author: CONNER, O. J.

text:
    McFARLAND v. LYNCH et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 29, 1908.)
    1.'Beokees (§ 8)— Evidence of Agency — Admissibility.
    Where a real estate broker testified that he had been appointed an exclusive agent to sell land, proof that he had put up a sign advertising the land for sale was admissible as proof that he acted as agent after his appointment.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 9; Dec. Dig. § 8.]
    2. Beokees (§ 8) — Evidence of Agency — CONSIDERATION FOE EXCLUSIVE AGENCY.
    Where a landowner alleged in his answer that a contract for the exclusive agency for the sale of the land was without consideration, evidence that the agent painted and put up a sign advertising the land for sale was relevant, to show that the agent in good faith undertook to perform the duties of his agency.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 9; Dec. Dig. § 8.]
    3. Appeal and Eeeoe (§ 728) — Assignment of Errors — Including Eeeoes in One Assignment — Deposition.
    Where numerous objections were made to the answers contained in a deposition, some of which were clearly bad, an assignment of error objecting to the admission of the deposition, which does not point out the particular objection relied upon, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3010-3012; Dec. Dig. § 728.]
    4. Trial (§ 207) — Instructions—Limiting Effect of Evidence.
    Where a part of a deposition was relevant to the material issues in the case, a requested instruction that it should be considered only in determining the credibility of a witness was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 498, 499, 501; Dec. Dig. § 207.]
    5. Appeal and Ereoe (§ 692) — Bill of Exceptions — Evidence — Answer to Question.
    A bill of exceptions to the refusal to permit a question to be answered, which does not show what the answer would have been, is defective.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2905-2909; Dec. Dig. § 692.]
    6. Trial (§ 194) — Instructions—Weight of Evidence.
    Where there was other evidence tending to show an appointment of plaintiff as an exclusive agent, a requested instruction that letters, which were introduced merely as written declarations of the owner tending to show an exclusive agency, failed to show such agency, and the jury therefore should find for the defendant, was a charge upon the weight of the evidence.
    [Ed. Note.—Eor other cases, see Trial, Cent. Dig. §§ 413-436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    7. Appeal and Error (§ 216)—Objections in Trial Court — Request por Instructions—Necessity—Eepect oe Documentary Evidence.
    An assignment of error for failing to instruct the jury as to the effect of letters in evidence will be overruled, where no request for such an instruction was made.
    [Ed. Note.—Eor other cases, see Appeal and Error, Dec. Dig. § 216; Trial, Cent. Dig. §§ 627, 631.]
    8. Brokers (§ 55)—Right to Compensation —Exclusive Agency.
    An exclusive agent for the sale of real estate may recover his commission, where the sale is made through another agent, without showing that he was the procuring cause of the sale.
    [Ed. Note.—Eor other cases-, see Brokers, Cent. Dig. §§ 82-84; Dec. Dig. § 55.]
    Appeal from Tarrant County Court; John B. Terrell, Judge.
    Action by D. H. Uynch and another against P. H. McFarland to recover a broker’s commission for the sale of land under an exclusive agency claimed by the plaintiffs, but which was denied by the defendant. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    It appeared that the land was sold by the defendant through other agents. The special charge referred to in the fifth assignment of error was as follows: “The letters introduced in evidence fail to show that the defendant made plaintiffs exclusive agents for the sale of the land in controversy herein, and you will therefore find for the defendant.”
    Miller & Dycus, of Ft. Worth, for appellant. Spoonts, Thompson & Barwise, of Ft. Worth, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      Fo'r other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER, O. J.

The first assignment is overruled, because one of appellee’s material averments was that he was an agent of appellant for the sale of land, and while agency cannot be shown, as objected in this assignment, by the acts and declarations of the alleged agent, yet proof that he acted as agent was competent, when other competent evidence of agency had been offered. Proof, therefore, that appellee painted and put up a sign advertising the land for sale was admissible, with appellee’s direct testimony of appointment as agent.

Besides, appellant pleaded, urged, and now insists in various forms, that the contract of agency was unilateral and without consideration, and it would seem certainly relevant to show that pursuant to his appointment appellee in good faith undertook to perform duties necessary, or at least proper, in order to effect a sale.

We sustain appellee’s exception to the second assignment. That objects to the introduction in evidence of the “deposition of W. H. Newton as shown by bill of exceptions.” The record discloses that as the deposition was read objections were made to several of the answers, some of which objections were clearly not good, and the assignment wholly fails to distinctly point out the particular exception- relied upon as requiring a reversal.

In the third assignment complaint is made of the action of the court in refusing a special instruction for the jury to not consider the testimony of the witness Newton for any other purpose than to determine the credibility of the witness Waits, to which Newton’s testimony related. The instruction, however, went to the entire deposition, a part of which at least, as before stated, was proper for the consideration of the jury and was relevant to material issues in the case, aside from the credibility of the-witness Waits. It would, therefore, have been improper to so limit Newton’s testimony, and the third assignment is accordingly overruled.

The bill of exceptions referred to in the fourth assignment fails to show what would have been the answer of the witness, had the court permitted the witness to answer. Besides, there was other evidence than aijpellant’s letter of October 18th strongly tending to show that appellee had been constituted an exclusive agent for the sale of appellant’s land. This was the material issue, which was for the jury’s deter■mination from all of the evidence, and it could have but tended to confuse the jury to permit appellant to badger the witness into stating that his claim of exclusive agency was based alone upon the letter referred to.

The fifth assignment is overruled, in that the special charge, of the refusal of which complaint is made, was on the weight of evidence, first, in telling the jury that the letters did not show exclusive agency; and, second, in instructing the jury in that event to find for the defendant. It is not a case in which the court was called upon to construe the legal effect of the letters. They were introduced merely as written declarations of appellant tending to show appel-lee’s exclusive agency, and it was for the jury to draw their own inference from the letters when read in the light of all the other evidence. And even though it be assumed that the letters of themselves were insufficient to establish appellee’s asserted exclusive agency, there was nevertheless verbal evidence of such agency which required the submission of the issue to the jury.

What we have said in disposing of the fifth assignment also disposes of the sixth assignment, which complains of the action of the court in failing to instruct the jury concerning the effect of the letters introduced in evidence. Besides, if in any event a charge on this subject was proper, appellant should have prepared and reguested one, which was not done.

The seventh, eighth, ninth, tenth, and eleventh assignments seem to present separate and distinct questions, and hence are subject to appellee’s objections; but, if considered, the first proposition thereunder is not the law as applied to the facts of this case, and the second is not supported by the record. If appellee was in fact the exclusive agent, as alleged, he had the right under the undisputed facts to recover his commissions, without showing that he was a procuring ■cause, ¡áee authorities cited on pages 16 and 17 of appellee’s brief. And there was evidence that the contract for commissions was not unilateral or without consideration; also that appellee’s authority was not revoked, the latter issue being distinctly submitted in a special charge requested by appellant.

We think the evidence supports the issues submitted, and that the judgment must be affirmed.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    LOOMIS et al. v. COBB.
    (Court of Civil Appeals of Texas. El Paso.
    June 5, 1913.
    Rehearing Denied June 26, 1913.)
    1. Husband and Wife (§ 274) — Conveyance to Husband — Interest op Wipe.
    Where premises in controversy were conveyed to a husband by a town, no beneficial interest in the property vested in the wife on the face of the deed, her interest being equitable only, and hence her heirs by a former husband inherited no such interest in the land as would defeat the rights of an innocent purchaser for value from the husband after the wife’s death.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 1026-1031; Dec. Dig. § 274.]
    2. Husband and Wipe (§ 274) — Bona Eide Purchaser — Notice—Burden op Proop.
    Where defendants acquired the legal title to certain land in controversy for a valuable consideration, the burden was on plaintiff to prove notice to them of the rights of the heirs of the widow of the first grantee in order to subordinate defendants’ legal title to the equitable interest acquired by such heirs.
    [Ed. Note. — For other eases, see Husband and Wife, Cent. Dig. §§ 1032-1045; Dec. Dig. § 274.]
    3. Vendor and Purchaser (§ 230) — Bona Fide Purchaser — “Constructive Notice.”
    A purchaser has constructive notice of every matter connected with or affecting his estate which appears by recital, reference, or otherwise on the face of any deed which forms an essential link in the chain of instruments through which he deraigns his title, since any description, recital of fact, or reference to other documents puts the purchaser on inquiry, and he is bound to follow up such inquiry until the whole series of title deeds is exhausted, and a complete knowledge of all the matters referred to has been obtained; the purchaser on being put on inquiry being presumed to have prosecuted the same until its final result and with ultimate success.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 502-512; Dec. Dig. § 230.

    For other definitions, see Words and Phrases, vol. 2, pp.-1472-1474; vol. 8, p. 7613.]
    4. Vendor and Purchaser (§ 230) — Bona Fide Purchaser — Notice — Contents op Documents.
    Where deeds under which defendants claimed title to certain land showed that the premises had been conveyed by a town to G. in accordance with a specific ordinance, defendants were constructively charged with notice of the contents of the ordinance and of the fact that it provided that, in the disposition of the unappropriated public lands of the town, entire surveys could be granted only to married men, and that single men could only be granted undivid' ed half interests therein, etc., and that the land when so conveyed to G. was community property of himself and his living wife, which also put defendants on inquiry as to the death of the wife and of the existence of the rights of her heirs.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. 8§ 502-512; Dec. Dig. § 230.]
    5. Vendor and Purchaser (§ 230) — Constructive Notice — Presumptions.
    The rule that notice of a city ordinance under which a deed was executed was chargeable to a subsequent purchaser of the title is based on the legal presumption that information has been communicated to or acquired by the purchaser and is therefore rebuttable and not conclusive.
    [Ed. Note. — For other cases, see Vendor, and Purchaser, Cent. Dig. §§ 502-512; Dec. Dig. § 230.-]
    6. Vendor and Purchaser (§ 230) — Constructive Notice — Diligence.
    Where a purchaser of land was charged with notice that the land was originally conveyed pursuant to a city ordinance limiting conveyances of whole surveys to married men, the fact that on inquiry it was discovered that the ordinance had been lost or destroyed did not constitute sufficient diligence to relieve defendants from the effect of notice of the contents of the ordinance which they could have otherwise discovered by the exercise of reasonable diligence.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 502-512; Dec. Dig. § 230.]
    7. Trespass to Try Title (§ 25) — Defenses —Laches.
    In trespass to try title, where plaintiff has a title, whether legal or equitable, sufficient to sustain the action as distinguished from a mere equity which would entitle him to acquire title, his right to recover cannot be barred by laches merely, but only by adverse occupancy in the manner and for the length of time prescribed by the statute of limitations relating to suits to recover land.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 30, 31; Dec. Dig. § 25.].
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Trespass to try title by Zach Lamar Cobb against Laura A. Loomis and. others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Loomis & Knollenberg, of El Paso, for appellants. Zach. Lamar Oobb, of El Paso, pro se.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

Appellee Oobb brought this action in trespass to try title against the appellants Laura A. Loomis, A. M. Loomis, R. W. Loomis, Marie L. Loomis, Pansy L. Latta, W. B. Latta, Annie L. Webb, and M. H. Webb to recover survey No. 154, block 1, of the San Elizario grant, containing about 61 acres. The case was tried before the court upon agreed facts, and judgment rendered in ap-pellee’s favor.

We will not undertake to set out in full the statement of the agreed facts, but will condense the same, quoting therefrom verbatim only when it appears advisable to do so.

The premises in controversy were owned by the town of San Elizario and by deed dated March 14, 1882, the town, acting by its mayor, G. N. Garcia, conveyed the same to Jesus Gutierres. In the deed it was recited that it was executed “by virtue of authority vested in me as such mayor, and in accordance with the ordinance of the town council of the town of San Elizario entitled ‘An ordinance to provide for surveying, adjusting and defining the boundaries of private land grants within the corporate limits of the town of San Elizario, Texas, and to provide for the division and granting of the unappropriated public lands belonging to the corporation of San Elizario, among the inhabitants thereof,’ passed and approved on June 20, 1881, in consideration of one dollar, to me paid by Jesus Gutierres, and he having complied with the provisions and accepted the conditions of the above act, do grant, sell and convey,” etc.

The ordinance referred to in the above-mentioned deed, among other things, provided that, in the division and granting of the unappropriated public lands belonging to the corporation among the inhabitants thereof, entire surveys should be granted to married men, and to single men there should only be granted undivided one-half interests in surveys; that is to say, entire surveys should be conveyed to married men, and in cases of single men a survey should be conveyed to them jointly. The ordinance above noted, at the date the agreement with regard to the facts was entered into, was lost or destroyed and had been lost or destroyed for many years, and its whereabouts were unknown, and whether or not it is now in existence is unknown, .and such fact has been unknown for many years. The corporation of San Eliz-ario was dissolved in 1885 and the ordinance, together with the other archives of the corporation, was delivered for safe-keeping to the county clerk of El Paso county, and no one knows what became of the ordinance' after that time. Prior to the execution of above-mentioned deed, Gutierres was married to Dolores Bustillos, and she was living with him as his wife at the time of the execution and delivery of said deed. On March 3, 1887, Gutierres by deed of that date conveyed said premises to Loretto Alarcon, which deed was recorded in the El Paso county records, and by deed dated March 8,1887, recorded March 10, 1887, Loretto Alarcon, joined by her husband, Martin Alarcon, conveyed the premises to A. M. Loomis. A. M. Loomis died intestate-in 1901, leaving as his heirs his wife, Laura A. Loomis, and children, A. M. Loomis, Jr., R. C. Loomis, R. W. Loomis, Pansy L. Latta, wife of W. B. Latta, Annie L. Webb, wife of M. H. Webb. R. 0. Loomis is dead and his widow, Marie Loomis, is his sole heir. R. 0. Loomis, by deed dated January 5, 1906, conveyed his interest in the premises to R. W. Loomis in consideration of $1,000, and on February 3, 1906, R. W. Loomis conveyed the premises to Laura A. Loomis in consideration of $1,000, and on March 13th Mrs. Laura A. Loomis, Mrs. Webb, and Mrs. Latta, the last two named joined by their respective husbands, conveyed the premises to A. M. Loom-is, R. G. Loomis, and R. W. Loomis in consideration of the sum of $300. On April 29, 1908, A. M. Loomis, Jr., conveyed the same to-Ralph W. Loomis in consideration of $1,150,. and on December 17, 1909, Ralph W. and Marie Loomis conveyed to Laura A. Loomis, Mrs. Latta, and Mrs. Webb the premises in. controversy for a valuable consideration. The agreement stipulates: “That the defendants herein are bona fide purchasers of said survey, for value, and without notice of any right, title, or interest in said Dolores Alar-con de Gutierres, and her heirs, except the-notice charged, if any be charged, to them by the said deed from San Elizario to said Gutierres, and the ordinance therein recited, and that they and those under whom they claim have rendered said property for taxation and paid the taxes thereon from the-date of the purchase thereof by the said A. M. Loomis.”

Dolores Gutierres died about April 15,. 1886. There was no issue of thfe marriage of' the said Jesus Gutierres and Dolores, but Dolores had children by a prior marriage with one Bustillos, and these children survived her. They did not live at the home of Jesus Guti-erres. The said children and heirs of Dolores, in the year 1909, conveyed to appellee Cobb an undivided one-half interest in the premises in controversy. The children of Dolores were of age at the time of her death. The children and heirs of Dolores paid no taxes on the premises, nor did they render the same for-taxation prior to the date the same was purchased by Cobb. The agreement states that Cobb was a bona fide purchaser of said one-half interest from the heirs of Dolores, but it further states that he bought with full notice of the various deeds under which the appellants claim and of the fact that they claimed to own the entire survey in fee-simple title.. It is further agreed that appellants had no actual notice of the claim of the said Dolores until the same was acquired by Cobb. Appellants A. M. Loomis, Jr., and M. H. Webb knew Jesus Gutierres and knew at the time of their purchase that he had no children. There were no community debts of Gutierres and his wife Dolores. Garcia, the mayor of San Elizario, who executed the deed to Guti-erres, is living, and ever since the date of the execution of the deed has lived in the town of San Elizario in El Paso county and is familiar with the terms of the ordinance recited in the deed. “The defendants in this case who hold the title through and under A. M. Loomis, now deceased, as aforesaid, to whom the Alarcons executed the deed aforesaid, at the time and prior to their purchases hereinbefore listed and described, made diligent inquiry and search for said ordinance, and were informed prior to their several purchases that said ordinance was lost or destroyed, and had been so lost and destroyed many years prior to their said purchase. No further inquiry or search was made by defendants.” The record does not disclose the date upon which Cobb filed his suit, but we take it that it was some time subsequent to the date of his deed from the heirs of Dolores, and the agreed facts state that this deed was obtained by him in the year 1909.

As his findings of fact the trial court adopted the agreed statement of facts. His conclusions of law are quite lengthy, and it would serve no useful purpose to set the same out in full here. Briefly stated, he found that appellants were constructively charged with notice of the contents of the ordinance referred to in the deed to Gutierres, and that the ordinance itself disclosed that married men only were qualified pm'chasers of entire surveys, and therefore a purchaser with knowledge of the contents of the ordinance would be charged with notice of the fact that Gutierres was a married man; that under the authority of Hill v. Moore, 85 Tex. 339, 19 S. W. 162, a purchaser would be charged with knowledge of the equitable interest owned in the land by the children of the deceased wife; that, while the ordinance in question was lost, yet the fact that the title of the appellants was deraigned under the ordinance placed them upon inquiry in regard to its contents, and, in order to sustain the plea that they were innocent purchasers for value, the burden was upon them to show that they had made proper inquiry and investigation in order to rebut the constructive notice furnished by the ordinance, and, there being no evidence to show that they exercised any diligence whatever to ascertain the contents of the ordinance, they therefore could not be protected as innocent purchasers. He further found that the issues of limitation and stale demand pleaded by appellants were not raised by the agreed facts.

The first assignment complains of the overruling of a general demurrer to the petition. The petition was in the ordinary form, appropriate in actions of this character, and the demurrer was properly overruled. The remaining assignments will not be discussed in their order or in detail, but we will confine ourselves to what is conceived to be the controlling questions in the case.

The premises in controversy having been conveyed to Jesus Gutierres by the town of San Elizario, no beneficial interest therein upon the face of the deed appearing to be vested in the wife, Dolores, her interest in same was equitable. The entire legal title was vested in the husband, and her heirs by the former husband inherited no such interest in the land as would defeat the rights of an innocent purchaser for value from Gutierres after her death. Patty v. Middleton, 82 Tex. 586, 17 S. W. 909; Hensley v. Lewis, 82 Tex. 595, 17 S. W. 913; Woodburn v. Texas, etc., 153 S. W. 365; West v. Keeton, 17 Tex. Civ. App. 139, 42 S. W. 1034; Brackenridge v. Rice, 30 S. W. 588; Daniel v. Mason, 90 Tex. 244, 38 S. W. 161, 59 Am. St. Rep. 815; Mangum v. White, 16 Tex. Civ. App. 254, 41 S. W. 80; Malry v. Grant, 48 S. W. 616; Oaks v. West, 64 S. W. 1036; Davidson v. Green, 27 Tex. Civ. App. 394, 65 S. W. 1111; McCoy v. Cunningham, 27 Tex. Civ. App. 476, 65 S. W. 1085. Appellants have the legal title by virtue of the conveyance from Jesus Gutierres to A. M. Loomis, and appellee Cobb has the equitable title to an undivided one-half interest acquired from the heirs of Dolores.

Appellants having thus acquired the legal title for a valuable consideration, then, in order to subordinate the same to the equitable interest acquired from the heirs of Dolores, the burden of proof rested upon Cobb to affect them with notice of the rights of the heirs. McBride v. Moore, 37 S. W. 450. Appellants had no actual knowledge of the fact that the lands belonged to the community estate of Jesus Gutierres and his deceased wife, nor of the fact that the wife had children by a former marriage, and, unless they be constructively affected with notice thereof, their legal title must prevail.

It is a familiar and thoroughly well-settled principle of realty law that a purchaser has constructive notice of every matter connected with or affecting his estate which appears by recital, reference, or otherwise upon the face of any deed which forms an essential link in the chain of instruments through which he deraigns his title. The rationale of the rule is that any description, recital of fact, or reference to other documents puts the purchaser upon inquiry, and he is bound to follow up this inquiry, step by step, from one discovery to another and from one instrument to another, until the whole series of title deeds is exhausted and a complete knowledge of all the matters referred to and affecting the estate is obtained. Being thus put upon inquiry, the purchaser is presumed to have prosecuted it until its final result and with ultimate success.

Applying these rules, it must be held that appellants were constructively affected with notice of the contents of the ordinance of the town of San Elizario referred to in the deed to Jesus Gutierres. 2 Pom. Eq. Juris. § 626; Skov v. Coffin, 137 S. W. 450. And they were therefore charged with notice of the fact that the land was community prop.-erty of Gutierres and a then living wife, which would place them upon inquiry as to the death of the wife and the existence and rights of her heirs. Hill v. Moore, 85 Tex. 339, 19 S. W. 162; Hardy Oil Co. v. Burnham, 124 S. W. 221. The notice thus imputed discharges the burden imposed upon Cobb and would undoubtedly ordinarily subordinate the legal to the equitable title.

The question thus far is without difficulty, but the record of the ordinance referred to in the deed had been lost or misplaced since the year 1885, when the municipality of San Elizario was abolished, and appellants had made diligent inquiry and search for the record. It is contended that the search and inquiry for the record of the ordinance relieved appellants of the imputation of notice of the contents of the ordinance. This contention involves a further consideration of the doctrine of constructive notice. The rule of notice thus imputed is based upon the legal presumption that information has been communicated to or acquired by a party. The presumption is not conclusive but rebuttable. 2 Pom., on Eq. Juris. § 604.

At section 607 the authority last quoted says: “It may be stated as a general proposition that in all instances of constructive notice belonging to this class, where it arises from information of some extraneous facts, not of themselves tending to show an actual notice of the conflicting right, but sufficient to put a prudent man upon an inquiry, the constructive notice is not absolute; the legal presumption arising under the circumstances is only prima facie; it may be overcome by evidence, and the resulting notice may thereby be destroyed. Whenever, therefore, a party has merely received information, or has knowledge of such facts sufficient to put him on an inquiry, and this constitutes the sole foundation for inferring a constructive notice, he is allowed to rebut the prima facie presumption thence arising by evidence; and if he shows by convincing evidence that he did make the inquiry, and did prosecute it with all the care and diligence required of a reasonably prudent man, and that he failed to discover the existence of, or to obtain knowledge of, any conflicting claim, interest, or right, then the presumption of knowledge which had arisen against him will be completely overcome; the information of facts and circumstances which he had received will not amount to a constructive notice. What will amount to a due inquiry must largely depend upon the circumstances of each ease. If, on the other hand, he fail to make any inquiry or to prosecute one with due diligence to the end, the presumption remains operative, and the conclusion of a notice is absolute. The criterion thus laid down will serve to determine the prima facie nature of the presumption in a very large number of the instances which are properly referable to the class of ‘constructive notice.’ ” Thus it is seen that the reference to the San Elizario ordinance in the Gutierres deed affected appellants with constructive notice of its contents and of the community status of the premises conveyed by the deed, and, in order to relieve themselves of and destroy the notice thus imputed, it became incumbent upon appellants to rebut the prima facie presumption which had thus arisen by showing that inquiry had been made to ascertain the contents of the ordinance; that such inquiry had been prosecuted with all the care and diligence which would be required of a reasonably prudent man; and that they had-failed to discover that Gutierres must have been a married man in order to acquire title to the land by virtue of the ordinance recited. Upon the question of diligence in this respect the agreed statement of the facts states' that they “made diligent inquiry and search for said ordinance, and were informed, prior to their several purchases, that said ordinance was lost or destroyed, and had been so lost and destroyed for many years prior to their said purchase. No further inquiry or search was made.” The learned trial court held that under the agreed facts no such inquiry and diligence to ascertain the contents of the ordinance was shown as would relieve appellants of the prima facie presumption of notice imputed to them, and in this view we concur. Their deed was based upon, and its validity was dependent upon, the ordinance referred to, and this court cannot say, as a matter of law, that appellants, upon discovering that the record of the ordinance had been lost or misplaced, were thereby relieved of the duty of pursuing all other legitimate sources of inquiry which might afford the desired information; and it is believed that due care would have prompted a reasonably prudent person to have made further inquiry as to the nature and contents of the lost ordinance. It is, of course, true that in the exercise of due care the desired information might not have been obtained, but that is not the question involved. Appellants were constructively affected with knowledge of the contents of the ordinance and have failed to relieve themselves of the notice thus imputed by a sufficient showing of diligence in making inquiry concerning the same. Hill v. Moore, supra; Hardy Oil Co. v. Burnham, supra; 2 Pom. Eq. Juris., supra.

The further contention is made that, Cobb’s title being an equitable one, its assertion against tbe legal title is barred as a stale demand. That tbe bolder of tbe legal title could successfully interpose tbis defense against a superior equitable title bas been unequivocally recognized by tbe Supreme Court in a number of decisions. Carlisle v. Hart, 27 Tex. 350; League v. Rogan, 59 Tex. 427; Montgomery v. Noyes, 73 Tex. 203, 11 S. W. 138; Howard v. Stubblefield, 79 Tex. 1, 14 S. W. 1044; Browning v. Pumpbrey, 81 Tex. 163, 16 S. W. 870; McMasters v. Mills, 30 Tex. 591. Also by tbe Ft. Worth Court of Civil Appeals in French v. Koenig, 8 Tex. Civ. App. 341, 27 S. W. 1079, and Wichita, etc., v. Ward, 1 Tex. Civ. App. 307, 21 S. W. 128, and in the very recent case of Wolf v. Wilhelm, 146 S. W. 216, there are expressions by tbe San Antonio court from which it would appear to be held that under certain circumstances tbe mere lapse of title, unaccompanied by possession, would bar recovery by tbe holder of the equitable title.

On the other hand, there are numerous decisions by various of the Courts of Civil Appeals in which it is squarely held that in suits for recovery of land it matters not whether the title asserted 'by the plaintiff be legal or equitable; if' he has title sufficient to sustain an action of trespass to try title as distinguished from a mere equity, which would entitle him to acquire title, his right of recovery will be barred only by adverse occupancy in the manner and for the length of time prescribed by the statutes of limitation relating to suits for recovery of land.

It was so held by the Austin court in N. Y. & T. L. Co. v. Hyland (writ of error refused) 8 Tex. Civ. App. 601, 28 S. W. 206; Schleicher v. Guthrod, 34 S. W. 657; Creswell v. Waldstein, 28 S. W. 260; Tinsley v. Magnolia Park Co., 59 S. W. 629; Owen v. Land Co., 11 Tex. Civ. App. 284, 32 S. W. 189, 1057; by the Galveston court in Trinity, etc., v. Pinckard, 4 Tex. Civ. App. 671, 23 S. W. 720, 1015; Lochridge v. Corbett, 31 Tex. Civ. App. 676, 73 S. W. 96; Hardy Oil Co. v. Burnham, 124 S. W. 221; Lowry v. McDaniel, 124 S. W. 710; Betzer v. Goff, 35 Tex. Civ. App. 406, 80 S. W. 671; Lyster v. Leighton, 36 Tex. Civ. App. 62, 81 S. W. 1033; Storer v. Lane, 1 Tex. Civ. App. 250, 20 S. W. 852; Morris v. Unknown Heirs, 95 S. W. 66; Punchard v. Masterson (writ of error refused) 103 S. W. 826; Broussard v. Cruse, 154 S. W. 347; by the Amarillo court in Montgomery v. Trueheart (writ of error refused) 146 S. W. 284; by the Texarkana court in Early v. Compton (writ of error refused) 149 S. W. 694; and by the San Antonio court in Blason v. Bender (writ of error refused) 97 S. W. 715. This last-mentioned case is not directly in point.

Blair v. Hennessy, 138 S. W. 1076, by the Galveston court, is somewhat peculiar. While the discussion of the question there is dictum, Judge Pleasants states the majority are of- the opinion under the decisions of the Supreme Court that the defense of stale demand was available but that he did not concur in this view. Notwithstanding this statement of the view held by the majority, we find the contrary held by the same court in the very recent ease of Broussard v. Cruse, supra, in opinion by Justice Reese.

While the Supreme Court has never expressly repudiated the principle recognized in its decisions above cited, yet the more recent cases of Duren v. Railway Co., 86 Tex. 287, 24 S. W. 258, Threadgill v. Bickerstaff, 87 Tex. 520, 29 S. W. 757, and Humphreys v. Edwards, 89 Tex. 512, 36 S. W. 333, 434, do not seem to be quite in harmony with the view that stale demand can be asserted as a defense in trespass to try title by the holder of the legal title against a superior equitable title. Aside from a consideration of these last-cited cases, it would seem that the refusal of writs of error in N. Y. & T. L. Co. v. Hyland, Punchard v. Masterson, Montgomery v. Trueheart, and Early v. Compton, all supra, has definitely committed the Supreme Court to the approval of the principle there recognized and is a virtual, if not complete, repudiation of the earlier view that lapse of time alone, unaccompanied by adverse possession, would bar the right of recovery. The contention is therefore overruled that appellee’s right of recovery was barred as a stale demand; this court being of the opinion that the true rule is as stated by the various Courts of Civil Appeals in the cases noted, and that this is now the view of the Supreme Court upon the question. The nineteenth assignment is overruled.

It is true that after a sufficient lapse of time it may be presumed, in the absence of contrary evidence, that debts existed which would authorize the survivor to sell community property, but no such presumption can be here indulged, since it is agreed that there were no community debts.


author: PLEASANTS, C. J.

text:
    KIRBY LUMBER CO. v. WILLIAMS.
    (Court of Civil Appeals of Texas. Galveston.
    April 30, 1913.
    On Blotion for Rehearing, May 29, 1913.)
    1. Master and Servant (§ 189) — “Vice Principal” — Who is.
    One to be a “vice principal” must possess authority to superintend, control; and command employés and hire and discharge them.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dee. Dig. §, 1S9.

    For other definitions, see Words and Phrases, vol. 8, pp. 7313-7316.]
    2. BlASTER AND SERVANT (§ 287) —INJURIES to Servant — Instructions.
    Where, in an action for injuries to an em-ployé in a sawmill, the court charged that, if the sawyer had authority to control the em-ployé and to hire and discharge him, the sawyer was a vice principal and the employer was Hable for his negligence, a charge that a vice principal is one who is intrusted with authority to superintend or command other employés, or with authority to direct other employés as to their duties, and to hire and discharge them, was not misleading.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1034, 1045, 1051, 1052, 1054-1067; Dec. Dig. § 287.]
    3. Trial (§ 256) — Instructions—Requests —Necessity.
    An instruction in an action for injuries to an employé by the negligence of a coemployé, occupying the position of vice principal, that, if the coemployé was not clothed with power to control and superintend the employé and hire and discharge him, the employé and coemployés were fellow servants, and the employer was not liable, was not affirmatively erroneous, and in the absence of a request to charge it was not error to fail to submit the issues disjunctively, though the employer was entitled to a verdict on the jury finding either that the coemployé had no authority to control the employé or to hire and discharge him.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 62S-641; Dee. Dig. § 256.]
    4. Master and Servant (§ 279) — Injury to Servant — Vice Principal — Evidence.
    That an employé had the power to hire and discharge employés, essential to make him a vice principal, may be inferred from evidence that he repeatedly exercised such authority with the knowledge and acquiescence of the employer.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. § 279.]
    5. Master and Servant (§ 294) — Injuries— Instructions — Sufficiency.
    Where the jury must have understood from the instructions given that they could not find for an employé suing for a personal injury unless they found that a coemployé had authority to hire and discharge him, and the court also stated that, if the coemployé did not have authority to direct and control the employé and to hire and discharge him, the verdict’ must be for the employer, the issue of vice principal was sufficiently submitted.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §,§ 1157, 1161, 1162-1167; Dec. Dig. § 294.]
    6. Master and Servant (§ 296) — Injury to Servant — Issue of Discovered Peril — Evidence.
    Where, in an action for injuries to an employé engaged as a block setter in a sawmill and required to ride the carriage between the doggers thereon and by means of a lever regulate the thickness of the lumber to be sawed in accordance with the orders of the sawyer, whose duty it was to run the carriage by means of a lever, witnesses testified that the sawyer was looking at the saw at the instant the em-ployé lost his balance and fell or was thrown from the carriage, and from his position he could hardly have failed to see the employé fall, and that he could have stopped the machinery in time to have avoided the accident, the issue of discovered peril was sufficiently raised to justify an instruction thereon.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.]
    7. Evidence (§ 471) — Opinion Evidence-Statement of Facts.
    The testimony of a witness that an em-ployé hired and discharged employés is not objectionable as mere conclusion of the witness, but is a statement of fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §•§ 2149-2185; Dec. Dig. § 471.]
    8. Evidence (§ 471) — Opinion Evidence-Statement of Facts.
    The statement of a witness that the foreman in a sawmill never put any man back on the carriage against the sawyer’s wishes only means that the witness never heard of such an occurrence, and the probative .force depends on the means of knowledge of the witness.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dee. Dig. § 471.]
    9. Evidence (§, 473) — Opinion Evidence-Statement of Facts.
    A witness famiHar with the operation of machinery and who saw its movement on the happening of an accident to an employé may state that the employe’s fall from the machinery was caused by a sudden and unexpected reverse movement of the machinery.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2220-2233; Dec. Dig. § 473.]
    10. Master and Servant (§ 279) — Injury to Servant — Vice Principal — Evidence.
    Evidence ¡helé to support a finding that an employé guilty of negHgence causing injury to a coemployé was a vice principal of the co-employé so as to make the employer Hable.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. § 279.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Action by James J. Williams against the Kirby Lumber Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    OHver J. Todd, of Beaumont, and Andrews, Ball & Streetman, of Houston, for appellant. Blain & I-Iowth and M. G. Adams, all of Beaumont, for appellee.

      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PLEASANTS, C. J.

This suit waa brought by the appellee against the appellant to recover damages for personal injuries sustained by appellee while in the service of J. S. Rice and Cecil A. Lyons, receivers of appellant company, and which are alleged to have been caused by the negHgence of said receivers or their representative, Jim Bailey, who it is alleged was a vice principal.

The plaintiff alleged in his trial petition, in substance: That on or about the 3d day of February, 1909, he was in the employ of Cecil A. Lyons and J. S. Rice, as receivers of the Kirby Lumber Company, at their sawmill at Rogan, Tex., in the capacity of a block setter. That his duties as block setter required him to ride the carriage between the two doggers thereon and by means of a lever to regulate the thickness of the lumber to be sawed in accordance with the orders of one Jim Bailey, the sawyer, whose duty it was to run the carriage by means of a lever, which controlled the steam, used as motive power, and regulated the speed of the carriage, and that while the carriage was being operated plaintiff was thrown from his balance down upon the carriage with the result that Ms left leg was caused to come in contact with an upright timber fastened to the carriage track and called the stationary board, and by such contact his leg was so injured that it was necessary to have it amputated. That on the occasion of the accident the sawyer, Jim Bailey, failed and omitted to run the line all the way through a certain crooked log then and there being sawed, and, having started and brought the carriage back a few feet, he suddenly and without warning reversed his lever and shot or propelled the carriage forward again to finish cutting the line, whereby plaintiff, wMle holding to his lever and using due care, was thrown from his balance down and upon the carriage, and that thereafter, when the line was cut through, said sawyer immediately and suddenly reversed his lever and brought his carriage back at an unreasonable and dangerous speed, and that thereby the plaintiff, being then and there overbalanced, was so turned or thrown on the carriage that bis left leg was caused to come in violent contact with the stationary board, resulting in bis injuries. This allegation is reiterated in language substantially that the said Jim Bailey carelessly, negligently, suddenly, and without warning reversed the carriage while on its backward course, and at the same time shot and propelled it forward with great and unreasonable speed, violently throwing plaintiff off his balance, and thereupon carelessly, negligently, recklessly, and suddenly brought said- carriage back with great and unusual speed to the other end of the carriage track, striking and erusMng plaintiff’s leg against said stationary board. That the said Jim Bailey was given timely notice and warning of plaintiff’s dangerous situation, and of Ms peril, and was immediately flagged to stop the carriage, and that after having such notice and being flagged to stop as aforesaid, and after knowing of plaintiff’s peril and danger, he carelessly and recklessly propelled said carriage with great speed and violence to a distance of 25 feet, thereby causing said injuries, when by the use of ordinary care after having been so warned and notified he could and would have stopped said carriage within two or three feet, and could and would thereby have prevented said injuries, with safety to said property, to himself, and to the other members of said carriage crew. That said sawyer, Jim Bailey, negligently, carelessly, and recklessly failed and omitted either to see plaintiff in Ms peril and to use ordinary care to stop said carriage and prevent said injuries, or, having seen Mm, thereafter carelessly, negligently, and recklessly failed to stop the carriage when he had ample opportunity to do so by the use of ordinary care before plaintiff was injured.

These allegations of negligence were predicated upon the further essential allegation that the said sawyer, Jim Bailey, was a viee principal; it being alleged that he was then and there authorized and empowered by the defendant to direct and control plaintiff and the other members of the carriage crew in their work and to hire and discharge them, and to direct the method and manner of said work, and to issue orders and enforce obedience thereto, and that he had theretofore frequently, habitually, and customarily hired and discharged any and all members of the carriage crew and frequently, habitually, and customarily exercised such authority and such substantial and potential power with the knowledge of defendant’s authorized) agents.

The defendant answered by general demurrer, general denial, pleas of assumed risk and contributory negligence, a special plea denying that the sawyer, Jim Bailey, was a viee principal, a special denial that the sawyer, Jim Bailey, had the authority to hire and discharge, and a special plea that the sawyer, Jim Bailey, and the plaintiff were fellow servants, because of wMch relation the defendant was in no respect liable for the negligent acts or omissions, if any, on the part of said Jim Bailey.

The petition also 'contains allegations of facts showing the liability of appellant for the injury to appellee, if caused by the negligence of said receivers as alleged in the petition, and it was agreed on the trial that the facts so alleged were true, and no issue is made upon this appeal as to appellant’s liability for the acts or omissions of the receivers.

The trial in the court below resulted in a verdict and judgment in favor of appellee for the sum of $8,000. This is the second appeal of this case. The opinion of this court on the former appeal is reported in 136 S. W. 1182.

The evidence shows that plaintiff was injured at the time and in the manner alleged in the petition. At the time of his injury he was in the employment of the receivers of defendant company as block setter for the saw in defendant’s sawmill at Rogan, Tex. His duties required him to ride on the carriage of the saw and by means of a lever to regulate the thickness of the lumber being sawed as directed by the sawyer. The carriage was 23 feet in length and operated upon a track 60 feet long and 5 or 6 feet wide. The sawyer operated the carriage by means of a lever which controlled the motive power and stood on the side of the track a few feet distant from the carriage and about equal distance from each end of the track. Steam was the motive power used, and the carriage could be moved swiftly back and forth on the track by the use of the lever; the method by which the power was applied being known as the “shotgun feed.” To operate the carriage on the track, the sawyer stood, holding tMs lever, with his face to the carriage. By pulling the lever back and forth the sawyer would let In as much or as little steam as he wanted, could run the carriage at any speed desired, and could start and stop it either slowly or suddenly. While the carriage was moving, either forward or backward, at full speed, it could be suddenly stopped and immediately shot in the opposite direction. On the side of the carriage opposite where the sawyer stood while operating his lever was an upright exhaust pipe, situated to the sawyer’s left hand, about a foot from the carriage. This pipe was 10 or 15 feet towards the saw from a point opposite the sawyer’s station. About the same distance to the right of the sawyer, and on the opposite side of the track, was what is called the stationary board, which was an upright piece of lumber fixed close to or against the track.

On the occasion of plaintiff’s injury a crooked log was being sawed, and the sawyer, Jim Bailey, for some reason failed to run the line all the way through the log. He started the carriage back under a full head of steam as if he intended to go all the way to the back end; but by the time he had brought his carriage back from four to six feet from the front end he discovered that he had not cut the line all the way through and that a slab was left on the log, whereupon he suddenly reversed the carriage, made an immediate stop, and instantly shot it forward under a full head of steam and finished the line. This sudden stopping of the carriage while on its backward course and shooting it forward again threw plaintiff off his balance. As the carriage was shot forward, plaintiff was out of balance, stumbling and falling. While in this falling or overbalanced position, the motion of the carriage brought him in contact with the exhaust pipe, which knocked him down on the carriage, his face down and his left leg hanging off the side of the carriage. While he was in this position the sawyer reversed the carriage and sent it rapidly toward the rear of the track. By this movement of the carriage plaintiff’s left leg was brought in violent contact with the stationary board and was so badly broken and and mangled as to require its amputation. The sudden changes in the direction and the rapidity of the movement of the carriage by Jim Bailey was unusual and unnecessary and in the circumstances was a negligent manner of operating the carriage, and this negligence was a proximate cause of the injury to appellee.

The evidence is also sufficient to sustain the finding that Bailey saw and realized appellee’s peril in time to have prevented his injury by the use of the means at his command and failed to use proper care after the discovery of the peril to avoid the injury.

It was the duty of the sawyer to look out for the safety of the employes on the carriage, and, if Bailey failed to see appellee at the time he struck the exhaust pipe and fell upon the carriage, he was not keeping a proper lookout and was negligent in this regard. The sawyer, Bailey, was intrusted with authority to direct and control the work of the other employes who were engaged in the operation of the carriage and saw and had authority to hire and discharge such employes. The appellee was not guilty of any negligence which contributed to his injury and he had not assumed the risk of the injury.

The first assignment of error complains of the sixth paragraph of the charge on the ground that it erroneously instructed the jury as to the meaning of the term “vice principal.” The charge complained of is in the following language: “A ‘vice principal,’ as that term is used in this case, is one who is intrusted by the company with authority to superintend, control, or command other persons employed by the company, or with authority to direct any other employé in the performance of his duty and to hire and discharge him.” This charge is not a correct statement of the law. In order to make Jim Bailey a vice principal it was necessary to show that, in addition to his authority to “superintend, control, and command” appellee, he had authority to hire and discharge him. Young v. Hahn, 96 Tex. 99. This paragraph of the charge, when strictly construed in accordance with its punctuation, would authorize the jury to find that, if Jim Bailey was intrusted by the company with authority to superintend, control, and command the appellee, he was vice principal, and that the authority to hire and discharge was only necessary to make an employé a vice principal when such employé merely directed other employés in the performance of their duties. But we do not think it probable that the jury were misled by this inaccuracy in the definition of the term “vice principal.”

After giving this and other general definitions of terms used in the charge, the court directly applied the law to the facts in evidence in the following language: “Now, bearing in mind the foregoing instructions as to ‘fellow servants’ and ‘vice principal,’ you will first determine from all of the evidence whether or not the relationship between the sawyer, Jim Bailey, and the plaintiff was that of a fellow servant or vice principal; and in this connection I charge you that if you find from a preponderance of the evidence that Jim Bailey, as sawyer for the defendant company in its mill at Rogan, Tex., on or about the time of plaintiff’s alleged injury, was clothed with authority by the defendant company to superintend and control the plaintiff as block' setter on the carriage, and was intrusted with the duty and power of directing his labor, and that plaintiff was bound to obey the orders of said Jim Bailey in the class, grade, or kind of work for which he was employed, and upon which he was engaged at the time of the alleged injury, and if you further find from a preponderance of the evidence that the said Jim Bailey had the power and authority to hire and discharge the said plaintiff, then you are charged that the said Jim Bailey was at such time and place a vice principal of the defendant company, and if the said Jim Bailey was guilty of negligence (if any) as hereinafter submitted to you in this charge, and such negligence proximately caused plaintiff’s injury, then the defendant company would in law be guilty of negligence; but on the other hand, if you should believe that the. said Jim Bailey was not clothed with such power and authority to control and superintend plaintiff and direct his labor, and that he did not have power and authority to hire and discharge him, then, if you so find, you are charged that the plaintiff and the said Jim Bailey were at such time and place fellow servants and that the defendant company was not liable for the negligence (if any) of the said Jim Bailey, and your verdict should be for the defendant company.” By this paragraph of the charge the jury were in effect told that, to authorize a finding that Bailey was a vice principal, they must find that he had authority to hire and discharge. When the two paragraphs of the charge are read and considered together, we do not think the jury could have been misled by the inaccurate definition given in paragraph 6. The issue of whether or not Bailey had authority to hire and discharge other employés was one of the main issues presented by the evidence, and there was no issue in the evidence as to his being intrusted with authority to superintend, control, and command appellee; such authority being shown by all of the evi-dencie. Under this state of the evidence, and in view of the court’s instruction, which makes a finding that Jim Bailey was a vice principal depend upon whether or not he had authority to hire and discharge appellee, it would be unreasonable to assume that the jury in finding for plaintiff did not find that Bailey did have such authority, or that they understood from the charge as a whole that they could so find.

The second assignment of error complains of the following portion of the charge above set out: “But on the other hand, if you should believe that the said Jim Bailey was not clothed with such power and authority to control and superintend the plaintiff and direct his labor, and that he did not have power and authority to hire and discharge him, then, if you so find, you are charged that the plaintiff and the said Jim Bailey were at such time and place fellow servants, and that the defendant company was not liable for the negligence (if any) of the said Jim Bailey, and your verdict should be foi the defendant company.” This is clearly not affirmative error. The. defendant would have been entitled to a verdict if the jury had found either that Bailey was not intrusted with authority to direct and control the ap-pellee in his work or that he did not have authority to hire and discharge him, and this would have been the proper way to have submitted the fellow-servant issue. But it is equally true, as stated in the charge, that, if the jury found that Bailey did not have the authority to direct and control, and to hire and discharge appellee, defendant would be entitled to a verdict. The proposition of law stated in the charge was correct, and there is nothing to indicate that the jury was misled by the failure of the court to submit these issues disjunctively. Railway Co. v. Wood, 69 Tex. 679, 7 S. W. 372; Railway Co. v. Brown, 78 Tex. 402, 14 S. W. 1034; Railway Co. v. Hill, 95 Tex. 629, 69 S. W. 136.

What we have said in discussing the first and second assignments disposes of the question presented by the third assignment which complains of the charges above quoted on the ground that they were misleading and must have confused the jury upon the issue of whether Bailey was a vice principal or a fellow servant of the appellee. We do not think it probable that the jury were misled by the inaccuracies in the charge before mentioned, and the assignment cannot be sustained.

The trial court did not err in refusing to give the special charge requested by appellant and set out in the fourth assignment of error. It was not necessary, in order for the jury to find that Bailey had the power to hire. and discharge, that the evidence should show that such power and authority had been expressly delegated to him by the receivers. If, as shown by the evidence, he repeatedly exercised such authority with the knowledge and acquiescence of the receivers, or of their representatives, the jury could find that he had the authority, notwithstanding there was no direct evidence that the authority had been expressly conferred upon him. Williams v. Kirby Lumber Co., 136 S. W. 1182. The requested charge instructed the jury that, in order to find that Bailey had the power to hire and discharge appellee, they must believe from the evidence “that such power and authority had been actually delegated to and conferred upon him by the receivers .of the Kirby Lumber Company or their agents having power to delegate and confer such authority.” This was in effect an instruction that, unless the evidence shows that express authority to hire and discharge had been conferred upon Bailey, the jury could not find that he had such authority. This is not the law, as we understand it, and the charge was properly refused. Our conclusions upon this question are more fully stated in our former opinion in this case before cited, and we adhere to the views there expressed.

The fifth assignment complains of the failure of the court to give the jury “a proper instruction to the effect that, if the sawyer, Jim Bailey, did not possess the power and authority to hire and discharge the plaintiff, the said Bailey in such event was not a vice principal, for that such was the law applicable to the facts of the ease, and the court’s attention was directed thereto by special charges requested by the defendant, and, the vice principalship issue being a sharply contested issue in the case, it was the court’s duty to thus direct the jury, especially in view of the special charges requested by the defendant calling his attention thereto, and especially in view of the erroneous manner in which the issue had been by the court submitted, and the failure of the court to so instruct the jury was highly prejudicial to the defendant.”

As we have before shown, the jury must have understood from the court’s charge that they could not find for the plaintiff unless they found from the evidence that the sawyer, Jim Bailey, had authority to hire and discharge plaintiff. In stating the reverse" of this proposition, the jury were told that, if Jim Bailey did not have authority to direct and control plaintiff in his work and to hire and discharge him, they should find for the defendant. This, as we have before said, was not affirmative error, but if the defendant had presented a proper charge instructing the jury that they should find for the defendant, unless they believed that Jim Bailey did have the authority to hire and discharge the plaintiff, such charge should have been given. The requested charges submitting this issue were not correct, and with this issue of authority in Jim Bailey submitted other issues and were so framed that they were not calculated to call the attention of the court to the technical inaccuracy in the charge given the jury, and were doubtless not intended to have such effect. The assignment cannot be sustained.

The charge complained of by the sixth assignment was not up.on the weight of the evidence in the respects claimed in the assignment, and did not impose any duty upon the sawyer, Jim Bailey, more onerous than the law imposed. The assignment is overruled.

The evidence was, we think, clearly sufficient to raise the issue of discovered peril, and the court did not err, as contended by the seventh assignment of error, in submitting that issue to the jury. The place at which plaintiff lost his balance and fell upon the carriage was within a few feet of where the sawyer stood and in the direction in which he was facing, and there was nothing to obstruct his view. If, as testified to by several witnesses, Bailey was looking at the saw at the instant that plaintiff lost his balance and fell or was thrown upon the carriage from the position of the saw with reference to that of Bailey and plaintiff, he could hardly have failed to see the plaintiff fall. Oertainly the evidence warrants the finding that he did see him, notwithstanding his denial of that fact. The evidence also shows that the carriage could have been stopped almost instantly, and there was ample time after plaintiff fell to have stopped it before it brought him in contact with the stationary board and thereby caused his injuries. If Bailey saw the plaintiff when he fell upon the carriage, he must necessarily have realized his peril.

There was no error in the rulings of the court in admitting the testimony of witness for the plaintiff that the sawyer, Jim Bailey, hired and discharged employes who worked under him in defendant’s sawmill at Bogan, over defendant’s objection that such testimony was the mere opinion and conclusion of the witness. The testimony to which this objection was made, as shown by the eighth assignment of error, is as follows: Arden Wright, a witness for plaintiff, testified by deposition “that Bailey hired Jim Williams and Nathan Kerr and Eula Wills and discharged Eula Wills and a negro whose name witness did not know.” We cannot agree with appellant that this statement of the witness was a mere opinion or conclusion. The words “hire” and “discharge” have a simple and well-known meaning, and it requires no expert or technical knowledge to be able to answer the question of whether one person hired and discharged another, and the statement by the witness that Bailey hired and discharged the persons named is a statement of fact and not an expression of opinion or mere conclusion of the witness.

This is also true of the statement of the witness Withers that Mr. Young, the mill foreman, “never put any man back on the carriage against Bailey’s wishes,” and the statement of the witness Wright that the sudden movement of the carriage which ■caused the plaintiff Williams to fall was “unexpected.” Neither of these statements is tne mere opinion or conclusion of the witness, but each is a statement of fact. The statement that Young “never put any man back on the carriage against Bailey’s wishes” necessarily means only that the witness never knew or heard of such an occurrence.. The probative force of the statement would depend upon the witness’ means of knowing, and if this was slight the weight of the statement would be little, but its competency would not be destroyed. We think it was clearly competent for the witness, who was familiar with the operation of the carriage and saw its movement by Bailey on the occasion in question, to state that plaintiff was caused to fall by “a sudden and unexpected reverse movement of the carriage.” Any unusual or uncalled for movement of the carriage could be properly termed unexpected, and this was evidently the sense in which the word “unexpected” was used by the witness.

As we have before said, the evidence is sufficient to sustain the finding of the jury that the sawyer, Bailey, had authority to hire and discharge the persons working under him on the carriage. Several witnesses testified that he repeatedly exercised such authority and the testimony warrants the conclusion that his superior, Young, knowingly permitted him so to do. It was also shown that his predecessors in position at this mill had and exercised such authority, and that sawyers at other mills of defendant did likewise. Such being the testimony, we cannot say that the verdict of the jury upon this issue is so against the weight and preponderance of the evidence as to authorize this court to disturb it, and the assignments complaining of the verdict on this ground cannot be sustained.

What we have said disposes of all of the question presented in appellants’ brief. We have not deemed it necessary to discuss in detail all of the assignments of error presented, but each of said assignments has been duly considered, and none of them should, in our opinion, be sustained. It follows that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.

On Motion for Rehearing.

Appellant complains in its motion for rehearing of the fact finding in our opinion herein “that the exhaust pipe was 10 or 15 feet towards the saw from a point opposite the sawyer’s station, and about the same distance to the right and on the opposite side of the track was what is called the stationary board.” This finding would put the stationary board and exhaust pipe 20 or 30 feet apart. There is no evidence in the record to justify a finding that they were as much as 30 feet apart. The evidence is that the stationary board was about 3% feet to the right of the sawyer’s station, and the longest distance given by any witness between the two was 20 'feet.

Complaint is also made of the following finding: “While in this falling or overbalanced position the motion of the carriage brought him (the plaintiff) in contact with the exhaust pipe, which knocked him down on the carriage, his face down, and his left leg hanging off the side of the carriage. While he was in this position the sawyer reversed the carriage and sent it rapidly toward the rear of the track.” This finding is inaccurate in stating that the sawyer reversed the carriage and sent it rapidly towards the rear of the track after appellee had fallen upon the track. The carriage was reversed while ap-pellee was in an overbalanced position, but when he struck the exhaust pipe and was knocked down on the carriage it was then on its way to the rear of the track.

We do not regard these errors in the opinion as material, but make the corrections because we desire the statements to be accurate. We have carefully considered the motion for a rehearing, and do not think it presents any sufficient ground for reversal of our judgment affirming the judgment of the court below. It is therefore overruled.


author: HALL, J.

text:
    HUTCHESON et al. v. MASSIE.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 16, 1911.
    On Rehearing May 3, 1913.)
    1. Trial (§ 85) — Evidence—Objections.
    An objection to evidence is properly overruled if any part thereof is competent and not subject to the particular objection urged.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. § 85.]
    2. Dost Instruments (§ 23) — Existence or Dost Deed — Circumstantial Evidence.
    In trespass to try title, in which defendant claimed section 109 in F. county, Tex., through a lost deed from plaintiff’s ancestor to defendant’s grantor, a certified copy of a notary’s record showing an acknowledgment of the ancestor and his wife to an instrument in writing running to defendant’s grantor is admissible, though the record misdescribed the original grantee, and gave no description of the land, where defendant also showed that the ancestor purchased such section, that the original paten-tee had the same initials as that given for the original grantee, that there was no such original grantee of any land in F. county, and that the ancestor never claimed any interest in or paid any taxes on such section after the claimed deed.
    [Ed. Note. — For other eases, see Dost Instruments, Cent. Dig. §§ 51-57; Dec. Dig. § 23.]
    On Rehearing.
    3. Dost Instruments (§ 23) — Existence of Dost Deed — Evidence.
    In trespass to try title, in which defendant claimed under a lost deed from plaintiff’s ancestor to defendant’s grantor, testimony that defendant’s grantor told a witness that he owned land in Texas and produced a deed to prove it, but witness could not read it because without his glasses, and testimony of the halfbrother of defendant’s grantor that such grantor left home for Texas about the time of the claimed deed to work for the ancestor, and that he claimed to his brother that he there owned land, and showed him a deed, but for some reason took it from him before he had time to read it, though not admissible as direct evidence of title, is admissible if properly limited by the court to show a claim by defendant’s grantor of ownership of Texas land.
    [Ed. Note. — For other cases, see Dost Instruments, Cent. Dig. §§ 51-57; Dec. Dig. § 23.]
    Appeal from District Court, Floyd County; D. S. Kinder, Judge.
    Trespass to try title by Rachel D. Hutche-son and others against W. M. Massie. From a judgment for defendant, plaintiffs appeal.-
    Reversed and cause remanded.
    Randolph & Randolph, of Plainview, and T. P. Adams, of Wichita Falls, for appellants. Stephens & Miller, of Ft. Worth, and D. W. Dalton, of Plainview, for appellee.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

Appellants herein, as the heirs of Dr. Joseph Jones and wife, filed this suit in the form of trespass to try title, against appellee, to recover section 109, in block 1, in Floyd county. Appellee, claiming under G. W. Haxton, answered by general denial, plea of not guilty, and pleaded the statutes of limitations of three, five, and ten years. There was a verdict for defendant, and from the judgment based thereon the appellants bring the case to this court for review.

The first, second, and third assignments of error complain of the action of the court in admitting the testimony of the witnesses Jerry Haxton and Louis A. Layman, and reference to the bills of exception upon which these assignments' are based show that the objections were urged to seven direct interrogatories and one cross-interrogatory, with the answers to each propounded to Jerry Haxton, and to practically the greater part of the deposition of the witness Louis A. Layman. The objections were that the testimony was irrelevant and immaterial, and was incompetent to prove the execution and delivery of the deed to land, and that the evidence did not identify the land in controversy as having been included in the deed, and that the evidence was hearsay. It is a well-settled rule of practice that an objection to evidence should be overruled if any part thereof is competent and not subject to the particular objection urged. Reference to the bills of exception shows that the deposition of each of these witnesses contained testimony properly admissible; and, since the objections do not specify, and the assignments of error and statements following the same do not point out the particular part of the evidence complained of, the assignment must be overruled. Martin v. Ince, 148 S. W. 1178; Campbell v. San Antonio, M. & S. Co., 133 S. W. 751; Davis v. Mills, 133 S. W. 1064; Sun Mfg. Co. v. Egbert, 37 Tex. Civ. App. 512, 84 S. W. 667; Field v. Field, 39 Tex. Civ. App. 1, 87 S. W. 726.

The fourth assignment of error attacks the ruling of the court in permitting the witness Samuel Robison to detail a conversation between himself and C. W. Haxton, in which the said Haxton told the witness that he had some land in Texas that he had acquired from Dr. Jones, and he believed he could sell or dispose of it in some way, and in order to prove that he was not joking about the land, he could show witness the deed to same, and that Haxton went to his papers and took out a paper, which he handed to witness with the remark that it was the deed to the Texas land; that witness could not verify this because he did not have his glasses. This evidence was introduced to show title and the existence of a deed from Jones to C. W. Haxton.

The sixth assignment complains of the ruling of the court in permitting the witness Marvin T. Chase to testify that C. W. Hax-ton told him that he went to Texas about the year 1877 or 1878, and the eighth assignment complains of the court’s ruling in permitting the witness, Angie Idol to testify to the same effect. It appears from the record that these witnesses were each testifying to statements made by C. W. Haxton, deceased, with reference to his title to the land and the existence of a deed. It does not appear anywhere that Haxton was ever- in actual possession of the lands, either in person or by tenant, and no deed from Joseph Jones and wife conveying the land to him has ever been placed upon record; and, the existence of the deed being denied, no constructive possession is shown. We think the statement of C. W. Haxton to said witnesses as to his ownership of the land and as to his having a deed from Jones are hearsay.

In McDow v. Rabb, 56 Tex. 155, the court said: “Ordinarily, whenever it becomes important to prove that a man did any act, whatever he may have said about the act while it was being done is admissible as a part of the act. 1 Greenl. 108, 109. But this rule should not be unnecessarily extended, as it may enable a party to make evidence for himself in the absence of his adversary,” and the court sustained the trial judge in excluding declarations of one Gates, to the effect that he had bought the lands from Rabb.

In the case of Mooring & Lyon v. McBride, 62 Tex. 309, it was necessary for appellees, in order to recover, to prove that one Baug-uss was the owner of the land at- the time they purchased it under the execution against him, or that he had some interest therein, subject to execution, which passed by the sale at which they purchased. This they attempted to do by proof of declarations made by Bauguss while he was in possession of the land. The sole purpose for which the declarations were admitted, in so far as they related to the execution of a title bond by Blaydes to Bauguss, was to prove title in Bauguss. Stayton, associate justice, said “that the declarations of one in possession as against those who claim through him may be used for certain purposes is well settled. Thus were this an action by the appellees, who hold by deed directly from Blaydes, it would be admissible for them, in an action against one claiming through Bauguss, to-prove the declarations of Bauguss, made while in possession, that he held through an executory contract made with Blaydes, and so, for the purpose of proving that Bauguss did not assert a title in fee to the land, and to show the character of claim he did assert. * * * But, we know of no case in which such declarations were admitted for the purpose of showing title in the declarant.”

In Gilbert v. Odum, 69 Tex. 670, 7 S. W. 510, the court uses this language: “It is insisted that there was error in refusing to admit the testimony of F. C. McReynolds, ■offered both before and after the deposition •of Louis King had been read by defendants, to the effect that about the time of the purchase of said property, and also when Louis King was in possession of the premises, he informed the witness that he furnished the money, and that the property was purchased for him. This assignment is predicated on .plaintiff’s third bill of exceptions, from which it appears that he proposed to prove the admissions and declarations of Louis King to MeReynolds; but it does not appear what .the declarations and admissions were that the witness would testify to, and therefore it is impossible for us to know whether material or not, if otherwise unobjectionable. But if the bill of exceptions was sufficient, it is not perceived for what purpose the declarations of Louis King, while in the possession of the premises or at any other time, were offered in evidence, except as tending to .prove title in himself, for which purpose they were not admissible. * * * Nor would the fact that said Louis King had testified in the case at the instance of defendants make his declarations, which were otherwise incompetent, admissible in evidence.”

The claim under which real property is being held by a declarant may be shown by ■declarations indicative of a relevant animus. But the declarations are incompetent as direct evidence of the facts asserted, for as to the general history of the declarant’s title in favor of his privies, as to the facts asserted, the declarations are hearsay. 16 Cyc. 1166-1168. In view of another trial, it is proper for us to state that testimony of a like character, found in the depositions of Jerry Haxton and Louis A. Layman, should be excluded upon proper objections, if offered to prove title in appellee or to prove possession of a deed from Jones.

Appellants by their ninth assignment of •error attack the action of the court in permitting the introduction in evidence of a certified copy of the notary’s record, which •shows that on January 14, 1878, Julius Boyar, a notary public of Dallas county, took the acknowledgment of Joseph Jones, and on the 28th of the same month took the acknowledgment of Ann E. Jones to an instrument in writing. These further facts appear from the certified copy. “Location of land and •original grantee, Eloyd county; H. A. & J. L. King. Name and residence of grantee. C. W. Haxton, Attica, Ind.” Appellants objected to the certified copy, because it did not refer to and identify the land in controversy; was not even a circumstance showing the ■conveyance of or the acknowledgment of any ■conveyance of the land in controversy; that the land in controversy is section 109, patented to H. A. & J. L. Cagle, original grantee, Adams, Beatty & Moulton, and the certified ■ copy describes the land as situated in Floyd county, and gives the name of the original grantee as H. A. & J. L. King, all of which ■objections were overruled. Appellee, in connection with this certified copy, introduced evidence tending to show that Joseph Jones had previously purchased section 109, in block 1, in Floyd county, together with other lands, and introduced evidence showing conveyances of all the lands so purchased by him except section 109; that there was no such original grantee to any land as H. A. & J. L. King found in Floyd county; that Jones had paid no taxes upon section 109 since its sale; had never occupied it, nor exercised any act of ownership with reference to it. It being the settled law of this state that the execution and contents of a lost deed may be established by circumstantial evidence (Bounds v. Little, 75 Tex. 316, 12 S. W. 1109), we think this testimony was admissible as a circumstance in connection with other evidence introduced by appellee, tending to show the existence of the deed as claimed by him. The court did not err in excluding the evidence relating to appellee’s tax deed and the cross-assignment is overruled.

Since by reason of the errors pointed out it is necessary to reverse the judgment and remand the cause for another trial, it is not proper for us to discuss the sufficiency of the evidence to sustain the verdict and judgment, and for this reason we do not pass upon the eleventh assignment of error.

For the errors pointed out, the judgment Is reversed and the cause remanded.

On Rehearing.

Appellee in motion for rehearing has referred us to additional authorities sustaining his contention that in the original opinion we erred in sustaining the fourth, sixth, and eighth assignments. The motion also attacks the sufficiency of the brief in presenting the question urged by these assignments. We waived the deficiencies in the brief in our original consideration of the case, when possibly they should have been sustained, since it appears that the assignments are subject to most of the objections urged against them. Upon further consideration of the issues and a review of the numerous authorities submitted by appellee, we have concluded that we were correct .in holding that the testimony of Samuel Robison, Marvin T: Chase, and C. W. Haxton were not admissible to show title, but that we are in error in holding that this testimony was not admissible as evidence of the' existence of a deed from Jones to Haxton, and of the fact that Haxton was asserting a claim to land in Texas, and was claiming to have a deed to land in Texas from Dr. Joseph Jones.

The evidence of Samuel Robison upon this question is, in substance, as follows: “I was acquainted with Dr. Joseph Jones, who was formerly a resident of Attica, Ind. * * * I kept up my acquaintance with him as a man and a citizen until he and his family left Attica, which was about 1875. I had no talk with him as to where he was going. I got acquainted with him about the year 1867. I was acquainted in his lifetime with C. W. Haxton, who was Ohas. W. Haxton. I first got acquainted with Haxton soon after I came back to Attica from Delphi, Ind., about 1871, and was acquainted with him from that time until he died, which was about 1902. I was formerly in the bakery and restaurant business in Attica in the early 70’s, and used to see Haxton nearly every day, and he would occasionally buy a meal in my place, and I bought the daily papers of him; that being his business in part. About 1885 Hax-ton boarded in my restaurant for a period of three or four months continuously. 1 saw him frequently, talked to him often, and knew him well. Haxton left Attica in about 1875 or 6 and was gone about a year.” The particular part of the witness’ testimony to which objection was made, as set out in the bill of exception, is as follows: “That O. W. Haxton went to Texas, and further that in 1886 the said Haxton owed said witness a bill of between $7 and ¡¡58, and witness asked him to pay it; that Haxton said he had some furniture in his rooms that he would turn over to me; that said Haxton said he had some land in Texas that he had gotten from Dr. Jones, and he believed he could sell or dispose of it in some way; that said witness said in order to prove that he was not joking about the land he could show witness a deed to same and went to his papers and took up a paper, which he handed to witness with the remark that it was the deed to the Texas land; that witness could not verify this because he did not have his glasses. “The objection made to this testimony is that-it was hearsay, a declaration of the party in his own interest, irrelevant, immaterial, and was incompetent to prove the existence of a deed from Dr. Jones and wife, plaintiff’s ancestors, and that said evidence in no wise identified the land in controversy as being included in the deed.

The testimony of Jerry Haxton, objected to, is set out in the bill of exceptions as follows:

“Interrogatory No. 4. If in answer to the preceding interrogatory you have stated that you knew Joseph Jones in Attica, Ind., or Indianapolis, Ind., in the early 70’s, and that said Jones and family left • there for Texas about 1875, then what, if anything, impresses said fact on your mind? State fully. A. I knew Dr. Jones in Attica, but I never knew him in Indianapolis. I remember my brother, Chas. W. Haxton, went to Texas to take some horses and other property for the doctor, and I know that my brother was in Texas between a year and two years, and that he returned the latter part of 1876, or the early part of 1S77, and I fix that date by the fact that the following summer — that is, the summer of 1877 — Anna J. Haxton, my brother’s daughter, was married to Louis A. Layman at my home; further, the Wabash river had an overflow in the summer of 1875, the water touching high-water mark, and I am reasonably sure that Dr. Jones was not in Attica at that time. From all the above, it is my best judgment, after studying over the matter, that the doctor left Attica in the early 70’s.”

“Int. No. 6. If in answer to the preceding question, you have stated that you knew O. W. Haxton at or near Attica, Ind., in 1878 or 1874, or thereabouts, then state whether said C. W. Haxton continued to reside at said pláce, and if you say that he did, then state when he left Indiana; state where he went, if you know, and state with whom he went, if you know. Answer fully, and state how you know such facts as you have testified to. A. My halfbrother, Chas., or C. W. Haxton, left At'tica about 1875, and went to Texas. He took some horses and some personal property, all belonging to Dr. Jones, to Texas, to take care of them for him. He took his daughter, Anna J. Haxton, with him. She was at that time an unmarried girl. 1-Ie was gone between a year and two years, and it was my understanding from him after he returned that he was in Texas all of that time. I know the above facts because C. W. Ilaxton left his residence here in Attica and was gone that time, and when he returned he told me and numerous friends that he had been in Dallas, Tex., with Dr. Jones.

“Int. No. 7. If in answer to the preceding question you have stated that C. W. Haxton left Indiana for Dallas in Dallas county, Tex., in company with Joseph Jones, about 1875, then state how long said O. W. Haxton lived in Dallas, Tex. Do you know what he was doing while there? If you have stated that he was working for Dr. Joseph Jones when in Dallas, then state how you know such facts. Answer fully. A. It is not my recollection that my halfbrother left Indiana with Dr. Jones. I think Dr. Jones went before he did, and that the doctor wrote to my halfbrother, telling him to get the property and have it shipped through to Dallas, and to go with it and take care of it. My information from my halfbrother is that he lived in Dallas, Tex., during all the time he was away from Attica, and while living in Dallas, Tex., he worked for Dr. Jones. My half-brother told me that Dr. Jones ran a hotel in Dallas, and that he did general work for him around the hotel. I only know those facts by what my halfbrother told me. I did not know it personally.

“Int. No. 8. If in answer to the preceding question you have stated that C. W. Haxton returned to Indiana during 1877 or the latter part of 1876, then state how you know such facts. State where you lived during the years 1877 and 1878 with reference to the residence of said C. W. Haxton, and state any facts or circumstances that you may remember that impresses on your mind any date you may have given in this answer. A. My halfbrother lived in Attica continuously for a number of years directly after he returned from Texas, and as I recall that he returned in the latter part of 1876, or the first of 1877, I know that he was living in Attica during all of 1878 and during most of 1877.”

“Int. No. IS. State whether or not your said brother during his lifetime owned any land in Tesas. If yea, state how you know such fact. If you have stated that you have seen the deed to your brother to his section of land or to land in Floyd county, Tes., or anywhere in Tesas, then state how often you saw such deed. State whether or not your said brother claimed to own more than one tract of land in Texas. Have you said deed? If yea, please attach the same to your answers hereto; have the notary public mark the same for identification. If you state the said deed is not in your possession, then state, if you know, where it is. Have you made any search for same? If yea, state the extent of your search and inquiry for said deed. If you say that said deed cannot be found, then state to the best of your recollection the contents of same. A. My half-brother in his lifetime claimed that he owned some land in Texas, and about 18S2 he showed me a paper which he said was for a piece of Texas land, and said that some day .it would be worth something, but that it was not worth very much now. I started to take the deed and read it and had one hand on the paper, when for some reason he took it away from me and folded it up and put it away with his papers so I did not get to read the deed; did not know anything about the description of the land nor in what county it was located, nor who deeded it to him. I never saw the deed but once after that, and that was about three or four days before he died. At that time, at the place where we were living together, one evening he had a number of papers in his hand, and stated that he was going to burn, all the papers that he had. Three or four days after that occurrence I asked him what he had done with the Texas deed, and he said, ‘Ashes tell no story,’ and that is all that was said about it. I have not got the deed, and if it was not burnt at the time I have just related I do not know where it is. I have made a thorough search for the deed and have never been able to get any trace of it.

“Int. No. 14. State whether or not your said brother at any time while living with you or during the 90’s discussed the fact of his ownership of the land in Texas. If yea, state fully what he told you with reference to same. A. During the 90’s my halfbrother discussed the ownership of land in Texas, but he never gave me any details, so I never knew, and do not know now, where this land is that he claimed to own, excepting that it is in the state of Texas.”

“Int. No. 16. If you have stated that during the time that you and O. W. Haxton, about 1S97 or ’98, or about that time, that you saw a deed to your brother to certain land in Floyd county, Tex., or elsewhere, in Texas, and that your brother discussed the fact of such ownership with you, then state whether or not said deed had been recorded; state fully how you know this. A. I saw the paper which my halfbrother Charlie claimed was the deed for a section of Texas land, as I have answered above, but whether it was recorded or not I do not know, for the reason that I was not permitted to read the deed carefully by him, as I have stated above.”

“Cross-Int. No. 4. If you state that you were acquainted with Dr. Joseph Jones and with one C. W. Haxton, and that said O. W. Haxton went to Dallas, Tex., in company with Dr. Jones, then give the exact date of his going with Dr. Jones to Dallas,- Tex. How came he to go, and was there any one else who went with them at that time, and give the name or names of such party or parties? A. I cannot tell the exact time when my halfbrother went to Texas, but it was about 1875. He did not go with Dr. Jones, but went afterwards, as I understood it. He was written to by the doctor to take some horses and other property to Texas for him.”

The objections urged to this testimony were that it was irrelevant and immaterial; that it was incompetent to prove the execution and delivery of a deed to land; that it did not identify the land in controversy as having been included in the deed. The testimony of Marvin T. Chase and Angie Idol that they knew from the statements of C. W. Haxton, of Dr. Joseph Jones and Mrs. Jones, that Haxton lived a year or more in Dallas, and worked as stableman for Dr. Jones. This testimony is not admissible for the purpose of showing the truth of the matters declared by C. W. Haxton; that is, that he really did own the land in Texas, and that Jones and wife had given him a deed thereto, but it was admissible alone to show a claim on his part, and the trial court should have limited the evidence to that purpose in his charge, and upon his failure to do so, it is the right of the party against whom such testimony is offered to have the court so limit it, by requested instruction. That part of the original opinion in which we have held that by reason of the'fact that no possession was shown the evidence was inadmissible on that account is withdrawn, and the rule announced in the following eases should control the trial court in another trial: Hickman v. Gillum, 66 Tex. 814, 1 S. W. 339; Wells v. Burts, 3 Tex. Civ. App. 430, 22 S. W. 419; Arthur v. Ridge, 40 Tex. Civ. App. 137, 89 S. W. 15; Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033; Walker v. Pittman, 18 Tex. Civ. App. 519, 46 S. W. 120; Grayson v. Lofland, 21 Tex. Civ. App. 503, 52 S. W. 121; Baldwin v. Goldfrank, 88 Tex. 249, 31 S. W. 1064.

The judgment is reversed, and the cause remanded.