text:
    MANSELL v. STATE.
    (No. 3935.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1916.)
    1. Homicide <@=3187 — Evidence.
    In a prosecution for manslaughter, where defendant killed deceased in a quarrel over a standing difficulty, testimony of defendant’s wife, that when she was made aware of the quarrel she said it was nothing more than she expected, was inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 390, 390% ; Dec. Dig. <@=>1S7.]
    2. Witnesses <@=>287 — Redirect Examination.
    In a prosecution for manslaughter, where-defendant, cross-examining deceased’s widow, proved by her that she ran a hotel after her husband’s death, and sought to leave the impression on the jury that her character was not good, the widow’s testimony on redirect, that her husband left her no property and she ran the hotel to make a living, was admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 930, 1000-1002; Dec. Dig. <§=> 287.]
    3. Homicide <@=>174^-Evidence.
    In a prosecution for manslaughter, testimony of the officer who arrested defendant, that at the latter’s instance he searched him and found no knife or weapon of any character, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. <@=>174.]
    4. Criminal Law <@=>396 — Evidence.
    In a prosecution of a hackman for manslaughter of another whom he had previously reported for a violation of law in crossing a line at the railroad depot, where defendant introduced evidence to show such violation of the law, and that it was the reason for his reporting the matter to an officer, testimony that deceased had violated no ordinance in fact was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dee. Dig. <@=> 396.]
    5. Homicide <@=>174L-Evidence.
    In a prosecution for manslaughter, where defendant introduced evidence that deceased refused to make a dying declaration or statement, the county attorney was properly allowed to testify that deceased did not refuse, but said that he felt too weak, and asked the attorney to come back later.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. <@=>174.]
    6. Homicide <@=>202 — Evidence—Dying Declaration.
    In a prosecution for manslaughter, where defendant introduced evidence that deceased refused to make a statement or dying declaration, testimony of deceased’s sister as to Ms dying statement voluntarily made when deceased had no hope of recovery, and was sane, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 429; Dec. Dig. <¿=202.J
    7. Homicide <@=>164 — Evidence.
    In a prosecution for manslaughter committed in the course of a quarrel, where defendant introduced evidence that deceased was a strong man and an expert boxer, the state was properly permitted to show that he suffered from rheumatism, had done so since he was 11, that it had affected his back, and that he walked in a stooping position, carrying one of his hands on his back.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 318; Dee. Dig. <@=>164.]
    8. Homicide <@=>109 — Self-Defense.
    In considering the plea of self-defense of a defendant charged with manslaughter, the appearances must be viewed as they appeared to defendant at the time of the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 138, 139; Dec. Dig. <@=>109.]
    9. Homicide <@=>262 — Demonstrative Evidence.
    In a prosecution for manslaughter, decedent’s clothing should not be displayed in front of the jury unless virtually in the same condi tion as at the time of the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 557; Dec. Dig. <@s=262.]
    10. Homicide <@=>174 — Evidence.
    In a prosecution for manslaughter, testimony that when the body of deceased was being shipped by railroad, defendant was at the depot, talking and laughing to his relatives, standing within a few feet of the corpse, was inadmissible as not aiding the jury in determining the legitimate issues and having a tendency to prejudice defendant.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. <@=>174.]
    11. Criminal Law <@=>595 — Continuance-Absence of Witness.
    In a prosecution for manslaughter, where it was a contested issue whether deceased had a knife in his hand during the quarrel in which he was killed, defendant and his son both so testifying, the refusal of continuance on account of the absence of a witness who would have testified that deceased was armed.with a knife during the difficulty was reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. <@=>595.]
    12. Homicide <@=>250 — Manslaughter—Sufficiency of Evidence.
    In a prosecution for manslaughter, evidence held sufficient to support verdict of guilty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. <@=>250.]
    13. Criminal Law <@=594 — Continuance. Defendant, charged with crime, is entitled
    to a continuance for the absence of a witness,
      whose testimony, material to the defense, he has used due diligence to secure.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. <@=>594.]
    14. Homicide <@=>39 — Manslaughter.
    Where defendant committed an assault with a specific intent to kill, but, at the time of the killing, was laboring under such a degree of anger, rage, resentment, or terror as to render his mind incapable of cool reflection, he was guilty of manslaughter, and not aggravated assault.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 59-61; Dec. Dig. <§=>39.]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    Wade Mansell was convicted of manslaughter, and he appeals.
    Judgment reversed, and cause remanded.
    J. T. Ranspot, of Palo Pinto, W. P. Smith and W. H. Penix, both of Mineral Wells, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of manslaughter, and his punishment assessed at 3 years’ confinement in the state penitentiary.

The evidence would show appellant owned a hack line plying between the depot and the hotels in Mineral Wells, and drove one of the hacks; that the Davidson brothers also owned a hack line, engaged in the same character of business, and that deceased, C. A. Jackson, was driving one of their hacks. It appears that in Mineral Wells they have an ordinance which will not permit the drivers to cross a certain line at the depot to solicit business. Appellant at one time in the past had crossed this line and been compelled to pay a fine for so doing. On Thursday or Friday before the homicide, deceased had crossed this line, as appellant thought, to solicit business, and thereby secured a passenger. Appellant reported this to an officer, but deceased was not arrested, as Mr. Davidson testified deceased did not cross the line to solicit the passenger, but the passenger had motioned to deceased to come and get his baggage, and deceased only crossed it to get the baggage. The evidence would further show that there was some rivalry and perhaps ill will existing between the local hack lines, which existed not only between the owners, but also extended to the drivers of the hacks. There is no evidence that appellant made any threat, except that he would again report deceased if he crossed the line soliciting business. The defendant’s testimony would have deceased make several threats — one that when appellant reported him to the officer he said, “I will get even with that man if I have to kill him.” Mr. Huddleston testified that on Friday before the difficulty he was present when Davidson and appellant were discussing a stand at the depot, when appellant said: “Gome here, Arthur, I will show you I am right, where I am,” when deceased remarked, “I am going to stop there next time if I get killed over it.” The state’s witnesses say when their attention was attracted to the parties that deceased was backing while appellant was advancing; that both parties were fighting, but they saw no knife in the hands of deceased, while some say they saw a knife in the hands of appellant; that after backing across the sidewalk deceased fled across the street, defendant following him to the edge of the sidewalk, when defendant turned and started to his hack; that after deceased got across the street he picked up a plank about 1x3, three feet long, and came back across the street, when the parties again started to fighting. Deceased struck appellant across the head with the plank, and appellant struck deceased with a knife;- the knife had a blade variously estimated from three to four inches in length. Deceased fell, and when examined he was found to have a number of wounds in his body. One witness says:

“There were three wounds in Mr. Jackson’s left side that penetrated the left lung, and there was a stab to the hollow on the right side and a stab through the arm, and the nerve of the left arm was cut in two. The three wounds on the left side penetrated the pleural cavity and collapsed the left lung. We couldn’t tell the depth of the wounds in the lung on account of the collapsed condition of the lung. What I mean by the lung’s being collapsed, the air was out, and it went down just like a football or anything with the air out. Mr. Jackson had a stab wound under the left arm, which wound penetrated the pleural cavity — the three wounds penetrated the cavity, while it seems that the wound under the arm was the most serious.”

One of these wounds slightly penetrated the covering of the heart. While deceased lived several days, it is made apparent these wounds caused his death.

Appellant and his son testify that on Sunday, while waiting at the hotel with their hacks, decased drove up and said, “I want to know why in the hell you tried to have me arrested at the depot the other day;” when appellant replied, “I did it because it is a violation of the law.” Other remarks ensued, when deceased called him a d-d son of a b-h, and struck appellant and continued to rain blows on him, throwing him back, when appellant’s son ran against deceased and knocked him back. Appellant contends that deceased had a knife, and when deceased was knocked by his son he (appellant) drew his knife, and they again began fighting, deceased backing at this time. Deceased then fled across the street, getting a plank and returned and renewed the difficulty, striking appellant on the head and arm, when appellant continued to strike him with his knife. The doctor who dressed appellant’s wounds says:

“I found on his left side of his head an abrasion — that is, a stroke or a blow on the-side of his head about 2% inches wide and about 3% inches long. The blow had been struck and was all raised up, swelled up, and spotted with blood underneath the skin, and there was a little cut upon the forehead and a cut about 1% inches long under the left eye and a cut on the inside of the left thumb, taking part of the nail, and the outside of the left thumb and a cut on the left hand, inside — a snag, deep snag, as if a nail had snagged it. * * * That was on the day this cutting of Mr. Jackson occurred. I measured the wound on Mr. Mansell’s head and it was 2% inches wide and 3% inches long, beginning about half an inch back of where the eyelashes extend and came back over the ear, very puffed and swelled and the blood spots under the skin. As to how heavy the lick or stroke was, I remarked at the time it was enough to fracture an ordinary man’s skull — I should judge it was a heavy stroke. The wound on the front of the head was small but bleeding freely — had him covered with blood — I should judge it was half an inch long. The wound under the left eye cut through the skin and into the muscles — -it was comparatively a shallow cut, but it was a raking cut. That wound was a little too large to have been done with the linger nail. His thumb nail was slit and a cut in the left thumb and ball of the trumb was a jag like it had been jagged with a nail, and in the left thumb was a lineal cut which X wouldn’t judge was over a quarter of an inch long, and it nicked the nail possibly half an inch; and the nail on the right hand was cut about’the same. He had an abrasion on the arm, as if a slanting blow had come down on his arm — an abrasion for several inches —the skin was peeled off on the outside of the arm for several inches, as if a sliding blow had struck him.”

This sufficiently states the case to discuss the various questions raised.

Appellant desired to prove that, when appellant’s wife was made aware of the difficulty, she said, “It was nothing more than I was expecting.” This was an expression of the wife after the difficulty, and could not and would not have any influence on appellant, and would tend to throw no light on the difficulty, and the court did not err in holding this expression of the wife inadmissible under the circumstances.

There are several bills objecting to the court permitting the deceased’s wife to testify that her husband left her no property, and after his death she ran a hotel in Mineral Wells to make a living. Before this testimony was admitted, appellant in cross-examination of Mrs. Jackson had proved by her that she ran this hotel after her husband’s death, and by his examination sought to leave the impression on the jury that her character was not above reproach. Under such circumstances, there was no error in the court permitting the state in redirect examination to show that she ran the hotel in order to earn a livelihood, and that it was necessary that she do so.

There was no error in permitting the officer who arrested appellant to state that, at appellant’s instance, he searched him and found no knife or weapon of any 'character on him. This was contemporaneous with his arrest.

As appellant introduced evidence to show that deceased in crossing the line at the depot to secure baggage had violated the law, and this was the reason for his reporting the matter to the officer, there was no error in permitting it to be shown he in fact had violated no ordinance.

Appellant had three witnesses testify that deceased refused to make a statement or dying declaration. After this testimony had been adduced by appellant, there was no error in the court permitting the county attorney to testify that deceased did not refuse, but said he at that time felt too weak, and asked the county attorney to come back later; nor in permitting Mrs. Drew to testify to a dying statement in which deceased stated : “Sister, I tried to get away.” It is made clear that deceased had no hope of recovery at the time this statement was made; that he was sane, and the statement was a voluntary one. Appellant, by attempting to prove that deceased had refused to make a statement, was endeavoring to create the impression on the jury that deceased recognized he was in the wrong, and for this reason was refusing to make a statement about the difficulty. •

Again, the physical condition of deceased was made an issue in the case. Appellant introduced witnesses, who testified that deceased would weigh 175 to 180 pounds; that he was an expert boxer; that he was well-muscled and solid, and a strong man. Under such circumstances, there was no error in permitting the state to show that he suffered from rheumatism, and had suffered from it since he was a child 11 years old; that it had affected his back, and he walked in a stooping position, carrying one of his hands on his back. Appellant was contending that he killed in self-defense, and the ability of deceased, under the circumstances, to inflict death or serious bodily injury was an issue in the case. It is true the appearances must be viewed as they appeared to defendant at the time, but it is shown that he knew deceased’s condition before and at the time of the difficulty. The court in approving the bill says:

“Approved with the qualification that the state’s testimony showed that deceased was a cripple afflicted with rheumatism that permanently impaired his strength and use of his arms, legs, and body. The defendant introduced testimony showing the deceased to be a strong and active man and a skilled boxer a few days before the homicide, and the court then permitted the state in rebuttal to show by the sister of deceased that the deceased’s affliction had existed from the time he was 11 years old, and had continued up to his death.”

As the court excluded the clothing when proper objection was made by defendant and before it was introduced in evidence, there is no need to discuss the bill complaining of this matter. However, unless it can be shown that the clothing is now virtually in the same condition it was at the time of the difficulty, on another trial it will not be displayed in front of the jury.

By one bill it is shown that some 4 or 5 days after tlie difficulty, and when the body of deceased was being shipped from Mineral Wells, appellant was at the depot talking and laughing to his relatives, standing in a few feet of the corpse. This may, and perhaps did, appear heartless to deceased’s relatives, yet it could not and would not be of any aid to the jury in determining the legitimate issues in the case; it may have had a tendency to prejudice the jury against appellant, and testimony as to his conduct on this occasion should not have been admitted.

We think the bill complaining of the 'refusal of the court to grant a continuance on account of the absence of the witness H. T. Eustace presents .an error that will necessite a reversal of the case. Attached to the motion for a new trial is an affidavit of this witness, made in Alabama, showing that he would testify that deceased began the difficulty by making the first remark, and that deceased struck the first blow, and, further, that the witness would testify that deceased was armed with a knife during the difficulty. This was a seriously contested issue on the trial — the state contending that deceased had no knife, and had made no effort to cut appellant; that, if he had anything in his hands, it was a metal comb which he carried in his pocket. Appellant and his son both testified that deceased was armed with a knife, and, if Eustace would swear that deceased was thus armed, it would have a strong tendency to cause the jury to believe that, if it was in fact a metal comb in deceased’s hands, it really appeared to appellant at the time to be a knife, and it is as the matter appeared to the defendant at the time that his acts must be judged. The testimony of this witness would support the testimony of appellant and his son directly and pertinently on the issue of self-defense, and we cannot say that it would not result in a different verdict. Of course, the testimony of the state would support a verdict of guilty, but in passing on whether or not a continuance should be granted, we look to see if he has been deprived of testimony material to his defense, and if he has used diligence to secure the testimony. The showing of diligence we think sufficient, and when, on motion for a new trial, appellant shows the witness would in fact testify as he contends, and the testimony is of a material character, that it is cumulative of his own testimony and that of his son, but appellant had no other witness not related to him who would so testify, we are inclined to the opinion a new trial should be granted.

The court did not err in refusing to give the charge wherein appellant requested the court to instruct the jury that:

“Even though defendant committed an assault with a specific intent to kill, but at the time of the commission thereof the defendant’s mind from an adequate cause, and the defendant was laboring under such a degree of anger, rage, resentment, or terror, such as rendered his mind incapable of cool reflection, you will find the defendant guilty of an aggravated assault.”

Under such circumstances, the appellant would be guilty of manslaughter, and not aggravated assault.

The judgment is reversed, and the cause remanded.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 182 S.W. — 72

      ®^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    SULLENGER v. STATE.
    (No. 3883.)
    (Court of Criminal Appeals of Texas.
    Jan. 19, 1916.
    On Motion for Rehearing, Feb. 23, 1916.)
    1. Criminal Law <^>814 — Total—Instruc-tion on Circumstantial Evidence — Necessity.
    Where defendant admits that he did the killing in a murder case, or the taking in theft, or that he did the act which constitutes the factum probandum, whatever be the offense charged, it is unnecessary to charge on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833.1839,1860,1865, 1883, 1890,1924,1979-1985,1987; Dec. Dig. @=814.]
    2. Criminal Law @=814 — Trial—Charge on Circumstantial Evidence — Necessity.
    In a prosecution for cattle theft, where the taking of a cow by defendant was shown directly, but circumstantial evidence was introduced to show the intent with which the taking was committed, a charge on circumstantial evidence was not required, since, where an act has been proved by direct evidence, such a charge is not requisite because the intent with which the act was committed is sought to he established by circumstances.
    [Ed, Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833,1839,1860,1865, 1883, 1890,1924,1979-1985,1987; Dec. Dig. @=814.]
    3. Criminal Law @=829 — Trial — Instruction-Repetition.
    In a prosecution for cattle theft, where the court properly submitted the defense of defendant’s claimed purchase of the cow from a third party, the refusal of the specific charge that, if defendant bought the cow, to acquit him was proper.
    [Ed. Note. — For other cases, see Criminal I/aw, Cent. Dig. § 2011; Dec. Dig. @==>829.]
    4. Darceny @=43 — Prosecution—Evidence.
    In a prosecution for cattle theft, where defendant claimed that he bought the black muley cow charged to have been stolen, testimony as to his taking and possession of a red cow was admissible.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 130, 133; Dec. Dig. @=43.]
    5. Animals @=10 — Prosecution — Evidence —Statute.
    Under Rev. St. art. 7160, as amended by Acts 33d Leg. c. 69 (Vex-non’s Sayles’ Ann. Oiv. St. 1914, art. 7160), providing that unrecorded brands shall not be recognized as evidence of the ownership of live stock, except in criminal cases, in a prosecution for larceny of a cow, testimony as to the bi’and on the stolen cow in defendant’s possession was admissible.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 8-12; Dec. Dig. @=10J
    0. Jury @=43 — Qualification—Knowledge of Language.
    A juror, who had lived in America only five years, could read, write, and understand English only a little, and did not understand all that was asked him touching his qualifications as a juror, and who would have to guess at what was said on trial, was not qualified to sit in a criminal ease.
    fl'd. Note. — For other cases, see Jury, Cent. Dig'. § 248; Dec. Dig. <@=>43.]
    On Motion for Rehearing.
    7. .Tuns <@==>85 — Qualifications of Juror— Discretion of Court.
    A large discretion is vested m the trial judge in passing upon the qualifications of a juror.
    [Ed. Note — For other cases, see Jury, Gent. Dig. § 405; Dee. Dig. <§=>85.]
    8. Criminal Law <@=>1152 — Review—Qualifications of Juror — Discretion of Court.
    Where a bill of exceptions clearly shows that a juror was disqualified and that defendant properly objected and preserved the question by proper bill, the Court of Criminal Appeals cannot hold that the trial judge properly exercised his discretion in holding the juror qualified.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 3053-8057; Dec. Dig. <§=> 1152.]
    9. Criminal Law <@=>1092 — Trial — Amendment of Bill of Exceptions.
    During the term in which conviction is had, upon proper motion and service thereof, the court, having the proceedings and judgment still in his control, can, if through mistake or otherwise a bill of exceptions is untruthful, or certifies to facts and matters which did not occur, upon proper notice to the interested, parties, make the matter appear of record as it occurred in fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. <@=>1092.]
    10. Criminal Law <@=>1092 — Appeal — Amendment of Bill of Exceptions Pending Rehearing — Statute.
    Under Code Cr. Proc. 1911, art. 916, providing that the effect of an appeal is to suspend and arrest all further proceedings in the trial co.urt until the judgment of the appellate court is received by the court from which the appeal was taken, the trial court could not, pending rehearing, on motion of the state, amend defendant’s bill of exceptions to overruling of his objection to a juror.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 283dr-2861, 2919; Dec. Dig. <@=>1092.]
    11. Criminal Law <@=>1092 — Trial—Amendment of Bills of Exceptions After Term —Fraud.
    Where bills of exceptions and statements of facts have been properly agreed to and approved and filed in the lower court, after term has expired they cannot be amended or attacked without showing fraud.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. <@=>1092.]
    Appeal from District Court, Randall County; I-Iugh L. Umphres, Judge.
    Rube Sullenger was convicted of cattle theft, and he appeals.
    Reversed and remanded.
    R. R. Hazlewood, of Amarillo, Frank Ford, of Decatur, and Yeale & Lumpkin, of Amarillo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for cattle theft, with the lowest punishment assessed.

In view of the disposition we shall make of this case, we see no necessity of making any statement of the testimony. We have carefully considered all of the special charges requested by appellant. Those presenting any proper charge were covered by the court’s charge. None of the others should have been given.

Mr. Branch, in his Criminal Law, § 203, so aptly lays down the rules which show when a charge on circumstantial evidence is unnecessary, we quote them with approval:

“If defendant admits that he did the killing in a murder case, or the taking in theft, or that ho did the act which constitutes the factum probandum, whatever be the offense charged, it is not necessary to charge on circumstantial evidence.”
“Where an act has been proved by direct evidence, a charge on circumstantial evidence is not required because the intent with which the act was committed is sought to be established by circumstances.”

• Mr. Branch cites many cases of this court, which are in point, establishing both these rules. We deem it unnecessary to copy them here, but cite the following, some of which he cites: Usher v. State, 47 Tex. Cr. R. 93, 81 S. W. 309; Huffman v. State, 28 Tex. App. 174, 12 S. W. 588; Flagg v. State, 51 Tex. Cr. R. 603, 103 S. W. 855; Houston v. State, 47 S. W. 468; Alexander v. State, 40 Tex. Cr. R. 407, 49 S. W. 229, 50 S. W. 716; Barnes v. State, 53 Tex. Cr. R. 629, 111 S. W. 943; Baxter v. State, 43 S. W. 87. A large number of additional cases could be collated, but we deem it unnecessary.

Several witnesses testified, in substance, that appellant admitted the taking of the cow with which he was charged by the indictment of stealing a black muley cow, the property of H. M. Jackson. His defense was that he bought the cow, and that his taking of her was under a claim of right by reason of his purchase. These questions were properly submitted in his favor by the court’s charge. The circumstantial and positive evidence was amply sufficient to sustain the verdict that appellant stole the cow, and was also amply sufficient to show that his claimed purchase was false, and ihat his claim that he took the cow under such claim was also false.

Paragraphs 5 and 6 of the court’s charge also covered appellant’s said defenses sufficiently, so that it was unnecessary to charge specifically that, if appellant bought the cow from one Smith, to acquit him. Under the testimony his defense of claimed purchase from Smith necessarily embraced his claimed possession by virtue of his claimed purchase.

Appellant has various bills to the testimony of several witnesses about his taking and possession, etc., of a red cow. This testimony was all admissible, because of his claimed defenses. And the court correctly ruled in every instance, as presented by his bills on that subject? Neither does any of his bills about Jackson’s brand and the testimony of the several witnesses on that subject show any error. This character of testimony is admissible, since the amendment of article 7160 of the Revised Statutes by the act of March 31, 1913, p. 129, the amendment to that article providing that it shall not apply in criminal cases. Neither does any of appellant’s bills to testimony that was offered present any error. They, are numerous. We have, considered them all, but think it unnecessary to discuss any of them in detail.

Appellant’s first bill of exception to the court’s refusal to sustain his objection to the juror Herman Meyers shows that said juror was a German, had lived in America only about five years, that he could read and write the English language a little bit only, and that he could only understand a little English, just enough to tell what people were talking about, and did not understand all that was asked him touching his qualifications-as a juror, and that, if he was taken on the jury, he could not understand all that was said, and would have to guess at a part of it from what he heard. The bill further shows that this juror was forced -upon appellant, over his objections after he had exhausted all of his peremptory challenges on other jurors more objectionable than he was. This question has been so thoroughly considered and discussed by the opinions of this court and of the Supreme Court when it had criminal jurisdiction that we deem it unnecessary to discuss it here. We merely cite the cases where the question has been discussed and decided. Lyles v. State, 41 Tex. 172, 19 Am. Rep. 38; Etheridge v. State, 8 Tex. App. 133; McCampbell v. State, 9 Tex. App. 124, 35 Am. Rep. 726; Nolen v. State, 9 Tex. App. 419; Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456. For this error alone it will be necessary to reverse and remand this cause.

Appellant’s bill challenging the juror Cur-rie presents no error.

Reversed and remanded.

On Motion for Rehearing.

The state urges that this court erred in holding that the juror Meyers was disqualified as shown by appellant’s bill No. 1, as held in the original opinion. We have again examined this question and the authorities applicable thereto, and are confirmed in our opinion that the holding of this court was correct.

The state contends, and we think properly, that a large discretion is vested in the trial judge in passing upon the qualification of a juror. While this is true, when an appellant’s bill, properly allowed and approved by the trial judge, clearly shows that a juror is disqualified, and the appellant made the proper objection and preserved the question by proper bill, then the trial judge could not be held to properly exercise his discretion in holding the juror qualified. If the law is that a juror is disqualified, this court could not sanction the holding of a trial court to the reverse, or in the very face, of the law. Counts v. State, 181 S. W. 723.

The state further seeks to have this court postpone action on its motion for a rehearing in order to enable it to make a motion in the trial court to, in effect, amend said bill of exceptions by now adding thereto all of the testimony of said juror on his voir dire examination, claiming that, if now permitted to so add to and amend said bill, the whole examination of said juror will show that the action of the court in holding him qualified was correct, and thereby prevent a reversal. The state does not contend that any fraud or bad faith on the part of the appellant or his attorney was practiced in procuring and the judge allowing and approving said bill. In fact, as we understand, the reverse of this is conceded. At least since the adoption of our Code of Criminal Procedure in 1856 our statute has been (article 916):

“The effect of an appeal is to suspend and arrest all further proceedings in the case in the court in which the conviction was had until the judgment of the appellate court is received by the court from which the appeal was taken”

—with certain provisos and exceptions since added, not applicable to this question. It has always been held by this court that this statute means what it says and says what it means. It is true that, during the term of court at which a conviction is had, upon the proper motion and service thereof, the court, having the proceedings and the judgment still in his control, can make the record and every part thereof—

“speak the truth; and if, through mistake or otherwise, a bill of exceptions is shown not to be truthful, or to certify facts and matters which did not occur, the court, upon proper notice to the interested parties, has authority to make the matter appear of record as it actually occurred.” Cain v. State, 42 Tex. Cr. R. 211, 59 S. W. 275.

But this must be while the trial court has jurisdiction and control over its orders and the papers in the cause. It may be that, even after the adjournment of court, upon proper motion and" notice, where a fraud has been perpetrated on the court, it would have power and authority to correct it, and this court might recognize such power and authority under such circumstances, but we are not called upon in this case to make any such-holding, because no such question arises here.

The state, in its motion, attaches the affidavit of the trial judge, in which he swears the juror Meyers did answer as shown in bill of exceptions No. 1, but he says all of his answers and the questions to him are not included in the bill. If that be true (and we have no question as to the truthfulness of the judge’s statement), it was his duty, before approving that bill, to include all tne questions and answers, and to so modify and qualify the bill as to make it give all of the facts; and, if he did not do so at the-proper time, this court cannot sanction such a practice as is asked by the state in this case of delaying a decision here to await the action of the lower court at another term to so amend the bill of exceptions, which was allowed and filed in time as authorized and required by law. We again will state we are not discussing a question where fraud and imposition is charged in procuring a bill. This court has always held that, after bills of exceptions and statements of facts have been properly agreed to and approved and filed in the lower court and the term has expired, they cannot be amended nor attacked without showing fraud. It is unnecessary to, collate the cases, but as to statement of facts, see some of the cases collated in Vernon’s C. C. P., in his notes on pages 811, 812. The same principle applies to bills of exceptions. See, also, Howard v. State, 178 S. W. 506; Bizzell v. State, 72 Tex. Cr. R. 442, 162 S. W. 865; Pye v. State, 154 S. W. 226; Merrell v. State, 70 S. W. 982; Lara v. State, 50 Tex. Cr. R. 163, 95 S. W. 1083; Rainey v. State, 20 Tex. App. 473; Lindley v. State, 11 Tex. App. 284.

The motion is overruled.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    HERRERA et al. v. MARQUEZ.
    (No. 521.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 27, 1916.)
    1. Sequestration @=316 — 'Verdict-Title.
    In a suit to recover 127 hides alleged to be of the value of $4.50 each or a total value of $571.50, in which plaintiff issued a writ of sequestration under which they were seized, and where .they were replevied by defendant, a verdict for plaintiff should have disposed of the issue of title, rather than finding for him in a sum certain.
    [Ed. Note. — For other cases, see Senuestration, Cent. Dig. §§ 33, 34; Dec. Dig. @=516.]
    2. Sequestration @=516 — Verdict — Value oe Property.
    In such suit, and in view of Rev. St. 1911, art. 7107, giving the defendants the right to return all of the hides in satisfaction of the judgment or part of them in satisfaction pro tanto, the verdict, if resolving the issue of title in favor of the plaintiff, should have found the value of each of the replevied hides.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 33, 34; Dec. Dig. @=>16.]
    3. Sequestration @=>16 — Measure oe Damages — Market Value.
    In a suit to recover hides, where plaintiff issued a writ of sequestration, and defendants replevied, the damages were to be determined by their market value at the time of trial, when the question arises in the original suit and under Rev. St. 1911, art. 7106, relating to the return of the bond and judgment thereon.
    [Ed. Note.- — For other eases, see Sequestration, Cent. Dig. §§ 33, 34; Dec. Dig. @=>16.]
    4. Sequestration @=>16 — Damages — Evidence.
    In such suit, where the only evidence of value was that of a deponent that the hides were of the market value of $5 each, but whose testimony did not show when they were of such value, there was no evidence before the jury by which they could correctly measure plaintiff’s damages, and a peremptory charge that the undisputed evidence showed the hides to be of a certain value was error.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 33, 34; Dec. Dig. @=>16.]
    5. Animals @=310 — Brands—Evidence.
    In such suit plaintiff’s brand, even if not properly recorded in the county, was admissible to prove the identity of the animals from which the hides were taken if the ownership of the animals with that brand was otherwise proven, and, if the brand was not recorded at all, it would be admissible as a fact tending to establish the identity of the animals from which the hides came.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 8-12; Dec. Dig. @=>10.]
    Appeal from Presidio County Court; H. H. Kilpatrick, Judge.
    Action by Rafael Marquez against D. Herrera and others, with writ of sequestration by plaintiff and replevy by defendants. Judgment for plaintiff against defendants, and the surety on their replevy bond, and they appeal.
    Reversed and remanded.
    C. E. Mead and K. C. Miller, both of Marfa, for appellants. Belcher & Sutton, of .Marfa, for appellee.
   HIGGINS, J.

Marquez brought this suit against D. Herrera and Theo. Ehrenberger to recover 127 hides, alleged to be of the value of $4.50 each, or a total value of $571.50. Judgment was prayed for the title and possession of said hides or the value thereof aforesaid. A writ of sequestration was issued under which the hides were seized. Thereafter same were replevied by defendants.

Upon trial, a verdict was returned as follows: “We, the jury, find for the plaintiff for the amount prayed for, $571.50.” Judgment was thereon rendered in plaintiff's' favor against defendants and the surety upon their replevy bond in the sum of $571.50.

By proper assignments, appellants question the sufficiency and correctness of the verdict and judgment herein. The verdict should have disposed of the issue of title, rather than finding in plaintiff’s favor for a sum certain.

If the issue of title was resolved in favor of plaintiff, the verdict in addition should have found the value of each of the replevied hides. The judgment should have shown such value as the defendants had the right to return all of the hides in satisfaction of the judgment or part of them in satisfaction thereof, pro tanto. R. S. art. 7107; Blakely v. Duncan, 4 Tex. 184; Cook v. Halsell, 65 Tex. 1; Avery & Sons v. Dickson, 49 S. W. 662; Ratliff v. Gordon, 149 S. W. 196; Bateman v. Hipp, 111 S. W. 973.

This is .always the case, unless it is shown the property has been disposed of by the parties who replevied it, or that for some other reason it cannot be produced. Herder v. Clothing Co., 37 S. W. 784; Pipkin v. Tinch, 97 S. W. 1077.

Error is assigned to that portion of the court’s charge upon the measure of damage. The measure of damage announced was the reasonable market value of the hides at the time they were taken. This was error. The value of property sequestered and retained by defendants under replevy bond should be determined by its market value at the time of trial when the question arises in the original suit and under the statute. R. S. art. 7106; Luedde v. Hooper, 95 Tex. 172, 66 S. W. 55; Talcott v. Rose, 64 S. W. 1009.

This portion of the charge also peremptorily instructed the jury that the undisputed evidence showed the hides to be of the value of $571.50. The only evidence of value called to our attention is that of G. A. Harvard who, by deposition, testified the hides were of the market value of $5 each. His testimony does not show at what date they were of this value, and hence there was no evidence before the jury by which, under the authorities above' noted, they could correctly measure plaintiff’s damage, if he were otherwise entitled to recover.

In view of a retrial, we deem it proper to say — with reference to the assignment complaining of the evidence offered of plaintiff’s brand — that such brand, even if not properly recorded in El Paso county, is admissible for the purpose of proving the identity of the animals from which the hides were taken, if the ownership of the animals with that brand boj otherwise proven by the testimony of plaintiff or in any other proper way. If not recorded at all, it would be admissible as a fact tending to establish the identity of the animals from which the hides came. Poage v. State, 43 Tex. 454; Gregory v. Nunn, 25 S. W. 1083; Lockwood v. State, 32 Tex. Cr. R. 137, 22 S. W. 413.

The fifth assignment questions the sufficiency of the evidence. In view of a retrial, we refrain from commenting upon the probative force of the evidence, and therefore do not pass upon this assignment.

Reversed and remanded.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    HAMLETT v. COATES.
    (No. 7426.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 18, 1915.
    Rehearing Denied Feb. 12, 1916.)
    1. Trespass to Try Title <©=>35 — Pleading Title.
    If either party in trespass to try title pleads specially his title, he must recover, if at all, on the title pleaded.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 50-52; Dec. <@=>35.]
    2. Trespass to Try Title <@=44^-Pleading Title — Direction of Verdict.
    In trespass to try title, where there was evidence supporting plaintiff’s claim that the renting to defendant was by the month, and defendant’s that it was by the year, and that she paid rent after the year’s expiration, the court properly declined to direct verdict for plaintiff, though a party in trespass to try titJ< pleading his own specially must recover on it, while defendant’s plea in reconvention relied on a rental contract for a year which had expired before suit.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent.. Dig. § 66; Dec. Dig. <@=344.]
    3. Landlord and Tenant <@=*22 — Verbal Contract to Extend Lease — Unilateral Character.
    Where land was rented verbally, and, after entry upon the premises by the tenant, the landlord stated that as long as the tenant paid her rent she could have the place, the contract was not unilateral.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 55-59; Dec. Dig. <@=22.]
    4. Frauds, Statute of <@=358 — Verbal Extension of Executed Lease.
    Such contract was not obnoxious to the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 90, 91; Dec. Dig. <@=>58. ]
    5. Sequestration <@=21 — Wrongful Sequestration-Damages.
    Where the business of a boarding house keeper was destroyed by a wrongful sequestration, she could recover for loss of profits, since the same damages are recoverable for the wrongful suing out of writs of sequestration and of attachment.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 50-54; Dec. Dig. <@=21.]
    6. Attachment <@=375 — Wrongful Attachment-Damages.
    The general rule that one injured by a wrongful attachment cannot recover for loss of business or future profits applies only where the measure of damages is the value of property taken, and not where the recovery is for detention of the property or interruption of its use.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1378-1385, 1387, 1393, 1394, 1398, • 1399; Dec. Dig. <@=375.]
    7. Damages _ <@=62 — Duty to Reduce.
    A boarding house keeper, against whom a writ of sequestration was wrongfully sued out, destroying her business, was under duty to use all reasonable means at her command to secure another place in which to conduct a boarding house and thereby mitigate her loss.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 119-131; Dee. Dig. <@=62.]
    8. Husband and Wife <@=270 — Community Proferty — Suit by Wife.
    A married woman cannot sue in her own name without joining her husband .to recover community property, excepting where she has been abandoned by the husband.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 968-971,. 973-984, 988; Dec. Dig. <@=270.]
    9. Husband and Wife <@=>239 — Action Against Wife — Judgment—Effect.
    Judgment in trespass to try title, taken against a wife, sued as a feme sole, who did not plead her coverture, in its operation and effect was the same as if rendered against a feme sole.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 855, 856, 860, 862, 983; Dec. Dig. <@=239.]
    10. Husband and Wife <@=230 — Action by Wife — Pleading Coverture in Defense— Necessity.
    In trespass to try title against a married woman sued as a feme sole, where her plea in reconvention did not disclose her coverture, plaintiff’s objection, that defendant, on account of coverture, could not sue for and recover the damages set up in the plea of reconventiom came too late, when first made in the motion for new trial, as it was plaintiff’s duty, if facts existed defeating defendant’s right to maintain her cross-action, to allege and prove them.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 804, 835, 840, 842; Dec. Dig. @=>230.-]
    11. Principal and Agent @=>159 — Tout of Agent — Malice.
    The owner of premises was not liable for exemplary damages on account of the malice of her agent in wrongfully suing out a writ of sequestration against her tenant, unless the evidence showed that she participated in the malice, or afterwards with knowledge of the facts ratified the act, since in such cases malice on the part of an agent is not imputable to the principal.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 599-612; Dec. Dig. @=> 159.]
    12. Sequestration @=>21 — Wrongful Sequestration — Inferring Malice.
    When a want of probable cause for the suing,out of a writ of sequestration is shown, malice may be inferred therefrom.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 50-54; Dec. Dig. @=>21.]
    13. Sequestration @=>21 — Wrongful Sequestration — ’ ‘Malice. ’ ’
    In suit for a wrongful sequestration, where the evidence shows want of probable cause for suing out the writ, yet shows honesty of purpose and no intention on the part of the suitor to injure or recklessly disregard the rights -of the party against whom the writ is issued, the conclusion that the writ was sued out maliciously is unwarranted, since “malice” is where the facts and circumstances show not only that the grounds upon which the writ issued were untrue and that there was no probable cause for believing them to be true, but evidence bad motives and such reckless disregard of the rights of the party against whom it is sued out as satisfies the mind that the unlawful act was willfully and purposely done to injure such party.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 50-54; Dec. Dig. @=>21.
    For other definitions, see Words and Phrases, First and Second Series, Malice.]
    14. Sequestration @=>21 — Wrongful Sequestration — Damages—Humiliation.
    In suit for a wrongful sequestration, the award, as actual damages, of $500 for humiliation and grief, could not stand, since the rule that physical and mental suffering may be presumed to follow as a material and necessary consequence upon a serious bodily injury, and damages therefor be recovered as actual damages, has never been extended to justify the recovery of actual damages for distress of mind, humiliation, or mortification of feelings, for a seizure of property under legal process, though injury to feelings caused by such a seizure, under some circumstances, may be taken into consideration in estimating exemplary damages.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 50-54; Dec. Dig. @=>21.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Trespass to try title by Mrs. M. E. Ham-lett against Mrs. M. B. Coates. From a judgment for plaintiff to recover possession of the property sued for, and, in accordance with the jury’s verdict agaiust her, for damages awarded defendant on her plea in re-convention, plaintiff appeals.
    Affirmed in part, and reversed and rendered in part.
    G. C. Groce, of Waxahaehie, for appellant. J. T. Spencer, of Waxahaehie, for appellee.
   TALBOT, J.

The appellant, Mrs. M. E. Hamlett, brought this suit against the appel-lee, Mrs. M. B. Coates, in the form of trespass to try title to recover possession of a house and lot in the town of Italy, Tex., and sued out a writ of sequestration. The affidavit for the issuance of the writ of sequestration was made by T. B. Hamlett, agent of tbe plaintiff, Mrs. Hamlett, and tbe ground alleged therefor is that the affiant fears the defendant, Mrs. Coates, will use her possession of the property in controversy to injure the same, or to convert to her own use the fruits or revenues produced by the same. The defendant answered by a general demurrer, and pleas of denial and not guilty. She also filed a plea in reconvention for damages, alleging, in substance, that she rented the property in controversy from plaintiff, through her agent, T. B. Hamlett, about April 30, 1912, for a term of one year, at $15 per month, and with the understanding and agreement at the lime of entering into such contract that if she paid her rent during such term, she might have the premises as long as she desired; that in pursuance of said agreement and understanding and with the consent of the plaintiff she held over the premises upon the terms of the prior rental contract and paid the rent up to the time she was dispossessed of the rented premises by tbe execution of the writ of sequestration herein; that said renewal contract began May 1, 1913, and would expire May 1, 1914, and that by the terms of said contract defendant was entitled to the possession of said premises during the whole of said time, but that plaintiff in violation of saidi contract, knowingly, willfully, and maliciously and without probable cause procured and caused tbe writ of sequestration herein sued out to be executed, and defendant and her family ejected from said premises, and her furniture, household goods, and wearing apparel piled in the street, whereby said property was damaged in the sum of $100. Defendant further alleged that at the time of the execution of said writ of sequestration she was engaged in the boarding house business and had a large number of boarders, who were paying her a total of $88 a week; that by reason of being dispossessed of the premises in question she was forced to discontinue her said business, whereby she was damaged in the sum of $1,000. Defendant further avers that by reason of the execution of the writ of sequestration “she was humiliated, aggrieved, distressed, and made to suffer in mind and body, which injured and impaired her health,” for which she had sustained the further damage in the sum of $2,500; that by reason of said writ of sequestration having been sued out, willfully, maliciously, and without probable cause she has been damaged in the further sum of $2,-500. Defendant prays that she recover of plaintiff as actual damages the sum of $3,-600, and as exemplary damages the sum of $2,500. A jury trial resulted in a verdict in favor of the defendant on her plea in re-convention for the sum of $1,940 apportioned as follows: Damages to furniture $20; damages for loss of business $420; humiliation and grief $500; exemplary damages $1,000. Judgment was entered that plaintiff recover possession of the property sued for and in accordance with the jury’s verdict against the plaintiff for the damages awarded, and she appealed.

The first assignment of error complains of the court’s refusal to give appellant’s special charge instructing the jury to return a verdict in her favor. The propositions advanced under this assignment are, in substance; (1) That while neither party in trespass to try title is required to plead his title specially, yet, if he does, he must recover, if at all, on the title pleaded, and that defendant having by her plea in reconvention specifically relied on an alleged rental contract for a year “with the further understanding and agreement at the time of entering into said contract that if defendant should pay her rent during said term, she might have the premises as long as she desired,” and the evidence failing to show any such agreement, but showing that the year for which the defendant had rented had expired before suit, and plaintiff’s ownership of the property being admitted, the jury should have been instructed to find for plaintiff; (2) that the proof failing to show any agreement extending beyond the year, but showing at most only a unilateral promise without consideration appellee did not sustain the issue tendered by her, and the jury should have been instructed to find for appellant; (3) that when there is a lease of lands for a yearly term at a fixed monthly rental, and the tenant holds over after the end of the term, the landlord has an election to dispossess him, or treat him as a tenant for a new term; that the election is with the landlord, and not with the tenant; and, rent being paid and received according to the terms of the expired lease, there is a presumption that the new holding is upon the terms of the expired contract; but this is only a presumption of fact, and may be rebutted by proof of a different state of facts, and in every case of holding over the nature of such holding, and the relations created thereby, are questions of fact, to be determined from all the circumstances.

It is unquestionably, true in our practice that if either party in an action of trespass to try title pleads specially his title he must recover, if at all, on the title pleaded, but we do not believe the rule under the ap-pellee’s pleadings should be applied in this case. That there was a rental contract between the appellant and appellee for the renting of the premises in controversy to begin April 30, 1912, is undisputed: The real questions at issue were whether the renting, under the terms of the contract, was by the month or by the year, and whether, if by the year, the appellant, without objection, permitted appellee to hold over after the expiration of the rental term and continued to receive the same rent for the use and occupancy of the premises. The question of title, within the meaning of the rule of practice referred to, was not involved. The appellee set up no such title, and in the trial apijellant’s title was practically admitted, but appellee asserted an extension of the rental period beyond the year, and her right to possession of the premises on the terms of the rental contract by a holding over without objection on the part of appellant, and acceptance by her of the same monthly rent provided for in said contract. In City of San Antonio v. French, 80 Tex. 575, 16 S. W. 440, 26 Am. St. Rep. 763, it is held that:

“The tenant who holds over after the end of the term under which he entered with consent of his landlord is deemed to be in possession upon the terms of his prior lease, upon the ground that the parties are presumed to have tacitly renewed the former agreement.”

The English doctrine, as stated by Mr. Smith on Landlord and Tenant, and quoted in the case of San Antonio v. French, supra, is as follows;

“But though at the end of the lease if the tenant holds over he holds as a tenant at sufferance, still if, when the period for the payment of the rent becomes due, he pay the landlord the rent reserved by the expired lease he becomes a tenant from year to year, the payment of such rent by him and the receipt of it by his landlord being considered indicative of their mutual intention to create a yearly tenancy.”

The parties in the case before us entered into a verbal contract for the renting of the property in controversy, and, while the evidence was sharply conflicting as to whether the renting was for a year or by the month, it was sufficient to warrant the conclusion that it was for a year, and that appellee continued in possession of the rented premises ¡after the expiration of her time with the tacit or implied consent of the appellant. And the testimony is undisputed that appellant accepted from appellee, for several months after the expiration of one year from the date of the rental contract, the same rent paid prior thereto, and made no demand, according to appellee’s testimony, for possession of the rented premises until about the time this suit was instituted. Appellant’s contention is that the renting was by the month, and that upon that theory alone the rent paid by appellee after the expiration of the year was accepted. On the other hand, the appellee contends that she had rented the premises for a year, and that without objection on the part of the appellant she paid the rent as she had formerly done. These respective contentions involved, under the evidence adduced, issues of fact for the determination of the jury, and the court properly declined to instruct the jury to return a verdict for the appellant. There was some testimony to the effect that subsequent to the making of the rental contract and the entry upon the rented premises by appellee, appellant said to appellee that as long as she paid her rent she could have the place,- but there is no testimony that at the time said contract was entered into it was agreed and understood between appellant and appellee that if appellee paid her rent during the term beginning April 30, 1912, and ending April 30, 1913, she might have the premises as long as she desired. The issues were substantially as we have stated, and no question as to the contract being unilateral or obnoxious to the statute of frauds arises.

It is next urged by appellant that the trial court erred in admitting evidence tending to show damage from loss of business by ap-pellee as a boarding house keeper, and in submitting as an element of damage, which might be recovered, loss of profits to her as a boarding house keeper, because such loss of profits were not the measure of her damages, in that it was not alleged that appellant knew or had reason to expect that such damages would accrue to appellee from being dispossessed of the property sued for, and because the evidence on these points was insufficient, too vague and uncertain to support a recovery for such damages; and, further, because it developed in the testimony that the defendant was a married woman at the time of the transaction, made the basis of this suit, and no facts were shown which would authorize her to maintain a suit for the recovery of such damages, as such damages, if recoverable at all, constituted a community claim of appellee and her husband, the right of action for which was in him and not in her.

We think the court did not err in admitting evidence to show that the appellee had suffered damage from loss of her business as a boarding house keeper, and in submitting to the jury as an element of her damages such loss of business and resultant loss of profits. Writs of sequestration and of attachment are regarded as standing on the same footing with respect to the rights of the defendants to recover damages for the wrongful suing out of them in this state (Harris v. Finberg, 46 Tex. 79), and the general rule is well established that in attachment cases loss of business, and future profits as a consequence thereof, is not an element of actual damages. It is recoverable under a claim for exemplary damages. Kirbs & Spies v. Provine, 78 Tex. 353, 14 S. W. 849. The rule, however, that future profits in suits for wrongful attachment and similar suits do not enter into the actual damages recoverable, applies only, it seems, in those eases in which the measure of damages is the value of the property taken. It does not apply where the recovery is not for the value of the property, but merely with reference to its detention or interruption of its use. Thus where the business of a ginner, in the ginning season, was interrupted by the seizure of an indispensable part of his machinery whereby his business was stopped or delayed for a time, it was held that he was entitled to recover for the profits lost through such interruption. Wilson v. Manning, 35 S. W. 1079. The appellee alleged and proved, in effect, that the rented premises seized and taken from her under and by virtue of the writ of sequestration sued out in this case, were secured and used not only as a home for herself and family, but for the purpose of conducting thereon a boarding house as a means of support. Her business was thereby destroyed, and the actual damages sought to be recovered in this action and awarded by the jury to her as a consequence thereof were the proximate and natural result of the wrongful act charged. Of course it devolved upon appellee, as in other cases of injury, to use all reasonable means at her command to secure another place in which to conduct her boarding house and thereby avoid or mitigate her loss, and this the record shows she did.

The contention that because it was developed on the trial that appellee was a married woman when this suit was instituted and no facts appeared which would authorize her to sue and recover the damages claimed, her husband alone could maintain an action therefor, will also be overruled. That a married woman cannot maintain a suit in her own name, her husband not being a party, to recover community property, except where she has been abandoned by the husband, is thoroughly established by the decisions of this state. The appellee testified on cross-examination by appellant:

“I don’t know where my husband is now. We are not living together, and were not when this suit was instituted, and have not been living together- since. I have never requested him to join me in this suit. He does not know anything about it one way or the other.”

It may be conceded that this testimony, which is all that was offered on the subject, fails to show such an abandonment. of the appellee by her husband as authorized her to maintain a suit for a recovery of the damages sued for in this action, and yet we think appellant is in no position to urge her incapacity to do so. Appellee is sued by appellant as a feme sole, and nowhere in the record does it appear that her coverture was unknown to appellant at the time the suit was brought. The appellee did not plead her coverture, and the judgment taken against her for the title and possession of the house and lot sued for by appellant, in its operation and effect, is the same as if rendered against a feme sole. Focke v. Sterling, 18 Tex. Civ. App. 8, 44 S. W. 611. The appellee contends that inasmuch as her husband was not made a party defendant herein, and the suit prosecuted against her alone, she not only was authorized to defend the action brought against her, but also to sue for and recover the damages by reason of the wrongful suing out of the sequestration therein. This seems fair and reasonable, but we do not find it necessary to decide that question. In the case of Caldwell v. Brown, 43 Tex. 216, it is held that one sued as a feme sole, who is at the time married, but who appears and answers without pleading her coverture, cannot avail herself of the fact that she was a feme covert when the same is for the first time alleged in the assignments of error. Phelps v. Brackett, 24 Tex. 236. In Margaret Hab v. Johnston & Co., 1 White & W. Civ. Cas. Ct. App. 336, § 624, it is held that an objection to a judgment that it was improperly rendered against a married woman, her husband not being joined in the suit, comes too late when made for the first time on'motion in arrest of judgment. And in Rosenbaum v. Harloe, 1 White & W. Civ. Cas. Ct. App. 489, § 849, in which the wife sued alone, it is held that if facts exist which will defeat the right of the wife to sue alone, but such facts do not appear upon the face of the petition, they must be pleaded and proven; that the burden is upon the defendant to make good the plea. In the ease at bar the appellee in her cross-action or plea in reconvention to recover the damages alleged to have been sustained by the execution of the writ of sequestration sued out by appellant occupied the position of plaintiff, and her coverture did not appear upon the face of her pleadings, and it devolved upon appellant, if facts existed which would have defeated her right to maintain said cross-action, to allege and prove them. So it not appearing by pleading or proof that appellant was not aware of the coverture of the'appellee until the fact was disclosed by the evidence in the trial of the case, objection that she was not authorized to sue for and recover the damages set up in her plea of intervention came too late when made for the first time in the motion for a new trial filed in the district court, and now urged in this court as ground for reversal of that court’s judgment.

The next contention is that the trial court erred in submitting to the jury an issue of exemplary damages. It is claimed that the record in this case not only shows no basis whatever for a recovery of exemplary damages, but shows beyond question to any reasonable mind that the action was instituted in good faith and without malice; and furthermore that it appears that the writ of sequestration was sued out by an agent, and not by the plaintiff, and there was neither allegation nor proof that would make the plaintiff responsible for the malice of such agent, even had there been such malice. This contention, we think, should be sustained. The statutory affidavit for the issuance of the writ of sequestration was made by T. B. Hamlett as agent of appellee and said writ otherwise sued out by him. If in suing out the writ T. B. Hamlett was actuated by malice, he is responsible for his wrongful acts; “but his malice will not be imputed by presumption to his principals, while his bad judgment in wrongfully suing out the writ would be.” Wallace v. Finberg, 46 Tex. 35. If, therefore, it should be conceded that the sequestration was sued out maliciously and without probable cause by the agent, Hamlett, still appellant would not be liable for exemplary damages caused by the malice of her agent, unless the evidence showed that she had knowledge of, and participated in, the malice, or afterwards ratified the malicious act. This is clearly the law of this state in such cases. Wallace v. Finberg, 46 Tex. 35; Hays v. Railroad Co., 46 Tex. 272; Willis & Bro. v. McNeill, 57 Tex. 465. As stated above, the ratification must have been with knowledge of the existence of the agent’s malice. For a principal who was not himself actuated by malice is not liable in exemplary damages for the wrongful act of his agent in suing out and causing to be levied a writ of sequestration maliciously and without probable cause, even though he ratified and approved the same by accepting the benefits thereof, unless at the time of such ratification and approval he had knowledge of such facts as showed the wrongful acts of the agent. Tynburg v. Cohen, 67 Tex. 220, 2 S. W. 734. Our conclusion is, that even if T. B. Hamlett, the agent of appellant, was actuated by malice in suing out the sequestration in this case, and the same was sued out without probable cause, the evidence is insufficient to warrant a finding that appellant had knowledge of, or participated in, his malice, or afterwards with knowledge of his malice ratified and adopted his malicious acts. But we think it may be gravely doubted that appellant’s agent was actuated by malice or evil motive in causing the sequestration to be* issued and levied. In saying this we are not unmindful of the decisions in this state which hold that when a want of probable cause is shown malice may be inferred therefrom. It does not follow from this, however, that in the absence of a showing of probable cause for suing out the writ malice must necessarily be inferred. Lister v. Campbell, 46 S. W. 876. Malice is where the facts and circumstances show not only that the grounds upon which the writ of sequestration issued were untrue and that there was no probable cause for believing them to be true, but evidences bad motives or such reckless disregard of the rights of the party against whom it is sued out as satisfies the mind that the unlawful act was willfully and purposely done to the injury of such party. Hence, although the evidencé may show a want of prohable cause, yet if it shows honesty of purpose and no intention on the part of the person suing out the writ to injure or to recklessly disregard the rights of the party against whom the writ was issued, the conclusion that the writ was sued out maliciously would not be warranted. So strongly are we of the opinion that the facts and circumstances shown in evidence in this case establish the absence of malice on the part of appellant’s agent in suing out the writ of sequestration in question that we would probably so hold if it were necessary to a reversal of the judgment for exemplary damages, yet for the clearer reason that the evidence wholly.fails to justify a finding that the appellant participated in the malice of her agent, Hamlett, if indeed he was actuated by malice in suing out the writ of sequestration or that she afterwards, with knowledge of this malice, approved and ratified it, we hold exemplary damages should not have been allowed.

Appellant’s next proposition is that the court erred in submitting, as elements of actual damage, humiliation, grief, distress, or mental suffering on the part of appellee from being dispossessed of the premises in question, when such damages, if recoverable at all, could be recovered only in this character of case, as exemplary damages, and the record fails to show any right to recover exemplary damages. The record shows that the jury awarded the appellee as actual damages for “humiliation and grief” $500, and that judgment therefor was rendered by the court. This was error and the proposition of appellant must be sustained. It is well settled in this state that physical and mental suffering may be presumed to follow as a material and necessary consequence upon a serious bodily injury, and be recovered as actual damages; but this rule has never been carried to the extent, so far as we are aware, of holding that the seizure under legal process of real or personal property, even though such property be exempt from forced sale, will necessarily cause the owner distress of mind, humiliation, or mortification of feelings. On the contrary, it has been expressly held by our appellate courts that injury to feelings, or mental suffering caused by such seizure, is not recoverable as actual damages, though it may, under some circumstances, be taken into consideration in estimating exemplary damages. Trawick v. Martin-Brown Co., 79 Tex. 460, 14 S. W. 564; Ainsa et al. v. Moses et al., 100 S. W. 791; Evans Co. v. Kingsbury, 25 S. W. 729; Landes v. Eichelberger, 2 Willson Civ. Cas. Ct. App. §§ 133, 134. In Trawick v. Martin-Brown Co., supra, the Supreme Court, in holding that the defendant therein, who had reconvened for actual and exemplary damages for the alleged wrongful suing out of an attachment, was not entitled to recover for injury to his feelings, said:

“It is too plain for argument that this does not belong to either of the classes of cases in which compensation has been allowed for mental suffering.”

We have said that exemplary damages were not recoverable under the facts of this case, and in no event then were damages for “humiliation and grief” caused the appellee by the issuance and execution of the sequestration complained of an element of appel-lee’s damages.

The judgment of the court below awarding appellee actual damages in the sum of $440 for injury to her furniture and for “loss of business” will be affirmed, and the judgment awarding appellee actual damages in the sum of $500 for “humiliation and grief,” and in awarding her $1,000 as exemplary damages, will be reversed, and judgment here rendered in favor of appellant as to those items of damage.

Affirmed in part; reversed and rendered in part.
      <@=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    STANDEFER v. MILLER.
    (No. 909.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 26, 1916.)
    1. Deeds <©=>120 — Construction — Estate Granted.
    Every part of a deed must be given effect, if possible; and, when all of the parts are harmonized, the largest estate that its terms will permit will be conferred upon the grantee.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 375-393, 401, 407-412, 416-454; Dee. Dig. <©=>120.]
    2. Deeds <©=>95 — Construction—Ambiguity.
    Where the language of a deed cannot be harmonized, from which an ambiguity arises, so that the instrument is susceptible of two constructions, the interpretation most favorable to the grantee will be adopted.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 238, 241-254; Dec. Dig. <@=>95.]
    3. Deeds <©=>115 — Construction—Rejection oe False Matter.
    Where the description of the property in a deed contains false matter, without which the description would be sufficient to identify the property conveyed, such false matter will be rejected and effect given to what remains.
    [Ed. Note. — For other eases, see Deeds, Cent. Dig. § 325 ; Dec. Dig. <©=>115.]
    4. Deeds <©=>114 — Description—Control by Recital oe Quantity.
    Mention of the acreage conveyed by a deed describing the land specifically by metes and bounds does not control as to the property conveyed, since calls for quantity are generally regarded as descriptive, and will be resorted to only in the absence of monuments of courses and distances to identify the land.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 316-322, 326-329, 388; Dec. Dig. <©=> 114.]
    5. Deeds <©=>114 — Construction.
    Where a deed, following the field notes calling for the length of the lines east and west and for the north and south boundary lines of the section of which the land conveyed was a part, the amount conveyed lying between the designated boundaries, recited that the intention of the parties was “to convey said amount of land,” such recital did not refer alone to the quantity of the land conveyed, first mentioned in the deed.
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. §§ 816-322, 826-329, 388; Dec. Dig. <§=> 114.]
    6. Deeds <§=>115 — Construction — Inconsistency.
    Where there was an inconsistency m a deed, in that the boundaries of the land included a greater acreage than the deed recited was intended to be conveyed, the trial court, having found the fact, could treat the statement of the quantity as false; the description being sufficient without it.
    LEd. Note. — Eor other cases, see Deeds, Cent. Dig. § 325; Dec. Dig. <§=wll5.]
    7. Evidence <§=>461 — Parol Evidence Affecting Writing.
    Where the general description of a deed recited an amount of land intended to be conveyed less than the specific boundaries given therein included, parol evidence was not admissible to alter the calls given in the description of the land to include only the recited amount, although it is admissible to explain a latent ambiguity.
    [Ed. Note. — For other cases, see Evidence, Gent. Dig. §§ 2129-2133; Dec. Dig. <S=>461.]
    8. Evidence <§=>461 — Parol Evidence — Mistake in Calls of Deed.
    Where the calls of a deed were made by mistake, so that it conveyed too great an acreage, correction of tlio instrument under the rules of pleading in such cases is the proper remedy, and not the introduction of parol evidence as to the correct calls in an action to recover part of the land conveyed.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2129-2133; Dee. Dig. <§=>461.1
    9. Deeds <@=>38 — Invalidity — Patent Ambiguity.
    Where the ambiguity in a deed as to the land conveyed is patent, and so inconsistent and contradictory that the deed is inoperative, no land passes by it, unless the deed is corrected to conform to the actual agreement of the parties.
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. §§ 65-79; Dec. Dig. <§=>38.]
    10. Deeds <®=>114^-Consteuotion.
    Where a general description in a deed of the acreage intended to be conveyed is inconsistent with the particular locative calls identifying the land, such deed should be construed most favorably to the grantee.
    [Ed. Note. — For other eases, see Deeds, Cent. Dig. §§ 316-322, 326-329, 388; Dec. Dig. <§=> 114.]
    Appeal from District Court, Lubbock County ; W. R. Spencer, Judge.
    Action by J. H. Standefer against W. S. Miller. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Ferguson & Puckett, of Lubbock, for appellant. W. F. Schenck, of Lubbock, for appel-lee.
   HUFF, C. J.

The appellant, Standefer, brought this action against the appellee, Miller, to recover about 16 acres of land. He alleged thá,t he owns all of section 112 in block 20, except 240 acres off of the west end of the section, and that appellee owns the 240 acres. About January 4, 1906, appellant sold and conveyed to J. F. Robinson 240 acres of the land, to be taken from the west end of the section; that it was stipulated in the deed that it- was agreed that it should convey 240 acres off the west end of the survey, so that in no event would the purchaser obtain either more or less than the 240 acres by reason of any change of the boundaries of the section, making it either wider or narrower than it was then estimated. It is alleged also that appellee had both actual and constructive notice of the agreement; also that the section is in fact 1,488 varas wide, and that the 240 acres extends east from the northwest corner of the survey 907 varas; that is, the 240 acres is 907 varas, and extends entirely across the west end, and that the east line is parallel to the west line; that appellee, without right, has placed his east line east of the correct location so as to make the portion claimed by him 256 acres, 16 acres in excess of the amount to which he was entitled, and he has taken possession thereof, asserting title thereto. The prayer is that appellant have judgment, and that his line, with appellee’s east line, be established at a point 907 varas 89° 37' east from the northwest corner of the section; thence south to the south line of the section, which is 1,488 varas. The appellee answered by general and special exceptions, general and special denial, not guilty, and set up that he is the owner of the land sought to be recovered under a regular chain of transfers from the state and from the appellant; and he prayed to have the land decreed to him, and that he be quieted in his title. The trial court instructed a verdict for the appellee, in accordance with which judgment was rendered for the appellee as prayed, giving therein the field notes as given in the patent to the land issued to appellee as assignee of appellant The field notes and description of the land in the deed from Standefer to J. F. Robinson, is as follows:

“240 acres of land off of the west end of section 112, abstract No. 1115, in block 20, in Lubbock county, located about 11 miles S. 23' east of the county seat and more particularly described as follows: Beginning at a stake and earth mound on S. line of Ben Ficklin I a Mfg. Co. survey No. 77 and 379, varas east from the S. W. corner of said sur. and at the most easterly northeast cor. of J. L. Obannon survey No. 104 and the N. W. corner of said survey No. 112, thence east along S. line of sur. No. 77, 967 varas to a point. Thence south 1432 varas to a point in the S. line of said survey 112; thence west 967 varas to S. W. corner of said Sur. No. 112; thence north along W. line of said survey No. 112 to the place of beginning. The intention of this deed being to convey said amount of land off of the west side of said survey No. 112. Said survey 112 block 20 above described was awarded by the commissioner of the General Land Office of the state of Texas, to J. H. Standefer.”

The clause, “the intention of this deed being to convey said amount of land off of the west side of said survey No. 112,” is not included in the description in the deed from Robinson to Miller.

Appellant presents three assignments of error: (1) That the court erred in excluding the evidence offered by appellant to show the intention of the parties to the above deed, dated January 4, 1906, and to identify the land intended to be conveyed by the deed; (2) that it was error to direct a verdict for appellee, thereby placing a construction on the deed in violation of its express terms; (3) that the court erred in refusing appellant’s charge to find for him because the deed conveys only 240 acres, which the deed shows was the expressed intention of the parties, and that it is admitted that appellee claims 255 acres, and by reason of the ambiguity caused by changing the boundaries of the land conveyed. The evidence offered by appellant and rejected was to the effect that when the deed was made by appellant to Robinson, the land was not surveyed and the line and corners to section 112 established. At that time there had been two or three 'Surveys of the adjoining surveys, and none regarded as established; that the appellant made an agreement to sell Robinson 240 acres, with no boundaries agreed upon. The description was not discussed until they went to write the deed. The appellant testified:

“I told Robinson the land might widen or be wider when the lines were established and he said, ‘Yes, and it might be narrower,’ and I said I wanted to put in the deed so that if it widened, I would get my quantity of land and he would get-240 acres of land.”

The testimony of W. R. Standefer was offered, to the effect that he had surveyed the land and that he told Miller that the field notes in his deed were not correct, and that the land was wider than it was supposed to be when the deed to Robinson was made. Miller said he had bought 240 acres of land, and at that time did not claim any more. The northwest corner of section 112 was at the trial established 55 or 60 varas north of where it was supposed to be when the deed was made. J. J. Dillard, who wrote the deed, says it was his understanding there was to be 240 aeres, no more and no less; that he made the calculation himself so as to get the number of acres; that there was some difference as to where the survey was on the ground, and, being in doubt as to that, he wrote in the deed it was to be 240 acres. The appellee objected to the above testimony, because the statements made were not carried into the deed; that the suit was not brought to reform the deed; that the deed itself is not ambiguous and the evidence would tend to contradict the deed and contradict the field notes thereof; and that the evidence was irrelevant and immaterial. The court thereupon excluded the evidence.

It will be noted the deed calls for the northwest corner and the southwest corner of section 112, for the west line of the land conveyed; that for its south and north line it calls for the adjoining surveys to section 112. The distance from the north line of the section to the south line called for is 1,432 varas; for its east line it called to run with the north and south boundaries of the section 967 varas east from the northwest, and from the southwest corners of the section. It appears from the patent introduced in evidence that the land was patented to appellee, and that the east line of the land so patented is 1,488.4 varas, and the west line is 1,484.6 varas in length. The field notes in the deed definitely fix and locate the land. The calls for the corners of section 112 on the west will carry the boundaries of the land to those points. The north and south lines must follow the adjoining surveys called for the distance given in the deed. There is no ambiguity in the field notes: The land actually conveyed, can be readily located by them. It is contended, however, that the recitals, “240 acres of land off of the west end of Sec. 112,” and, “the intention of this deed being to convey said amount of land off of the west side of said survey No. 112,” render it certain that only 240 acres were conveyed and no more, or, if not, it is an ambiguity which will admit parol testimony. It will be seen by the petition appellant sought to shorten the length of the north and south boundary lines 60 varas, or instead of running them 967 varas, called for in the field notes, seek to have them run only 907 varas. He seeks this, we presume, on the ground that 240 acres was conveyed off of the west end, and because the section is wider than thought at the time of making the deed and those lines should be shortened to conform to the survey as later ascertained. To give 240 acres, either the north and the south lines or the east and the west lines must be shortened. The course and distance called for must be disregarded on one or the other of the lines if appellant is to prevail; and appellant has selected the north and south boundary lines for that purpose. Judge Brown, in Cartwright v. Trueblood, 90 Tex. 535, 39 S. W. 930, gives some of the rules which must govern in the construction of the deed, as follows:

“Every part of the deed must be given effect if it can be done; and, when-all of the parts are harmonized, the largest estate that its terms will permit of will be conferred upon the grantee. Hancock v. Butler, 21 Tex. 816. If the language cannot be harmonized, from which an ambiguity arises in the deed, so that it is susceptible of two constructions, that interpretation will be adopted which is most favorable to the grantee. Dev. Deeds, § 848. If there be that in the description of the property conveyed which is false, without which the description would be sufficient to identify the subject-matter of the deed, the false part of the description will be rejected, and effect given to that which remains. Arambula v. Sullivan [80 Tex. 615] 16 S. W. 436.”

In the case of Cullers v. Platt, 16 S. W. on page 1005, 81 Tex. on page 264, it is said:

“Where a grantor conveys, specifically by metes and bounds, so there can be no controversy about what land is included and really conveyed, a general description as of all of a certain tract conveyed to him by another person, or, as in this ease, all of a survey except a tract belonging to another person, cannot control; for there is a specific * * * description, about which there can be no mistake, and no necessity for invoking the aid of the general description. * * * A general description may be looked to in aid of a particular description that is defective or doubtful, but not to control or override a particular description about which there can be no doubt. There can be no doubt about what land Purinton conveyed to Collins, whatever he may have intended to convey, and it is entirely unnecessary to look to the general inference that it was all the balance of the Tyson survey, which might be true or not true without affecting the parcels really conveyed. It was supposed at the time that the tracts conveyed did comprise the balance of the survey, but it subsequently developed that the Tyson survey overran in quantity, and that the recital was in point of fact not true.” Davis v. George, 104 Tex. 107, 134 S. W. 326; Boggess v. Allen, 56 S. W. 195; Wadsworth v. Vineyard, 131 S. W. 1174, 1175.

Where a deed describes land by metes and bounds, the mention of the quantity conveyed will be treated as a mere matter of description, and will not have controlling effect. Dalton v. Rust, 22 Tex. 134; Hatch v. Garza, 22 Tex. 176; Railway Co. v. Richards, 11 Civ. App. 95, 32 S. W. 96-100; Leon v. Dunlap, 4 Civ. App. 315, 23 S. W. 475; Jordan v. Young, 56 S. W. 762-764; Ridgell v. Atherton, 107 S. W. 129. Calls for quantity are generally regarded as descriptive, and will be resorted to in the absence of monuments or course and distance to identify the land. Welder v. Hunt, 34 Tex. 44, 45.

The contention of appellant is that the recital that the intention was “to convey said amount of land” refers alone to 240 acres. The recitation follows the field notes, which call for the length of the lines east and west, and for the north and south boundary lines of the section. The amount conveyed lay between the designated boundaries which were thereinabove set out by the field notes. It does not follow as a necessary sequence that “amount” refers alone to the quantity, 240 acres, first mentioned in the deed.

The trial court was authorized. to adopt that construction most favorable to the grantee in the deed. If he found within the designated boundaries there was more than 240 acres, he could treat the statement of the quantity as false, as without it the description of the land was sufficient to identify the land. He could reject the quantity called for. The appellant in this case contends that, there being an ambiguity in the deed, parol evidence was admissible to show the true intention of the parties. If the parol evidence offered had been admitted in the case, it would have contradicted the call for the lines running east and west, and shortened them 60 varas, or it would have contradicted the calls for the northwest or southwest corners, and the adjoining surveys, and the calls for the north and south lines of section 112. In other words, it would have reconstructed the deed so that It should read to begin at the northwest corner of the section ; thence south with its west line to the southwest corner thereof; thence east a sufficient number of varas to make 240 acres, no more and no less.

Appellant cites us to the case of Sloan v. King, 33 Civ. App. 537, 77 S. W. 48. It is substantially held in that case that parol evidence is not admissible to alter the calls given in the description of the land in the deed, but may be admitted to explain the land by such call, explain discrepancies' from their application to the land, etc. In other words, this would be admissible to explain a latent ambiguity. If the calls as made in the deed were made by mistake, then a correction of the deed, under the rules of pleading, in such cases, should have been sought. This is clearly pointed out by Judge Fisher in the above case. If the ambiguity is patent and so inconsistent and contradictory that the deed would be inoperative, then no land passed by it (Linney v. Wood, 66 Tex. 22, 17 S. W. 245), unless the deed was corrected to conform to the actual agreement of the parties; but, where, a general description is given which is inconsistent with the particular locative calls which will identify the land, then the rule of construction should be adopted which will be most favorable to the grantee.

We believe the trial court ruled correctly in this case, and the judgment will be affirmed.
      <©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes