author: PLEASANTS, O. J.

text:
    SANDMEYER et al. v. DOLIJSI et al.
    (No. 7385.)
    (Court of Civil Appeals of Texas. Galveston.
    March 22, 1918.
    Rehearing Denied May 2, 1918.)
    1. Evidence <&wkey;353(3) — Recitals in Void Judgment and Deed.
    Though because of lack of power of the probate court to decree specific performance of a contract to convey land, its order that D.’s administrator make title to land. to O., and the administrator’s deed in compliance therewith, are void, the recitals therein that D. held the title in trust for O., as shown by a certain instrument executed by D., are admissible as circumstances tending to prove that D. acquired the title for O., and held it in trust for him, and by an instrument in writing, which had . been lost, acknowledged the beneficial title to be in O.
    2. Evidence >§==186(2) — Lost Paper— Secondary Evidence.
    A paper being lost so that it could be proved by parol, a written statement of its contents, made at time of its examination by witness, which he could swear was correct, was admissible.
    3. Evidence <&wkey;353(3) — Recitals in Ancient Instruments.
    Recitals in ancient instruments: Petition of O. to court for D.’s administrator to make deed to O., and deed of O. to O., that D. held the title in trust for O. and C. — are, in action involving title, not objectionable as self-serving declarations, hearsay, and immaterial.
    4. Infants <&wkey;24 — Adverse Possession — Running of Statute.
    Where adverse possession commenced in the lifetime of the owner, minority of his heirs does not affect the bar or interrupt running of the statute.
    5. Adverse Possession >@=3101 — Possession of One of Two Conveyed Tracts.
    Where deed conveys two separate tracts, one farm land, the other woodland, actual possession by the grantee of the farm land only is not sufficient to continue the grantor’s adverse possession as to the woodland.
    Appeal from District Court, Fort Bend County; Sami. J. Styles, Judge.
    Action by J. E. Sandmeyer and others against Prank Dolijsi and others. Prom an adverse judgment, plaintiffs appeal.
    Affirmed.
    Carothers & Brown and G. P. Dougherty, all of Houston, for appellants. C. G. Krue-ger, of Bellville; D. R. Peareson, of Richmond, and Lane, Wolters & Storey, of Houston, for appellees.
   PLEASANTS, O. J.

This is an action of trespass to try title brought by appellants, heirs of E. J. Sandmeyer, deceased, against Frank Dolijsi and .62 other named defendants, appellees herein, to recover title and possession of a tract of 3,928 acres of land on the Jeremiah Scanlan O’Connor grant in Ft. Bend county, being all of said grant except a tract of 500 acres described in the petition.

In addition to the necessary allegations in a suit of trespass to try title, plaintiffs’' petition alleges that they have title to this land under a chain of title emanating from Thomas Davis, and further alleges that the defendants also claim title to the land in-controversy by chain of title from Thomas Davis.

Defendants replied to plaintiffs’ petition, and disclaimed as to all of the land except the specific tract claimed by each defendant, and as to these specific tracts each defendant pleaded the general denial, and not guilty. All of the defendants further specially pleaded that one J. W. Collins acquired by two certain instruments the title to this land from one Walter C. White, and that on January 29, 1838, the said John W. Collins executed and delivered to George Opdyke, George Carrico, and Andrew Carrico, a firm •known as Opdyke, Carrico & Co., his instrument in writing 'conveying to them, either severally or jointly, all his right, title, and interest in and to the said land; that said instrument was lost, and ’defendants, after diligent search, were unable to find it, and notified plaintiffs to produce the same upon the trial, or secondary evidence would be introduced to prove its contents; that defendants have a regular chain of title from George Opdyke, George Carrico, and Andrew Carrico, conveying all of the interest acquired by them in said land; that thereafter, for the use and benefit of the said Collins and his assigns, the said Davis applied to the probate court of Brazoria county, Tex., and obtained from said court an order, directing the administrator of said estate to execute deed to the said Davis for said land, and that by this proceeding whatever title the said Davis acquired was acquired for the use and benefit of the then holder of the Collins title to said land. Defendants further alleged that thereafter, on June 7, 1838, the said Davis executed and delivered to the said Opdyke, Carrico & Co. one or more instruments acknowledging that he held the title to said land in his name, asi agent for the said Opdyke, Carrico & Co.; that they were the owners of said land, and he gave them his bond in the sum of $15,000 to secure the said firm in the ownership of said land, and to secure them in the faithful performance of his duties as agent, and to convey to them the title to said land; that the said George Opdyke, who had then acquired all of the title of George and Andrew Carri-co, applied to the probate court of Ft. Bend county, Tex., on May 20, 1842, for an order, directing the administrator of the estate of Thomas Davis, deceased, to convey to him the said land, alleging that said Davis held the land for Opdyke, Carrico & Co., and that he, George Opdyke, was the owner of said land; that the probate court in May, 1842, ordered the executor of Thomas Davis, deceased, to convey to George Opdyke the land in suit, reciting that it appeared from the instrument executed by Thomas Davis on-June 7, 1838, that Opdyke was the owner of the land, and that thereafter, in obedience to said judgment, the executor executed and delivered deed to Opdyke for the land.

The defendant Prank Patek pleaded res adjudicata as to the land claimed hy him, alleging a prior valid judgment of the district court of Pt. Bend county, Tex., in his favor for the land described in his answer, and against Jeremiah Scanlan O’Connor, E. J. Sandmeyer, J. W. Collins, and Walter C. White, and other defendants, and the unknown heirs of each of said defendants.

The defendants also pleaded other matters respecting the title, but, in view of the conclusions of fact and of law hereafter set out, this court deems it unnecessary to make special mention of such additional pleadings. Defendants also pleaded the statutes of limitation of three, five, and' ten years, and pleaded improvements in good faith.

By supplemental petition plaintiffs alleged the minority of the plaintiffs, and that defendant John Moser was not a resident citizen of the state of Texas during the time which he claimed to be the owner of the tracts claimed by him in his answer.

The trial in the court below without a jury resulted in a judgment in favor of defendants. The trial court filed the following findings of fact:

“The land in suit, which is situated in Pt. Bend county on left margin of Bernard river, was granted by the Mexican government to Jeremiah Scanlan O’Connor on the 9th day of April, 1831, by instrument containing the following description: ‘Situated on the left margin of the eastern branch of the creek called San Bernardo, and known as league Nd. 6; from a landmark set on said margin of the creek, and serving as the upper corner of the league surveyed and numbered 5, from which an elm marked AB bears north 65 deg. west 6 varas distant, and another elm marked X bears south, a line was run east 5220 vrs. to a mound of earth in the prairie; thence north 3900 varas to another mound of earth; thence west 8080 varas to the creek at a landmark from which a wateroak marked B bears north 5 east 5 varas distant, and another marked A bears north 60 east 10 vrs. distant; thence following the meanders of said San Bernardo down to the place of beginning, and comprising one league of land.’
“(3) William Ryon was appointed administrator be bonis non upon the estate of Thomas Davis, deceased, at the November .term, 1852, by the probate court of Pt. Bend county, Tex., and qualified as such on November 27, 1852, by filing oath and bond. He returned an inventory of said estate on the 29th day of November, 1852.
“(4) On the 30th day of December, 1856, the said Wm. Ryon applied to said court for an order to sell the land in suit, which order was made by said court at its December term, 1856. The report of sale by said administrator was made and confirmed by the court on the 24th day of February, 1857, directing deed to be made to the purchaser, C. C. Herbert, who bid therefor the sum of $25, whenever he complied with the terms of purchase. These orders are regular, and sufficiently describe the land in suit. On May 25, 1857, the said administrator de bonis non, pursuant to said orders, executed and delivered to O. 0. Herbert his deed describing said land, which deed recited the payment of the $25, the bid Sor said land.
“(5) At its October term, 1867, the county court of Colorado county, Tex., in the estate of C. C. Herbert, appointed ■ Stephen Herbert administrator of said estate, and he duly qualified as such.
“(6) On May 22, 1877,' the county court of Colorado county, Tex., in the succession of C. C. Herbert, deceased, ordered said administrator to sell at public auction, in Colorado county, Tex., all of the right, title, claim, and interest of C. C. Herbert, deceased, and his estate in and to the following property, to wit: A league of land situated in the county of Pt. Bend, granted to Jeremiah Scanlan O’Connor.
“(7) On July 16, 1877, the said court confirmed a sale by said administrator to E. J, Sandmeyer, and said order contained the following description, to wit: ‘AH the right, claim, and interest of C. C. Herbert, deceased, and his estate in and to the following lands: League of land situated in Port Bend county, Texas, granted to Scanlan O’Connor, bought by E. J. Sandmeyer for $50.00.’ Neither an application for sale nor a report of sale were shown in evidence.
“(8) On July 17, 1877, said administrator of the estate of C. C. Herbert executed and delivered deed to E. J. Sandmeyer, containing the following- description: ‘All the right, title, claim and interest of O. C. Herbert, and of his estate, in and to the lands described in said order of confirmation.’ Said deed purported to recite the said order, and in said recital gave the following description: ‘League of land situated in the county of Port Bend, Texas, granted to Scanlan O’Connor, bought by E. J. Sandmeyer for $50.00.’
“(9) E. J. Sandmeyer married in 1881, and died October 13, 1895, leaving surviving him as. his only descendants the following named children, who are plaintiffs herein, to wit: J. P. Sandmeyer, who was born September 4, 1882; E. J. Sandmeyer, who was born December 13, 1884; Noll Sandmeyer Allen, who was born October 13, 1886; Genevieve Sand-meyer Montgomery, who was born January 16, 1839; Loraine Patton, who was born September 8, 1891; and Ida V. Sandmeyer, who was born November 12, 1894. The wife of the said E. J. Sandmeyer died January 5, 1895. The plaintiffs are all the heirs of E. J. Sandmeyer.
“(10) No evidence was shown connecting Thomas Davis or anyone else with the original grantee, Jeremiah Scanlan O’Connor.
“(11) On November 22, 1834, W. C. White executed to J. W. Collins before William Boswell, a notary public at New Orleans, an instrument the material parts of which are as follows: ‘Walter Caldwell White, a citizen of the state of Coahuila and Texas, United States of Mexico, who declared & acknowledged that he is justly and truely indebted unto John William Collins, a citizen of the - United States of America, residing in the city of New Orleans, state of Louisiana, in the full sum of thirty-seven thousand, four hundred and sixty-eight dollars, and eighty-one cents, lawful money of the United States of America, for the payment of which sum he has subscribed three several promissory notes, made to the order of John W. Collins, each for the sum of twelve thousand, four hundred and eighty-nine dollars and sixty cents, and one-third of a cent, all dated this day, and payable respectively at one, two and three years with interest thereon at and after the rate of six per centum per annum, from the day of their, falling due until paid.’ ‘And in order to secure the payment of said promissory notes and all interest which shall or may accrue thereon at the rate aforesaid, he, the said Walter C. White, does, for himself and for his heirs, specially mortgage and hypothecate unto the said John W. Collins present as aforesaid, and accepting his heirs and assigns the following described property, to wit: (1) One tract of land situate, lying and being on the loft bank of the river Main Bernard measuring one league, containing about four thousand, four hundred and forty-four acres, and designated as number six.’
“(12) On the same date, and at the same time, and as a part of the same transaction, the said Walter C. White and J. W. Collins before the same notary executed an instrument, the material parts of which arc as follows: ‘ * * * Mr. John William Collins, of this city, who declared that whereas by act passed before the undersigned notary on the date hereof, Mr. Walter Caldwell White, a citizen of the state of Coahuila and Texas, in'"the United States of Mexico, granted unto him, the said appearer, a mortgage on two certain tracts of land, more particularly described in said mortgage (and to which reference is hereby expressly made), to secure the payment of three several promissory notes, each for the sum. of twelve thousand, four hundred and eighty-nine dollars, and sixty cents, and .one-third of a cent, all dated this day, and payable respectively at one, two and three years, with interest thereon at and after the rate of six per centum per annum from the date of their respectively falling due until paid, which notes have been identified with this act, as well as with the said act of mortgage. And whereas the said John W. Collins declared that being perfectly satisfied with the security in and by the mortgage release, discharge and renounce all claims on, or against the said White personally as drawer of said notes, or from the payment of the same or any part thereof, a reserving only of all right of recourse on the said lands by virtue of the afore-recited mortgage. Therefore, be it known that the said John W. Collins and Walter C. White have covenanted and agreed to and with each other, that whenever the said White shall make a title of said lands to the person or persons the said John W. Collins shall designate (he or they being citizens of the United States of Mexico), that then, in such case and event, he, the said John W. Collins, shall and will deliver up to the said White all and singular the three afore-recited , promissory notes duly canceled and acquitted, and that he, the said White shall be forever released from all claims or demands which he, the said Collins', over had by reason of said mortgage or promissory notes, and in the meantime, he, the said Collins, binds him-solf to keep said notes in his possession, and will not transfer, assign or discount the same, but will always have them under his control, to deliver up at a moment’s warning whenever the said White shall make the transfer of said lands as afore recited.’
“(13) The instruments described in paragraphs X and XI hereof were parts of the same transaction, and are taken as one instrument.
“(14) On the 29th day of January, 1838, the said John W. Collins, by an instrument which was lost and not recorded, conveyed to Andrew Carrico, George Carrico, and George Opdyke all of the interest in the land suit acquired by him.
“(15) On the same date as the conveyance of his instrument to Opdyke, Carrico & Co., mentioned in the next preceding paragraph, to wit, January 29, 1838, the said John W. Collins executed before the said Boswell to the said Thomas Davis a power of attorney, the material parts of which are as follows: ‘By the act of procuration be it known that this day before me, William Boswell, a notary public in and for this city of New Orleans, duly commissioned and sworn, personally came and appeared Mr. John William Collins, of this city, who declared that whereas by act passed before the undersigned notary on the twenty-second day of November, eighteen hundred & thirty-four, Mr. Walter Caldwell White, of Texas, granted a mortgage in favor of this appearer on 1. One tract of land situated on the left bank of the River Main Bernard, measuring one league, containing four thousand, four hundred and forty-four acres, & designated by the number six. * * * To secure the payment of thirty-seven thousand, four hundred & sixty-eight dollars & eighty-one cents, for which he, the said White, subscribed throe several promissory notes, to the order of the said John W. ■Collins, each for the sum of twelve thousand, four hundred & eighty-nine dollars and sixty cents, and one-third of a cent, dated the twenty-second day of November, eighteen hundred and thirty, and payable respectively at one, two and three years, with interest thereon at and after the rate of six per centum per annum, from the day of their falling due until paid. By an act passed before the undersigned notary on the same day, the said Walter C. White bound himself to sell and convey the said lands to any person or persons that the said Collins shall designate, by returning unto him the three promissory notes above described duly canceled. Now, therefore, in conformity with the said act of mortgage and agreement, he, the said John W. Collins, does hereby designate Mr. Thomas Davis, a citizen of the Republic of Texas, as the person in whose name the transfer of said property is to be made, and for the purpose he, the said John W. Collins, does hereby appoint and in his place and stead put the said .Thomas Davis to be his true & lawful attorney, granting unto him full power for him & in his name to ask, demand, sue and obtain of and from the testamentary executor or executors of said Walter White or of and from whomsoever else the same doth or may concern, a title in his name, or in the name of any person which he may designate, and upon obtaining promissory notes to the person who shall execute the same; to appear before all courts of law or equity, there to do & prosecute as occasion shall require, to compound and agree for the same by arbitration or otherwise as the said attorney shall think fit; * * * also, with power of substitution and revocation, the said constituent agreeing to ratify and confirm whatsoever the said attorney shall lawfully do by virtue.’
“(16) Davis did not acquire from Collins any real interest or title to the White notes or said land. Whatever transfer, if any, was made to him of said notes or said land was made for the purpose of enabling him to procure the White title to said land as agent and trustee for Opdyke, Carrico & Co., and for their use and benefit, and not for his individual use and benefit.
“(17) Acting under the said power of attorney to him from John W. Collins, and in behalf of the assignee of the said Collins, to wit, Opdyke, Carrico & Co., the said Thos. Davis, for the purpose of acquiring the title to the land in suit for the use and benefit of said Opdyke, Carrico & Co., and with the intention of holding the title thereto in trust for the said Opdyke, Carrico & Co., applied to the probate court of Brazoria county, Tex., for an order of said court directing the administrator of Walter C. White to execute to said Davis, as agent and trustee for said Opdyke, Carrico & Co., a deed to said land. Prior to the 4th day of June, 1838, the said court ordered the administrator of the estate of Walter C. White to execute to Thos. Davis full and complete title of all the right, title, and interest which the said Walter C. White had in the land in suit, but no deed from the said administrator was shown.
“(18) I find as a fact that thereafter, on June 7, 1838, the said Thos. Davis, supposing that he had by said probate proceedings in the White estate in the Brazoria county court acquired ’ the title to said land, executed and delivered to Opdyke, Carrico & Co. one or more instruments in writing of date June 7, 1838, in which he acknowledged that he held the land in suit in trust and as agent of the said land, and in which instrument or instruments he gave his bond in the sum of $15,000 to secure the said Opdyke, Carrico & Co. in tho faithful performance of his duties as agent, and obligated himself, his heirs and executors, to convey said land to the said Opdyke, Carrico & Co., or to whomsoever they might direct. I further find that the instrument or instruments were not a mortgage, but were a written declaration of trust, as above set forth. I find that said instrument or instruments of date June 7, 1838, are lost, and that proper predicate has been laid for the proof of its or their execution and contents by circumstantial evidence. ,,
“(19) I further find as a fact that whatever title the said Thos. Davis acquired in said land was acquired- in trust, and as agent for Opdyke, Carrico & Co., an<J that whatever title he held at the time of his’death was held in trust and as agent for Opdyke, Carrico & Co., and that the real title to said land at that time was held by Opdyke, Carrico & Co.
“(20) On March 4, 1840, George Carrico, one of the members of the firm of Opdyke, Carrico. & Co., conveyed to George Opdyke all of his interest in the land in suit and White notes, and on March 7, 1840, Andrew Carrico, the other member of said firm, conveyed to said George Opdyke all of his interest in said land and said White notes. The said firm was composed of three parties, George Carrico, Andrew Car-rico, and. George Opdyke.
“(21) On May 20, 1842, the said George Op-dyke applied to the county court of Ft. Bend county, Tex., alleging, among other things, that the said Davis, at the time of his death, held, as agent for Andrew Carrico, George Carrico, and George Opdyke, the title to the land in suit; that he had acquired the interest of said Car-rico, and prayed the court to order Aldridge, the executor of said Davis, to make full, and complete title to said lands to said petitioner.
“(22) At the May term, 1842, of said court, a decree was entered, ordering William B. Ald-ridge, as executor of the succession of Thos. Davis, deceased, he having been previously by said court appointed executor of the will .and estate of Thos. Davis, deceased, and letters as such had issued to him, to convey unto George Opdyke the land in suit, and reciting that by an instrument signed by the said Thos. Davis, on the 7th day of June, 1838, it appeared that the said Carrico and Opdyke were the owners of said land. In pursuance to said order, the. said Aldridge did on September 15, 1846, execute and deliver a deed to tho said George Op-dyke conveying the land in suit.
“(23) By various conveyances, the defendants have acquired all the title of George Op-dyke in and to the various tracts of land claimed by them in their respective answers, the same awarded to them respectively by judgment herein shown.
“(24) The plaintiffs did not connect their claim of title to said land with the sovereignty of the soil.
“(25) The only title to said land which was ever acquired by the said Thos. Davis was whatever title he acquired under and by virtue of the said probate proceedings in the estate of Walter C. White, in Brazoria county, and whatever title he did acquire from any and all sources was acquired in trust and for the benefit of the said Opdyke, Carrico & Co., and not for his individual use and benefit.
“(26) The plaintiffs show no title in themselves or of and from either John W. Collins or Walter C. White, and did not show that Thos. Davis acquired any title.
“(27) The evidence shows that the plaintiffs claimed that Thos. Davis acquired title to said land by and through the said probate proceedings in the estate of Walter C. White in the probate court of Brazoria county, Tex.
“(28) Thos. Davis did not in fact by the said Brazoria county probate proceedings in estate of Walter C. White, deceased., or in any other way, acquire any title to said land.
“(29) I find as facts that Walter C. White did, on November 22, 1834, obligate and bind himself by written instrument duly executed and delivered, to .convey to said John W. Collins, or whomsoever he should designate, the said J. S. O’Connor league of land in Ft. Bend county, and that said Collins obligated himself to surrender up said notes whenever said White so conveyed said land.
“(30) I further find as a fact that John W. Collins acquired all the title of White to said land.
“(31) R. A. Harvin, by mesne conveyances duly recorded in Ft. Bend county, Tex., acquired the title of George Opdyke to all land in suit except the 500 acres known as the Hackworth tract, among which was a deed dated January 1, 1887, filed September ,19, 1887, from the Texas Land & Investment Company to R. A. Harvin. This deed was duly recorded in deed records of Ft. Bend county, Tex., on September 19, 1887. Under his deed, w^hich accurately described said land R. A. Harvin held peaceable, actual, exclusive, adverse possession of all the land so conveyed to him, cultivating, using, and enjoying the same from January 1, 1887, until December 2, 1890.
“(32) On December 2, 1890 Francis Smith acquired the title of the said Harvin in the said 3,928 acres of said land by deed which was on the same date duly recorded in the deed records of Ft. Bend county, Tex. The said Francis Smith, by tenants, held peaceable, actual, adverse, and exclusive possession of said land from the date of said deed, cultivating, using and enjoying the same from said date until all of the land was sold out by him to various defendants, or the parties under whom they claim, as hereafter shown, he surrendering possession to the various purchasers as they purchased the respective tracts purchased.
“(33) I find as fact that, by reason of said actual adverse possession by Harvin and Smith, Francis Smith became vested with title to all of said 3,928 acres except such portions thereof as were sold by him prior to January 1, 1897. Inasmuch as there is continuity of possession and privity of title between said Smith and the various purchasers and subpurchasers, and between each of them, I do not deem it necessary to make findings as to exact dates of various sales, further than is shown by other findings.”
“(60) At the time possession was taken by each subpurchaser under Francis Smith of the respective tracts of land shown above, the said land, while the said title thereto was in Francis Smith, was in actual possession- of Francis Smith by and through tenants who were using and enjoying and cultivating said land, all of which was then under fence of substantial character and sufficiently maintained to give notice of the claim thereto by the said Smith, and rendered the possession thereof in behalf of the said Smith exclusive and adverse. The various purchasers went into possession of their respective purchases immediately after the respective dates thereof and there was no break between their possession and that of Francis Smith aforesaid. The timber lots claimed by said defendants respectively as shown above, were not actually fenced, but all of same, except timber lot No. 9, were described in and conveyed by the same deeds conveying to the respective defendants the respective prairie lots as herein shown. Each of said defendants procured from said timber lots wood for use for domestic purposes at their homes on their respective prairie lots, except, however, that Frank Hrnicko did fence substantially all of timber lot No. 23, as stated ‘in the finding in reference to the land claimed by him.”

There is no evidence that plaintiffs or any of those under whom they claim were ever in possession of the land, and no assertion or act of ownership adverse to the Opdyke title by plaintiffs’ predecessors in title was shown other than the sales by the administrator de bonis non of Davis’ estate and the sale by the administrator of O. O. Herbert to E. J. Sandmeyer in 1877 for $50. Notwithstanding the fact that he lived near the land for IS years after his purchase, and necessarily knew of the possession and claim of defendants under the Opdyke title, E. J. Sandmeyer is not shown to have asserted any claim or exercised any acts of ownership of the land. His estate was administered in the probate court of Colorado county, and this land was not inventoried by his administrator as a part of the estate. All of the parties to the transactions concerning this land between Oollins, Opdyke, and Davis, are dead.

We agree with the trial judge that the facts before stated, taken together, are amply sufficient to sustain, if they do not compel, the finding that the title acquired by Davis to the land was acquired and held in trust by him for Opdyke. This being true, the conveyance by the administrator of Davis to Herbert did not pass title to the land, and plaintiffs, who claim under said conveyance, have no title. The probative force of the recitals contained in the several instruments before set out cannot be questioned, but appellants contend that the recitals in said instruments were not admissible in evidence.

The first four assignments presented in appellants’ brief complain of the ruling of the court in admitting in evidence the judgment of the probate court of Pt. Bend county rendered in May, 1842, ordering W. B. Aldridge, administrator of the estate of Thomas Davis, deceased, to make title to the land in controversy to George Opdyke, and the deed from said administrator to George Opdyke executed in compliance with said judgment.

It is contended under these assignments that the order and deed above mentioned were void because the probate court at the time the order was made had no jurisdiction to decree specific performance of a contract to convey land, and, said order and deed being void, the recitals therein contained were not admissible in 'evidence for any purpose. It is true that at the time this judgment was rendered the probate courts of this state had no power or jurisdiction to decree specific performance of a contract to convey land, and the judgment and deed objected to were void as a conveyance of the title, and the recitals in the order and deed, that Davis held title to the land in trust for George Opdyke and George and Andrew Carrico, as shown by an instrument executed by Thomas Davis on June 7, 1838, have not the conclm sive and binding force of findings of fact in a judgment within the power or jurisdiction of the court to render. Houston v. Killough, 80 Tex. 296, 16 S. W. 56; Cope v. Blount, 38 Tex. Civ. App. 516, 91 S. W. 615. It does not follow, however, that the recitals in this order and deed are. not admissible as circumstances tending to prove the allegations of defendants’ answer, that Davis acquired the title to the land for George Opdyke and George and Andrew Carrico, and held it in trust for their use and benefit, and that by an instrument in writing, which had been lost, acknowledged that the superior beneficial title to the land was in said parties.

In the case of Cope v. Blount, supra, in which application for writ of error was refused by the Supreme Court, this court held, while the deed made by an administrator under an order of a probate court made in 1840, decreeing specific performance of a contract to convey land, was void as a conveyance of the title held by the decedent, and that the recitals in such deed were not binding on the heirs, such recitals were admissible as circumstances to show the existence of the contract and the payment by the grantee in the deed to the deceased of the purchase price of the land, and such recitals, considered in connection with other facts and circumstances, all the parties to the transaction being dead, were sufficient to establish the fact that the grantee in the deed held the superior title to the land.

In the case of Schultz v. Lumber Co., 36 Tex. Civ. App. 448, 82 S. W. 353, it was held, under authority of McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1098, that a void record of a deed was admissible in evidence as a circumstance tending to show the exe-' cution of a lost deed.

We think the recitals in the order and deed admitted in this case were clearly admissible for the purposes stated.

Complaint is also made under appropriate assignments of error of the Introduction in evidence of the petition of Opdyke filed in the probate court, asking for the order directing the administrator to make the deed of conveyance, and reciting the fact that Davis held the title in trust, and also of the deeds from George and Andrew -Carrico to George Opdyke, reciting the same facts, and the instruments executed by and between W. C. White and J. W. Collins, and the power of attorney from Collins to Davis, shown in findings of fact before set out. The ground of objection to the copy of the petition that it was only a copy of a copy is not tenable. The original petition was lost, and the only evidence of its contents was the testimony of the witness Matthaei to the effect that several years prior to the trial he had abstracted the filed papers in the Davis estate and had found a petition by Opdyke, asking for an order directing the administrator to make the deed, and had taken a pencil memorandum of the substance of the petition. This memorandum was produced, and the witness permitted to testify that it was a true statement of the substance of the petition. The paper being lost, its contents could be proven by parol, and tbe written statements of its contents made at tbe time of tbe examination wbicb be could swear was correct was admissible. Southwestern Surety Co. v. Owens, 198 S. W. 662. Tbe objection that tbe deeds were not admissible as certified copies of records of tbe state of Louisiana cannot be sustained, because they were not only certified, but examined, copies of tbe record, shown by the testimony of tbe keeper of the records to be true and correct copies.

The contention that tbe recitals, in these instruments were inadmissible because they were self-serving declarations, hearsay, and immaterial is answered by a number of tbe decisions of our courts, among wbicb we cite tbe following: Cope v. Blount, 38 Tex. Civ. App. 516, 91 S. W. 615; Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033; Frugia v. Trueheart, 106 S. W. 737; Texas Tram Co. v. Givin, 52 S. W. 112; Condit v. Galveston City Co., 186 S. W. 395.

These conclusions require an affirmance of tbe judgment of the trial court, and render a discussion of tbe numerous assignments of error presented in appellants’ brief, attacking tbe ruling and findings of tbe trial court upon tbe issues of limitation raised by the 60-odd defendants unnecessary. We think, however, there is suffiicient evidence to sustain tbe finding of tbe trial court that the possession of tbe whole of tbe land by Harvin and Smith was exclusive and continuous from September, 1887, until tbe dates of tbe respective sales by Smith to the defendants, and that each of tbe purchasers from Smith who took actual possession of tbe land purchased by him at tbe time of bis ■purchase has acquired title by limitation. In tbe ease of these purchasers tbe limitation began prior to the death of E. J. Sandmeyer, and tbe minority of tbe plaintiffs does not affect the bar or interrupt the running of tbe statute. ¡Most of these purchasers bought two tracts of land, one tract in the prairie for farming purposes and a smaller tract in tbe timber for tbe purpose of obtaining firewood and timber necessary in tbe improvement of tbe farm. Tbe tracts were not contiguous, most of them being separated by several miles. We cannot agree with tbe learned trial judge that tbe possession of the farm tract was sufficient possession under tbe deed conveying tbe two tracts to bold tbe wood tract by limitation, no actual possession being taken by him of that tract. It follows from this that tbe timber tracts which were sold by Smith before bis limitation title of ten years bad accrued, and wbicb have not been in actual possession of the purchaser, cannot be held under tbe claim of title by limitation. Smith’s possession ceased when be conveyed, and, tbe purchaser not having taken possession, the running of tbe statute was interrupted, and no title by limitation accrued.

It would greatly extend this opinion to discuss tbe evidence upon tbe question of possession of tbe several tracts, and, believing that tbe evidence overwhelmingly sustains the conclusion that tbe plaintiffs ha.ve no title to the land, we deem it unnecessary to determine in detail tbe question of limitation as to each of the numerous small tracts of land.

We have considered all of appellants’ assignments of error, and none of them, in our opinion, point out any error which requires or would authorize a reversal of tbe judgment.

Tbe judgment is affirmed.

Affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, O. J.

license: Public Domain

text:
    McCAMANT v. McCAMANT.
    (No. 8856.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 20, 1918.)
    1. Limitation of Actions <&wkey;127(4) — Liability or Indorsee — Amendment or Pleading.
    A petition setting up payee’s execution of notes and liability of indorser, but not excusing failure to sue maker before second court term after maturity, required by Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 579, stops the running of the statute of limitations, and an amended petition supplying the allegations does not constitute a new cause of action.
    2. Bills and Notes <&wkey;>408 — Liability or Indorsee — Remedy or Holder — Statutes.
    The remedy of the holder of a promissory note under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 579, to secure and fix the liability of an indorser by suit against maker before the first term of court to which it can be brought after accrual of cause or before the second term by excusing delay is a cumulative remedy, and is not exclusive of the right to fix liability of in-dorser by pi’otest and notice under the law merchant.
    3. Bills and Notes t&wkey;299 — Liability oe Indorsee — Insolvency oe Maker as Excusing Delayed Suit.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 579, requiring suit against maker at first or second term after accrual of cause of action to fix liability of indorser, the insolvency of the maker excuses compliance with the statute.
    4. Bills and Notes <&wkey;299 — Liability oe Indorsee — Excusing Delayed Suit — Waiver oe Indorsee.
    Under such statute indorser may waive holder’s duty to sue.
    Appeal from Tarrant County Court; Geo. E. Hosey, Judge.
    Suit by R. L. McCamant against Minnie May McCamant. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 187 S. W. 1096.
    Geo. N. Beakley, of El Paso, and Mercer, Wall & Rouer, of Ft. Worth, for appellant. McCart, Curtis & McCart, of Ft. Worth, for appellee.
   CONNER, O. J.

As originally instituted, this suit was to enforce tbe collection of a certain note for $700 executed by J. W. and J. H. Woodward, dated January 14, 1910, due August 1, 1910, bearing interest at tbe rate of 8 per cent, from date, and providing 10 per cent, attorney’s fees.. Tbe note was payable to Minnie May McCamant, community administratrix, and after maturity was so indorsed by ber and delivered to appellee for a valuable consideration. As instituted, tbe suit was against tbe makers of tbe note and against Minnie May McCamant as in-dorser. At a succeeding term of tbe court judgment was rendered in favor of tbe plaintiff against tbe Woodwards and against Minnie May McCamant, but thereafter on appeal to this court tbe judgment was set aside, and tbe cause remanded, on tbe ground that tbe plaintiff had not alleged in his petition either compliance with or an excuse for noncompliance with article 579, Vernon’s Sayles’ Tex. Civ. Stats., which, so far as applicable here, reads:

“The holder of any * * * promissory note, assignable or negotiable by law, may secure and fix the liability of any drawer or indorser of such bill of exchange, and every indorser _ of such promissory note, without protest or notice, by instituting suit against the acceptor of such bill of exchange, or against the maker of such promissory note, before the first term of the district or county court to which suit can be brought, after the right of action shall accrue; or by instituting suit before the second term of said court, after the right of action shall accrue, and showing good cause why suit was not instituted before the first term next after the right of action accrued.”

In an opinion by Mr. Justice Buck this court beld that no cause of action as against Minnie May McCamant was presented in tbe plaintiff’s petition, and bence that tbe petition was bad on general demurrer, inasmuch as it appeared therefrom that suit bad not been instituted either at tbe first or second term of tbe court after tbe right of action against Minnie May McCamant accrued as required by the statute. See McCamant v. McCamant, 187 S. W. 1096.

After tbe cause was remanded in accordance with that opinion tbe plaintiff, R. L. McCamant, filed an amended petition in which be alleged substantially as before, and further, by way of excuse for not having sooner filed suit:

That J. W. and J. H. Woodward and their estates were continuously, from August 1, 1910, when the note declared upon matured, until the time the suit was filed on October 80, 1911, actually and notoriously insolvent, and also that Minnie May McCamant “requested plaintiff at about the time he acquired said note from her in writing, acting by her attorney, M. W. Stanton, or Stanton & Weeks, not to file suit to enforce the collection thereof until instructed so to do by her or her attorneys, agreeing in consideration of plaintiff not filing said suit that she, said defendant, would satisfy said note in full, as soon as she could sell certain real estate that she was then endeavoring to sell; that, if suit was filed, it would interfere with the selling of said real estate, and therefore she did not desire it to be filed; that, relying on said agreement, plaintiff deferred filing this suit until about the time said suit was filed,” etc.

To this amended petition tbe appellant, among other- things, pleaded tbe statute of limitation of four years, and tbe case proceeded to trial before a jury. Tbe case was submitted upon special issues only, which, so far as thought to be material, were as follows:

“Did or did not S. A. Penix, attorney for the plaintiff herein, receive a letter from M. W. Stanton, as attorney for defendant, requesting a delay in filing suit on said note?
“Were or were not the signers of the note, J. H. and J. W. Woodward, actually and notoriously insolvent on September 21, 1910, and continuously thereafter until the filing of the suit herein?”

Both of tbe foregoing issues were answered by tbe jury in tbe affirmative, and the jury further answered that tbe letter referred to in the first issue' was dated about tbe 1st of October, 1910. Upon tbe verdict so rendered tbe court entered up a judgment in favor of tbe plaintiff, and tbe defendant appeals.

The vital question presented by tbe assignments of error is whether tbe cause of action against appellant was barred under our statute of limitation of four years. It is undisputed that more than four years elapsed from tbe time when tbe plaintiff might have instituted his suit — when bis cause of action accrued — until tbe plaintiff filed bis amended petition, which was on April 2, 1917. And bence appellant was clearly entitled to a peremptory instruction in her' favor, as she requested, unless it must be said that tbe plaintiff’s amended petition was not, as applied to tbe circumstances of this ease, and strictly speaking, tbe beginning of the suit against ber. In other words, was tbe amended petition an amplification or enlargement of tbe original petition, or must tbe amended petition be accepted as tbe beginning or initial action against ber?

Tbe questions presented have not been entirely free from difficulty, but we have finally concluded that they must all be resolved in favor of appellee and of the judgment below. It has been many times beld that a petition bad on general demurrer will stop the statute of limitation. Evans v. Mills, 16 Tex. 196; Ward v. Lathrop, 11 Tex. 287; Killebrew v. Stockdale, 51 Tex. 529; Burnett v. Casteel, 36 S. W. 782; Kauffman v. Wooters, 79 Tex. 205, 13 S. W. 549; T. & P. R. R. Co. v. Johnson, 34 S. W. 188; Tarkinton v. Broussard, 51 Tex. 555; Day v. Trading Co., 183 S. W. 85; Williams v. Warnell, 28 Tex. 612; T. & P. R. R. Co. v. Hamm, 2 Willson, Civ. Cas. Ct. App. § 491; Lyle v. Harris, 1 White & W. Civ. Cas. Ct. App. § 71; Warner v. Bailey, 7 Tex. 521.

Tbe first two cases above cited bold that, where tbe original petition failed to show that tbe court bad jurisdiction of tbe defendant, it could be amended so as to show jurisdiction without stating a new cause of action. In Killebrew v. Stockdale, supra, it was beld that a petition on a promissory note bad on general demurrer for want of averment of ownership of a note, constituted a sufficient commencement of a suit to stop tbe running of the statute of limitation, and that the amendment to cure this defect was not the starting of a new cause of action or the commencement of a new suit. The other cases cited will further illustrate the proposition above stated.

The contract of an indorser of a negotiable promissory note is thus stated in section 363, title Bills and Notes, of 3 R. O. L., viz.:

“The full contract which the general commercial law implies from the indorsement of a negotiable promissory note on the part of the in-dorser, with and in favor of the indorsee, and every subsequent holder to whom the note is transferred, is: (1) That the instrument itself, and the antecedent signatures thereon, are genuine ; (2) that he (the indorser) has a good title to the instrument; (3) that he is competent to bind himself by the indorsement as indorser; (4) that the maker is competent to bind himself to the payment, and will, upon due presentment of the note, pay it at maturity, or when it is due; (5) that if. when duly presented, it is not paid by the maker, he (the indorser) will, upon due and reasonable notice given him of the dishonor, pay the same to the indorsee or other holder.”

The quotation made from Ruling Case Law seems to state the obligation of an indorser as established by the authorities generally, and hence, when appellee filed his original petition, as he did, setting up the execution of the notes by the Woodwards, and its in-dorsement by appellant, followed by the allegations that the parties named thereby became liable and indebted to him,' a cause of action as against appellant in part at least seems to have been stated. The petition only lacked allegations setting up an excuse for not having earlier filed the suit. By again referring to article 579, earlier quoted in this opinion, it will be observed that there is no express declaration that an indorser shall be entirely released or discharged by a failure to institute suit at the first term after the right of action accrues or by instituting the suit before the second term showing good cause why the suit was not instituted before the first term. The article evidently was intended merely to provide a cumulative remedy for the holder to fix the liability of an indorser without protest or notice as required by the law merchant. By the law merchant, when a negotiable bill or note was dishonored by nonpayment at its maturity, it was the duty of the immediate holder, to give notice of such dishonor to the indorser; for it was regarded as entering as a condition in the contract of the indorser that he should only be bound in the event on nonpayment, and that upon nonpayment, unless notified thereof, he should be discharged in the absence of some excuse exonerating the holder. Excuses, however, were available. See section 399, title Bills and Notes, 3 R. 0. L., and other authorities that might be cited. Such has been the ruling of our courts for failure to comply with article 579 by instituting suit at the first or second term after the cause of action 'accrues. See Norton v. Wochler, 31 Tex. Civ. App. 522, 72 S. W. 1025; Costin v. Burton Lingo, 57 Tex. Civ. App. 634, 123 S. W. 177; Bank v. Robinson, 124 S. W. 177. In several of the cases cited and in the case of Insall v. Robson, 16 Tex. 128, Hanrick v. Alexander, 51 Tex. 494, and Burrow v. Zapp, 69 Tex. 474, 6 S. W. 783, it is expressly held that the insolvency of the maker of a note since its execution would excuse the failure of a plaintiff to institute a suit as required under the statute, and it was further held in the cases of Williams Brothers v. Rosenbaum, 79 S. W. 594, and Ketterson v. Inscho, 55 Tex. Civ. App. 150, 118 S. W. 628, that an indorser might waive the duty of the holder to institute suit as-required by the statute. See, also, Bank v. De Morse, 26 S. W. 417; Smith v. Lumber Co., 92 Tex. 448, 49 S. W. 574.

The verdict of the jury in this case has not been attacked on the ground of insufficiency of the evidence to sustain it. We therefore have a case, as we think, of a plaintiff originally suing an indorser upon a liability undoubtedly existing under the law at the time of the filing of his suit and under no legal necessity in fact to comply with article 579. In other words, under the findings of the jury the liability of appellant as an in-dorser of the note declared upon was in fact absolute, and the failure of the plaintiff originally consisted of a mere defect in the pleading, and not because of an absence of the facts, which gave him a perfect right to recover. The original petition, in part at least, as it seems to us, presented the liability of appellant, and while that petition was defective and bad on general demurrer, as held on the former appeal, it was not so entirely devoid of necessary allegations as to preclude the later amendment, which presented the excuses that at all times existed for not having filed suit at the first term, or at the second term with excuses shown for not filing at the first term. In speaking of amendments to a complaint in an action on a note it is said in 8 Corpus Juris, p. 954, § 1244,. that:

“Subject to the rules relating to the amendments of pleadings in all actions, amendments, will generally be permitted in the furtherance of justice provided a new and distinct cause of' action is not introduced.”

The following application of the rule is. here made:

“Thus a mistake in the date or time of payment, in the date of notice of dishonor, or in the amount of the note may be cured by amendment. So the failure to allege presentment for payment or the giving of notice of dishonor may be cured by amendment.”

Under the rule of the law merchant a failure to allege presentment for payment or the giving of notice of dishonor would certainly subject a petition upon a promissory note to-demurrer, and if, as stated by this authority, such failure may be cured by amendment, we see no reason why an excuse for failure to comply with article 579, requiring suit at the first or second term, may not also be supplied by amendment. Tbe ease of Bigbam v. Talbot & Cropper, 63 Tex. 271, was one in wbicb tbe plaintiff first declared upon one cause of action and later abandoned it by filing an amendment setting up another distinct cause of action, and yet later again filed an amendment setting up bis original cause of action. Tbe court in bolding that tbe statute of limitation ran against tbe original cause of action up to tbe time of tbe last amendment filed bad this to say: - -

“If, however, there had been any allegations in the first amended petition in any way retaining, even as part of the cause of action therein asserted, that which was asserted by the original petition, and afterwards reasserted by the second amended petition, that would have been sufficient to prevent the running of the statute after the original petition was filed.”

In the case before us, as already pointed out, more than one of tbe facts essential to appellant’s liability were alleged. Tbe only failure was tbe failure to allege tbe facts necessary under tbe statute to fix that liability. In this respect tbe case before us is different from one where tbe plaintiff fails to allege facts necessary under our statute to fix a laborer’s lien or where a plaintiff first declares upon a note that is barred by limitation, and thereafter by amendment sets up a new promise to pay as in Howard & Hume v. Windom, 86 Tex. 560, 26 S. W. 483. For it is a statute in one case, and a new promise in tbe other, that constitutes tbe cause of action. Not so here, as we have seen appellee’s cause of action, regardless of article 579, in fact existed at tbe time of tbe filing of appellee’s original petition and was in part declared upon. We accordingly bold that appellee’s amended petition did not set up a new cause of action, and that such amendment related back to tbe filing of the original suit, which it is undisputed bad been filed within four years from the maturity of tbe note declared upon.

What we have said, we think, sufficiently disposes of tbe material questions presented. It is accordingly ordered that all assignments of error be overruled, and tbe judgment affirmed.

Affirmed.
      (g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    HESTER v. McADAMS.
    (No. 8678.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 2, 1918.
    Rehearing Denied April 13, 1918.)
    Waters and Water Courses &wkey;>118— Surface Waters — Common-Daw Rule — Modification bx Statute.
    The common-law rule that the owner of land may for his own protection divert natural surface water, although it results in injury to land of his neighbor, has been changed by Acts 34th Leg. (1st Called Sess.) c. 7 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5011t).
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Suit by J. B. McAdams against O. B. Hester. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    B. E. Cook, of Stepbenville, for appellant. Chandler & Pannill, of iStephenville, for appellee.
   DUNKLIN, J.

O. B. Hester and J. B. McAdams owned adjoining tracts of land, separated by a ditch. Hester’s tract lies north of tbe McAdams tract and on higher ground. Water from rainfall accumulating upon bis land makes its escape west through the ditch, tbe east end of which is higher than its west end. Water from rainfall accumulating on other land east of Hester’s tract flows in a southwesterly direction across tbe southeast corner of Hester’s land and into the ditch. Water accumulating in the ditch from this source, added to that accumulating on Hester’s tract during heavy rains, causes an overflow of the ditch near its west end upon a strip of Hester's tract adjacent thereto. In order to avoid such overflows, Hester constructed a dam across the ditch near its east end and a levee running in a northerly direction from that point across his land; also another dam across the ditch west of the east dam. By reason of those two dams water accumulating on Hester's land from rainfall which, in the absence of such dams, would have escaped down the ditch was caused to overflow the McAdams tract.

McAdams instituted this suit against Hester for a mandatory injunction requiring him to remove the two dams across the ditch, and also the levee, and restraining him from in any manner obstructing the flow of water-down the ditch, and from a judgment requiring the removal of the west dam, but refusing to require the removal of the east dam or levee, Hester has appealed.

Appellant invokes the common-law rule announced in such authorities as Gross v. City of Lampasas, 74 Tex. 195, 11 S. W. 1086; Booker v. McBride, 16 Tex. Civ. App. 348, 40 S. W. 1031, to the effect that the owner of land may for his own protection divert from its natural course surface water collecting upon his own land from rainfall, even though his act in so doing may result in injury to the land of his neighbor. But that rule has been changed by an act passed in 1915 by the Legislature of this state (see Acts 34th Legislature [1st Called Sess.] c. 7, p. 17 [Vernon’s Ann. Civ. St. Supp. 1918, art. 5011t]) which reads as follows:

“That it shall hereafter be unlawful for any person, firm or private corporation to divert the natural flow of the surface waters in this state or to permit a diversion thereof caused by him to continue after the passage of this act, or to impound such waters or to permit the impounding thereof caused by him to continue after the passage of this act, in such a manner as to damage the property of another, by the overflow of said water so diverted or impounded, and that in all such cases the injured party shall have remedies in both law and equity, including damages occasioned thereby,. provided that the passage of this act shall in no way affect the construction and maintenance of levees and other improvements for the purpose of controlling floods, overflows and freshets in rivers, creeks and streams, nor the construction of canals for the purpose of conveying waters for irrigation; and provided further that nothing in this act shall be so construed as to authorize or give authority to persons or corporations owning or constructing canals for irrigation or other purposes, to construct or maintain any canal, lateral canal or ditch in such manner as to obstruct any river, creek, bayou, gully, slough, ditch or other well-defined natural drainage.”

We are of opinion further that there was evidence sufficient to support the finding of the court, which the judgment necessarily implies, that the west dam constructed by appellant had the effect to divert the surface water collecting on his land to the McAdams tract to the substantial injury of the latter tract.

From the conclusions above stated it follows that all assignments of error must be overruled, and the judgment of the trial court must be affirmed; and it is so ordered.

Affirmed.
      ©mjFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    PULLMAN CO. v. RANSAW et al.
    (No. 827.)
    (Court of Civil Appeals of Texas. El Paso.
    April 11, 1918.
    Rehearing Denied May 9, 1918.)
    1. Master and Servant &wkey;> 100(1) — Release from Injuries — Assumption of Risk.
    A Pullman porter’s employment contract, assuming “all risks of accident or casualties while employed on or about cars” of the company “incident to such employment,” would not relieve the company for liability for injury to the porter suffered in resisting being ejected from his ear by watchmen who had been instructed by the company to put off any one found on the car; the porter having been instructed to remain on the car, and not notified of the conflicting instructions given the watchmen, since such contract could not relieve the company from the consequences of its wrongful acts.
    2. Master and Servant ¡&wkey;302(3) — Injuries to Servant — Act of Fellow Servant.
    Where a Pullman porter, remaining on his car under express orders, was injured while being ejected from such car by company’s watchmen acting under inconsistent orders, it was not necessary to a liability against the company that it should have authorized the specific acts of the watchmen in carrying pistols or shooting plaintiff, if the watchmen were acting within the scope of their duties in putting the porter off the car.
    3. Master and Servant <@=^302(3) — Liability for Servant’s Acts.
    Where one servant is injured by another servant while the latter is in direct discharge of a duty, though in its performance making use of instrumentalities and using more force than expressly authorized or instructed, the master cannot escape liability on the ground of abuse of authority by the latter servant.
    4. Master and Servant <&wkey;265(4) — Workmen’s Compensation — Pleading.
    In order that an employer may take advantage of Employers’ Liability Act (Acts 33d Leg. c. 179, pt. 1 [Vernon's Sayles’ Ann. Civ. St. 1914, art. o246hh]) § 2, providing that the negligence of'a fellow servant shall not be! a defense except as authorized by such section, he must allege and prove his exemption thereunder.
    5. Master and Servant <&wkey;287(2) — Injuries to Servant — Evidence — Incompetence of Fellow Servant.
    In an action by Pullman porter against the company for injuries sustained while being ejected from his car by company watchmen acting under express orders, which were contradictory to plaintiff’s orders to remain on his car, it was proper for the court to submit to the jury, as a ground of negligence, the watchmen’s incompetence, in that they were unable to speak English.
    6. Damages <&wkey;130(l) — Excessiveness—Per-sonal Injuries.
    Where a Pullman porter suffered personal injuries in being thrown from his car by defendant’s watchmen, illegally arrested and shot, whereby he suffered humiliation, mental pain, loss of time, and expenses for medical treatment, a verdict of $2,750 was excessive, and should be reduced to $1,800.
    ■ Appeal from District Court, El Paso County; P. R. Price, Judge.

      Action by Ben Ransaw and another against the Pullman Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed on condition.
    Burges & Burges, of El Paso, for appellant. W. P. Brady, of El Paso, and Earl Anderson, of Phoenix, Ariz., for appellees.
   WALTHALL, J.

Ben Ransaw, appellee, filed this suit against the Pullman Company and the Texas & Pacific Railway Company to recover damages itemized as follows: For doctors, nurses, hospital, and medicines, lost time from work, humiliation and mental pain and anguish suffered by being illegally arrested by appellant’s watchman, physical and mental pain and suffering by reason of a gunshot wound, stating a specific amount of damage sustained under each of said items. Ben Ransaw was in the employ of the Pullman Company as porter on one of its cars, and was authorized and instructed at Dallas, Tex., by the Pullman Company, and it was made, his duty, to remain on and in said car at all times until he was relieved by the said company. It was his duty, under said instruction, while on said car to look after said car and its equipment and protect same, and keep said car and its equipment, as well as himself, in readiness to move at any time. While so employed, said car was sent to El Paso and side-tracked in the Texas & Pacific Yards. He continued to remain on said car as instructed, and perform his said duties thereon. While on said car at El Paso, the Pullman Company sent two watchmen to guard said car, and instructed said watchmen to put any person out of said car that they might find therein, and to turn any such person over to the police. The Pullman Company neglected to notify the watchmen of plaintiff’s presence on said car, and of his right to be thereon. While plaintiff was on said car and performing his said duties, the watchmen, in the performance of their duties, found plaintiff in said car, and, acting within the scope of their employment, attempted to put plaintiff off said car, and in doing so shot plaintiff. The watchmen were Mexicans of young and immature age, could not read, write, speak, or understand the English language, and could only speak the Spanish language, and plaintiff and all the other parties on the car could speak and understand only the English language. The Pullman Company gave contradictory instructions to plaintiff and said watchmen, in that plaintiff was to stay on said ear at all times, and the watchmen were to put any person off said car found thereon. There is but little conflict in the evidence, except as to the details of the watchmen’s effort to put appellee off the car. The conflict in the duties of the appellee and those of the watchmen, and the inability of appel-lee and the watchmen to speak the language of the other, by appropriate pleading, are assigned as negligence. The case as to the Railway Company was dismissed. The Pullman Company answered by general and special exceptions, general denial; denied that it authorized the watchmen to arrest anybody at any time, or place, or to arm themselves, or to use force; alleged that plaintiff was shot in a personal difficulty with the watchmen brought on by plaintiff; alleged that by contract in writing, appellee assumed the risk and released appellant from liability. The jury returned a verdict in favor of appellant for the sum of $2,750.

The petition is sufficient as against the two special exceptions urged against it, and the first two assignments claiming error in not sustaining them are overruled.

Appellant offered to read in evidence from the contract of employment between appellant and appellee the fourth paragraph, providing:

“I assume all risks of accident or casualties by railway travel, or while employed on or about cars or property of said company situated on the railroad or other premises belonging to, or controlled by another, or others, or otherwise incurred, incident to such employment and service”

—and acquitting the company from liability for injuries received in such employment. The court excluded the paragraph, and its exclusion is made the basis of the third assignment. We think the court was not in error, under the facts shown, in excluding as evidence the paragraph of the contract. The paragraph could not relieve appellant against the negligent acts pleaded. As said by the Supreme Court in Barnhart v. K. C., M. & O. Ry. Co. of Texas, 107 Tex. 638, 184 S. W. 176, the effect of such a contract would be to relieve the company from the consequences of its wrongful acts, and to impose by contract upon its servant the burden of bearing the loss, which did not, by law, rest upon him, but did rest upon the company. The conflict in the duties assigned to the employés, the one to remain on the car and care for it and its equipment, and the other to put any one off the car found thereon and neither being able to speak the language of the other, makes the law announced in the case referred to, pertinent and applicable to the facts of this case. The court was not in error in refusing to instruct the verdict in appellant’s favor, as complained of in the fourth assignment. We think the evidence was amply sufficient to require the submission of the case to the jury on the issues tendered, viz.: The ap-pellee’s right and duty to be on the car when appellant’s watchman ejected him from the car and in doing so shot him; the competency of the watchman in not being able to write or speak the English language, especially in view of the conflicting orders given by the company to the two employés, to appellee to stay on the car and protect it and ,its equipment, and to the watchman to put any one off found on the car, neither being able to speak the language of the other, and each acting in the line of his duty. The evidence on the two issues was practically undisputed; the two employés were acting strictly within their' several lines of duties, and the only conflict in the evidence is as to what each did, and the time in order of doing it, in the conflict that followed the watchman’s effort to put appellee off the car.

The cases to which appellant refers us are not in point, and do not sustain its contention. In Medlin Milling Co. v. Boutwell, 104 Tex. 87, 133 S. W. 1042, 34 L. R. A. (N. S.) 109, Boutwell was injured in the observance of a process which the employés called an “initiation” of a new man into the service, and which had grown into a custom. The observance of the custom was not in or about any business of the company, or the performance of any duty the employés owed the company, but was purely an affair of their own. In G. H. ,& S. A. Ry. Co. v. Currie, 100 Tex. 136, 96 S. W. 1073, 10 L. R. A. (N. S.) 367, an employé of the company in its roundhouse, while using compressed air in the line of his duty, turned aside from that duty, and, in sport, turned it on an em-ployé, causing injury from which he died. The company was relieved from liability on the ground that the act causing the injury was not in the prosecution or furtherance of the employer’s business, but was wholly an affair of the servant causing the injury. The other cases have a similar bearing.

The appellant, by special charge, requested the court to instruct the jury that:

“It is the law of this state that where a servant or employé of another, acting in the discharge of his duty, inflicts a willful and malicious injury upon another, he alone is responsible for the consequences of such an act, and the master or servant cannot be held liable therefor”

—and to find for appellant in the event the jury should find that either of the two watchmen shot the appellee, because of an assault or attack made by appellee on either of them, or if either watchman shot appellee in the belief that his attempt to escape was an assault upon either of them. The refusal of the court to give the charge is the ground of the fifth assignment. The proposition of law submitted in the charge has no application to the facts in the case. The evidence does not suggest that either watchman willfully or maliciously, shot the appellee. The watchman was there representing the company and doing just what the company told him to do in putting the appellee off the car. It is true the evidence does not show that the company, or any one representing the company, told the watchman to carry arms, or to shoot the one found on the car. The company had no right to give the watchman either of such duties. We are of the opinion that the law is that, the watchman shooting the appellee, and thereby causing the injury complained of, while in the discharge and furtherance of his duty to the company, the company would be liable. The company could not, under the principle of law stated in the charge, thus relieve itself against liability from the effect of its own wrong in giving conflicting instructions to its two employés, the one to stay on the car, and the other to put him off. Texas & N. O. Ry. Co. v. Parsons, 102 Tex. 157, 113 S. W. 914, 132 Am. St. Rep. 857.

It was not necessary to a liability against the company that it should have authorized the specific acts of the watchman in carrying the pistol, or to shoot the appellee, if the watchman was acting within the scope of his duties to the company in putting the appellee off the car. Rucker v. Barker, 108 Tex. 280, 192 S. W. 528.

We hardly think the case of Medlin Milling Co. v. Boutwell, 104 Tex. 87, 133 S. W. 1042, 34 L. R. A. (N. S.) 109, to which appellant refers us, sustains its contention. In that' case, while the men inflicting the injury were officers and employés of the company, as Judge Williams says in discussing that case, it was an affair of their own, and not in or about any business of that corporation, but was a process which they called “initiation” of a new man into the service.

The sixth assignment claims error in the court’s refusal to give the following charge:

“You are instructed that under the law of this state it is not the duty of the employer to protect the employé from unlawful assaults by strangers, and another employé committing such assault must be regarded as a stranger. And in that connection you are instructed that authority to commit acts of personal violence cannot be inferred, even though the act of violence be committed for the purpose of furthering the employer’s business, for the reason that larger powers than those possessed by the employer cannot be imputed to the employé, but authority to commit such acts must be established by evidence to the satisfaction of the jury.”

The rule stated in the special charge requested has no application to the facts of this case. There is no doubt that the assault committed by the watchman upon ap-pellee, the porter on the car, was unlawful, but the watchman was acting in his capacity as the company’s agent, and in putting the porter off the car was doing what the company instructed him to do. Texas & N. O. R. Co. v. Parsons, 102 Tex. 157, 113 S. W. 914, 132 Am. St. Rep. 857.

In Rucker v. Barker, 108 Tex. 280, 192 S. W. 528, Judge Phillips for the Supreme Court said:

“It was not necessary for Rucker to have authorized the specific acts which Roberts committed in his treatment of Dyer in order to be liable in actual damages for Roberts’ conduct. If Roberts at the time was acting within the general scope of his duties, as Rucker’s employé, Rucker was responsible for his action, though it was in excess of Rucker’s actual instructions.”

. True, in that case, Dyer was not an em-ployé of Rucker, • and the question of fellow servant did not enter into the case. But how much more was it the duty of the company to see that appellee, an employe, to whom it owed the duty, and is bound to take precautions not to injure. This is not a case in which the servant, the watchman, turned aside from the master’s business, as in G., H. & S. A. Ry. Co, v. Currie, 100 Tex. 600, 96 S. W. 1073, 10 L. R. A. (N. S.) 367, and inflicted injury upon a fellow servant, but one in which the servant was in direct discharge of a duty, though in its performance making use of instrumentalities, and using more force than he was authorized or instructed to use.

The question always is whether there was any authority, express or implied, on the part of the servant to do the act. Mr. Wood, in speaking of the liability of the master for the negligence of the servant, states the rule to be:

“The simple test is whether 'they were acts within the scope of his employment, not whether they were done while prosecuting the master’s business, but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By ‘authorized’ is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties intrusted to him by the master, even though in opposition to his express and positive orders.” Wood, Master and Servant, § 307. M., K. & T. Ry. Co. v. Warner, 19. Tex. Civ. App. 463, 49 S. W. 254.

The rule above stated is also sustained by many authorities both iu this state and in other states. The master cannot escape liability on the ground of abuse of authority by the servant. Rucker v. Barker, supra, and same case discussed by Judge Jenkins, 151 S. W. 871, and cases' there cited.

What we have said in disposing of the sixth assignment applies to the seventh and eighth, and they are overruled. Under the eighth assignment, in which appellant complains of the refusal of the court to give to the jury its special charge, to the effect that, if they find that appellee was shot by reason of the negligent manner in which the pistol was handled by the watchman, such negligence was the negligence of a fellow servant, and, should they so find, to return a verdict for the company.

It is the contention under this assignment that, the watchman being a fellow servant, it was error: First, not to instruct that appellant could not recover; and', second, that, the watchman being a fellow servant,,appel-lee must have pleaded and proved that it came within the class of employers to whom such defense was denied, and, having failed to do so, it was error not to give the requested charge presenting that common-law defense. We think there was no error in refusing to give the requested charge.

The act of the 33d Legislature, page 429, and known as the Employers’ Liability Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), and invoked by appellant to sustain its contention, marked an important change in the law in regard to the liability of employers for personal injuries to employés. Under the above act, the negligence of a fellow servant is not a defense, except as mentioned in the second section of the act. If appellant came within any exception under the second section, it was incumbent upon it to allege and prove its exemption thereunder. Dunaway et al. v. Austin Street Ry. Co. et al., 195 S. W. 1157. -This it did not do. The assignment is overruled.

The ninth assignment complains of the eighth paragraph of the court’s general charge, because it submitted as a ground of negligence the unfitness or incompetence of the watchman, in that he could not speak the English language. It is claimed that neither the pleadings nor the evidence warranted the submission of the issue. We need not state the pleading or the evidence. The pleading is sufficient to raise the issue. The Mexican watchman, Moraza, who shot appellee, said:

“The foreman of the Pullman Company had employed me to work. He gave mo instructions to the effect that I was not to let any one go into those cars. If one of the officials of the Pullman Company went in there himself, without an order or permit, not to let him in. * * * As I could not talk English, and this man (the other watchman)'was working for the same company at another place, I went for him, to have him there with me. T * * * went inside and called the porter' to come. I told him, ‘Come here with me.’ I told him in English, ‘Hello, porter, please come on.’ * * * I arrested three of them (porters). The negro was running out of the car at the time I shot him; I called them to stop. None of them stopped, and on that account I shot one of Ithem. I was then inside of the car. The ne-Igro was getting off to run, getting down from like car. * * * The foreman knew that .1 |had a pistol, because on' one occasion, I pulled my pistol out in his presence, and put cartridges in it, and he asked me, ‘Have you got a pistol?’ and I said, ‘Xes’ and he said, ‘Be careful with it.’ ”

—and detailed the conversation with the foreman about having the pistol. He further said, “I cannot talk any English.” Appellee, in detailing what occurred in the car, among other things, said:

“I did not know what the Mexican was doing there. I thought he was trying to hold me up. I did not understand anything he was saying. He did not act like he understood anything I was saying. I tried to reason with him in my language, but I could not get him to understand nothing. It looked like he come there to shoot me. * * * After he shot me, we clinched, and I put him down at that time. I then ran off, because he hollowed something in his language, and I seen another Mexican with a flashlight and gun coming through the car. I cannot speak Spanish at all. I cannot understand any of it. My duties representing 'the Pullman Company kept me there.”

We think the incompetence of the watchman is made clear in view of the fact-that he could not speak the same language of the porter, and in connection with' their conflicting duties. Ruling .Case Law, vol. 18, p. 721, states the rule:

“If a master knowingly employs servants who are incompetent by reason of their habits, or otherwise, he is liable for an injury occasioned 'to a fellow servant by their incompetency, just as he would be liable for any injury caused by a defective machine.”

Ignorance of the language customarily employed is held to constitute incompetency. Ruling Case Law, vol. 18, page 727, and cases referred to under note 19.

There is no merit in the tenth and eleventh assignments, complaining of the eighth paragraph of the general charge on the ground that it was not shown that the company had any knowledge of the fact that appellee wouKl enter the car while in waiting at El Paso, and that it was no part of appellee’s duty to be on or about the car at that time and place. Appellee testified:

“The superintendent gave me orders to take charge of the car and stay with the car. * * * q?he superintendent in Dallas told me to stay with the car until it got back there.”

His evidence is uncontradieted. .

What we have said in disposing of the eighth assignment applies to the twelfth, and it is overruled. There is neither pleading nor proof of any fact to show the applicability of the second section of the Employers’ Liability Act. Acts Regular Session 1913, p. 429; Dunaway et al. v. Austin Street Ry. Co. et al., supra.

There is no merit in the thirteenth assignment, claiming that the verdict and judgment is contrary to the law and evidence, in that it is not shown that the watchmen were authorized by the company to arm themselves, or that the company knew they were armed, nor that the company had authorized the watchmen to arrest any one. The case of Rucker v. Barker, supra, holds contrary to appellant’s contention. Also Railway Co. v. Parsons, 102 Tex. 157, 113 S. W. 914, 132 Am. St. Rep. 857. Tlie court in its charge complained of did not submit to the jury any question of authority of the watchmen to arm themselves, or any such authority conferred by the company.

The fourteenth assignment complains that the verdict is excessive. We believe the verdict is excessive. If appellee will, within 15 days, file a remittitur of $950, reducing the judgment to the amount of $1,800, the judgment will be affirmed; otherwise, the judgment will be reversed and remanded.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes