author: HARPER, J.

text:
    McELROY v. STATE.
    (No. 3400.)
    (Court of Criminal Appeals of Texas.
    Jan. 27, 1915.)
    1. Criminal Law (§ 1114)—Appeal—Bill of Exceptions.
    Where the record contains no bills of exception and no statement of facts, the only reviewable ground in the motion for new trial is that questioning the validity of the information.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dec. Dig. § 1114.]
    2. Courts (§ 79)—Rules op Court—’Validity.
    Supreme Court rule 116 (102 Tex. liii, 142 S. W. xxv), adopted under Const, art. 5, § 25, empowering it to make rules of procedure not inconsistent with law, and providing that the transcript of the record in a misdemeanor case must be delivered to the party appealing or his counsel, and, if not applied for before the twentieth day before the commencement of the term of the Court of Criminal Appeals to which the appeal is returnable, the clerk shall transmit it to the clerk of that court, was invalid, because inconsistent with Code Cr. Proc. 1911, arts. 930, 931, providing that the clerk shall prepare transcripts in all criminal cases and forward them to the clerk of the Court of Criminal Appeals.
    [Ed. Note.—For other cases, see Courts, Cent. Dig. § 275; Dec. Dig. § 79.]
    Appeal from Childress County Court; W. G. Gross, Judge.
    Claude McElroy was convicted of negligent homicide, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of negligent homicide, and his punishment assessed at 90 days’ confinement in the county jail.

This cause was tried and judgment entered on the 5th day of April, 1910, and yet the transcript was not filed in this court until January 12, 1915, four years and nine months after the trial of the case, and then filed in obedience to an order of this court made and entered when its attention was first called to the omission to file the transcript on January 6, 1915.

The record contains no bills of exception and no statement of facts; consequently the only ground in the motion for new trial we can review is the one that questions the validity of the information. The information properly charges the offense of which appellant was convicted, and the court did not err in so holding, and the judgment is therefore affirmed.

When our attention was called to the fact that more than four years had elapsed since the trial of the case, and no transcript had been filed in this court, and an affidavit being presented stating that a transcript had been made out in May, 1910, and delivered to an attorney of appellant, we caused process to issue requiring Mr. Raney, the present county clerk, Judge Freeman, the former county clerk, and Mr. Aynesworth, the attorney to whom it was claimed the transcript was delivered in May, 1910, to appear before this court and show cause why the transcript had not been filed in this court within 90 days after the trial of said cause, as required by law.

The present county clerk, Mr. Raney, shows that the case was tried some three years before he became county clerk, and that he did not know that the transcript, had not been filed in this court until recently. The only negligence that he has-been guilty of under the evidence is that he did not promptly make out a transcript in this case and forward same to this court as soon as he learned that a transcript was not on file in this court. He, in a measure, excuses himself by showing that he could not find the papers in the case, and that, if a statement of facts was filed, he has not yet. been able to find same.

Judge Freeman, who was the clerk at the-time of the trial, and for three years thereafter, says he made out a transcript and delivered it to Mr. Joe H. Aynesworth, one of the attorneys on the trial of the cause, in May, 1910, and that, under rule 116 adopted by the Supreme Court (102 Tex. liii, 142 S. W. xxv), he thought it was his duty to deliver it to the attorney for appellant in a misdemeanor case. Said rule reads:

“The transcript of the record, • where defendant has been convicted of a misdemeanor, must be delivered to the party appealing or his counsel, or, if not applied for before the twentieth day before the commencement of the term of Court of Criminal Appeals to which the appeal is returnable, the clerk shall transmit the same by mail, paying the postage thereon, to the-clerk of the Court of Criminal Appeals.”

He swears positively he made out the transcript in this case and delivered it to-Mr. Aynesworth -in May, 1910, and he says he did not know the transcript had not been forwarded to this court by the attorney until in September, 1914, and he then aided Mr. Raney, the present county clerk, to search for the papers, with the intention to aid him in making out a new transcript and forwarding same to this court.

Mr. Joe H. Aynesworth, the attorney to-whom Judge Freeman says he delivered the transcript, swears positively the transcript was not delivered to Mm by Judge Freeman or any other person; that it is true Judge Freeman made out a transcript in May, 1910, but that, instead of delivering it to him, Judge Freeman had in- fact delivered it to Judge Hathaway, who was appellant’s principal attorney on the trial of the case; that he (Aynesworth) was only employed to assist in the trial of the case and had nothing to do with the case on appeal, and that Judge Hathaway alone represented appellant on appeal; that he knows that Judge Hathaway received the transcript, because in July, 1910, Judge Hathaway, in a conversation had with him, had said:

“Mr. Freeman had left with him [Hathaway] the transcript in the McElroy Case; that it was not his business to send it up, and he was not going to do it”

—and at the time asked him (Aynesworth) not to say anything about it, and he had not done so, until this inquiry arose, when he told Judge Freeman these facts.

J. W. Cochran, sheriff of Childress county, testifies that he had a conversation with Judge Hathaway, in the summer of 1912, and he then told him he had not sent the papers up; that it was not his place to do so, and, when he asked whose duty it was, Judge Hathaway replied that it was the duty of the county clerk to send the transcript to the Court of Criminal Appeals; that he reported this conversation to their county clerk, Judge Freeman, and Judge Freeman claimed it was the duty of the attorneys in the case, and they turned and read rule 116 above quoted.

In this examination is the first time this court was informed that it was contended Judge Hathaway had any connection with the matter, and he was not cited to appear, and is not before the court.

This is a brief summary of the testimony heard, and it is seen there is a direct conflict between the testimony of Judge Freeman and Mr. Aynesworth, Judge Freeman swearing that he delivered the transcript to Mr. Aynesworth, and Mr. Aynesworth is equally positive that he did not do so, but delivered it instead to Judge Hathaway. It is thus made clear by all the testimony that Judge Freeman, while county clerk, did in May, 1910, make out a transcript in tMs case and deliver it to Judge Hathaway or Mr. Aynesworth at that time, believing it to be his duty to do so under rule 116, hereinbe-fore quoted. He contends that he did not know that rule had been held invalid, and did not know so until so informed by this court on the day of this hearing.

Our Constitution provides (section 25 of article 5):

“The Supreme Court shall have power to make and establish rules of procedure, not inconsistent with the laws of the state, for the government of said court and the other courts of this state.”

But it has always been the law that the rules adopted by the Supreme Court, when inconsistent with legislative enactments, must yield to such enactments. Johnson v. State, 49 Tex. Cr. R. 429, 93 S. W. 735. And the Legislature has provided in articles 930 and 931:

“The clerk shall prepare transcripts in felony cases that have been appealed in preference to cases of misdemeanor, and shall prepare transcripts in. all criminal cases appealed in preference to civil cases. As soon as the transcript is prepared, the clerk shall forward the same by mail or other safe conveyance, charges paid, enclosed in an envelope, securely sealed, directed to the clerk of the Court of Criminal Appeals.”

Such is the plain provision of the Code of Criminal Procedure, and it is made the duty of the clerk to send the transcript direct to the clerk of this court as soon as completed, and rule 116 relied on by the clerk is invalid, because inconsistent with the law enacted by the Legislature. In the case of Pilot v. State, 38 Tex. Cr. R. 515, 43 S. W. 112, 1024, the transcript was stricken from, the docket; it being held that a transcript, which by its indorsements shows it was delivered to appellant’s attorney and through them found its way into this court, will be stricken from the docket, as it did not come into this court through the proper channel. Thus it is seen Judge Freeman, ’when county clerk, acted improperly in delivering the transcript to the attorneys for appellant, or either of them, and he had no right to rely on them to send the transcript to this court, and the fact that he did so is the cause of the delay in filing the transcript in this cause. But we are impressed that Judge Freeman was sincere in his belief that it was his duty to deliver the transcript to the attorneys for appellant, when demanded, and he was led into such misconception of the law by rule 116, and under such circumstances we do not think he has intentionally done any wrong; and, as the intent with which a person does an act should always be taken into consideration, we do not feel justified in assessing against him any penalty other than the cost of the issuance of process and service herein. But all clerks will take notice that rule 116 is not a valid rule, being in conflict with the statutes ; and it is their duty to send the transcript in each and every case direct to the clerk of this court as soon as it is completed, and we hope no such delay as is apparent in this case will again occur.

The memory of man is frail, and we by the testimony are satisfied that Judge Freeman is sincere in testifying that he delivered the transcript to Mr. Aynesworth; we are likewise satisfied that Mr. Aynesworth is likewise sincere in testifying that he did not do so, but delivered it instead to Judge I-Iathaway. More than four years have elapsed; but, in either event, it was not the duty, under the law, of either Judge Hathaway or Mr. Aynesworth to forward the transcript to this court and see that it was filed. That is the rule in civil cases, but not in criminal cases, because in all criminal cases the law puts this duty on the clerk. Mr. Aynesworth frankly admits that he perhaps acted improperly, when told by Judge Hathaway that he had the record and was not going to send it up, in keeping quiet about the matter until in September, 1914, at the request of the judge. While his connection with the case had ceased at that time, yet the record shows he was one of the attorneys on the trial of the case, and this apparent acquiescence in keeping the record from this court for several years is perhaps slightly censurable; yet we can understand how a man who is made the recipient of a confidence is loth to tell what he has been told, and, were it not for his connection with the trial of the case, no one could or would blame him.

As to Judge Hathaway, as before stated, he is not before the court; he not having .been cited to appear. He was not here to testify, as was Judge Freeman and Mr. Aynesworth. Not having been- cited, we have no jurisdiction to assess against him any punishment if we desired to do so; and it would be highly improper to do so when he has not been given a hearing. It would not be improper to add that we are informed he denies having the transcript. This much is said in justice to him, as the testimony of the others is given.

This is one of those unfortunate instances wherein it is difficult to determine the real facts¡ All those who appeared before us impressed us that they were swearing to what they believed to be the truth, the whole truth, and nothing but the truth; and, while there is a conflict in the testimony, yet we do not think either of the gentlemen intentionally make any misstatement, but, on account of the great lapse of time, one or the other is honestly mistaken. But, be that as it may, such instances as this is the reason for the great clamor for a change in criminal procedure, when there is no need for so great a change, but a more implicit compliance with the law as it is written. If so, there would be no such great delay as is here manifest, and we hope that it will not occur again.


source: Caselaw Access Project

license: Public Domain

text:
    HARRIS v. STATE.
    (No. 3372.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1915.
    Rehearing Denied Feb. 10, 1915.)
    1. Criminal Daw (§ 1092) — Appeal—Time poe Filing — Excuse.
    Where the county attorney declined to agree to the statement of facts because it was made up from the evidence in a companion case, and the county judge, on being informed of such fact, and being asked to prepare a statement of facts, declined to do so, because there was a stenographic record in the companion case and the parties ought to be able to agree, but said that he would see that an agreement was made, all of which occurred within 20 days after the adjournment of the court, accused was either entitled to have the record considered or to have a reversal because deprived of a record, though the statement of facts and bills of exception were not -filed until more than 20 days after adjournment of the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    2. Criminal Law (§ 594) — Continuance — Grounds — Diligence.
    The refusal of a first application for a continuance sought for absence of two witnesses who would give testimony material to the defense and contradictory of the testimony of the state’s witnesses was error, where it was shown that diligence had been used to secure their attendance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321-, 1322, 1332; Dec. Dig. § 594.]
    Appeal from Fayette County Court; George Willrich, Judge.
    C. E. Harris was convicted of unlawfully carrying a pistol, and appeals.
    Reversed and remanded.
    Aaron Burleson and John T. Duncan, both of La Grange, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of unlawfully carrying a pistol, and his punishment assessed at 30 days’ confinement in the county jail, and a fine of $100.

The term of court at which appellant was tried adjourned on October 23, 1914. The statement of facts and bills of exception were not filed until December 2, 1914, more than 20 days having elapsed after the adjournment of court. The Assistant Attorney General has filed a. motion to strike out the statement of facts and bills of exception. Appellant has filed two affidavits, that of Mr. Burleson, one of the attorneys of appellant, and Miss Munger, a stenographer, attempting to show that it was not the fault of appellant the statement of facts and bills of exception were not filed within 20 days after the adjournment of court. In reply the state has filed the affidavits of the county judge and the county attorney of Fayette county. The affidavits of Mr. Burleson and Miss Munger would show that the bills of exception and statement of facts were made out on November 2d, and that on that day she notified the county attorney that the papers were ready for him to act on; that on November 4th they were delivered to the county attorney, and he, on November 9th, declined to agree to the statement of facts, alleging as a reason that it had been made up from the evidence in a companion case; that, in accordance with instructions from Mr. Burleson on November 10th, she presented the statement of facts and bills of exception to the county judge. Mr. Burleson says upon receiving the above information he went to see the county attorney, who refused to agree to the statement of facts made np by Miss Hunger, and he then wont to the county judge, and stated that he and the county attorney could not agree, and asked the county judge to prepare one; that the county judge would not do so, and said that he would see that an agreement was made; that this was on November 11th, to the best of affiant’s knowledge.

In Judge Willrich’s affidavit he states that Mr. Burleson did come to his office and state that he and the county attorney could not agree to a statement of facts in-this cause, and he had replied, “Yes; you can; you have the stenographer’s notes in a companion case;” and that he understood that he was to take the statement of facts again to the county attorney; that he does not remember the date when this occurred.

The county attorney in his affidavit states that, in his opinion, it was more than 20 days after the adjournment of court when Miss Hunger presented to him the statement of facts, but he gives no date. He says he declined to agree to it because it was made up from the stenographer’s notes in the companion case; that an official stenographer was used in the Kiehlberg Case, but not in this case; that he presented to Mr. Burleson a statement of facts he (the county attorney) had made out, and told him, if he (Mr. Burle-son) could not agree to it, to go to Judge AVillrieh and have him make out a statement of facts.

It is thus seen that the affidavit of Miss Hunger is the only one that gives specific dates, and she swears positively that it was November 10th when the appellant’s record was presented to Judge Willrich, the attorneys having failed to agree. No other affidavit gives any date. Judge Willrich admits this was done, but he does not remember the date. Finally a record was made up by agreement of all parties, and, if we consider it, it presents reversible error. Appellant’s first application for a continuance was overruled. Attached to the motion for a new trial he presents the affidavits of the two witnesses for whom the continuance was sought, who state that they would swear all that he states in his application for a continuance they would testify. Their testimony, as shown by the application for a continuance and their affidavits, is most material to appellant’s defense; they both stating in their affidavits that they were present, and flatly contradict the testimony of the two state’s witnesses. It is further shown that diligence was used to secure their attendance.

Having the record before us, as agreed to by both parties, and it clearly presenting reversible error, we are of the opinion, under tlie showing made, that appellant is either entitled to have the record considered, or, if not, as the affidavits would show that the county judge declined to make out a statement of facts when the record was presented to him because there was a stenographic record in a companion case, and that the parties ought to be able to agree; that the county attorney refused to agree to the statement of facts because the stenographic record had been used in making it up, and, as the only affidavit giving specific dates is the one of Miss Hunger, which shows all this to have occurred within 20 days from the adjournment of court,, appellant would be entitled to a reversal because he has been deprived of a record. In either event the ease should be remanded for a new trial.

The judgment is reversed, and the cause remanded.


author: PRENDERGAST, P. J.

text:
    ARNOLD v. STATE.
    (No. 3382.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.)
    Appeal from Tarrant County Court; Jesse M. Brown, Judge. Pete Arnold was convicted of an aggravated assault, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Under a proper complaint and information appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $25. There is neither a statement of facts nor any bill of exceptions. No question is raised which can be considered in the absence of these. The judgment is therefore affirmed.


text:
    DAVIS v. STATE.
    (No. 3391.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1915.)
    Appeal from District Court, Lampasas County; John D. Robinson, Judge. Will Davis was convicted of violating the liquor prohibition law, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Under a proper indictment appellant was convicted of violating the liquor prohibition law — a felony — in force in said county, and his punishment assessed at one year in the penitentiary. There is no statement of facts, nor bills of exceptions. No question is ■ raised in any way which can be reviewed. The judgment is therefore affirmed.


text:
    Ex parte KIMBROUGH.
    (No. 3393.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1915.)
    Appeal from District Court, Bowie County; W. T. Armistead, Judge. Application by Will A. Kimbrough for a writ of ha-beas corpus to secure admission to bail. Prom a judgment denying admission to bail, he appeals.
    Affirmed.
    C. A. Wheeler, of Texarkana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Relator was indicted, charged with the murder of his father. He sued out a writ of habeas corpus before Hon. W. T. Arm-istead, judge of the Fifth judicial district. Upon a hearing he was denied bail and remanded to the custody of the sheriff. Prom this judgment he prosecutes an appeal to this court. After a careful reading of the evidence, we are of the opinion that the court did not err, and the judgment is therefore affirmed.


author: HARPER. J.

text:
    McGuintis v. State.
    (No. 3368.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.
    Rehearing Denied Feb. 3, 1915.)
    Appeal from Dallas County Court, at Law; W. P. Whitehurst, Judge. John McGuintis was convicted of crime, and he appeals.
    Affirmed.
    John McGuintis, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER. J.

No statement of facts, nor bills of exception accompany this record. Under such circumstances, we can review none of the grounds assigned in the motion for new trial. The judgment is affirmed.


text:
    Ex parte WOOSLEY.
    (No. 3395.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.
    Rehearing Denied Feb. 3, 1915.)
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge. Habeas corpus by G. W. Woosley. Prom a judgment denying bail, the petitioner appeals.
    Affirmed.
    O. C. Mulkey, of Commerce, and Crosby, Hamilton & Harrell, of Greenville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted for murder. He had a hearing before the district judge on habeas corpus for bail, which was denied him. We have carefully read and considered the statement of facts and appellant’s brief herein. While there is some conflict in the testimony, the witnesses were seen and heard by the district judge, and he, much better than we, was in a position to determine their credibility and the weight to be given to their testimony. We have reached the conclusion that the district judge was justified in remanding appellant without bail. The judgment is therefore affirmed.


author: PLY, C. J.

text:
    GIBSON v. STERRETT, Game, etc., Com’r, et al.
    (No. 5395.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 6, 1915.
    Rehearing Denied Feb. 3, 1915.)
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge. Action by C. W. Gibson against W. G. Sterrett, Game, Pish and Oyster Commissioner, and others. From a judgment for defendants on demurrer, plaintiff appeals.
    Affirmed.
    T. O. Wol-dert, of Corpus Christi, for appellant. Davidson & Bailey, of Cuero, for appellee.
   PLY, C. J.

This case was appealed to this court from an order restraining the commissioner from executing certain orders issued by him in regard to -fishing in certain waters in and about Corpus Christi Bay. The judgment of the trial court was reversed and the cause remanded. Sterrett v. Gibson, 168 S. W. 16. When the cause was called for trial in the lower court, a general demurrer was sustained to the petition of appellant. The pleadings are identical with those on the former appeal. The opinion on the former appeal covers every point made in this case, and is referred to as the opinion of the court on this appeal. The judgment is affirmed.


author: BROWN, C. J.

text:
    JONES & NIXON v. FIRST STATE BANK OF HAMLIN et al.
    (No. 2346.)
    (Supreme Court of Texas.
    Feb. 10, 1915.)
    Pabtnekshd? <§=>208 — Attachment — Con-veksion.
    Vernon’s Say les’ Ann. Civ. St. 1914, art. 3743, provides that a levy upon the interest of a partner in a partnership property is made by leaving- a notice with one or more of the partners, or with a clerk of the partnership. A deputy sheriff served an attachment against the property of one member of a firm by reading the writ to that partner, but did not take manual possession of the property. The other partner was informed that his interest was not subject to levy. Thereafter the writ was quashed. Held, that the possession of the partners and the firm was never disturbed, and, after the quashing of the writ, the partnership could not recover for conversion of the property or for trespass.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 383-400; Dee. Dig. <§=208.]
    Error to Court of Civil Appeals of the Second Supreme Judicial District.
    Action by Jones & Nixon against the First State Bank of Hamlin. A judgment denying plaintiffs certain relief asked was affirmed by the Court of Civil Appeals (140 S. W. 116), and plaintiffs bring error.
    Affirmed.
    W. T. Shannon, of Temple, J. B. McMahon, of Belton, and J. W. Boynton, of Anson, for plaintiffs in error. Spence, Knight, Baker & Harris, of Dallas, Woodruff & Woodruff, of Sweetwater, G. M. Shelton, of Hamlin, and Alex. F. Weisburg, of Dallas, for defendant in error.
   BROWN, C. J.

We copy from the opinion of the Court of Civil Appeals the following statement of the case:

“Jones & Nixon, as partners, were dealers in wood at Hamlin ; Nixon being the sole managing-partner, and Jones living in an adjoining county. The First State Bank of Hamlin instituted a suit against Nixon, and on the 21st day of March, 1908, caused the issuance of an attachment for the purpose of a levy upon 1,042 cords of wood, the greater part of which had been cut and stacked upon the right of way of the railway penetrating Hamlin. The remainder of the wood was situated in an adjoining pasture, where it had been cut and corded. The deputy sheriff, one C. W. Robinson, to whom the writ was delivered, made the levy complained of in substantially the following manner: I-le met appellant Nixon upon the street, informed Mm that he had ‘papers for him,’ and read the writ of attachment to him. He then went with an officer of the bank where the wood along the right of way was pointed out to him and indorsed the writ as levied. He at the same time levied upon two lots, the individual property of Nixon, by merely going to where the lots were situated and indorsing the levy thereon upon the writ. Thereafter, until the writ of attachment ..hereinafter mentioned was quashed, the officer from time to time ‘kept an eye’ on the wood for the purpose of seeing that it was not disturbed or taken by any one, and also, in order to prepare the way for some ploughing to be done in the pasture, removed about 60 of the cords therein situated to the right of way,, where it was deposited with the main body, and from 6 to 12 cords of the wood were sold in order to pay the expenses for this removal. It further appears that the appellant Jones, when he heard of the attachment, telephoned from the adjoining county to an officer of the bank, and was informed that ‘his wood’ had not been levied upon, and that he could at any time come and get his part. Other than as stated, it does not appear that the officer making the levy or attempted levy of the writ of attachment either took actual possession of the wood, or that at any time forbade either of the appellants or any other person to remove it. Some time after the proceedings above stated the appellant Nixon presented and pressed to a successful termination motions to quash the writ of attachment and to abate the suit, which, as before stated, we held on the former appeal had the legal effect of a waiver of the trespass, if any, committed by the officer in making the levy. We think this conclusion was correct, and that th'e court’s charge was not erroneous in so presenting it to the jury.”

A levy of attachment upon the wood by the sheriff in. this case was made in accordance with article 3743, Vernon’s Sayles’ Civil Statutes, which is in the following language:

“A levy upon the interest of a partner in partnership property is made by leaving a notice with one or more of the partners, or with a clerk of the partnership.”

The levy of this attachment was an attempt to comply with the statute, and therefore did not interfere with the possession of either of the partners, but the pn-operty remained in the possession of the partnership, subject to sale of the partner’s interest, under and by virtue of the levy. If the suit had proceeded to final judgment, the attachment would have been foreclosed upon only the interest of the partner who is defendant in the suit, and sale would have been made of that interest only. Such a levy neither disturbed the possession of the partnership, nor any individual member of it. Therefore it was impossible that it should have had any effect so far as the control of the property was concerned, and there could not possibly have been any conversion of the property if the statute had been pursued, which was not denied.

If the property levied upon had been the individual property of the debtor who was sued, then the levy must have been made by taking the property into possession by the officer, and could not have been lawfully made otherwise, in which event there would have been a deprivation of the right of property, which would constitute conversion. Under such a levy the defendant, in order to get possession of the property, would have been required to execute a replevy bond when the attachment was quashed. But in this case, there being no possession in the sheriff, the quashing of the attachment had no effect upon the right of property or possession of it. The property remained in the possession of the partnership just as it was before the levy.

In suits against individuals, where an attachment has been levied upon property, in order to release it, there must be a replevy ¡bond given, and in such instances the sheriff lias the actual possession by reason of the levy, and may be said to have converted it. But in a case like this, where no possession passes to the sheriff, the quashing of the attachment has no effect upon the possession nor upon any right of the defendant because, it being the property of a partnership, it remains, after the levy, in the possession, both of the defendant in the writ and other members of the firm. Article 270, Vernon’s Sayles’ Civil Statutes.

The effect of the quashing of the attachment was simply to discharge the property from the lien created by the levy. The possession was not affected. As we have said, if it had been an individual suit against the defendant Nison, upon the quashal of the writ, there would have been a necessity for him to give a replevy bond, except for the further fact that at the same time he secured the discontinuance of the suit. Therefore, in this case there being no possession to be regained, there would be no change in the status of the property by the dismissal of this suit, except that it would be entirely free from all right of the plaintiff in the attachment against the interest of Nixon in the partnership. The act of Nixon in securing the dissolution of the attachment and the dismissal of the case by the plaintiff in the suit terminated the whole matter, and left the defendant Nixon, as well as the partnership, in possession. Therefore, as they had not been deprived of possession, they had no right to recover from the sheriff, the defendant in this suit, the value of the property. It had never been converted in any sense whatever.

We are of opinion that the Court of Civil Appeals properly decided this case, and the opinion of the judge in that case states clearly and correctly the law which should govern it.

It is therefore ordered that the judgment of the Court of Civil Appeals be affirmed.

Affirmed.
      <@=>iror other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, J.

text:
    GILMORE et al. v. O’NEIL et al.
    (No. 2344.)
    (Supreme Court of Texas.
    Feb. 3, 1915.)
    1. Trespass to Try Title <@=?8 — Superior Title.
    The superior title, which will entitle a party to prevail in trespass to try title, may be either legal or equitable.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dec. Dig. <@=>6.]
    2. Deeds «=>137 — Description—Land Conveyed.
    Where a deed to 15 acres of land out of a 50-acre tract specially excepted “D.’s 1%-acre tract,” by reference and by description, the grantee and his successor in interest acquired no interest in any part of the excepted tract, though the deed to D. described it as “1.35 acres.”
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 457; Dec. Dig. «=>137.]
    3. Vendor and Purchaser «=>165 — Land Sold — Survey—Equitable Title.
    Where the grantor, who by mistake had deeded to the grantee only 1.35 acres, described as in the corner of a 50-acre tract, instead of the 1% acres sold to her, caused 1% acres to be surveyed and laid out on the ground, and recognized the grantee as the owner thereof, the grantee, having accepted such designation of the land, became invested with the legal title to the extent of 1.35 acres and the equitable title as to the remainder, as against the grantor, his heirs, and purchasers from him with notice of the grantee’s equity.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 329, 329% I Dec. Dig. «=>165.]
    4. Trespass to Try Title «=>4 — Right to Relief — Conditions Precedent — Reformation of Deeds.
    Where J.’s deed lo D. by mistake described the land as 1.35 acres instead of the 1% acres sold, and D. deeded the land, describing it as 1% acres, to O., who took possession and made valuable improvements without objection from any one, O. had a perfected equitable title in the land omitted by mistake from the first deed, which he was entitled to establish, as against J. or his heirs or any one acquiring the land from them with notice of the equity, in an action in trespass to try title without a prior reformation of the erroneous deed.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 4; Dec. Dig. <§=4.]
    5. Limitation of Actions «=> 40— Defense— Equitable Title.
    Where, in trespass to try title, a defendant in possession set up an equitable title to the land, the fact that he asked for a removal of the cloud cast on his title by the claims of plaintiffs and intervenors did not convert his claim into an affirmative action subject to limitation.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 212, 213; Doc. Dig. «=» 40.]
    6. Landlord and Tenant «=>123 — Outstanding Title — Description in Deed— Lessees — Actual Notice.
    Where lessees took from the widow of the grantor in a prior deed erroneously describing the land conveyed as being 1.35 acres instead of 1% acres, at a time when a deed from such grantor and his wife to a third person, which deed distinctly referred to the land covered by the erroneous deed as being a tract of 1% acres, had been of record for more than two years, and where the lessees, -while negotiating for the lease, were shown the tract to be leased, which excluded the land erroneously omitted from the deed, they took with notice of the grantee’s equitable title to such omitted land. ■ •
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 435, 436; Dec. Dig. «=> 123.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Trespass to try title by G. E. Gilmore and others against John O’Neil and another, wherein Lucy Jones and others intervened. A judgment for the defendant O’Neil was reversed by the Court of Civil Appeals (139 S. W. 1162), and such defendant and plaintiff Gilmore and others bring error.
    Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.

      John Charles Harris and Harris & Harris, all of Houston, for plaintiffs in error. Lane, Wolters & Storey, ffm. A. Vinson, and S. H. Brashear, all of Houston, for defendants in error.
   PHILLIPS, J.

This suit, brought as. an action in trespass to try title by G. E. Gilmore, W. H. Nicholson, D. R. Beatty, and J. R. Cheek against John O’Neil and the Texas Company, is a controversy over about one-third of an acre of ground, and $29,563.85, the proceeds of the oil from an oil well sunk upon the traet by the defendant O’Neil; this amount being in the hands of the Texas Company, whose position in the case is merely that of a stakeholder. The land was originally owned by James Jones, under whom all parties claim as the common source of title, as a part of a 50-acro tract, the community property of himself and his wife, Lucy Jones. Interventions were filed by Lucy Jones and heirs of Thomas Jones, herein denominated for convenience as the Jones heirs, and the J. M. Guffey Petroleum Company, respectively, asserting title to the strip of ground and the proceeds of the oil. In the trial court the case was submitted to a jury on special issues, resulting in a judgment for O’Neil against all other parties. This judgment was reversed by the honorable Court of Civil Appeals; its determination being that O’Neil was not entitled to the land or the fund, but had the right to be reimbursed out of the latter for his expense incurred in the production of the oil — $11,000, the amount found by the jury — that the Guffey Petroleum Company should take nothing, and that the land and the balance of the fund belonged to those showing themselves entitled as heirs or assignees of Thomas Jones and wife, for the ascertainment of whom and their rights the case was remanded. The writ of error was granted by this court upon the respective petitions of Gilmore, the administratrix of Nicholson’s estate, Cheek, and Beatty, and of O’Neil.

O’Neil’s claim is based upon a sale, made in 1903, by Jones and wife to Nancy Duey of a tract out of the southeast corner of the Jones 50-acre tract, described in the deed .executed by Jones and wife at the time, dated September 28, 1903, as:

“One and thirty-five hundredths acres of land out of the S. E. comer of the fifty-acre tract sold to us by John M. Young and wife by deed dated Oct. 22, 1895, and being a part of the John Browne Jones league,” etc.

On August 1, 1908, Mrs. Duey conveyed an undivided one-half interest in this tract to Kuhn, executing, on the same date, a power of attorney in his favor, authorizing him to sell' or lease her interest. On July 29, 1908, Kuhn, for.himself and as attorney in fact for Mrs. Duey, executed an oil lease of the tract to Donahue, who on August 1, 1908, assigned the lease to O’Neil. In the deed and the power of attorney of Mrs. Duey to Kuhn, and in the lease to Donahue, the tract was described as in the deed from Jones and wife to Mrs. Duey. On September 17, 1908, for a recited consideration of $3,-500, Mrs. Duey, acting through Kuhn as her attorney in fact, and Kuhn, for himself, executed and delivered to O’Neil a deed describing the tract as “1.662 acres of land,” and by metes and bounds so as to constitute in the southeast corner of the Jones 50 acres a rectangular tract 317 feet long and 208.7 feet wide; that is, extending 347 feet east and west, and 208.7 feet north and south, which would include the strip of land in dispute.

According to the findings of the jury, which were in accordance with the contention of O’Neil upon the trial, on a special issue submitted by the court, the actual transaction between Nancy Duey and Jones and wife was the purchase by the former of $100 worth of land out of the southeast corner of the 50-acre tract at the price of $60 per acre, or 1% acres, and, by mutual mistake in the preparation and execution of the deed, the quantity of land sold and conveyed was therein described as 1.35 acres, when it should have been described as 1% acres. The jury further found that, after his conveyance to Nancy Duey, James Jones caused the 1%-acre tract, claimed by O’Neil, to be surveyed and set apart as the tract sold and conveyed to Nancy Duey by himself and wife, and at all times thereafter to the time of his death recognized and treated it as such. It appears that the Jones heirs never asserted to the contrary until shortly before the institution of the suit.

On May 20, 1905, Jones and wife conveyed to the National Oil & Development Company, out of the 50-acre tract, 15 acres; the deed having been duly filed for record on May 22, 1905. The calls in this deed refer to the land theretofore conveyed by Jones and wife to Nancy Duey as “Mrs. Duey’s one and two-thirds acre tract.” One of the boundary lines of the 15 acres conveyed is given in the deed as the entire north line of the Duey tract, and another as the entire west line of the latter tract, which by the deed are revealed as being respectively 347 feet and 208.7 feet in length. In other words, the 15 acres is described in this deed as entirely bounding the Duey tract on the north and west, and the calls in the deed reveal the Duey tract to be rectangular in form, 347 feet long, to the east and west, and 208.7 feet wide, to the north and south. The J. M. Guffey Petroleum Company’s claim is under this deed.

Prior to the execution of the conveyance to Nancy Duey, Jones and his wife had sold to Barrett a tract of three acres ;■ and it appears that there had also been sold out of the 50 acres another small tract, to Dunnam, stated in the opinion of the Court of Civil Appeals to consist of about one-half of an acre. Counting the Duey tract as 1.35 acres, after tie conveyance of the 15 acres to the National Oil & Development Company on May 20, 1905, there remained unsold, of the 50-acre tract, 30.15 acres. Counting the Duey tract as 1% acres, the remainder of the 50-acre tract amounted to 29% acres.

The basis of the claim of Gilmore, Nicholson, Beatty, and Cheek, the plaintiffs in the suit, was an oil lease executed by Mrs. Lucy A. Jones on January S, 1908, after the death of her husband James Jones, in 1906, to Beatty and Cheek, which described the land so leased as “thirty acres of land out of the John Brown Jones one-third league, said thirty acres being all of my remaining interest in the James Jones fifty-acre tract out of the said Jones league, said land being north of the Butler subdivision and south of the Bissonet tract in said one-third league”; and a renewal of that lease by Mrs. Jones and others, heirs of James Jones, dated May 6, 1908, in favor of Beatty and Cheek, describing the land as “thirty acres of land out of the John Brown Jones one-third league in Harris county, Texas, same being the unsold portion of the James Jones fifty-acre tract, and lying north of the Butler subdivision and south of the Bissonet tract in said one-third league.” This lease was assigned to Gilmore and Nicholson by Beatty and Cheek on July 16, 1908.

If the Duey tract is reckoned as consisting of 1.35 acres, and as laid out in the form of a rectangle, 208.7 feet wide, north to south, the strip in dispute, which extends 66.1 feet east and west and 208.7 feet north and south, would not be included within its lines. If that tract be counted as containing 1% acres, and is laid out in the form of a square, the strip would likewise lie without its boundaries. As has been already noted, if the Duey tract consists of 1% acres, laid out in rectangular form, 347 feet east and west, and 208.7 feet north and south, as claimed by O’Neil, and as the jury found was recognized and treated by Jones to time of his death as constituting the tract sold by himself and wife to Nancy Duey, it would include the strip in controversy.

The. position of Gilmore, Nicholson’s ad-ministratrix, Beatty, and Cheek is that the sold portions of the 50-acre tract at the time of the execution of the leases under which they claim were the Barrett 3-acre tract, the Dunnam one-half acre tract, the Duey 1.35-acre tract, and the National Oil & Development Company 15-acre tract (the deeds to none of which included or conveyed the strip in dispute); that accordingly it, at that time, constituted a part of “the remaining interest” in, or “unsold portion” of, the original tract, and the descriptions of the land embraced in their leases, namely, “thirty acres of land out of the John Brown Jones one-third league, said thirty acres being all of my remaining interest in the James Jones fifty-acre tract out of the said Jones league,” in one, and “thirty acres of land out of the John Brown Jones one-third league in Harris county, Texas, same being the unsold portion of the James Jones fifty-acre tract,” in the other, were therefore effectual, as a matter of law, to include it.

The west boundary line of the 15 acres conveyed to the National Oil & Development Company extends entirely from the north to the south line of the 50-acre tract, and is some distance west of the west line of the Duey tract, however reckoned. All of the portion of the 50-acre tract unsold at the time of the execution of the Beatty and Cheek leases lay west of the west line of the oil and development company 15 acres, unless the strip in controversy was a part of the unsold portion. It is apparent, therefore, that, if the strip be treated as a part of the unsold portion of the 50-acre tract, it lay remotely situated from the remainder of the 3& acres embraced in the leases under which the plaintiffs claimed.

We insert a sketch at this place showing the situation of the respective tracts:

According to further findings of the jury, O’Neil believed that he was acquiring a leasehold to the one-third of an acre when he obtained his lease from Mrs. Duey and Kuhn. He entered into possession under the lease in August, 1908, and, under such belief, during that month erected his derricks and sunk the oil well in the northwest corner of the one-third of an acre tract, at an expenditure for sinking the well and producing the oil of $11,000. He was in possession when the plaintiffs filed their suit on September 30, 1908, holding under the lease, and the deed of Mrs. Duey and Kuhn executed. September 17, 1908. None of the other parties appear to have realized that they had any right to this one-third of an acre, or to have asserted any claim to it, until, through O’Neil’s efforts, the oil well was produced and it was rendered valuable. Then the controversy began.

It is, in our opinion, a wholly mistaken view to assume, as urged by Gilmore and his coiDlaintiffs in error in the Court of Civil Appeals, and as that learned court determined, that the defense interposed in the suit by O’Neil was in effect an action on his behalf to reform the deed executed by James Jones and wife to Nancy Duey, held by the court to be not maintainable because barred by the four-year statute of limitation; or that the establishment of his defense was in any way dependent upon the reformation of that deed. The real questions which arise upon the respective claims of the plaintiffs and O’Neil’s defense fall within a much narrower compass, as it is believed a brief analysis of the case will disclose.

It will simplify the entire case to first determine where lies the superior title to the land. This does not mean the legal title, but the superior title, whether legal or equitable, since an equitable title may be superior to the legal title, and will prevail over the legal title if capable of being enforced against it. The claim of the plaintiffs was predicated upon their asserted ownership of a leasehold.supported by the legal title, because of the description in their lease; and, in the discussion, their interest will be referred to as a legal title to the land. Essential to the allowance of their claim is the determination that the description in their lease was sufficient. But, if that is admitted, they may be said to hold the legal title. This follows, because the description in the deed of Jones and wife to the National Oil & Development Company, under which the Guffey Company holds and claims, clearly did not include the land; the legal title had not been conveyed by Jones and wife prior to the death of Jones, and therefore rested in Mrs. Jones and Jones’ heirs at the time of the execution of the plaintiffs’ lease; and, as to Mrs. Jones and the Jones heirs executing the lease, it passed thereby to Beatty and Cheek, if the land was therein described.

This disposes of the claim of the Guffey Company. And, if the description in the lease to Beatty and Cheek be held sufficient, it likewise disposes of the claim of the Jones heirs. If that description did not include the land, the legal title remained in the Jones heirs, and the case would be then resolved into an issue between them and O’Neil as to the superiority of their respective titles.

O’Neil, admittedly, had no legal title to the land. Such title as he possessed was purely equitable. If it amounted to the superior title, it was of course subject to enforcement against any legal title in the Jones heirs, derived, as it was, from their ancestor. And, if the superior title, it would likewise prevail against any legal title in the plaintiffs, unless they occupied the position of innocent purchasers. If their lease did not describe the land, the plaintiffs had no character of title. If it did describe the land, and their position was that of innocent purchasers, any equitable title in O’Neil would yield to the legal title conferred by the lease, though, strictly speaking, his were the superior title. But it is immaterial whether the description in their lease was sufficient to invest them with the legal title, if their rights were acquired with notice of a superior equity in O’Neil’s grantor, after-wards ripening into title in his hands.

These are the questions which contain the heart of the case. An examination of them is therefore appropriate.

If the actual transaction between James Jones and Mrs. Duey was, as found by the jury, a sale to her by Jones and wife of $100 worth of land out of the southeast corner of the Jones 50-acre tract, at the price of $60 per acre, for which she paid the full consideration, there was really sold to Mrs. Duey a tract of 1% acres. The deed given her having conveyed by its terms only 1.35 acres, Jones and wife held the legal title to that part of the land sold but not conveyed, namely, one-third of an acre, approximately, in trust for Mrs. Duey; and she became the owner of a corresponding equity in the one-third of an acre. And if, following the conveyance, Jones agreed that the 1% acres sold to her should be laid out in the southeast corner of the 50-acre tract in the form of a rectangle, 347 feet long, east and west, and 208.7 feet wide, and caused 1% acres to be so surveyed and laid out on the ground, recognizing and treating such tract as the land sold, as the jury further found, Mrs. Duey, consenting to such designation of the land, thereupon, in view of her purchase and payment, became invested with the legal title to such tract to the extent of 1.35 acres, and the owner of an equity in the remainder. This is plain, since Jones could not dispute his own designation of the' tract, nor would any one acquiring title from him, or his heirs, by subsequent conveyance, with notice of Mrs. Duey’s equity, be heard to dispute it.

Under his lease and deed from Mrs. Duey and Kuhn, the latter describing the 1% acres as designated on the ground by Jones, O’Neil obtained all the rights in the tract originally owned by Mrs. Duey, including her equity in the one-third of an acre in controversy. This equity to the one-third of an acre would have been incapable of enforcement as a title in Mrs. Duey’s bands, because she had no possession; and, being out of possession, the reformation of the deed executed by Jones and wife would have been necessary to invest her with title. But had she taken possession, accompanied by improvements, having already paid the full purchase price of the land, there could be no doubt of the perfection of her equity into an equitable title, superior to the legal title in Jones and wife, and entitled to prevail against it in the hands of any subsequent owner not giotected as an innocent purchaser. This would have been her right, regardless of any reformation of the deed, for, in such event, she would have held the superior equitable title to the one-third of an acre, independent of the deed; and the deed could have presented no obstacle, either to her recovery or defense upon such title. But, being out of possession, ■what were Mrs. Duey’s rights, and those of O’Neil, her grantee? She stood clear in the ownership of an equity in the one-third of an acre in dispute, because she had bought and paid for it, and in good conscience it belonged to her, with an undoubted right to the title, and, by possession and improvements, to perfect her equity into a title. That these were her rights, and recognized as her rights by Jones, from whom she bought the land, according to the findings of the jury, cannot be gainsaid. Owning them, she could convey them; and her grantee would necessarily succeed to them. O’Neil acquired them, was let into possession under conveyance from her, believing that he was obtaining the right to the one-third of an acre, and was in possession when the suit was filed. Upon the faith of his right he made a large expenditure for the production of the well, which gave the land its value. His entry into possession and his ownership were unquestioned by the Jones heirs, or any one else, until shortly before the institution of the suit. It is evident, under this state of facts, that, independent of the deed from Jones and wife to Mrs. 'Duey, O’Neil held a perfected equitable title to the land in controversy, superior to the legal title in Jones or his heirs, or in the hands of any one acquiring it from them with notice of the equity.

O’Neil’s pleading recited the facts, substantially as we have stated them, and as the jury found them, the effect of which was to invest him with a superior equitable title to the land, and reveals that, upon such a title and notice of the equity by the plaintiffs in the acquisition of their rights, his defense to their suit was rested. His prayer for the removal of the cloud upon his title, cast by the claims of the plaintiffs and interveners, did not alter the character of his defense, or convert it into an affirmative action subject to limitation. If his was the superior title and capable of enforcement against the legal title, his right to be quieted in it would follow. Asserting, as he was, a superior equitable title, independent of the deed of Jones and wife to Mrs. Duey, as the basis of his defense, in what way was the reformation of that deed essential to the establishment of his defense? With no possession adverse to his right, how could limitation affect his right? It is not the law, and could not well be the law, that, in a trespass to try title action, proof of an equitable title by a defendant in possession is subject to limitation. What was said by Judge Wheeler in Newsom v. Davis, 20 Tex. 419, concerning the rights of a defendant in possession of land under a bond for title, having paid the consideration-one no more favorably circumstanced than a defendant in possession under such a sale as is shown to have been made by Jones to Mrs. Duey, with the full consideration paid, followed by valuable improvements in good faith — may be here aptly quoted:

“The defendant being in possession under a contract to convey, and having paid the consideration, is the equitable owner of the land. His is superior to the legal title remaining in, his vendor; and, there being no possession adverse to his right, the statute of limitations does not run against it. Vardeman v. Lawson, 17 Tex. 10.”

It was announced in Rutherford v. Carr, 99 Tex. 101, 87 S. W. 815:

“There is no statute of limitation which prescribes a bar to the proof of a fact material to sustain or defeat a cause of action or defense; such statutes act upon the cause of action.”

This is not a case where, as in Railway Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, and McCampbell v. Durst, 15 Tex. Civ. App. 522, 40 S. W. 315, it was necessary, in order to establish the title, to set aside a deed which stood as an obstacle to recovery.

Waiving the question of the sufficiency of the description in the plaintiffs’ lease, and admitting, for the present purpose, that it was sufficient, was the title possessed by O’Neil entitled to prevail against the legal title which a sufficient description in their lease would have conferred upon the plaintiffs? This depends upon whether their position was that of innocent purchasers of the legal title for value, without notice of the superior equity, or such knowledge as reasonably should have put them upon inquiry. At the time the plaintiffs acquired their lease, the deed of Jones and wife to the National Oil & Development Company, conveying the 15-acre tract to that company, had been of record for more than two years. That deed was in their chain of title, and they were charged with notice of its recitals. Caruth v. Grigsby, 57 Tex. 265. It embraced “a sold portion” of the 50-acre tract, and reference to it was of course necessary to determine what “the remaining interest” in the tract, or “the unsold portion” of the tract, was, in virtue of which description it is that tile plaintiffs claim tlia land under their lease. It distinctly referred to the land-sold by Jones and wife to Mrs. Duey as being a tract of 1% acres; and calling for the north and west lines of that tract, by measurement, as boundary lines of the 15 acres conveyed, revealed, as has been before notedj that Mrs. Duey’s land lay laid out upon the ground so as to include within its lines, and exclude from their lease, the strip in controversy. This could not amount to less than notice to them that the source of their title and hers recognized, by an actual measurement of the ground, her right to the land in dispute, and, if the description in their lease embraced it, that they were obtaining a questionable title. In addition to this, the jury found that, when Beatty and Cheek were negotiating for the lease, they were taken upon the ground and shown that the land proposed to be leased lay west of the West line of the National Oil & Development Company 15-acre tract — a location entirely remote from this strip — and that Beatty and Cheek accepted the lease with the understanding between themselves and their lessors, the heirs of Jones, that the land leased to them was so located. This constituted further notice to the plaintiffs that the heirs of Jones recognized that this strip was not “an unsold portion” of the tract; necessarily, therefore, equivalent to notice, under this description in the lease, that it was “a sold portion.”

With their rights acquired under such circumstances, it is clear that the plaintiffs were not entitled to be protected as innocent purchasers. This renders immaterial the question of the sufficiency of the description in their lease.

Under the findings of the jury upon the issues of fact, it is our opinion that O’Neil was entitled to recover the land and the- proceeds of the oil. This, it seems to us from an examination of the record, accords with the justice and right of the case; and that is what the law of a case ought to be.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the district court is affirmed.
      <©=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes


text:
    HOUSTON & T. C. R. CO. v. WALKER et al.
    (No. 2742.)
    (Supreme Court of Texas.
    Jan. 27, 1915.)
    1.Appearance <&wkey; 8 — Waiver op Process-Filing Special Exceptions.
    Where an action for personal injuries was revived by plaintiffs heirs after his death, and a supplemental petition was filed asking for damages for the death, which was alleged to have resulted from the injuries, but no citation was thereafter served upon the defendant, defendant’s exceptions to the petition for misjoin-der of causes of action was an appearance in the action for the death, though in its answer it expressly limited its appearance to the original cause of action.
    TEd. Note. — For other cases, see Appearance, Cent. Dig. §§ 23-41; Dec. Dig. &wkey;8.]
    2. Appeal and Error &wkey;>10S2 — Decision op Intermediate Court — Questions Considered.
    In such action, where defendant, in its motion for new trial, contended that the undisputed evidence showed that the death resulted solely from the injuries, and for that reason plaintiffs remitted in the Court of Civil Appeals the judgment for the injuries before death, the defendant cannot in the Supreme Court object that, under the instructions, the verdict did not amount to a finding that the injuries were the sole cause of the death.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1133-1136, 4270, 4281-4284, 4289-4292; Dec. Dig. &wkey;1082.]
    3. Death <@=^77 — Damages—Sufficiency of Evidence.
    In an action by surviving children for the death of their father, evidence held insufficient to show that two children, who were adults and self-supporting, suffered any pecuniary injury by reason of their father’s death.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 96; Dec. Dig. <&wkey;>77.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by T. B. Walker and others against the Houston & Texas Central Railroad Company. A judgment for the plaintiff was affirmed by the Court of Civil Appeals (167 S. W. 199), and defendants bring error.
    Judgment affirmed in part, and reversed and rendered for defendant in part.
    . Baker, Botts, Parker & Garwood, of Houston, and Plead, Smith, Maxey & Head, of Sherman, for plaintiffs in error. Wolfe,. Wood & Haven, of Sherman, for defendant in error.
   PHILLIPS, J.

The suit was originally filed by T. B. Walker against the railroad company for damages on account of personal injuries charged to have been occasioned by its negligence. The railroad company was duly served with citation upon this petition, appeared, and answered. Later Walker died, and, his death being suggested, bis widow, by an amended petition, sought recovery in behalf of herself and the four children of the decedent. Subsequently she died, and a further amended petition was filed by two of the children, Camille and Fount, for themselves and as next friends of their minor sisters, seeking damages in the sum of $40,000. Thereafter they filed another amended petition, seeking damages for themselves on account of the death of Walker, which it was charged had resulted from the injuries due to-the company’s negligence, and alternatively, as the heirs of Walker, praying for damages to which it was alleged he would have been entitled, bad he lived, and, if it should be determined that his death was not due to the injuries pleaded, placed at the sum of $30,000. No-citation was issued as to the cause of action, of the plaintiffs alleged to have accrued to-them as Walker’s children. Following the filing of the petition last mentioned, the defendant company filed its first amended answer, stating that it was filed only as to the original suit instituted by Walker and then being prosecuted by the plaintiffs as his heirs and legal representatives, and that it refused, and had always theretofore refused, to appear or plead to the suit of the mother, or of the plaintiffs as Walker’s children, on the cause of action pleaded as accruing because of his death, on account of its never having been served with citation upon such a suit. In this answer a general demurrer was followed by a special exception to the petition of the plaintiffs, urging that the two causes of action, namely, the suit of the plaintiffs as Walker’s children and the suit as his heirs, were improperly joined, and praying that the plaintiffs be compelled to sever the causes, and elect as to which they would prosecute. The trial court submitted both causes of action to the jury. A verdict was returned and judgment rendered for the plaintiffs, as heirs of Walker, for $2,500, and in their favor, as surviving children, for $9,000, apportioned $1,000 to Camille, $1,000 to Fount, $2,000 to Pansy, and $5,000 to Elizabeth. In the Court of Civil Appeals, before submission there, a remittitur was entered by the plaintiffs as to the $2,500 recovered in their capacity as heirs. The judgment in other respects was affirmed by that honorable court.

A principal contention urged by the plaintiff in error in its petition is that the court acquired no jurisdiction over it upon the plaintiffs’ cause of action as surviving children of Walker, because it was never served with citation thereon, and made no appearance in the case as to such cause of action. We declined to grant the writ of error upon this ground. If there were any difficulty in the question, we think it settled by the exception, or plea of misjoinder of causes of action, interposed by the defendant to the last petition filed by the plaintiffs. This constituted necessarily an appearance as to both causes of action, since the exception or plea could not well have been urged to only one of them.

The trial court instructed the jury that, if they found the death of Walker was due to any cause other than the injuries received by him on October 20, 1910, the plaintiffs could not recover in the capacity of surviving children, but could recover as Walker’s heirs for such injuries suffered by him, provided they were found to have been proximately caused by the defendant’s alleged negligence. By further instruction the jury were told that if they found his death was caused solely by such injuries, and the latter were due to the defendant’s negligence, as charged, the plaintiff would be entitled to recover in the dual capacity as Walker’s heirs and as surviving children. Inasmuch as a verdict was returned for the plaintiffs in both capacities, it is urged by the railway company that, under the charge, the verdict in their favor as surviving children does not amount to a finding that Walker’s death was due to the injuries in question. There is an apparent contradiction in the verdict, though we think it was probable that the jury understood, under the arrangement of the charge, that a verdict for the plaintiffs in their dual capacity, as was actually returned, could only be rendered upon a finding that the injuries caused Walker’s death, and accordingly rested that part of the verdict finding for the plaintiffs, as heirs, upon that instruction, rather than upon that part of the charge which authorized a verdict for the plaintiffs in that capacity in the event it was found that the death resulted from another cause. In any event, we do not think the railway company is in position to take advantage of the question. In its motion for a new trial in the trial court, it urged, as a ground of invalidity of the judgment in plaintiffs’ favor in the capacity of heirs, that the undisputed evidence showed “that the death of said T. B. Walker was caused by the accident and injuries on account of which this suit is brought, and, this being true, the cause of action originally instituted by said deceased in his lifetime abated upon his death, and could not be prosecuted by the plaintiffs, or any one else, for his estate.” Having made the contention in the trial court that the verdict for the plaintiffs as heirs was void because “the undisputed evidence” showed that the injuries caused the death, which part of the judgment was remitted in the Court of Civil Appeals, the plaintiff in error should not now be heard to say that the jury did not, under the charge, find in accordance with such evidence.

The writ of error was granted because of our opinion that there was no basis in the proof for a recovery in favor of Camille Walker or Fount Walker. An answer to the petition having been filed by the defendant in error, we may determine the case.

Camille Walker and Fount . Walker were both adults. Their being adults would not of itself deprive them of the right of recovery under the statute, provided the evidence showed a prospective financial loss to them on account of their father’s death. But there must be evidence which would reasonably afford just ground for a finding that the parent would have rendered each of them pecuniary aid, had he lived. Before a recovery can be had, the loss must be shown. It is not required to be proved directly; it may be proved circumstantially, but it must rest in the evidence. The statute allows no compensation by way of solace for the bereavement which would naturally be caused by the death of a parent, as is well settled. The damages must be actual and for a pecuniary loss.

The trial was had in June, 1913. Walker’s death occurred in December, 1912.

Miss Camille Walker testified that when T. B. Walker would receive his monthly pay cheek it was turned over to the family, and was used for the support, education, and maintenance of the family. But her testimony further shows that at the time of the trial she had been teaching for four or five years, being then 25 years of age; that at the time of her father’s death she was each month contributing to the payment of the family expense; that she bought her own clothes; and that, when she was not at home, she paid her board and her own expenses.

Her sister, Miss Pansy Walker, 20 years of age at the time of the trial, one of the plaintiffs, testified that Miss Camille had been teaching four or five years; that since she had been teaching she had been contributing some to the family expenses. One of the statements in her testimony is:

“My sister [Miss Camille] has been self-supporting, I suppose, four or five years, and during that time, when she drawed her money, she contributed to the family expenses.”

Fount Walker was 22 years of age at the time of the trial, an adult at the time of his father’s death, and unmarried. He was shown to have been a fireman in the employ of a railroad company, and had been so engaged for a year or two. He testified that before he went to work, which was upon his leaving school in 1908, four years before his father’s death, the latter paid his expenses, board, etc.; and that, since he had been at work, he had contributed in the payment of his own expenses.

His sister, Miss Pansy, testified concerning him as follows:

“I will say that my brother has been self-supporting six or seven years, possibly. I really do not know about that. During most of the time he has contributed to the family support.”

With each of these two children grown at the time of their father’s death; then, and for a number of years prior, self-supporting, and contributing to the family expenses; and with nothing in the proof to show his extension of pecuniary aid to them further than that, when they were at home, they shared the family board and home environment furnished by the father, for which it is evident their contributions were meant to compensate, it cannot be reasonably contended, we think, that there was any evidence of prospective pecuniary aid from the father for their benefit. As said in Railway Co. v. Johnston, 78 Tex. 536, 15 S. W. 104:

“The circumstances repel the idea that they had any just grounds to expect pecuniary assistance from him.”

The judgment as to Pansy Walker for $2,000, and for Elizabeth Walker for $5,000, is affirmed; and, as to Camille Walker and Fount Walker, the judgments of the district court and Court of Civil Appeals are reversed; and judgment is here rendered for the plaintiff in error.
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text:
    STEVENS v. PEDREGON et al.
    (No. 2347.)
    (Supreme Court of Texas.
    Feb. 10, 1915.)
    1. Adveese Possession <@=67 — Requisites— Entey Undee Claim oe Right.
    Entry under claim of right, essential under the definition of adverse possession (Vernon’s Say les’ Ann. Civ. St. 1914, art. 5681), is wanting where one enters with the avowed purpose of acquiring title by possession, and not to enjoy property which he claims to belong to him.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 384-386; Dec. Dig. <S= 67.]
    2. Adveese Possession <@=24, 44 — Continuous — Adverse Nature.
    Possession is neither continuous nor adverse, as required to bar the right of the owner, where one incloses no part of the land, does not reside on it, and merely cultivates a small part of it, one year at one place, the next at another, and some years, because of lack of water, cultivates no part.
    LEd. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 114, 115, 226-231; Dee. Dig. <@=24, 44.]
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Action by J. W. Stevens against Catarino Pedregón and another. Judgment for defendants was affirmed by the Court of Civil Appeals (140 S. W. 236), and plaintiff brings error.
    Reversed and remanded.
    Jones & Jones, of El Paso, for plaintiff in error. T. C. Lea and W. B. Ware, both of El Paso, for defendants in error.
   BROWN, C. J.

We adopt the findings of fact as we find them in the opinion of the Court of Civil Appeals, as follows:

“This is an action of trespass to try title, brought by appellant against appellees, to recover a 17-acre tract of land six miles east of city of El Paso, in the Rio Grande valley, and known as survey 15, the suit being filed August 24, 1910. The cause was tried without aid of a jury, resulting in judgment for defendants, based upon plea of ten years statute of limitation.
“The findings of fact and conclusions of law of the trial court are as follows:
“I. The plaintiff, J. W. Stevens, is the record owner of said land, having bought the same from James A. Tays, administrator of the estate of Joseph W. Tays, on the 4th day of April, 1888, and paid therefor the sum of $170.
“II. I find that the defendant Catarino Pedre-gón, on the 26th day of September, 1899, bought survey 214 from Mrs. Sarah J. Melindes, and that he immediately took possession of said survey 214, to wit, on the 26th day of September, 1899, and has been living with his family on said survey 214 ever since, and that said survey 214 immediately joins survey 215 on the west.
“III. I find that the defendant Catarino Ped-regón was advised by said Mrs. Sarah Melendes that survey 215 was not hers, and that if he would take possession of it and plant it and use it, that he could become the owner of it by limitation, and that immediately after he look possession of survey 214 he commenced to use, occupy, and cultivate said survey 215, and to claim the land as his own; this being about the 1st of October, 1899. I find that he planted sugar cane, vegetables, beans, watermelons, and other crops on a part of survey 215, the land in controversy, each year from 1899 to the present time, and to plant more or less of it each year as he had water to irrigate it, and that about the time he moved onto 214 he planted a vineyard which extended onto 215 and covered about two acres of said survey 215, and that the same has been on said survey 215 and cultivated by Pedregón ever since that time.
“IV. The defendant Catarino Pedregón * * * occupied said house by his tenants for about seven years, and then tore the house down and built another house a little further back on the property, which has remained on the land ever since; that none of the land was fenced until about two years before the filing of plaintiff’s suit; that about that time defendant Ped-regón fenced the land.
“V. The county road, running from El Paso, Tex., down the Iiio Grande valley, runs through the northern part of the land in controversy, and is the main highway of travel from El Paso to the east, and is used by the public generally traveling up and down the Rio Grande valley east of El Paso; that all parts of this land could be seen from this road, and that the said land in controversy is about six miles east of the city of El Paso, and that the country is densely populated, and that all the surrounding land is cultivated by farmers raising alfalfa, fruit, vegetables, and other crops, and that it was not customary to fence lands in the valley until about three years before plaintiff’s suit.
“VI. The Galveston, Harrisburg & San Antonio Railroad track runs immediately north of the land in controversy and about 100 feet from the line.
“VII. I find that about two years before the filing of the plaintiff’s suit in this cause the defendant Catarino Pedregón sold to the defendants F. G. Alderete and Ike Alderete that portion of the survey in controversy lying between the county road and the railroad track, and that said defendants F. G. Alderete and Ike Alderete have been in possession of the same by their tenants, planting the same every year since they have had it with vegetables and other farm products as are raised in that valley, and that their possession of said part so bought by them dates from the time of their purchase from their codefendant Pedregón.
“VIII. The possession, use, cultivation, and occupancy of said land by the said defendants in the manner above set out was undisputed, peaceable, and adverse from the fall of 1899 until the filing of the plaintiff’s suit on the -day of-, 1910, except that about two years before the filing of plaintiff’s suit plaintiff's son demanded the land as his father’s property, but defendant Pedregón refused to give it up, claiming it as his own.”
“Adverse possession” is defined by the following article of Vernon’s Sayles’ Statutes:
“Adverse possession is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” Article 5C81.

We are of opinion that the evidence does not prove the acts of ownership necessary to make the possession which is claimed by the defendant sufficient to bar the plaintiff’s right. In the first place, he made no claim of right to the land. The statutes specifically required that he should enter under a claim of right, but he entered with the avowed purpose of acquiring the title by possession, and not for the purpose of enjoying the property which he claimed to belong to him. He had no such possession as the law required. Such possession as defendant shows by his evidence is not within the terms of the statutes, and therefore is not sufficient to bar the plaintiff’s rights. Sellman v. Hardin, 58 Tex. 86; Murphy v. Welder, 58 Tex. 235.

In Sellman v. Hardin, supra, the statement shows that limitation was claimed on this state of facts:

“The evidence of defendant was that he claimed the land under the deed from Loughridge, had for some five or six years paid taxes on it, used firewood from it, and kept people from trespassing on it, had built hog pens on it, and used it as a ranch for his cattle and horses, but had made no inclosure except the hog pens, nor had he ever lived on the land nor occupied it by a tenant.”

The Supreme Court disposed of the question in this language:

“The court did not err in holding that the evidence offered by the appellant was not sufficient to show such adverse possession as would sustain his plea of limitation, and the judgment must-.be and is affirmed. Harnage v. Berry, 43 Tex. 568.”

At no time from the first entry upon the land to the institution of this suit does defendant in error claim to have actually resided upon the land, nor to have had the land or any part of it inclosed; nor does he claim that at any time he had a tenant upon it for a length of time sufficient to constitute limitation under any provision of the law or any decision of this court. Such possession as he claims to have had consisted of cultivating a small portion of the land, one year at one place and the next year at another. Some years there was no cultivation of any part of the land for the want of water. There was nothing in his acts that would indicate a claim of ownership of the land. All that defendant in error did in the use of the land might well have been regarded as harmless trespass. Schleicher et al. v. Gatlin, 85 Tex. 270, 20 S. W. 120.

We therefore conclude that this possession was not continuous nor adverse, as required by law in order to bar the right of the owner. Therefore the Court of Civil Appeals erred in holding that the evidence was sufficient to sustain the plea of the statute of limitation of ten years.

The judgments of the district court and the Court of Civil Appeals are reversed, and the cause is remanded to the district court.

Reversed and remanded.
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