author: PLEASANTS, C. J.

text:
    OATES et al. v. MAXCY et al.
    (No. 7606.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 8, 1918.)
    1. Appeal and Error <@=>1170(6) — Review-Harmless Error.
    Where court, upon written request from jury after it had retired for deliberation, sent jury written answer containing the further instructions, its failure to summon the jury into open court to further instruct it, as required by Rev. St. arts. 1961 and 1962, was not reversible error, in view of rule 62a (149 S. W. x); where written instruction was handed to officer in charge of jury, who handed instruction to jury foreman.
    2. Trial @=312(1) — Instructions After Submission of Cause — Duty of Court.
    It is not only the right, but tho duty, of the court to give the jury additional instructions as to the law of the case after they have retired, upon proper request being made therefor.
    3. Trial @=>312(2) — Instruction after Submission of Cause — Sufficiency.
    In action involving boundary dispute, an instruction, in response to request from jury as to whether measurements in deeds immediately following first grant should be considered as circumstances to locate corner, held a direct answer to jury’s question.
    4. Trial @=>194(10) — Instruction—Weight of Evidence.
    In action involving boundary dispute, an instruction as to recitals of distance in deeds, patents, surveys, or other instruments subsequent to original survey, and effect thereof upon location by original surveyor, held not on weight of evidence.
    Error from District Court, Harris County; Henry J. Dannenbaum, Judge.
    Action by J. W. Maxcy and others against Annie E. Oates and others. Judgment for plaintiffs, and defendants bring error. Affirmed without opinion. On motion for rehearing.
    Denied.
    Tharp & Tharp, of Houston, for plaintiffs in error.
    J. W. Lockett, of Houston, for defendants in error.
   PLEASANTS, C. J.

This suit is in form an action of trespass to try title, brought by appellees against appellants. The defendants in the court below pleaded not guilty, and further pleaded that the land sued for is included within the Thomas Earle survey, which is owned by defendants and is 88 years senior to plaintiffs’ survey. The only issue in the case raised by the evidence is one of "boundary. The cause was submitted to a jury in the court below by the following charge:

“Hirst. Plaintiff has sued for a tract of 37.2 acres of land in Harris county, Texas, patented by the state of Texas to J. W. Maxcy, by patent dated July 5, 1912. The defendants claim that the land sued for is in conflict with and composes a part of the Thos. Earle labor, and they claim that the boundaries of the Thos. Earle labor include the land in controversy. The plaintiff claims that the land sued for is west of and adjoining the Thos. Earle labor.
“Second. Prom a fair consideration of all the evidence admitted by the court, it is your duty to determine the true location of the west line of the Thos, Earle labor as it was originally located and granted, and it will be necessary for you to determine whether the said Thos. Earle labor, as it was described in the grant to Thos. Earle and located on the ground, includes the land in controversy, or whether the land in controversy is west of and adjoining the Thos. Earle labor; and to do this it will be necessary for you to determine where is the true location of the west line of the Thos. Earle as it was originally placed on the ground by the surveyor who first surveyed for the grant to Thos. Earle.”

Special issue No. 1 was submitted, by the court as follows:

“Does the Thos. Earle labor as it was originally located in the grant to Thos. Earle include and embrace the 37.2 acres of land patented by the state of Texas to J. W. Maxcy, July 5, 1912?”
“If you find from the evidence that the land in controversy was within the Thos. Earle labor, as it was located, you will answer ‘Yes.’
“If you find from the evidence that the land sued for is not within the Thos. Earle labor, as it was originally located, you will answer ‘No.’ ”

The jury answered the question submitted in the negative, and upon the return of such verdict judgment was rendered in favor of plaintiffs for the land in controversy.

The verdict is amply supported by the evidence, which it is unnecessary for us to set out, as appellant does not contend that the evidence is not sufficient to sustain the verdict.

As appears from the charge of the court above set out, the issue to be determined by the jury was the location of the west line of the Thomas Earle survey, as it was originally fixed on the -ground by the surveyor who located the survey.

The Thomas Earle survey was located in 1824. The field notes of the original grant describe the survey as beginning at a mound on the bank of Green’s bayou, from which the surveyor “measured one thousand varas west, where another mound was planted; thence south, one thousand varas, another mound; thence east, nine hundred varas, to said bayou; and thence, following the meanders of said bayou, upwards to where he began, containing a superficie of one labor.” There is no dispute as to the location of the north and south lines of the survey, which extend from Green’s bayou, the east boundary of the' survey; but appellants claim that said lines are 200 varas longer than the call in the original field notes, thus placing the west line of the survey 200 varas further west than it is placed by the calls in the original field notes of the survey. If the west line is thus placed, all of the land claimed by appellees is within the boundaries of the Earle survey.

In support of their contention as to the true location of the land in controversy, appellants introduced in evidence the James Gordon survey, which was patented in 1870, and which lies north of the Earle survey. The first call in the original field notes of the Gordon survey is as follows:

“Beginning at a stake on the right bank of Green’s bayou, being the N. E. corner of a labor of land originally granted to Thomas Earle; thence west 1,200 vrs., along said T. Earle’s N. line, to a stake in the east line of a league granted to Reels & Trobough.”

They also introduced deeds in their cnain of title executed in 1878 and 1891, respect-tively, the field notes of which give the length of the north line of the Earle survey as 1,-200 varas.

The first assignment of error complains of the action of the trial court in answering questions ashed him by the jury, after the jury had been deliberating upon the case for several hours, without having the jury brought into open court and the attorneys for plaintiffs and defendants present when such answers were given.

The facts upon which the assignment is based are thus) stated in the bill of exceptions reserved by appellants:

“Be it remembered that this cause was submitted to the jury on the 15th day of November, 1916, and the jury retired to consider of their verdict; and after deliberating about 6 hours, and after the court had adjourned for the day, and with the previous consent of the attorney for both parties had instructed the jury to bring in a sealed verdict, the foreman informed the sheriff in charge that the jury wanted to communicate with the court; whereupon the sheriff recalled the judge to the courtroom, it being about 6 o’clock p. m. when the judge arrived, whereupon, under instructions from the court, the sheriff opened the door <jf the jury room and. received from the foreman a paper containing the following:
“ ‘Judge Dannenbaum, 61st District Court: We, the jury in cause No. 60798, respectfully ask you to explain to some of the members of the jury verbally the meaning of the word “superficie.”
“ ‘Also, are we to consider measurements in deeds immediately following first grant as circumstances to locate comers?
“ ‘O. E, Reynaud, Foreman.’
“Which paper having been delivered by the sheriff to the court, the latter wrote thereon the following, affixing his signature thereto:
“ ‘Gentlemen of the Jury: I do not recall in what instrument which has been introduced in evidence the word “superficie” appears. At any rate, the word “superficie” has nothing to do with any issue in the case, and I advise that you give no further consideration to the meaning of the word.
“ ‘With reference to the second question, you are instructed that the sole issue is where the west line of the labor was located by the surveyor who made the original survey on the ground. Becitals of distance in subsequent deeds, patents, surveys, or other instruments introduced in evidence were admitted in evidence, and are to be considered by you only as you may or may not find that they throw any light on the location of the west line of the labor, by the original surveyor. In other words, such subsequent recitals cannot change the original location, but can only be considered or not considered, according as you may find as bearing on the facts of the original location.
“ ‘Henry J. Dannenbaum, Judge.’
“Which paper, containing the above questions and the answers thereto, was thereupon handed by the judge to the sheriff, who delivered the same to the foreman of the jury through the door of the jury room. The jury and each member thereof remained in the jury room during the entire proceedings above described, and the attorneys, of neither plaintiffs nor defendants were present in the courtroom during said proceedings, and did not consent thereto.
“To which action of the court and jury the defendants in open court excepted, and file this their first bill of exceptions, and pray that the same be allowed, ordered filed, and made a part of the record of this case, which is accordingly done. Henry J. Dannenbaum, Judge.”

Appellants’ proposition under this assignment is:

“The court had no right, under the law, to communicate with the jury after it had retired to consider of its verdict, otherwise than by bringing the jury into open court, with the attorneys in the case present.”

The following are the provisions of the statute affecting the question presented by this assignment:

Revised Statutes, art. 1961, is as follows:

“When the jury wish to communicate with the court, they shall make their wish known to the officer having them in charge, who shall inform the court thereof, and they may be brought into open court, and through their foreman shall state to the court, either verbally or in writing, what they desire to communicate.”

Revised Statutes, art. 1962, is as follows:

“The jury may, after having retired, ask further instruction of the court touching any matter of law. For this pui’pose, they shall appear before the judge in open court in a body, and, through their foreman, state to the court, either verbally or in writing, the particular question of law upon which they desire further instruction, and the court shall give such instruction in writing; but no instruction shall be given except upon the particular question on which it is asked.”

The only provision of the above statute which was not strictly complied with by the trial court in giving the additional 'instructions requested by the jury was in failing to have the jury brought into 'open court to present their request and receive the instructions. We cannot bring ourselves to believe that this omission on the part of the court constitutes such grave and material error in the trial of the cause as requires a reversal of the judgment.

In the case of Ry. Co. v. Byrd, 102 Tex. 263, 115 S. W. 1163, 20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137, our Supreme Court approves the rule announced in the case of Sargent v. Roberts, 1 Pick. (Mass.) 337, 11 Am. Dec. 185:

“That no communication whatever ought to take place between the judge and the jury, after the cause has been committed to them by the charge of the judge, unless in open court, and, where practicable, in the presence of the counsel in the cause. The oath administered to the officer seems to indicate this as the proper course: ‘He is to suffer no person to speak to them, nor to speak to them himself unless to ask them whether they are agreed;’ and he is not to suffer them to separate until they are agreed, unless by order of court. When the court is adjourned, the judge carries no power with him to his lodgings, and has no more authority over the jury than any other person; and any direction to them from him, either verbal or in writing, is improper. It is not sufficient to say that this power is in hands highly responsible for the proper exercise of it. The only sure way to prevent all jealousies and suspicions is to consider the judge as having no control whatever over the case except in open court, in presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice, and the convenience of jurors is of small consideration compared with this great object. If, by reason of the long intervals between the sessions of the court, jurors here are subjected to inconveniences which do not exist elsewhere, this must be remedied by holding two sessions a day instead of one. It is better that everybody should suffer inconvenience than that-a practice should be continued which is capable of abuse, or at least of being the ground of uneasiness and jealousy.”

The, conduct of the judge complained of in the Byrd Case was that, after the jury had been charged and had retired to consider of their verdict, the judge “had more than one conference with the foreman of the jury which was not in open court with all the jury present.” Our Supreme Court found it unnecessary to pass upon the assignment, because the case had-to be reversed and rendered upon another ground, but the remarks above quoted from the Sargent Case were expressly approved. The communication in the Sargent Case consisted of a note sent the judge by the foreman asking permission for the jury to separate, and an answering note by the judge telling the jury how they might proceed to consider the case and arrive at a verdict. While in each of the cases cited the judge was acquitted of any improper motive, and the substance of the communication was not shown to be harmful, we think both of these cases show a much more flagrant and dangerous violation of the statutory rules governing communications by a judge with the jury after they have been charged and have retired to consider what verdict they shall render on the facts in evidence and the law as given them in the charge of the court than is shown in this case. It is not only the right, but the duty, of the court to give the jury additional instructions as to the law of the case after they have retired, upon proper request being made therefor. In this case the jury, through their foreman, submitted to the judge in writing the specific question of law upon which they desired further instructions, and no instruction was given by the judge except upon the particular question upon which it was asked. The request was received by the judge, and the instructions written in the courtroom and handed by him to the officer in charge of the jury, who took it to the jury room and delivered it to the foreman. There was no formal opening of the court, and the jury were not brought from the jury room into the courtroom to present their request and receive the instruction. This was all that was lacking of a strictly literal compliance with the statute. Appellants could not possibly have been injured in the slightest by this omission of the judge. The statute above quoted does not require that the attorneys in the case shall be present when additional instructions are given. The statute regulating the manner in which the charge of the court shall be prepared and submitted to the jury before their retirement directs that the charge be submitted to the attorneys before it is read to the jury. If this statute could be held to apply to additional instructions given the jury at their request after their retirement, a judgment should not be reversed, if the charge given the jury was correct, merely because it was not submitted to the attorneys before it was given to the jury. The communications in this case between the judge and jury were wholly in writing and became a part of the record in the case. The full extent of the communication being thus preserved, neither appellants nor this court can be in doubt as to its scope, and its probable effect upon the verdict of the jury can be readily determined. Our courts no longer adhere to the old rule that any violation by a trial court of a rule of procedure requires a reversal of the judgment in the case regardless of the probable effect of the error. Long-before the formal promulgation of rule 62a (149 S. W. x), this court had held in numerous cases that a judgment would not be reversed for an error of law committed on the trial when such error could have had no-reasonable effect? upon the result of the trial. Since the promulgation of the rule mentioned we are not authorized to reverse a judgment for .an error' of law committed by the trial court in the course of the trial unless we are of opinion “that tire error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of his case to the appellate court.”

Believing, as we have before stated, that the error here complained of could not possibly have any) effect in producing the verdict of the jury, and it affirmatively appearing that such error has not prevented appellant from making a proper presentation' of his case to this court, we cannot, under this rule, reverse the judgment because of this error. We would feel constrained to make this holding even if we thought that the omissions of the judge shown in this case were as much calculated to arouse jealousies and suspicion-of the fairness and integrity of the verdicts of our juries and judgments of our courts as the conduct of the judges criticized in Orn-eases cited, but we do not think the omissions of the judge in this case could have-tended to produce such dangerous and deplorable results. On the other hand, the reversal by appellate courts of judgments for errors which can only be regarded as harmless in their effect upon the results of the trials in the lower courts does have a tendency to weaken confidence in the courts.

In the case of Holliday v. Sampson, 42 Tex. Civ. App. 364, 95 S. W. 643, cited by appellant, the record' shows that the. judge, after the jury had been charged and retired for consideration of their verdict, without the consent of the attorneys in the case, went into the jury room and discussed with and explained to the jury the evidence in the case. No other judgment than one of reversal could have been rendered in that case by the appellate court because it could not reasonably be said that the action of the judge was not ■calculated to cause, and did not probably cause, the rendition of the verdict returned by the jury. The opinion in that cáse cannot be considered controlling authority in this ■case.

The other two assignments presented in appellant’s brief complain of the instructions given the jury in answer to their request on the grounds that the answer given to the second question was not a direct answer, and that said-answer is upon the weight of the -evidence.

We think neither of these objections to the instructions is sound. While the answer of the court to the question might have been more concisely expressed, it was a direct answer and was not upon the weight of the evidence.

We affirmed the judgment in this case at the last term of this court without opinion, no written opinion being required to be filed •by this court in boundary cases when the judgment of the trial court is affirmed. Appellant filed a motion for rehearing, which was taken over to the present term, and has recently been refused. This opinion is filed at the request of appellant, and because we deem the question discussed herein to be one of importance.
      <S=>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: HIGHTOWER, C. J.

license: Public Domain

text:
    TEXAS & N. O. R. CO. v. ORANGE COUNTY et al.
    (No. 311.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 18, 1918.
    Rehearing Denied Nov. 27, 1918.)
    1. Adverse Possession <@=360(2) — Permissive Possession.
    Mere permissive possession of land,- however long continued, will not give title by adverse possession.
    2. Railroads <@=>69 — Grant from County — Constitution.
    Instrument by presiding justice of county court reading, “I,-, donate, grant, and convey” certain land to railroad for use as depot .site, construed with county court’s order using words “grant” and “donate,” was intended to pass title, and not merely permissive possession, where only word of limitation declared grant void upon railroad’s failure to build line through certain town.
    3. Deeds <@=303 — Construction—Intent.
    A deed should be construed according to its apparent intent as gathered from the entire in■strument, in the absence of ambiguity on the face of the instrument.
    4. Deeds <@=90 — Construction Against Grantor.
    In case of ambiguity in a deed, or whore it admits of two constructions, it will be construed most strongly against the grantor.
    ■5. Deeds <@=>101 — Construction — Conduct of Parties.
    Where parties to instrument in writing have by their acts and conduct placed a construction ■upon the Same showing the intention of the parties, such acts and conduct should be given strong weight by the courts in arriving at the intention of the parties, and, in the absence of •clear language indicating intention inconsistent with acts and conduct, the courts should adopt ' the construction placed upon instrument by parties themselves.
    6. Railroads <@=>69 — Grant—Construction.
    Where county granted land to railroad, and for more than 40 years permitted railroad to use land and pay all taxes thereon, the county will be held to have intended.to grant land to railroad absolutely, and not merely to give permissive right to use same as site for depot.
    7. Adverse Possession <@=73 — Defective Grant — Occupation of Land by Owner.
    Where county granted land to railroad for depot purposes, but failed to sell land by commissioner at public auction as required by law, the railroad, by entering upon land, making improvements thereon, and continuing possession and paying taxes for more than 40 years, secured title thereto by adverse possession.
    Appeal from District Court, Orange Cbunty; W. R. Blacksbear, Judge.
    Action by Orange County and others against the Texas & New Orleans Railroad Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and rendered.
    Orgain, Butler & Bolinger, of Beaumont, and Baker, Botts, Parker & Garwood, of Houston, for appellant.
    J. T. Adams and Holland & Holland, all of Orange, for appellees.
   HIGHTOWER, C. J.

The nature and result of this suit is found to be correctly stated in appellant’s brief, as follows:

This suit was filed by Orange county, and D. C. Bland, county judge, J. P. Eddleman, Will Linscomb, Steve Cleveland, and Jesse Turner, county commissioners of Orange county, suing in their official capacity as such, against the Texas & New Orleans Railroad Company, in the form of trespass to try title to recover of the appellant, defendant below, Texas & New Orleans Railroad Company, a certain small parcel of land fully described in plaintiffs’ petition.

The railroad company answered by general demurrer, general denial, plea of not guilty, and also pleaded specially the three, five, and ten years statutes of limitation in support of its claim to said land in fee simple, and also interposed the three, five, and ten years statutes of limitation in support of its claim of an easement to the property in controversy.

Defendant also set up, by proper pleading, valuable improvements made in good faith, to the extent of $20,000; and, by way of cross-action, defendant asserted title as against the plaintiffs to said property in fee simple, and also, in the alternative, that it owned an easement or conditional fee title in said land and premises under the three, five, and ten years statutes of limitation. Defendant also asserted that plaintiffs’ cause of action, if any, was barred by laches and stale demand.

A trial was before the court without a jury, and judgment was rendered in favor of the plaintiffs for the land sued for, and denying defendant’s claim of title on its cross-action, as well as the value of the improvements made in good faith. From this adverse judgment the defendant, Texas & New Orleans Railroad Company, properly perfected its appeal to this court, and the judgment is now properly before this court for revision.

The first assignment of error found in appellant’s brief complains, substantially, of the action of the trial court in refusing to sustain appellant’s defense of stale 'demand; but we shall not discuss this assignment, and will proceed to dispose of the second and third assignments of error, which raise substantially the same question. The second assignment of error is as follows:

“The court erred to the prejudice of the defendant in rendering judgment in favor of plaintiffs for the land in controversy, because it was shown by the uncontradicted testimony adduced upon the trial that defendant, claiming to have good and perfect title to the land described in its answer herein, has had peaceable, continuous, and adverse possession of said land, being the same land claimed in plaintiffs’ petition, using and enjoying same for a period of more than ten years after plaintiffs’ cause of action accrued, if any, and before the commencement of this suit, and that, therefore, defendant was vested with title to the land in controversy under and by virtue of the ten years’ statute of limitation of the state of Texas, and that plaintiffs were, therefore, without title to the land sued for.”

The third assignment of error complains of the action of the trial court in refusing to render judgment in favor of the defendant, for the reason, as claimed in the assignment, that the great weight and overwhelming preponderance of the testimony adduced upon the trial showed that the defendant had acquired title to the land in controversy under the statute of ten years limitation interposed by it.

After the trial court had overruled appellant’s motion for new trial, said court, at the request of appellant, filed its findings of fact and conclusions of law, as follows:

“(1) Plaintiffs and defendant claim the land through and under a common source of title.
“(2) The land in controversy was patented to Nathan Cordrey by the republic of Texas on December 11, 1841, who died without conveying the same, and his legal heirs surviving him, at the time of his death, executed and delivered to the county commissioners of the county of Orange a deed of March 16, 1857, which was duly acknowledged and recorded on March 18, 1857, wherein, in consideration of one dollar, the grantors bargained, sold, donated, granted, and conveyed unto the county commissioners of the county of Orange, and their successors in office, for the use and benefit of the county, and the public use of all persons whomsoever, lawfully to use and enjoy the property sued for.
“(3) On February 5, 1876, H. D. Sells, presiding justice of Orange county, delivered to defendant railroad company a written instrument in which it is recited that the commissioners’ court of Orange county entered an order, and that in obedience to such order he executed such instrument; said order is copied in said instrument, and by the terms of such order the defendant company is granted the land sued for, which is recited to be a portion of the public landing on the river acquired by the county commissioners under deed made to them by Cordrey, and the grant is for the purpose of building and erecting thereon the necessary buildings, etc., for use of said company, and to be under their control, and for their exclusive benefit. This instrument was recorded in the deed records of Orange county, Texas, February 24, 1876.
“(4) Defendant railroad company went into possession of the land sued for about March 1, 1877, going into possession under and by virtue of the written instrument given to said company By Sells, presiding justice, acting under an order of the commissioners’ court of Orange county, Texas, and since said time defendant company, holding under such instrument, has had possession of said property, maintaining thereon a depot and warehouse, and said depot and warehouse is at present located on said land. Repairs, improvements, and additions to said depot were made by the defendant from time to time as its business made it necessary.
“(5) After entering into possession of said land under said instrument, defendant rendered for taxes depot property and wharf property, which I find to be the property in this suit, and paid the taxes thereon continuously for a long number of years as the same became due; and I find that, under such character of rendition, taxes were paid as same became due for each and every year for the years 1877 to 1016, inclusive.
“(6) I find that the defendant claimed the land in controversy from and after its entry thereon in fee simple from and after March 1, 1877, but said claim was never made known to the plaintiff.
“(7) I further find that the character of possession of the defendant under the instrument under which it held was not notice of any adverse claim on the part of the defendant, but was in accordance with the right and privileges granted it under said instrument.
“(8) I find that defendant has strictly com-' plied with all the requirements of the five years statute of limitation of the state of Texas prior to July 4, 18S7, and that defendant would be vested with title to the land in controversy under and by virtue of said five years statute of limitation if limitation would run in favor of defendant as against plaintiff for the land in controversy under the instrument by virtue of which the defendant entered on and claimed the land. I find that defendant has strictly complied with all the requirements of the ten year statute of limitation of the state of Texas prior to July 4, 1887, and that defendant would be vested with title to the land in controversy under and by virtue of said ten year statute of limitation if limitation would run in favor of defendant as against plaintiff to the land in controversy under the instrument by virtue of which the defendant entered on and claimed the land.
“Conclusions of Law: Under my construction of the instrument referred to under which the parties respectively claim the land sued for, the written instrument dated February 5, 1876, under which defendant entered on the land in controversy, conferred on defendant no greater right than that of a permissive use of the property in controversy, revocable at the will of the plaintiffs herein, and constituted defendant merely the tenant at will of the plaintiffs; and I therefore conclude that, as a matter of law, defendant is precluded from asserting as against plaintiff the defense of the five and ten years statute of limitation of the state of Texas, and that plaintiffs are entitled to a judgment for the land sued for, and judgment is rendered accordingly.
“W. R. Blackshear, Judge Presiding.”

Thus it is manifest from the trial court’s findings of fact and conclusions of law that appellant’s claim of title to the land in controversy, based upon the statute of ten years limitation, was denied solely upon the theory of the trial court that the deed or instrument from H. D. Sells, as presiding justice of Orange county, was not a conveyance or intended to be a conveyance of the land in controversy to appellant, but, on the contrary, that such instrument or deed had no other effect than to make appellant a tenant at will of Orange county, and created in appellant nothing more than a permissive use of the land therein mentioned, revocable at the will and pleasure of Orange county at any time.

If the trial court’s construction of said deed or instrument was correct, then, of course, this court would find no difficulty whatever in concluding that the trial court was correct in holding that appellant could not acquire title to the land in controversy under either of the statutes of limitation of this state; but after a careful consideration and analysis of the instrument or deed from Sells, as presiding justice, to appellant, we have reached the conclusion that the trial court was in error in concluding that the same was not intended as a conveyance of the land in controversy to appellant, and that the only effect of this instrument was to create appellant a tenant at will of Orange county, and gave to appellant only the permissive use of this land for depot purposes, so long as Orange county might be pleased to permit such use.

The deed or instrument from H. D. Sells, presiding justice of Orange county, to the Texas & New Orleans Railroad Company, appellant, dated February 6, 1876, reads as follows, to wit:

“The State of Texas, Orange County.
“Whereas the county court of said county in special session on this the 5th clay of February, A. D. 1876, made and entered of record the following order, viz.: ‘It is ordered by the court that the portion of the public landing on the Sabine river between fractional block No. 1 and fractional block No. 2, in the upper survey of the town of Orange, granted and conveyed to the county commissioners of Orange county and their successors in office by Drucilla Cordray and Wm. H. Cordray by deed of 16th March, 1857, and recorded in Book B, Records of Deeds, pages 286 and 287, viz.: [Here follows description of the land in controversy by metes and bounds,] be, and the same is hereby, donated and granted to the Texas & New Orleans Railroad Company of 1874 for the purpose of building and erecting thereon the necessary buildings, etc., for the use of said company, and to be under their control and for their exclusive benefit; provided, however, should said railroad company or their successors fail to complete and permanently operate said railroad through the town of Orange within a reasonable time, or at any time cease to so operate the same, then this grant shall become null and void, and said property, with any improvements thereon, is to revert to and vest again in the said county of Orange. And it is further ordered that the presiding justice be authorized and directed to make to said company the proper transfer for the said described property.’ Know, therefore, all men by these presents, that I, H. D. Sells, presiding justice of the county court of Orange county, in compliance with said order of tiie county court made and entered of record as aforesaid, do by these presents donate, grant, and convey unto the Texas & New Orleans Railroad -Company of 1874 said before described premises, with all the rights and privileges thereto belonging (reserving to the county of Orange the rights in said order specified), to have and to hold unto said company and for their own exclusive use and benefit. In testimony of which I hereto sign my name officially at Orange, Texas, on this 5th day of February, A. D. 1876.
“H. D. Sells,
“Pres. Justice, Orange Co., Texas.”

The certificate of acknowledgment was as follows:

“The State of Texas, Orange County.
“On this the 5th day of February, A. D. 1876, before me, R. H. Smith, clerk of the district court of said county, personally came II. D, Sells, presiding justice of the county court of Orange county, to me well known, and acknowledged to me that he signed and executed the above and foregoing transfer for the uses and purposes therein contained and expressed.
“Given under my hand and seal of office at Orange, on this day and date above written.
“[L. S.] R. H. Smith,
“Dist. Clk., O. Co.”

This instrument was filed for record February 24, 1876, and was duly recorded.

Before discussing the character and'effect of the above-mentioned instrument from the presiding justice of Orange county to the Texas & New Orleans Railroad Company, we might say that it is not contended by appellant that the same had the effect of passing the title of Orange county in the land in controversy to appellant; in other words, it is not appellant’s contention that said instrument was a title-passing one, but, on the contrary, it is conceded by appellant that said instrument, whatever may have been the intention and purpose of its execution, did not have the effect to pass the title to the land in controversy to the railroad company, for the reason that the statute in effect at the time of its execution, providing how the county’s land might be conveyed, was not complied with, and that, therefore, no title passed to the railroad company by virtue of the instrument. It seems that, prior to the adoption of our Constitution of 1876, county courts and commissioners’ courts in this state were composed of justices of the peace, and these justices transacted all business of both the county and commissioners’ court. Acts 12th Legislature, p. 87, approved August 13, 1870.

The justice of the peace who resided at the county seat was called the presiding justice, and H. D. Sells, who executed the instrument hereinbefore mentioned, was presiding justice of Orange county at the time of the execution by him of such instrument. The law of this state provided at that time the method by which a county might convey its land, which was by an order entered on the minutes of the court appointing a commissioner to, sell the land of the county at public auction. In this instance, no order of the county court of Orange county was made or entered appointing a commissioner to sell the land in controversy to appellant, but, as shown by the instrument itself, the said Sells, as presiding justice, acting under authority of an order of the county court of Orange •county, undertook to convey to appellant whatever title or interest it acquired under said instrument.

The claim of title under the statutes of limitation as interposed by appellant in this case, however, is not dependent upon the validity of the act of said presiding Justice ■of Orange county in attempting to convey to appellant the land in controversy, and we do not understand that the appellees contend ■otherwise; but the main and real contention made by appellees is that it was not intended by the execution of said instrument or order ■of the county court of Orange county to convey the land in controversy to appellant, but thát it was only intended, and that said instrument had only the effect, to create appellant the tenant at will of Orange county, and that, at the most, appellant acquired under said instrument only the permissive use of said land, to continue so long as the county might not determine otherwise, and that such purpose and intention is clearly manifest from the instrument itself; and that, therefore, appellant could not acquire title under any ■statute of limitation to the land in controversy, regardless of the length of time that appellant might remain in possession of said land, claiming and occupying the same under ■such instrument.

That a mere permissive possession of land, however long continued, will not give title by adverse possession, is a proposition ■of law so well settled in this state that no ■citation of authority is necessary in its support, and the proposition is not denied by appellant here.

The real question for determination, and which is decisive of this case, is, What did the grantor in this instrument intend to grant and convey to the railroad company at the time of its execution? We readily concede and agree with appellee that the instrument, whatever it may be termed, executed by Sells as presiding justice, must be read and construed in the light of, and as a part •of, and we might 'say limited by, the order of the county court of Orange county, which is expressly mentioned in the instrument executed by the said presiding justice. It will be observed that the expressions “grant” and “donate” are used in the order of the county court, and that the words “donate,” “grant,” and “convey” are used in the instrument executed by the presiding justice upon the authority of said order.

As clearly showing the position and contention of appellee that it was not intended by the instrument in question to convey to the railroad company any portion of the land in controversy, but only to grant to it the use of the same for depot purposes, and that such use was to continue only so long ■as the county might see proper to permit, we ■quote from remarks of appellee’s counsel, as follows:

“Taking into consideration the history of the times at the time this instrument was had and obtained, and as established by the record herein: The town of Orange was without a railroad: the T. & N. O. was building in its direction. No doubt the county of Orange wanted a railroad, and it and her people were ready and willing to make any sacrifice for the obtention of one. The land in this suit, by reason of its close proximity to the then business portion of Orange, its location upon a navigable stream; was particularly attractive to the owners and managers of the railroad, as a proper site upon which to erect its depot and other necessary buildings. The justices of the peace of the county of Orange, who were then vested with the control and management of the property as trustees for the county, were as willing, no doubt, to offer the site, as the railroad company was to receive it. Presumed to know the law and their duties controlling their action, it was apparent that they could not sell it, except by an order of court appointing a commissioner to sell, and then only to the highest bidder. Confronted with this situation, what should be determined was the intention in the use of the words ‘donate’ and ‘grant’ in the order. Standing alone, they might be construed to mean what they usually import, and, law or no law to the contrary, the justices were determined to give the property to the railroad company, but immediately followed by the further words, ‘for the purpose of erecting thereon the necessary buildings, etc., for the use of said company,’ and with the further words, ‘to be under their exclusive control and management,’ clearly indicates that their intention was that the railroad company had their permission to enter upon the property and erect just such necessary buildings as they might desire, and the words ‘donate’ and ‘grant’ were used in that sense. If this was not true, then the words limiting the control and management of the buildings, etc., to the railroad company exclusive of all others, would be idle and foolish; likewise the specifying of the purpose of the donation to be for the erection thereon of the necessary buildings, etc., for the use of said company.”

It is earnestly contended by counsel for appellee, by way of argument, that since it is expressed in the instrument in question that the railroad company was to have the land “for the purpose of erecting thereon the necessary buildings, etc., for the use of said company, and to be under their exclusive control and management,” such language of itself clearly indicates that the intention of the grantor was that the railroad company had permission to enter upon said property and erect such necessary buildings as it might desire, and that the words “donate” and “grant,” found in the order of the court, and the words “donate,” “grant,” and “convey,” used in the instrument executed by the presiding justice, should be and must be' construed to mean that the land was not intended to be conveyed to the railroad company in any sense, but that the railroad company was merely donated and granted the use of the same for the purpose only of erecting its necessary buildings for depot purposes, and, when erected, to use the same exclusively for such purposes, and exclusive of the use of the same by all others for any purpose, so long only as Orange county might be willing to permit such use.

We cannot agree with this contention of appellee’s counsel, for we do not construe the language used in the instrument and just referred to as constituting any limitation on the right of the railroad company to said land. It is true that it is manifest from the whole instrument that it was intended that the railroad company was to have the land for depot purposes, etc., and, as said by counsel for appellee, the purpose in executing such instrument was to induce the railroad company to build its railroad through the town of Orange, and to locate its depot there; and it was intended by all parties, beyond question, that the railroad company was acquiring the land for the purpose of building thereon its depot, and necessary buildings in connection therewith, in the town of Orange; and that .the railroad company’s agreement and promise to build its line into the town of Orange and locate its depot there was the real consideration that moved Orange county to grant to it the land in controversy ; and the mere fact that it is clearly expressed in the order of the court of Orange county, and in the conveyance from the presiding justice, that the land thereby granted was to be used for depot purposes, and to be under the exclusive control and management of the railroad company, should not, in our opinion, be construed as any limitation whatever upon the interest in the land that passed by said instrument, or was intended to pass by said instrument, to the railroad company. The only words of limitation found in the instrument executed by the presiding justice are in the order of the county court itself, as we construe the same, as follows:

• “Provided, however, should said railroad company, or their successors, fail to complete and permanently operate said railroad through the town of Orange within a reasonable time, or at any time cease to so operate the same, then this said grant shall become null and void, and said property, with any improvements thereof, is to revert to, and vest again in, the said county of Orange.”

It is shown beyond all question that the railroad company completed its line through the town of Orange within a reasonable time after the instrument in question was executed, and that said railroad has been continuously operated through the town of Orange ever since, and there was no contention on the tidal that the proviso above referred to had not been complied with in every respect. We understand it to be the rule in this state, as announced by innumerable decisions of our appellate courts, that a deed should be construed according to its apparent intent, as gathered from the entire instrument, in the absence of ambiguity on the face of the instrument; and taking into consideration the entire instrument executed by H. D. Sells as presiding justice, covering the land in controversy in this case, and under which appellant has claimed this land for more than 40 years, and construing the same in connection with the order of the county court authorizing its execution, we have arrived at the conclusion that the intention on the part of the grantors was to grant and convey to the railroad company the land therein described for depot and station purposes in the town of Orange, in consideration of the railroad’s promise to construct its line through said town and establish its depot there, and to continue the operation, etc., of such railroad; and. since it is undisputed that the railroad company did, in accordance with its promise, construct its line through said town of Orange, and did comply in every respect with its contract with Orange county, and has continued to so comply, it is unnecessary for us to determine or discuss the effect of the recitation in the conveyance providing that a “failure on the part of the railroad to complete and permanently operate said railroad through the town of Orange within a reasonable time, or at any time cease to operate the same, then this said grant shall become null and void, and said property, with any improvements thereon, is to revert to, and vest again in, the county 'of Orange.”

But if we should be mistaken in our conclusion that it is apparent from the instrument in question, construed as a whole, that it was the intention to convey to the railroad company the land in question, and that there is no ambiguity on the face of the instrument that would permit of a different construction, still, if it should be conceded that the language employed in this instrument makes it ambiguous and uncertain as to the intention of the grantor in its execution, then we think that, applying the rule of construction of deeds, as we understand it to prevail in this state, it must still be held that it was the intention of the grantor to convey the land in controversy to appellant, the railroad company. We understand it to be the rale in this state that in case of ambiguity in a deed, or where it admits of two constructions, it will be construed most strongly against the grantor or most favorably to the grantee, and in this case we do-not understand that this rule is without application. Therefore, if we should concede that the instrument in question is susceptible of the construction contended for by appellee, to the effect that it was intended thereby to grant to the railroad company only a permissive use of the land in controversy, so long as the grantor might be pleased to do so, yet if the instrument is also susceptible of the construction, under all the facts and circumstances under which the same was executed, that it was the intention of the grantor to convey the land itself to the appellant for railroad purposes, then it must be heldj in keeping with the rule just announced, that the deed should be construed most strongly in favor of the appellant, and it should be held that it was the intention of the grantor to convey the land itself to appellant for depot and station purposes, and not merely to grant to appellant a permissive "use of the same.

There is another rule of construction that might be applicable here if it were necessary to invoke its application, which is that where the parties to an instrument in writing have by their acts and conduct placed a construction upon the same, showing the intention of the parties executing the same, then such acts and conduct should be given 'strong weight by the courts in arriving at the intention of the parties in the execution of the instrument, and, in the absence of clear language in such instrument indicating an intention to the contrary of the parties as expressed by their acts and conduct, the courts should adopt the construction of such instrument as placed upon it by the parties thereto. Now, in this connection, we will say that ever since the execution of the instrument in question, on the 5th day of February, 1876, and down to the date of trial of this case in the lower court, the appellant here), the railroad company, has asserted claim of title to the land in controversy, and has continuously used and occupied the same during all that period of time, and that such occupancy and use has been exclusive of all others; and, indeed, it was found by the trial court, expressly, as we have shown, in its findings of fact above set out, that the appellant has, ever since its going into possession of the land in controversy, continuously used, occupied, claimed, and enjoyed the same under the instrument in question; and, indeed, the trial court found that appellant unquestionably would have title under the statute of limitation of ten years, by reason of its having complied with every requirement of said statute of limitation, were it not prevented from acquiring title under said statute by reason of the fact that it, during all of said time, was claiming the land under the instrument in question, which the trial court construed to give appellant only the permissive use of this land, and to constitute appellant merely the> tenant at will of Orange county.

It is also undisputed in the record, and expressly found by the trial court, as we have shown above, that appellant has regularly for all these 40 years paid all the taxes upon this land as the same accrued, and the portion of these taxes assessed by and due to Orange county itself were regularly paid by appellant to that county, and we hold that this fact of itself tends strongly to show that Orange county, for all these years, had construed this instrument as passing, or intending to pass, title to the land in controversy to the railroad company.

Among other authorities cited by appellees in support of their contention that the instrument in question had the effect only to grant to appellant a permissive use of the land in controversy, and to constitute it the tenant at will of Orange county, and that, therefore, appellant could never acquire title under either of the statutes of limitation of this state, are the cases of Everett v. Ry. Co., 67 Tex. 430, 3 S. W. 678, and Llano County v. Knowles, 20 S. W. 549. Upon careful reading of the first case, we find that the issue of limitation was not even interposed by any pleading, nor was any discussion of that question made by the court in that case. As to the second case, we find that, while there was a plea of the statute of limitation of five years, there was no proof whatever offered in support of it, and no discussion whatever by the court on that point.

It follows from what we have said above that this court is of the opinion that the instrument in question in this case was of such character as afforded to appellant a basis for its plea of limitation of ten years; and since the facts as found by the trial court and as shown by the record in this case show that: the appellant had been in adverse possession of the land in controversy for more than ten years prior to July 4, 1887, it must be held that the trial court was in error in rendering judgment in favor of appellees for the land in controversy, and in not rendering judgment in favor of appellant therefore on its plea of limitation of tebi years. Our conclusion upon this point renders it unnecessary to discuss any further assignments contained in appellant’s brief, and it follows that appellant’s second and third assignment of error should be sustained, and that the judgment of the trial court in this case should be reversed, and here rendered in favor of appellant for the land in controversy on its plea of title thereto under the statute of ten years limitation, and it will be accordingly so ordered.

Reversed and rendered.
      <@=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    WESTERN NAT. BANK OF HEREFORD v. WALKER.
    (No. 1260.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 13, 1918.)
    1. Partnership <@=>142(2) — Mortgage oe Partnership Property to Secure Partner’s Debt — Knowledge oe Creditor.
    A partner cannot mortgage partnership property to secure his individual indebtedness, and such mortgage cannot be enforced as against the rights of the other partner, though the creditor did not know, that such property belonged to the partnership, unless such partner is estop-ped to set up his rights.
    2. Partnership <@=>218(3) — Mortgage oe Partnership Property — Waiver.
    Where a bank has accepted a mortgage of partnership property to secure a partner’s individual debt, a statement by his copartner to the bank that his failure to promptly notify it of his rights in the property deprived him of his right of action, did not require submission of the issue of waiver, in the absence of evidence of consideration or estoppel.
    3. Corporations <@=>123(11) — Pledge oe Stock — Ownership—Notice.
    Where bank had direct information from a third person that he claims an interest in shares of corporate stock taken by the bank as collateral, the bank is bound by such notice, and takes the risk of third person’s successful assertion of his claim.
    Appeal from District Court, Deaf Smith County; Reese Tatum, Judge.
    Action by the Western National Bank of Hereford against J. I. Walker. Judgment for defendant, and plaintiff appeals.
    Affirmed in part and reversed in part.
    Wm. M. Knight and Jno. P. Slaton, both of Hereford, for appellant.
    Gilliland & Estes and Russell & Dameron, all of Hereford, for appellee.
   BOYCE, J.

The Western National Bank of Hereford brought this suit on a note executed by J. I. Walker, and to foreclose a lien given by him to secure its payment on certain live stock and shares of the capital stock in the J. I. Walker Hardware Company, a corporation. Appellee, Perkins, was made a party to the suit on allegation that he was asserting some claim to the property on which the lien was sought to he foreclosed, and the questions on this appeal arise on the issue® between the bank and Perkins, presented by the claim of ownership of such property asserted by Perkins. in his answer. The ease was submitted to the jury on special issues, and it was found that the live stock described in the judgment as the Collins & Warren horses and mules were at the time of their mortgage to the bank the partnership property of J. I. Walker and J. J. Perkins, and that the 74 shares of corporate stock in the Walker Hardware Company- were the property of J. J. Perkins. The court on this verdict entered judgment for Perkins for the recovery of said live stock and corporate shares. Such further statement as is necessary will be made in connection with the discussion of the particular assignments. Appellee has filed no brief, and we have accepted the statements made by appellant under these assignments, in accordance with Courts of Civil Appeals Rules Nos. 40 and 41 (142 S. W. xiv).

The first two assignments complain of the action of the court in refusing to submit an issue as to whether the appellee, Perkins, was estopped to deny that Walker was the owner of the live stock mortgaged by him to the bank. Estoppel was duly pleaded, and it appears from the evidence that Perkins knowingly permitted his partner, Walker, to handle this stock in such manner that it might appear to be the individual property of Walker; in fact, it seems that Perkins insisted that his name be not used in connection with the partnership business, and that the bank took its mortgage without any knowledge that the live stock was partnership property. These facts, if true, raise an issue of es-toppel.

It is correct, as a general proposition, to say that a partner cannot mortgage the partnership property to secure his individual indebtedness, and such mortgage cannot be enforced as against the rights of the other partner, though the creditor did not know that such property belonged to the partnership. Goode v. McCartney, 10 Tex. 193; Rogers v. Batchelor, 12 Pet. 221, 9 L. Ed. 1063. This general proposition must be limited, however, so as not to control in those cases where the principles of estoppel would be appropriately applicable. 30 Cyc. 501, 502; Locke v. Lewis, 124 Mass. 1, 26 Am. Rep. 631, 10 R. C. L. p. 777. A very careful and elaborate discussion of this question is to be found in the opinion of the Supreme Court of Massachusetts, in the case of Locke v. Lewis, supra, and the conclusion reached, in which we concur, that where one partner allows the other to deal with partnership property in such manner that it is apparently his own, and innocent third persons are thus induced to' deal with reference thereto od this assumption, the principles of estoppel ought to apply. The instructions requested by appellant, referred to in these assignments, we believe are erroneous, in that they ignore any reference to any conduct or acts of Perkins as being necessary in the consideration of the question of estoppel, making it depend wholly on the actions and conduct of the defendant, Walker. In connection with the conclusions announced by the court in the case of Locke v. Lewis, supra, this statement is made:

“We would not be understood to affirm that the mere belief of the separate creditor that the property which he received does not belong to the partnership will of itself be .sufficient to entitle him to hold it, if there has been nothing in the acts or conduct of the other partners to induce the belief that the partners with whom he dealt were the sole owners.”

The charge as requested, though erroneous on account of ignoring this phase of the question of estoppel, was sufficient to require the submission of the issue on correct instructions, since it was raised by the pleading and evidence and nowhere presented in the charge.

By the third and fourth assignments complaint is made of the refusal of the court to submit to the jury an issue requiring it to find whether defendant, Perkins, had waived his right to assert a claim of ownership to the live stock and corporate stock in question. The evidence relied on to support appellant’s contention that the issue of waiver was in the case consists of statements made by Perkins in a letter written to the bank long after the execution of the mortgages. In this letter Perkins expressly refused to give a formal waiver of any claims he might have, but added:

“I would not expect to assert any claim to any of this stuff which Walker has put up with you by mortgage or otherwise, but I feel that my failure to promptly notify you when I first found out that Walker had mortgaged the live stock which I had paid for would be an effectual bar against my recovering this property, but I am not seeking, directly or indirectly, to take any advantage whatever of your bank.”

The particular ietter in which this statement occurs appears to refer only to the live stock. It is not shown that any consideration was given for this alleged waiver, if it could he said to be one, or that it was so acted upon by the bank as that any principle of estoppel would apply. In the absence of such facts, no issue of waiver, based on this statement, arises. 40 Cyc. 263.

The 74 shares .of corporate stock in the J. I. Walker Hardware Company, put up by Walker to secure the payment of this note, and in controversy here, were issued in the name of Walker and were in his possession. Before this stock was taken by the bank as security to Walker’s indebtedness, the president of the bank had been informed by Perkins in person that the stock belonged to him. Walker, at the time he put the stock up, assured the president of the bank that he owned the stock, and undertook, by reference to various circumstances, to prove that Perkins’ claim, to the stock was unfounded.

Under these circumstances, the appellant, by the fifth assignment, complains of the refusal of the court to charge the jury as follows:

“Although you may believe from the evidence that the plaintiff knew that the defendant, Perkins, claimed to own the seventy-four shares of stock in the Walker Hardware Company at the time it acquired it, yet if you further believe that the plaintiff made such investigations as a man of ordinary prudence would make in an effort to learn the truth of Perkins’ claim, and that from such investigations it did not appear that Perkins was. the real owner of such corporate stock! then you should answer special issue No. 2 in the negative” (this issue being that submitting the question of Perkins’ ownership of said stock).

Under the facts stated, we do not see bow there can be any question of “reasonable inquiry.” Such inquiry, in cases of this kind, can only be to develop whether a certain person, suggested by facts in possession of the party proposing to acquire the property as having some claim against it, is really a claimant thereof. When the inquiry does develop that the claim exists, certainly the proposed purchaser could not make himself the judge and try the -validity of the claim, and bind the claimant by his decision, however fairly made. Knowing of the claim asserted, he must take the risk of its successful assertion. There was no necessity for inquiry in this case; the bank had direct information of the claim from the best source of information — the claimant himself — and is bound by such notice. Pomeroy’s Equity Jurisprudence (3d Ed.) §§ 594, 599, 607.

The judgment, we think, was erroneous in failing to foreclose the mortgage against whatever interest Walker, on final settlement of the partnership business, might be determined to have in the property mortgaged to appellant. Lee v. Wilkins, 65 Tex. 299; Thompson v. Tinnin, 25 Tex. Supp. 56; Rogers v. Nichols, 20 Tex. 719. We take it that the sale of this interest would be controlled by the provisions of R. S. art. 3743. We make this statement in view of the fact that this issue is raised by proper assignment and in view of another trial in which the same question may arise.

The other assignments are controlled by what we have already said and are overruled without particular mention.

The judgment will be affirmed except in so far as it affects the rights of the parties to the live stock described in the judgment as the Collins & Warren horses and mules, and will be reversed in such respect, and remanded for a new trial of such issues.

Reversed in part.
      (gs^For other cases see same topic an<3 KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    JAMES v. BLAKE.
    (No. 1405.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 13, 1918.)
    1. Landlord and Tenant <&wkey;331(8) — Crop-Sharing Contract — Action—Issues.
    In landlord’s action to restrain tenant from cutting maize stalks after heading of feed, submission of issue as to whether landlord was to have stalks in consideration of furnishing tenant with tools and pasturage held, unauthorized under the evidence.
    2. Landlord Xnd Tenant <&wkey;321 — Crop-Sharing Contract — Validity.
    Rental contract, whereby landlord was to furnish land and pasturage in return for one-third of all feed and one-fourth of all cotton grown on land, and in addition the maize stalks, after heading of feed, was not illegal, or in violation of statute.
    Appeal from Motley County Court; A. B. Crane, Judge.
    Action by Jack James against J. S. Blake. Judgment for defendant, and plaintiff appeals.
    Reversed, and remanded.
    G. E. Hamilton and C. B. Whitten, both of Matador, for appellant.
    Bouldin & Surtes, of Matador, for appellee.
   HUFF, C. J.

The appellant, James, instituted this action against Blake in the court below, alleging: That he, as owner of cer- , tain land, rented 65 acres thereof to the ap-pellee, Blake, for the season of 1917. Fifty acres was to be planted in feed and 15 acres in cotton. “That for the use of the land the plaintiff was to receive one-third of all the feed and one-fourth of all the cotton, and that as soon as the feed was headed the defendant was to return to plaintiff the stalks and the feed, to be used by plaintiff for pasture for his cattle. That all the feed had been gathered, but that defendant disregarded his contract relative to the stalks and was cutting them.” He prayed for an injunction, which was granted, and the writ issued upon filing the required bond. The defendant answered, among other things, that he was to pay a third and fourth, as set out by plaintiff, for the use of the land, and that in the rental contract “defendant agreed to furnish all tools, work stock, and everything else necessary for the proper cultivation of said 65 acres, and also to wort and cultivate all of said crops,” and specially denied “that he agreed for plaintiff to have the stalks of said grain after the same was headed, hut, even though he did so agree, such agreement would be void and unenforceable.” He then set up the writ of injunction, restraining him, and alleged plaintiff appropriated the stalks, which were of the value of $200, by reason of which he was entitled to recover double the value thereof, and prayed for judgment for that amount.

By a supplemental petition the plaintiff denied the answer, and specially answered the cross-action; denied defendant’s allegation that he was to furnish all tools and work stock, hut alleged, on the other hand, in addition to furnishing the land, plaintiff “also agreed to and did furnish defendant with all tools and farming implements with which to work and cultivate said 65 acres of land, except one cultivator, and that plaintiff also furnished to defendant pasturage for six head of stock during the entire time defendant was cultivating the premises of plaintiff, including work stock and milk cows, all of which was part of the rental' contract between plaintiff and defendant, and the furnishing of the land and tools and pasturage by plaintiff to defendant was the consideration received by defendant from plaintiff for the rents he was to pay plaintiff, and all of said conditions and agreements went into and formed part of the rental contract made between plaintiff and defendant; that in consideration of the furnishing of said tools and grazing his said cattle and work stock by plaintiff the rdefendant entered into the contract of rental as alleged in plaintiff’s original petition, and that the only rent charged by plaintiff or collected by him of defendant for the use of said 65 acres of land was one-third of the grain and one-fourth of the cotton; that for the use of said tools and the grazing of the stock as aforesaid defendant readily agreed with plaintiff that the' stalks in the field, after heading the grain by defendant, would be the property of the plaintiff.

The appellant testified that, when he made the rental contract with appellee, it was agreed between them that appellant would furnish the land, a house in which the defendant should live, a riding turning plow, a planter, a harrow, and a go-devil, they being tools and implements with which the crop was to be cultivated, and also was to furnish pasturage for defendant’s work stock, his milk cows, and filly, which defendant did not work at all; that he did furnish the above tools and pasturage, and also furnish defendant a cow to milk a part of the time; that by the terms of the agreement plaintiff was to receive the usual rents of one-third of all grain and-feed and one-fourth of the cotton and seed raised by defendant ; and that it was specially agreed at the time that plaintiff was to have the stalks left in the field after the maize heads were gathered from them. Appellee, on the above point, testified that the contract simply provided that plaintiff was to receive as rents one-third of the grain and feed and one-fourth of the cotton raised, and no reservation was made with reference to the maize stalks in controversy. He also testified that at the time the contract was made nothing' was said about plaintiff furnishing him tools with which to work the crop, but admitted that he did use the tools of plaintiff enumerated above in preparing his land, planting and cultivating his crop, but claimed this accommodation was the result of an after agreement. Defendant testified, also, that it was a part of his rental contract that he was to get pasturage for his work horses, his filly, and his milk cow, and that he kept them in the plaintiff’s pasture during the year, and that plaintiff did furnish him a milk cow part of the time to milk, and that he also kept her in plaintiff’s pasture.

The jury found the value of the stalks to be $150, and the court, on the verdict, rendered judgment for $300. The court submitted the following issues:

“When the rental contract was made between plaintiff and defendant, was there an agreement between them that plaintiff was to furnish a part of. the farming tools and pasture for defendant’s stock, and in consideration of furnishing the same was plaintiff to have the maize stalks in question in the suit after the heads were cut off?”

The jury answered this issue “No.” The appellant asked the following issues to be presented:

First: “When plaintiff and. defendant made their rental contract, did plaintiff reserve the maize stalks in controversy to his own use, by the terms of the agreement?”
Second: “Did plaintiff, as landlord,, furnish anything to the defendant under their rental contract, more than the land?”

The court refused to submit the two issues requested, to which action of the court the plaintiff excepted, and also filed objections to the issues submitted by the court. The facts in this case did not authorize a submission on the above issue by the court; that is, in consideration of the tools and pasturage, was appellant to have the maize stalks ? By the testimony of appellant, the rental contract was that he was to have the third and fourth and the stalks after they were headed. He was to furnish the land and tools and pasturage for the work stock and milk cow of appellee. There is no testimony that the tools and pasturage were furnished as a consideration for the stalks. It was all one contract; the mutual covenants being the consideration thereof. From the manner in which the question was framed, under the evidence the jury could have returned no answer other than the one they did. The appellee admitted the rental contract required the furnishing of the pasturage for liis stock which was done, and testified that there was no agreement as to the tools, but that in fact appellant did furnish the tools with which appellee made his crop. If the court had submitted the second issue requested, the jury, under the undisputed evidence, could have returned no other answer than in the affirmative. The evidence raised the issue whether appellant was to have the stalks after they were headed. Under the uncontradicted facts in this case (that is, appellant was to furnish the pasture and the land), a contract for the stalks, after being headed, and in addition to the third and fourth, was not illegal or in violation of the statute. Doby v. Sanders, 198 S. W. 806; Green v. Prince, 201 S. W. 200. The court was in error in rendering judgment for double the value of the stalks as found by the jury, for the reason that the uncontroverted testimony shows that appellant did furnish the pasturage for the work stock and milk cows, in addition to the land to the tenant.

Appellant also calls upon this court to pass upon the constitutionality of the statute. In this case itl is unnecessary to do so, and the question will be pretermitted.

¡Reversed and remanded.
      ©=»For other 'eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    INTERTYPE CORPORATION v. SENTINEL PUB. CO.
    (No. 6095.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 13, 1918.)
    1. Evidence <&wkey;366(3) — Copies of Judicial Records — -Admissibility.
    A copy of a decree of a federal court is inadmissible in evidence, where neither the instrument itself nor the certificate of the clerk shows by what court it was rendered.
    2. Evidence <&wkey;366(3) — Copies op Judicial Records — Sufficiency op Certificate.-
    A copy of a decree of a federal court is not admissible in evidence, where the clerk’s certificate fails to show that it is a true copy of an original decree.
    3. Bills and Notes <&wkey;485 — Transfers — Pleading-.
    Under the statute, a sworn pleading is necessary to question the genuineness or sufficiency of an indorsement on a note as a transfer thereof.
    4. Mortgages <&wkey;235 — 1Transfer of Security-Admissibility of Evidence.
    A mortgage, as incident to the debt, passes to the owner of notes secured by it upon their transfer.
    5. Assignments <&wkey;137 — Actions—Proof of Assignment.
    In suit on an account alleged to have been assigned, the assignment is not proved by showing decree merely directing the assignment, and not itself vesting title to the assets assigned, since it cannot be assumed that the decree was complied with.
    6. Account, Action on &wkey;>12 — Defenses — Ownership of Debt.
    The rule that the justness of the account cannot be impeached unless a counter affidavit is filed does not mean that ownership of the debt is conceded by failing to file an affidavit.
    7.Account, Action on <&wkey;llRequisites of Affidavit.
    An account is properly verified by affidavit of plaintiff, assignee thereof, and need not be verified by affidavit of plaintiff’s assignor.
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Action by the Intertypei Corporation against the Sentinel Publishing Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    H. W. Williams, of Brownsville, for appellant.
   MOURSUND, J.

We adopt appellant's statement of the case:

“In this case the appellant sued the appellee in the district court of Cameron county, Tex., upon a series of 29 promissory notes in the principal sum of $50 each, executed by appellee in favor of the International Typesetting Machine Company, representing balance due on the purchase price of a typesetting machine; and also to foreclose a chattel mortgage lien given by appellee in favor of the International Typesetting Machine Company to secure the payment of said notes, as well as to secure the payment of the purchase price of any parts for said machine wh'ich might be purchased in the future. Appellant also sued appellee upon an open account in the sum of $111.71 covering the purchase price of certain goods, wares, and merchandise bought by appellee from the International Typesetting Machine Company on open account, and plaintiff attached to its petition a verified, itemized statement of said open account.
“In the appellant’s first amended original petition (on which it went to trial), it alleged that the plaintiff is the successor to and of the International Typesetting Machine Company, and has succeeded to all of its assets of every kind or nature whatsoever and to all of its legal and equitable rights, title, and claims of whatsoever kind or nature, and especially to the possession, right, title, and interest, both legal and equitable, to the notes, debt, and lien, and all of the rights incident thereto, herein sued upon, by way of purchase for a good and valuable consideration.
“Appellant prayed for judgment against ap-pellee for its debt evidenced by said notes and said open account, and for foreclosure of its chattel mortgage lien.
“Appellee answered by way of general demurrer and general denial.

Judgment was rendered, in favor of appellee.

The plaintiff offered in evidence an instrument claimed to be a copy of a decree of the District Court of the United States for the Southern District of New York, rendered in equity cause No. E-12277, Guaranty Trust Company of New York against International Typesetting Machine Company, on February 2, 1916, approving the report of Henry B. Classon, the special master, and the sale made by him of all property and assets of said International Typesetting Machine Company, and directing the execution and delivery of deeds or instruments of transfer of said property and assets to the Intertype Corporation, upon compliance with the terms of the bid. The decree, in its description of the assets to be conveyed, mentions “merchandise accounts” and “notes.” It approved the form of deed filed with the court and directed that the special master, the International Typesetting Machine Company, and Erskine Hewitt, as receiver, and Guaranty Trust Company of New York, as trustee, should all execute and deliver a deed or deeds substantially of the tenor of the draft deed. It further provided for the delivery of the property and assets, but reserved jurisdiction, for the purpose of enforcing all the terms and conditions of the sale, to retake and resell the property should the grantee fail or refuse to comply with the provisions of the- decree of foreclosure and sale and of the decree, as well as the terms of the deed or deeds to be executed. The decree also reserved for further consideration all questions not therein finally determined.

The instrument was objected to on the ground thart the certificate thereto was insufficient to authenticate the same as a true copy of any decree of the United States District Court of the Southern District ol New York. The instrument is copied in the bill of exceptions, with the exception of the style and number of the case. It fails to show on its face in what court it was rendered. It is signed Chas. M. Hough, United States District Judge. The certificate of the clerk is as follows: “A true copy. Abe Gilchrist, Jr., Clerk.” And the seal of the District Court of the United States, Southern District of New York, is impressed thereon. A copy of a decree of a federal court is admissible when certified to alone by the clerk of the court under the seal of that court. Chamberlayne on Ev. § 340©. Therefore, if the certificate of the clerk is sufficient, the instrument should have been admitted. Unless the instrument shows in what court the decree, of which it purports to be a copy, was rendered, the certificate should show such fact Chamberlayne on Ev. § 3403. We are unable to find either from the instrument or certificate in what court the decree was rendered, of which such instrument purports to be a copy. The certificate is subject to the further objection that it fails to show that the instrument is a true copy of an original decree. In view of the objections pointed out, the court did not err in excluding the instrument.

There is no merit in the other objections urged against said instrument.

The plaintiff offered in evidence one of the series of notes sued on, which was indorsed: “International Typesetting Machine Company, Jos. C. Bidder, Treasurer.” It was objected to on the ground that there was no evidence that Bidder was treasurer of said company, or tlrat he had any authority ■to indorse the note; also, that it did not appear teat Bidder’s signature was genuine, and that the indorsement, if genuine, wholly fails to show that tee note was ever transu ferred or conveyed to the Intertype Corporation. These objections are without merit. The genuineness or sufficiency of an indorsement as a transfer of the note could not be questioned under our statute except by a sworn pleading. Schauer v. Beitel, 92 Tex. 601, 50 S. W. 931; Mayfield Grocer Co. v. Price, 43 Tex. Civ. App. 391, 95 S. W. 31; Forster v. Railway, 176 S. W. 788; First Nat. Bank v. Smith, 183 S. W. 862; Bloch v. Bank, 190 S. W. 541.

Of course, the mortgage, being an incident to tee debt, passed to the owner of the notes, and was admissible in evidence. Solinsky v. Bank, 82 Tex. 244, 17 S. W. 1050.

The itemized account, described in and made a part of the petition, was verified by the affidavit of Chas. D. Palmer, president of the Intertype Corporation. No assignment of this account was undertaken to be shown except by the instrument purporting to be a copy of a decree, which was described in considering the first assignment. There being no proof of an assignment of the account, it was properly excluded. Even, had a properly certified copy of a judgment of the tenor of the instrument above referred to been produced, it would not, standing alone, have shown an assignment of the account. The transfer, if one was ever executed pursuant to said decree, conveying tee assets, must be produced and its execution proven, for tee decree did not purport to vest title to tee assets in the Intertype Corporation. Standifer v. Hardware Co., 94 S. W. 144. It directed and required, as is the rule in equity cases, that the title be transferred by certain parties to the srfit, on certain conditions being fulfilled. It cannot be assumed that the conditions were complied with and tee deed made.

While it is true that tee justness of the account cannot Be impeached unless a counter affidavit is filed, this does not mean teat ownership of tee debt is conceded by failing to file an affidavit. The objection that tee account is not verified by tee affidavit of an officer or agent of the International Typesetting Machine Company is without merit. It was verified by an officer of plaintiff company, as required by statute. Carpenter v. Historical Pub. Co., 24 S. W. 685; Moore v. Powers, 16 Tex. Civ. App. 436, 41 S. W. 707.

The first and fourth assignments are overruled. The second and third sustained.

The judgment is reversed, and the cause remanded.
      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes