author: KING, J.

text:
    HOWELL v. ELLIS et ux.
    (No. 315.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 19, 1918.
    Rehearing Denied March 20, 1918.)
    1. Boundaries @=j6 — Surveys — Reversing Courses.
    The only reason for reversing calls in field notes is to better follow the surveyor’s footsteps, and. mere running of lines according to course and distance does not locate the survey- or’s footsteps in absence of any marked lines or established- corners, so as to justify application of rule.
    2. Boundaries <©=54(6) — Surveys—Presumption ott Regularity.
    The presumption that a surveyor did not cross a navigable stream in violation of law is one of fact only. •
    3. Boundaries ©=>6 — Surveys — Reversing Courses.
    The presumption that a surveyor did not cross a navigable stream in violation of law will not justify reversing courses, where evidence shows that the river by changing its course had crossed the lines, and where'by extending the line the shape of the tract as appeared on the official maps and as described in the original field notes can be practically restored.
    4. Public Lands ©^>175(7) — Junior and Senior Patents — Burden or Proof.
    In trespass to try title, where evidence suggests a conflict between two surveys, the burden is upon the party claiming under a junior patent to show that his land did not conflict with that held by the other party under a senior grant; but it is not incumbent upon one ■ holding under a junior grant well defined and located on the ground -to locate surrounding grants or uncertain description with certainty before he can recover.
    5. Boundaries ©^>11 — Contiguous Tracts— Judicial Authority to Change Field Notes.
    Where two contiguous tracts are bounded by field notes radically different as to courses and distance, the trial court has no authority to change field notes of the older survey so as to include the younger when no evidence of the footsteps of the original survey could be found; it being the duty of the court in fixing the bounds of a survey to follow the footsteps of the surveyor;
    6. Boundaries ©=»35(1) — Evidence—Survey- or’s Intention.
    Where footsteps of the surveyor are not found, it is the court’s duty to ascertain the surveyor’s intention by his field notes and circumstances and conditions surrounding the survey.
    Appeal from District Court, Jasper County; W. R. Blackshear, Judge.
    . Suit by H. 0. Howell against R. B. Ellis and wife. Judgment for defendants and plaintiff appeals.
    Reversed, and judgment rendered for plaintiff.
    Smith & Lanier, of Jasper, for appellant. C. C. Ingram and A. S. McKee, both of Jasper, for appellees. ' -
   KING, J.

Appellant, H. O. Howell, filed suit against ⅞. B. -Ellis and wife in the nature of trespass' to try title, the description in the petition being 84 acres of land situated in the county of Jasper and state of Texas, patented to plaintiff by the state of Texas by patent No. 424, Volume 49, dated the 17th day of July, A. D. 1915, said tract of land being known as S. F. 11355, about ten miles west of- the county seat and bounded as follows: Beginning at the southeast corner of the William Williams labor on the west bank of Angelina river; thence down said river with its meanders S. 185 varas, S. 10° W. 180 varas, S. 30° W. 50 varas, west 202 varas, S. 75° W. 200 varas, S, 65° W. 80 va-ras, S. 55° W. 200 varas, N. 20° W. 75 varas, N. 20 varas, N. 25° E. 300 varas, N. 22° W. 130 varas, N. 65° W. 140 varas, N. 70° W. 130 varas, N. 5° E. 146 varas, N. 20° E. 120 va-ras, to a stake in the S. line of William Williams labor, from which a willow bears S. 50° E. 8 varas; thence east with the said line, 795 varas, to the place of beginning.

Defendants answered by plea of not guilty, and the following additional plea:

“And for further plea in this behalf, these defendants say that plaintiff ought not to. have and maintain his aforesaid action against them, because they say that claiming to be the true and lawful owners of the tract of land described as follows; Beginning at the southeast' corner of Penelope Blount labor on the west bank of Angelina river, a stake from which a pen oak marked ‘P. B.’ bears south 40 deg. east 2.5 varas, and another, same mark, -bears north 65 deg. west 5.5 varas; thence down said river with its meanders 30 deg. east 75 varas, north 7 deg. east 200 varas, south 28 deg. east 150 varas, south 375 varas, second corner, a stake, from which a sweet gum marked ‘W.’ bears south 72 deg. west 3.2 varas, and an ash marked ‘W. W.’ bears north 28 deg. east 3.4 varas; thence west at 2,023 varas cane and good land, a stake, from which a sweet gum marked ‘W. W.’ bears north 75 deg. west 6.5 varas, and another, same mark, bears north 9 deg. west 10.5 varas; thence north at 501 varas intersects Mrs. Blount’s boundary at a stake from which a cypress marked ‘W.-W.’ bears south 40 deg. east 4.5 varas, and another, same mark, bears north 2 varas; thence east at 1723 varas to the place of beginning.”

Defendants also interposed the pleas of three, five, and ten year statutes of limitation., Upon trial before the court without a jury judgment was rendered against plaintiff that he take nothing by his suit, and that defendants recover their costs against him. From this judgment this appeal has been perfected by the plaintiff.

The real and only issue in the case, as presented in the briefs of the respective parties, is one of boundary; the defendants claiming that the entire 84 acres of the Howell tract is included within the William Williams labor.

The court, in his findings of fact, found that there are now no original corners of the William Williams labor, or the Penelope Blount labor, which lies immediately north of the Williams labor, or of the William Williams one-third league, which lies immediately north of the Penelope Blount on the ground, and that the meanders of the Angelina river, which forms the east boundaries of said surveys, as called for in their field notes, do not fit the calls, but there is a marked line running east and west, which is supposed to be the south line of the William Williams one-third league, and the north-line of the Penelope Blount labor, and another marked line running east and west, which is supposed to be the south line of the William Williams labor and thé north line of the N. Reeindez 640-acre survey; that the Penelope Blount labor is located on the ground as claimed by the appellees, and that the south line of the William Williams labor, which joins the Blount labor on the south, runs west according to the calls in its field notes, will strike the bend in the Angelina river at a point where the northwest corner of the Howell tract is located, and would cross said river twice in reaching the southwest corner of the Williams labor; that the state of Texas issued a patent to appellant on the 17th day of July, A. D. 1915, to the lands set out in his petition; that the corners to said Howell tract are up, and that the northeast corner of said tract is located on the river at a point where the field notes of the William Williams labor call to leave the river and go west 2,023 varas, and the northwest corner of said Howell tract is located on the east side of the bend of the Angelina river at a point where the south line of the William Williams would cross the bend of the river; that the field notes as called for in the patent to the Howell tract fit the meanders of the river, and that the land is located where plaintiff claims it to be; that the bend of the river at the northwest corner of the Howell tract of land is characterized by a high bluff bank on the north and'a sand bar on the south, and that the nature of the soil is erosive, and that the river is constantly eating its way northward into the William Williams survey.

His conclusions of law, based upon the foregoing facts, are to the effect that in order to properly lay out the Williams labor of land, it is necessary to reverse the calls of the field notes of said survey, and begin at the northeast corner of same; thence east at 1,723 varas to the northwest corner of same; thence south 500 varas to the southwest corner of same; thence east at 900 varas strike the Angelina river; thence up the river with its meanders to the place of beginning; and hence that the 84 acres of land patented to appellant is embraced within the field notes of the patent of William Williams labor, and that, therefore, he enters judgment for the defendants.

We recognize the principle of law that permits reversing the calls of a survey when the survey can be more definitely and satisfactorily located by so doing than by following the calls in the order given in the field notes, but in this case, taking it for granted that the calls from the beginning point of the Williams northeast corner, which is the corner as accepted as the southeast corner of the Penelope Blount, that the calls do not fit the meanders of the river, and cannot, therefore, be satisfactorily run. The court reached no better result by reversing the calls and running west at 1,723 varas called for as the length of the north line of the William Williams labor; thence south 500 varas the length of the west line as called for in the Williams labor;, thence east 900 varas to the Angelina river; thence up the river around the bend, including the Howell tract, to the place of beginning, because the original field notes of the William Williams call for a line 2,023 varas running east and west as the south line. The north line, according to the original field notes, also runs east and west. The only reason for reversing the calls in field notes is to better follow the footsteps of the surveyor. We have examined the entire testimony in this case, and have been unable to find a single corner or mark upon any line that could be identified with any reasonable certainty as the footsteps of the surveyor, who made the original survey of the William Williams in 1838. The mere running of lines according to course and distance, as given by the surveyor, does not locate his footsteps in' the absence of any marked lines or corners that he established.

The Reeindez survey, which is south of the William Williams labor, calls for its east line to intersect the William Williams south line at 1,350 varas from the Williams southwest corner, the Angelina river forming the east line of the Reeindez, but it is found that from the Angelina river, where it reaches the William Williams labor, as indicated by the attached map, is but 900 varas from what is supposed to be the southwest corner of the Williams. Appellee insists upon the lines as found by the court, and the court was evidently moved by their contentions that to extend the south line of the William Williams from what the surveyors term the southwest corner of same, which is 500 varas south of the Penelope Blount south line, east to the Angelina river for the southeast corner of the Williams, or vice versa, would cross the Angelina river twice, and that the presumption is that the surveyor did not cross a navigable stream, as this is admitted to be, in violation of law inhibiting him from so doing, and that it becomes necessary, in order to respect this presumption, to reverse the calls as he has done, and run the distance of the north line, as called for, and the west line, and then 900 varas east to the river and stop, and from that point to the place of beginning, up the meanders or the river. At best, the presumption is one of fact only, and in view of the fact that the overwhelming preponderance of the evidence shows that the river has been persistently eating its way northward into the William Williams tract, and that there is a bluff on the north side of the river with soil erosion, and that in the bend of the river south is a sand bar with growth of small timber, and the further findings of the court that these are the facts, we feel justified in holding that if the surveyor actually ran the south line of the William Williams, as stated in his original field notes, that he did not cross the river in violation of the statutes, but that since that time the river has crossed the line in its irresistible journey northward. By extending this line, which now crosses the river twice at the bend, we get practically the shape as the William Williams appears on the official maps introduced in evidence, and as is described in the original field notes. We get the lines practically the same as called for in the original field notes, but to accept the construction as placed by the court we have a very irregular and ill-shaped tract of land, that does not correspond in actual contour to the tract described by the original surveyor in his field notes, and we have a line arbitrarily located, according to neither natural nor artificial objects, or course and distance called for in the original field notes.

Appellees insist that the burden was upon appellant, claiming under a junior patent, to show that his land did not conflict with the lands of appellees, holding under a senior grant.. This is true where the evidence adduced upon the trial suggests a conflict between two surveys, but we do not think it is incumbent upon one holding under a junior grant that is well defined and located on the ground to be compelled to locate surrounding grants of uncertain description, with certainty, before he can recover. Where two different tracts of land, though contiguous to each other, are bounded by field notes radically different as to course and distance, the trial court has no authority to change the field notes of the older survey so as to include the younger, when no evidence of the footsteps of the original surveyor could be found. It being the duty of the court, in fixing the bounds of a survey, to follow the footsteps of the surveyor, and the court not having followed the footsteps of the surveyor, was not authorized to radically change the lines as to course and distance as called for in the original field notes.

It is undisputed that the corner on the west bank of the Angelina river 900 varas east of the southwest corner of the William Williams is not an original corner located by the surveyor, but is a corner established in comparatively recent years; that there was no evidence of an original northwest corner of the William Williams, but that the corner there located was a new corner, and was located by course and distance; that the southwest corner of the Williams is a new corner; that there is a marked line between the southwest corner and the river, but that these marks are not aid enough to be marks of the original surveyor; that there is no evidence of an old line between the Blount and Williams labor; that there is no evidence of the footsteps of the original surveyor on the supposed south line of the Williams.

The footsteps of the surveyor, therefore, not being found, it became the duty of the court to ascertain the intention of the surveyor by his field notes and the circumstances and conditions surrounding the survey. Appellee insists that the boundary was established by reputation anti litem motam, and cites Stroud v. Springfield, 28 Tex. 649, and Jones v. Andrews, 72 Tex. 16, 9 S. W. 170. We have examined carefully the opinion of our Supreme Court in the Stroud v. Springfield Case, and the facts of this case do not come under the rule therein announced.

For the reasons assigned, this cause is reversed and rendered in favor of appellant.
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source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    STEWART et al. v. POINBEOUF et al.
    (No. 7084.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 14, 1918.)
    1. Courts <®==207(3) — Appointment of 'Tem-POBABY ADMINISTRATRIX — JURISDICTION OF County Court — Encroachment by Court of Civil Appeals — Injunction to Protect Assets of Estate.
    There being no warrant, in orders of county court which appointed temporary administratrix of testatrix’s estate, for the administratrix’s acts in removing and selling timber on lands of the estate, pending appeal by contestants of probate of-will, temporary administratrix, proponent in probate proceedings, will not be heard to say she was acting as temporary administratrix in cutting and selling the timber, so that for the Court of Civil Appeals to restrain her unauthorized depredation on the property, the subject-matter of the appeal in the probate proceedings pending in the court cannot be regarded as an encroachment on the jurisdiction of the county court to administer the estates of deceased persons.
    2. Executors and Administrators <§fc^35(l) — Removal — Conversion of Testatrix’s Property.
    A temporary administratrix’s conversion of testatrix’s property is ground for her removal.
    Appeal from District Court, Harris County ; John A. Read, Judge.
    Proceeding by Elizabeth Poinbeouf and another to probate the last will and testament of Mrs. Laura Stewart Hardy, deceased, contested by E. B. Stewart and others, wherein contestants, pending their appeal to the Court of Civil Appeals, questions having been certified to the Supreme Court, apply to the Court of Civil Appeals for injunction.
    Injunction ordered to issue.
    J. Llewellyn, C. A. Toler, and W. N. Foster, all of Conroe, for appellants. Fisher Campbell & Amerman and Moody & Boyles, all of Houston, for appellees.
   PLEASANTS, C. J.

This litigation was begun'in the county court of Harris county upon the application of appellee Elizabeth Poinbeouf, joined pro forma by her husband, to probate an instrument alleged to have been the last will and testament of Mrs. Laura Stewart Hardy, deceased;- the said Laura Stewart Hardy having left a large estate situated in various counties in the state of Texas, but principally in the counties of Harris and Montgomery, and consisting largely of real property. Appellants herein contested the application to probate said will, urging, first, certain pleas in abatement and to the jurisdiction of the courts of Harris county, upon the ground that administration upon said estate had first been started in Montgomery county, and that therefore the courts of Montgomery county had prior jurisdiction to hear and determine said matters; and, second, replying to the merits, urging that the decedent had made another will subsequent in date to the will offered in probate, whereby she had revoked the will offered for probate, and which subsequent will she had later destroyed, and that therefore she had died intestate. The appellee Elizabeth Poin-beouf claims the principal portion of said estate under the will offered for probate, and the contestants, except appellant J. W. Hardy, who claims as the surviving husband of decedent, claim an interest in said estate as blood relatives and legal heirs of said decedent.

Upon the consideration of this appeal at the last term of this court, being unable to reach any satisfactory conclusion upon the questions presented by appellants’ plea in abatement attacking the jurisdiction of the trial court, we certified the questions to the Supreme Court, and the cause is now pending here awaiting the answers of the Supreme Court to the certified questions.

Appellants have filed in this court an application for injunction, in which they show that after the appeal herein was perfected, about 15 months ago, appellee Elizabeth Poinbeouf began cutting and removing the trees and timber upon two tracts of land of 320 acres and 161 acres, respectively, on the J. S. Collins survey in Harris county, which said lands belong to the estate of Laura Stewart Hardy, and the'titles to which are involved in this litigation, and has sold said timber so cut and received, and converted the proceeds thereof to her own use and benefit. The application then alleges that appellants protested to said apppllee and her attorneys against the cutting, removing, and sale of said timber, and secured a promise from her through one of her attorneys that she would desist from further depredations upon said lands, but that in violation of her promise to appellants and to her attorney—

“said appellee is continuing to cut and remove and dispose of said timber, and appellants have reason to believe, and do believe, and fear that unless restrained from so doing by writ of injunction from this honorable court, that she will continue to depredate upon said property, and will cut and remove all of the timber therefrom, and convert the proceeds thereof to her own use and benefit. Appellants represent unto the court: That the timber and trees which were upon said land constituted a large portion of the value thereof, and were of great value to said estate, and the trees and timber which still remain uncut upon said tract of land, as well as the trees and timber upon the other tracts of land belonging to said estate, constitute a very valuable asset of said estate, and are of great value. That the appellee Elizabeth Poin-beouf is wholly insolvent, and if said estate should be ultimately awarded to appellants, it will be impossible for them to collect any judgment which might be recovered by them against said appellee for damages by reason of the cutting and removal of said timber. That by reason of the wanton and willful depredation upon said tract of land above described, and the cutting and removal of the timber therefrom, and conversion of the proceeds thereof, by the said appellee, and by virtue of her fraudulent deception of appellants and their said attorneys, by said appellee, and the willful breach of the promise and assurances made to appellants’ attorneys, and to her own attorneys, appellants have reason to fear, and do fear, that if not deterred by writ of injunction from this honorable court, said appellee may and will depredate upon other property of said estate, to which she asserts the same right and interest as the tract of land last above mentioned, and that she may and will cut and remove the timber from other tracts of land belonging to said estate, and sell and dispose of the same, and convert the proceeds to her own use and benefit. That the act of the said appellee in depredating upon the property of said estate, and in converting the same to her own use and benefit, has caused, and will cause, irreparable damage and injury to appellants, and constitutes, and will constitute, an interference with the jurisdiction of this honorable court in this cause.”
“Premises considered, appellants herein pray that in order to protect the jurisdiction of this court, and to protect and preserve the corpus of said estate, pending the determination of the litigation involved herein, and to protect the rights of appellants herein, this honorable court will immediately issue its most gracious writ of injunction to said appellee Elizabeth Poinbeouf restraining her from further depredating upon any and all of the property of said estate, and from cutting and removing any of the timber from each and all of the tracts and parcels of land belonging to said estate, and from disposing of any of the property of said estate, and from converting any of the property of said estate, or the proceeds thereof, to her own use and benefit, and for such other relief, and such other writs hereunder, as appellants may be entitled in the premises.”

This application was verified by the affidavit of appellants’ attorneys.

Upon being cited to show cause why the temporary injunction should not be granted as prayed for, said appellee, by her attorneys, has filed the following:

“To the Honorable Court of Civil Appeals: Now comes Elizabeth Poinbeouf, and in compliance with the order of this court, heretofore made and entered herein, shows the following cause why an injunction should not be granted or continued in force, restraining her in the terms of said order, viz.: She shows to the court that she has heretofore been, by the county court of Harris county, Tex., appointed temporary administratrix of the estate of Laura Stewart Hardy, deceased, and has taken the oath and given the bond, as required by law; and on September 19, 1914, an order was duly made and entered by said county court of Harris county, Tex., continuing said letters of temporary administration in force until the termination of the contest herein, as will appear from a certified copy of said order, hereto attached, and prayed to be considered a part of this answer. She further shows to the court that under and by virtue of her appointment and qualification as such temporary administratrix she is in possession and control, and entitled to the possession, control, and management of the property described in appellants’ petition for injunction, and that for the acts done by her in the management and control of said property she is answerable in the first instance only to the county court of Harris county, Tex., from the orders and decrees of which court, appellants are, by law, allowed the right of appeal to the district court and ultimately to this court; but that this court has no original jurisdiction to inquire into the acts done by said temporary administratrix in the control and management of said property. Wherefore she prays that the restraining order heretofore made herein be no longer continued in force, and that the injunction prayed for by appellants be denied.”

She makes no denial of any of the facts alleged in the application. We do not think her plea to the jurisdiction of this court can be sustained.

In converting the timber upon the land in controversy to her own use Mrs. Poinbeouf is not acting in the capacity of temporary administratrix of the estate. She was appointed such administratrix by the county court of Harris county under the statute authorizing the appointment of temporary administrators to protect and preserve the property of estates pending a contest of the will of the decedent. The order of the county court appointing her temporary adminis-tratrix directs:

“That she take charge of all lands of the estate of Laura Stewart Hardy, deceased, with power to look after and control the same, to keep up the fences thereon, and to fence and protect the grave of said Laura Stewart Hardy. To lease pasturage lands for short periods, and to collect rents therefor, and to collect any unpaid rents now due, with power to remove stock from such pasturage lands or to distrain them for unpaid rent. To take into her possession and control any and all personal property belonging to said estate, including any money which may be in bank.”

Article 3302, Vernon’s Sayles’ Civil Statutes, provides that temporary administrators shall have and exercise only such powers with regard to the estate as are “specifically and clearly expressed” in the orders of the court appointing such administrators, and that any act not so “expressly authorized shall be void.” There is no room for construction in the language of this statute, and it has been uniformly rigidly enforced by our courts. Willis & Bro. v. Pinkard, 21 Tex. Civ. App. 423, 52 S. W. 626.

There being no semblance of warrant in any of the orders of the county court for Mrs. Poinbeouf’s acts in removing and selling the timber on the lands of the estate, she will not be heard to say she was acting in so doing in her capacity as temporary ad-ministratrix of the estate. This being true, it cannot be regarded as any encroachment upon the jurisdiction of the county court to administer the estate of deceased persons for this court to restrain her unauthorized depredation upon property which is the subject-matter of the appeal now pending in this court. Her conversion of the property would be ground for her removal as temporary administratrix, and in such proceeding the county court might have enjoined further depredation upon- the property, but that such proceeding might have been instituted in the county court does not deprive this court of its jurisdiction to protect and preserve in its entirety the subject-matter of the suit of which this court has acquired jurisdiction by appeal. The right of an appellate court to protect and preserve the status quo of property which is the subject-matter of a suit of which the appellate court has acquired jurisdiction by appeal, in a case in which a supersedeas bond has been filed or in which no such bond is required to prevent the execution of the judgment of the trial court, is not questioned by appellee, and is, we think, firmly established by the decisions. Railway Co. v. Hornberger, 141 S. W. 311. We think the opinion in the case mentioned and the authorities therein cited settle this question.

We are of opinion that the injunction should be issued and it has been so ordered.
      i^^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    BOEDEFELD v. JOHNSON et al.
    (No. 7468.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 10, 1918.)
    1. Affeal and Error c&wkey;742(2) — Assignments — Necessity of Propositions and Statements.
    An assignment consisting of entire motion for new trial not submitted as a proposition in itself, nor followed by one, with no appended statement of facts, but containing eight distinct alleged errors, cumulatively violates Court of Civil Appeals rules 25-31 (142 S. W. xii, xiii), and cannot be considered.
    2. Appeal and Ekeob <&wkey;302(2) — Assignments — Conformity to Motion foe New Trial.
    Where a motion for new trial has been filed, the party appealing is confined to the matters therein assigned, under Court of Civil Appeals rule 24 (142 S. W. xii).
    3. Evidence <&wkey;>159 — Admission of Lost Instrument without Proof — Statute.
    The method prescribed by Yernon’s Sayles’ Ann. Civ. St. 1914, art. 3700, of introducing written instruments in evidence without proving their execution as at common law, by filing affidavit before trial, does not make such a prerequisite to proving the execution and contents of lost deed by subscribing and other competent witnesses.
    4. Evidence <&wkey;178(4) — Secondary — Lost Deed.
    The rules governing secondary evidence of written instruments are fully complied with by proof that the deed was signed, acknowledged, and delivered to grantee, the names of the grantees and grantors, the property conveyed, and other contents, that it was lost before recording and could not be found after diligent search.
    5. Trespass to Try Title <&wkey;41(l) — Proceedings — Evidence — Weight — Insufficiency.
    Evidence in trespass to try title held sufficient to establish title in defendant and his successors in interest by deed, duly executed and delivered, which was lost before recording.
    6. Trespass to Try Title <&wkey;41(l) — Real Property — Adverse Possession — Statutory Period.
    Evidence in trespass to try title examined and defendants held to have met all requirements of both the five and ten year statutes of limitation, and by proof of knowledge of and recognition by plaintiff’s vendor of adverse possession of defendants for more than such periods of limitation.
    7. Vendor and Purchaser i&wkey;232(8) — Bona Fide Purchasers — Notice—Facts being on Inquiry.
    Plaintiff taking a deed from vendor’s executor to land of which defendants had visible and continuous possession for more than 30 years was put on notice as to defendant’s interest therein, and was not a bona fide purchaser, although defendant’s deed from such deceased vendor was not recorded.
    8. Vendor and Purchaser <&wkey;232(10) — Notice — Possession by Tenant in Common.
    Although the possession by a tenant in common is consistent with the recorded title, that does not relieve a purchaser from the duty to inquire from the possessor the nature of his claim and possession.
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Suit by A. J. Boedefeld ¿gainst A. J. Johnson, O. W. Johnson, and another, in trespass to try title. Judgment for defendants, plaintiff appeals.
    Affirmed.
    L. R. Patton, of Galveston, for appellant. Stewarts, of Galveston, for appellees.
   GRAVES, J.

Appellant, A. J. Boedefeld, instituted this suit in the district court of Galveston county in trespass to try title and damages against appellees A. J., O. W., and B. F. Johnson, for the recovery of 216 acres of land, more or less, out of the Abner Van Nordstrand survey in that county; in the proof offered, however, he only asserted title to an undivided one-half of the tract, claiming as the vendee of A. S. Exline under a deed of date May 6, 1916, from the latter’s executor. Under their pleas of not guilty and .of limitation, the appellees’ defenses were: First, that A. S. Exline, vendor of appellant, had in 1885 conveyed his interest in the tract sued for to appellee A. J. Johnson, which deed had been lost without recording ; second, that their titles had matured under both the five and ten year statutes of limitation. The trial court, sitting without a jury, rendered judgment for appellees, from which this appeal is prosecuted.'

No request was made for findings of fact and conclusions of law, and none were filed. The material facts may be thus summarized:

The property in controversy is 216 acres out of an 850-acre tract originally conveyed by George S. Mellhenny and wife to A. J. Johnson and A. S. Exline by general warranty deed dated February 16, 1884, recorded February 19, 1884. A 163-acre tract out of the original 850-acre tract, jointly owned by Exline and A. J. Johnson, was sold by them in 1885 to J. Atkins, Sr., for $1,000. The deed from Exline and Johnson to Atkins was made through their attorney in fact, John Caplen; such deed reciting that the 163 acres therein conveyed is adjacent and adjoining the 216 acres now owned by A. J. Johnson, reciting:

“⅜ ⅜ ⅞ Thence * * * to the northeast corner of a tract of 216 acres belonging to A. J. Johnson, whose fence is near the lin.e; thence parallel with the said line of A. J. Johnson’s tract,” etc.

The 216 acres now in controversy is the 216-acre tract adjacent to and adjoining the Atkins tract. At the same time that this deed from Johnson and Exline, through Cap-len, was executed and delivered to Atkins, Johnson and Exline as principals and Cap-len as surety made a bond personally signed by each of the above parties, in the sum of $1,000, payable to Atkins, conditioned that the principals would discharge a vendor’s lien still retained against the land .conveyed in favor of Mcllhenny, their vendor. The undisputed testimony of A. J. Johnson is that the entire purchase money paid Exline was $1,-000, which Exlime accepted, and for which Exline conveyed to A. J. Johnson, all of Ex-line’s interest in the 216 acres now in controversy. This deed was lost in the 1015 storm, without having been recorded. The further testimony of A. J. Johnson is that A. S. Exline was merely a figurehead, the property really belonging one-half to A. J. Johnson and the other half to John Oaplen, but that Oaplen’s interest was taken in the name of Exline because some parties had obtained a judgment against Oaplen.

A. J. Johnson held open, adverse, and peaceable possession of the entire 216 acres from 1884 to 1896, using, cultivating, and enjoying same, and paying all taxes thereon, and claiming one-half interest by virtue of the recorded deed from Mcllhenny aforementioned and the remaining one-half interest by virtue of the unrecorded deed from Exline to Johnson above described. On July 1, 1896, he conveyed 50 acres out of the 216 to his son O. W. Johnson by general warranty deed, recorded September 8, 1896; while on December 24, 1908, he likewise conveyed the remaining 166 acres out of this 216-aere tract to another son B. P. Johnson, the latter deed being recorded January 23, 1909, himself continuing his former occupancy and use of the 166 acres during the interim between these two deeds to his sons.

Upon the dates of their deeds thereto, the appellees O. W. and B. P. Johnson took possession of the separate tracts thereby conveyed to each of them and thenceforth held open, adverse, and peaceable possession thereof until the date of the trial, claiming their respective tracts under such recorded deed, using, cultivating, and paying all taxes thereon; their father, A. J. Johnson, had paid all taxes on the property from 1885 until he sold it in the two separate tracts mentioned to his sons.

A. S, Exline never at any time rendered for taxation or paid any taxes on any part of the 216 acres, nor made any claim thereto, although having business dealings with and seeing A. J. Johnson every week from 1885, the date of the lost deed, until 1900, with occasional personal interviews between them extending three or four years later; likewise he met the sons O. W. and B.. P. Johnson frequently during the same period of years, but never made any claim to the land, while in 1887 he personally rendered for taxation his property in Galveston county, making affidavit that the inventory, which did not include the land here involved, covered all the property he owned in the county.

As above stated, appellant claimed an undivided one-half interest in the 216 acres by virtue of a warranty deed from M. P. Ex-line, independent executor of A. S. Exline’s estate, dated May 6, 1916, recorded May 13, 1916; but the possession and occupancy of appellees, as above outlined, existed at the date of this deed, and there is no evidence of any inquiry made by Boedefeld to ascertain the interest such occupants of the land might claim; the undisputed testimony of appel-lees being that they never saw Boedefeld nor heard of him before the institution of this suit.

There is also much further detailed evidence strongly tending to show, if indeed it could not be deemed sufficient to support a finding to that effect, that appellant Boede-feld, at the time he purchased from Exline’s executor, had actual knowledge of the adverse claim of appellees.

The first assignment consists of the entire motion for new trial in the court below, not submitted as a proposition in itself, nor followed by one, and with no statement of facts from the record appended, but containing eight separate and distinct alleged errors; obviously it is cumulatively violative of the rules and cannot be considered.. Court of Civil Appeals rule 25-31 (142 S. W. xii, xiii); Dees v. Thompson, 166 S. W. 56.

Likewise the eighth and ninth assignments must be disregarded, because not contained in the motion for new trial. A motion for new trial was filed, and, where such is the case, the party appealing is confined to the matters therein assigned. Revised Statutes of 1911, art. 1612; Cole v. Maccabees, 188 S. W. 699; Riggs v. Baleman, 198 S. W. 813; Rules of Courts of Civil Appeals No. 24 (142 S. W. xii); Dees v. Thompson, 166 S. W. 56.

Through assignments numbered 2 to 7, inclusive, the contentions of appellant are: First, that there was no proper evidence before the court showing a transfer from A. S. Exline to A. J. Johnson; second, that limitation had not barred appellant because there was no notice to him of the adverse nature of appellees’ possession; and, third, that he was a bona fide purchaser and not subject to such defenses as appellees might have had against A. S. Exline.

As already indicated, there is no recorded conveyance from Exline to Johnson; but A. J. Johnson testified that in 1885, in consideration of the receipt by Exline of the entire consideration paid by Atkins to Exline and Johnson for the 143 acres jointly owned by them, Exline conveyed his interest in this property to Johnson. His' further testimony is that this deed was lost in the 1915 storm, without having been recorded. But appellant contends that this evidence should not have been received, because there was no affidavit filed as required by article 3700, Revised Statutes.- Article 3700, however, merely provides a method by which written instruments may be introduced in evidence without the necessity of proving their execution as at common law. That article has never been construed, so far as we are advised, to require the filing of an affidavit as a prerequisite to proving the execution of an instrument by subscribing or other competent witnesses. It has no application to the ease at bar, we think, because in this case proof of prior existence and contents of the lost deed was made by one familiar with it, tlie grantee therein. As this deed was lost without having been recorded, it was manifestly impossible to file a certified copy thereof in the papers of the case. The rules governing the admission of secondary evidence of written instruments are therefore the only rules applicable here. Such rules have been fully complied with by proof that the instrument was signed, acknowledged, and delivered to the grantee, the names of the grantees and grantors, the property conveyed, with other contents of the instrument, and that it was lost and could not be found after diligent search. Bevised Statutes 1911, art. 3700; Blanton v. Bay, 66 Tex. 61, 17 S. W. 264; White v. Burney, 27 Tex. 50; Trimble v. Edwards, 84 Tex. 498, 19 S. W. 772; Parks v. Caudle, 58 Tex. 219.

We think the evidence conclusively established the fact that A. S. Exline had conveyed to A. J. Johnson all his interest in the property sued for more than 49 years before Boedefeld took the deed from his executor, and consequently that such deed conveyed no title as against Johnson and his ven-dees.

This conclusion alone would require af-firmance of the judgment; but we further think appellees also met all requirements of both the five and ten year statutes of limitation, and that the evidence amply shows actual knowledge on the part of A. S. Exline of the adverse character of their claim to the 216 acres; indeed, the recitations in the deed and bond to Atkins relating to the 143 acres sold to him was an express recognition by Etxline that A. J. Johnson was even then holding the 216 acres adversely to him. This finding . disposes of appellant’s contention that, as the vendee of A. Si. Exline, he was a tenant in common with appellees and that limitation did not run against him in their favor.

Appellant finally insists, however, that as there was no deed of record from Exline to Johnson when he took his own deed from the former’s executor, he thereby became a bona fide purchaser and consequently not subject to defenses which may have been available to appellees as against Exline. But we do not think this position tenable, for the reason that appellees were in actual and visible possession of the land at the very time of appellant’s deed, and had been in such possession continuously since 1885, and he was thereby put on notice and inquiry of any right they might claim in the property, despite the fact that their possession was consistent with the recorded title, and even though he was, as he further contends, a co-tenant with them. In fact, our Supreme Court seems to have decided the identical question raised by him adversely to appellant’s contention. Collum v. Sanger Bros., 98 Tex. 162, 82 S. W. 459, 83 S. W. 184; Ramirez v. Smith, 94 Tex. 184, 59 S. W. 258; Wimberly v. Bailey, 58 Tex. 222. In these cases it is directly held that possession is notice of the title acquired by one tenant in common from a cotenant by unrecorded deed, although such possession is consistent with the recorded title.

Pursuant to the conclusions reached, the several assignments raising the questions discussed are overruled,' and the judgment is affirmed.

Affirmed.
      ig^jFor other eases set same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SIDDALL v. HUDSON.
    (No. 7505.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 4, 1918.
    On Motion for Rehearing, March 13, 1918.)
    1. Mandamus &wkey;3l51(l) — Proceeding against County purveyor to Compel* Survey — Necessary Parties.
    The owners of three surveys abutting on a river bed were necessary parties to a mandamus proceeding against the county surveyor to compel him to survey the river bed as appropriated to. the public free school fund, that plaintiff might purchase it, such proceeding necessarily involving the determination of whether or not the river bed, lying between the owners of the surveys, was public land and subject as such to survey and purchase since, on an application for mandamus, all known parties in interest should be summoned to come in and defend, and third parties . claiming an adverse interest, so that a conflict exists in the subject-matter, should be joined as respondents without regard to the validity of their claims.
    2. Navigable Waters <@=>44(3) — Abandoned Bed of Navigable Stream.
    Where a navigable river gradually left its old bed and formed a new one, the abandoned bed was not state land; when the water left the old channel, such channel ceased to be the bed of a navigable stream, lost any character of public property it might have had before, and became an accretion or reliction to the land on either side; the new boundary line being the center of the channel before the water left it.
    On Motion for Behearing. ’
    3. Navigable Waters <&wkey;45 — Violent Changes in Courses of Bivers — Effect on Abutting Property.
    Where changes in the courses of rivers occur by the sudden and violent avulsive method, the property lines of abutting or riparian owners remain the same as before.
    Appeal from District Court, Grimes County; S. W. Dean, Judge.
    Suit for mandamus by B. M. Hudson against George E. Siddall. From judgment for plaintiff, respondent appeals.
    Beversed and rendered.

      H. E. Lewis, o£ Navasota, for appellant. W. W. Meachum, of Anderson, L C. Kemp, of Houston, and Pat N. Fahey, of Navasota, for appellee.
   GRAVES, J.

Appellee, plaintiff below, alleging that he was desirous of purchasing a certain tract or parcel of land known and designated as unsurveyed or scrap land, under article 5422, chapter 9, title 79, of the Revised Statutes of Texas of 1911, pages 1126-1147, presented his application for a survey of the land to the appellant, defendant below, who at the time was the county surveyor of Grimes county, Tex. The application was for a survey of unsurveyed land appropriated to the public free school fund under chapter 11 (1st called Sess. 26th Leg.) Act February 23, 1900, and described it as being situated in Grimes county, Tex., about 21 miles southwest from the county site, and bounded as follows:

“Being, what is known as old river bed as the Brazos river ran while Texas was a part of the state of Ooahuila and Texas, and after Texas was declared a republic in 1836. The said river having subsequently changed its course and leaving in the channel of the old river its bed, being on an average 236 varas wide and extending from its junction with the present channel of the Brazos river, at its northwest corner in a circuitous .route for a distance of about 1,926 varas, containing 148 acres of land, to its southwest and where it joins the present channel of the Brazos river, which river was, at the dates aforesaid, a navigable stream along its present channel.”

The application further alleged that the applicant desired the land surveyed with the intention of buying it for himself, and that he was not acting in collusion with, or attempting to acquire it for another person or corporation; that the appellant refused to file his application, or to survey the land, or to make field notes thereof. Appellee prayed for a writ of mandamus, commanding the appellant to file and record the application, to survey the land, and to file the application and field notes in the general land office at Austin. After demurrers, general and special, appellant answered that he had refused to make the requested survey for two reasons: (1) Upon investigation of the field notes of the land located in that particular section of the county, he concluded that the land in .question was included within the field notes of the Jared E. Groce three-league grant; (2) he was unable to mark out and define old river bed, because its water lines could not be traced upon the ground, nor could its banks at the ends for some hundreds of yards, although he could survey the banks for the rest of their extent. The case was tried before the court, sitting without a jury, and resulted in a judgment for appellee, awarding him the writ of mandamus substantially as prayed for. From that judgment this appeal is prosecuted.

The essential facts were practically undisputed, and may be thus summarized: The Brazos river was admittedly classed as s navigable stream. The Jared E. Groce three-league survey was granted to him by the Mexican government July 29, 1824, and extended along the east bank of the river, following its meanders, from the lower corner of the Isaac Jackson league to the upper corner of the Thomas Stevens league; right opposite to the Groce on the west side of the river, and likewise, following its meanders ■up that side, lay the Wm. Gates and M. Bird surveys, which came together there, and which had been granted to them, respectively, by the same government on July 16, 1824. At the time these three grants were thus titled in 1824, the Brazos river was flowing through the so-called old river bed and so continued until 1832, when, during an overflow, it cut across a small horseshoe bend at that point, and shifted its channel further to the west, where it has since remained, thus leaving as its abandoned bed a semicircular neck of land 236 varas wide by about 1,920 varas long inclosed between the Jared E. Groce on its east side and the Wm. Gates and M. Bird grants on its west side. Such was the location and description of the strip of land it was thus sought to have so surveyed as state land. None of the owners of any of the three surveys which incased it upon all sides were made parties to the suit for mandamus, but the writ was applied for and issued by the trial court against the surveyor alone.

The theory upon which this action rested was that the so-called old river acquired the character of state land while it constituted the main channel of the Brazos, a navigable stream, and never lost that character after it became, through the shifting of the channel towards the west, the abandoned bed of such stream.

We think the judgment awarding mandamus cannot stand for two reasons: (1) The owners of the abutting lands necessarily affected by it were not parties to the action; (2) the abandoned bed of what had formerly been a navigable river, under the facts here shown, was not state land.

It has been a number of times held by our Supreme Court that upon an application for mandamus, all known parties at interest should he summoned to come in and defend their interests, and that third persons claiming an adverse interest, or that a conflict exists, in the subject-matter must be joined as respondents, without regard to the validity of their claims. Winder v. Williams, 23 Tex. 601, 604; Cullem v. Latimer, 4 Tex. 329, 334; Watkins v. Kirchain, 10 Tex. 375, 381; Crumley v. McKinney (Sup.) 9 S. W. 157; Smith v. Power, 2 Tex. 57; Commissioner v. Smith, 5 Tex. 471; Tabor v. Commissioner, 29 Tex. 508; Chappell v. Rogan, 94 Tex. 492, 62 S. W. 539; Texas Mex. R. Co. v. Jarvis, 80 Tex. 456, 467, 15 S. W. 1089.

We think the principle applied in those cases equally pertinent here, and that the owners of the three surveys abutting on old river bed in the manner above shown were essential parties to a proceeding which necessarily involved the determination of whether or not the sinuous strip of land so lying between them was public land, and subject as such to survey and purchase. This conclusion alone would require a reversal.

Under the broader question of whether or not the abandoned bed of a once navigable stream is state land, no authority has been furnished us, although the appellee insists that such is undoubtedly its character. With that conclusion, however, we cannot agree, but think that when the water left the old channel it ceased to be the bed of a navigable stream, lost any character of public property it might have before had, and took on the nature of an accretion or reliction to the land upon either side; the new boundary line being the center of the channel before the water left it. No Texas appellate court seems to have decided this precise question, but the general doctrine is announced by the Supreme Court of Kansas in Fowler v. Wood, 73 Kan. 547, 85 Pac. 776, 6 L. R. A. (N. S.), at page 178, 117 Am. St. Rep. 534, as follows:

“If the space between the mainland and an island be reduced to a slough, which fills up in such a manner that the two bodies of land join, the respective owners will be entitled to the accretions to their shores. If the slough fills up from the bottom, and the accretions do not begin at the sides, the boundary is the center of the slough, as it was before the water left it. Buse v. Russell, 86 Mo. 209; Minton v. Steele, 125 Mo. 181, 28 S. W. 746. If an island be separated from the mainland by the channel of a river which becomes dry the same rule obtains.”

See, also, 29 Cyc., Navigable Waters, page 352e, and authorities there cited.

We think that rule applicable here, and that, under the undisputed facts no title being in the state, no vacancy could exist. The judgment must therefore not only be reversed, but here rendered for appellant; and it is so ordered.

In the view we have taken of this case, since the matters upon which the appeal has been determined raise a fundamental question and should be considered whether properly assigned or not, it would get nowhere to accede to appellee’s request and pass upon the sufficiency of appellant’s assignments of error; hut this opportunity is embraced to again suggest to the bar that this court’s time and thought is much too often unnecessarily directed toward disposing of mere procedural matters relating to the process of bringing causes from the trial courts to its attention, and request is made’ that its earnest efforts to promptly dispatch the heavy volume of business always before it be aided by such careful observance of the rules by litigants as will prevent the recurrence of these questions here.

Reversed and rendered.

On Motion for Rehearing.

In a very ably written motion for rehearing appellee strongly contends that this court erred in holding that the land he sought to have surveyed, that is, the abandoned bed of a navigable river, was not state land, but took on the nature of an accretion or reliction to the lands bordering the old bed upon both sides.

In support of this position, after assuming that the brief statement in our former opinion of the circumstances under which the Brazos changed its course in 1832 constituted avulsion rather than the slower and more gradual result known as accretion or reliction, many widely selected cases are cited, applying the well-settled general rule that where changes in the course of rivers occur by the sudden and violent avulsive method, the property lines of abutting or riparian owners remain the same as before, among them the following: Lynch v. Allen, 20 N. C. 190, 32 Am. Dec. 671; Marks v. Sambrano, 170 S. W. 546; Cooley v. Golden, 117 Mo. 33, 23 S. W. 100, 21 L. R. A. 300; Rees v. McDaniel, 115 Mo. 145, 21 S. W. 913; Wallace v. Driver, 61 Ark. 429, 33 S. W. 641, 31 L. R. A. 317; Fowler v. Wood, 73 Kan. 511, 85 Pac. 763, 6 L. R. A. (N. S.) 162 et seq., 117 Am. St. Rep. 534; Stockley v. Cissna, 119 Tenn. 135, 104 S. W. 792; Missouri v. Nebraska, 196 U. S. 23, 25 Sup. Ct. 155, 49 L. Ed. 372; 29 Cyc. 353.

While it is true that no authorities upon this question were cited in the brief of either party, this court was aware of and considered the line of cases now presented by appellee before announcing its former opinion, but concluded that the principle therein applied did not rule the fact conditions in this instance. Appellee’s inference that our summary of the facts under which the change in beds occurred showed it to have been avul-sive may not be unjustified from the language used; but nevertheless that was not the premise from which our conclusion proceeded, because we then thought, as we still do, that the leaving of this old bed as unsub-merged land, susceptible of being surveyed as such, was gradually accomplished by the processes termed accretion or reliction, and that the record here so shows. We accordingly thus enlarge upon what was formerly, perhaps, an inadequate statement of how the actual change resulted: Although the main body of the river as a flowing stream changed channels during an overflow, as was recited in the original opinion, the undisputed proof likewise discloses that the abandoned bed did not become such all at once, nor did it suddenly emerge as dry land. Upon the other hand, all of the witnesses wno testified about that matter, either from general reputation and the statements of old settlers, or upon personal knowledge, said that the water had left the horseshoe shaped bed of old river so slowly, gradually, and intermittently that they had been able to fish in it from the time they were small hoys until a few years before this trial; that at times even yet there were lakes and sloughs of water in there, and every time the river got up the water would still flow into it through the mouth of one of these old sloughs and out again in the same way when it fell; in a word, that emergence from the water and the filling up of the old bed by deposits of sediment was so gradual and imperceptible as to make it a proportionate accretion to the adjoining lands upon both sides.

In these circumstances, while some of the authorities now cited by appellee appear to hold a contrary view, we think those referred to in our first opinion, upon better reasoning and stronger considerations, support the conclusion there reached, and feel constrained to adhere to it. In doing so, since a wealth of legal learning has illuminated the discussion of this subject in the cases referred to, conscious of inability to add anything, we have felt it unnecessary to write more, contenting ourselves with mention of the following additional authorities: Bigelow v. Hoover, 85 Iowa, 161, 52 N. W. 125, par. 2, 39 Am. St. Rep. 296 ; Buse v. Russell, 86 Mo. 209; Benson v. Morrow, 61 Mo. 345; Minton v. Steele, 125 Mo. 181, 28 S. W. 746; Ruling Case Law, vol. 1, pp. 228 and 281, pars. 3 and 5.

As his second ground for rehearing, appel-lee insists that we erred in holding the judgment should be reversed for failure to make the owners of abutting lands parties, because no such error, if error it was, had been assigned, nor was it fundamental. It may be that the answer of appellant, from which the inference as to there being other claimants of the land involved was taken, did not sufficiently set up the facts as to the ownership of the abutting lands, including the names of the claimants and the nature of their claims, to justify this court in reversing the trial court’s judgment because they were not made parties to this action. It becomes unnecessary to decide the matter, however, since the view taken upon the other question discussed necessitates a rendition anyway. The motion for rehearing has been accordingly overruled.

Overruled.
      ©=3For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    CORPUS CHRISTI STREET & INTERURBAN RY. CO. v. KJELLBERG.
    (No. 5936.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1918.
    Rehearing Denied March 20, 1918.)
    1. Street Railkoads &wkey;114(9) — Collision with Street Car — Evidence.
    In action for personal injuries, evidence held sufficient to sustain a finding that a street car actually struck a wagon loaded with hay and caused it to turn over, and that the wagon was not overturned by a mere frightening of the horses.
    2. Trial <&wkey;260(l) — Repetition in Instructions.
    Where the court gave a requested instruction, it was not error to refuse another instruction whose substance was the same.
    3. Appeal and Error &wkey;>215(l) — Matters Review able — Saving- Objections.
    Complaint cannot be made for the first time on appeal that a charge was inconsistent, conflicting, contradictory, confusing, and misleading.
    4. Appeal and Error &wkey;>233(l) — Bills oe Exceptions — Objections to General Charge.
    While a formal bill of exceptions is not necessary, it is essential to show that objections to the general charge were made in writing, presented to opposing counsel and the court, before submission of the charge to the jury, and that the court did actually overrule them.
    5. Limitation oe Actions &wkey;sl82(4) — Pleading <&wkey;252(2) — Amendment oe Petition— Dieeerent Cause oe Action.
    A first amended abandoned petition is no part of a second amended petition, and that the second alleges a different cause of action from the first can be raised only by plea and proof, on the question of limitations.
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Suit by J. E. Kjellberg against the Corpus Christi Street & Interurban Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    D. McNeill Turner, Pope & Sutherland, and W. E. Pope, all of Corpus Christ!,, for appellant. T. O. Woldert and Suttle & Todd, all of Corpus Christi, for appellee.
   SWEARINGEN, J.

This is a suit for personal injuries by appellee, Kjellberg, against appellant, Corpus Christi Street & Interurban Railway Company. The cause was submitted to a jury upon a general charge. Judgment was rendered in favor of appel-lee for the sum of $5,000. Upon motion of appellee all the bills of exceptions offered by appellant were stricken out by this court June 30, 1917.

The cause of action was that alleged in ap-pellee’s 'second amended petition, and was, as stated by Chief Justice Fly in the former appeal (185 S. W. 430):

“The petition charged that appellee’s injuries resulted from a car belonging to appellant running ‘upon, into, and against’ the wagon of ap-pellee, which was loaded with hay and upon which he was riding. It was alleged that the car was operated in a reckless, careless, and negligent manner; that the bell was not rung non gong sounded; that the car was being run at a high rate of speed; that there was no headlight on the front of the car, although it was about dark; that no lookout was kept; that the peril of appellee was discovered and his injury could have been averted by proper care; that the car was not equipped with approved appliances for the speedy stoppage thereof; and that the motorman was young and incompetent, and a novice in the operation of street ears.” To which the following allegations were added: “Violently ran said wagon, and against the side thereof, and against the end thereof, and against the hay thereon; that the servants of appellant thereby caused the said car to strike, and scrape along the side of said wagon and said hay thereon, with force and unnecessary violence and noise; and because of each and all of said acts aforesaid (as alleged in first amended original petition), all of which and each of which are charged to have been negligent on the part of said defendant’s said servants, plaintiff’s (appellee’s) said team was thereby negligently and carelessly frightened, and negligently and carelessly caused to be frightened thereby, and by said servants as aforesaid, and caused to run away with said ■wagon and hay, with plaintiff seated thereon, and run into or violently strike said wagon against said post aforesaid.”

The first, second, third, fourth, and seventh assignments contend that there was no evidence that the street car actually came in contact with either the side or the rear of the wagon, or with the rear or side of the load on the wagon, and that, therefore, ap-pellee’s material allegation had no evidence to support it. This was brought to the notice of the trial court by appellant’s request for peremptory instruction, by its motion for new trial because the verdict was contrary to the evidence, and because the judgment was not supported by any evidence.

There was sufficient evidence of actual contact between the wagon and the car to sustain the verdict and the judgment, as will appear from the following statement of testimony, taken from appellee’s brief, all of which appears in the full and fair statement in appellant’s brief:

“Witness F. Z. King testified: T know plaintiff; * * * saw him the day he was hurt by the street car on Staples street. * * * There was an unusual occurrence that took place. The street ear on which I was a passenger ran into Mr. Kjellberg’s wagon, loaded with hay, wrecking the wagon and hay. The accident happened about dark. Mr. Kjellberg was injured. * * * It happened on and near the track of the C. C. St. & Int. Ry. Co. The car on which I was a passenger and the one that struck Mr. Kjellberg’s wagon and load of hay was going south on Staples street. * * * Immediately after the car ran into the wagon my wife, who is now dead, called in a loud voice to the conductor, “Stop the car; you have hurt somebody.” The accident happened by the car running into Mr. Kjellberg’s wagon. I moved across the car away from what sounded to me like breaking glass. The car then backed up to where the accident happened, and I got out of the car and helped Mr. Kjellberg from under the load of hay, and I wiped the blood from his face. * * * He appeared to be unconscious. * * * The first thing I heard was a crash of the car running into the wagon. * * * I know the ear crashed into the wagon and load of hay. * * * It is not a fact that Kjellberg was driving along the street with the wagonload of hay, and that the noise of the hay brushing along the side of the ear frightened the team and caused the team to suddenly turn aside and overturn the load of hay, and caused Kjellberg to fall. * * * I know the car crashed into the wagon and load of hay.’
“W. B. Hardeman testified by depositions taken by defendant: ‘There was an accident while I was on said car at said time. The car and a wagon collided. * * * The hay came in contact with the car about where the second window of the car is located, and on the right-hand side of the car. I can’t say that the car actually struck the wagon, but I know that it struck the hay on the wagon. * * * After the car came in contact with the hay it ran about a car length and stopped. * * * The car and hay came in contact about two windows back from the front of the car. * * * The hay and frame tipped over immediately upon contact. * * * The hay and car came in contact with one another. * * * It is not a fact that there was no collision between the car and the wagon or the hay.’
“Plaintiff, Kjellberg, testified: ‘The first that happened, that when I was-driving along I feel a concussion, and turned my head and saw the end of the wagon and the load up in the air. I saw a light, but I as I stood there was no more light. I never did have time to turn my head back before everything was gone. I don’t know anything after that—after I was hit. ⅜ * * know anything until twelve o’clock that night. * * * That is the first I remember, from the time I felt the concussion and saw the wagon turn up. Q. State if you know what hit you or what hit your wagon? A. A street car. * * * Q. Did you see the car? A. I saw part of the car—the top light. It was a street car. The Corpus Ohristi Street & Interurban Railway Company was operating that street car on Staples street at that time. * * * I turned my head and looked. I saw the light of a street car and the load came up, and it came as quick as that (indicating by slapping the hands together).’ ”

The first, second, third, fourth, and seventh assignments are overruled.

The fifth assignment urges that the trial court erred in refusing to give the sixth special charge requested by appellant. This assignment is overruled, because the very substance of the refused special charge was contained in the special instruction No. 4 given by the trial court at the request of appellant. The issue having been given in language selected by the appellant, it was not error to refuse to present the same issue a second time, though expressed in different words.

The special instruction No. 7, requested by appellant, the refusal of which is complained of in the sixth assignment, is clearly upon the weight of the evidence, and was therefore forbidden by the statute, article 1971.

The sixth assignment is overruled.

The eighth assignment contends that the charge is inconsistent, conflicting, contradictory, confusing, and misleading, etc. These objections were not made to the charge by appellant before the general charge was submitted to the jury. They Vere not made in writing. They were never presented to adverse counsel. They were not presented to the trial court in the motion for new trial. They were advanced for the first time in appellant’s brief as fundamental error. The rules forbid us to consider the objections suggested.

The ninth,, tenth, eleventh, twelfth, fourteenth, fifteenth, and sixteenth assignments each complain that the trial court overruled objections to the general charge made by appellant. There are no bills of exceptions in the record. While the order of the court overruling objections to a general charge will be considered as excepted. to without a formal bill of exceptions attesting that fact, as is clearly announced by the Supreme Court in the case of G. T. & W. Ry. v. Dickey, 187 S. W. 189, yet it is essential that the record show that the objections were made in writing and presented to opposing counsel and presented to the trial court before the general charge was submitted to the jury, and it is essential for the record to show that the court did actually overrule the objections thus and timely made. The record before us contains no evidence of any of these requirements. All of the last-mentioned assignments are overruled.

The thirteenth assignment complains that the trial court erred in overruling appellant’s special exception to appellee’s second amended petition. The exception is that the second amended petition shows on its face that appellee’s cause is barred by limitation. The argument is that the second amended petition alleges a cause of action different from that alleged in the first amended petition. It is not necessary for us. to consider what that change was, even if there were a change. The first amended petition was no part of the second amended petition, but was an abandoned pleading. The exception could only be tested by what appeared upon the face of the second amended petition. The question here sought to be presented could have been raised only by a plea of limitation, supported by proof. The first amended petition could have been introduced in evidence as testimony. The thirteenth assignment complains that the exception was overruled. The assignment is overruled.

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


text:
    ADAMS v. FIDELITY LUMBER CO.
    (No. 277.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 19, 1918.
    Rehearing Denied March 20, 1918.)
    1. Logs and Logging. <&wkey;3(14)— Timbee Deeds — Reversion.
    Where a deed conveying timber provides a definite time within which the timber is to be cut and removed, all timber not so cut with-* in the time limited reverts to the grantor and those holding under him, notwithstanding the deed does not in terms provide for any reversion.
    2. Logs and Logging &wkey;33(ll) — Timber Deeds — Construction—Reversion.
    Where a landowner conveyed timber under a deed giving the grantee 15 years for removal, with provision for extension of time, and the heirs of such landowner conveyed the land, save and except the timber included in the deed of their ancestor, the reversion rights in the timber did not pass to the grantee, and the heirs of the original owner alone are entitled to receive the consideration for an extension of the period of removal.
    3. Contracts &wkey;>153 — Construction—Forfeiture.
    Where a contract is susceptible of two reasonable constructions, the court will adopt that construction which will prevent a forfeiture.
    4. Logs and Logging <&wkey;3(ll) — Timber Deeds — Right oe Removal — Forfeiture.
    A deed to timber gave the grantee and his assigns a period of 15 years for removal, and provided that the contract might be extended for the term of 10 years on the payment of 10 cents per acre per annum, the grantee’s successor, at the expiration of the period limited, tendered one annual payment to the persons then entitled to the reversion, and by its conduct showed that it desired to obtain the extension. HelcL -that, as the original consideration applied to the provision for renewal, and as the grantee’s successor made a bona fide offer to secure an extension, the provision for the extension should not be construed as an option contract, requiring payment for the whole of the 10-year period in advance, but the deed should be construed as authorizing annual renewals.
    5. Logs and Logging <&wkey;3(ll) — Timber Deeds — Renew aIt-Oonstruotion.
    In such case, where the timber deed specified the acreage as 2,350 acres, more or less, the annual payment for extension should be computed on that acreage, even though it subsequently developed that the land was greater in area.
    Appeal from District Court, Tyler County; W. R. Blackshear, Judge.
    Suit by the Fidelity Lumber Company against Alma Adams and others. From the judgment, the named defendant appeals, while plaintiff assigns cross-errors.
    Reformed and affirmed.
    Smith & Crawford and John Hancock, all of Beaumont, and J. A. Mooney, of Woodville, for appellant. Baker, Botts, Parker & Gar-wood, of Houston, and Thomas & Wheat, of Woodville, for appellee.
   KING, J.

Appellee sued appellant, Alma Adams, W. E. Adams, W. M. Cock, and Ollie Cock for the title and possession of the pine timber on 2,960 acres of land, R. Wiggins survey in Tyler county, claiming to own the same by virtue of a certain timber deed executed on November 23, 1901, by Lottie Cock, William Cock, and Ollie Cock to W. L. Car-wile, appellee holding under a deed from Car-wile. The deed gave to Carwile and his assigns the right to cut and remove the same for a period of 15 years from date, and further provided that:

“This contract may be extended for tbe term of 10 years upon the payment to me of the sum of ten cents (10¾ per acre per annum.”

All the title and interest in and to the land passed to J. H. Adams by deed from the heirs of Lottie Cock, dated the' 4th day of September, 1914, said deed being recorded October. 19, 1916. J. H. Adams conveyed to W. E. Adams said land on September 5, 1914, by deed which was filed for record on October 11, 1916. W. E. Adams conveyed the land to Alma Adams by deed dated September 20, 1915, which was filed for record October 19, 1916. In the deed from the heirs of Lottie Cock to J. H. Adams is contained the following exception:

“Save and except all pine timber to be removed from the land above described within 15 years from November 23, 1901, as per timber deed of Lottie Cock et al. to W. L. Carwile, same is hereby referred to and made a part hereof, which is recorded in Volume 6, page 254, Tyler County Deed Records.”

On the 14th day of December, 1916, William Cock and Ollie Cock, as heirs of Lottie Cock, executed the following confirmation deed to the appellant, Alma Adams:

“The State of Texas, Hardin County.
“Whereas, on the 4th day of September, 1914, for myself and as agent and attorney in fact for my sister Ollie Cock, I did convey to J. H. Adams certain lands and timber and which is fully described in said deed and which is recorded in Book 39, page 231 et seq. of the Deed Records of Tyler County, Texas; and whereas, said .1. H. Adams conveyed said lands and timber to W. E. Adams, and said W. E. Adams to Alma Adams, who now owns said land and timber, subject, however, to such reservations as are stipulated in said deed and the record herein referred to; and whereas, I did convey all such equity as we or either of us had and reserved on November 23, 1901, in a timber deed to W. L. Carwile recorded in Volume Six (6), page 254, Tyler County Deed Records, and it is now our purpose to confirm the said equity reservation and forfeiture after the time limit in which to remove said pine timber; and whereas, the said 15 years has expired, and such remaining timber as was left on said land by said Carwile and his assigns is now the property of Alma Adams: Now, therefore, in consideration of the premises above mentioned and the further sum of one dollar, we do hereby quitclaim and convey all such right, title, claim, and interest which we may appear to have had on said 23d day of Nov., 1901, or at any time thereafter hereby vesting in said Alma Adams all such right, title, forfeiture, or reversion, and do by these presents warrant the title thereto to said Alma Adams, her heirs, executors, and assigns, forever against the lawful claims of every person whomsoever.
“Witness our hands this the 14th day of Dec., 1916. W. M. Cock. Ollie Cock, by My Agent and Attorney in Fact, W. M. Cock.”

The timber was not cut and removed from the land at the time the original period of 15 years, as provided in the deed from Lottie Cock to Carwile, expired, to wit, on November 23, 1916.

The controlling issues raised by the pleadings are: (1) Whether under the deed to Car-wile from Lottie Cock, the timber would revert to the owners of the land after the expiration of the 15-year term provided in the deed, in the absence of a reversion clause in the deed; and (2) did appellee substantially comply with the extension clause in the deed?

Upon a trial before the court without a jury, judgment was rendered in favor of appellee, and the court held, as recited by the judgment, that the deed from the Cocks to Carwile did not provide for a forfeiture of timber rights, and that the plaintiff had not forfeited the right to the timber conveyed, and to the title to which appellee had succeeded, but that the time within which to cut and remove the timber should be extended for a period of 10 years from November 23, 1916, and that appellee should pay to appellant the sum of $296 per annum, the court finding that there was, in fact, 2,960 acres of land embraced in the description contained in the deed from Cock to Carwile, and that plaintiff should pay 10 cents per acre per annum for said extension, and that when all the pine timber was cut and removed the annual payments of $296 should cease. From this judgment appellant has perfected her appeal.

It is our opinion that, under a deed conveying timber which provides for a definite date within which the timber is to be cut and removed, all timber not so cut within said time limit reverts to the grantor in said timber deed, or those holding under him, notwithstanding the fact that the deed does not in terms provide such. The great weight of authority supports this holding. We therefore sustain appellant’s assignments of error Nos. 1 and 2, in so far as they complain of the conclusion of the trial court in its judgment holding to tire contrary.

The question then recurs on the second issue, as to whether the appellee substantially complied with the provision in the deed from the Cocks to Carwile to entitle it to an extension as provided in the judgment of the court. On November 18, 1916, the appel-lee wrote to appellant the following letter:

“We are attaching hereto our check for $235, which represents the amount due you for one year’s extension on 2,350 acres in the Roderick Wiggins league, known as the Lottie Cock survey. According to the records, you are the owner of this tract. A carbon of this letter is being addressed and sent to the names appearing on the foot of the letter. You understand the check inclosed is for the extension period running from November 23, 1916, to November 23, 1917. We are also inclosing a receipt, which you will please sign in the presence of witnesses and return to us for our files.”

In this letter was inclosed' the following receipt:

“$235.00. November 19, 1916.
“Received of the Fidelity Lumber Company the sum of $235 for one year’s extension of the time in which to cut and remove the timber now owned by the Fidelity Lumber Company in the Lottie Cock tract of 2,350 acres out of the Roderick Wiggins survey, in Tyler county, Texas, hereby extending such rights from November 23, 1916, to November 23, 1917.”

On November 22, 1916, one day before the 15-year limit had expired, appellant returned the check to the appellee, writing it that the extension was asked for only one year, and that the check sent was made payable to herself and others, and that she was the sole owner of said land and entitled to all of said money. On November 20, 1916, appellant wrote appellee that its right to cut and remove the timber would expire on the 23d of November, and that whatever arrangements for an extension of the time within which to cut and remove the timber desired must be made prior to the 23d day of November. On November 22, 1916, appellee mailed to William Cock the same check and receipt formerly sent to appellant for an extension of time for one year, which check and receipt was returned on the 29th day of November. On December 15, 1916, appellant notified appellee that the time limit within which to cut • and remove the pine timber had expired. On December 16, 1916, a formal tender to appellant of $235 was made for an extension of 12 months from November 23, 1916. About the last day of November, 1916, George S. Hayes testified, W. E. Adams, the admitted authorized attorney in fact and agent of appellant, agreed to accept the money. It is shown further that J. W. Thomas, attorney for appellee, had a conversation with W. E. Adams on the second Monday in December, 1916, and that Thomas offered to pay him, in behalf of appellant, the full amount of $235. J. E. Wheat, attorney for appellee, also, on the 13th of December, 1916, saw Mr. Adams in the latter’s office and handed him two receipts, one to be executed by Alma Adams and the other by the Cocks. W. E. Adams took the receipts and left, without saying what he would do; but by his own testimony it is shown that he went to Hardin county, the home of the Cocks, immediately, and secured the confirmation deed from the Cocks to Alma Adams.

By virtue of the exception and reservation in the deed from the Cocks to J. H. Adams, no timber rights passed to appellant, and William and Ollie Cock, under this exception and reservation in the deed, as heirs of Lottie Cock, were the only and proper persons to grant the extension provided for in the deed from their mother to W. L. Carwile. Two hundred and thirty-five dollars were tendered to the Cocks prior to November 23, 1916, the date of the expiration of the 15-year period, and appellant does not attack this tender by any assignments of error. Not until the confirmation deed of December 14th, did appellant succeed to the rights held by the Cocks with reference to this timber. This confirmation deed was filed of record on the 15th of December. On the next day a formal tender for one year’s extension, based upon 2,350 acreage, as estimated in the deed (that is, $235) was made to appellant.

Appellant says by her assignments, that under the clause providing that the contract may be extended for the term of 10 years from the payment of the sum of 10 cents per acre per annum, that it was necessary to tender and pay 10 cents per acre for the full period of 10 years, and that appellee had no right under said clause to ask and obtain extension for one year only. Bearing in mind that the law abhors forfeitures and looking closely to the wording of said clause, it is evident that the parties had in mind that the extension of 10 years mentioned was a maximum time, and that the grantee in said timber deed and his assigns had a right to extend the time annually, not to exceed 10 years, and that they were only required to pay 10 cents per acre per annum. It will be seeu that the contract, while it literally says that it may be extended for “the term of 10 years,” yet it says that the payment is to be made 10 cents per acre per annum, which was in the nature of a penalty by the year, and certainly it would be a strained construction to hold that, if the timber had been removed, say within 1 year or 2 years, that the contracting parties should have had in mind to penalize the grantee for 8 or 9 years, when the grantor’s lands were not held or used by the grantee in connection with the growing, cutting and removal of timber. To construe this clause literally would do mischief, and would forfeit a valuable right, which, under all the circumstances, we do not believe is justified or to have been the intention of the parties.

We cannot agree with appellant in her contention that this extension clause is strictly a unilateral contract in the nature of an option, but a reasonable construction of the entire deed is that the grantee and its assigns should have 15 years within which to cut and remove the timber for the original consideration, but that at the end of said 15-year period, that they should pay an additional consideration of 10 cents per acre per annum. Reason dictates that the parties had in mind, at the time of the contract, that in the event of a failure, for any reason, to cut and remove the timber within the 15-year period, that an extension would be desired and therefore it does not come under the rule of strictly unilateral contracts in the nature of an option. There is a distinction between a contract of this kind and most of the contracts under consideration in the cases cited by appellant. Their strongest cases are with reference to the lease of premises for a definite period, with the privilege of extending same to longer periods, and that, in order for the lessee in the contracts to avail themselves of the extension they' should strictly comply with the terms of the contract giving them a right to the extension.

. We understand that it is our duty, in construing a provision of a contract that is subject to two reasonable constructions, to so construe same as to prevent a forfeiture. It will be observed that it is not provided in the deed from Cock to Carwile that the 10 cents per acre per annum should be paid in advance for the extension, and, in the absence of a provision to this effect, we do not think that time of payment of the 10 cents per an-num per acre is of the essence of this provision, and that the notice to Alma Adams ’and to the Cocks, together with the tender of the check to the Cocks and Adams, before the 15-year time limit expired and the formal tender to Alma Adams after the time limit expired, and after slie had acquired the Cocks’ rights under the confirmation deed, and the other conduct of appellees, as disclosed by the record, clearly discloses that it was their desire and that they were making diligent effort in good faith, to comply with the ex-tention clause in the deed, in order to prevent a forfeiture. It would be inequitable, under all the circumstances disclosed by the record, to declare a forfeiture as against ap-pellee.

We therefore overrule appellant’s assignments of error Nos. 3, 4, 5, 6, 7, and 8.

Appellee presents in its brief by cross-assignment complaint against the action of the trial court in rendering judgment for Alma Adams for the sum of $296, instead of the sum of $285, its propositions under said assignments being:

(1) “In the absence of an allegation of fraud and proof thereof, appellant is bound by the estimation of acreage in the deed from the Cocks to Carwile, dated November 23, 1901;” and (2) “the basis for computing the payment for extension was expressly fixed by the contract.”

This deed expresses a consideration of $1 in cash paid and other valuable considerations; the granting clause being as follows:

“Have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto the said W. L. Carwile all of the pine timber now standing and growing upon 2,350 acres approximated of land, situated in the county of Tyler, state of Texas, the same being the eastern portion of the R. Wiggins survey of land, the said 2,350 acres of land upon which said timber is now standing and growing is more particularly described as follows: [Then follows the description of the land by metes and bounds, which ends with “containing 2,350 acres of land, more or less.”]”

No allegation in appellant’s pleading charges fraud or misrepresentation in regard to the approximated estimate of the acreage in the Wiggins tract, which was the basis agreed upon to determine the compensation, and consequently there is no testimony in the record bearing upon the question of fraud or mistake in the acreage. This deed clearly evidences a sale of timber in gross, and that the parties to the deed intended to risk a gain or loss in the approximated quantity of the land. Sibley v. Haynes, 96 Tex. 78, 70 S. W. 538; Rich v. Ferguson, 45 Tex. 396; Watson v. Cline, 42 S. W. 1037; Yates v. Buttrell, 63 Tex. Civ. App. 452, 132 S. W. 832; Lawrence v. Simonton, 13 Tex. 220; Wiuest v. Moehrig, 24 Tex. Civ. App. 124, 57 S. W. 864; Tiffee v. Linsley, 10 Tex. Civ. App. 465, 32 S. W. 80.

Applying the rules laid down in these authorities, we hold that, in the absence of an allegation and proof of fraud or mistake, as in this case, appellee is required to pay 10 cents per acre per annum on the 2,350 acres, as approximated in the deed, instead of 10 cents per acre per annum on the actual number of acres contained in the survey, and that the court erred in rendering judgment against' appellee for the sum of $296, instead of the sum of $235, per annum. We therefore reform said judgment to this extent.

The judgment is so reformed and affirmed.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes