author: HENDRICKS, J.

text:
    ALDRIDGE et al. v. HAMLIN et al.

    (No. 886.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 4, 1910.
    Rehearing Denied March 22, 1916.)
    1. Elections <@=>83 — Voters—Right to Vote —Poll Tax.
    Where an elector on the 1st day of January, 1912, was subject to payment of a poll tax and failed to pay the same, his vote at an election October IS, 1913, is properly rejected.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 77-81; Dec. Dig. <@=>83.]
    2. Elections <@=>94 — Voters—Conviction.
    Where a voter had been convicted of felony and his sentence suspended under Acts 32d Leg. c. 44, which was held unconstitutional, the suspension was void and the voter was not qualified, not having been pardoned.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 91; Dec. Dig. <@=>94.]
    3. Elections ®=>29,5(1)^-Voters — Evidence,
    Where the vote of two Mexicans was questioned, testimony that the precinct in which they lived was sparsely settled, that no other Mexicans lived there, and that such persons had not resided there for sufficient time to vote, is admissible and will support a finding rejecting their ballots.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 297; Dec. Dig. <@=>295(1).]
    4. Elections <@=>72 — Voters—Residence.
    Where one whose ballot was rejected owned a farm in the county and intended to return whenever he could find some one who would live with and care for him, the ownership of the farm did not constitute a residence, it appearing that he actually was in another county.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 67, 68, 70; Dec. Dig. <@=>72.]
    5. Elections <@=>295 (1i) — Voters—Evidence.
    In an election contest, evidence held sufficient to warrant the rejection of a voter’s ballot on the ground that he resided in another state.
    [Ed. Nóte. — For other cases, see Elections, Cent. Dig. § 297; Dec. Dig. <@=>295(1).]
    6. Elections <@=>73 — Voters—Residence.
    Where one actually resided in the county and sent his children to school there, the fact that he voted at a school election in another state and paid poll taxes there, it appearing that he wanted to keep his legal residence in such state to acquire public lands, will not preclude him from voting in the county of his residence.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 69, 70'; Dec. Dig. <@=>73.]
    7. Elections <@^73 — Voters—Removal.
    That a resident, in the discharge of his duties, temporarily removed from the county, being assured by the railroad company for which he worked that he would be returned, will not, where he retained his family home in the county, deprive him of his residence therein, and right to vote.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 69, 70; Dec. Dig. <@=>73.]
    8. Elections <@=>300 — Voters — Qualifications.
    In an election contest, the question whether a voter had resided in the county for a sufficient length of time to vote, held a question of fact.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 308-313; Dec. Dig. <@=>300.]
    9. Elections <@=>72 — Voters — Qualifications.
    A voter who managed a business in Texas took his meals in a town across the state line in New Mexico, but he slept and kept his ef-fects_ in the building where the business was carried on. Held, that his residence was in Texas and he was entitled to vote therein.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 67, 68, 70; Dec. Dig. <@=>72.]
    10. Elections <@=>72 — Voters—Residence.
    That a voter who had resided in the county and state for a sufficient length of time intended ultimately to return to a distant state, does not deprive him from acquiring a legal residence and the right to vote.
    11. Elections <@=>73 — Residence—Temporary Removal.
    [Ed. Note. — For other eases, see Elections, Cent. Dig. §§ 67, 68, 70; Dec. Dig. <@=>72.]
    That one who owned a farm in the county and resided there, temporarily removed during a season of drought, but returned, does not deprive him of his residence in the county, and he may vote therein.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 69, 70; Dec. Dig. <@=>73.]
    12. Elections <@=>73— Voters — Temporary Removal.
    That a voter temporarily removed from the county, but intended to return and resume business therein, does not, where he retained his home in the county, work a loss of residence, depriving him of the right to vote.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 69, 70; Dec. Dig. <@=>73.]
    13. Elections <@=>295(1) — Voters—Actions— Evidence.
    In an election contest, evidence held sufficient to sustain a finding that a challenged voter had a residence in the county and was entitled to vote.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 297; Dec. Dig. <@=>295(1).]

      14. Emotions ©^S-L-Voters — Evidence. Where from practical considerations a voter
    had changed his mind as to his vote on the question of a change of the county seat, his ballot ■will not be rejected because of subsequent attempts to coerce him into voting as he did.
    [Ed. Note. — Por other cases, see Elections, Gent. Dig. § 205; Dec. Dig. <&wkey;234.]
    15. Elections @=>295(1) — Contest—Voters— Residence — Evidence.
    In an election contest where a voter’s ballot was questioned, evidence held sufficient to sustain a finding that he had acquired residence in the county.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 297; Dec. Dig. @=>295(1).]
    16. Elections @=573 — Contest — Voters — Residence.
    Where a voter, while waiting to get a residence in a Texas town, temporarily removed to an adjacent New Mexico town, the fact of his temporary residence, that he acted as if he was a resident of New Mexico, will not, it appearing that he returned, deprive him of his right to vote in Texas.
    [Ed. Note. — Por other cases, see Elections, Cent. Dig. §§ 69, 70; Dec. Dig. @=>73.]
    17. Constitutional Law @=>35 — Exercise oe Powers — Mandatory Provisions.
    Where a power is expressly given by the Constitution and the mode of exercise is prescribed, such mode is exclusive.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 34%; Dec. Dig. @=>35.]
    Appeal from District Court, Parmer County; D. B. Hill, Judge.
    Election contest by J. H. Aldridge and •others against J. D. Hamlin and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Carl Gilliland, of Hereford, and Madden, Trulove, Ryburn & Piplsin, of Amarillo, for appellants. W. Boyce, of Amarillo, and Sam G. Bratton, of Clovis, N. M., for appellees.

      Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

This case involves the ■contest of an election, over the removal of the county seat of Parmer county, Tex., from Farwell to Parmerton. The county judge, in announcing the returns and declaring the result of the election, stated a total of 228 votes, 110 for the county seat remaining at Farwell, 114 for removal to Parmerton, three for Friona, and one for Bovina. As canvassed, Parmerton not having received the majority (its vote being equal to Friona and Farwell), the result was declared in favor of the county seat remaining at Far-well. The election was ordered on September 15, 1913, and held October 18, 1913.

The district judge concluded that the vote of one of the boxes was incorrectly shown in the returns and the ballots in that box were recounted, and, after passing upon the qualifications of certain voters, challenged by both sides, and rejecting two ballots, on account of their condition, announced a numerical result as follows: “For remaining at Farwell, 100 votes; for removal to Bovi-na, 1 vote; for removal to Parmerton, 95 votes; for removal to Friona, 3 votes;” the trial judge also declaring, “that the true result of said election was in favor of the county seat remaining at Farwell.”

The trial court sustained 17 challenges offered by the contestees as to the qualifications of voters casting their ballots for removal to Parmerton, which were deducted by the court from Parmerton’s vote. The action of the trial court rejecting ten of said voters is not excepted to in this court. The appellants, however, attack the rulings of the court as to the qualification of the following voters, deducted from the total vote for removal to Parmerton: T. M. Yelverton, Wilbur Ford, A. J. Grim, S. G. Deanda, Meteo Romo, Jim Martin, and W. A. Anderson.

W. A. Alderson (or Anderson) was a claimant of public land in New Mexico, but the court held he was in reality a resident and citizen of Parmer county, Tex., on the theory that his evanescent visits to his claim and temporary stay of very short duration in New Mexico did not manifest a real intention to reside on the land, or make that state his home; that he worked for one Jersig, a ranch owner in Texas, continuously since 1910, and for a year or more previous to the election was foreman of Jersig’s ranch; that some time during 1912 he relinquished his claim in New. Mexico, concluding that he could not make his proof of occupancy. The court had the right to conclude that he was a resident of the state of Texas, on the first day of January, 1912, and, being subject to the payment of a poll tax, and not having the same, was not entitled to vote.

The court found that the voter Wilbur Ford was convicted of a felony (theft of cattle), and his punishment assessed at two years in the penitentiary; that he had not been pardoned, nor his civil rights restored. The trial judge had suspended the sentence of this defendant under the provisions of chapter 44, Acts of the Thirty-Second Legislature. This act, affecting this particular question, was held unconstitutional in the case of Snodgrass v. State (Cr. App.) 150 S. W. 162, 41 L. R. A. (N. S.) 1144, and in a companion case (Cr. App.) 150 S. W. 178. The law was amended and held constitutional on account of the elimination of certain features, in Baker v. State, 70 Tex. Cr. R. 618, 158 S. W. 998. We are disposed to follow the Court of Criminal Appeals on this question, and hold that the sentence of suspension was void, and that the voter wás not qualified.

Deanda and Romo, whose votes were deducted by the court from Parmerton’s total, were Mexicans. They began to work for the railroad company on the section at Bovina in September, 1913, and left in November, 1913.

Another Mexican, who was a section hand upon the same section, and who voted at the same election, testified that Deanda and Romo began work at Bovina after he (Rubalcoba) went there. Elliott and Warren, in the employment of the railroad company, testified from the records of the company that the Mexicans began work for the railroad company in Parmer county, in September, 1918, and' their work ended in November, 1913. Bovina, where these men worked, was not a large place, and the precinct is sparsely settled. Others testified as to their acquaintanceship with the people of that section and knew of no other Mexicans residing in this precinct, except those working on the section. The testimony, though of a negative character as to the residence of these Mexicans (except during {he period of their employment as section hands), was sufficient to exclude the time of residence to qualify them as eligible voters. This character of testimony is permissible and relevant. McCormick v. Jester, 53 Tex. Civ. App. 306, 115 S. W. pp. 282, 283.

The finding of the trial court, as to the residence of Jim Martin in Texas, making him eligible to a poll tax, which he failed to pay, is so fully sustained by the voter’s own testimony, it is unnecessary to discuss it.

The voter A. J. Grim, rejected by the court, was an old man, unmarried and unable to take care of himself. Pie came to Parmer county in 1906, bought some land and improved it for the purpose of making the same a tenant farm and home, “provided he could get some ohe there with whom he could stay.” He worked at a hotel in Bovina, Parmer county, in part pay for his room and board, until the building was burned. In the fall of the year 1912 he went to Hereford, Deaf Smith county, staying at various hotels, making occasional trips to Parmer county, to look after his rents — the length of his visits being brief. He said:

“I went to Hereford to work at the hotels, because I could not get employment in Bovina and at no place close to my farm.”

Part of the time while residing at Hereford, he was a hotel drummer, meeting trains at that place. His mode and manner of living at hotels at Hereford was similar to that at Bovina.

We are inclined to think that his intention to make his farm home at a time in the future, provided he could associate some one with him who would care for him, interposed a condition of expectation and contingency insufficient to constitute a residence on his farm in Parmer county, especially after he removed to Deaf Smith county, if the trial court was disposed to take that view of it.

The court clearly had a right to reject the voter Yelverton. The statement of the evidence by appellants, under their thirty-first assignment of error, shows that the voter, beginning as early as April, 1913, was living and earning a' livelihood in Curry county, N. M., though he claimed his home at Bovina, Tex. There is no testimony that Yelverton ever lived in Parmer county, except the hearsay statement by one Bruner, for whom Yelverton worked, that the latter claimed that his home was in that county. He married in January, 1914, but at least to that time was found continuously working and residing in New Mexico. It was with the trial court to decide the place of his residence.

As to the challenges of contestants, the appellants herein, against some of the votes cast for Farwell, and overruled by the court, we find as follows: Ike Brown was a man of family, and proved his occupancy upon public land in New Mexico. In February, 1912, he removed with his family to Parmer county, occupying a rented farm, and later moved to Farwell, his children enjoying the benefits of the public schools and at the time of trial had not returned with his family to New Mexico. The principal fact of resistance to this vote is, that Brown, in April, 1913, paid a poll tax and voted at a school election in New Mexico, stating, in substance at the time he voted, that he wanted to hold his residence there until he received his patent, and that was why he was voting and paying his taxes there. The trial court found:

“That his real home at the time he voted in New Mexico was in. Texas, and that his claim' of residence in- New Mexico was merely technical and made for the purpose of avoiding possible trouble in securing patent to his land.”

We have the personal presence of Brown, with his family residing in Texas for the period indicated, and a portion of the time sending his children to the public schools, constituting material testimony of his real intention and real abode. The matter of difference between feigned and real residence, as applied to- public land, is sometimes easily discerned. The trial court evidently thought this voter had some peculiar notion that a claim of residence in New Mexico was necessary to obtain a patent, but that such manifestations of claim were not bona' fide.

As to the voter P. E. Turner, we think the trial court would not have been justified in finding him ineligible. For several years prior to August 1, 1913, he had lived with his family in Farwell, Parmer county, owning his own residence, and was section foreman for the Santa Fé Railway upon that date. On said date he was ordered by the company to take charge of the section at Folsom, in Potter county, Tex., and moved with his family in the section house at that place, occupying the position of section foreman until after the election. He was informed that he was transferred to fill a temporary vacancy and later would be transferred back to Parmer county, and at the time his deposition was taken had been ordered back. He kept his residence at Farwell, unrented, with a part of his household goods remaining therein, and with an evident intention to maintain his residence in Parmer county.

As to the voter Frye, his testimony on direct examination, considered alone, makes him ineligible. He said he went to Farwell in January, 1913. On cross-examination he testified that he knew at the time he voted in the election October 18, 1913, that he should have lived in Texas 12 months and in Parmer county 6; that he came to Texas from Arkansas in August, 1912, and “struck” Parmer county in September of the same year; that he was only in New Mexico long enough to gather a 120-acre crop and that he considered at the time he voted that he resided in the state 12 months and in the county 6 months preceding the election. He said, “My wife and I first moved to Farwell from Grannis, Ark., in September, 1912.” It is shown that he purchased a home in the latter part of December, 1912, or in January, 1913, from one J. B. Younger, known as the Wimberly place, situated in Farwell, and lived southeast of the town before he moved to that property. The period of his residence was a fact question for the trial judge.

The findings of the court as to the vote of N. E. Sidebottom are as follows:

“I find that he is a single man; the evidence does not show where he resided on January 1, 1012, and as to whether he paid a poll tax to the state of Texas for that year. He took charge of Nobles Bros, grocery house at Far-well in the spring of 1913, or before. He took his meals in Texico, N. M., March, 1913, to September, 1913. The evidence does not show where he usually slept during the six months next preceding the election. He did not pay a poll tax to the state of Texas, in Parmer county, for the year 1912. I conclude as a matter of law that the evidence is not sufficient to show that he is a qualified voter.”

Mrs. Murphy and daughter testified that the voter boarded at their hotel twice; that he began to board in March, 1913, and quit •boarding September 1, 1913, and roomed at their place once. Walling testified that his place of business was close to the Nobles Bros, grocery store, and that Sidebottom took charge of the business some time in the spring of 1913; that he noticed a trunk in the office and a cot by the trunk and Side-bottom informed him that it was his bed; that he often saw lights in the office at night and that nobody worked there except Side-bottom, who had exclusive control. Maddox testified that when the voter was in charge of the Nobles Bros, store in Farwell, he observed the bed and a trunk in the building. There was no hotel in Farwell, and the towns of Farwell and Texico are in reality one, divided by the state boundary—Farwell being in Texas and Texico in New Mexico. One McICay, who seems to be a frequent witness in this record, testified that Sidebottom was rooming in July, 1913, with one J. N. Williams, in Texico, and in that month, on invitation, he visited his room. The trial judge had the right to reject the testimony of McKay, and if he believed that Sidebottom took his meals in Texico, that fact would not deprive him of the right to vote, if he resided in Texas. The testimony of Mrs. and Miss Murphy, that the voter roomed at their hotel once, is insufficient to disqualify this voter. The court could find from the testimony of Walling and Maddox that the voter used the store as his principal abode for sleeping. Whether this voter resided in Parmer county or some other county previous to the time he took charge of Nobles Bros, store is not shown. As to his poll tax, it is merely shown that he did not pay one to the state of Texas, in Parmer county, for the year 1912. The record is not satisfactory on this subject, but we are not disposed to reject the court’s finding, considering the burden of proof.

The voter Dobbins moved with his wife from Galveston, Tex., to Chicago, Ill., about January 1, 1911. He had entered the employ of the Capital Freehold & Investment Company, under contract, as land commissioner, which expired January 1, 1914. His duties as land commissioner kept him in the Panhandle of Texas, where the company’s lands were situated, the principal part of the time, and in April, 1912, he purchased a lease contract on a bungalow in Friona, Parmer county, which expired January 1, 1913, and moved to that place with his wife in April. He testified that they moved to Parmer county “to make it our home during the rest of the time I was under contract with the Capital Company.” Before hfe moved from Galveston his furniture had 'been burned, and when he went to Chicago he bought furniture, rented a flat and began to live in that city. He sublet the flat in Chicago, “for the period of six months with the privilege of extension.” He said, “We had the flat in Chicago under a lease and could not get released.” He testified that in October or November, 1912, his sublessee did not desire to renew the lease for their furniture in Chicago, and being unable to heat the bungalow his wife went to Chicago, for the winter, until the apartment could be sublet, which was done in May, 1913. In the spring of 1913 he moved some of his furniture from Chicago and bought some, changing his place of residence from Friona to Farwell, There was testimony of declarations by Dobbins that they were “camping out” while in Texas. There was testimony also of statements in regard to Chicago as his home, and particularly a declaration that he did not claim his residence in Texas, at the time of a certain bond election, held in August, 1913, and gave that as his reason for not voting at that election in Parmer county. The trial court accepted Dobbins’ statements as to his residence in Texas, and unless the statements that he moved to Parmer county to make his home for the time he was under contract with the company, would reject him as a voter, on account of his residence, the court had a right upon the testimony to receive the vote. Ap-pellees cite McCrary on Elections, § 70, and •the report of a case of Cessna v. Meyers, found in the appendix on page 264, to the effect that where a person goes to a place to work for a stated period only, he nevertheless acquires a residence there, if he has no other home to which he expects to return when his employment ceases. Appellees very pertinently remark that if the law were as stated by the appellants, a school-teacher, a Methodist minister and other classes of persons who are employed for a stated period of time, for that reason alone, may not acquire a residence and become legal voters. Contestants, of course, couple this contractual condition with other testimony in regard to Dobbins’ intention as to a home in Chicago. The court resolved it, however, and under the rule we are unable to overturn it. See Langhammer v. Munter, 80 Md. 518, 31 Atl. 300, 27 L. R. A. 331; Pedigo v. Grimes, 113 Ind. 148, 13 N. E. 702, 703.

M. B. Tisdell lived in Parmer county from 1905 to 1911, inclusive, with his family, owning an improved farm near Farwell. He was about 75 years of age and in the spring of 1912 left with his family to Hall county, renting land and raising a crop in that county during the years 1912 and 1913. He retained his home and farm in Parmer county, and continued to own the same to the time of the election. On account of a drought in Parmer county, extending for a period of 4 years, he testified "that:

“It became necessary for us to go where we could raise a money crop to enable me to pay out my property at Earwell, so I moved temporarily to Hall county for that purpose.”

He said he never intended to make the latter county his home, but intended to return to Parmer county and maintain his permanent home on his farm near Earwell, and at the time his depositions were taken, he was moving back to the latter county. The court had the right to receive him as a voter.

W. W. Stroud resided at Earwell with his wife and children 2 years previous to the death of his wife, and, after the latter’s death, he removed to Amarillo, employed at different occupations. He owned a furnished home at Farwell, but removed a part of his household goods to Amarillo, and testified that during the year 1913 he and his sons were in Farwell frequently and spent a great part of the time at that place; that he still owned his residence property at that time and considered Farwell as his permanent place of abode, intending to return as soon as conditions would permit and engage in business at that place; that he did not intend to transfer his place of permanent residence to Potter county or any other place. One Schrieber of Amarillo testified that Stroud, while working for him, from June, 1913, to and including October, 1913, made several visits to Farwell. Residents of Far-well also testified to seeing Stroud on occasions at Farwell during the latter’s stay at Amarillo. On the whole, we think the court had the right to reject the challenge. Davis v. State, 75 Tex. 420, 12 S. W. 961; Rathgen v. French, 22 Tex. Civ. App. 439, 55 S. W. 579.

Appellant’s assignment in this court, challenging the vote of Claude Rea, does not question the failure to pay a poll tax for the year 1912, nor the lack of an exemption certificate for the purpose of voting. The statement under the assignment is as follows:

“The voter, Claude Rea, testified by deposition taken on April 6, 1914, that he was 22 years of age, and a single man; that his occupation was feeding cattle; that on January 1, 1913, he was working for the V V N’s, and had worked for them since October, 1912, all the time and slept in Farwell at the ranch; that he worked for the Y V N’s in Bailey county, Tex., from April 18, 1913, to October 18, 1913, and slept in Bailey county, Tex., between April 18, 1913, and October 18, 1913, as regularly as he did anywhere else.”

The position is that the uncontroverted testimony is to the effect that he usually slept, at nights, from April 18, 1913, to October 18, 1913, in Bailey county, Texas, and that under the statute his residence in Bailey county, at least during that period, disqualifies him as a voter in Parmer county.

The further inference from the testimony is, that this young man owned a small house in Farwell and freighted for the V V N ranch, and when at Farwell lived at the little house; that he had a bed and kitchen outfit in it, and after he quit the ranch he lived in the two-room house in Farwell. It is not shown how much of the time was spent in Farwell while engaged in freighting or other work, nor the length of time he was engaged in freighting for the particular ranch. He said that between April 18, 1913, and October 18, 1913, he slept at nights in Bailey county and he did not know as to the time he slept there, saying that he did so about as regularly as he did anywhere else.

One Hopping testified that he became acquainted with Olaude Rea when he was hauling cake for the ranch mentioned; that when he came for a load at Farwell or Texico, he would spend the ni^ht in his house; that no one lived in it except himself, and in which he kept his bed and camping outfit.

The testimony as to this voter is so indefinite that it is impossible to form an intelligent conclusion as to the amount of freighting the voter performed and the usual place of sleeping, in the performance of his work. In connection with the deducible fact that he owned a house in Farwell, with a bed and camping outfit in same, using it for a place of abode at times, we sustain the court’s finding as to the eligibility of this voter. The burden was upon appellants.

Quoting from appellants’ brief:

“Contestants allege that T. O. Cunning cast his vote at Bovina, in precinct 3, for the county seat to remain at Farwell, that his vote was so counted, canvassed, and returned, but that said vote was illegal and void because, but for the intimidation and threats of partisans of Ear-well, said voter would have cast his vote for the county seat to be removed to Bovina.”

It is admitted that Cunning cast his vote for Farwell. He was engaged as a pumper for the Santa F'é at Bovina station. He said that in a conversation just before the election, a certain attorney informed him:

“That we would have to vote in favor of the railroad and they did not want to build a depot at Parmerton. * * * It is my understanding that the attorney used the words that I would ‘lose my job’ during the conversation.”

There was a telegram addressed to the agent of the company at Bovina, signed by one of the higher officials of the railroad, which the voter Cunning saw before he voted. This telegram refers to some conversation between the pumper and the attorney, and the agent was instructed to inform the pumper and other employés that the company could not consistently advise them one way or the other; but if it was their intention to ■ work to the company’s interest, they should use their judgment as to the manner in which the company would be most benefited. Lucas, the agent, testified that Cunning, “was possibly a little disturbed as to some parties trying to make it unpleasant if we cast our vote in a certain way. I was not.”

This agent is still in the employ of the company, and it is not shown how he voted. Cunning further testified that he was under the impression that if he did not vote for Farwell he would be likely to lose his employment with the company, and that he received that impression from both the telegram and the conversation. He said:

“I do not remember whether I intended to vote otherwise for Bovina, but I believe I did. I was in favor of Bovina.”

It is noted that the ground of contest is that but for the alleged intimidation this voter would have cast his vote for Bovina. The trial court, in passing upon this question, could have excluded the alleged intimidation and could have concluded that it is not shown that this voter otherwise would have voted for Bovina. The telegram was sent on the 17th of October and the election was held on the 18th. Cunning further testified:

“Earlier in the campaign before election day, I had been in favor of removing the county seat from Farwell and changed my intention after I found I could not get it at Bovina.”

Then following is a statement that there was something else that influenced him, also stating the conversation with the attorney and the telegram mentioned. The court found that the evidence was insufficient to show that he was threatened with loss of his employment, and that he was intimidated and caused thereby to vote as alleged.

It is evident that practical considerations had, as a contributing element, caused a change of intention in regard to his vote, before such conversation and telegram, on account of the hopelessness of Bovina’s candidacy. It is asserted that his vote for removal to Bovina, under the circumstances, would have had the same legal effect on the result of the election as a vote for remaining at Far-well. Under pre-existing rules, this logic would follow; it is unnecessary to decide the point whether the testimony sufficiently raises intimidation depriving Gunning of his free will as to any predisposition for Bovina.

We think the trial court had the right to infer that C. E. Dodson was a voter in Parmer county, on account of his residence in Farwell. He moved to Farwell either in 1910 or 1911, and had been engaged as a clerk in a dry goods store prior to May, 1913, when the store was burned. He continued to work for the same employer for a month or two subsequent to the fire, collecting debts. It is inferable that the elements contributing to his residence in Farwell were his wife’s condition and his accessibility to the public school for his children. He rented a house from one Nobles, and after the cessation of employment in Farwell he made a visit to Oklahoma and upon his return he went to his farm in Bailey county, testifying that at that time it was with the expectation of helping the man employed on the place and getting his folks out of town for a while, but with the intention of returning to Farwell for the purpose of schooling his children, and also that his wife could be near a physician. When he went to his farm seven miles away in Bailey county, in the summer of 1913, he left some of his goods in the rent house at Farwell, stating to Mr. Nobles, the landlord, that either in September or October he desired the house again and was moving out temporarily; that if Nobles had an opportunity to rent the house he could put his household goods in the barn; that after the election he again concluded to resume his residence at the farm and removed the balance of his household goods. The fact that he left a part of his household goods at Farwell is inconsistent with a resumption of permanent residence on the farm and entirely consistent with the intention of returning to Farwell, as a place of continued residence. It is suggested that Dodson does not state that he intended to permanently reside in Farwell; however, he was contestant’s witness and we are not informed whether he was ever asked such a question. We are unable to assume that the fact of leaving a part of his household goods in Farwell is merely evidence of a simulated intention to exercise the right of suffrage. The trial court had the right to weigh this testimony, and it is not in such a condition as that we can say that the residence of this voter during the necessary period was in Bailey county, instead of Parmer county.

As to the vote of John Foster, contested on the ground of residence and failure to pay poll tax, appellants' statement under the twenty-sixth assignment of error is not sufficiently extended. Analyzing further the testimony of H. 0. Foster, the father of the voter, and giving it the permissible inferences in favor of the court’s findings, for the purpose of supporting it, a different conclusion as to the eligibility of John Foster can be deduced. It would be a repetition of reasons applicable to other voters already discussed. The record does not show that the young man was subject to a poll tax. We sustain the finding.

E. W. (Shorty) Stafford left Portales September 5, 1912, for Farwell, upon a previous arrangement with J. D. Hamlin, of that place, as we infer, for employment. His wife went to Friona, and in January or February, 1913, Hamlin not being able to arrange a house for them in Farwell, suggested that they move to Texieo, until a house could be “fixed” for their occupancy. A part of his “stuff” (we assume it was household goods) was left at Farwell when they moved to Texieo, and the testimony strongly suggests an intention of returning, and that the residence in Texieo was only temporary, except for the following fact: He said while in Texieo he started to make the race for city marshal o£ that place and thought maybe he could stay over there because he was not going to get the house in Farwell. He returned to Farwell prior to May, 1913, moving into the house arranged for him. He further testified in regard to his candidacy for office:

“The reason I did not continue to run for city marshal of Texieo was because I didn’t claim Texieo my home, and because I didn’t want it; I could not work on this side and hold office; some of them! said I could not run and I don’t think my name was ever put on the ticket.”

While in Texieo he also managed the waterworks and operated a blacksmith shop in Farwell.

We think it can be inferred that his first residence in Parmer county was an abandonment of his original domicile in Roswell, N. M. It is inferable that when he moved across the line into Texieo (the two towns being the same except for the boundary) he intended to resume his residence in Farwell, leaving a part of his household goods at that place, with an arrangement for the “fixing” of a house for his return and future occupancy- — Hamlin allowing him to use the house in Texieo as a matter of accommodation. The trial court could conclude that his abandonment of an intention to run for city marshal was on account of his claim of residence in Farwell. We overrule the assignment.

Other assignments, based upon challenges leveled against other voters counted for Farwell, are unnecessary to decide. We are not disposed to agree with the trial court as to some of them, and others present close questions, inexpedient to discuss. If such votes were deducted from Farwell’s total, it is apparent, however, that Parmerton did not receive the majority prescribed under the law, even if you could assume that it is situated within a radius of five miles of the geographical center of the county.

Appellant’s assignments, relative to questions of testimony, are unnecessary to discuss in detail. Most of them do not affect, nor are connected with, the findings of the particular voters passed upon. If we rejected the testimony of the railroad officers testifying from the records, in regard to the two Mexicans, it would not change our opinion with reference to the court’s findings as to those two voters. The question of the payment of expenses, as applicable to the particular voters discussed herem, could only affect the vote of Tisdell, which would not alter this result, if the assignment were sustained.

The appellants in this case introduced the testimony of a surveyor as to the geographical center of Parmer county. The certificate of the commissioner of the general land office, though solicited by the county judge before the election, was not mailed, received, or recorded until after the election. Farwell is more than five miles from the center, and a majority of voters voting at an election could move the county seat from that point to another within five miles of such center; in such case the center to be determined by a certificate from the commissioner of the general land office, under the Constitution as well as under the statute.

Appellants’ contention is that the certificate in this case has no vitality under the conditions, and that they could prove the center by other and different testimony. “It is an accepted rule of construction that where a power is expressly given by the Constitution and the mode of its exercise is prescribed, such mode is exclusive of all others. Crabb v. School District, 105 Tex. 198, 146 S. W. 529, 39 L. R. A. (N. S.) 601, Ann. Cas. 1915B, 1146. In view of the principle that the selection and designation of county seats is a political question, though the constitutional amendment of 1891 gives the district court power to try all cases of contested election — a most interesting question is presented, but not decided.

Judgment of trial court is affirmed.
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source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    COFER et al. v. BEVERLY.
    (No. 942.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 15, 1916.)
    1. Pleading <&wkey;228 — Intendments Favob-ing — Absence of Special Exception.
    In the absence of special exception, every reasonable intendment will be indulged in favor of a plea.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. &wkey;228.]

      2. Bills and Notes &wkey;>129(l) — Maturity-Election of Holder.
    Where the maturity of a note rests at the election or option of the holder, until such option is exercised the debt, for the full amount, will not be considered due.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 283, 284, 288-291; Dec. Dig. &wkey;129(l).]
    3. Bills and Notes <&wkey;>129(2) — Maturity-Failure to Pay Installment — Overdue Payment.
    Where the failure to pay an installment of a debt ipso facto gives rise to a cause of action upon the whole debt, it is not the rule that by acceptance of payment of overdue installments or extension of time upon an installment the creditor waives the default.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 285, 292; Dec. Dig. &wkey;> 129(2).]
    4. Bills and Notes <&wkey;120(2) — Vendor’s Lien Note — Option to Declare Due — Es-toppel.
    Where the holder of a vendor’s lien note, providing that failure to pay it or any installment of interest should, at the holder’s option, mature such note, made an agreement with the makers that an interest installment might be I>aid subsequently to its due date, when such makers had realized funds therefor from the sale of grain raised on the premises, such holder and his assignee were estopped from declaring the entire debt due and foreclosing for the makers’ failure to pay the installment of interest on the due date; the makers discharging their obligation to the assignee by tendering interest as soon as they learned of the transfer of the note.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 285, 292; Dee. Dig. &wkey;> 129(2).]
    5. Bills and Notes <&wkey;129(2) — Release prom Payment.
    Where a mortgagor makes an honest but unsuccessful effort to find the mortgagee and to tender him his interest and is prevented from ascertaining the owner of the note, the courts have the power to release the mortgagor from the effect of nonpayment which would otherwise mature the whole debt.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 285, 292; Dec. Dig. <&wkey;> 129(2).]
    6. Bills and Notes <&wkey;344f-Agreement to Extend Time fori Payment op Interest-Binding Force on Assignee.
    Where the holder of a vendor’s lien note exercised his option, when an installment of interest fell due, to declare the whole debt due for failure to pay the installment, an agreement by such holder, after declaring the note due, to extend the time for payment of interest, bound his assignee.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent.Dig. §§ 866-868; Dec.Dig. <®=o344.]
    7. Bills and Notes ®=»318 — Precipitating Maturity — Position op Purchaser.
    Where the purchaser of a vendor’s lien note from the holder thereof was in possession of facts which would have led h'im to knowledge that by agreement between the holder and the makers the time for the payment of an installment of interest was extended, such purchaser stood in the shoes of the holder, and could not, under the provisions of the note, precipitate maturity of the whole debt for failure to pay the installment.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 754; Dec. Dig. <&wkey;318; Vendor and Purchaser, Cent. Dig. § 864.]
    Appeal from District Court, Dallam County; D. B. Hill, Judge.
    Suit by Wm. Beverly against W. R. Cofer and another. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Clifford Braly, of Dalhart, and Ben H. Stone, of Amarillo, for appellants. Tatum & Tatum, of Dalhart, for appellee.
   HUFF, C. J.

Appellee, Wm. Beverly, brought this suit against the appellants, W. R. Cofer and L. W. Cofer, on a vendor’s lien note, alleged to have been executed on the 27th day of February, 1914, payable to John F. Ladd and Bernice C. Ladd, for the sum of $2,000, payable to their order on or before five years after date, with 6 per cent, interest from date, interest payable annually at Dalhart, Tex. It is provided in the note “that the failure to pay said note or any installment of Interest thereon, when due, shall, at the option of the holder of said note, mature said note,” and for 10 per cent, attorney’s fees. The vendor’s lien was sought to be foreclosed on a certain section of land. It is alleged that about the - day of January, 1915, John F. Ladd and Bernice C. Ladd sold and transferred the note to Willie C. Dawson, for a good and valuable consideration, and that about the 17th day of March, 1915, Willie C. Dawson, joined by her husband, G. W. Dawson, sold and transferred the note to the appellee Beverly. The appellants by answer alleged:

“That on the date said interest on said note became due and payable, to wit, February 27, 19Í5, said note was owned and held by G. W. Dawson and his wife, Willie C. Dawson, as their community property, but said note being in reality indorsed to and held in the name of the said Willie C. Dawson, and that on or about the said last-mentioned date, defendant W. R. Cofer, acting for himself and defendant L. W. Cofer, at the instance and request of the said D. W. Cofer, approached the said G. W. Dawson concerning an extension of the time in which the said owners and holders of said note would require the payment of said interest before exercising their option of accelerating the payment of said note and "accrued interest thereon. That the said W. R. Cofer, then and there stated and explained to the said G. W. Dawson that if said holders of said note then required that said interest be immediately paid, defendants would immediately raise the amount required and pay said interest, but that it was the purpose and desire of defendants to pay-said interest from the proceeds of sale of certain grain raised on the lands and premises herein sought to be foreclosed upon, and which grain was then prepared, and being prepared, for market and sale. That said grain would be brought in and marketed at Dalhart, Tex., as soon as reasonably possible, and the sum necessary to pay said interest would be thereby acquired and applied in payment of said interest, and requested that the date of payment of said interest be extended to such a future date as would reasonably enable defendants to so market said grain and so raise said funds. That the said G. W. Dawson, then and there for himself and wife, Willie C. Dawson, agreed and promised defendants said requested extension. That while no definite future date was then fixed and. designated at which said interest was to be paid,, and to which extension was granted as aforesaid, still defendants allege that 20 to 30 days was a reasonable time in which to have so marketed said grain, and further say that it was then understood and contemplated by the said Dawson and defendants that the time stated would be required to so market said grain and thereby raise said interest money, and that the said Dawson intended to, and did, then and there, as aforesaid, extend the due date of said interest for the period of time mentioned.”

The appellants further allege that they relied on the representations and agreements so made, and were endeavoring to comply therewith when the Dawsons sold the note to the appellee, that neither of the Dawsons notified or advised appellant of the transfer of the note to appellee, and that appellee made no presentation of the note to the appellants, but wrongfully attempted to declare the principal sum called for then due and payable. They allege that they were first notified that J. R. Beverly, a brother of ap-pellee, had purchased the note, and that they called on him and were informed that it was his brother, the appellee, who purchased the note, and that he was then out of town, etc., and they alleged, substantially, that they were unable to find him, and the note was placed in the hands of attorneys by Beverly about the 18th or 19th of March, who notified the appellants that they held the note, and that they tendered the interest due on the note, together with the accrued interest on that sum, to the attorneys, who refused to accept the same, and notified the appellants that they would institute suit for the full amount. They further alleged that it would be a great hardship on them at that time to meet the entire obligation, and but for the agreements that they had had with Dawson and their inability to find the owner of the note, they would have paid the interest at maturity, and that they could have done so and would have done so but for the fact that the time for paying the interest was extended. They also set up the value of the premises, and that it would be inequitable to sell the property at this time, and set up their inability to obtain the full amount of the note, principal, and interest. There was a general exception to this answer by the appellee, which the court sustained, and, the appellants declining further to amend, the court rendered judgment for the appellee for the full amount of the note, principal, interest, and attorney’s fees, foreclosing the lien on the land securing the same. Prom this judgment the appeal is prosecuted.

The plea of appellants is, in its nature, a plea to abate. The provision of the note is:

“A failure to pay said note, or any installment of interest thereon when due, shall, at the option of the holder of the said nóte, mature said note.”

It is alleged that the owner and holder of the note, when the installment of interest fell due, agreed to extend its payment until the thrashing and marketing of certain grain, and that it was understood it would take about 30 days at the time of the agreement to do so. While the allegations are not very specific, yet every reasonable intendment will be indulged in favor of the plea in the absence of a special exception. The only exception presented and sustained is a general exception. As we understand the authorities, .where the maturity of the note rests at the election or option of the holder, until such option is exercised, the debt for the full amount will not be considered due. Harrington v. Claflin, 28 Tex. Civ. App. 100, 66 S. W. 898; Association v. Stewart, 94 Tex. 441, 61 S. W. 387, 86 Am. St. Rep. 864; Moline Plow Co. v. Webb, 141 U. S. 616, 12 Sup. Ct. 100, 35 L. Ed. 879; Moore v. Sargent, 112 Ind. 484, 14 N. E. 466. If the allegations of the answer are true, default in the payment of the interest was not suffered on account of the neglect of the makers of the note, but they sought the holder and secured an agreement to wait upon them until the grain mentioned could be marketed. This is evidence, at least, that the then holder of the note had waived the option to mature the note. In the case of Association v. Stewart, supra, our Supreme Court said:

“Authorities holding that by acceptance of payment of overdue installments, or extension of time upon an installment, and other like acts, the creditor waives the default, are relied upon, but those are decisions in which the contract is regarded as only giving to the creditor the right of election”;

■ — but such is not the rule where the failure to pay an installment ipso facto, gives rise to the cause of action upon the whole debt. Upon the latter proposition, that court said:

“Any agreement the parties might make, which would have the effect of obviating the default and restoring the contract to its original condition as if it had not been broken, would be supported by a sufficient consideration. The debtor would secure from the creditor further credit, and give up his right to discharge the whole liability at once. Benson v. Phipps, 87 Tex. 578 [29 S. W. 1061, 47 Am. St. Rep. 128]; Austin, etc., Abstract Co. v. Bahm, 87 Tex. 582 [29 S. W. 646, 30 S. W. 430]. But, aside from this, while neither party by his separate action or nonaction could impair the rights of the other, each could waive his own rights as they accrue from the default in payment of an installment, so as to estop him from relying upon such default. To accomplish this, it would only be necessary that each should so act as to justify the other in believing and acting upon the belief that the effect of the failure to pay an installment was to be disregarded, and that the contract should stand as if there had been no default. The principle of estoppel by waiver would, we think, have proper application in such a case. Bish. on Con. §§ 789-808; Big. on Estop, p. 633 et seq.; Insurance Co. v. La Croix, 45 Tex. 158; Insurance Co. v. McGregor, 63 Tex. 404. An agreement or waiver, having the effect supposed, may be inferred from the conduct and declarations of the parties as well 1 as evidenced by their express stipulations.”

In the case under consideration, as in the one above, it is said by the attorneys there was no binding agreement. The Supreme Court answered that proposition as follows:

“The distinction is in this: The contract was in writing, fixing times and terms of credit, which were affected only by the default causing maturity earlier than such dates. It was therefore only necessary to take away the effect of the default, and to restore the contract as it was before that occurred, when its terms would be perfectly definite and certain.” Lester v. Hutson, 167 S. W. on page 327.

It occurs to us that the principles announced in the above case settle the question that if the holder of the note waived his right to hasten the payment of the note, by entering into an agreement that the interest installment could be paid at a time subsequent to its due date, he and his assignee would be estopped from advancing the payment. If the maker of the note relied upon this promise it appears to us it would be inequitable to permit the holder of the note to refuse to receive the interest and to declare due the whole debt. It appears to be the holding of the courts where the option rests with the creditor, if the default is induced by—

“any agreement or promise upon which the debtor might rely, which operated to mislead or throw the debtor off Ms guard, a court of equity would interfere to stay proceedings, or the action might be abated upon the facts being properly pleaded.” Moore v. Sargent, 112 Ind. 486, 14 N. E. 467; 2 Jones on Mortgages, §§ 1185, 1186.

Where the course of dealings lead the mortgagor to assume that if forfeiture would not be declared if the interest was paid within periods varying from one to six months after the time it became due, foreclosure has been refused by the New York courts. French v. Row, 77 Hun, 380, 28 N. Y. Supp. 849; German, etc., v. Potter, 124 App. Div. 814, 109 N. Y. Supp. 435. The reasons for refusing a foreclosure appear to us to be stronger in this case, where the parties agreed that the time for the payment of the interest installment shall be extended until certain grain is marketed. Taylor v. McFatter, 109 S. W. 395.

It appears also from the answer that appellants were not notified that Dawson had transferred the note to appellee after the agreement to wait for the interest; that upon learning of this through rumor, appellants sought to find appellee, but he was not in town or at home, but was reported out of town. They allege they were ready to pay the interest, and sought him for that purpose, but could not find him. When they received the letter from the attorneys who had the note, they at once called upon them and tendered to them the interest, together with interest on the amount for the time delayed. This the attorneys refused to accept, and in a day or so thereafter instituted suit for the entire debt, with foreclosure. If a mortgagor has made an honest and unsuccessful effort to find the mortgagee and to tender to him his interest, and is thereby prevented from ascertaining the owner of the note, the courts have the power to release the mortgagor from the payment of the whole principal. 2 Jones on Mort. § 1185; Noyes v. Clark, 7 Paige (N. Y.) 179, 32 Am. Dec. 620; Hale v. Patton, 60 N. Y. 233, 19 Am. Rep. 168; Kerbaugh v. Nugent, 48 Ind. App. 43, 95 N. E. 336; Glatt v. Fortman, 120 Ind. 384, 22 N. E. 300.

The interest was due February 27th, and the agreement, according to the allegation, was then had with Dawson. After that, on the 17th of March, Dawson transferred the note to appellee. The note stipulated the nonpayment of interest, “when due,” at the option of the holder shall mature the note. The appellee got the note after the interest was due. If the holder, at the time the interest so fell due, exercised his option, the note was past due when appellee became the holder, and proof of the agreement could be made and would bind the appellee. If the option had not been exercised when appellee purchased the note, the appellee was in possession of facts which would have led him to a knowledge that by agreement the time for the payment of the interest was waived. Appellee, we think, is in no better position than Dawson would have been.

Before concluding we will call attention to the case of Workman v. Ray, 180 S. W. 291, decided by this court, which may, upon casual consideration, be regarded as in conflict with this ease. In that case, however, the option does not appear to have rested with the payee of the note, and we there construed the pleadings of the mortgagee as admitting the notes were then all due and payable. The contract was not urged as rendering the suit premature, but it was sought therein to recover damages for a breach of the contract. We there held there was no consideration shown for that contract, but that case certainly is distinguishable from this.

We believe the trial court was in error in sustaining the general exception to the answer of appellants, and the case will he reversed and remanded.
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author: MIDDDEBROOK, J.

text:
    HOUSTON OIL CO. OF TEXAS v. JONES et al.
    (No. 46.)

    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 13, 1916.
    On Motion for Rehearing, March 16, 1916.)
    1. Advebse Possession <&wkey;114(l) — Evidence —Sufficiency.
    In an action to recover an undivided half interest in a tract of land on the ground that plaintiffs had acquired title by adverse claim and occupancy, evidence held sufficient to support a verdict for plaintiffs.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682, ¿83; Dec. Dig. <S=o 114(1).]

      2. Appeal and Error &wkey;>1001(l) — Finding— Review.
    Where in such action there was conflicting evidence as to whether there had been a break in the continuity of plaintiff’s possession, a finding of the jury that there had been a ten years’ continuous possession, which was supported by competent testimony, will not be disturbed on appeal.
    [Ed. Note. — -For other cases, see Appeal and Error, Oent. Dig. §§ 3928-3933; Dee. Dig. 1001(1).]
    3. Appeal and Error &wkey;>1060(3) — Harmless Error — Statement to Jury.
    Where in such action plaintiff’s counsel was permitted to state to the jury that the statute of limitations was suspended during the time of such alleged break of continuity, such action of the court was harmless error, where the jury on competent testimony found a ten years’ continuous possession after such alleged break, and there was nothing in the. record to indicate any bias on the part of the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Oent. Dig. § 4135; Doc. Dig. 1000(3).]
    4. Appeal and Error &wkey;H051(l) — Harmless Error — Admission op Testimony on Former Trial.
    The admission on the second trial of such action of the evidence given by a witness on the previous trial, where he had been fully cross-examined, was not prejudicial error, whore such witness was physically unable to attend court or answer interrogatories, and there was no indication that he was to bo attacked as a witness by impeachment, and there was abundant evidence to support the finding of the jury without his testimony.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4165, 4166; Dec. Dig. <&wkey;> 1051(1).]
    5. Trial <&wkey;133(2) — Conduct op Counsel — Statement to Jury.
    Where plaintiffs’ counsel in his opening argument stated to the jury, in effect, that the plaintiffs could not scour the county for witnesses as the defendant, being a corporation, had done for the purpose of finding witnesses to bolster up an unjust claim, and the trial court ruled that the statement was improper and withdrew it from the jury, with the instruction not to consider it, there was no ground for reversal.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. &wkey;133(2).]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Action by H. C. Jones and others against the Houston Oil Company of Texas. Judgment for plaintiffs, and defendant appeals.
    Affirmed. Motion for rehearing overruled.
    See, also, 161 S. W. 92.
    Parker & Kennerly and Fred L. Williams, of Houston, for appellant. John B. Warren, of Houston, for appellees.

      Application lor -writ oí error pending in Supreme Court.

   MIDDDEBROOK, J.

Appellees, heirs of Mrs. D. M. Jones, deceased, instituted this suit 'in the district court of Newton county, Tex., for the recovery of a one-half undivided interest in 160 acres of land, a part 'of the Nathaniel Cochran survey in said county. The land was occupied first by appellees’ father and mother during the marital relation. After the death of Mrs. D. M. Jones the Houston Oil Company instituted suit against D. M. Jones for the land, and secured a judgment against him, but the heirs of Mrs. D. M. Jones, deceased, were n'ot made parties to- the suit. They claimed the land under the ten-year statute of limitation. An agreement is of record which shows the title in appellant, Houston Oil Company, unless it is divested of such title by virtue .of plaintiffs’ plea of limitation and the facts supporting the plea. The case was tried with a jury, resulting in a verdict and judgment for the apxiellees for 80 acres, being the land sued for; and the case is properly before this court on appeal. There is conflicting testimony as to the ten years’ adverse occupancy as pleaded by the plaintiffs, and the evidence is voluminous; but for a full understanding of the ease it is not necessary to set out the facts in full.

D. M. Jones testified upon the issue of limitation as follows:

“I first moved on the land that I now live on in the fall of 1865. * * * When I moved on the land, I built a log house 18 feet square, on the south end of this 18-foot room a room 8x18 feet, and on the west an open gallery. On the east side of the 18-foot room was a kitchen, built of split boards, 8 feet wide and 18 feet long. I had a log smokehouse 12x18 feet built near the residence. I had a eorncrib built of logs, about 12x16 feet. I also had a double log house stable for horses about 12 feet square. I cleared 8 acres about 306 yards southwest from the house the first year I moved there. This was done in the fall of 1865 and the spring of 1866. I cleared 4 acres adjoining the 8 acres above mentioned on the south side in the fall of 1866 and the spring of 1867. I also cleared patches .about the house and cow penned them to the extent of about 4 acres. The clearing extended over a period of three or four years, beginning with the year 1865. I lived on the place with my family continuously for a period of 12 years from the time I originally moved on it. Then Mrs. Tade, an aunt of mine, moved on. the place, and occupied the same as my tenant continuously for a period of about five years. During this period of five years I was living about 1% miles southwest from the land, but 1 used and cultivated the land in question each and every year during the time. I cultivated them continuously each year until 1889. I made a crop that year on the place. The land was not further occupied by me until about the year 1902. I moved on it in March, 1902. I have lived there continuously since 1902. I cultivated the land which was cleared above mentioned each year I was on the place and the five years Mrs. Tade occupied it.”

There is testimony that D. M. Jones sold his improvements on the land to one W. H. Simmons about the year 1870. D. M. Jones denied such sale, and said the improvements he sold to Simmons were not on the land in controversy. One Biscamp testified that his father bought some oxen from D. M. Jones, and that he understood that Jones got the oxen from Simmons for the improvements “on that old place over there.”

H. O. Jones, son of D. M. Jones, and one of the plaintiffs in this case, testified that his father was mistaken in saying he cultivated the place ten or twelve years from 1865, and that he does not' remember how long Mrs. Tabe lived on tlie land, but does not remember bier being there more than six to ten months. H. C. Jones was born in 1858.. He also testified that he was at home and knew of its being cultivated until 1878, and he then lgft home. He helped to cultivate the land till 1878.

A number of witnesses not related to the parties testified positively of Jones’ occupation and tilling of the land up to 18S2. There, is testimony in conflict with the testimony that D. M. Jones occupied and cultivated the land from 1805 to 1882, some of the witnesses testifying that they saw the place in 1878, and it was not in cultivation then; but there is abundant testimony that D. M. Jones did occupy, claim, and cultivate the land from 1865 to 1882. D. M. Jones at the trial of the suit lived upon the land with his son, H. C. Jones.

Appellant’s first assignment of error is to the effect that the verdict of the jury and the judgment of the court are not supported by the evidence, because plaintiffs failed to establish adverse claim and occupancy and use of the land described in their petition to the metes and bounds thereof at any time or for a sufficient time to mature their title as pleaded.

Plaintiffs’ prayer is for 'one-half of the ICO acres of land mentioned above, which is described by metes and bounds, alleging the survey of the land in 1872. They allege that they always understood the survey to contain 160 acres, but plead in the alternative that, if more land is included in the field notes than 160 acres, then they ask that such excess be taken off so as to leave to them their improvements, and that such excess, if any, be taken off of the north side of the tract.

The judgment shows an agreement between the parties that the field notes include about 169 acres of land, and therefore a strip of land 53 varas wide is taken off of the north side of the land, and is decreed to the appellant. This strip contains 9 acres. Such being the case, we fail to find merit in appellant’s first assignment of error, and the same is overruled.

Appellant presents five propositions under the first assignment of error, each of which is substantially that, there being a break in the continuity of possession by Jones when Simmons lived on the land, the law governing limitation title is not complied with, and therefore the verdict and judgment are not supported. We do not think these propositions of law are germane to the assignment; but, if properly assigned, we do not think such assignment is supported by the record. The following special issues were submitted to the jury:

“Question No. 1: Have the plaintiffs and those under whom they claim had and held peaceable and adverse possession of the land described in plaintiffs’ petition, cultivating, using, or enjoying the same, for a period of ten consecutive years prior to the year 1890?”

The jury answered this question: “Tes.” ■

“Question No. 2: What years, if any, have the plaintiffs and those under whom they claim had and held peaceable and adverse possession of the land described in plaintiffs’ petition, cultivating, using, or enjoying the same, prior to the years 1890'?”

The jury answered this question: “1866, 1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877, 1878, 1879, 1880, 1881, and 1882.”

These findings by the jury are supported; by competent testimony, and, such- being the, case, this court will not disturb such findings.

Appellant’s second assignment is very, lengthy; but it claims that the trial court committed error in permitting appellees’ counsel to state to the jury that the statute of limitation was suspended in 1870;-that appellant was entitled to an answer from the jury stating just what years the land was actually occupied by appellees.

There could be no vice in such statement to the jury unless the jury should, without, warrant of testimony, or contrary to their own convictions, by a preponderance of the testimony, begin with the year 1870 and find such occupancy for a sufficient length of time to perfect the title under the pleas. There is testimony to justify the finding of such occupancy after the year 1870, 'and the jury did so find, for they say that he so occupied and held the land up to and including the year 1882; and there is nothing in this record to indicate any bias on the part of the jury, nor that such statement had any tendency to injure the appellant’s rights before the jury. The second assignment is therefore overruled.

The third, fourth, and seventh assignments of error are to the effect that the verdict and judgment are contrary to the law and facts of this ease: (1) Because the plaintiff did not enter under any claim of right; (2) because the great weight and preponderance of the testimony is in favor of the defendant. What we have said in our disposition of the first assignment of error is sufficient to dispose of these assignments, and they are each overruled.

The fifth assignment complains of admission of Jim Pearson’s testimony as deduced upon a former trial of this case. The record shows that Mr. Pearson was stricken with apoplexy a few days before this trial, and that at the time of the trial was in a precarious condition, and unable either to attend court or answer interrogatories. There is no indication that he was to be attacked as a witness by impeachment. He had testified and had been fully cross-examined by appel.lant’s counsel upon the former trial of the case. There is abundant evidence to support the findings of the jury without his testimony, and there is nothing in the record to indicate that a different verdict would have been found had he been there and testified again in person. The fifth assignment is overruled.

The sixth assignment complains of the following language used by counsel for appellees in his opening argument before the jury:

“Plaintiffs in this case could not scour the country to find witnesses as the defendant could. The defendant, being a corporation, could, and did scour the country for the purpose of finding witnesses willing to bolster up tbe claim which the defendant knew was not just.”

The trial court ruled that the statement was inproper, and withdrew it from the jury, and instructed the jury not to consider the argument. We think it very unlikely that any injury to appellant resulted from these remarks by counsel, and therefore the sixth assignment of error is overruled.

This disposes of all the assignments of error presented for our consideration, and the judgment of the lower court is affirmed.

On Motion for Rehearing.

In the original opinion in this case we made a brief statement of the facts pertinent to the issues of limitation, some of which we quoted indirectly, and some of which we stated as facts, which we did not directly quote.

Counsel for appellant has filed motipn requesting additional findings of fact, which •motion we have granted, and we copy in full the additional facts suggested by counsel for appellant, as follows:

“Mrs. Herring testified: T have heard them speak about Mr. Simmons being there. I do not know whether my father put Mr. Simmons there or not, but I have heard him speak about his being there. I probably have heard him speak about making a trade with Mr. Simmons for the improvements, but I don’t remember any particulars about it at all.’
“E. Biscamp testified: ‘My father’s name was Fred Biscamp. He is dead. He died in December, 1873. I remember about my father and Jones trading for some oxen. We owned the oxen when my father died, and I know how long we kept them, because we bought a little place on Clear creek, and we boys cultivated it in 1872 and used the oxen we had got from Jones. Mr. Jones got those oxen from old man Bill Simmons. Jones traded him that old place over there, the improvements, so they said. ' I don’t know that they did that; that w.as the understanding that he let him have them in payment to buy the place. I think Bill Simmons moved on the place about the time Mr. Jones got the oxen, and ho stayed there a little while and left I think Simmons went on the place first, and then Mrs. Tade. I don’t know how long it was after Simmons left before Mrs. Tade went there.’
“D. J. Dee testified: ‘It don’t really appear to me tbat Simmons lived there more than a month or two; a very short time, any way.’
“H. C. Jones testified: ‘My father is mistaken when he says I lived on the place with my family continuously for a period of twelve years from the time I originally moved on it; then Mrs. Tade, an aunt of mine moved on the place and occupied the same as my tenant continuously for a period of about five years. It is not a fact that during the time Simmons lived on the N. H. Cochran league .and occupied the improvements he bought from me, .and that I was living elsewhere than on the IST. H. Cochran league. It is not a fact that the improvements which I sold to the said Simmons were on the land in controversy in the suit filed against me in the 'federal court at Houston, in which judgment was rendered against me for the land in controversy.’ ”

We have quoted in hajc verba the testimony of these witnesses, as is set out in appellant’s motion for additional findings of fact, out of deference to them. However, we think the brief statement of the facts made by us in the original opinion fairly presents every additional fact requested by the appellant.

In our original opinion we used the following language:

“A number of witnesses not related to the parties testified positively of Jones’ occupation and tilling of the land up to 1882.”

In appellant’s motion for rehearing this statement is challenged by appellant’s counsel as to tbe words “not related to the parties.” Appellant asks that this part of the statement be corrected, because there was only one witness who so testified who was not related to some of the parties. There were a number of witnesses of different names who testified, and which is likely responsible for tbe clause “not related to the parties.” We accept appellant’s statement as true, without looking over the record, as to relationship, and now correct that paragraph in the original opinion, and make it read,

“A number of witnesses testified positively of Jones’ occupation and tilling of the land up to and including 1SS2.”

Appellant’s motion for rehearing presents nothing but what we have heretofore considered and passed upon, and we see no reason for change of our original opinion in this cause, and the motion for rehearing is therefore overruled.
      igsoFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ig=>Por other eases see same topic and KEY-NCJMBER in all Key-Numbered Digests and Indexes