author: PRENDERGAST, J.

text:
    VESTAL v. STATE.
    (No. 4847.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.
    On Motion for Rehearing, April 3, 1918.)
    1. Homicide <&wkey;244(l) — Mubdee— Sufficiency oit Evidence.
    In a prosecution for murder, evidence held sufficient to sustain conviction, in that it showed that defendant killed deceased to rob him, and not in self-defense.
    2. Homicide <&wkey;338(3) — Evidence—Admissibility.
    In a prosecution for murder, where defendant testified on the stand that he pawned the watch in evidence as his property with a pawnbroker under a false name, admission of testimony of one in the jewelry business, enftdoyed by the pawnbrokerage company, that he had seen the watch and the ticket therefor, and that the ticket was issued by his firm, etc., would show no error.
    3. Homicide <&wkey;174(5) — Evidence-—Admissibility.
    In such prosecution, testimony of deceased’s wife that the watch was just like her husband’s, and that in her judgment it was his, was admissible.
    4. Criminal Law <&wkey;665(2) — Trial — Placing Sheriff under Rule.
    Where a murder trial was attended by a great crowd and the courtroom was densely packed, so that the presence and assistance of the sheriff in keeping order was necessary, the trial court properly exercised its discretion in refusing to have the sheriff placed under the rule with the other witnesses.
    On Motion for Rehearing.
    5. Criminal Law <&wkey;1099(5) — Appeal—New Trial — Statement oe Evidence — Filing.
    In order to be considered by the Court of Criminal Appeals, the statement of the evidence heard on motion for new trial must be filed during the term of court at which the trial occurred.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Emmett Vestal was convicted of murder, and be appeals.
    Affirmed.
    J. T. Kelly, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, and assessed the death penalty.

The main, if not the only, question herein is whether the evidence was sufficient to sustain the verdict. That appellant killed deceased, Roscoe Morrell, was clearly proven, and appellant himself swore he killed him. He claimed he killed him in self-defense. The state’s contention, and the evidence as a whole, was amply sufficient to establish that he did not kill him in self-defense, but to rob him.

Deceased was engaged in running a Dodge service car at Weleetka, Okl. Appellant appeared there early in July, dressed in a United States Navy uniform, representing that he was working for the United States in the recruiting service. As a matter of fact he was not so engaged, but was a recent deserter from the navy. He hired deceased to take him down into Texas. At the time deceased left with him deceased had, it appears, at least $55, perhaps more. He had one roll of bills, besides considerable silver. Appellant at the time knew that he left with some, if he did not know how much, money, deceased had. Deceased also took his pistol and watch with him. They were traced by different witnesses, who saw them along the route from Weleet-ka through Dallas to Lancaster, in Dallas county. About 11:30 o’clock of the night before deceased’s body was found very early next morning appellant, with deceased, drove the car into a garage at Lancaster, and had some minor work done on it, and at the time deceased bought and paid for some oil. They remained there only a few minutes, and announced when they left that they might be back a little later, if they concluded not to go on, and get a tank of oil. They left, going south. This was just before midnight. About an hour later appellant returned to Lancaster from the south, walking. He met up with the town night watchman, and told him he had lost the key to his car, and could not start it with his knife, which he had tried. He inquired for a garage, where he might get a key for the car. The watchman directed and went with him to the same garage where deceased had had said repairing done, and woke up the boy there, and appellant inquired for a key to the car. The hoy had none, and refused to go with him to start the car or bring it in. Appellant was very much excited when he saw and first talked with the watchman. When he could get no key for the car, he said he was tired and sleepy, and inquired for a hotel. The watchman directed him to one close, but he did not go to the hotel; instead he struck out in the country easterly afoot. About 2 o’clock that night he stopped at a farmer’s about a mile and a half from Lancaster, but left the farmer’s very early next morning before breakfast, declining to stay to breakfast. About 7 o’clock he reached a town, evidently on the Interurban from Dallas to Corsicana, caught a car, and went to Dallas. There he pawned deceased’s watch, not in his name, but in the name of Taylor, and procured $5 on it. In his flight attempting to make his get-away he is shown to have gone from Dallas south, stopping for a time at different places, finally reaching Victoria, to which place he was traced, found, arrested, and taken back to Dallas.

Just about daylight the morning after they were in the garage at Lancaster, a country boy discovered an empty automobile about a mile and a half south of Lancaster, near a stopping place on the interurban railway. This attracted his attention, and he began looking for some one, and discovered some distance off, the body of a man dead. This was shown by uncontroverted testimony to be the body of deceased. He gave the alarm. The officers and other persons soon appeared upon the scene. They discovered that the deceased had been shot somewhat in the back of the head behind and near the top of the ear. The ball ranged from the side of entry to the other side of the head, but stopped before emerging. It was extracted by the doctor. This shot killed the deceased. A pool of blood near the automobile was found where deceased’s body fell when shot. Appellant picked him up by his feet and dragged the body some distance, and threw it into a ditch beyond a fence in high Johnson grass, where it was almost, if not entirely, concealed from the railroad and the public road crossing it. There was no key in the car, which was necessary to start it. The car was later hauled from where it was found to Lancaster. It was deceased’s car. The officers and other citizens searched the car and all around it. They found no whisky bottles anywhere in or about the car. They searched for that purpose. In tracking where appellant had dragged the body they found near the body the knife of deceased, closed, not open. Along the same route later in the day the key to the car was found in the dust near where the body had been dragged. The witnesses, in describing where they found the knife and key, testified that they appeared to have fallen out of deceased’s pocket as he was dragged along by appellant. The deceased’s suit ease was found in the car, but open, and the witnesses described the things therein as if they had been pulled out in search of something in it. Deceased’s body, the car, and surroundings were searched for money. Not one cent was found. The ground at the car and all around and about it was searched for evidence of any struggle or fight between appellant and deceased. No evidence of such a struggle was found. The ground showed no evidence of any struggle whatever. • When appellant left the body, returning to Lancaster as stated, he took the watch and pistol of deceased, and must also have taken all of the money that deceased had. And doubtless appellant would have taken the car if he could have found or procured a key with which to start it. The evidence would justify the conclusion that appellant would have robbed deceased, not only of his pistol, watch, and money, but the ear also. When arrested the officers found on him the pawn ticket for said watch. He swore that when he left the farmer’s that morning he threw the pistol away at a given place. After being arrested, he told the officer of this, and went with the officer to the place, found the pistol which was identified as that of deceased where he said he had thrown it.

Appellant testified that deceased drank heavily during the whole trip, and especially from the time they reached Dallas to the very time when he killed him. He was in no way corroborated in this by any witness. The proof by the state was to the effect that deceased sometimes drank some, but little at any time, and did not get drunk. Appellant also swore that, after they left Dallas, before reaching Lancaster, deceased began cursing and abusing him. The boy at the garage where they stopped just before 12 o’clock testified that deceased was then entirely sober, showed no sign of drinking, that he was right at him, smelled his breath, and that his breath was free from any odor of liquor. That appellant and deceased at that time seemed to be good friends; were sociable and nice to one another.

Appellant’s claim, further, was that, just before and when they reached the point where the car was stopped and found next morning, and where appellant killed deceased, in substance, deceased was drinking very heavily and very frequently, was drunk, was very abusive of him, cursing and denouncing him in various ways; that something got tire matter with the car; they stopped, and deceased got out to fix it, and that while out deceased got his pistol and threatened and attempted to kill him; that he knocked him down with his fist, got the pistol away from him, and took it himself; that deceased got up and came at him with his open knife in his hand, attempting to cut and MR Mm; that the interurban car was coming along about this time, maMng considerable noise, and that he struct deceased on the head with the pistol in self-defense to keep deceased from killing him with the knife, and that in some way, he did not know how, the pistol was discharged ; that the noise of the car prevented him from hearing the shot, and he did not know at the time he had shot deceased; that' in order to get deceased where he could not be discovered, he took him by the feet and dragged him and put his body where it is stated, above; that in dragging Mm along the deceased kicked and holloed at him. After he had killed deceased he swore that he had written to his father saying:

“I am wanted now on a murder charge; have never been caught yet, so don’t think hard of me for telling the truth and pray for me. Don’t let this be known, because if X am caught X wiR be hung sure.”

It is not undertaken to give in detail the testimony nor all of the testimony of the various witnesses. However, it is amply sufficient to show without doubt that appellant killed deceased for the purpose of robbing him, and that he did not kill him in self-defense. The evidence is amply sufficient to sustain the verdict.

The court gave a fuU and complete charge, submitting every issue in appellant’s favor which was raised by the testimony, to which charge no objection was in any way made.

Appellant has three bills of exception. They were all filed, however, long after the time the court had allowed for filing them. The state makes a motion that they be struck out and not considered because filed too late. The state’s motion is well taken, but because this is a death penalty case we have read each of the bills; and, if they could be considered, they would present no reversible error. The first shows that he objected to the testimony of Mr. Bendel, which was to the effect that he was in the jewelry business, employed by Joseph Samuels Company, who were also conducting a jewelry pawn brokerage business in Dallas; that he had seen the watch which had been introduced in evidence as the deceased’s watch, and that he had also seen the pawn ticket therefor; that 'the pawn ticket was issued by said Samuels firm, and was identified by him as having been issued by said Samuels firm to some one for $5 borrowed upon said watch. He could not say who pawned it; did not know appellant, and did not know that he had pawned it. The court in allowing this bill qualified it by stating, which was a fact, that appellant while on the stand testified:

“I pawned this watch as my property with Joe Samuels under the name of George W. Taylor.”

Under the facts and record in this case this bill would show no error.

In another bill appellant objected to the testimony of Mrs. Morrell, the wife of the deceased, where she swore, when the watch was shown her and asked whose it was, “It is one just Rke his (deceased’s,)” and in further answer to the question, “In your judgment is that your husband’s watch?” she replied, “Yes, sir.” This evidence was clearly admissible. Harris v. State, 62 Tex. Cr. R. 239, 137 S. W. 373.

The other bill shows that the sheriff was excused from the rule by both parties when the trial began; that thereafter and after several witnesses had testified appellant objected to the sheriff further remaining in the courtroom, stating to the court that the sheriff was consulting with the district attorney, and thereupon moved the court to place the sheriff under the rule with the other witnesses in the case, which the court refused. The court allows this bill with this qualification:

“There was a great crowd present during all the time of the trial of the case, and the courtroom was densely crowded, and in the opinion of the court the presence and the assistance of the sheriff in keeping order and properly controlling the trial of the case absolutely demanded the presence of the sheriff in the courtroom, and for that reason the court exercised its discretion in refusing to have the sheriff of Dallas county placed under the rule.”

This presented no error. Hahan v. State, 73 Tex. Cr. R. 413, 165 S. W. 218.

The judgment is affirmed.

On Motion for Rehearing.

Appellant’s motion for rehearing is based solely on his contention that a new trial should have been granted because of the claimed separation of the jury pending the trial. This question was not stated or discussed in the original opinion. Appellant had filed no brief in the case. There has been filed in this court a statement of facts of the testimony of all of the witnesses heard by the court in passing on appellant’s motion for new trial on the ground stated. No file mark of the clerk of the lower court is shown thereon although the clerk certifies that it contains a true and correct copy of the statement of facts heard by the judge in passing on the motion for new trial.

It is well settled that in order to be considered by this court, it is necessary that the statement of the evidence heard on such motion shall be filed during the term of court at which the trial occurred. Reyes v. State, 196 S. W. 533, where a large number of these cases are collated. Hence if this statement was filed in the lower court after the adjournment for the term, it could not be considered. However, under the circumstances, this being a death penalty case, we have read this statement of facts. It is amply sufficient to show that there was no separation of the jury, as contended by appellant in Ms motion. The trial judge expressly states that he found from this testimony that there was no separation of the jury. It is unnecessary to detail the testimony. So that, if this statement was filed after the court had adjourned, it could not tie considered, and therefore no error would he shown by the court’s refusing to grant the new trial on that ground. On the other hand, if it was filed in the lower court in time, then from the testimony heard by the court on the subject he was clearly authorized to find that appellant’s claimed separation of the jury was untrue. So that in either event we must hold no reversible error was shown on this ground.

The motion is therefore overruled.
      <i&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    MORRISON v. O’HANLON.
    (No. 1308.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 20, 1918.)
    1. Adverse Possession <§=»85(3) — Claim oe Ownership.
    A claim of ownership of land, to give rise to a title by limitation, must be open and a distinct claim of ownership, and the mere assertion by an occupant that he might as well have the land as another is not the assertion of an exclusive hostile right or title.
    2. Adverse Possession <S^>9-1 — Payment oe Taxes — Mistake.
    A party is charged with what his deed calls for, and where he makes a mistake in paying taxes on one lot instead of another this will not aid him in acquiring adverse possession of the lot on which he meant to pay taxes.
    3. Adverse Possession <®=o60(4) — Subordí-nate Possession — Change in Character.
    Where an occupant of land took possession in subordination to a better title, having so entered, he was required thereafter to change the character of his possession, and make it of such character as to indicate unmistakably an assertion of claim of exclusive possession in him, if he sought title by limitation.
    4. Adverse Possession <ste>79(l) — Breaking oe Seisin — Tax Deed.
    A tax deed covering land of which an occupant held possession in subordination to the title of the true owner conveyed the title and interest which the occupant possessed, and in effect broke the seisin which he had up to that time, so that, to establish title in himself, he must do so under 10 years’ adverse possession after the tax deed.
    5. Property c®=>10 — “Seisin in Law.”
    Seisin in law is constituted by the formal making and recording of a deed, and the seisin ■of the land is effected without a formal entry.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Seisin in Law.]
    Appeal from District Court, Grayson County; C. T. Freeman, Judge.
    Suit by F. L. O’Hanlon against W. A. Morrison. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Cox & Cox and Wood, Jones & Hassell, all of Sherman, for appellant. J. W. Finley, of Sherman, for appellee.
   HUFF, C. J.

This is the second appeal of this case, and this time from an instructed verdict. The former appeal is reported in 187 S. W. 692, to which reference is made for a more detailed statement of the case. The record in some particulars of this appeal differs from the former; however, the only question remaining is whether Morrison at the institution of the suit by O’Hanlon had title by limitation, either by the three or ten year statute, to lot 3, in block 41, College Park addition to Sherman, Tex., and whether there is any evidence that would have supported a'verdict to this effect. In part, to support the claim of limitation, the appellant relied upon a tax deed from the city of Sherman to J. W. Hollingsworth, who, it may be stated, bought the property and took the deed in his own name for the use and benefit of Morrison, and thereafter made a deed to Morrison for the lot, which deed, however, was never recorded and the evidence in this case shows was lost and a substitute deed executed therefor in 1914. The tax sale was for the taxes for the year 1903 on March 1, 1904. After this year, the year 1905, the land was again sold for the taxes of 1904, and at that sale appellee, O’Hanlon, became the purchaser, but thereafter deeded the land to one of his vendors, which shows in the chain of title, whose interest and that of others he subsequently purchased, placing the fee-simple title to the land in O’l-Ianlon as shown by the record at the time of bis suit. It was practically admitted upon the trial that the tax sale to Hollingsworth in 1904 was made in accordance with law, and that the necessary precedent requirements authorizing such sale had been complied with; and it was also admitted that the sale in 1905, at which O’Hanlon became a purchaser, was likewise valid.

It is manifest under the agreement, if the tax sale in 1904 put the title in Morrison, subject to be redeemed, that the sale for the taxes of 1904, which was made in 1905, conveyed whatever title or color of title Morrison had out of him into O’Hanlon. 1-Ie was therefore remitted to his claim of title by limitation. On the former appeal Morrison testified he asserted no claim of title until 1904 under his tax deed. On the last trial he testified he claimed title to the lot in 1900 and 1901, and one or two witnesses testified he so claimed to them and asserted that it ■was his lot. One of the witnesses testified that Morrison told him he could not find the owner of the lot and that he might as well have it as anybody. It is admitted by Morrison that he was trying to find the owner to the lot for some time, from 1898 up until 1901; the testimony not being very.definite as to the time. During the time he was looking for the owner he was staking his cow and horse on the lot to graze through the summer. He placed lumber thereon, his mower, wagon, and buggy; in fact, all the evidence of the possession that he ever exercised over the lot were the same before he made any claim of title as they were aft-erwards. The evidence shows that other people used the lot for grazing purposes as lie did, but be says without bis permission. He does not appear to have objected- unless at one time, and that was through his brother-in-law. The lot was open to the commons, unfenced, and with no improvements on it until about two years before this .suit was filed, when he fenced it. Until that time there had been no open, visible assertion of ownership, or such that would give notice that he was asserting title hostile to the true owner, or that he had changed his attitude to the true owner from that which existed when he first began to use the lot. His acts afterwards were as they had been previous thereto, while admitting ownership in another.

The mere fact that he asserted that he might as .well have it as another does not show that he asserted any exclusive hostile right or title. If he asserted ownership in himself to one or two he also admits that he during that time was trying to find the owner ; he could not blow both hot and cold. His claim of ownership must be open and a distinct claim of ownership. He did not pay taxes on this lot. He says he paid on lot 4 by mistake in the redition. He certainly knew the number of the lot he purchased at tax sale. Lot 4 was immediately back of him and across the alley. The extension of his north arid south lines form the north and south lines of lot 4. Lot 3 was north of lot 4. The evidence indicates that he was claiming 4 instead of 3.

A party is charged with what his deed calls for, and we can see no reason why he should have made the mistake in paying on lot 4 instead of lot 3. He permitted lot 3 to sell for the taxes due for the year in which he says he purchased it. He never tried to redeem it or pay the taxes for that year. We can find no evidence or fact which would have justified a jury in finding that he asserted or had hostile possession of the lot, such as can be said to have been exclusive; adverse, visible, and such as would notify the owner ■that it was so held until he put his fence around the lot about two years before the suit was instituted. The appellee herein has a regular chain of transfers from and under the sovereignty of the soil, as well as a conveyance of any title or claim which appellant had by virtue of his tax deed or previous occupancy. This interest was purchased in 1903, less than 10 years before the filing of the suit, August 27, 1914; therefore there could have been no 10 years’ possession from such purchase. The possession, if in fact it was- such, when Morrison began using the lot, was in subordination to the better title, as he himself admits.

Having so entered he was' required thereafter to change the character of his possession and make it of such character as to indicate unmistakably an assertion of claim of exclusive ownership in him. The character of possession was not changed from what it was when holding admittedly in subordination to the true owner. The only change in this record from what it was on the former appeal is that he now says he claimed title before the tax deed and told others that he did so. His brother-in-law testified that he said he might as well have it as another, and this did not assert a claim of title in himself; on the contrary, it recognized the right of others. In our judgment, he has only shown that he was a mere casual trespasser on the lot, without objection frgm the owner or by permission of the owner. We believe' that the view as expressed by this court on the fprmer appeal is supported by the authorities cited therein. Mhoon v. Cain, 77 Tex. 316, 14 S. W. 24; Satterwhite v. Rosser, 61 Tex. 166; Buford v. Wasson, 49 Tex. Civ. App. 454, 109 S. W. 275, and the other cases therein cited.

If our former opinion was correct, the trial court correctly instructed a verdict; and, in addition to the former appeal and record, we think the tax deed of 1905 to appellee conveyed the title and interest which appellant then possessed, and in effect broke the seisin of appellant which he had up to that time, and in order to recover he must do so under 10 years’ adverse possession after that date, which period had not been filled when this suit was filed. As a general proposition, seisin in law, by the holdings in this country, is constituted by the formal making and recording of a deed, and the seisin of the land is effected without a formal entry. See Sei-sin, Rawls’ 3d Revision, Bouvier’s Law Dict, vol. 3, p. 3036; Collier v. Couts, 92 Tex. 234, 47 S. W. 525.

We think the tax collector’s deed, when executed, conveyed for appellant all his title and interest, as well as his seisin of the land to appellee.

We believe the judgment should be affirmed.
      ifesFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    RICK FURNITURE CO. v. SMITH.
    (No. 7903.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 9, 1918.
    Rehearing Denied March 23, 1918.)
    1. Judgment @=>18(2) — Action for Injuries —Support by Petition.
    In an action against the seller of a porch swing for injuries to the buyer when a supporting hook gave way, where the buyer did not rest his case alone on the allegation that the seller had breached its warranty safely to hang the swing, but alleged independently that the seller, having agreed to hang and having hung the swing, was guilty of negligence in hanging it, and that such negligence proximately caused the injury, the petition supported judgment for the buyer, though the evidence showed the hanging of the swing was free of charge, and a gratuity by the seller.
    2. Negligence @=>2 — Liability — Gratuitous Service.
    Where the seller of a porch swing undertook to hang the same for the buyer, and did so negligently so that a support gave way, and the buyer was injured, the seller was liable to the buyer, though the hanging of the swing was purely gratuitous, for, by undertaking to hang the swing, the seller bound itself to exercise ordinary care to make it reasonably safe for the use to which the buyer intended to put it.
    3. Trial @=>234(7) — Instructions—Burden of Proof.
    In an action for injuries, where the case was submitted on special issues, and the court instructed that the burden of proof was on plaintiff to make out his case by a preponderance of the evidence, that was sufficient, and it was not error to refuse defendant’s special charge that the burden was on plaintiff to show want of contributory negligence.
    4. Appeal and Error @=31067 — Harmless Error — Refusal of Charge.
    If the special charge should have been given, the error, if any, in refusing it, was not calculated to cause the jury to render improper verdict.
    5. Corporations @=>491 — Furniture Company-Ultra Vires.
    The undertaking of a furniture company, which sold porch swings, to hang a swing sold a customer, was not beyond the scope of its charter powers and ultra vires, so that no liability could attach to the company for damages resulting to the customer from a negligent hanging.
    6. Evidence @=>178(7) — Secondary Evidence — Predicate for Admission.
    In an action for personal injuries, where plaintiff proved that he had a permit or license from the state to act as insurance agent for a life insurance company, and that the license had been lost or destroyed, parol testimony of plaintiff and his wife that plaintiff had the license, etc., was admissible; proper predicate having been laid, and there being no degrees of secondary evidence.
    Appeal from District Court, Dallas County; E. B. Muse. Judge.
    Suit by J. A. Smith against the Rick Furniture Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Muse & Muse, of Dallas, for appellant. Geo. Clifton Edwards, of Dallas, for ap-pellee.
   TALBOT, J.

The appellee sued the appellant to recover damages for personal injuries received through the negligence of appellant. The appellant is a private corpo-. ration engaged in the sale of furniture and porch swings. In due course of business it sold to appellee such a swing, and hung the same on the porch of appellee’s residence in his absence. Th'e swing was rather heavy, about 4% feet long, with arms and high back, and made to hang from a ceiling by chains and hooks. The porch where the swing, was hung was ceiled, and the ceiling joists were 1x4 timbers. There is no proof that these timbers were defective. On the contrary, it appears that they were sound and suitable for the purpose intended, and were such as are often used in small cotí tages, such as appellee’s was, and ample to support the swing. Shortly after the swing was hung, and while being used in the ordinary way by appellee it fell, resulting in the breaking of appellee’s leg. The fall of the swing did not result from the breaking or giving way of the joist. It resulted from the pulling out of one of the supporting hooks that had ‘been screwed through the ceiling of the porch and into the joists. This hook had not been put straight in the center of the joist and solid wood, hut was put in by appellant’s agent crooked, and too near the edge of the joist, and evidently by guess. The other hook, which was put in the same joist, went practically straight into the solid wood, and did not pull out, but remained firm.

Appellee alleged that he bought the swing in response to the offer of appellant to deliver and hang same safely at his residence for the purchase price, namely, $4.50; that said offer was made in express terms at appellant’s place of business, and likewise in implied terms by appellant by advertisements widely circulated; that appellant expressly and also impliedly, by said advertisement and by said sale at its regular place of business, warranted to appellee that it would hang said swing safely at appellee’s residence; that by and through its authorized agent, acting within the scope of his employment, appellant did hang the swing, alone selecting the place on the front porch of appellee’s residence. The appellee in a separate count of his petition further alleged that appellant was guilty of negligence, in that it did not employ careful and competent employes to put up the swing, that its employés who put up the swing did not use that degree of care that ordinarily prudent, cautious, and competent persons would use under the same or similar circumstances in hanging the swing, but did hang said swing in . a careless, negligent, and unsafe manner, and that said negligence directly and proximately caused and contributed to cause the fall of the swing and appellee’s injuries; that said swing as so erected by appellant did not constitute a safe appliance such as appellee contracted for, but did constitute an unsafe and dangerous appliance that was a real and veritable trap for appellee, when he endeavored to use it in a proper and careful manner, which he was doing at the time it fell.

Appellant answered by general denial, and specially that it advertised the swings for sale, and advertised to hang them free of charge to the purchaser, but said advertisement formed no part of any contract of sale with purchasers of such swings, and that the free hooks and) free hanging of swings for each purchaser when desired, as advertised, was but a gratuity or contribution to purchaser, and wholly without consideration, and that the hanging of the swing and furnishing of the hooks therefor was a gratuity by the appellant to the ap-pellee'in his said purchase of the swing; that the swing was hung by it with ordinary care on appellee’s porch; that the rafters in the porch were concealed by the ceiling timbers, and that the rafters of the porch were defective and insufficient to sustain the swing, and which defects were concealed from it by the porch ceiling; that the appellee was charged with notice of all of such defects, and assumed all risks under the gratuity aforesaid. It denied liability, and alleged that the negligent use of the swing by the appellee contributed to the accident..

Twenty-one assignments of error are found in the brief, but many of them present in different form the same question. They will not, therefore, be taken up and discussed in .detail. Appellant first complains of the court’s action in refusing to give a special charge directing ■ the jury to return a verdict in its favor.- The proposition is:

That “the petition basing the right of recovery upon breach of warranty to safely hang the swing as a part of the consideration of the sale of the swing and the evidence showing the hanging of the swing to be free of charge and a gratuity'by the appellant, the petition does not support the judgment; that the averment of the cause of action based upon breach of contract and warranty is not supported by a liability arising upon a gratuitous service.”

The peremptory instruction requested was correctly refused. The appellee did not rest his case alone upon the allegation that appellant had breached its warranty to safely hang the swing. He alleged, independently of that claim, that appellant, having agreed to hang and having hung the swing, was guilty of negligence in hanging it; that such negligence proximately caused his injury, and for that reason he was entitled to recover. The case was submitted to the jury, upon ample testimony to authorize it, upon this issue of negligence; the claim based on the alleged warranty not being submitted in any form whatever. This had the effect to withdraw from the consideration of the jury any question of the appellant’s liability by reason of the alleged warranty. The jury found that the appellant failed to use ordinary care in hanging the swing, that the appellee did use ordinary care to ascertain whether or not the swing had been safely hung, that appellee’s leg was broken as a result of the falling of the swing, that ap-pellee was not guilty of contributory negligence, and that he suffered damages in.the sum of $950. These were material issues raised by the pleadings and the evidence, and the jury’s findings upon them clearly authorized the judgment rendered. This is true, even though’it should be conceded that the hanging of the swing was a pure gratuity. Having undertaken to hang the swing, appellant thereby bound itself to exercise ordinary care to make it reasonably safe for the use to which appellee intended to put it. This view is supported by authorities cited by appellee. The rule is , thus stated in 9 Oye. 310:

“The promise of a gratuitous service, although not enforceable as a promise, involves liability to, use oz-dznaz-y caz-e and skill in pez-foi-mance.”

In Bailey v. Walker, 29 Mo. 407, the court, after announcing the well-established rule that a promise, to suppoi't an action, must be founded on a sufficient consideration, said:-

“If a man without any consideration promises to do a thing, and fails to do it, he cannot be sued for such failure; but if he does undertake it, and by negligence does it in a manner to cause loss to him for whom he is acting, he will be bound to make good that loss.”

likewise the Supreme Court of New York in Thorne v. Deas, 4 Johns. (N. Y.) 84, held that an action will not lie for nonfeasance of a gratuitous act, hut stated the principle we think applicable here thus:

“If the party who makes this engagement, enters upon the execution of” it “and does it amiss, thz-ough the want of due care, by which damage ensues to the other party, an action will lie for this misfeasance.”

The witness Hal Howard testified that he had been vice president of the appellant, and that he had also acted as salesman; that he made the sale of the swing in question to appellee, and that he told appellee that the swing would be hung free; that they were hanging the swings at that time without any extra charge. He further said:

“We hung these swings fi-ee for the convenience of our customers; that was one of our ways of advertising, securing business. In making this sale we intended it to be just as that advertisement said, the swing to be hung free of cost; that was the inducement that the house used toward inviting or securing the volume of trade.”

That he appreciated the duty imposed upon appellant by such an undertaking is plainly shown by this further statement:

“We meant that that swing should be hung with reasonable safety; that reasonable care should be exercised by our men hanging it, to hang it reasonably safe.”

We do not wish to he understood as holding that the evidence fails to show that the undertaking of appellant to hang the swing was without any consideration to support it. The judgment' of the trial court, for the reasons stated, being supported, whether there was or was not any such consideration, it is useless to decide that question.

There was no material error in refusing to gire appellant’s special charge, to the effect that the burden of proof was on the appellee to show want of negligence on his part under special issue No. 2 in the main charge. The case, as hereinbefore stated, was submitted on special issues, and the court instructed the jury that:

“The burden of proof is on the plaintiff to make out his case by a preponderance of the evidence; this the law requires him to do, to entitle him to recover.”

This was sufficient. If for any reason the special charge should have been given, the error, if any, in refusing it, was not at all calculated to cause the jury to render an improper verdict.

The next contention is that the trial court erred in refusing to give the following special charge requested by appellant:

“You are instructed that the undertaking by the defendant corporation to hang the swing alleged was beyond the scope of its charter powers, and was an ultra vires act, and that no liability can legally attach to said corporation for any damages that may have resulted therefrom.”

We think there is no merit in this contention. The appellant was engaged in selling furniture and swings, and the hanging of the swing in question was an act reasonably necessary and usually incident to the prosecution of its business. That appellant so regarded it is clearly manifested by the testimony of Mr. Howard, appellant’s vice president, to the effect:

That a great many of appellant’s customers were women; that their husbands would come home late, tired and -that appellant hoped to put up these swings and relieve them of that extra trouble; that “we thought in doing so we would gain their appreciation, which would be evidenced later in buying goods there. The Rick Furniture Company wanted them to buy goods there. These advertisements were business transactions of ours.”

As said by this court in Phoenix Hand Co. v. Bxall, 159 S. W. 486, the doctrine of ultra vires, “when invoked for or against a corporation, should not be allowed to prevail when it would defeat the ends of justice or work a legal wrong.” The hanging of swings, as disclosed by the record, was regarded by appellant, and evidently was, a natural and profitable incident to its authorized business, and it cannot here avail itself of the plea of ultra vires.

The admission of the evidence referred to in the eigfiteenth assignment of error furnishes no sufficient ground for a reversal of the case. The assignment, however, relates to different and unrelated matters, is multifarious, and really not entitled to consideration. Among other things complained of in the assignment is the admission of testimony of the appellee and his wife to the effect that at and before the accident the appellee had a permit or license from the state to act as insurance agent for the American Life Insurance Company, and that he had suffered pecuniary loss by reason of inability to work for a considerable period of time as a result of his injury; the objection to the testimony being that such fact was not provable by oral testimony, since the original license, or certified copy thereof, from the insurance commissioner, was the best evidence. The objection was not well taken in this case. As pointed out by counsel, the appellee proved, as a predicate for the admission of the parol evidence objected to, that appellee had such license from the state and that the same had been lost or destroyed. There are no degrees of secondary evidence, and under the showing made the parol evidence was admissible.

We have carefully examined all the assignments. We think none of them disclose reversible error, and the judgment of the district court is therefore affirmed.

Affirmed.
      tgncoFor other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    HOUSTON OIL CO. OF TEXAS v. BROWN.
    (No. 281.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 28, 1917.
    Rehearing Denied April 8, 1918.)
    1. Adverse Possession <©=114(2) — Boundaries — Sueficiency of Evidence.
    Evidence held sufficient to support a finding that plaintiff in trespass to try title, claiming' by adverse possession, had constructed her buildings within the boundaries of defendant’s land.
    2. Boundaries <@=335(2) — Surveys — Evidence.
    Testimony of an old settler was, admissible to show that calls in a grant were consistent with the footsteps of the surveyor.
    3. Boundaries <@=325 — Surveys.
    Senior surveys control junior surveys.
    4. Adverse Possession <@=368 — Possession.
    Possession is adverse, within the statute, although entry on land is made with no original right, but only for the purpose of acquiring limitation and making a home.
    5. Adverse Possession <@=345 — Appointment of Receiver — Effect.
    Appointment of a receiver for a corporation does not stop the running of limitations against the corporation as to one holding land of the corporation adversely.
    6. Adverse Possession <©=> 114(2) — Extent of Claim.
    Evidence held not to show that one claiming land adversely claimed only to specified boundaries, so as to render judgment for an undivided 160 acres erroneous.
    7. Trial <©=3133(2) — Improper Argument.
    Argument in trespass to try title, “Are you going to allow the H. Oil Company of Texas to move these lines where they want them to be? If you do, there may come a time when it will come and move your lines around your lands” — although highly improper, was not reversible, where the jury was admonished, and there was nothing to show it was influenced thereby.
    8. Appeal and Erro» <©=3882(8) — Harmless Error — Evidence.
    Where both sides introduced similar evidence, without objection, one party, cannot later complain that the evidence was improper.
    9. Boundaries <@=33'd(1) — Surveys — Evidence.
    It was proper to testify where lines under surveys were actually run upon the ground, and where improvements were located with reference to such lines.
    10. Trial <@=3244(1) — Submission of Issues —Requested Charges.
    Where the court gave all the material issues in its charge, it was not error to refuse a special charge, that sought to single out and submit a question to the jury that was not controlling.
    11. Adverse Possession <©=396 — Issues—Extent of Possession.
    In action where plaintiff- claimed title to 160 acres of land by adverse possession, the question of encroachment not being raised, the distance plaintiff was on defendant’s land was immaterial.
    Appeal from District Court, Tyler County; W. R. Blackshear, Judge.
    Trespass to try title by Mrs. M. J. Brown against the Houston Oil Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Kennerly, Williams, Lee & Hill, of Houston, for appellant. Tom F. Coleman and Thomas & Wheat, all of Woodville, for appellee.
   BROOKE, J.

The appellee instituted this action in trespass to try title against the appellant to recover an undivided 160 acres out of the M. L. Abbott 960-acre survey, in Tyler county. Her claim of title was under the 10-years statute of limitations. Appellant pleaded not guilty, and, by way of cross-action, asked for judgment against appellee for all of the Abbott survey. .

On the trial of the case it was agreed that the appellant owned the title to all of the Abbott survey, unless the appellee had acquired title to a part thereof under the 10-years statute of limitations. After refusing to peremptorily instruct the jury to return a verdict in favor of the appellant, the court, over appellant’s objections, submitted the case to the jury on the following issues:

First. Has the plaintiff, Mrs. M. J. Brown, had peaceable and adverse possession of the property in controversy, cultivating, using, and enjoying the same for at least a period of ten years prior to the filing of her suit, as against all parties whomsoever? The jury answered this question, “Xes.”
Second. Is the plaintiff’s (Mrs. M. J. Brown’s) dwelling house, crib, garden, chicken house, and the five acres in field abandoned by her some two years ago, located on the Andrew Dikes survey or on the M. L. Abbott survey? The jury answered, “On the Abbott.”
Third. Was the possession, cultivation, and use, if any, of the land covered by plaintiff’s improvements, if any, sufficient, under all the facts and circumstances in evidence before you, to constitute notice to the defendant that the plaintiff was claiming 160 acres of land out of the M. L. Abbott survey? The jury answered this question, “Xes.”
Fourth. If you have answered the foregoing question “No,” then you will not answer the following question; but if you answer the foregoing question “Xes,” then you will state what 160 acres of land plaintiff’s possession, cultivation, and use, if any, under all the facts and circumstances of this case; gave notice of her claim to the defendant. The jury answered this by stating, “That part of the M. L. Abbott’s survey including Mrs. Brown’s improvements.”

Before the court’s main charge was read to the jury, the appellant duly objected and excepted thereto. The appellant duly requested the court to peremptorily instruct the jury to return a verdict in its favor, and asked other special charges, which charges the court refused. The appellant filed its formal motion to set aside the verdict of the jury and for a new trial. Thereafter, on motion of the plaintiff, the court rendered judgment in her favor for an undivided 160 acres of the Abbott survey, and appointed commissioners to effect a partition thereof. Thereafter the appellant duly filed its amended motion to set aside the verdict and judgment, and for new trial, and to the action of the court in overruling this motion the appellant duly excepted and gave notice of appeal, and thereafter in due time filed its appeal bond superseding the judgment of the trial court.

On the trial of this case the appellee endeavored to show that her improvements were on the M. L. Abbott survey, and that her possession had been of such nature that she had acquired title to an undivided 160 acres including her improvements. The appellant, however, insisted that the improvements of the appellee were not on the Abbott survey, but were on the Andrew Dikes survey, of which the appellee was admittedly the owner; and that, regardless of whether her improvements were on the Abbott or on the Dikes, or on that part of the Abbott covered by the junior Dikes survey, the character of the possession of the appellee was wholly insufficient to entitle her to an undivided 160 acres out of the Abbott.

The appellant contends that the judgment of the trial court should be reversed for the following reasons:

(1) The undisputed facts in this case show that the improvements of the appellee were not on any part of the M. L. Abbott survey, of which the appellant is admittedly the record owner, so that this ease for this reason should be reversed and rendered.
(2) The most that can be said for appellee is that her improvements were on that part of the Dikes survey owned by her conflicting with a part of the M. L. Abbott survey, so that ap-pellee can recover no more of the Abbott survey than that small part of it covered by the Dikes.
(8) Under the undisputed facts, the appellee did not show any title under the 10-years statute of limitations, and this case should be reversed and rendered, because: (a) Appellee’s possession was not adverse, within the meaning of the statute, in that she expressly admitted that she had no claim of right to the land, but went on it purely for the purpose of acquiring 160 acres under the 10-years statute of limitations; (b) appellee sued for and the judgment awarded her an undivided 160 acres out of the entire Abbott survey, while she expressly admitted that she claimed 160 acres out of a definite part of the Abbott survey, her claim not being to an undivided interest in the whole survey, as alleged in her petition; (c) as the United .State Circuit Court at Houston, through its receiver, from March, 1904, until April, 1909, was in possession and control of the Abbott survey, and was vested with the title thereto, the appellant having no title or authority with reference to said property, and as all the parties by said court were enjoined from interfering with its possession, the appellee’s occupancy, which began in August after the court took possession of said property in March, was not sufficient to constitute adverse possession, the property being in custodia legis.
(4) On the trial of the case, over the objections of the appellant, witnesses for the appel-lee were permitted to testify and to give in evidence their opinions and conclusions with reference to the location of the west line of the M. L. Abbott survey, the east line of the A. Dikes survey, and other material lines as well as corners, the locations of which were contested, so that this case should, at least, be reversed and remanded because of the admission of such improper evidence before the jury. ,
(5) The counsel for the appellee made harmful and improper argument to the jury, telling them that, if they located the lines as claimed by appellant, “there may come a time when it will come and move your lines around your land,” which argument alone would require this case to be reversed and remanded.

The first assignment is as follows:

“The court erred in failing and refusing to peremptorily instruct the jury to return a verdict in favor of the defendant, the defendant being the admitted owner of the land, unless plaintiff has acquired title under the ten-years statute of limitations, plaintiff having wholly failed to show any title to the land or any part thereof.”

The propositions under this assignment are:

(a) “It was error for the court to refuse to peremptorily instruct the jury as requested, for under the undisputed evidence, as a matter of law, it was shown that none of appellee’s improvements were on the Abbott survey, the land in controversy; so that appellee showed no possession of the land, it having been agreed that the appellant owned the land unless ap-pellee had acquired title under the ten-years statute of limitations.”
(b) “It was error for the court to refuse to peremptorily instruct the jury as requested, for under the' undisputed evidence, as a matter of law, it was shown that the appellee’s improvements were on the Andrew Dikes survey, owned by her, and not on the Abbott survey; so that appellee showed no possession of the land in controversy, and appellant was therefore entitled to judgment, as it was agreed that appellant owned the record title to the Abbott survey, and that appellee to show title relied solely on the ten-years statute of limitations.”
(c) “As the undisputed evidence showed that the west line of the Abbott survey had a fixed location, according to its field notes, east of appellee’s improvements, and as the undisputed evidence showed that the Dikes east line was definitely located by its own field notes east of appellee’s improvements, such showed that ap-pellee had had no possession of the Abbott survey as required under the ten-years statute of limitations to acquire title, so that the court erred in refusing to peremptorily instruct the jury as requested.”
(d) “As the field notes of the Abbott and Dikes surveys call for corners and lines of surrounding surveys, and contain no inconsistent calls, it is- not admissible to show by parol evidence that a different survey was in fact made for the purpose of controlling the calls in the grants.”
(e) “As the calls in the field notes of the Abbott and Dikes surveys, when applied to the land, correspond with each other, parol evidence was not admissible to vary them by showing that in point of fact they were not the calls of the survey as actually made.”
(f) “As there was no conflict in the calls in the field notes of the Abbott and Dikes surveys, there was no room for construction, and the calls must speak for themselves, for to permit the introduction of parol evidence to vary such calls would be to violate the familiar rule that extraneous evidence is not permissible to vary a written instrument.”
(g) “Where field notes call for certain known and established monuments and boundaries, they may not be controlled by parol proof of a survey entirely inconsistent with and repugnant to the calls of the grant.”

On the contrary, it is contended that the location of a survey on the ground, or footsteps of the surveyor, control all classes of calls, and that the verdict of the jury finding that Mrs. Brown resides upon the M. L. Abbott survey, there being evidence to support their verdict, is conclusive on appeal; and also that the proof amply supports the verdict that Mrs. M. J. Brown’s improvements were on the M. L. Abbott survey, they being east of the Abbott and Dikes common division line, and such verdict ought to remain undisturbed.

The field notes of the Dikes survey are as follows:

“The State of Texas, County of Tyler.
“Corrected field notes of a corrected pre-emption survey of (160) one hundred"and sixty acres of public land made Andrew Dikes, it being the quantity of land to which he is entitled by virtue of his affidavit & designation _ (corrected) made according to an act of the Legislature approved Aug. 12, 1870, granting pre-emption to settlers; said survey is situated in Tyler county, on the waters of the Neches river, about 17 miles N. 24 deg. E., from Woodville. Beginning 400 vrs. W. from the N. E. cor. of R. Gregory’s survey of 320 acres and on N. line of same, which is a S. W. cor. of a survey of about 900 acres made for Martin L. Abbott, the same being the S. E. cor. of a survey made for R. L. 1C. McCartney (abandoned), a stake from which a pine 10 inches in diameter bears N., 30 deg. W., 4 vrs., and a pine 8 inches in diameter bears S., 55 deg. W., 4 vrs. (old bearings gone); thence N.. on W. line of Abbott’s survey at 535 vs., a post in a field; thence W., at 90 vrs., E. Dickerson’s S. E. cor., continues W. on S. line of said Dickerson’s at 910 vs., large branch, and at 950 vrs. S. W. cor. of same, a stake from which a red oak brs. S., 76 deg. E., 3 vrs., and a white oak brs. N., 56 deg. W., 3 vrs.; thence N., on Dickerson’s W. line, at 300 vrs., cor. stake, from which a magnolia brs. S. 9 deg. W., 6 vrs., and a dogwood S., 23 deg. W., 4 vrs., the same being a cor. the G. & B. Nav. Co. No. 41; thence W., on S. line of said survey, at 473 vrs., interior cor., a stake, from which hickory brs. N., 28 deg. E., 3 vrs., ánd a black' gum brs. .S., 14 deg. W., 6 vrs.; thence S., on E. line of same, at 835 vrs., another interior corner of said G. & B. Nav. Co. No. 41, a stake from which a post oak brs. N., 8 deg. W., 8■ vrs., and a small post oak, 3 inches in diameter, brs. N., 80 deg. E., 3 vrs. (the old pine gone); thence E., on N. line of same, at 500 vrs., passed Gregory’s N. W. corner, and at 1.425 vs., place of beginning. Bearings mark, X & X.
' Tl
“•Resurveyed and corrected for Andrew Dikes, April 20, 1888.”

The field notes of the McCartney survey, which was surveyed prior to the Dikes survey, and which said survey is embraced entirely by the Dikes survey, are as follows: “The State of Texas, County of Tyler.

“Field notes of a survey of (160) one hundred and sixty acres of land made for R. L. K. Mc-Kartney, it being the quantity of land to which he is entitled by virtue of an act approved February 13, 1854, granting pre-emption privileges to settlers said survey, is No.-, in Tyler county, situated on the waters of the Neches river, about 14 miles north, 16 east of Woodville. Beginning four hundred varas west of the N. E. corner of a 320-acre survey made for R. Gregory at a stake from which a pine bears N., 76 E., 16 vs., and a black jack bs. S., 39 W., 9 vs.; thence north 535 varas, a stake from which a pine bs. S., 83 E., IV] o vs., and a pine bs. S., 32 W., 2 vs.; thence west at 910 vs. crossed a small creek, course north, at 950 varas stake from which a red oak bs. S., 76 E., 3 vs., and white oak bs. N., 56 W., 3 vs.; thence north 300 vs. a corner stake, from which a magnolia bs. S., 9 W., 6 vs., and a dogwood bs. S., 23 W., 47/io vs. ; thence west 473 varas a stake, from which a hickory bs. N., 2S 'E., 2 varas and a black gum bs. S., 14 W., 6 vs.; thence south 835 varas to a stake from which a post oak bs. N., 8 W., 8 vs., and a pine bs. N., 59 E., 10 vs.; thence east, at 500 varas, the N. W. corner of said R. Gregory’s survey, at 1,442 vs., the place of beginning.
“Bearings marked X M.
“Surveyed Augt. 25th, 1856.”

The field notes of the Dickerson survey, which seems to have been surveyed on the same day as the Dikes survey, are as follows:

“Field notes of a survey of 160 (one hundred and sixty) acres of land made for Elizabeth Dickerson, it being the quantity of land to which she is entitled by virtue of an act approved Feb. 13 A. D. 1854, granting pre-emption privileges to settlers, said survey is Ño. —, in Tyler county, on Tallents creek, a tributary of the Neches river, about 15% miles north from Woodville. Beginning ninety varas west of the N. E. corner of a survey made for R. L. K. McKartney, at a stake from which a pine bears S., 3 deg. W., 20 vs., and another pine brs. S., 86 deg. 30' E., 30 vs.; thence west, with the N. line of said McKartney’s survey, 8601 varas to his N. W. corner, from which a red oak brs. S., 76 deg. E„ 3 vrs., and a white oak brs. N., 56 deg. W., 3 vs.; thence north, at 370 vs., crossed Tallents creek, 3 vs. wide, course north on this line crossed said creek 16 times, at 1,050 varas, a stake, from which a pine brs. S., 3 W. 3 vs., and a sweet gum brs. N., 62 deg. W., 1 vs.; thence east 860 varas to a stake, from which a pine brs. S., 36 deg. E., 36/io vs., and a pine brs. S„ 56 deg. E., l4 vs.; thence south 1,050 varas to the place of beginning. Bearings marked X. Surveyed August 25, 1856.”

The field notes of the R. Gregory survey, dated August 20, 1847, being the oldest survey of all the surveys mentioned, are as follows:

“About 13% miles N., 17 E., from Woodville. “State of Texas, District of Liberty.
“Survey for Richard Gregory of 320 acres of land situated in Tyler county, on the waters of Neches river, about 6 miles W. from Theuven-on’s bluff on said river, being the amt. of land to which he is entitled by virtue of certificate No. 1575, county court No. 189, issued by the board of land com’rs for San Augustine county. Beginning at a stake 3,845 varas N., 62 west, from the southwest corner of a survey made for William Pamplin, from which a hickry mkd. X bs. N., 72 E., 5 vrs., and a pine mkd. X brs. N., 3 vrs.; thence north 1,344 varas to a stake, from which a blk. oak marked X brs. S., 45 E., 5 varas, and a post oak marked X bears N. 1 varas; thence east 1,344 varas to a stake, from which a pine marked X bears south, 20 E., 2 varas and a black jack marked X bears N., 60 W., 6 varas; thence south 1,344 varas to a stake, from which a pine marked X bears south, 70 west, 5 varas, and a pine marked R bears E. 9 varas; thence west 1,344 varas to the beginning.
“¡Surveyed 20th day of August, 1847.” •

The field notes of the M. L. Abbott survey are as follows:

“Beginning on the E. line of a 320-acre sur. for R. Gregory, at the N. W. cor. of sec. No. 44, G. & G. N. Go., a stake, a pine brs. N. 4 vrs., do. W. 3% vrs.; thence E., on N. line of sec. No. 44, at 1,402 vrs., to its N. E. cor., and N. W. cor. of sec. No. 45, at 1,467 vrs., S. W. cor. of sec. No. 46, G. & B. N. Go., a stake, a pine brs. S., 48 deg. E1., 10 vrs., do. N., 45 deg. E„ 10 vrs.; thence Ñ. with the W. line of sec. 46, at 2,009 vrs., N. W. cor. of same, a stake, a pine brs. S., 6 deg. E., 3% vrs., do. S., 70 deg. W. 17 vrs.; thence E., at 298 vrs., S. W. cor. of sec. No. 49, G. & B. N. Co., a stake, a pine brs. N. 62 deg. W., 11% vrs., do. S. 6% vrs.; thence N., at 1,352 vrs., in W. line of No. 49, cor. stake, a pine brs. S., 25 deg. W., 7 vrs.; do. N., 15 deg. E., 9 vrs.; thence W., at 270 vrs., road at 606 vrs., E. line of a pre. survey for Wm. Payne, a stake, a pine brs. N., 47 E., 4 vrs., do. N., 23 W.; thence S., on Payne’s E. line, at 595 vrs., S. E. cor. of same, a stake, a pine 16 vrs. brs. S. 85 W., 10 vrs., do. 22 ins., brs. N., 25 deg. W., 11 vrs.; thence W. on S. line of same, at 590 vrs., E. line of a pre. sur. for Jas. Abbott, a cor. stake on large branch C. N. E., at sweet gum, brs. N. 7 vrs., a beech 10 ins. brs. S., 58 W., 9 vrs.; thence S., at 55 vrs., large branch, at 2Í5 vrs., Abbott’s S. W. cor., a stake, a pine brs. N., 37 deg. E., 10^4 vrs., do. S., 23 deg. E., 1014 vrs.; thence W., at 60 vrs., branch at 710 vrs., cor. stake on Jas. Abbott’s S. line, at pine, brs. S., 20 E„ 7 vrs., do. B. 67 E. 6 vrs.; thence S., at 1,356 vrs., N. E. cor. of a pre. sur. for Andrew Dikes, at 1,996 vrs., Dikes’ S. E. cor., on N. line of R. Gregory’s sur., a stake, a pine 20 ins. brs. 13 vrs., do. 18 ins. N'., 41 deg. W„ 12 vrs.; thence E., at 400 vrs., Gregory’s N. E. cor., stake, pine brs. S., 20 deg. E., 2 vrs., a B. J. N., 10 deg. W. 6 vrs.; thence S., at_555 vrs., the place of beginning, bearings mks. X.”

In addition to tlie field notes of the Andrew Dikes survey, as per the calls therein, the appellant produced a witness, T. M. Hyde, who testified that he knew the plat marked Exhibit 23 in this opinion; that he begins at point 27, thence south to point 30, thence east to point 31, the southeast corner of R. Gregory, at an identified corner, thence north to point 20, there found stump, the northeast corner of Gregory; taking this identity of the Gregory, the oldest survey, then running west 400 varas, as called for by all the field notes, we locate the southeast comer of the Dikes at the point contended for by appellee. He further testified that using the plat marked Exhibit 24 in this opinion, which shows the old corners and established R. Gregory survey, and taking the northeast corner as thus established, about which there seems to be no dispute in this record, and then running west 400 varas, as called for by all of the surveys and by the field notes of A. Dikes, the point is located as the southwest corner of Dikes, as contended for by appellees. Mr. I-Iyde further testified that the R. Gregory survey is located as shown in Exhibit 24, and by black lines in Exhibit 23, and that to run from its northeast corner west 400 varas, as called for in the field notes of the Dikes’ and Abbott’s, to a corner, then running north as called for, the east line of Dikes and west line of Abbott, an identical or common line, is west of Mrs. Brown’s place, and throws her improvements all on the Abbott. He says, further, that the red and yellow lines indicated by him in Exhibit 24 could not have been run in 1856, or even as long ago as 1888, but the red lines are new lines. That the yellow lines are imaginary.

Without setting out in detail, it is sufficient to say that the Dickerson survey is a junior survey; that appellee introduced a witness, W. H. Worthy, who testified as follows:

“I owned part of the Gregory and Dickerson surveys. I was present when John McBride, surveyor, was making the original field notes of the Andrew Dikes, and establishing corners of Dikes’ on the R. Gregory, that was the southeast corner of the Dikes. In running north from that southeast corner made by John McBride, Mrs. Brown’s place would be to’ the east of such line on the M. L. Abbott survey. McBride surveyed for Dikes, on which he got his patent, it was in 70’s, and since called Dikes’ survey (before that called McKartney survey). McBride then run north and located the northeast corner of Dikes,’ Mrs. Brown’s place, east of this line. McBride ran that line for Andrew Dikes; he rrin it out to establish his corners.
“1 carried the chain when Mr. Hyde surveyed it, and from the northeast corner of Gregory to southeast corner of Dikes, 400 yards, and a stump is there at the place McBride made the southeast corner of Dikes. I didn’t know the stumps as trees were cut. But I knew it was right there. I had seen it put there. I was present when J. P. Mettauer, Mr. Hinman, and a surveyor from Kountze run the lines of Abbott, Gregory, and Dikes. They run the line of Abbott and Dikes west of Mrs. Brown’s place. I was there assisting in the work. My wife heired one-half of Gregory. Her father was R. Gregory.”

Mrs. Brown, the appellee, testified for herself.

“I know where the old original line is (of Dikes and Abbott); it is west of my house.”

She further testified that she knew all the time she was on the Abbott, erected her present home thereon, garden, outhouses, and other improvements, and her husband’s-farm he left her was already thereon.

Therefore, in our opinion, the testimony is sufficient and ample to support the verdict of the jury in so far as that is called in question by the assignment, and shows why one of the parties, as above set out, who was on the ground at the time the original survey was - made, and when the southeast corner of the Dikes survey was placed there, that the same was at the point contended for by the appellees. It is further shown that all the old lines, up to three or four .years ago, together with the testimony of the oldest inhabitants who knew the same, to know where the said corner was situated, that the said comer was originally located at the point contended for by the appellee; and it is further shown that the new lines, as shown, in Exhibit 24, were by all the witnesses and testimony, perhaps, shown to have been made within the past three or four years, and were not old lines. The parol testimony offered to show that the oldest inhabitants knew of the original line called for in the Dikes field notes, beginning with Mr. Worthy, who was present and testified exactly where the southeast corner of the Dikes was made upon the ground, seems to coincide with the testimony and the calls of the grant of the Dikes survey; that the original surveyor, by his footsteps and his work, placed upon the-ground the line as contended for by the appellee ; and, as has been above stated, - the said calls are not inconsistent with, but followed, the calls in the grant.

We are of opinion that the testimony along this line was admissible, not for the purpose of contradicting, but showing that the calls in the grant were consistent with the footsteps of the surveyor, as he ran the line upon tlie ground. The northeast corner of the Richard Gregory seems to have been clearly established, and practically is without dispute. Taking that as a basis, all the grants; and especially the grant of the Dikes, call to begin at the northeast corner of the Richard Gregory, and run from thence 400 varas, and fix the southeast corner of the Dikes at this point. We are of opinion that this record bears out clearly that the verdict, as found by the jury, is, in fact, correct, and does fix the southeast corner of the Andrew Dikes survey to be at the place contended for by appellee.

This comports with the universal rule that senior surveys control junior surveys, and we think this record shows that the east line of the Dikes is a common line with the west line of the Abbott, and that it was so placed there by the original surveyors. Believing as we do, the assignment is overruled. Fulton v. Frandolig, 63 Tex. 330; Converse v. Langshaw, 81 Tex. 275, 16 S. W. 1031; Jones v. Burkitt, 150 S. W. 275; Oliver v. Mahoney, 61 Tex. 610; McAninch v. Freeman, 69 Tex. 447, 4 S. W. 369; Moore v. Reiley, 68 Tex. 670, 5 S. W. 618; Sloan v. King, 33 Tex. Civ. App. 542, 77 S. W. 50; Shelton v. Bone, 26 S. W. 225; Busk v. Manghum, 37 S. W. 461; Goodrich v. West Lbr. CO., 182 S. W. 348; Chesson v. La Flore, 191 S. W. 745; Polk v. Reinhard, 193 S. W. 690; Hughes v. Hughes, 191 S. W. 743; Stark v. Brown, 193 S. W. 718.

In this connection it might be well to say, with reference to the contention that the appellee had no claim of right to the land, but entered upon the land purely for the purpose of acquiring limitation, without claim of ownership of right, and therefore her possession is not adverse, under the statute, that the Chief Justice of our Supreme Court has recently handed down an opinion touching the Stevens v. Pedregon Case in 106 Tex. 576, 173 S. W. 210, in which he uses the following language:

“It is urged that there was no proof that D. M. Jones had any claim to the land when he entered upon it, and none that his occupancy was continued under any claim other than an intention to hold the land as a home. For this reason it is contended that his possession was not adverse within the meaning of the statute, because not commenced and continued under ‘a claim of right.’ Stevens v. Pedregon, 106 Tex. 576 [173 S. W. 210], is relied upon in support of this proposition.
“The statute defining ‘adverse possession,’ article 5681, is as follows: ‘Adverse possession is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.’
“While the requirement that the appropriation of the land must be commenced and continued ‘under a claim of right inconsistent with and hostile to the claim of another’ was first incorporated in the statute in 1879, at an early day this court announced that such claim was an essential element of adverse possession. Portis v. Hill, 3 Tex. 273. The present statutory definition of ‘adverse possession,’ in' a word, is simply that which the court had always held it to mean, and as other authorities generally had defined it. For instance, it was said by Judge Moore in Word v. Drouthett, 44 Tex. 365, decided in 1875: ‘His entry upon the land must be with intent to claim it as his own or hold it for himself; or his intention to do so, if conceived after going into possession for some other purpose, must be manifested by some open or visible act or declaration showing such purpose, in order to set the statute in motion in his favor. Wash, on Reál Prop. 125; 2 Smith’s Dead. Gases, 561.’
“The court has a number of times declared that a naked trespasser may acquire a limitation title to land under the ten-years statute. Smith v. Jones, 103 Tex. 632 [132 S. W. 469, 31 D. R. A. (N. S.) 153], Craig v. Cartwright, 65 Tex. 413, and Word v. Drouthett are among the decisions so holding.
“It was not the purpose of Stevens v. Pedre-gón to overrule this established holding of the court, though there is an expression in Chief Justice Brown’s opinion that is to some extent confusing.
“The ‘claim of right’ to which the statute refers simply means that the entry of the limitation claimant must be with the intent to claim the land as his own, to hold it for himself, and such must continue to be the nature of his possession. That it is necessary that his entry upon or holding of the land be founded upon his having some character of title is opposed to the theory of the ten-years limitation statute.” Houston Oil Co. of Texas v. H. C. Jones et al., 198 S. W. 290.

With reference also to the ninth proposition under the first assignment, in which it is contended that the M. D. Abbott survey was from March, 1904, until April, 1909, in the possession and control of the United States Circuit Court at Houston, Tex., and its receiver, which court enjoined all parties from interfering with its possession, so that limitation could not begin to run until the property passed from the control of the court, in April, 1909, even if appellee’s occupancy was of the Abbott survey, that the peremptory instruction should have been given, and that as the Abbott survey was in custodia legis from March, 1904, until April, 1909, and as the appellant and all other parties were restrained from interfering with possession of the court, limitation did not begin to run against appellant in favor of ap-pellee until after the control of the court over such property ceased, even if appellee was on said survey; it is contended by ap-pellee, on the other hand, that the appointment of a receiver does not in any way affect the running of the statute of limitation, for the mere appointment of a receiver does not suspend the right of action against the corporation or its receiver to bring suit for a recovery of its property, unless the proceeding in which the receiver is appointed has resulted in dissolving the corporation, or seeks a judicial dissolution, and the court enjoins the prosecution of any action, and that the reason the rule exists is that the existence of the corporation is not destroyed, or even suspended, by reason of the property or franchises being held in custody of a court of equity. It is further contended that the receiver’s relations with the corpo* ration and its property are substantially those of a trustee, and limitations are uniformly held to run against the property or action held by a trustee and to bar the beneficiary. It is further contended that, even though a receiver has been appointed, the company may, by leave of the court, sue to recover property in its own name against any one except the receiver; and, further, that, where there is some one in esse who can bring the suit, the statute of limitation will run, and it is undeniable that the receivers could have brought an action; the same principles apply as of executors and administrators who are vested with the property even of a minor. It is further argued that no disabilities intervened because of the appointment of receivers for the Houston Oil Company of Texas, for the suit did not dissolve the corporation, nor was its dissolution sought, and no injunction restraining interference, by suits or otherwise, as against the company.

It seems that paragraph 11 of the order appointing a receiver vests them with all property of the company, and paragraph 15 of said order appointing the receivers provides:

“Said receivers are hereby authorized and empowered to collect, as far as possible, _ accounts, etc., * * * and are fully authorized and empowered to sue in their name as receivers for and recover all the moneys, property, or assets of said company, and to that end are authorized to institute and prosecute all such suits by supplemental and ancillary bills herein, or in other courts of competent jurisdiction that may fye necessary for the protection and preservation of, or in reducing to possession the properties, rights, and assets of, the said company.”

A consideration of the contentions of both parties leads us to the conclusion that the contention of appellant is unsound. 25 Oyc. 1282, states the following:

“As a general rule, mere appointment of a receiver does not in any way affect the running of the statute of limitation.”

Thompson on Corporations, §§ 6S94, 6895, states:

“The mere appointment of a receiver does not suspend the right of'action against a corporation itself, unless the proceedings in which the receiver is appointed has resulted in dissolving the corporation, or it is the purpose to judicially dissolve the corporation, and the court enjoins the prosecution of any action against the corporation during the pendency of the suit, and gives as the reason for this rule because the existence of the corporation is not destroyed or even suspended by reason of the property or franchises being held in custody of the court of equity.” Johnson v. Talley, 60 Ga. 540; White v. Meadowcroft, 91 Ill. App. 293; Williams v. Taylor, 99 Md. 306, 57 Atl. 641; Kirkpatrick v. McElroy, 41 N. J. Eq. 539, 7 Atl. 647; Meuseback v. Half & Bro., 77 Tex. 187, 13 S. W. 979; Belt v. Cetti, 100 Tex. 98, 93 S. W. 1000; Rindge v. Oliphint, 62 Tex. 685; Thomas v. Greer, 6 Tex. 372; Richardson v. Vaughan, 86 Tex. 93, 23 S. W. 640; Houston Oil Co. v. Griffin, 166 S. W. 902.

In the Griffin Case, just mentioned, it is held that the appointment of a receiver did not stop the running of the limitations that had begun. Cook on Corp. (7th Ed.) vol. 4, p. 3367, § 871, states the general rule that the appointment of a receiver does not stop the running of limitations in favor of a corporation, and cites Jackson v. Fidelity Co., 75 Fed. 359, 21 C. C. A. 394; Int. Ry. Co. v. McCulloch, 24 S. W. 1101. In the same volume, p. 369, § 871, he says: Even though a receiver has been appointed, the corporation may, by leave of the court, bring actions in its own name against any one, except the receiver, to try the legal title to property. Ry. Co. v. Sandoval, 111 Ill. 32; M., K. & T. Ry. Co. v. Graham, 12 Tex. Civ. App. 54, 33 S. W. 576; Smith v. T. & N. O., 101 Tex. 410, 108 S. W. 819.

The second assignment of error is as follows:

“The court erred, to the prejudice of the defendant, in submitting the case to the jury, and in rendering judgment against the defendant, because under all of the evidence in the case, as a matter of law, it was shown that plaintiff’s improvements were on the Dikes survey, and were not on any part of the M. L. Abbott survey ; so that under no theory of the case could judgment have been rendered except in favor of the defendant for all of the land in controversy, it having been agreed that defendant was the owner of the M. L. Abbott -survey, unless plaintiff had acquired title to a part thereof under the ten-years statute of limitations, and defendant having filed its cross-action against plaintiff for all of the Abbott survey.”

We have considered this matter as best we could under the first assignment, and we are of opinion that there is no merit in the assignment and that the same must be overruled.

The third, fourth, fifth, and sixth assignments will be considered together, as follows :

(a) “The verdict of the jury and judgment of the court to the effect that plaintiff’s improvements are on the Abbott survey are erroneous, and are against the law and the evidence; and should be set aside, because, under the undisputed evidence in the case, the west line of the M. L. Abbott survey can be located with definiteness and certainty from the established corners of the Abbott survey, there being no evidence to show that the location from such established corners, by course and distance, should be disregarded and some other call given effect, so that such west line of the Abbott, when so located, is entirely east of plaintiff’s improvements.”
(b) “As the undisputed evidence in this case shows that plaintiff was not entitled to recover any land other than that on the A. Dikes survey, the court should have given defendant’s requested charge No. 2, instructing the jury that plaintiff could recover only the land on the A. Dikes survey, and that as to the Abbott survey the verdict should have been in favor of the defendant. The court erred, to the prejudice of the defendant, in refusing to give its special charge No. 2, as follows: ‘Gentlemen of the jury, in this case you are instructed that, under all the facts most favorable to the plaintiff, she-can recover no more land than is included within the A. Dikes survey, and you will therefore return your verdict in favor of the defendant, and against the plaintiff, for all of the M. L. Abbott survey not in conflict with the A. Dikes survey’ — because under all of the evidence in this case, taking that most favorable to plaintiff, all of her improvements were on that part of the Dikes survey owned by her in conflict with the Abbott survey owned by the defendant.”
(c) “As it appears from the evidence that the plaintiff entered upon land purely for the ■ purpose of acquiring title by limitation, and under no claim of ownership or right, her possession would not be adverse under the statute; hence the verdict of the jury and the judgment of the court in plaintiff’s favor are erroneous and highly prejudicial to the defendant.”
(d) “As the uncontroverted evidence shows that plaintiff had no claim of right to the land at the beginning and during the continuance of her occupancy, but, to the contrary, showing that her sole intention was to claim 160 acres when her title should become full and perfect under the laws of limitation, the verdict of the jury and judgment of the court both are erroneous and prejudicial to the defendant, and therefore should be set aside.”

Without going into detail on the merits of these assignments, a great many of which and perhaps all have been covered in the opinion as to the first assignment, and after a careful consideration of the same, we are of the opinion that the same should be overruled.

The seventh assignment of error is as follows :

“As the evidence in this case shows that plaintiff claimed.a definite line as the south boundary .of the land that she claimed on the M. L. Abbott survey, and as plaintiff sued for an undivided ICO acres of said Abbott survey, the evidence is insufficient to support the verdict of the jury and judgment of the court awarding to plaintiff an undivided 160 acres of land, it not being shown that plaintiff claimed an undivided 160 acres, but, to the contrary, that she made claim to a specific south boundary.”

This assignment is submitted as a proposition, and also the following proposition is made:

“The verdict and judgment, giving appellee an undivided 160 acres out of the entire Abbott survey, must be set aside, for the appellee herself testified that she did not claim 160 acres out of the entire Abbott survey, but claimed 160 acres out of a definite part of the Abbott survey, so that the verdict and judgment are not supported by the evidence, but are contrary thereto; and that as the 160 acres claimed by appellee has its south line definitely fixed, the verdict and judgment awarding to plaintiff an undivided 160' acres out of the entire Abbott survey are not supported by the evidence, and must be set aside.” ■ ■

On the contrary, it is contended that there is no evidence of Mrs. Brown’s claim to a specific tract by which judgment could be rendered for a defined portion of the Abbott. Mrs. Brown' testified, in part, as follows:

“I told Mr. Hopson that I claimed 160 acres on the M. L. Abbott survey. I told him that I claimed 160 acres on the Abbott right there where my. house sets. Q. What was the south line of the 160' acres, that you claim? A. The 160 acres there where the. house was. 1 claimed that the R. Gregory was the south line of. my 160 acres. I claimed the 160 acres which south line was on the north line of the R. Gregory. I didn’t say whether I was claiming in a square , or not.” .

There seems to have been no other evidence about a specific claim.' She seems to indicate that she claimed to a specific line which was a boundary of the Abbott, but no testimony of a claim to a specific tract or a specific 160 acres. In our opinion, this evidence tends to show a claim to the specified M. L. Abbott survey down to the Gregory line. Her house'was not more than 500 varas from the Gregory line. We find no merit in the assignment, and it is therefore overruled.

Appellant’s eighth assignment is as follows:

“The court should grant the defendant a new trial in this case, for the reason that in his argument to the juiy on the question of whether or not the east line of the Dikes survey was located on the ground at the place where plaintiff claimed it, or at the place where the defendant claimed it, the counsel for the plaintiff made improper and unfair argument as follows: -‘Gentlemen of the jury, are you going to permit the Houston Oil Company of Texas to move these lines where they want them to be? If you do, there'may come a time when it will come and move your lines around your lands’— which argument must have prejudiced defendant’s case before the jury, especially as the verdict of the jury was so contrary to the great weight and preponderance of the evidence as to be clearly wrong, to which argument the defendant then and there in open court duly excepted because such argument was inflammatory and prejudicial to the defendant, was calculated to prejudice the jury against the defendant, and intended to alarm them,” etc.

The bill of exceptions to the above language reads in part as follows:

“To which argument of said counsel the defendant then and there in open court duly excepted, because such argument was inflammatory and highly prejudicial to this defendant, calculated to prejudice the minds of the jury against the defendant; because saíne was an appeal to the local feeling of the various jurymen, tending to alarm them as to the safety of their own lands and land lines; because such argument was entirely out of the record, not supported by the facts or the pleadings, and was a request that the jury find against defendant in order to protect their own interests against the defendant; because such argument, though withdrawn by the court, and though the jury were told by the court not to consider the same for any purpose, remained in the minds of the jury, and likely would result in putting the defendants in an unfavorable attitude before the jury.”

The argument was improper, but, as presented by the record, there is no reason to believe that it influenced the jury, and nothing is shown which would indicate that it did influence the jury. The court instructed the jury not to consider the improper language used by the counsel in argument, and the verdict shows plainly that it was not the result of improper argument, but was based upon the facts of the case in this record. We do not feel that in this attitude of the case,' with a record that 'reflects throughout that the jury arrived at the conclusion which they- did upon ample testimony, that we would be called upon to reverse and remand the case for the above improper argument alone. However, we desire to say and to emphasize that such argument should not be permitted to be used, as it seems in this case, in so far ac the court was concerned, was not. We are of opinion that the language used, although highly improper, is not of such gravity in this particular case as would render it right to reverse the case on that ground alone. The assignment is overruled. The ninth, tenth, and eleventh assignments will be considered together, as follows:

(a) “The court erred; to the prejudice of the defendant, in permitting plaintiff’s witness Best, over the objections of the defendant, to testify that the line between the Abbott and Hikes survey was west of plaintiff’s improvements, when the testimony of the witness showed clearly that he was testifying as to his opinion and conclusions, and not from any known facts, and not from anything found on the ground called for in the field notes to the Dikes or the Abbott surveys, his testimony showing that he only went there for the purpose of seeing the line, and there being nothing to show that the line about which the witness testified was the correct line.”
(b) “The court erred, to the prejudice of the defendant, in permitting plaintiff’s witness Worthy, over the objections of the defendant, to testify that the line between the Abbott and Dikes survey was west of plaintiff’s improvements, when the testimony of the witness showed clearly that he was testifying as to his opinion and conclusions, and not from any known facts, and not from anything found on the ground called for in the field notes to the Dikes or Abbott surveys, his testimony showing that he only went there for the purpose of seeing the line, and there being, nothing to show that the line about which the witness testified was the correct line. The court erred, to the prejudice of the defendant, in permitting plaintiff’s witness Worthy, over the objections of the defendant, to testify as to where the line between the Dikes and Abbott surveys' was located, because the location of this line was a controlling issue in the case which should have been left to the determination of the jury from all of the facts in evidence, uninfluenced by the opinion and conclusions of the witness as to where he believed the line was located.”
(e) “The court erred, to the prejudice of the defendant, in permitting the witnesses for the plaintiff, over the objections of the defendant, to testify that the east line of the Dikes survey •was west of plaintiff’s improvements, so as to place plaintiff’s improvements on the Abbott survey, because such testimony necessarily was as to conclusions and opinions of the witnesses on a material and important issue in the case, which should have been determined only by the jury, uninfluenced by opinions and conclusions of witnesses testifying on the trial, and because such testimony was in conflict and antagonistic to the location of the land by the field notes of the survey. The court erred, to the prejudice of the defendant, in permitting plaintiff's witnesses to testify, over the defendant’s objections, that plaintiff’s improvements were east of the Dikes survey, on the Abbott survey, and that the east line of the Dikes and west line of the Abbott was west of plaintiff’s house, because such testimony was in conflict with and antagonistic to the location of the Dikes and Abbott surveys, and of the line between- them when established according to the field notes of each of the surveys, so that the testimony of the witnesses was an attempt on the part of the plaintiff to locate the Dikes survey and the Abbott survey, and the line between them, otherwise than by the locative calls, in the field notes of said surveys.”

It seems that testimony of the same character was produced, by both appellant and appellee without objection or reservation. It further appears from the record that- the testimony of these parties was to the effect as. to where, lines were actually located, and showed the west line to be the old line, and the only line run upon the ground until very recent years, the evidence saying the' improvements were east of such old and only line, and, in our judgment, this was properly admitted. Best, one of the witnesses for appellant, testified with reference to these matters, which testimony was brought out by appellant. The assignment, in our judgment, has no merit, and the same is overruled.

The twelfth assignment of error is as follows:

“The court erred, to the prejudice of the defendant, in' refusing to give its requested charge No. 5, as follows: ‘Gentlemen of the jury, was the possession, cultivation, and use, if any, by the plaintiff, of the land covered by her improvements, if any, sufficient to constitute to the defendant notice that plaintiff was claiming 160 acres of land or only the land covered by her improvements? You will answer this question by stating what you believe the facts to be in your own words’ — because such issue of fact was clearly raised by the evidence in the case, so that the defendant was entitled to have the specific question determined by the jury.”

The court gave appellant’s special charge No. 4, which reads:

‘ “Gentlemen of the jury, was the possession, cultivation, and use, if any, of the land covered by the plaintiff’s improvements, if any, sufficient, under all the facts and circumstances and evidence before you to constitute notice to the defendant that the plaintiff was claiming 160 acres of land out of the M. L. Abbott survey? You will answer this question ‘Yes’ or ‘No,’ as you may find the fact to be. If you answer the foregoing question ‘No,’ then you will not answer the following question, but if you answer the foregoing question ‘Yes,’ then you will state what 160 acres of land plaintiff’s possession, cultivation, and use, if any, under all the circumstances and facts of this case, gave notice of her claim to the defendant.”

The jury answered the first question “Yes,” and to the last question, “We answer that part of the M. L. Abbott survey including Mrs. Brown’s improvements.”

The court gave, as above set out, in its charge the material issues in the case, and it was not error for the court to refuse a special charge that sought to single out and submit a question to the jury that was not controlling. Having given the charge as above stated, it was not error to refuse the further charge as complained’of by the appellant. ‘ The assignment is overruled.

The thirteenth and fourteenth assignments of error are as follows:

(a) “The court erred in refusing to submit to the jury defendant’s requested charge No. 8, as follows: ‘Gentlemen of the jury, at what distance and in what direction is the northeast corner of the A. Dikes survey from the southeast corner of the E. Dickerson survey, if any? You will answer this question in your own words as you find the fact to be’ — because, taking the view of the case most favorable to plaintiff, a question of, fact, was raised as to what distance and direction,, .if either, the northeast corner of the Dikes survey was from the southeast corner of the Dickerson survey. As, under the view of the case most favorable to plaintiff, a question of fact was raised as to whether or not the northeast corner of the Dikes and the southeast corner of the Dickerson were located at the same place, or whether or not the northeast corner of the Dikes was 90' varas east of the southeast corner of the Dickerson, such issue of fact should haye been submitted to the jury for their determination, and the court erred, to the prejudice of the defendant, in refusing its requested charge No. 8.”
(b) “As there was evidence showing that the west line of the Abbott survey was ninety varas or more east of the southeast corner of the Dickerson survey, and as the evidence showed that all of the plaintiff’s improvements were less than ninety varas east of the southeast corner of the Dickerson, there was raised a question of fact as to whether or not the west line of the Abbott survey was east or west of the plaintiff’s improvements, so that the defendant was ¿¿titled to have the jury pass on the specific question as to what distance and what direction the west line of the Abbott was from the southeast corner of the Dickerson survey, and which issue was set out in defendant’s requested charge No. 9, refused by the court, which refusal of the court to submit the charge was erroneous and prejudicial to the defendant, and to which action the defendant duly excepted. The court erred, to the prejudice of the defendant, in refusing to give defendant’s requested charge No. 9, as follows: ‘Gentlemen of the jury, at what distance and in what direction is the west line of the M. L. Abbott survey from the southeast corner of the E. Dickerson survey, if any? You will'-answer this question in yoúr own words as you may find the facts to be’— because the defendant was entitled to have the jury say where the west line of the Abbott survey was located under all of the facts in evidence, the defendant being entitled to have the jury pass on the specific question involved.”

In our opinion, the court in its charge gave to the jury the material issues in the case, and it was not error to refuse a special charge that sought to single out and submit a question to the jury that was not controlling.

The jury found that Mrs. Brown was on the Abbott survey. In our judgment, it becomes immaterial about the distance, no facts indicating from this record that it was an encroachment, and no question of encroachment was raised.

All the field notes call for the distance 400 varas from the northeast corner of the R. Gregory to the southeast corner @f the Dikes and the southwest corner of the Abbott, which calls, in our judgment, should control oyer the 90 varas distance the appellant sought to have found as a fact.

We' have carefully gone over the entire record, which is very lengthy, and the questions arising upon the trial. We believe that the appellant had a fair and impartial trial; that the facts presenting its defense were submitted to the jury in a brief and comprehensive way; that the jury has found from the evidence, which in our judgment was ample, in favor of the appellee; and, finding no error in the record that would warrant us in setting the judgment aside, we -are of opinion that the judgment ought to be in all things affirmed. It is so ordered.
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