 1, 1913, and that this verbal contract was later confirmed in writing by defendants in error, and plaintiff in error was at all times ready, willing, and able to comply with his part of the contract, but that defendants in error failed and refused to carry out their part of the same, although often requested so to do, that by receiving the money and failing to carry out said contract defendants in error became liable to plaintiffs in error for the amount so paid and applied as part payment on the Estes land, and alleged other matters not necessary at this time to set out. The defendants in error answered by exceptions and general denial, specially admitting execution of the written contract May 5th on the three-quarter section, but denied that the contract was abandoned or modified in writing or otherwise, and denying the breach of the same, and offering to perform thereon. The facts with reference to the pleadings in the case will be hereafter noted under the several assignments.

It is urgently insisted that we should disregard the assignments of error because the trial court instructed a verdict, and that appellant requested no special instruction properly submitting the issues of fact to the jury; that he only filed exceptions to the charge of the court. The objections are brought up in the record by bill of exceptions wherein it is stated the plaintiff “objects and excepts” for the reason that there are many material facts which show plaintiff’s right of recovery, “and the charge is erroneous in that the court did not submit to the jury questions of fact in said cause, to wit: [Which were set out in 16 paragraphs of the bill.]” The bill further shows the charge was peremptory, and was presented to counsel for the respective parties before being read to the jury, and that the above objections were presented to the court at that time, who then held the exceptions and objections were not well taken and overruled the same, and the record further shows the trial court thereupon instructed a verdict for the defendants in error.

It may not be inappropriate to call attention to some of the changes in the statutory la-jv with reference to instructions in this state. At common law, unless unauthorized by statute, the court has a right to give the jury correct instructions, whether requested or not, and it was the duty of the court to do so when the justice of the case seemed to require it. Prior to the act of 1903 amending then article 1316, R. S., the trial court in civil cases was not bound to give in charge the law of the case, and a failure to do so was not reversible error, unless a proper charge was requested. This seems to have been recognized as the rule by several cases, while not directly so decided. Berry v. Railway Co., 72 Tex. 620, 10 S. W. 726. But even then the trial court could not direct a verdict where there was evidence tending to support an issue. Rogers v. Broadnax, 24 Tex. 542; Supreme Council v. Anderson, 61 Tex. 296. By the amendment of 1903 it was provided:

“In all civil eases the judge shall, unless the same be expressly waived by the parties to the suit, prepare and in open court, deliver a written charge to the jury on the law of the case.”

This provision is carried forward in the Civil Statutes as article 1970, Vernon’s Sayles’ Civil Statutes. This was again amended by the Legislature in 1913, requiring such charge to be submitted to the counsel for the parties a reasonable time before reading to the jury, and also that it should be prepared and delivered in the manner thereafter provided. Article 1971, Vernon’s Sayles’ Civil Statutes, has the same provision as to the manner in which the charge should be prepared as did the original provision of the act of 1853, with the addition that the charge is to be prepared and presented to counsel for objection, if any, before being read to the jury, and “any and all objections not so made and presented shall be considered waived.”

It is manifest, we think, from the wording of these two articles, that it was never the purpose to relieve the trial judge of the duty imposed by law upon him to give a written charge “on the law of the case,” unless the same was expressly waived. Article 1971 first requires such a written charge to be prepared and submitted for objections. If the charge so prepared is not objected to, then objections thereto are waived. The inquiry is what is meant by a charge “on the law of the case”? Article 1970 required that it be prepared in the manner thereafter provided. Under the old act the charge “on the law of the case” was to be prepared “under the following restrictions.” In Rogers v. Broadnax, supra, Judge Roberts, discussing a peremptory charge, after referring to what is meant by “on the law of the case,” said:

“ ‘He shall not in any case, civil or criminal, charge or comment on the weight of evidence, lie shall so frame his charge as to submit questions of fact solely to the decision of the jury, deciding on and instructing them as to the law arising on the facts, distinctly separating questions of law from questions of fact,’ etc. O. & W. 128, art. 491. ⅞ ⅜ * Whether or not the facts alleged are sufficient to relieve him from the obligation to pay, as he agreed, on the face of the notes, is a question of law to be determined by the court; but whether or not those facts thus alleged and denied exist is a question of fact for the jury to determine. The court in this case virtually, determined both the questions, of fact, and of law, without separating them, and without submitting the questions of fact to the decision of the jury.”

A charge on the law shall be given in writing and prepared and delivered, unless expressly waived as directed by the succeeding articles. If such a charge is not so prepared and delivered, it is error, requiring a reversal, and it has never been held under the previous -acts that the aggrieved party was required to request a special charge submitting controverted issues of fact. A failure to submit such issues is positive error under the statutes, and when that is true no-request is required. In other states it has been held that where the court directs a verdict, it is not necessary to request‘the-court to submit questions of fact. Note to section 133, Blashfield’s Instructions to Juries, where Low v. Hall, 47 N. Y. 104, is cited as supporting the above proposition. We have not access to this report. In this state it has been said:

“Where the charge in effect excludes material conclusions to be deduced from the evidence, it is error without counter instructions having been presented.” Chamblee v. Tarbox, 27 Tex. 146; Stude v. Saunders, 2 Posey, Unrep. Cas. 122.

A directed verdict by the judge certainly excludes from the consideration of the jury all evidence and deductions to be derived therefrom.’ In those states which make it mandatory upon the trial judge to charge the law of the case it is held to be his duty to give instructions substantially covering the material issues in the case. An entire failure to state the law to the jury is to be distinguished from an omission to instruct on some particular phase of the case, and is erroneous whether requests for instructions are made or not. Mfg. Co. v. Shiley, 15 Neb. 109, 17 N. W. 267; Aultman v. Martin, 37 Neb. 826, 56 N. W. 622. “The law of the case must be given to the jury to the extent of covering the substantial issues made by the evidence” (Railway Co. v. Harris, 76 Ga. 502), and fairly presenting the case to. the jury (Douglass v. Geiler, 32 Kan. 499, 4 Pac. 1039). Our courts, we believe, have recognized the rule in those states which impose the duty upon the trial court to substantially charge the law since the act of 1903. Railway Co. v. Votaw, 81 S. W. 130; Sehwartzlose v. Mehlitz, 81 S. W. 68; Wallace v. Shapard, 42 Tex. Civ. App. 594, 94 S. W. 151. Of course, if a peremptory charge was in fact the law of the case, there would be no error, whether it was in writing or not, such as to reverse the case. See authorities, supra, and Thornton v. Daniel, 185 S. W. 585.

Under the objections made to the action of the court in this case in directing a verdict, it is too plain for argument that appellant did not .expressly waive a charge upon the law of the case, prepared and delivered, as required by the statutes. The objections made were timely, and, we believe, in substantial compliance with the statutes, under the rule long recognized by the Supreme Court to the effect, where it appears the trial court is unwilling or thought it to be unnecessary to give any charge upon a certain point, a party is not called upon to ask instructions upon such point. Railway Co. v. Underwood, 64 Tex. 463. Appellant therefore would be excused from requesting special instructions under the refusal to submit controverted issues, as shown by the record in this case. We do not understand it to be required by the statutes to both object and request special charges in cases of this kind, and we do not believe any of the courts have gone to the extent here contended for, and certainly this court has not. Rabinowitz v. Smith, 190 S. W. 197; Railway Company v. Alcorn, 178 S. W. 833. We believe the rule relied upon by appellee finds expression only in those cases where the court has in a substantial way charged the law of the case, and which is correct as far as it goes. The ruling is generally, if there is a defense not presented by the charge which may find a support in the evidence, the omission should be supplied by a requested charge properly presenting the law thereon. In so far as we have been able to ascertain this is the only class, or some like cases, in which the rule here invoked is applicable. Such are the eases to which we are referred by appellee. O’Neal v. Bush, 191 S. W. 1133; Railway Co. v. Eberheart, 91 Tex. 321, 43 S. W. 510; Shumard v. Johnson, 66 Tex. 70, 17 S. W. 398. It is Universally held by our courts, we think, and all others, that if the charge given by the court is erroneous in a material particular, that is, not the law of the case, the case will be reversed upon proper exception or objection to it, if there is an assignment properly presenting the error. Any other holding would be in the teeth of the statute which declares the judge shall charge the law applicable to the case.

The evidence in this case is sufficient to submit the issue as to whether or not the defendants refused to convey the land known as the Estes land, and whether they breached their oral contract in refusing to put down a well on the land, as agreed upon, whether they refused to convey the land in accordance with the agreement. The evidence is sufficient to require the submission of the issue whether the plaintiff was ready, willing, and able to perform his part of the agreement, whether he demanded of the defendants a performance on their part, and whether they refused to comply. The assignments of error present the above issues in various forms.

The trial court doubtless instructed a verdict on the theory that the agreement was oral and, therefore within the statute of frauds and nonenforceable, and also that the money w'as first paid on a written contract for the sale of a different tract of land, and that that contract was not rescinded in writing.

The facts, briefly stated, are that on May 5, 1913, the plaintiff in error entered into a written contract with the defendants for the purchase of a three-quarter section of land known as the McDonald land for $18,000, $4,500 cash, 80 acres of land in Colorado, valued at $11,000, and a note for $7,500, the defendants to assume an indebtedness against the Colorado land of $5,000. The $3,000 paid by plaintiff to defendants was cash, and $1,-500 by an automobile valued at that sum, which was turned over to the defendants when the contract was signed. The evidence will warrant the finding that on the day the contract was signed plaintiff expressed a desire to look further before signing, but it was stated by defendants, if he found other land upon which they could agree, the consideration paid would be placed upon it. On the morning afterwards, May 6th, plaintiff told the defendants that his wife was not pleased with the place, whereupon defendants said they would satisfy them and showed them a half section of land, being a part of a different section, known as the Estes land. The parties agreed that the terms and price on the second tract should be the same as in the contract of the day previous; the difference being that on the McDonald land there was an irrigation well fully equipped. The Estes land had no such well, and defendant agreed to' put down the well and equip it as was the one on the McDonald farm by the 1st of November following. McDonald testified substantially that the agreement was to allow plaintiff to take the Estes land in place of the McDonald place, and that the defendants were not holding plaintiff on the McDonald land; that they agreed with plaintiff that the $4,500 was to be applied on the Estes contract or place. The plaintiff returned to Colorado after the last agreement to harvest his wheat. There is a conflict in the evidence as to when he was to return and the transaction finally to be closed. The defendants directed plaintiff, if upon returning home he should change his mind and decided to take the McDonald place, to write them in 30 days. Plaintiff wrote the defendants he had not changed his mind and would keep the Estes land. The defendants answered this letter that it would be entirely satisfactory with them for him to take the 320 acres east of Hereford, which is referred to in the record as the Estes land. About the last of October, 1913, plaintiff shipped his household goods and moved to Hereford, near which place the land is situated. The well at that time had not been put down or the equipments provided therefor, as agreed upon. A controversy arose over this matter, which was not adjusted, and a dispute also arose as to when it was that plaintiff should.arrive and close the matter, and whether he should go on the land before the well was completed. Deeds were not therefor exchanged, each party contending he was ready, willing, and able to carry out the contract as agreed upon, and each claiming the contract was breached by the other. It resulted in plaintiff demanding a return of the money paid, which was refused and suj.t instituted for its recovery.

The contention by defendant is that the action of plaintiff is for damages for the breach of a parol contract for the sale of land which is forbidden by the statute of frauds, and that under the pleadings and evidence the court properly instructed a verdict. The payment of purchase money under a verbal contract for the sale of land gives no right for specific performance, but gives a right to recover the money paid, if the vendor refuses to perform. The vendee’s remedy under a contract nonenforceable under the statute is for the recovery of the money paid if the vendor refused to make a proper conveyance. The vendee may thus restore his statu quo without the aid of chancery. Sullivan v. O’Neal, 66 Tex. 433, 1 S. W. 185; Bradley v. Owsley, 19 S. W. 340; Boze v. Davis, 14 Tex. 331; Browne on Statute of Frauds, § 118, note 2. This action was not brought, as we understand it, on a contract for a sale of land, but is for money had and received in an oral contract to convey land, which the vendor declined to convey. It is not the compliance with the statute that constitutes the contract. The statute presupposes its legality, the enforcement of which is only suspended by the statute until its provisions are satisfied. Robb v. San Antonio Street Railway Co., 82 Tex. 392, 18 S. W. 707; Browne on Statute of Frauds, § 115a.

It is urged by defendants there was no error in instructing a verdict because the contract of May 5, 1913; was in full force and effect, and had not been abrogated or abandoned; that the contract was in writing and such contract could only' be abandoned or' modified by contract of equal dignity. The defendants in error cite the eases of Dial v. Crain, 10 Tex. 444; Sanborn v. Murphy, 5 Tex. Civ. App. 509, 25 S. W. 459, Id., 86 Tex. 437, 25 S. W. 610, and we add Gardner v. Sittig, 188 S. W. 731. Those cases are distinguishable in important particulars from this: In both the Dial and Sanborn Cases the title had substantially vested under the written contract by performance of the terms. It was sought to defeat the vested rights by parol agreement. In the Gardner Case Ahe-lease was for a longer term than one year. The tenant had moved out before the expiration of the term and set up a parol agreement changing the terms of the written lease. The statute provides no action shall be brought unless the promise or agreement upon which the action is bro'ught is in writing for the sale of real estate. Article 3965, Revised Civil Statutes. This action is not brought upon the contract for the sale of land, but for money had and' received. The contention is, it appears to us, that the money so had and received was not plaintiff’s, because it had been paid for a different tract upon a written contract which was unre-voked by a written abandonment. The consideration therefor was in effect returned to plaintiff by defendants. It is generally recognized in this state that the consideration in a contract may be shown by parol, and that the statute does not apply thereto. This statement should-not be confused with that line of cases which hold that, if it is contractual, it cannot be shown to be different from the writing by parol. In this case the consideration was returned, paid, and accepted upon a different piece of land. That contract was not illegal; only its enforcement was suspended by the statute until its provisions were satisfied. Showalter v. McDonnell, 83 Tex. 158, 83 S. W. 491. The defendants, according to plaintiff, wrongfully refused to satisfy the statute by conveying the Estes land.

“It would be iniquitous to rule that the plaintiff had no redress for injury or loss that the defendants’ intestate had induced Mm to incur. If the provisions of the statute of frauds cited is to have tMs effect, instead of preventing fraud, it will be making it the instrument and means of perpetrating fraud.” Ray v. Young, 13 Tex. 550; Pipkin v. Bank of Miami, 179 S. W. 914; Garrett v. Danner, 146 S. W. 678.

In the case of Rowson v. McKinney, 157 S. W. 271, it was held, as we understand that case, that an oral agreement to return the purchase money paid on a contract for the sale of land, to the vendee was not within the statutes and could be enforced. The case of Terhune v. First National Bank, 24 Tex. Civ. App. 242, 60 S. W. 352, holds that in an executory contract, where the contract is rescinded by oral agreement, this has the effect to cancel a vendor’s lien note. It was said in Sullivan v. O’Neal, supra, if the deed was repudiated by the vendee and destroyed in effect with his consent, it certainly could not afterwards be claimed by him as a compliance with the law. In this case both parties agreed not to go forward with the contract of May 5th. The purchase money was applied on another tract of land by agreement and the consent of all parties. No possession of the first tract of land was taken by plaintiff, and nothing was done thereon except to enter into a written contract and to pay $4,500. The next day the money was paid on the other tract of land and accepted by the defendants as such payment. To hold because there was no reconveyance in writing of the first land, and that the statute of frauds as to that was not fully satisfied, that the defendants can refuse to convey the second tract and at the same time retain the money, after having, by the agreement 'entered into with plaintiff, induced him to abandon the first contract, would' be, in our judgment, to perpetrate a fraud. We do not believe this contention can be sustained by the rules of law or eguity.

The ease will be reversed and remanded.
      other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: DAVIS, J.

text:
    HOUSTON OIL CO. OF TEXAS v. WILLIAM M. RICE INSTITUTE FOR THE ADVANCEMENT OF LITERATURE, SCIENCE, AND ART.
    (No. 161.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 22, 1917.
    Rehearing Denied April 18, 1917.)
    1. Stipulations &wkey;18(4) — Oonclusiveness.
    In trespass to try title, where plaintiff claimed under three and five years’ limitation, and defendant agreed that in so far as their claims conflicted the plaintiff had paid the taxes, defendant could not on appeal contend that all the taxes were not paid on all of the land originally sued for, part of which was not in controversy.
    [Ed. Note. — For other eases, see Stipulations, Cent, Dig. § 44.]
    2. Adverse Possession &wkey;>73 — Coloe op Title — Junior Patents.
    Junior patents on lands, where the issue of patents has not been expressly prohibited, are color of title to support the three years’ statute of limitation, whether based on pre-emption or otherwise.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 435 — 442.]
    3. Public Lands <&wkey;176(2) — Junior Patents —Presumptions.
    Since the Pre-emption Acts of Jan. 22, 1845 (2 Gammell’s Laws, p. 1073), and Feb. 7, 1853 (3 Gammell’s Laws, p. 1317), vest in the land officers the judicial authority to determine the validity of patents and impliedly therefore to determine whether land has already been appropriated, where the officers issued a patent it prima facie imported that no prior patent was issued.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 572-575.]
    4. Adverse Possession <&wkey;101 — Extent op Possession — Subdivision.
    Where an original survey was subdivided into two tracts, but both were subsequently by the same deed conveyed to the plaintiff in trespass to try title, his possession upon one of the tracts extended to and embraced the other to the extent of the original survey.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 575-589.]
    5. New Trial <&wkey;89 — Grounds—Surprise— Sufficiency op Showing.
    A party having been served with an abstract which showed a deed to the other party to one part of the land in controversy in trespass to try title could not rely thereon, where the correct and complete deed was recorded, and, when he did rely thereon, was not entitled to new trial on the ground of surprise when the correct deed was introduced.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 177-180.]
    Appeal from District Court, Newton County ; A. E. Davis, Judge.
    Action by the William M. Rice Institute, for the Advancement of Literature, Science, .and Art, against the Houston Oil Company of Texas and others. Judgment for plaintiff, and defendant Oil Company appeals.
    Affirmed.
    I-I. O. Head, of. Sherman, and Parker & Kennerly and J. J. Lee, all of Houston, for appellant. Wightman & Hancock, of Newton, and Baker, Botts, Parker & Garwood, of Houston, for appellee.
   DAVIS, J.

This is an action of trespass to try title, brought by appellee against appellant et. al. in tbe district court of Newton county, Tex., to recover all of the T. D. Porter 315-acre survey, situated in Newton county, Tex. Plaintiff and defendant Houston Oil Company of Texas dismissed out of said suit, without prejudice, certain defendants, not necessary to mention here, and the case went to trial with appellee as plaintiff, and appellant and the Texas Turpentine Company as defendants. Appellee set up in its petition, among other pleadings, the three and five years’ statutes of limitation to the Porter survey, and brought the Texas Turpentine Company in as a defendant, because of a lease contract it had with the defendant Houston Oil Company of Texas, involving the land in controversy, and sued to recover damages, because of injury to pine timber and the value of certain resin taken from the timber. The defendant Houston Oil Company of Texas, in its answer, alleged that it was the owner in fee of the James L. Howard 1,107-acre survey, .a senior survey, and that the Porter survey sued for by plaintiff was a junior survey. It then disclaimed as to all of the Porter survey not in conflict with the Howard survey, and set up title to that portion of the T. D. Porter survey in conflict'with the ■Howard survey. The defendant Texas Turpentine Company answered, setting up its lease contract with the defendant Houston Oil Company of Texas, and by its pleas of general denial and not guilty. The case was tried before the court without a jury, and1 resulted in a judgment for plaintiff, from which tlie defendant Houston Oil Company of Texas, alone, has appealed.

Plaintiff in its petition pleaded the three and five years’ statutes of limitation, as follows:

“Plaintiff further represents that it has had and held, peaceably, continuous and adverse possession under title and color of title from and under the state of Texas, said land and tenements above described, claiming, cultivating, using, and enjoying the same, for more than three years after defendants’ cause of action accrued, if any cause of action the said defendants, or either of them, ever had, and before the commencement of this suit, and this it is. ready to verify, and plaintiff specially pleads said title in support of its claim to the above-described land.”
“Plaintiff further represents that it. claiming the land above described under deeds duly registered, has had peaceable, continuous, and adverse possession of said land and tenements above described, cultivating, using, and enjoying the same, and paying all taxes due thereon, for a period of more than five years after defendants’ cause of "action accrued, if any cause of action the said defendants, or either of them, ever had, and before the commencement of this suit, and this it is ready to verify, and plaintiff specially pleads said title in support of its claim to the above-described land.”

It was agreed upon the trial of the case:

“That the Houston Oil Company of Texas, a defendant, prior to the said 8th day of May, 1907, acquired the title 'to the James L. Howard survey, and that it now has title thereto, except in so far as the plaintiff may have title to a part thereof, because and by virtue of the conflict with the junior T. D. Porter survey, and its claim of title thereunder by virtue of limitation ; the only issue in this case being whether or not the Rice Institute has acquired title by virtue of adverse possession under the limitation law to so much of the T. D. Porter survey as conflicts with the James U. Howard, survey.”

It was also agreed upon the trial of the ease:

“That the .taxes have been paid on the land in controversy by the plaintiff herein each and every year as the same became due from the year 1907, including the taxes for the year 1907, to and including the year 1915, and the taxes for 1915 were paid on January 20, 1916.”

It is clear that the parties, by these agreements, expressly resolved the whole case into one issue, and that was whether or not the plaintiff had acquired title to that portion of the Porter survey in conflict with the James U. How'ard survey under the three or five years’ statutes of limitation by virtue of adverse possession.

The following facts were established upon the trial of the case: The James Hi Howard survey was titled on October 15, 1835, and T. D. Porter was located by virtue of a preemption certificate issued in 1857, and the patent issued in 1859. That the north part •of the Porter survey conflicts with the southern part of the Howard survey to the extent of 265 acres of land, leaving only 50 acres of the Porter survey not in conflict with the Howard survey. That on March 6, 1860, T. D. Porter sold and conveyed by deed to R. P. 1-Iext, 160 acres, more or less, somewhat in the shape of a triangle off of the east portion of his survey, describing the same by metes and bounds. That on the 19th day of May, 1869, T. D. Porter sold and conveyed by deed to H. H. Ford 160 acres, more or less, in a rectangle off of the west portion of his survey, describing the same by metes and bounds, and by the two deeds conveyed the entire Porter survev.

Hereafter we will refer to the divisions of the Porter survey as the “Hext tract” and the “Ford tract.”

fhe first call in the field notes of the 1-Iext tract reads as follows, “Thence west 500 vrs. to 2nd corner,” and which second corner of this tract is the second and southwest corner of the Porter survey, and the 500-vara line called for is one of the south boundary lines of the Porter survhy. The second call reads: “Thence north 900 vrs. to Porter’s creek,' and 1,840 vrs. to a stake.” This 1,840-vara line is the west line of the Porter survey, and the third corner called for is the northwest corner of the Porter survey. The third call reads: “Thence east 500 vrs.” This line is a part of the northern boundary line of the Porter survey. The fourth call reads: “Thence S. 2,740 vrs. parallel with 2nd line to the place of beginning, containing 160 acres, more or less.” Thus it. will be seen that whoever prepared the deed understood the calls for the second line of “900 vrs. to Porter’s creek, and 1,840 vrs. to a stake,” to mean that this line was 900 varas plus 1,840 varas long, making 2,740 varas from the second corner to the third corner. This tract is a rectangle, and the call for the fourth line says, “parallel with 2nd line,” and the call for its length, therefore, is immaterial. The palls describing both the .Hext tract and the Ford tract exactly describe the Porter survey.

A. G. Wells acquired both tracts by separate deeds, and thereafter conveyed both tracts in the same deed to W. M. Rice, and the executors of the W. M. Rice estate conveyed to appellee. These two subdivisions of the Porter survey are contiguous.

It was also agreed upon the trial of the ease:

“That the inclosures, buildings, improvements, etc.” (under which appellee claimed both tracts by virtue of the three and five years’ statutes of limitation) “are all on the Hext tract.”

The evidence on the question of limitations satisfactorily shows that the appellee, through tenants for more than five years pri- or to the institution of this suit, with inclosures, buildings, improvements, and cultivation on the conflcting portion of the Hext tract only had and held peaceable and adverse possession of the Hext tract, under a deed duly registered, describing both the Hext tract and the Eord tract, and thereby describing the Porter survey as a whole; that the northern part of the Porter survey, composed of parts of the Hext tract and the Ford tract, were in conflict with the southern portion of the Ploward survey. The appellant, Houston Oil Company of Texas, it was agreed upon the trial, during the time appellee claims to have perfected its limitation under the three and five years’ statutes, was the owner of the James L. Howard survey.

Appellant’s assignments of error may be summed up in seven contentions, as follows:

(1) That appellee, plaintiff below, did not plead payment of taxes on all of the land, and the evidence showed payment of taxes on only two-thirds of the land described in its recorded deed, and for this reason appellee could not recover under the five years’ statute of limitation.

(2) That appellee claimed the land in controversy, by virtue of the T. D. Porter preemption claim to the land, it then being titled to appellant’s predecessor in title, wherefore such pre-emption location and survey, and patent issued thereto, were void, being contrary and repugnant to the pre-emption laws of the state of Texas, which permitted pre-emptions of vacant public domain only; and therefore appellee could not recover under the three years’ statute of limitation, for the reason that a void location, survey, and patent constitute neither title nor color of title.

(3) That the tract claimed by appellee having been subdivided, the statute of limitations cannot be invoked by appellee to a subdivision of which it had never been in possession.

(4) That it was admitted that appellee had not had any possession whatever of the Ford tract, and since the Porter survey had been divided into two tracts, and there being no possession of the Ford tract, it could not recover under its claims of limitation.

(5) That the burden was on the appellee to show that it paid taxes on all of the land described in the recorded deed under which it claimed title under the five years’ statute; and proof that it paid taxes on 265 undivided acres of the 402 acres described in its deed is insufficient to vest in it title to any part of the land.

(6) That appellee failed to show occupancy of the land described in its petition for three or five years consecutively before the institution of this suit.

(7) That because of the surprise of the appellant on the trial of the case as to a material fact proven by appellee, which appellant did not know of or by the use of reasonable care and diligence could not have discovered, and because of newly discovered evidence by appellant after the trial, the lower court should have granted a new trial.

The appellee, basing its contentions upon its pleadings, the agreements of record between the parties, and the evidence in this case, opposes each and every contention urged by appellant.

We will discuss the contentions of appellant in the order enumerated above. Appellant bases its first contention upon the proposition: That the field notes of the two tracts of land, comprising the Porter survey, contain 402 acres of land, as shown by the field notes. That the plaintiff shows to have only paid taxes on 265 acres, about two-thirds of the survey described, and cites numerous authorities in support of this contention, and which contention, but for errors and agreements, would be supported by these authorities, but this contention is not tenable for two reasons: (1) Because, as explained in the facts found by us, as set out above, the deed describes the Ford tract one way and appellant erroneously reads the description of this tract another way; (2) because the parties to this suit, upon the trial, agreed that for more than five years prior to the institution of this suit the appellee had paid all taxes on the land in controversy, and had disclaimed as to all the land sued for not in conflict with the Howard survey, and not in controversy. And they further agreed upon the trial that the sole issue was the question of limitation of three and five years.

There is an agreement of the payment of all the taxes on the land in controversy, and appellant now seeks to avoid that agreement by showing that all the taxes were not paid on all of the land originally sued for.

Appellant’s second contention is based upon the proposition that the Porter survey being a pre-emption survey, and a junior survey, having been partly laid on the Howard survey, a senior survey, that the patent to that portion of the Porter survey in conflict with the Howard survey was void, and would constitute neither title nor color of title, and cite authorities in -support of this contention, the following: Article 14, § 2, Constitution of Texas 1876 ; Pre-emption Act January 22, 1845 (2 Gammell’s Laws, p. 1073); Pre-emption Act Feb. 7, 1853 (3 Gam-mell’s Laws, p. 1317); Pre-emption Act Feb. 13, 1854 (3* Gammell’s Laws, p. 1550); Pre-emption Act Aug. 15, 1856 (4 Gammell’s Laws, p. 457); Pre-emption Act Feb. 1858 (4 Gam-mell’s Laws, p. 1024); Clark v. Smith, 59 Tex. 279; Gilbert v. Harris, 109 S. W. 392; Sutton v. Carabajal, 26 Tex. 497; Buford v. Bostick, 58 Tex. 70; Jennings v. De Cordova, 20 Tex. 514; Pohle v. Robertson, 102 Tex. 274, 115 S. W. 1167; Keith v. Guedry, 114 S. W. 397; Besson v. Richards, 58 S. W. 611; Kimmell v. Wheeler, 22 Tex. 77.

This is a question which has been litigated and passed upon time and again in this state; but, quoting with approval from ap-pellee’s able brief, we think that the facts in each ease divide all of the Texas decisions into the three following classes: -

(a) Where junior patents are issued subsequent to the Constitution of 1876 on certificates, (such patents) are held void and not sufficient to support the three years’ statute ■of limitation; this because the Constitution is held to expressly prohibit the issuance of such patents.

(b) Where all claims are under awards of school lands or pre-emptions, and a patent has not been issued, such claims are held not color of title to support the three years’ statute of limitation.

(c) All junior patents issued by the state of Texas on lands, where the issue of patents had not been expressly prohibited by law, have been held color of title to support the three years’ statute of limitation, whether •based on a pre-emption or otherwise. . .

The facts in the instant case bring it within class (c), and, while wé do not find the decisions of the state uniform in support of proposition (a) above stated, yet they have been uniform throughout as to class (c); and, since this case is brought within this class, it will not be necessary to discuss either class (a) or class (b), but we will call attention to the fact that, since the adoption of the Constitution of 1876, our Supreme Court has held patents issued on lands already appropriated not to be void for all purposes. Gullett v. O’Connor, 54 Tex. 408; Grigsby v. May, 84 Tex. 240, 19 S. W. 345.

The Pre-emption Acts of January 22, 1845, and February 7, 1853, do not prohibit the officers of the state from issuing patents, upon lands previously patented, upon pre-emptions, but vests in the officers the judicial authority to determine all of the incidents necessary to be determined to the validity of the patent issued. The ’repealing clause contained in the Pre-emption Act of February 13, 1854, expressly exempted all rights previously acquired, and consequently the power given the officers to determine the facts was not abrogated. The law vesting in the officer this judicial character, his decision, that the land on which the patent was issued was properly subject to pre-emption, is valid and binding upon the state, until the same is set aside in a proper action before a proper tribunal. This condition arises by reason of the fact that the officers *of the state are not prohibited by the act from issuing patents on pre-emptions on lands already appropriated, but the pre-emption right is merely given on unappropriated' lands, which, in all eases, involves a decision by the officers as to the fact of previous appropriation before the issuance of the patent. The power and duty are with the commissioner of considering and deciding whether or not the land for which a patent is sought has been appropriated b'y a valid location prior to that of the applicant, and his jurisdiction to decide this question cannot depend upon the correctness of his decision. That would be as unreasonable as to hold that a court had jurisdiction only when it committed no error. Having, then, the power to decide, and the duty of deciding, his decision must be prima facie right, if the land lie in territory subject to location, and the patent will convey an indefeasible title, provided there be no prior valid location in the way. And, when the patent is issued, it vests the patentee with the legal title, and is prima facie evidence that it was within the power of the officer, and that every prerequisite had been performed.

It will be noted that the cases cited by appellant show that each of them is based upon facts covered by propositions (a) or (b), and most of which come under proposition (b). The following cases cited by appellant, of Sutton v. Carabajal, Clark v. Smith, Jennings v. He Cordova, Pohle v. Robertson, and Besson v. Richards, are cases in which no patent had been issued by the state, and are not in point with the instant case.- The line is very carefully drawn in these decisions between those cases where the state had divested itself of every right by the issuance of a patent, and those cases in which no patent had been issued, and the party was attempting to hold under “pre-emption claim,” or “location of certificates,” or “awards of school land.” We will not discuss the numerous cases cited by appellant, but a careful study of each case bearing upon this question will disclose that they are cases where the patents have issued since the adoption of the Constitution of 1876, or claims under awards of school lands, or pre-emptions, and patents have not been issued. We therefore hold that all junior patents issued by the state of Texas on lands, where the issuance of patents had not been expressly prohibited by law, are color of title, and will support the three years’ statute of limitation, upon the ground that there being, on the date of the issuance of the patent to the Porter survey, no law expressly prohibiting the issuance of junior patents by the officers of the state of Texas, and the power of the officer existed to act in the issuance of a junior patent, his erroneous action in so acting would not be void, but at most would be only voidable; otherwise, any person may attach a patent for errors in the judgment of the officer empowered to issue it, and that which is intended to be among the highest evidence of title be open to question by anyone. League v. Rogan, 59 Tex. 430; Smith v. Power, 23 Tex. 30; Gullett v. O’Connor, 54 Tex. 416; Horton v. Halff, 147 S. W. 735; Grigsby v. May, 84 Tex. 240, 19 S. W. 345; Pohle v. Robertson, 102 Tex. 274, 115 S. W. 1167; Williamson v. Brown, 49 Tex. Civ. App. 402, 109 S. W. 412; Garrison v. Arnett, 58 Tex. Civ. App. 537, 126 S. W. 611; Williamson v. Miller-Vidor Lbr. Co., 178 S. W. 800.

Appellant earnestly urges, under its third contention, that the tract claimed by appellee having been subdivided, the statute •of limitation cannot be invoked by appellee to a subdivision of which it had never been in possession. While this proposition, with proper facts to support it, may be sound, yet, under the^facts in this case, they are not applicable. The two tracts into which the Porter survey had been divided were contiguous, and, after this survey had been divided into two tracts, both tracts thereafter were conveyed in the same deed to appellee, a description of both tracts gave a complete description to the whole Porter survey, and, as the record title to both of said tracts under the Howard patent was in appellant during the entire period of appellee’s occupancy, the possession by appellee of one of said tracts under said deed extended to both of said tracts, constituting the land in controversy. Because the Porter survey had been divided into two tracts, and because in the conveyance to appellee the two tracts were conveyed by.separate descriptions, would not prevent possession by appellee of one of the tracts, simply because it had its improvements on the other tract, for the reason that the description of both tracts described the entire survey, and the possession of one of the tracts under this deed would be posses- ■ sion of both tracts. We can see no difference in describing the whole by two descriptions, and describing the whole by describing its several parts into which it has been divided, which, taken together, describe the whole; and while appellant, under its fourth contention, claims that appellee agreed that it had no possession ■ of the Fore) tract, we find no such agreement in the record. We do find that appellee agreed that its buildings, inclosures, improvements, etc., were all on the Hext tract, but this is not tantamount to an .agreement that appellee had no possession of the Ford tract, but is in harmony with ap-pellee’s contention that possession under its deed of one tract would be -possession of both tracts. Allen v. Boggess, 94 Tex. 83, 58 S. W. 833; Snow v. Letcher, 154 S. W. 355.

As to appellant’s fifth contention, we do not think, under the agreement of the parties of payment of taxes on all of the land in controversy, that it was necessary for appel-lee to prove payment of taxes on any of the land not in controversy, though describéd in its deed.

Appellant, by its sixth contention, urges that appellee failed to show occupancy of the land described in its petition for three or five years consecutively before the institution of this suit; this contention raises the question of the sufficiency of the testimony, and is a question which was decided against appellant by the trial court, and we think, as found by us above, that the testimony satisfactorily shows occupancy by appellee for five years.

Appellant’s seventh contention urges that because of surprise of appellant on the trial of the case, in this, that appellee’s deed under which it claimed conveyed not only tho Ford tract, but the Hext tract also, which appellant' did not know, and by the use of ordinary care and caution would not have discovered, for the reason there was an agreement to read from an abstract, and the abstract which it had, and which had been certified to by Mr. Hancock, one of the attorneys for appellee, as manager of an abstract company, showed by the abstract that the deed to appellee did not contain a description of, nor did it convey, the Hext tract, and, being misléd by this, it did not look at the record of the recorded deed, but, when this deed was offered in evidence, objected for the reason that it did not convey the Hext tract, and, to its surprise, the record disclosed that the deed conveyed the Hext tract, as well as the Ford tract, and further that, since the trial of the case, there was newly discovered evidence, and for all of which the trial court should have granted a new trial.

It appears that this abstract was prepared by one of appellee’s counsel long before he was employed as an attorney in this suit. The abstract does omit in áppellee’s deed the description of the Hext tract. The deed was of record in the courthouse where the case was tried, and appellee, some time before the trial of the case, placed in the hands of attorney for appellant its abstract, which showed that appellee’s deed to the land contained not only a description of the Ford tract, but described and conveyed the Hext tract also. Appellant’s attorney knew that appellee’s attorneys were able and efficient lawyers, and it appears to us that the most reasonable conclusion he could have come to, under the circumstances, was that his abstract must be wrong, as appellee was suing for this identical tract of land. Appellant placed all of its hope of defeating this suit upon the failure of appellee’s deed to convey the Hext tract, and thereby sought to defeat appellee’s claim under the three and five years’ statutes of limitation, because the improvements, inclosures, buildings, etc., of appellee, were all on the Hext tract, and for this reason it would not be necessary to show by any testimony that appellee had not occupied the land sued for for three or five years. It is plain that the negligence of appellant, ‘ which led to its failure tó discover that the deed to appellee conveyed the Hext tract, was also the cause of its failure to find testimony that appellee had not occupied the land, as claimed by it. We do not think the trial court erred in refusing to grant a new trial.

We are therefore of the opinion that this case should be affirmed, and it is so ordered.

Affirmed.

Chief Justice L. B. HIGHTOWER, Jr., having been of counsel, is disqualified, and did not sit.
      (tenFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes