author: LEVY, J.

text:
    ORE CITY CO. v. ROGERS.
    (No. 1657.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 20, 1916.
    Rehearing Denied Nov. 30, 1916.)
    1. Vendor and Purchaser <&wkey;36(l) — Rescission — Ebaud.
    Where town-site company sold lots stating a railway under construction would build its depot on its right of way at a point opposite the lots, the buyer was not entitled to rescind when the railway located its depot 100 feet away from such point; the railway not being connected with the town-site company, and no fraud or collusion appearing.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 40, 52; Dec. Dig. <§=> 36(1).]
    2. EBAUD <&wkey;13(l) — REPRESENTATIONS—FALSITY.
    In order that representations may warrant relief, they must be false, and false at time of representation, and a change in circumstances making representations incorrect does not render them fraudulent, where originally made in good faith.
    [Ed. Note. — Eor other cases, see Fraud, Cent. Dig. § 3; Dec. Dig. &wkey;13(l).]
    3. Covenants &wkey;sl.
    The sale of lots by a town-site company, accompanied by a statement _ that a railway under construction would build its depot on its right of way at a point opposite the lots, was not a contractual obligation in the nature of a covenant to erect the depot; the railway not being connected with the town-site company.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. § 1; Dec. Dig. <&wkey;l.]
    Appeal from District Court, Gregg County; W. C. Buford, Judge.
    Suit by the Ore City Company against J. O. Rogers, in which defendant pleaded in re-convention. From judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    The appellant, a town-site corporation, brought the suit to recover of appellee on his two notes executed in part payment of the purchase price of two lots in the town of Ore City, and to have decreed foreclosure of the vendor’s lien expressly retained on said lots. Appellee, besides his answer, pleaded in re-convention against appellant, seeking to have decreed rescission of the contract of purchase and sale, or in the alternative to recover damages, upon the ground that it was induced by fraud and deceit. He alleged, as material here to state, that:
    “At the time of the contract of purchase and sale of said lots the plaintiff represented unto the defendant. that the depot of the railway would be built opposite said lots, and furnished the defendant with a blueprint map and plat of said Ore City showing the blocks and lots and railway and wheré the depot was to be built, and promised that said depot was to be built as shown on said map and blueprint. Defendant, relying upon the said promise and agreement that said depot be built at the place opposite said lots as represented by the plaintiff, purchased said lots in good faith, agreeing to pay the consideration, both cash and notes, therein expressed. Defendant says and represents unto the court that the plaintiff practiced a fraud on him in said transaction, and that the depot was not built at the place they represented to him that it would be built at, but was built at a different place, and that the defendant, would not have purchased said lots if he had known that said depot would not be built at said place it was to be built, which fact was known to the plaintiff, and, by reason of the fact that said depot was not built at the place it was to be built at, that the property was of very little value.”
    The trial was before the court without a jury; and judgment was rendered in favor of the defendant, decreeing cancellation of sale of the property.
    The court made the following findings of fact and conclusions of law:
    “I find as a fact that on October 15, 1911, the defendant purchased from the plaintiff Lots Nos. 25 and 26 in block No. 5 as laid down on the map of Ore City, in Upshur county, Tex., and that the defendant paid cash in the sum of $167.70, and executed his two certain vendor lien notes as balance of said purchase price for the sum of $166.65 each, payable one and two years, respectively, from date; I find that the representative of the plaintiff gave to the defendant, J. O. Rogers, a blueprint of Ore City showing the location of the lots and represented by the blueprints where the depot would be built in said Ore City across the street from the lots, and the blueprints showing that the depot would be built at such place, and that said representations as to the depot were made by the agent of the plaintiff as an inducement to sell the defendant the said lots. And I find as a fact that said depot was not built at the place where they represented it would be built, and that the defendant, J. 0. Rogers, would not have bought the lots had he known the depot would not be built at the place marked on said blueprint where it was to be built; that as soon as the depot was built at a different place I find the defendant, J. C. Rogers, asked for a rescission of. the contract from the plaintiff, which the plaintiff refused.
    “Conclusion of Law.
    “That the above facts constitute fraud in the purchase and sale of the lots, entitling the defendant to a rescission of the contract and sale and to all rights thereunder.”
    To make clearer the findings of the court the further statement is made, as disclosed by the evidence, that the Port Boliver Iron Ore Railroad was under construction at the time of the laying out of the town of Ore City and at the time of the sale of the lots to appellee. The roadbed was being graded, and the laying of the steel rails had begun at the lower or south end of the road. The survey route and a right of way extended from the city of Longview on the south to the point of the proposed town of Ore City. The town-site company is not shown to have any connection or relation with the' construction of the railway or railroad company, and it does not appear that the railroad company has any interest in the town-site survey. It seems that the town-site company owned the land that the town was laid out on, except a survey route or right of way through the same which was owned by the railway company before the laying out of the town site. The only evidence in the record respecting the map and the marking on it, and as to the platting of the town site, is the testimony of the witness Little, managing agent of the town-site company. The testimony of Little is to the effect that, before beginning the laying out of the town site, he went to the chief office of the Port Boliver Iron Ore, with the view of obtaining information as to the proposed location of the depot at the terminal point of the road, which would be included within the town of Ore City. The blueprint map of the railway company was by the railway engineer exhibited to him, showing the railway survey and the marked or designated point for a depot on the right of way at the terminus of the road. The witness then told the engineer that the town-site company wanted to locate on. the ground the main street of the proposed town of Ore Oity at a point where the railway company was to build its depot. The railway engineer, in accordance with the request, then came on the ground and pointed out the place on the right of way selected and established for the proposed location of the depot. The railway engineer, assisted by the town-site engineer, then ran out on the ground from the depot point first the main street and then the parallel streets of the town. The railway engineer, as the witness says, “drew all the railway points,” and the town-site company “platted the rest of the town from that point.” “Any one,” the witness said, “had as much chance to get the information as we had to get the information as to where the depot was to be located.” The plat or map is not in the record, but the evidence indicates that the plat as drawn exhibited and showed the streets, blocks, $.nd lots, with their numbers, and the railway route or way through the town, and a marking on the map, on the right of way of the railway company, the words, as given by the court, “Where the depot would be built,” or “The depot would be built at such place.”
    Appellee testified that before the purchase of the lots he was never on the town site and never in that part of the country, and had no information as to the location of the depot, except such as the blueprint map exhibited to him by the selling agent disclosed to him. Appellee knew at the time of the purchase of the lots that the proposed railway had not entered nor been completed to Ore Oity. Appellee purchased the lots with the view of conducting a business thereon. And there is proof that a lot opposite the depot is of more value than a lot not fronting the depot. Appellee proved the simple fact that after the date of his purchase of the lots the railway company erected its depot on its right of way in Ore City, at a point opposite block 6 at the.head of Main street, about 100 feet above the point marked on the map in evidence. The exact date the railway erected its depot is not given, but inferably it was either in December or January following October 15th, the date of appellee’s deed. The subsequent change of location of the depot was by the railway company, and there is an absence of any evidence tending to show that appellant had authority to locate the depot, or knew at any time of a purpose or intent of the railway company to change the location of the depot to another point in Ore Oity.
    Campbell & Wyche and F. J. McCord, all of Longview, for appellant. Martin & Nelson, of Longview, for appellee.
   LEVY, J.

(after stating the facts as above). Appellant by its assignments makes the point that the appellee may not predicate, as a matter of law, any right to rescind the transaction and recover the amount paid by him on the purchase price of the lots upon the facts found by the court. Looking to the precise facts found by the court, the selling agent of the appellant town-site company exhibited to appellee, with the view of inducing him to purchase lots in the town site, a blueprint or plat of the newly laid out town of Ore City, which blueprint or plat exhibited and showed the survey subdivided into streets and blocks and lots with their numbers, and the railway route and a point on the railway right of way designated and marked, as given by the court, with the words, “Where the depot would be built,”, or “The depot would be built at such place.” And appellee, as further found by the court, purchased of appellant, through the agent, lots 25 and 26 in block 5, relying upon the representation on the blueprint map that the said two lots were located across the street from and facing the point marked “Where the depot would be built,” or “The depot would he built at such place.” Within two or three months after the sale of the lots the railway company erected its depot at a point opposite block 6 and above the point marked on the map. It is not shown that appellant had authority to locate or change the proposed location of the depot.

The case must stand, it seems, as ground for fraud and deceit or misrepresentation, upon the determination of the nature and effect of the marking on the map the words, as given by the fcourt, “Where the depot would be built,” or “The depot would be built at such place.” The words were marked, it is observed, upon the survey route or right of way of the railway company, and not upon the town property of appellant as separated from the railway right of way. The words quoted, as they appeared on the map, do not necessarily convey to the mind of the purchaser of the lots the idea of any statement or representation that the depot building was actually or then being erected upon the-right of way at the point marked on the map. And in the light of the facts, outside of what appears on the face of the blueprint map, it must be regarded that appellee knew that no such meaning was intended to be attached or understood by the words; for the records admit that appellee understood that at the time of the sale of the lots the proposed railway had not entered and was only being constructed in the direction of Ore City. And, as it does not appear from the words on the map, nor from the circumstances outside the face of the map, that the town-site company had authority to locate the depot for the railway company, the appellee would be presumed to have known that the power and authority to locate the depot on its survey route or right of way rested with the railway company. So then the scope of the representation according to the map, in the clear light of the record, may be regarded as relating to a future action of the railway company, afterwards to be performed by such railway company, respecting the proposed location of’ its depot on its survey route or right of way situated within the newly laid out town site of Ore City. Appellee having knowledge of the scope, as construed, of the representations according to the map, he may only be regarded as believing or relying upon the fact as true that the town-site company had information from the railway company as to the place where it would locate its depot when the railroad entered Ore City. The precise representations thus made were not, in the evidence, false. It appears without dispute that before the platting of the town site by the appellant the authorized railway engineer went upon the ground and located the place where the railway company proposed to build the depot, and “drew all of the railway points,” and that it was in virtue of this act and upon this information that the town-site company marked on the plat the very point that the railway engineer, acting for the railway company, located on the ground. And there is no evidence to show collusion or wrong between appellant and the engineer, nor that the railway company did not intend at the time to actually erect its depot at the point so designated. In order that representations may warrant relief, they must be false, and false at the time of the transaction. 2 Pom. Eq., § 876; 12 R. C. L. §§ 10, 82; 20 Cyc. p. 12; Jackson v. Stockbridge, 29 Tex. 394, 94 Am. Dec. 290; Farrar v. Churchill, 135 U. S. 609, 10 Sup. Ct. 771, 34 L. Ed. 246; Lovelace v. Suter, 93 Mo. App. 429, 67 S. W. 737. And if the original transaction between appellant and appellee was made without design and in good faith at the time of the making, as appears from the evidence, it cannot "be rendered fraudulent and rescindable by subsequent events, such as in the instant case, of change by the railway company of the proposed site for location of its depot. Railway Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39; Electrical Works v. Railway Co., 29 S. W. 412.

The Titterington Case, supra, held, it is true, that the railway company may be held for damages, but it was upon the ground, not of tort, but for breach of a contractual obligation in the nature of a covenant. And the instant case is distinguishable from the case of Henderson v. Railway Co., 17 Tex. 560, 67 Am. Dec. 675. There the events represented or assured would be done in the future, were in the nature of a positive representation by the agent of the railwáy company as to what the railway company would do, and were such undertakings which the railway company could fulfill. In the instant case the effect of the representation was a mere expression of opinion as to what the railway company intended to do in the future, and was not an act or event which depended entirely, as in the Henderson Case, supra, upon the acts ofthe party making the representation.

Appellee relies upon the case, among others similar, of Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900, as applicable and illustrative of appellee’s right tp rescind. In this case and the similar ones the representation of the vendor that he had a good title and could make a good title was false in fact and untrue at the time of the representation. The dirterence between a statement that something exists at the time which does not and a statement or representation that some other party may or would do something in the future, like the instant representation, is obvious. Therefore the instant ease is readily distinguishable from the cases relied on by appellee.

Since the facts do not establish fraudulent misrepresentations, there is not afforded, it is believed, grounds for rescission, or to form the basis of an action for damages, as alternately pleaded by appellee. Appellee predicates his cross-action, it is remarked, on tort, and not in contract. A suit for damages as for nonperformance of a covenant or promise may not be maintained on the precise representation or statement relied on and proven, for that it is not, and does not have the legal effect of, a contractual obligation in the nature of a covenant to erect or maintain a depot either on the property of appellant or in the immediate front of appellee’s lots.

The judgment therefore should be reversed, and judgment here rendered in appellant’s favor for the amount sued for and for foreclosure of the vendor’s lien, with costs of the court below and of this court to be taxed against appellee; and it is accordingly so ordered.
      <S:u>For otner cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    GRANT et al. v. GRANT.
    (No. 1669.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 16, 1916.
    Rehearing Denied Nov. 23, 1916.)
    1. Appeal and Error &wkey;>722(l) — Assignments op Error — Motion por New Trial.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612, and rule 24 for Courts of Civil Appeals [142 S. W. xii), the grounds set up in the motions for new trial constitute the assignments of error on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990, 2994r-2996; Dee. Dig. &wkey;722(l).]
    2. Appeal and Error <&wkey;742(l) — Assignments oe Error— Sufficiency.
    An assignment of error not followed by propositions, as contemplated by rule 30 (142 S. W. xiii), need not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;742(l).]
    3. Appeal and Error <S=;»741 — Review—Assignments of Error — Multifariousness.
    An assignment of error, complaining that the court erred in overruling appellant’s motion for new trial because the judgment was contrary to the law and against the evidence and the findings of the jury and on account of newly discovered evidence, is plainly multifarious and bad.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3037, 3038; Dec. Dig. <&wkey;> 741.]
    Appeal from District Court, Upshur County; R. M. Smith, Judge.
    Action by Fannie Grant against Anthony Grant and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Appellant Parker Grant and appellee were husband and wife. Appellant Anthony Grant was the son of Parker Grant and stepson of appellee. The land in controversy was 100 acres of the William King survey in Upshur county and half an acre of the G. B. King survey in Wood county, which had been conveyed by the owners thereof to Anthony Grant. Appellee claimed that the 100-acre tract was paid for with money belonging to her separate estate furnished by her to Grant Parker, who, instead of having same conveyed to her as he agreed to do, had same conveyed to Anthony Grant; and that the half-acre tract was paid for with money belonging to her said estate furnished by her to Anthony Grant, who, instead of having it conveyed to her as he agreed to do, had it conveyed to himself. • Her suit was against Anthony Grant and Parker Grant to recover the two tracts of land, on the theory that she was the real owner thereof and that the former held the legal title thereto in trust for her.' Appellant J. S. Barnwell, to whom, after the institution of the suit, Anthony Grant conveyed the 100-acre tract, was made a party defendant at the instance of said Anthony Grant. The appeal is by Parker and Anthony Grant and Barnwell from a judgment granting appellee the relief she sought.
    J. S. Barnwell, of Gilmer, for appellants. Warren & Briggs, of Gilmer, for appellee.
   WILLSON, C. J.

(after stating the facts as above). Each of the appellants filed a motion for a new trial in the court below. The grounds of the motions were the same, to wit, that the judgment was contrary (1) to the law, (2) to the evidence, and (3) to the findings of the jury, except that in his motion appellant Barnwell set up certain “newly discovered” (as he alleged) evidence as an additional ground for granting it. By force of the statute (Acts 1913, art. 1612, Vernon’s Statutes), and rule 24 for the government of this court (142 S. W. xii), the grounds set up in the motions constituted the assignments of error on appeal. Appellants have' ignored this in presenting the cause, and in their briefs, instead of confining their complaint against the judgment to the grounds specified in the motions, seek a reversal of it on other grounds. Indeed, the grounds specified in the motions are not presented on the appeal otherwise than in the tenth assignment in the brief, as follows:

“The court erred in overruling appellant J. S. Barnwell’s motion for a new trial, because said judgment as entered is contrary to the law and against the evidence and the findings of the jury and on account of newly discovered evidence.”

This assignment is not followed by propositions as contemplated by rule 30 (142 S. W. xiii), and, plainly, is multifarious. Hemphill v. National Iron & Steel Co., 142 S. W. 845; Chambers v. Wyatt, 151 S. W. 867; Ry. Co. v. McDuffey, 50 Tex. Civ. App. 202, 109 S. W. 1108; Deutschmann v. Ryan, 148 S. W. 1141; Williamson v. Powell, 140 S. W. 361; Browder v. School District, 172 S. W. 152.

As none of the assignments in the briefs are entitled to be considered, it must be said that appellants have failed to show error in the judgment. Therefore it is affirmed.
      <i&wkey;Eer other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    MARSHALL MILL & ELEVATOR CO. v. SCHARNBERG.
    (No. 1686.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 30, 1916.)
    1. Master and Servant <&wkey;351 — Employers’ Liability Act — Construction.
    Employers’ Liability Act (Acts 33d Leg. c. 179) pt. 3, §§ 6, 9-11, provides that the Employers’ Insurance Association shall not issue policies until not less than 50 employers with not less than 2,000 employés have subscribed to the plan, and not until specified conditions have been complied with, or when the number of subscribers falls below 50 or the number of the employés below 2,000. Part 4, § 2, provides that any insurance company, lawfully transacting liability or accident business within the state, shall have the same right to insure the liability to pay the compensation provided for by part 1, and that when such company issues a policy conditioned to pay such compensation the holder of such policy shall be regarded as a subscriber so far as applicable under the act. Held, that the last provision brings within the operation of the act not only every employer entitled to its benefits who has not become a subscriber to its plan, but also every such employer who has procured insurance against his liability as such and complying with the requirements as to notice to his employés, etc., whether the insurance procured is by the association created by the act or by some other insurance company, so that the operation of the act is not dependent upon whether the employer elects to become a subscriber to the association or not, nor upon the number of employers and their employés who did or not.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. <&wkey;351.]
    2. Appeal and Error <&wkey;200 — Improper Remark in Argument on Exception to Petition-Waiver.
    In a servant’s action for injuries, where, in argument on exception to the petition, in the presence and hearing of the jurors afterwards chosen to try the case, plaintiff’s counsel stated to the court that defendant had elected to take out indemnity insurance to protect himself from loss which was of an entirely different character from the insurance provided for in the Employers’ Liability Act, but defendant accepted the jurors to try the case without protest of any kind, defendant could not thereafter complain of the argument.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;200.]
    3. New Trial &wkey;44(3) — Motion—Misconduct oe Jury — Abuse oe Discretion.
    In a servant’s action for injuries, where defendant claimed that verdict for plaintiff for $4,500 resulted from the jurors’ knowledge that defendant carried insurance, and that plaintiff’s attorneys would be entitled to part of the sum found for him, but the jurors who heard the discussion in the jury room on the point testified that they were not influenced to find in plaintiff’s favor a greater sum than they otherwise would have found, the trial court did not abuse his discretion in denying motion for new trial on the ground of the jury’s misconduct.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 82-84; Dec. Dig. &wkey;44(3).]
    4. Damages c&wkey;l32(8) — Personal Injuries— Excessive Yerdjct.
    In an action for injuries by a servant, who earned $75' per month, and whose fall bruised his shoulder, knocked a couple of holes in his head, broke his arm, and stiffened his fingers, injuries which were likely to be permanent and which disabled his hand, so that he earned nothing since the injury, verdict for $4,500 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent Dig. § 379; Dec. Dig. &wkey;132(8).]
    ■ Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Suit by H. W. Scharnberg against the Marshall Mill & Elevator Company. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    Appellee was employed by appellant to assist in the operation of its mill and elevator plant. It became necessary to repair a defect in the head of the elevator shaft. At the command of appellant’s superintendent, one Wheat, in charge of the operation of the plant, appellee went with him to the top of the shaft, in the attic of the building, to assist in removing the cap (a box about 6 feet long, 1% feet wide, and 3 feet deep) of the shaft, so the defect could be repaired. Without stopping the operation of the elevator, Wheat and appellee removed the cap and repaired the defect. There was no floor around the shaft where they were at work, and they had to stand on joists 2 by 4 or 4 by 6 inches in size. In attempting to replace the cap, it was, it seems, hit by buckets revolving in the shaft, which caused appellee to lose his balance and fall 12 or 15 feet to the floor below. As a result of the fall ap-pellee sustained serious and permanent injury to his person. Alleging negligence on the part of appellant as the cause of the injury, appellee sued and recovered the judgment of $4,500, for which the appeal is prosecuted. On special issues submitted to them the jury found, among other things, which need not be set out: (1) That appellant was guilty of negligence in directing appellee to assist in removing and replacing the cap under the circumstances shown by the testimony ; (2) that appellee was injured as the result of such negligence; (3) that appellee was not himself guilty of negligence; and (4) that he was damaged in the sum of $4,-500.
    Beard & Davidson and Hobart Key, all of Marshall, for appellant. Bibb & Bibb, F. M. Scott, and Brown & Hall, all of Marshall, for appellee.
   WILLSON, O. J.

(after stating the facts as above). The provisions of Act April 16, 1913 (Gen. Laws, p. 429), known as the “Employers’ Liability Law,” do not apply—

“to actions to recover damages for the personal injuries or for death resulting from persona] injuries sustained by domestic servants, farm laborers, nor to the employés of any person, firm or corporation operating .any railway as a common carrier, nor to laborers engaged in working for a cotton gin, nor to employés of any person, firm or corporation having in his or their employ not more than five employés.”

Other employers of labor than those specified may become “subscribers” to its plan or not, as they may choose. If they do not become subscribers “the consequence attached to their not consenting to it,” said the Supreme Court in Middleton v. Texas Power & Light Co., 185 S. W. 559,

“is the denial of the right, existing in common-law actions, to interpose the common-law defenses of fellow servant, assumed risk, and contributory negligence in suits for the recovery of damages for personal injuries suffered by their employés in the course of their employment.”

In his petition appellee alleged that appellant had more than five employés assisting in the operation of its mill and .elevator, and was not a “subscriber” within the meaning of the act. The purpose of the allegation was to show that appellant was not entitled to assert against the recovery sought either of the common-law defenses specified by the Supreme Court. Appellant excepted to the allegation on the ground that the act was unconstitutional, and therefore could not operate to deprive it of such defenses. In its brief appellant concedes that all the reasons urged by it in support of its contention were held to be invalid in the Middleton Case, except one, to wit, that the Legislature could not—

“delegate to some outside individual or corporation the right or power to put into effect or suspend the operation of the law.”

The contention that the Legislature undertook to do that is based on the fact that employers entitled were not required to become subscribers to the insurance association created by the act, and to provisions therein that that association should not issue policies until not less than 50 employers having not less than 2,000 employés had subscribed to the plan, not then until specified conditions had been complied with; nor when the number of subscribers fell below 50 or the number of their employés below 2,000. Sections 6, 9, 10, and 11, pt. 3. But for the provision made in section 2, pt. 4, of the act the contention might be a sound one and require a determination of a question as to whether the Legislature could delegate such power or not. Part of section 2 referred to is as follows:

“Any insurance company, which term shall in-fclude mutual and reciprocal insurance companies lawfully transacting a liability or accident business within this state, shall have the same right to insure the liability to pay thé compensation provided for by part 1 of this act, and when such company issues a policy conditioned to pay such compensation the holder of such policy shall be regarded as a subscriber so far as applicable under this act.”

The effect, as we understand it, of this provision is to bring within the operation of the act not only every employer entitled to its benefits who has not become a subscriber to its plan, but also every such employer who has, by procuring insurance against his liability as such and complying with the requirements as to notice to his employés, etc., whether the insurance procured is by the association created by the act or by some other insurance company. If this is true, then the operation of the act is not dependent upon whether the employer elects to become a subscriber to the association or not, nor upon the number of employers and their employés who do or not. It is in force, and the employer who has complied with its requirements is entitled to its benefits, when and so long as he complies therewith, without reference to whether other employers entitled to do so have elected to accept its benefits or not.

In the argument on the exception to the petition, above referred to, had in the presence and hearing of jurors for the week afterwards chosen to try the cause, appellee’s counsel stated to the court that appellant—

“had elected to take out indemnity insurance to protect themselves from loss, which was of an entirely different character from the insurance provided for in the Employers’ Liability Act.” .

The statement was excepted to, on the ground that it was prejudicial to appellant’s rights to make it in the presence of said jurors. In view of the fact that appellant was insisting in its answer to the suit, that it was entitled to the benefits of the act, if constitutional, it is not clear that the statement to the court was improper; but if it was, it is clear appellant should not be heard to complain of it after accepting said jurors to try the cause, without protest of any kind. Clark v. Elmendorf, 78 S. W. 538.

The refusal of the court to grant appellant a new trial on the ground that the jury was guilty of misconduct to its prejudice is assigned as error. The contention is that it appeared for evidence heard by the court on the motion that the jury were induced to find in appellee’s favor for a greater sum 'than they otherwise would have found, because they assumed as facts, which influenced their verdict, that appellant carried insurance against the liability established against it, and that appellee’s attorneys would be entitled to a part of the sum which might be found in his favor. Several of the jurors testified that while they were deliberating suggestions that, appellant was protected by insurance it carried and that appellee’s lawyers would share in the sum awarded him were discussed, and one of them testified that he thought the discussion caused him to be more liberal in rendering his verdict. On cross-examination, however, this juror further testified:

“When I found this verdict for $4,500, I did so because I thought the plaintiff was entitled to it, irrespective of anything else that might have been in the case. The insurance matter did not influence me in finding for plaintiff. I was in his favor before it was mentioned. In the end I based my verdict on what I thought the man was entitled to under the facts of the case.”

All the other jurors who heard the discussion and testified said they were not thereby influenced to find in appellee’s favor a greater sum than they otherwise would have found.

It has been held that under the provisions of the statute (article 2021, Vernon’s Statute) the burden rests—

“upon the party seeking to impeach or discredit the verdict, and the judgment of the court on the testimony adduced must have the same force and effect as would his judgment in any other case on the facts; that is, if there is evidence to support it, it cannot be disturbed by an appellate court. The law places the discretion, as to sustaining or overruling the motion for a new trial on the grounds specified in the statute, in the trial court; and appellate courts have no authority to disturb the ruling thereon, unless it is apparent that there has been an abuse of such discretion.” San Antonio Traction Co. v. Cassanova, 154 S. W. 1190.

It is not apparent to us tliat the trial court abused the discretion he possessed when he denied the motion, and therefore we overrule the assignment. Railway Co. v. Blalack, 128 S. W. 706; Railway Co. v. Gray, 105 Tex. 42, 143 S. W. 606; Gulf States Telephone Co. v. Evetts, 188 S. W. 289.

It is insisted that the verdict is excessive. But we think it cannot be so held as a matter of law. Testifying two years after he sustained the injuries complained of appellee said:

“My shoulder was bruised and a couple of holes knocked in my head. My shoulder still hurts now at the changes of the weather, and three fingers are stiff. I broke my right arm just above the first joint; the injury was received in January, 1914. I never had any trouble with my arms before the injury. It is getting weaker all the time now, and my fingers are getting stiffer all the time — the little finger and the next two fingers. I cannot close these fingers or grip anything with them. I have had a physician to treat my arm. These three fingers are shiny and colorless and are cold all the time, and haven’t the feeling in them that I have in my other fingers. I cannot do any work to amount to anything with this hand. The other fingers on this hand_ are not as strong as they were before the injury. I have .been trying to farm, but cannot hold a plow with this hand. I have a negro helping me most of the tima My inability to use this hand prevents me making money as a farmer or doing the work I used to do. At the time I was. in- < jured I was earning $76 per month, and since that time I haven’t earned anything.”

Other testimony indicated that the injury to appellee’s arm and fingers was a permanent one.

Other contentions made in appellant’s brief also are overruled.

It is believed there is no error in the judg.ment authorizing its reversal. Therefore it is affirmed.
      ®=3For other cases "see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BLOUNT-DECKER LUMBER CO. v. MARTIN.
    (No. 1681.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 16, 1916.)
    1. Appeal and Eri^oe <&wkey;930(4) — Review-Verdict.
    Through defendant’s negligence in operating its locomotive a house belonging to defendant was fired, and in an action for the destruction of her household goods therein contained, there was evidence on the part of the plaintiff that defendant consented to plaintiff’s occupation of the house as a subtenant. Held, that in view of such testimony, a judgment based on a verdict for plaintiff cannot be set aside on the ground that defendant owed plaintiff no duty, it being presumed that the jury found in plaintiff’s favor on the contention that defendant consented to her occupancy.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3760, '3761; Dee. Dig. &wkey; 930(4).]
    2. Evidence <&wkey;588, 589 — Province oe Jury —Disregarding Testimony.
    The jury may disregard testimony of either party or his witnesses.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2437, 2438; Dec. Dig. &wkey;58S, 589; Witnesses, Cent. Dig. § 1164.]
    3. Railroads <&wkey;482(l) — Actions—Evidence —Sufficiency.
    In a suit against defendant for negligently firing house in which plaintiff was living, evidence held to warrant a finding that plaintiff was continuing to occupy the premises, which belonged to defendant, with its acquiescence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1730; Dec. Dig. <&wkey;482(l).]
    4. Railroads <&wkey;470 — Fires—Trespass.
    Where a lumber company owning houses occupied by its employes consented to an employé subletting his house to his sister, the sister was not a trespasser in the house, which was on the right of way of the lumber company, and the lumber company owed her the duty of exercising ordinary care in operating its locomotives so as not to fire the house and destroy her household goods.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1666; Dec. Dig. <&wkey;>470.]
    5. Railroads &wkey;>461 — Fires—Negligence.
    Where one occupying a house on right’ of way of railroad operated by lumber company knew that sparks escaping from the engine had started fires on different occasions, she was not guilty of contributory negligence in failing to remove her property from the house, having the right to assume that the company would not thereafter operate its locomotives so as to endanger her property.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1682; Dec. Dig. &wkey;461.]
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Action by Mrs. Essie Martin against the Blount-Deeker Lumber Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    This was a suit by appellee against appellant to recover, as damages suffered by her, the value of certain household goods destroyed by fire, as.the result, she claims, of negligence on the part of appellant in the operation ove? its line of railway of a locomotive engine without a proper spark ar-rester. The appeal is from a judgment for $300 in her favor. The sufficiency of the testimony to support findings involved in the judgment: (1) Of negligence on appellant’s part as charged, if it owed appellee a duty to use care; and (2) that appellee was damaged as determined — is not questioned by any of the assignments. Appellant’s contentions are: (1) That appellee was a trespasser on its property, and that in operating the engine as it did in the condition it was in it violated no duty it owed to her; (2) that if it violated a duty it owed to her, she was guilty of contributory negligence which deprived her of a right to recover of it; (3) that the risk from the fire which destroyed her property was one appellee had assumed. The circumstances of the ease, so far as they relate to the contention stated, appear to be as follows: Appellant, a corporation, owned a locomotive engine which it operated over its line of railway used in connection with its lumber manufacturing business. It also owned a number of wooden dwelling houses situated near the track of said railway, which it rented to its employes. One of these houses, situated about 127 feet from the railway track, was’ destroyed by fire kindled by cinders emitted from appellant’s engine. At the time the fire occurred appel-lee, a widow, and her children and hfer mother, an invalid, it seems, resided in the house. Appellant claimed that appellee’s occupancy of the house was unlawful, because she was there without its consent, it asserted, as a subtenant under her brother, one Bartholomew, to whom it had rented the premises at a time when he was its employs, but who had ceased to be its tenant. There was some conflict in the testimony as to the circumstances connected with the occupancy of the house by appellee. It seems that she was occupying another house at the time Bartholomew began to work for appellant, and that a man named Marshall was then occupying the house in question. Appellee testified:
    “At the time my husband died I wasn’t living in the house that burned later. We lived in another house then. I made a trade with Mr. Decker (appellant’s manager) about moving into the house that burned; that is I talked with him about it I asked Mr. Decker if it would be all right for Mr. Marshall (who then oceu-ied the house in question) and me to swap ouses. And he said it would be all right with him. I told Mr. Decker I would pay my brother $3 per month rent for the house, for my part of the rent. He told me that was all right, for he wanted the house I was living in then anyway. I told him I would pay my brother-$3 per month rent for the house I moved in, which was the house that burned. My brother wasn’t living in the house that burned at the time I told Mr. Decker that. * * * Six dollars per month was the regular rent for this house, and I told Mr. Decker I would pay my brother $3. My brother was to pay the other $3 per month. I moved into the house with the understanding as I have just stated it. I paid my $3 per month rent all of the time I lived in the house, on up until it was destroyed by fire. * * * My brother and my mother kept house together before my husband died. * * * After my husband’s death I kept house for my mother and brother. I did not move into the house with them, for my things were moved into the house before they moved 'into it. That was the house that burned that I am talking about now. We all moved into the same house, but I moved into it first, and then they moved there, and I kept house for them. I had my children in the house also, of course. I wouldn’t say that I had _charge_ of the house, but I was paying rent for it all right. * * * As to whether or not my brother had left me and had moved out of the house before it was destroyed, I will say that he wasn’t at home when the house burned. He had left there just a while before then. He left me in charge of the house, I guess you would say. As to whether or not I had complete charge of the house, and my brother left me in complete charge of the house, all I could say is that he never said anything to me about that. My brother left some of his things in the house when he went off, and I was still paying him rent for it. He took some things — some clothes and the like — when he left. I guess you would say that I had charge of the house after my brother left there. It was my home at the time it was destroyed, and was not my brother’s home then.”
    Decker denied agreeing with appellee that she might occupy the house with her brother, paying rent to him, and testified that when her brother ceased to work for appellant, he notified him in writing to vacate the house within ten days thereafter. The notice, the testimony indicated, was given about two weeks before the fire occurred. With reference to the notice Decker testified :
    “I know he received the written notice because he came to my office the next day or two after-wards, and had the notice in hand and wanted to know why I wanted him to vacate the house. •And possibly one week or ten days after that I had another conversation with him about the matter. At that time he told me that, on account of the illness of his mother, he hadn’t been able to move out of the house, but he said he had a job at Wells, and expected to move down there the next week. That was about Friday or Saturday of the week, and he told me he would try to move the next week down to Wells. I never gave Mrs. Martin (appellee) any notice to vacate this house. I never instructed anybody else to give her any such notice.”
    Decker further testified:
    “I heard the plaintiff testify about a conversation she claims to have had with me about this house and the rent, etc., but I never had any such conversation with her at all. I didn’t have any knowledge that she was paying her brother any rent for the house. • I didn’t consent for her brother to subrent this house or any part of it to her or anybody else; nor did the Blount-Decker Lumber Company consent to anything of the sort.”
    On special issues submitted to them the jury found: (1) That the house was destroyed by fire from appellant’s engine; (2) that appellant was guilty of negligence in operating the engine in the condition it was in; (3) that appellee’s occupancy of the house was as a subtenant — “that is, she was renting from Bartholomew” — (4) that appellant agreed for her to live in the house; (5) that by the destruction by the fire of property belonging to her appellee was damaged in the sum of $300.
    Norman, Shook & Gibson, of Rusk, for appellant. Perkins & Perkins, of Rusk, for ap-pellee.
   WILLSON, C. J.

(after stating the facts as above). The testimony showed that the house was destroyed by fire emitted from the engine because of the manner in which it was operated while equipped with an insufficient spark arrester. Whether appellant was-guilty of negligence in so operating the engine or not depended upon whether it owed to appellee a duty to use care in equipping and operating it or not. Appellant insists it did not appear that it owed appellee such duty, because the testimony showed, and the jury found, that appellee’s occupancy of the-house was as a subtenant of her brother John Bartholomew, and it did not appear, and the jury did not find, that she was such tenant with its consent. The argument is that it therefore appeared that appellee was a trespasser on its property to whom it owed no duty except not to willfully injure her.

We do not agree that the jury did not find that appellee was a subtenant with appellant’s consent. Slie testified that appellant’s manager, Decker, agreed that she might occupy the house with Bartholomew, paying him rent therefor. Decker testified that he did not so agree; that nothing had ever been said to him by any one about appellee’s occupying the house either as a subtenant or otherwise. In the light of this testimony, which was all there was on that issue, we think the finding of the jury that appellant agreed that appellee might live in the house' must be regarded as determining the conflict in her favor and as a finding that appellant did consent that she might occupy the house as a subtenant. If she was such a tenant with appellant’s consent at the time the fire occurred, there can be no doubt appellant owed her a duty to use care in the equipment and operation of its engine.

Appellant insists, however, that if the finding of the jury should be so construed, it was unauthorized, because, it asserts, it appeared from a great preponderance of the testimony that if appellee was ever such a subtenant she ceased to be such before the fire occurred. The contention is based on testimony of Decker alone, but not contradicted, that Bartholomew, about two weeks before the fire occurred, ceased to be an employ® of appellant; that it was “tacitly understood” that when a person occupying one of appellant’s houses quit working for it, he would at once vacate the house; and that he (Decker) at the time Bartholomew ceased to work for appellant notified him in writing to vacate the house within ten days from the date of such notice. The argument is that Bartholomew’s occupancy of the house after the expiration of the ten days was unlawful, and that appellee’s occupancy thereof thereafter-wards likewise was unlawful, because her right to do so as Bartholomew’s tenant ceased when he ceased to be appellant’s tenant.

But we think the finding of the jury is supportable on either one of two theories: (1) That, as they had a right to do (Coats v. Elliott, 23 Tex. 613; Dubinski Electric Works v. Lang Electric Co., 111 S. W. 169; Ins. Co. v. Villeneuve, 29 Tex. Civ. App. 128, 68 S. W. 203), the jury disregarded Decker’s testimony that he had notified Bartholomew to vacate the house; (2) that they thought such notice had been given, but also thought from Decker’s testimony that he had tacitly agreed with Bartholomew that he might occupy the house until the condition of his mother’s health permitted him to move her therefrom.

The jury might have found from the testimony that the fire occurred Tuesday of the week following the week during which Decker had the conversation with Bartholomew referred to in Decker’s testimony set out in the statement above. The jury might have believed that when Bartholomew explained to Decker that he had not moved out of the house because of the illness of his mother, but expected to move out “the next week,” Decker, by not then objecting to the delay, tacitly agreed that Bartholomew might continue to occupy the house until his mother’s health improved, or, anyhow, during the “next week.”

If the jury might have so found from the testimony, then clearly, we think, it cannot be held that their finding that appellant agreed that appellee might live in the house should not be referred to the time when it was destroyed by fire. If appellee was in the house as a subtenant of her brother with appellant’s consent, as, we think, the jury must be held to have found she was, on testimony authorizing it, then she was not, of course, a trespasser as claimed by appellant, and appellant owed her the duty to use ordinary care in equipping and operating its engine.

In this view of the record, it is not necessary to inquire whether, had it appeared from the testimony and findings that appellee was a trespasser, appellant would have owed her any other duty than the duty not to willfully injure her, and, if it did not, whether the testimony was sufficient to support a finding that in operating its engine as it did appellant violated its duty not to “willfully” injure her.

It appeared from the testimony that the fire emitted from the engine was not, in the first instance, communicated to any property belonging to appellee on the premises, but to the roof of the house. If, therefore, appellee’s occupancy of the house was as a subtenant with appellant’s consent, as, we have seen, was determined by the jury, we do not think the testimony made an issue as to contributory negligence or “assumed risk” on her part. The mere fact that she knew sparks escaping from the engine had started fires on other occasions did not make it her duty to move her property from the house in order to avoid the loss of same. Notwithstanding she might have known that appellant was guilty of negligence on those occasions, she was not bound to assume it would continue to operate the engine in the condition it was then in, or in the manner it then operated it, and so endanger her property. On the contrary, she had a right to assume it either would repair the defect in the engine or so operate it as to avoid injury to her property.

The judgment is affirmed.
      ©s»For other casea see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WOOD v. LOVE et al.
    (No. 1659.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 9, 1916.
    Rehearing Denied Nov. 30, 1916.)
    1. Judgment <©=3107 — Default—Answer on Vide.
    A judgment by default when an answer was on file will not be set aside, where the defendant did not call the trial court’s attention to the answer or move to set the judgment aside during the term at which it was rendered.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 198-200; Dee. Dig. .<@=107.]
    2. Judgment <@=17(1) — Default—Record — Requisites.
    To support a judgment by default, the record must show affirmatively, either service of process on the defendant, a waiver of such service, or an appearance by him, and where the record is silent as to service of a citation in the cross-action by one defendant against another, a judgment by default on such action must be set aside.
    [Ed. Note — For other cases, see Judgment, Cent. Dig. § 25; Dec. Dig. <^=>Í7(1).]
    3. Appeal and Error <@=1173(1) — Disposition oe the Case — Reversal oe Judgment in Cross-Action.
    Where in trespass to try title against a party and his grantee, a judgment in plaintiff’s favor for the land was properly entered by default, and a judgment was improperly rendered by default on the grantee’s cross-action against his codefendant, the latter judgment can be reversed without reversing the former, undeir Court of Civil Appeals rule 62a (149 S. W. x), providing that where the error affects part only of the matter in controversy and the issues are severable, the judgment shall be reversed only as to the part affected by the error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4567, 4569, 4656; Dec. Dig. <@=1173(1).]
    Error from District Court, Bowie County; H. F. O’Neal, Judge.
    Trespass to try title by B. F. Love and others against F. M. Wood and one Groves. Judgment for the plaintiffs against both defendants, and for the defendant Groves against the defendant Wood and defendant Wood brings error.
    Judgment in favor of plaintiffs against both defendants affirmed, and judgment in favor of defendant Groves against defendant Wood reversed.
    This was a suit of trespass to try title, the land in question being about 400 acres of the David Jarrett survey in Bowie county. It was commenced by defendants in error Love, the Davises, and Street, who hereinafter will be designated as plaintiffs, against plaintiff in error Wood and defendant in error Groves, April 17, 1914. May 19, 1914, Wood filed an answer, in which, after pleading “not guilty” and denying that plaintiffs had title 'to the land, he set up title in himself by virtue of the three, five, and ten years’ statute of limitations. On the same day, to wit, May 19, 1914, Groves filed an answer, in which he (1) disclaimed as to all the land except 75 acres thereof, pleading “not guilty" as to said 75 acres; (2) set up that Wood had conveyed the 75 acres to him in consideration of $1,000 paid and promissory notes aggregating $500, by a deed containing a covenant warranting the title; and (3) prayed that in the event plaintiffs recovered the 75 acres of him he have judgment against Wood for the $1,000 he had paid to him and canceling the notes referred to. June 29, 1915, judgment was rendered in favor of plaintiffs against both Wood and Groves for all the land sued for, and in favor of Groves against Wood for $1,000, interest thereon from April 22, 1913, the date of the deed to the former from the latter, and canceling the notes referred to. The cause is before this court on a writ of error sued out by Wood December 24, 1915.
    S. A. Brown and Chas. S. Todd, both of Texarkana, for plaintiff in error. J. B. Manning and Johnson & Boswell, all of New Boston, and Mahaffey, Keeney & Dalby, of Texarkana, for defendants in error.
   WILLSON, C. J.

(after stating the facts as above). In the-judgment it is recited that the plaintiffs and Groves appeared by their respective attorneys—

“but the defendant F. M. Wood failed to appear, either in person or by attorneys; and a jury being waived and all parties present announced ready for trial, and the matter of law as well as of evidence and pleadings being submitted to the court, the court, after hearing the evidence, law, and argument of counsel, is of the opinion that plaintiffs ought to recover of the defendant, and that J. M. Groves ought to recover against F. M. Wood on their cross-action herein.”

It is insisted that it appears from the recital just set out that the judgment against Wood was by default, and that it should be set aside in so far as it is in favor of plaintiffs, because, Wood having filed an answer to their suit, such a judgment against him was unauthorized, and that it should be set aside in so far as it is in favor of Groves, because it was rendered in the absence of notice to Wood of Groves’ cross-action against him.

If the judgment in plaintiffs’ favor should be construed as one by default, it would not follow that Wood’s contention that it was erroneous as to him should be sustained, because he had filed an answer to their suit. It does not appear from anything in the record sent to this court that the attention of the trial court was called to the fact that he had filed an answer, or that he asked that the judgment be set aside at the term during which it was rendered. It has often been held that under such circumstances a judgment by default will not be disturbed. London Association Corporation v. Lee, 66 Tex. 247, 18 S. W. 508; Lytle v. Gustead, 4 Tex. Civ. App. 490, 23 S. W. 451; Hopkins v. Donaho, 4 Tex. 336; Bartlett v. Jones, 103 S. W. 707; McQueen v. McDaniel, 109 S. W. 219.

In London Association Corporation v. Lee, cited above, the Judgment was by default when an answer was filed. The cause was before the appellate court on writ of error, as this one is. The Supreme Court said:

“There is nothing in the record to show that the defendant called its pleading to the attention of the court or insisted upon their consideration, or asked that the judgment be set aside at the term during which it was. rendered. It was presumptively in court after it had answered, and its duty was to look after its interest in the cause. It neither objected to the interlocutory judgment by default, nor appeared to look after the case when before the court upon writ of inquiry. This court has frequently held that, under such circumstances, it will presume that the defendant waived an answer and the judgment will not be disturbed.”

In Lytle v. Custead, another of the cases cited above, the Court of Civil Appeals said:

“One of the errors assigned is the action of the court in rendering a judgment by default against defendants when their answer was on file. This assignment is untenable. Something more is required of a defendant than the mere filing of an answer. He is then presumed to be in court, and ready to see his rights protected, to call the attention of the court to his. answer, and demand proof of plaintiff’s claim.”

As supporting his view of the law Wood cites Ryburn v. Nail, 4 Tex. 305; McKaughan v. Harrison, 25 Tex. Supp. 461; Middleton v. McCamant, 39 Tex. 146; City of Jefferson v. Jones, 74 Tex. 635, 12 S. W. 749; Cruger v. McCracken, 26 S. W. 282; Sevier v. Turner, 33 S. W. 294; and Railway Co. v. Epps, 117 S. W. 1012. An examination of these cases will show that in each of them, where the question was involved, the appellant either was present, urging a consideration of his answer, or had sought during the term at which the judgment against him was rendered to have same set aside. None of them, therefore, can be said to support Wood’s view of the law.

Wood’s contention with reference to the recovery had by Groves against him is that same was unauthorized because it “appears of record” that “there was never any process of citation issued or served” on him, and that “there was never any appearance by” him “to answer the cross-action.” It does not so appear, in the record sent to this court. On the contrary, the record here is silent as to whether Wood had notice of the filing of the cross-action or not. But treating the judgment in Groves’ favor as one by default, as we think it should be treated, it should be reversed, notwithstanding the silence of the record, if, to authorize it, Wood must have had notice of the filing of the cross-action; for the rule is that to support a judgment by default the record must show affirmatively, either service of process on the defendant, a waiver by him of such service, or an appearance by him in answer to the adverse party’s suit. Bates v. Casey, 61 Tex. 592; Shook v. Laufer, 84 S. W. 277; Mayhew v. Harrell, 57 Tex. Civ. App. 509, 122 S. W. 957; Burditt v. Howth, 45 Tex. 466. That judgment by default on the cross-action was unauthorized in the absence of a citation to Wood is established by the following, among other eases: Harris v. Schlinke, 95 Tex. 88, 65 S. W. 172; Boyce v. Concho Cattle Co., 70 S. W. 356; Field v. O’Connor, 80 S. W. 872; Schwartzlose v. Wagner, 36 Tex. Civ. App. 83, 81 S. W. 70; Breneman v. Lumber Co., 12 Tex. Civ. App. 517, 34 S. W. 198; Simon v. Day, 84 Tex. 520, 19 S. W. 691; Roller v. Ried, 87 Tex. 69, 26 S. W. 1060; Crain v. Wright, 60 Tex. 515.

It follows from what we have said that we are of opinion the judgment should be affirmed in so far as it is in favor of the plaintiffs against Wood and Groves, and reversed in so far as it is in favor of Groves against Wood. It will be so ordered, and the cause will be remanded for a new trial as between Wood and Groves.

In the oral argument on the submission of the cause it was urged on behalf of Wood that if it .was determined that the judgment was erroneous in so far as it was in favor of Groves, it should be set aside, not only in that respect, but also in so far as it was in favor of plaintiffs. The issue between the plaintiffs and the defendants Wood and Groves was one of title to the land. The issue .between Wood and Groves was as to the right of the latter to recover on the contract of the former warranting the title. Both Wood and Groves having had their “day in court” on the issue between them and plaintiffs, we see no reason in law, why the judgment disposing of that issue should be disturbed; and, without disregarding the rules -applicable (rule 62a [149 S. W. x] for the government of Courts of Civil Appeals; Hamilton v. Prescott, 73 Tex. 565, 11 S. W. 548), we think it cannot be disturbed.
      <S=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. SMITHA.
    (No. 1666.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 17, 1916.
    Rehearing Denied Nov. 23, 1916.)
    1. EXECUTORS AND ADMINISTRATORS '<&wkey;ll — “Estate” — Choses in Action.
    In view of Act Cong. April 22, 1908, c. 149, § 1, 35 Stat. 65, and Act Cong. April 5, 1910, c. 143, § 2, 36 Stat. 291 (U. S. Comp. St. 1913, §§ 8657, 8665), providing that interstate railway carriers are liable in damages to injured_ servants or the survivors of servants who are killed, and that the right of action shall survive to their personal representatives, such right is an “estate” on which administration may be granted.
    [Ed. Note. — Por other cases, see Executors and Administrators, Cent. Dig. § 25; Dec. Dig. &wkey;»
    Por other definitions, see Words and Phrases, First and Second Series, Estate.]
    2. Executors and Administrators <®=»12 — Situs oe Assets.
    Where a switchman was injured in interstate commerce, and could under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, subd. 26, have sued in any county where the carrier had an agent, and he sued in one county, his cause did not continue transitory, but, being fixed, survived to Ms administrator in that county.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 24; Dec. Dig. <&wkey;> 12.]
    3. Executors and Administrators &wkey;>12 — Situs of Assets.
    As a general rule, for the purpose of founding administration, simple contract debts, and tort actions, are assets at the domicile of the debtor.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 24; Dec. Dig. <&wkey;>12.]
    4. Executors and Administrators <&wkey;12 — Situs of Assets.
    Where a switchman was injured in interstate commerce on the line of a Texas corporation operating wholly within the state, and was therefore entitled to recover under Act Cong. April 22, 1908, as amended by Act Cong. April
    5. 1910, but died pending suit, an administrator was properly appointed in the Texas county court where deceased sued, since an administrator appointed outside the state cpuld not have sued.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 24; Dec. Dig. <S=OT2.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Action by D. A. Swain against the St. Louis Southwestern Railway Company of Texas. On plaintiff’s death, E. A. Smitha, on application, was appointed administrator and asked leave to continue the suit. From a judgment of the district court affirming a judgment of the county court denying defendant’s petition to vacate and annul the order appointing the administrator, defendant appeals.
    Affirmed.
    Appellant’s switching yard in Texarkana is partly in Arkansas and partly in Texas. December 23, 1913, one Swain was in appellant’s service as a switchman in its said yard. His home was in California, where his wife resided, but he boarded and lodged in a house in Texarkana, Tex. On the day named he was assisting other employés of appellant in moving a car, or train of ears, from a point in the portion of appellant’s yard in Arkansas to a point in the portion thereof in Texas. Swain claimed that while so engaged he was employed by appellant in interstate commerce. He further claimed that as a result of negligence on appellant’s part, while he was so engaged in the part of its yard in Arkansas, he suffered injury to his person entitling him to recover damages of appellant. April 1, 1914, he commenced suit against appellant in the district court of Bowie county. October 1,1914, while his suit was pending in said district court, he died in California. January 14, 1915, appellee Smitha applied to the county court of said Bowie county for appointment as administrator of Swain’s estate. In his application Smitha alleged:
    “That at his death said D. A. Swain, had an estate situated in Bowie county, Tex., which consists of a cause of action for damages, on account of personal injuries, against the St. Louis Southwestern Railway Company of Texas. That such cause of action arose in favor of the said D. A. Swain in his lifetime, in this, that while he was a servant of said company, it being a common carrier, engaged in interstate commerce, he, the said D. A. Swain, while working for said company and while .engaged in interstate commerce, received personal injuries as a result of the negligence and carelessness of said company. That in his lifetime the said D. A. Swain instituted suit on said cause of action against said company in the district court of Bowie county, Tex., which was pending at his death and is now pending in said court. This petitioner shows that there exists a necessity for an administration on the estate of said D. A. Swain in said Bowie county, particularly for the purpose of prosecuting said suit to judgment; he having left surviving him a wife and children.”
    The county court of Bowie county granted Smitha’s application, and by an order made January 26, 1915, appointed him administrator of said Swain’s estate. February 6, 1915, Smitha qualified as such administrator, and March 27, 1915, applied to said district court for leave as such to prosecute the suit commenced by Swain as hereinbefore stated. April 1, 1915, appellant petitioned the county court to vacate and annul its order appointing Smitha administrator. Appellant’s petition contained allegations as follows:
    “Your petitioner alleges that this court was without jurisdiction to grant letters of administration upon the estate of the said D. A. Swain, deceased, and that the order granting such letters of administration was and is null and void because it appears in the application of the said E. A. Smitha for letters of administration herein that the said D. A. Swain, at the time of his death, resided in Los Angeles, in the state of California, and not within the state of Texas; and because it does not appear from said application that the said D. A. Swain then had, or that he has ever had, any property situated in Bowie county, Tex. In this connection, your petitioner alleges and shows to the court that said D. A. Swain, at the time of his death, had a fixed domicile in and was a resident of the state of California, and that he never resided in Bowie county, Tex.; that he did not have, at the time of his death, and has not now and has never had, any property situated in Bowie county, Tex.
    “Your petitioner further avers that, as shown from the petition of said E. A. Smitha, as administrator, in the suit against your petitioner herein, in the district court of Bowie county, Tex., if the said D. A. Swain was injured while employed by your petitioner, he did not receive his alleged personal injuries in the state of Texas but received same if any in the state of Arkansas. Your petitioner still further avers-that said administration is and was not sought for the best interest of said estate, but for the sole purpose of enabling suit to be brought against your petitioner in the courts of Texas, and in an attempt to confer the jurisdiction of the courts of Texas over your petitioner; that no facts now exist and none have ever existed giving_ this or any other court in the state of Texas jurisdiction to grant letters of administration on the estate of the said D. A. Swain, deceased; that none of the jurisdictional facts authorizing this court to grant letters of administration on the estate of said E. A. Swain, mentioned and set out in article S209 of the Revised Statutes of 1911, exist now, and no such jurisdictional facts have ever existed authorizing this court or giving it jurisdiction of the estate of the said D. A. Swain, deceased, or empowering it to grant E. A. Smitha letters of administration herein.”
    The relief it sought having been denied by the county court, appellant prosecuted an appeal to the district court of Bowie county, where judgment was rendered against it. This appeal is from the judgment rendered by said district court.
    Glass, Estes, King & Burford, of Texarka-na, and E. B. Perkins and Dan Upthegrove, both of Dallas, for appellant. Hahaffey & Keeney and Turner, Graham & Smitha, all of Texarkana, for appellee.
   WILLSON, C. J.

(after stating the facts as above). It appearing that the basis of the suit commenced by Swain in Bowie county, Tex., was injury he suffered in Arkansas, and it further appearing that he died in California, where he resided, from an injury inflicted on him there, if the action of the trial court in overruling appellant’s motion to remove appellee as administrator is sustained, it must be on the ground that Swain owned no estate subject to administration in Bowie county. It is conceded that, if the claim for damages asserted by his suit was not such an' estate, he owned none in that county. Therefore the question presented by the appeal may be stated as follows: (1) Did Swain’s claim against appellant for damages constitute an “estate” subject to administration? (2) If it did, then was such estate subject to administration in Bowie county, Tex.?

The first question should be answered in the affirmative. It appeared that appellant was a common carrier engaged in commerce between the several states, and that Swain’s claim for damages against it was predicated on his claim that he was injured by its negligence while he was employed in such commerce. The act of Congress approved April 22, 1908 (1911 Supplement to U. S. Compiled Statutes, pp. 1322, 1323 [U. S. Comp. St. 1913, § 8657]), provided that:

“Every common carrier by railroad while engaging in commerce between any of the several states * * * shall be liable in damages to any persons suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employe, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employSs of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines,” etc.

The liability, created by the statute in Swain’s favor, if he was injured as he claimed he was, was property belonging to him in his lifetime. Rivera v. Railway Co., 149 S. W. 227; Lessler v. De Loynes, 153 App. Div. 903, 138 N. Y. Supp. 505; State v. Fidelity & Deposit Co., 35 Tex. Civ. App. 214, 80 S. W. 553; Womach v. City of St. Joseph, 201 Mo. 467, 100 S. W. 447, 10 L. R. A. (N. S.) 140; Richards v. Riverside Ironworks, 56 W. Va. 510, 49 S. E. 437; Railway Co. v. Beezley, 153 S. W. 652; Reiter v. Hamlin, 144 Ala. 192, 40 South. 290; 11 Ruling Case Law, p. 72, and authorities there cited.

The statute (Act Cong. April 5, 1910 [U. S. Comp. St. 1913, § 8665]), further provides:

“That any right of action given by this act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé,” etc.

The provision just quoted operated, when Swain died intestate, to pass to the administrator of his estate, when appointed, the right to enforce, for the benefit of his wife and children, the liability created by the statute. As the right could be exercised by none other than such an administrator (Railway Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 37 L. Ed. 1129, Ann. Cas. 1914C, 156; Fithian v. Railway Co. [C. C.] 188 Fed. 845), if Swain’s claim for damages was not an “estate” subject to administration before its enactment, it is believed the statute operated to make it such an estate (Southern Pacific Co. v. De Valle Da Costa, 190 Fed. 689, 111 C. C. A. 417; Rivera v. Railway Co., 149 S. W. 227; Brown’s Adm’r v. Railway Co., 97 Ky. 228, 30 S. W. 639; Forrester v. Southern Pacific Co., 36 Nev. 247, 134 Pac. 753, 136 Pac. 705, 48 L. R. A. [N. S.] 1).

The second question should- also, we think, be answered in the affirmative. Thé right of action in Swain’s favor was transitory in its nature. He could have sued on it’ in any county in Texas in which appellant operated its line of railway or had an agent. Article 1830, subd. 26, Vernon’s Statutes; T. & P. Ry. Co. v. Conway, 182 S. W. 52; Ry. Co. v. Weese, 32 Ela. 212, 13 South. 436. Appellant operated its line of railway in Bowie county, and had an agent there for the transaction of its business as a common carrier. Therefore the suit commenced in that county by Swain in Ms lifetime was maintainable there. The cause of action in his favor should not, we think, thereafter, and so long as the suit was pending, be regarded as a transitory one. The institution of the suit located it. This being true, as we think, it should be held that the right of action, which by the terms of the statute survived to his administrator, included the right to continue the prosecution of the suit founded on that cause of action in the tribunal where it was pending.

But if the right of action should be regarded as transitory, notwithstanding suit had been instituted on it, its situs for the purpose of administration nevertheless was, we think, in Texas. The general rule has been stated to be that:

“For the purpose of founding administration, all simple contract debts are assets at the domicile of the debtor.” 11 Ruling Case Law, p. 71.

The rule is not different as to obligations for tort and obligations in contracts. Southern Pacific Co. v. De Valle Da Costa, 190 Fed. 693, 111 C. C. A. 417. In discussing it, the reasons for the rule were stated by the Supreme Court of California as follows:

“It is true * * - * that for most purposes a chose in action adheres to the person of the owner, but for the purpose of founding administration this is not true. For such purpose the situs is where the debtor resides. For this exception there are at least two good reasons: It may be necessary to bring an action upon notes to enforce payment,’ and this a foreign administrator or executor cannot do. As to other personal property, it may be necessary to have the aid of the law for its recovery and protection. But the main reason, no doubt, why local administration is provided for, is for the protection of local creditors and claimants. No state should allow property to be taken from its borders until debts due its own citizens have been satisfied.” Murphy v. Crouse [135 Cal. 14] 66 Pac. 971 [87 Am. St. Rep. 90],

And see Speed v. Kelley, 59 Miss. 51; Richards v. Riverside Ironworks, 56 W. Va. 510, 49 S. E. 437; and Southern Pacific Co. v. De Valle Da Costa, 190 Fed. 689, 111 C. C. A. 417.

Another reason for the rule stated exists in the circumstances of cases like the one before us. Only by the application of such a rule can the right conferred by the act of Congress be enforced in the courts. If the contention of appellant, supported by the decision of the Court of Civil Appeals in Angier v. Jones, 28 Tex. Civ. App. 402, 67 S. W. 449, to wit, that the situs of a chose in action for the purpose of administration is the residence of the owner, should be sustained, the right of action given by the statute, and which by its terms survived to Swain’s administrator for the benefit of his wife and children, became by his death unenforceable; for appellant being a Texas corporation, and its line of railway being wholly within this state, suit against it could not be maintained in the courts of any other state (12 Ruling Case Law, p. 107 et seq.; 19 Cyc. p. 1323 et seq.), and an administrator of Swain’s estate appointed in some other state could not as such maintain a suit against appellant in any of the courts sitting in this state (Noonan v. Bradley, 9 Wall. 394, 19 L. Ed. 757; Railway Co. v. Marvin, 59 Fed. 91, 8 C. C. A. 21; Green v. Rugely, 23 Tex. 548; Copper v. Railway Co., 41 Tex. Civ. App. 596, 93 S. W. 205).

In Angier v. Jones, referred to above as supporting appellant’s contention, it appeared that one Foreman, when he died in Morris county, Tex., had no fixed place of residence and owned no property, except a half interest in a judgment he had recovered in Walker county, Tex., against a railway company. At the time he died the cause in which he recovered the judgment was pending on an appeal prosecuted by the railway company. In affirming a judgment denying Angier’s application to the county court of Walker county for letters of administration on Foreman’s estate, the Court of Civil Appeals, after quoting the statute (article 3209, Vernon’s Statutes), said:

“We think it clear from the evidence in this ease the jurisdiction to administer upon Foreman’s estate exists only in the county court of Morris county — the county in which he died. We do not think the contention sound that, because the only property he owned at the time of his death was a judgment rendered in the district court of Walker county, in the purview of the statute above quoted his principal property was situate in said county. The situs of a judgment or of any chose in action follows the residence of the owner, and cannot, in law, be regarded as being situate elsewhere; and it cannot be said that Foreman owned any property in Walker county at the time of his death. Ferris v. Kimble [75 Tex. 476] 12 S. W. 689.”

The case cited (Ferris v. Kimble) as supporting the ruling made does not support it. In that case the holding of the court was that credits are taxable at the place of residence of the owner. As, however, the writ of error applied for in the Angier Case was refused, it must be assumed that the Supreme Court approved the ruling of the Court of Civil Appeals. The ruling is clearly against the great weight of authority in other [jurisdictions, and we think does not lay down the rule which should control in cases with facts like those in the Angier Case, and certainly not the rule which should control in cases with facts like the one before us.

The judgment is affirmed.
      <SrsKor other cases see same tonic and KB 7-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    OLSEN v. GREELE et al.
    (No. 5664.)
    (Court of Civil Appeals of Texas. Austin.
    June 21, 1916.
    Rehearing Denied Nov. 15, 1916.)
    1. Tenancy in Common <&wkey;>15(7, 8) — Advebse Possession — Notice.
    The execution of a deed by a tenant in common conveying the entire tract of land and its registration by the grantee, who took open and adverse possession thereunder and paid the taxes, was notice to the other cotenant of the assertion of an adverse claim.
    [Ed. Note. — Eor other cases, see Tenancy in Common, Cent. Dig. § 49; Dec. Dig. &wkey;>15 (7, 8).]
    2. Limitation on Actions t&wkey;19(l) — Fokged Deed — Statute.
    The five-year statute of limitations, declaring that no one claiming under a forged deed shall be allowed its benefits, refers to the deeds relied on in support of the plea, and not to prior deeds in the chain of title, not necessary to support the plea.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 73, 80, 84, 85; Dec. Dig. &wkey;19(l).]
    Appeal from District Court, Mills County; John D. Robinson, Judge.
    Suit for partition by Wm. Olsen against W)m. Greele and others'. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    James Kaley, of San Antonio, for appellant. E. B. Anderson, of Goldthwaite, for appellees.
   KEY, C. J.

Appellant brought this suit against appellees, alleging that he was the owner of an .undivided one-half of a 320-acre tract of land, and sought to have the same partitioned between him and the defendants. Among other things, the defendants pleaded the three, five and .ten year statutes of limitation, and denied the right of the plaintiff to any of the land. The trial court sustained the two last-named pleas, and rendered judgment for the defendants for all of the land, and the plaintiff has appealed.

The trial judge did not file findings of fact, but the statement of facts sustains his holding that the plaintiff’s claim was defeated by the five-year statute of limitation. It is not contended in appellant’s brief that ap-pellees failed to show actual possession of the land, together with the payment of taxes, under deeds duly recorded, for more than five years before the suit was brought; but the contention is that the pleas of limitation are .unavailing, for the reason that appellant and appellees were cotenants, and therefore the latter’s possession and payment of taxes did not constitute such an ouster as was necessary to start the running of limitation, and authorities are cited which lay down the doctrine in general terms that limitation will not run in favor of the cotenant until it is shown that he has repudiated the title of his co-owner, and that the latter had notice of such repudiation. It is also contended that the statute of limitations cannot avail in this case, because it was shown that one of the deeds in appellees’ chain of title was a forgery.

The appellees base their plea of five-year limitation upon deeds executed by William T. and S. J. Allen, conveying in the aggregate the entire 320-acre survey to appellees. Those deeds' had been recorded and possession held under them, together with the payment of taxes, for more than five years before this suit was instituted. Appellant contends, however, that as the Allens were joint owners and tenants in common with him, if their deeds conveying all the land constituted a repudiation of his claim of title, still it was not shown that he had any knowledge or notice of that claim until a short time before this suit was commenced.

Counsel for appellees contend, and the weight of authority supports their contention, that the registration of the deeds from the Allens conveying the entire tract of land constituted sufficient notice of the repudiation of appellant’s claim to support the statute of limitation. That identical question was passed upon by this .court in Robles v. Robles, 154 S. W. 230, where it was held that the execution of a deed by a tenant, in common, and its registration by the grantee, who took open and adverse possession thereunder, and paid the taxes, was notice to the other cotenant of the assertion of an adverse claim. See, also, Byers v. Carll, 7 Tex. Civ. 423, 27 S. W. 190; Jacks v. Dillon, 6 Tex. Civ. App. 192, 25 S. W. 645, writ of error refused 93 Tex. 711; Lewis v. Terrell, 7 Tex. Civ. App. 314, 26 S. W. 754; Puckett v. McDaniel, 8 Tex. Civ. App. 630, 28 S. W. 360, writ of error refused 93 Tex. 693; Stubblefield v. Hansen, 94 S. W. 406, writ of error refused 101 Tex. 661; Naylor & Jones v. Foster, 44 Tex. Civ. App. 599, 99 S. W. 114; Church v. Waggoner, 78 Tex. 203, 14 S. W. 581; Morgan v. White, 50 Tex. Civ. App. 318, 110 S. W. 491; Carr v. Alexander, 149 S. W. 218; Bracken v. Jones, 63 Tex. 184; Brownson v. Scanlan, 59 Tex. 222.

But it is also contended on behalf of appellant that the five-year statute of limitation cannot avail in this case, because the undisputed testimony shows that a deed in appellees’ chain of title, executed many years prior to the Allen deeds hereinbefore referred to, and purporting to have been executed under power of attorney from appellant, was a forgery. It is true that the statute relating to five-year limitation declares that “no one claiming under a forged deed or deed executed under a forged power of attorney, shall be allowed the benefits of this article”; but in their plea of five-year limitation appellees did not base their right to such limitation upon the deed charged to be a forgery, but upon deeds executed by the Allens, as hereinbefore stated, and which deeds were free from any suspicion of’ forgery. We hold that the provision of the statute denying the right to use a forged deed as the basis of the five-year statute of limitation has reference to the deeds relied on in support of that plea, and not to other deeds, not necessary to support such plea of limitation. Hence we hold that the proviso in the statute referred to has no application to this case.

All of the questions presented in appellant’s brief have been duly considered, and our conclusion is that the judgment ought to be affirmed ; and it is so ordered.

Affirmed.
      &wkey;>For other eases see same topic ana KEY-ftUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    MORRIS v. PARSONS et al.
    (No. 1682.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 23, 1916.)
    1. Trial <&wkey;140(2) — Direction oe Verdict— Testimony oe Party.
    In trespass to try title, it was error for the court to direct a verdict for plaintiffs based on the testimony of one of them that her ancestors had a deed to the land from the original: patentee, which deed had been lost, since the court had no right to compel the jury, who are the sole judges of the credibility of the witnesses, to accept as true the testimony of an interested party.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 335; Dec. Dig. <5&wkey;140(2).]'
    2. Adverse Possession &wkey;>115(l) — Question for Jury.
    In trespass to try title, evidence held sufficient to require the question of defendant’s right to the property under the five-year statute of limitations to be submitted to the jury.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 691, ’701; Dec. Dig. &wkey;> 115(1).]
    Appeal from District Court, Bowie County ; H. F. O’Neal, Judge.
    Trespass to try title by Mrs. Irene Parsons and others against S. J. Morris. Judgment for the plaintiff for part, of the land in controversy and defendant appeals.
    Reversed and remanded.
    O. B. Pirkey, of New Boston, and J. S. Crumpton, of Texarkana, for appellant. Mahaffey, Thomas & Hughes, of Texarkana, for appellees.
   HODGES, J.

The appellees instituted this suit against the appellant in the form of an action of trespass to try title, seeking to recover 60 acres of land, a part of the Hawkins survey, situated in Bowie county. The appellant pleaded as a defense the general issue and the different statutes of limitation applicable to such suits. At the conclusion of the testimony the trial court instructed the jury to return a verdict in favor of the defendant for 55 acres of the land, and for the plaintiffs for 5 acres. The appellant not only complains of the action of the court in giving that charge, but also in refusing to instruct peremptorily in his favor. The ap-pellees have filed no brief in this case, and we take it that the statement set out in the appellant’s brief is correct.

It devolved upon the plaintiffs in the suit, as in' every action of this character, where common source is not relied upon, to deraign title from the sovereignty of the soil. The evidence hebé relied upon to establish title in the appellees was a patent •from the state to Hawkins, the original grantee, and the oral testimony of Mrs. Parsons, one of the appellees. She testified that her ancestors once had a deed from the heirs of the original grantee; that this deed included the land in controversy. She was unable, however, to detail, on cross-examination, any of the lines or corners. She also testified that the deed referred to had been lost or destroyed. In this state of the evidence it was not proper for the court to assume as a matter of law that Mrs. Parsons, an interested party, had testified correctly and truthfully concerning those facts. The jury in all such cases are the judges of the credibility of the witnesses; and where the witness is an interested party and testifies in the presence of the jury, the court has no right to compel the jury to accept as true what the witness says. We think, therefore, for that reason the court erred in giving the peremptory instruction to find in favor of the appellees for the 5 acres of land.

According to the testimony of the appellant and the deeds offered in evidence by him, he had purchased a tract of land some time in 1901 from M. D. Tilson and Davis & Davis, which included the land in controversy. He offered in evidence a deed from M. D. Tilson conveying an undivided one-half interest in the land. He also offered in evidence two other deeds — one from each of the Davises — in which one conveys a nine-tenths interest in an undivided half of the land, and the other a one-tenth interest in an undivided half. The appellant testified that he had used and occupied the land and had paid taxes thereon under a claim of ownership for more than five years before the institution' of this suit. It appears to us that these deeds, if followed by the other statutory requirements, constituted a sufficient basis for the five-year statute of limitation, and the court erred in not so holding. The issue of adverse possession, or limitation under the five-year statute, should at least have been submitted to the jury.

For the error indicated, the judgment of the district court is reversed, and the cause remanded.
      <&wkey;>Eor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes