text:
    BUNDICK et al. v. MOORE-CORTES CANAL CO.
    (No. 5479.)

    (Court of Civil Appeals of Texas. San Antonio.
    May 19, 1915.
    On Motion for Rehearing, June 23, 1915.)
    1. Insane Persons <§=o94 — Defendant or Unsound Mind — Failure to Appoint Guardian.
    Where one defendant, in an action of trespass to try title, is a person of unsound mind, the fact that no guardian of her estate or guardian ad litem has been appointed does not render void a judgment for plaintiff.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 164, 165; Dec. Dig. 94.]
    2. Insane Persons <S=o94r — Incompetent De-pendant — Cross-Action — Guardian Ad Litem.
    That no guardian ad litem was appointed for a defendant of unsound mind did not require a reversal of a judgment for plaintiff, in an action of trespass to try title, where a cross-action was brought by such defendant “repre,sented by her husband,” and it appeared that there was no guardian of her person, and that his interests wore not adverse to hers, and no objection was made before judgment that she was not properly represented, especially where it appeared that the husband was appointed guardian of her estate before the cross-action was filed, and that, at the time of the trial, she had been fully restored to mental vigor; Rev. St. 1911, art. 1942, authorizing the appointment of a guardian ad litem for a defendant non compos mentis, not prohibiting tine bringing of a cross-action by such a person by another, as next friend, whore there is no guardian.
    [Ed. Note. — For other cases, see Insane Persons, Gent. Dig. §§ 164, 165; Dec. Dig. <§=>94.'|
    3. Appeal and Error <©==>544t-Presentation —Bills op Exceptions — Refusal op Instructions.
    Assignments of error complaining of the refusal of instructions could not be considered on appeal, whore the record did not contain any bills of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2420, 2428, 2478, 2479; Dec. Dig. 544.]
    4. Judgment <©=o251 — Trespass to Try Title-Description in Judgment — Pleadings.
    That the description in a judgment for plaintiff in an action of trespass to try title, did not conform to that contained in plaintiff’s pleadings, did not require a reversal, where defendants, by a cross-action, put in controversy the title to additional land and the court decreed that defendants take, nothing in their cross-action; the legal effect of a judgment in such an action that a defendant take nothing by his cross-action being the same as an affirmative award to plaintiff.
    [Ed. Note. — For other cases, see Judgment, Gent. Dig. § 437; Dec. Dig. <&=251.]

      5. Judgment <@=3256 — Conformity with Verdict — Description of Land.
    A judgment, in an action of trespass to try title, will not be reversed on the ground that it is not supported by the verdict, though, if resort be had to the metes and bounds alone, it appears that it awards plaintiff more land than the verdict calls for, where it appears that defendants, as well as plaintiff, were attempting to put in controversy the 'title to the land described in the judgment but that both made a mistake in stating the length of a line.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. <@=3250.]
    G. Costs <@=332 — Taxation—Persons Liable —Trespass to Try Title.
    Where plaintiff, in an action of trespass to try title, recovered a large part of the land sued for by it, to which defendants did not disclaim, and defendants recovered no part of the land sued for by them additional to that sued for by plaintiff, the costs were properly taxed against defendants, though they recovered a portion of the land for which they sued.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 108-132; Dec. Dig. <@=332.]
    7. Adverse Possession <§=3115 — Direction of Verdict — Evidence.
    Where, in an action of trespass to try title, the evidence failed to show any use made by defendants of 132 acres of the land in controversy, to which defendants claimed title by limitation, or to show that such portion of the land was inclosed for ten years prior to commencement of the suit, it was not error to direct a verdict for plaintiff as to such portion.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 314, 691-701; Dec. Dig. <@=>115.]
    S. Boundaries <@=340 — Location oe Boundary Line — Submission oe Issues — Evidence.
    Where the evidence, in an action of trespass to try title, conclusively showed the true location of a boundary line in dispute, failure to submit to the jury the issue of the location of such line was not error.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 196-204; Dec. Dig. <§=>40.]
    9. Adverse Possession <@=>96 — Notice oe Claim — Inclosure.
    Possession of a few acres inclosed with a fence did not give notice to the owners of a large tract of land included in a pasture, containing about 17,000 acres, that the person in possession of the inelosure claimed title to 640 acres, -where there was nothing to show the extent of his claim.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 533-536; Dec. Dig. <§=> 96.]
    On Motion for Rehearing.
    10. Boundaries <@=337 — Location—Acquiescence— Sufficiency of Evidence.
    Evidence, in an action of trespass to try title, hold insufficient to show that those under whom plaintiff claimed had recognized the true location of the boundary line as being the location contended for by defendants.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. <@=337.]
    11. Boundaries <@=340 — Determination of Location — Acquiescence.
    Acquiescence under circumstances not amounting to an estoppel is a mere fact to be considered by the jury in determining the true location of a boundary line.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 196-204; Dec. Dig. <@=340.]
    12. Boundautbs <@=337 — Location—Proof of Acquiescence — Probative Effect.
    Where the location of a boundary line is doubtful, acquiescence under circumstances not amounting to an estoppel is entitled to great weight; but, where the evidence leaves no room for doubt as to the true location, proof of acquiescence in the erroneous line will not support a verdict in favor thereof.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 1S4-194; Dec. Dig. <@=>37.]
    13. Boundaries <@=>3 — Description of Land —Judgment—Construction.
    Where a description of land in a judgment, in an action of trespass to try title, calls for a well-described corner at variance with the distance, the distance must vgive way to the call for the corner.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. <@=>3.]
    Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.
    Action by the Moore-Cortes Canal Company against O. C. Bundick and others. From a judgment for plaintiff, defendants appeal.
    Affirmed, and rehearing denied.
    Gaines & Corbett, of Bay City, and G. G. Kelley, of Wharton, for appellants. Wilson Dabney <& King, of Houston, and Krause & Wilson, of Bay City, for appellee.

       Writ of error pending in Supreme Court.

   MOURSUND, J.

On July 5, 1911, the Moore-Cortes Canal Company filed its original petition in trespass to try title, seeking to recover two certain tracts of land from O. C. Bundick, Peter B. Bundick, Mrs. Clementine Bundick (a widow), Mrs. Matilda Ry-man and her husband, Philip Ryman, C. T. Freeman, J. H. Freeman, E. T. Freeman, Jeff Bundick, and H. M. Bundick, individually and also in his capacities as guardian of Jeff Bundick and administrator of the estate of Theo W. Bundick, and suing as warrantors W. C. Moore, A. P. Borden, and Mrs. Mamie P. Withers, executors of the estate of A. H. Pierce, and Mrs. Mamie P. Withers in her individual right. The two tracts of land were described as containing, respectively, 577 and 63 acres, both out of a certain grant in Matagorda county made by the Mexican government to Abraham Bowman and Chas. Reese, on June 20, 1831, and both tracts were described by metes and bounds with reference to objects situated upon the ground. The metes and bounds given for the 577-acre tract are as follow:

“Commencing at a point on the dividing line between the lower or third Harrison quarter league grant and the Bowman and Reese grant, which is distant 1,444 feet, more or less, west from the common corner on the Colorado river of said Harrison and Bowman and Reese grants^ being the point where a fence from the south intersects said dividing line; thence west with the dividing line between the lower Harrison quarter league and the Bowman and Reese grant, and with a partition fence constructed along said division line 8,881 feet, more or less, to a point where said division fence between the Bowman and Reese grant and the Harrison grant is intersected from the south by a fence built by the Moore-Cortes Canal Company to inclose its pasture on the Bowman and Reese league; thence in a south or southerly direction with the line of said pasture fence 2,700 feet, more or less, to point where said pasture fence is intersected by an east and west fence built in 1911 by H. M. Bun-dick and others; thence in an east or easterly direction, and with said fence built by Bun-diek et al. 10,325 feet, more or less, to the Colorado river; thence up the Colorado river with the meanders of same to a point where the river is intersected by the southernmost line of a survey of 63 acres out of the northeast part of the Bowman and Reese league; thence with an old fence line south 67 degrees west 1,987 feet, more or less, and in about the same direction with fence 378 feet additional to corner; thence north 20 degrees west with fence 356 feet more or less, to corner; thence north 66 degrees east with fence 350 feet, more or less, to corner; thence north 13 degrees west with fence 625 feet, more or less, to corner; thence with fence east 125 feet, more or less, to corner; thence north with fence 800, feet, more or less, to point on the dividing line between lower Harrison quarter league and Bowman and Reese grant, the place of beginning — said tract containing 577 acres of land, more or less, and being all of 640 acres, more or less, surveyed out of northeast part of Bowman and Reese league, after deducting therefrom a survey of 63 acres in the extreme northeast corner thereof.”

The 63-acre tract was described as follows:

“Commencing at the southeast corner on the Colorado river of the lower or third Harrison quarter league grant, which is also the northeast corner of the Bowman and Reese grant; thence west with the dividing line between the lower Harrison quarter league and the Bowman and Reese grant 1,444 feet, more or less, to a point where a fence running north and south intersects said dividing line; thence south with said fence 800 feet, more or less, to corner; thence west with another fence 125 feet, more or less, to corner; thence south 13 degrees east with another fence 625 feet, more or less, to corner; thence south 66 degrees west with fence line 350 feet, more or less, to corner; thence south 20 degrees east with fence line 356 feet, more or less, to corner; thence north 67 degrees east with fence line 378 feet, more or less, to a point; and thence in same general direction with old fence line 1,988 feet, more or less, to Colorado river; thence up said river with the meanders thereof to the place of beginning — said tract containing 63 acres, more or less, and being surveyed out of the extreme northeast part of the Bowman and Reese grant.”

Plaintiff, in addition to the formal allegations in trespass to try title, pleaded that it had title to said lands by the three, five, and ten years statutes of limitation. Plaintiff alleged that the defendant Mrs. Matilda Ry-man had been adjudged a person of unsound mind, but that no guardian of her estate had been appointed. Plaintiff sequestrated the 577-acre tract.

The defendant warrantors filed an amended answer, adopting the allegations of plaintiff’s petition, except as to the action over against the warrantors.

The other defendants went to trial upon an amended answer and cross-action. In this answer they denied plaintiff’s allegations, pleaded not guilty, pleaded the statutes of limitation of three, five, and ten years, alleging that their possession extended from the year 1848 down to the date the suit was instituted. They also pleaded that the plaintiff is estopped from asserting or claiming that the south line of the lower Harrison quarter is not located at the point of defendants’ contention, rather than at the point of plaintiff’s contention, for the reason that the beginning corner claimed by the defendants Bundiek was designated by the surveyor Alexander at the time the defendants Bun-dick took possession and was pointed out in 1S52 by said surveyor as the south line of the lower Harrison quarter, which is admitted to be owned by the Bundicks, and that the plaintiff and those whose estate it holds and claims recognized and acquiesced in said line as the true south line of the lower Harrison quarter and the north line of the Bowman and Reese league for more than half a century, and that such line was acted on by all parties interested in the true boundary line. In this answer the two parcels of land sued for by plaintiffs are described as one tract; the boundaries being given as follows:

“Beginning at a point on the Colorado river at a willow tree hacked and blazed; thence down the river with its meanders, but in a general course south 2 degrees west 680 varas to corner on river; thence west 4,679 varas to corner; thence north 680 varas to corner; thence east 4,679 varas to the place of beginning, containing 640 acres.”

In their cross-action they sought to recover a tract of land situated in Matagorda county, described as follows:

“Being out of and a part of the Harrison quarter league, known as the Harrison lower quarter, described as follows: Beginning at a point on the Colorado river the northeast corner of the Bowman and Reese league and southeast corner of the lower Harrison quarter league; thence west 5,250 varas along said line to a point in the north line of the Bowman and Reese and southwest corner of the lower Harrison quarter; thence north 680 va-ras to a point in the line of the lower Harrison quarter; thence east 5,250 varas to a point on the Colorado river; thence down said river with its meanders to the place of beginning, comprising a plot of ground 680 varas in width and 5,250 varas long, upon which the Bundiek homestead is situated — said beginning corner being the corner pointed out and identified by ■- Alexander as the southeast corner of the Harrison lower quarter league.”

They alleged that 63 acres of the land so described was the 63-acre tract described in plaintiffs’ petition; that 577 acres was the tract described in paragraph 2 of plaintiffs’ petition; and that the remainder thereof lies immediately west of the said 577-acre tract. Defendants’ cross-action, in addition to formal allegations in trespass to try title, contained allegations asserting title by virtue of the three, five, and ten years statutes of limitation. They alleged further that the writ of sequestration was wrongfully issued, and claimed damages therefor, and prayed for the recovery of the 640 acres of land sued for by plaintiffs.

Plaintiff filed an answer to defendants’ cross-action; said answer consisting of a plea of not guilty and pleas of three, five, and ten years limitation.

A jury was impaneled on June 12, 1914, and, after the conclusion of the testimony and argument of counsel, the trial judge instructed the jury to return a verdict in favor of the plaintiff, Moore-Cortes Canal Company, and against defendants Bundick, for all land in controversy, except the 63 acres inclosing the Bundick residence and 14.7 acres west of the Bundick residence, and against the warrantors in favor of the Moore-Cortes Canal Company, for the warranty money on such tract. A verdict was returned in accordance with the instructions given, and judgment entered to the effect that plaintiff recover of the defendants, other than those sued upon the warranties, a tract of land described as a part of the survey granted by the Mexican government to Abraham Bowman and Chas. K. Beese on June 20, 1S31, situated in Matagorda county, on the west bank of the Colorado river, and extending from the Harrison tract or lower quarter league on the north to the Keller league on the south; the location of said survey on the ground being fixed by a certain report filed in the court by the surveyor appointed by the court, and the portion thereof awarded to plaintiff being described as follows:

“Commencing at the southeast corner on the Colorado river of the Harrison lower or third quarter of a league of land, being the northeast corner of the Bowman and Beese grant, at a willow tree hacked and blazed upon the bank of said river as said corner is surveyed and located in the deed from A. H. Pierce to W. 0. Moore, of date November 28, 1900, recorded in volume 7, pages 438 et seq., of the deed records of Matagorda county, Tex., to which reference is made for description; thence west 5,300 varas, more or less, along the dividing line between the Harrison lower one-fourth league and the Bowman and Beese grant, and along the line of a division fence constructed along said line by the Moore-Cortes Canal Company, to a point in the prairie the southwest corner of said Harrison lower one-fourth league (said southwest corner of the Harrison being distant from the common north line of the Harrison upper one-fourth league and of the Ifltherton grant, and common south line of the Parker grant and of the Cayce grant south 3,750 varas more or less); thence south 2,700 feet, more or less, to a point in the prairie; thence east 5,250 varas, more or less, and along the line on which H. M. Bundick constructed a fence in 1911 to a point on the west bank of the Colorado river; thence up the Colorado river with its meanders to the southeast corner of the Harrison lower one-fourth league and northeast corner of the Bowman and Beese grant the point of beginning. From the above-described tract of land adjudged to the plaintiff there are excepted a tract of 63 acres of land and a tract of 14.7 acres of land which are thus described, viz.

It will not be necessary to set out the boundaries of the two tracts excepted, as no question arises with regard thereto. This appeal was perfected by said defendant.

Appellants contend in their first assignment of error that tlie judgment is not a final judgment because plaintiff alleged that Mrs. Matilda Byman was a person of unsound mind, and that no guardian of her estate had been appointed, and the record fails to disclose that a guardian ad litem was appointed to represent her. The cases cited by appellants do not hold that the failure to appoint a guardian ad litem renders the judgment void. The judgment disposes of all the parties, and is a final judgment. Wallis v. Stuart, 92 Tex. 568, 50 S. W. 567; Grogan v. Spaulding, 155 S. W. 1014.

The further contention is made that the judgment is erroneous because it was rendered without appointing a guardian ad litem for Mrs. Byman, and that the error is a fundamental one, requiring the reversal of the judgment. This contention would have to be sustained were it not for certain facts which distinguish the case from that of Taylor v. Bowland, 26 Tex. 293. In the instant case the trial was not had upon the petition and answer. Defendants filed a cross-action seeking to recover the land sued for by plaintiff, making formal allegations customary in trespass to try title cases, and asserting title by the three, five, and ten years statutes of limitation, which they had already pleaded in their answer. The cross-action was brought by Mrs. Matilda Byman, “represented by her husband, Philip Byman.” Article 1942 applies when a person non compos men-tis is a defendant, but does not prohibit the bringing of a suit by such a person as next friend, when there is no guardian. In this case Mrs. Byman filed the cross-action through her husband, who, if the allegation be true that she had no guardian, could represent her; his interests not being adverse to hers. The trial was had and judgment rendered without any objection being made that Mrs. Byman was not properly represented, and, when the question was raised on motion for new trial, the motion was controverted, and it was shown that after the filing of plaintiff’s petition, and prior to the filing of the original answer and the amended answer and cross-action, P. II. Ryman, the husband of Matilda Ryman, was duly appointed and qualified as guardian of her estate, so that in fact the pleadings were filed on her behalf by the guardian of her estate. It was further shown that, prior to the date of the trial, Mrs. Byman was fully restored to mental vigor, was discharged by the officials of the insane asylum as cured, and was .found by the probate court to be of sound mind, and the guardianship on her .estate was duly closed, and her estate delivered to her. The motion for new trial was overruled. Had a new trial been granted, or if one was now ordered, the court would have been compelled to find that he was not authorized to appoint a guardian ad litem for Mrs. Byman, and nothing is to be gained by ordering a new trial. We conclude that, in view of the cross-action having been filed and of the facts shown upon motion for new trial, the judgment should not be set aside upon the ground urged.

Assignments 2 to 10, inclusive, as numbered in brief, relate to special charges refused, and must be overruled because the record does not contain any bills of exception. It is therefore not made to appear that the special charges were presented to the court at the proper time, and that the rulings in refusing to gire the same were excepted to at the time they were made. Uvalde v. Bank, 172 S. W. 175.

Assignments Nos. 11, 12, and 13 relate to the description in the judgment of the land awarded to plaintiff. It is not necessary for the description in the judgment to conform to that contained in plaintiff’s pleadings, for, by their cross-action, defendants put in controversy the title to additional land; and as the legal effect of a judgment in a trespass to try title case, to the effect that the party seeking to recover land take nothing by his suit, is the same as an affirmative award to the other party, we cannot see that defendants have been prejudiced by the failure of the court to award plaintiff a recovery of the land sued for by him, describing it as in the petition, and then to decree that defendants take nothing by their suit for the land described in their cross-action.

The question whether the judgment is supported by the verdict is a more serious one. If resort be had to the metes and bounds alone, it is clear that the judgment awards plaintiff more land than the verdict calls for. The plaintiff sued for a tract in the shape of a parallelogram, with dimensions 3,717 varas by 972 varas, more or less, while the defendants by their answer describe the land plaintiff sues for a parallelogram 4,679 varas by 680 varas, and in their cross-action sue for a tract 5,250 varas by 680 varas. However, they alleged that the 63 acres and 577 acres sued for by plaintiff composed part of the land sued for by them, and that the remainder so sued for by them lies immediately west of the 577-acre tract sued for by plaintiff. The call by plaintiff to run south 2,700 feet, more or less (972 varas), is limited by the fact that it is to run to a point where a certain fence with which it runs is intersected by an east and west fence built by H. M. Bundick and others in 1911. When these statements are considered, it is apparent that defendants, as well as plaintiff, were attempting to put in controversy the title to a tract of land which for south line ran along the fence erected-by H. M. Bundick and others. It is evident that plaintiff or defendants made a mistake in stating the length of the north and so-uth line. It is also evident that defendants intended to and did put in issue, by their cross-action, the title, not only to the parallelogram having its west line along the fence built by Moore-Cortes C'anal Company and its south line along the fence built by H. M. Bundick, but also a parallelogram lying immediately west of said tract, the north line of which extended west from the northwest corner of the 577-acre tract described by plaintiff, to a point 5,250 varas from the river, and the west line of which was the same length as the west line of the 577-acre tract. We conclude there is no merit in. appellants’ contentions in regard to the description, and ovenule the assignments of error.

Assignment No. 14 is without merit. The costs were properly taxed against defendants. Plaintiff recovered a large portion of the land sired for by it, to which defendants did not disclaim. Defendants recovered no part of the land sued for by them additional to that sued for by plaintiff.

By the fifteenth assignment appellants contend that the charge of the court is upon the weight of the evidence in that defendants should have been allowed to recover 210 acres instead of 63 acres and 14.7 acres. The additional 132 acres is land lying between the parcels containing, respectively, 63 acres and 14.7 acres, and at one time fenced off from the other land recovered by plaintiff by a fence extending from the southeast corner of the 14.7-acre parcel to the southwest corner of the 63-acre parcel and a fence extending from the 14-acre tract north to the fence built along the division line between the Harrison survey owned by defendants and the Bowman and Reese survey owned by plaintiff. Appellants contend that they acquired title to this 132 acres by limitation of ten years. The contention must be overruled for several reasons. The evidence fails to show any use by the defendants of the 132 acres. It also fails to show that the 132 acres was inclosed for ten years prior to the institution of the suit. The suit was filed on July 5, 1911. Powell testified he constructed the fence around the lower Harrison tract about May or June in 1901 or 1902. Shaedle’s testimony would support a finding that the fence was built in 1901. It is undisputed that Powell first built the fence along the north line of the lower Harrison survey, then the west line, and then the south line. His testimony does not show when he completed the fencing of the Harrison survey. About six weeks after building said fence, he erected the fence down to tho 14-acre tract and the fence from the 14-acre tract east to the 63-acre tract, thus inclosing the 132 acres. This evidence fails to show that the 132-acre tract was inclosed by July 5,1901. The evidence of Eurbei-, in rebuttal, to the effect that the fence extending from the south line of the Harrison lower quarter league to the 14-acre tract was down, and was not' kept up, because the 132 acres, as well as the other land, was leased to Cornelius, by plaintiff, is undisputed, and therefore it is not even shown that possession of the 132 acres was maintained by defendants from the time it was inclosed until the suit was filed. The assignment is overruled.

By the sixteenth assignment complaint is made of the giving of a peremptory instruction. Various contentions are made in this assignment. The first is that the testimony with regard to the location of the true boundary line between the Bowman and Reese league owned by plaintiff and the lower I-Iar-rison quarter league owned by defendants was so conflicting as to require that the issue be submitted to the jury. There were three surveys of a quarter of a league, each granted to Henry Harrison, of which defendants had owned the lower one. The middle one is owned by plaintiff. Each of these surveys, according to its field notes, is 1,250 varas wide, but the defendants contend that the lower should be given a width of about 080 varas more than either of the other two Harrison surveys. Plaintiffs contend that the OSO varas is a portion of the Bowman and Reese league owned by them and situated immediately south of the lower Harrison survey. The statement of facts contains 400 pages, and it would take too much space to discuss the testimony. We content ourselves with making the conclusion of fact that the evidence conclusively shows that the land in controversy is a part of the Bowman and Reese league, and therefore the court did not err in failing to submit to the jury the issue as to the true location of the line between the Bowman and Reese survey and the lower Harrison survey. Appellants in their argument state that, if the title depended only on the question whether the land lies within the Bowman and Reese league or within the Harrison lower quarter, it might not have been necessary to have submitted the question of boundary line, but contend that the question of limitation should have been submitted. Thus they virtually concede the weakness of their contention with regard to the issue of boundary.

The Bundicks purchased the lower Harrison quarter league survey in 1852 and erected an inclosure containing 63 acres out of the Bowman and Reese league survey south of and adjoining the said Harrison survey, as well as a portion of the Harrison survey. We are unable to find any evidence stating the number of acres of the Harrison survey so inclosed, but find that one witness testified that the inclosure extended about 1,000 feet into said survey. The Bundicks also had, at the time of the trial, an inclosure containing 14 acres, situated about 1,000 feet south of the south boundary line of the said Harrison survey, and about a half mile west of the G3-acre parcel. It appears further that about 1882 Peter Bundick placed improvements south of the 63-acre parcel. As the 14 acres was fenced and the Peter Bundick improvements erected subsequent to tbe time when defendants claim their title by ten-year limitation became complete, they cannot be considered in passing upon their contention. The south line of the said Harrison survey, as claimed by the Bundicks, is located some distance south of the 63-acre tract, and no fence was placed along the same, nor was there anything to put persons upon notice that the Bundicks claimed to that line unless the erection of their improvements upon and fencing of the 03 acres above mentioned gave such notice. The Bundicks maintained the 63-acre inclosure from 1852 down to date of trial, and defendants claim that they acquired title to 640 acres out of the Bowman and Reese survey under the ten-year limitation statute of 1841, counting the time from 1852 to 1879 when the statute was changed so as to limit the amount to 100 acres. The evidence is undisputed to the effect that they never claimed that they owned any part of the Bowman and Reese league, but that their house and fences were erected thereon under the mistaken belief that the south line of the Harrison survey which they had bought was located south of their inclosure. They had actual possession of part of the Harrison survey and claimed said survey, and, of course, if they had not held a good record title to such survey, their possession of part would have enabled them to claim title hy limitation therein. But they contend that the inclosure of part of the Harrison survey should be ignored, and that the possession of G3 acres out of the Bowman and Reese survey should be received as notice that they intended to claim 640 acres, including said 63 acres, but excluding tbe land inclosed out of the Harrison survey. No claim was made to the entire Bowman and Reese league, and no notice given that any particular part would be claimed, except that given by the existence of the inclosures. Had a fence been erected along tbe line claimed by defendants to be the south line of the Harrison survey, notice would have been given that the Bundicks claimed the land north of said fence, but there was nothing to show the extent of their claim, nor to show that their possession would be relied upon to claim land lying below the Harrison survey to make 640 acres instead of land within the Harrison survey to which they had a deed. In this connection, it must be borne in mind that, during the time of the possession relied upon, neither the Harrison survey nor the Bowman and Reese survey was inclosed. A large portion of the Harrison survey was inclosed in 1901 by a fence built around it by plaintiff with the consent of several members of tbe Bundick family. Prior to that time the Bowman and Reese survey and the Harrison survey were in a large pasture containing about 17,000 acres, which from about 1SS0 to 1900 was controlled by plaintiff’s vendors under an arrangement by which the Bundicks and others having land in said pasture were permitted to keep their stock in the same. We conclude that the evidences of possession were not sufficient to charge the owners of the Bowman and Reese survey with notice that their land, other than that actually inclosed, was being claimed, and that therefore the court did not err in refusing to submit to the jury the question whether defendants had acquired by limitation 640 acres of the Bowman and Reese survey prior to 1879. Bracken v. Jones, 63 Tex. 184; Titel v. Garland, 99 Tex. 201, 87 S. W. 1152; Holland v. Nance, 102 Tex. 177, 114 S. W. 346; Arnold v. Evans, 140 S. W. 497. It is true that in this case the acreage inclosed by mís-tate was greater than in any of the cases cited, but it constituted a very small part of the survey of which it is a part; and, there being no evidence that the evidences of ownership were of such character as to indicate an intention to hold the entire Bowman and Reese league or any portion other than the parcel inclosed, we see no good reason for applying a different rule from that announced in the cited cases.

The above conclusion makes it unnecessary to decide whether plaintiff acquired title to the land in controversy by limitation. We will say, however, that the evidence conclusively shows that plaintiff acquired title under the three and five years statutes of limitation by possession and use, beginning in 1904, to all of the land in controversy, except the 132-acre parcel. The testimony is not clear in regard to the possession and use of said 132-acre parcel.

The sixteenth assignment is overruled.

The judgment is affirmed.

On Motion for Rehearing.

Appellants contend that the evidence was of such a character that the issue of agreed boundary should have been submitted to the jury. There is absolutely no evidence that any owners of the Bowman and Reese league ever agreed with any owners of the lower Harrison quarter league survey that the line contended for by defendants was the tree line. There is no evidence that representations were ever made by any owners of the Bowman and Reese survey with regard to the boundary line contended for by defendants which were acted upon by defendants in such a way as to estop plaintiff from denying the location contended for by defendants to be the correct one. The evidence at its very best (for it is indeed vague on this point) shows that A. H. Pierce upon one occasion, no effort being made to fix the time even approximately, in a conversation with Peter Bundick, recognized the line contended for by the Bundicks as the correct line, by notifying Bundick to remove improvements placed by him below the line.

The witness Harris testified that, during all the time he worked for J. E. Pierce, neither J. E. Pierce nor A. H. Pierce disputed the correctness of the Bundick land. It is impossible to tell whether he meant, by “Bun-dick land,” the land inclosed by the Bundicks or the line to which they claimed; but, in either event, he fails to show that either of said parties was ever called upon to his knowledge to either recognize or repudiate the line.

Mrs. Clementine Bundick testified that a Mr. Hoppe ran a line below the Bundick house, and told her he was working for Pierce; that she asked him where the line was, and he said it was “down there” — she did not know how far south of the house.

Acquiescence, under circumstances not amounting to an estoppel, is a mere fact to be considered by the jury in determining the question of boundary. Schunior v. Russell, 83 Tex. 83, 18 S. W. 484; Camp v. League, 92 S. W. 1066; Atascosa County v. Alderman, 91 S. W. 846; Vogt v. Geyer, 48 S. W. 1100. When the location of the line is doubtful, it is entitled to great weight; but when, as in this case, the evidence leaves no room for doubt as to the true location, proof of acquiescence in the erroneous line would not support a verdict in favor thereof. So in this case no verdict for defendants could have been permitted to stand upon the vague and unsatisfactory testimony introduced in an effort to show acquiescence by the Pierces. Not only was the ¡Line contended for by plaintiffs conclusively shown to be the correct line, but the evidence of acquiescence therein and recognition thereof by the Bun-dicks was overwhelming. The Bundick heirs partitioned and divided the Harrison lower quarter league among themselves, exactly as same was fenced by plaintiff on the lines contended 'for by plaintiff. Said heirs executed leases according to said boundaries, and finally sold the land according to said boundaries. The fence built along the line contended for by plaintiff was erected by plaintiff by virtue of an agreement whereby several of the Bundick heirs bound themselves to keep up the fence. In fact, it appears that H. M. Bundick, who was absent from Matagorda county from 1887 to December, 1910, was the only one of the Bundick heirs who, prior to the institution of this suit, repudiated the line claimed by plaintiff ; such repudiation being evidenced by erecting a fence about 600 varas south of the true boundary line.

Appellants contend that the inclosure of the Bundicks, in so far as it extended into the Harrison survey, was surrounded by a wire fence, and therefore this court should find that such fence was not put there until about 1S80. The record is not cited in support of this assertion. There is no evidence to show that the land in .the Bundick inclosure out of the Harrison survey was inclosed at a different time than that out of the Bowman and Reese survey. All the testimony tends to show that it was made at the same time. The only testimony in regard to the kind of fence around the inclosure is that of the witness Black, to the effect that when he saw the inclosure in 1902 the 63 acres around the house was inclosed by fences— “some wire and some rail fences.” It could not be expected that the fences erected in 1852 would still exist in 1902.

Appellants contend that there is no possible way to reconcile the description of the land sued for in the petition and in the cross-action so as to uphold the description in the judgment. They set out at considerable length their contention, and say that this court has permitted a judgment to stand which awards appellee a strip of land 292 varas in width by 5,250 varas in length, not described in the cross-action. Appellants again overlook the fact that they alleged specifically that the land sued for by plaintiff was a part of the land sued for in the cross-action, and that the remaining land sued for in the cross-action lies immediately west of the 577-acre tract sued for by plaintiff.

The plaintiff’s description calls for a certain well-described southwest corner, and the distance has to give way to the call for the well-described corner.

We deem it unnecessary to discuss the other contentions made in the motion for rehearing.

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

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


source: Caselaw Access Project

author: CARD, J.

license: Public Domain

text:
    PLUMMER v. SIMMS et al.
    (No. 5379.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 27, 1915.
    On Motion for Rehearing, June 25, 1915.)
    1. Evidence <§=3450 — Parol Evidence to Vary Writing — Ambiguous Contracts.
    Clauses 3 and 4 of a contract under which plaintiffs were to sell lands for defendant provided that of the first cash payment above the amount which defendant was required to pay to his vendor $2, per acre should be applied towards the payment of plaintiffs’ sales agent, $1.75 an acre in full payment of expenses by plaintiffs, except items therein specified, and the balance should be equally divided; that expenses incurred by defendant in surveying, platting, etc., and the commissions due plaintiffs’ agents should be borne equally upon final settlement ; that at the expiration of the contract or when all the land was sold there should be a full settlement; that defendant should receive $13 an acre for all land sold, and, in addition, certain advancements; and that the remainder of the proceeds should belong to the parties jointly. The contract was to continue until July 1, 1910, unless previously canceled, but it was provided that defendant might cancel it on January 1, 1910, and clause 12 provided that, if it should be canceled, any settlement between the parties should be based on the number of acres of land sold, and no liability should rest against either party in favor of the other on account of unsold lands. Held, that the contract was ambiguous as to whether, in case the contract was canceled, the expenses referred to in clause 3 should be borne equally or prorated on the basis of the number of acres sold, and evidence was properly admitted to explain the intention of the parties, this not varying the terms of clauses 3 and 4, as they dealt with a contract whose terms had been fulfilled.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. <§=> 450.]
    2. Contracts <§=3176 — Questions por Jury.
    The contract being ambiguous as to the manner in which the expenses should be borne upon a cancellation of the contract, the court properly submitted the question as to the intention of the parties to the jury.
    [Ed. Note. — -For other cases, see Contracts, Cent. Dig. §§ 767-770, 917, 956, 979, 1041, 1097, 1S25; Dec. Dig. <§=>176.]
    3. Pleading <§=>129 — Matters to be Proved —Admissions by Failure to Deny.
    Where, in an action for amounts due plaintiffs on account of sales of lands under two contracts with defendant, the petition alleged that both contracts had been canceled, and the answer did not deny this, and it was apparently undisputed, proof of the cancellation of one of the contracts was unnecessary.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 270-275; Dee. Dig. <©=>129.]
    4. Contracts <§=>170 — Construction op Contract-Measure op Compensation.
    A contract under which plaintiffs were to sell lands for defendant provided that forfeit money on sales that were not completed should be divided, one-third to each of the contracting parties,- and one-third to plaintiffs’ sales agent. In an action for amounts due on account of sales defendant requested a charge that, in determining the number of acres sold, the jury should take into account the number of acres contracted to be sold upon which earnest money was collected. Held, that the parties had fixed their own measure of adjustment with respect to the forfeit money, and there was no merit in an assignment of error with respect to such instruction.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 753; Dec. Dig. <§=>170.]
    5. Assignments <§=>138 — Actions por Compensation — Sufpioienoy op Evidence.
    In an action for amounts due plaintiffs on account of sales of land under a contract with defendant, evidence held insufficient to require the submission of the question whether plaintiffs had assigned the contract to a corporation having the same name as the trade-name under which they were required to do business, and an assignment of error complaining- of the failure to submit such question would be overruled, especially as the auditor’s report was not excepted to as improperly stating the account or on the ground that there was no money due and owing plaintiffs because of such assignment.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 235-238; Dec. Dig. <§=>138.]
    On Motion for Rehearing.
    6. Brokers <§=>75 — Actions for Compensation.
    L. sold land to defendant by a contract providing that, when a specified amount was paid, a deed wo-uld be made retaining a vendor’s lien to secure notes maturing at different dates. The lien was to be released on any land sold by defendant on the condition, among others, that the purchasers’ notes should be delivered to D. as collateral; the contract providing- that payments on such notes should be retained by L. and credited to defendant. A contract with plaintiffs by which they were to sell the land for defendant made the L. contract a part thereof, and provided that at the expiration of the contract there should be a complete settlement, and if any of the purchasers’ notes remained pledged with L. plaintiffs’ share therein should be set apart and held by L., subject only to the pledge, defendant’s interest in the pledged notes to he first exhausted in payment of L.’s debt. Defendant, as authorized therein, canceled the contract with plaintiffs, and no settlement ever was had. L. executed a deed to defendant, and it did not appear that the notes called for by L.’s contract were not executed. Defendant sold the purchasers’ notes held by him, applied the proceeds on his notes to L., and arranged with a trust company to take up his indebtedness to D. The last of the L. notes, if in accordance with the contract, would have matured on June 10, 1913. 'Plaintiffs on May 6, 1913, sued defendant for the amounts due them, and recovered judgment in May, 1914. Held, that, defendant having sold the purchasers’ notes, and the judgment having been rendered after his indebtedness to L. should have been paid, he could not be heard to say that the time for payment to plaintiffs had not arrived, as there was nothing in the contract postponing, until the payment of the L. debt, plaintiffs’ collection of their share of the proceeds of notes paid or sold, and defendant could not, by his failure to pay the L. debt at maturity, delay a settlement with plaintiffs.
    [Ed. Note. — Eor other cases, see Brokers, Dee. Dig. <@==>75.]
    Appeal from District Court, Bexar County; W. E. Ezell, Judge.
    Action by H. E. Simms and another against Theodore Plummer. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Terrell, Walthall & Terrell, of San Antonio, for appellant. Houston, Boyle & Storey, of San Antonio, for appellees.

       Writ of error pending in Supreme Court.

   CARD, J.

H. E. Simms and J. J. Harrison, appellees, sued appellant, Theodore Plummer, to recover $12,900, alleged to be due appellees on account of sales of certain lands in Bee and Karnes counties, Tex., belonging to appellant, under and by virtue of sales contracts they had with Plummer. One of the contracts was dated March 31, 1909, and covered'18,720.5- acres of land known as the Lott ranch, in Bee county; and on July 10, 1909, the other contract for the salei of 640 acres known as the Word section was made. These contracts were made by Wm. Simms, on behalf of his firm, a copartnership known as Simms, Harrison & Simms. Under the terms of these contracts, Plummer had the right to cancel the same January 1, 1910, if he was not satisfied with the sales being made, and he did cancel them on that date.

The petition alleges that they sold 2,259 acres of the land under the contracts, and that there was due them $15,764.84 out of such sales at the time of the cancellation of the contracts, but that appellant was entitled to charge against them their pro rata of the expenses incurred as provided in said contracts, which expenses amounted to $5,-588.91, thus leaving a balance due appellees in the sum of $9,260.97. It is also alleged that at the time the contract was canceled purchasers of said land had given notes aggregating more than $20,000, and that after payment of expenses Simms, Harrison & Simms were to have an undivided one-half interest therein, but that such notes might be pledged by appellant to secure his indebtedness due the Lo'tts for purchase money of the land, provided that the interest of Simms, Harrison & Simms in said notes should be designated and set apart to. them as between them and the said Plummer, and kept and held by the then holders in escrow for the use and benefit of Simms, Harrison & Simms, and that both parties should join in an application to have some bank in Beeville made a depository for all of said notes, which. would hold same until the debt for which the same were pledged should be paid off, at which, time appellees were to receive their part of the notes and interest accruing thereon. It is alleged that appellant failed and refused to deliver these notes to a bank in Beeville or to appellees, but converted same to his own use and paid the Lott debt with same. Claim is further made for the sum of $2,380.60 in cash as thes plaintiffs’ share of forfeit money which it is alleged Plummer converted to his own use.

The answer admitted the contract and practically the sales made and forfeit money received, but denied conversion of the plaintiffs’ interest in the notes, claiming that, under the contract with the Lotts which was made a part of the sales contract, said notes were not to be divided until the Lott or purchase-money debt was paid, and alleged that same had not been paid. Defendant also pleaded that the Simms contract was assigned to the Simms Colonization Company, a Kansas corporation which had not complied with the laws of Texas by filing a copy of its articles of incorporation with the secretary of state of Texas and obtaining a permit to do business in Texas; that whatever service was performed was by that corporation, and that same constituted doing business in Texas, and it could not maintain this suit; further, that by reason of the assignment of said contract plaintiffs had no interest in the notes, and could not maintain the suit. Defendant alleged that the sales so made by the Simms Colonization Company amounted to $1,999.11, and that under the contract the Colonization Company was entitled to receive, exclusive of commissions to agents, $14,762.91, less advances to the said corporation and to Simms, Harrison & Simms, including advances for subdivision, operating expenses, and interest thereon, etc., which it was alleged aggregated $13,500, leaving a balance of approximately $1,261. This amount it is claimed plaintiffs could not recover because of the assignment of the contracts to the corporation.

Plummer alleged that $23,205.75 in purchasers’ notes were delivered to him, and under the terms of the Lott contract — his contract of purchase which was made a part of the sales contract — were turned over to Lott, Pittman, and others to be held as collateral security for the purchase money for the land, and admitted that, after the payment of the debts the notes were turned over to secure, and operating expenses were paid, the plaintiffs were entitled to an undivided one-half interest in the notes, subject to the pledge of the notes aforesaid, but that under the assignment Simms Colonization Company succeeded to whatever interest the plaintiffs had. Defendant admitted that thei interest of plaintiffs or Simms Colonization Company in said notes had never been turned over to them, and that no application had ever been made to a Beevillt' bank to act as depository of the notes, but alleged that all of the notes werei deliyered to him, and in turn delivered to the Lotts and Pittmans in accordance with the purchase contract for the land, and alleged that the purchase-money debt had never been paid off, but merely transferred and taken up by Central Trust Company of San Antonio.

The trial before a jury resulted in a verdict and judgment for $6,964.54 in favor of H. P. Simms and J. J. Harrison. It may here be said that Wm. Simms sold his interest prior thereto to H. P. Simms.

As the main points of this controversy hinge on the proper interpretation of the contract between the parties, it is necessary to set out the following paragraphs of that document:

“(1) The second parties and each of them agree to begin at once and thoroughly and extensively' advertise and push the sale of said lands, devoting their exclusive attention thereto, and sell the same as rapidly as possible.
“(2) The lands are to be sold by the second, parties at a scale of prices to be hereafter agreed upon between the parties, in writing, and no subdivision thereof to be sold at less than the scale price mentioned thereon, and the scale price of no subdivision shall be for less than $18.00 per acre. The terms and conditions of each and every sale or contract of sale of very tract or part of said land shall be in strict comjdiance with the terms, conditions, and provisions of said contract of purchase owned by the first party, unless herein otherwise provided for sale of ten-acre tracts, a copy of which is hereto attached and marked ‘A,’ as before said. In other words, all of the terms, provisions, and conditions of said contract attached and marked ‘A,’ in so far as the same were meant and intended to obligate and control the first party in selling and contracting for sale any part of said lands, and securing releases of the parts of said land sold, shall rest against and govern and control the second party in making sales thereof, except in case of ten-acre tracts., hereinafter provided for, until all the obligations against the first party which are secured by lien on said lands, as recited in said contract marked ‘A,’ have been fully paid off and discharged, after which to be made on terms mutually agreeable to the parties hereto during the life of this contract.
“(3) That part of the first cash payment made by each purchaser of any part of said land from second parties (except ten-acre tracts) over and above the amount thereof provided to be paid by first party on the purchase price by him on said land, as specified in said contract of purchase attached and marked ‘A,’ which shall be paid to the first party, shall at once, and as soon as collected, be deposited with the bank, to be designated as the depository, to the joint credit of both parties hereto, and shall be disbursed as follows:
“(A) An amount thereof equal to $2.00 per acre on the land sold in each instance to be applied by second parties towards paying part of what they may owe their agent in such instance for making the sale, and when any purchaser pays first due of .the notes given by him on any part of the purchase price to him of the tract of land purchased by him, the agent making such sale shall be entitled to the balance of his commission, to wit, $1.00 per acre, which said sum, in which event, first party agrees and binds himself to advance and pay to said agent of second parties, provided there be no money on hand from sale of ten-acre tracts to meet second parties’ deferred obligations to agents.
“(B) An amount equal to $1.75 per acre on the land sold in such instance to be paid second parties, which second parties agree to accept in full payment for all expenses, except the following items of expense: (1) Expenses heretofore incurred by first party, or the Simms Colonization Company, to date, in survesdng and platting and cutting roads, and the moneys expended and debts incurred by the Simms Colonization Company for expenses while operating under contract of September 7, 1908, which first party agrees shall not exceed $9,000, as well as expenses to be hereafter incurred by the first party for surveying, clearing, platting, and getting lands ready to put on the market, which first party is to do when necessary; (2) the commissions due agents of second parties, not to exceed $3 per acre, except in sale of ten-acre tracts, hereinafter provided for. The items of expense enumerated in paragraphs 1 and 2 next above shall, on final settlement, be borne equally, one-half by first party, and one-half by second parties.
“(C) The balance of the first cash payment, if any, paid by each purchaser (except in case of ten-acre tracts) to be at once divided equally, one-half to first party, and one-half to second party.
“(4) At the expiration of this contract, or when all of said land has been sold, if sold before this contract expires on its face, there shall be a full and complete settlement between the parties on the following basis, which shall constitute the basis of their rights therein:
“(A) First party to receive an amount equal to $13.00 an acre for all of said land sold by second parties during the life of this contract, and in addition thereto, receive the amount due him for any moneys previously advanced by him or by the Simms Colonization Company (corporation) to second parties, including all moneys advanced and to be advanced by first party, and said Simms Colonization Company (corporation) to survey and prepare said land for sale, together with 6 per cent, interest thereon per annum from date of several advancement, and of the remainder of the proceeds of all sales made by second parties, whether the same be in the shape of notes or cash, shall belong jointly, one-half to the .first party and the other half to the second parties herein, and if any of said notes then remain pledged to secure any part of the obligations of the first party, which obligations are secured by lien on the said lands of the ‘Lott’ ranch, in keeping with the terms of the contract hereto attached, and marked ‘A,’ then the amount of the share and interest of the second parties, if any, thus pledged, shall be designated and set apart to them as between the parties thereto, and said part thus designated and set apart to second parties shall bekept and held by the said then holders thereof, in escrow, for the use and benefit of the second parties, subject alone to said pledge, it being-agreed that the said holders thereof at the time shall first exhaust the interest of the first party in any such notes thus pledged before resorting to the interest therein of the second parties, and both parties agree to join in an application to have some bank in BeeviUe made depository for all said notes, and hold same according to the terms of this agreement.
“ (B) When the debt, for which said notes may be pledged at the time of such settlement has been fully paid off and 'discharged, then that amount of said notes designated and set apart for second parties shall be delivered by the holder thereof to said second parties, and to no one else, and the second party shall have the benefit of all interest accruing on said notes thus designated and set apart to them in any such settlement, and first party shall be entitled to all interest due on the notes not set apart to second parties. It is further understood that first party shall pay all interests due by him to the owners of the land on any obligations created by him under this contract with them.
“(5) The first party agrees to hereafter advance second parties $800.00 per month, beginning April 1, 1900, for and during' the next succeeding three months, payable monthly, and which sums thus hereafter advanced, together with the sum not exceeding $8,500.00 heretofore advanced by first party to second party, shall be paid to the first party, by the second parties, at San Antonio, Tex., in the following- manner: Eifty cents per acra on each acre sold, except land sold during July and August, 1909 (except ten-acre tracts), as fast as deeds are delivered, shall be deducted from the $1.75 per acre out of the first cash payment by purchasers allowed second parties for expenses, as herein-before provided and paid first party, until said $2,400.00, together with the amount not to exceed $3,500.00 heretofore advanced, with interest thereon at 7 per cent, per annum, has been fully paid off and discharged: Provided, however, such payment shall not in any case exceed an amount which will reduce the amount going for expenses to second party on any sale below $1,25 per acre. Should any such payment to first party be less than 50 cents per acre on any sale, it shall be made up to first party on subsequent sales in which there is sufficient surplus over $1.75 per acre to protect same.
“(6) It is further agreed that, if by January 1, 1910, the second parties have not sold or contracted to sell such reasonable number of acres of said land as to satisfy the first party, he shall have the option to cancel and vacate this contract. * * *
“(9) This contract shall continue and be in force until the 1st day of July, 1910, unless previously canceled and terminated under the provisions hereof, but no longer. * * *
“(12) If this contract shall become vacated and canceled at any time, then any settlement as between the parties shall be based on the number of acres of land sold under the terms of this contract by second parties to date of cancellation of same, and no liability shall rest against either party in favor of the other on account of any part of said lands which may remain unsold at the time.
“(13) Triplicate contracts of purchase shall be made by second parties, one to purchaser, one to Plummer, and keep one, until consummation of the trade. All earnest money collected on said contracts shall be immediately deposited with a bank- or trust company in San Antonio, Tex., to be agreed upon, in trust for all parties concerned in this contract. Should any prospective purchaser fail to complete his contract, all earnest money held to secure said contract upon his failure shall be divided into, three parts, one-third (%) to the agent making such sale, one-third (%) each to the first and second parties, and in such proportions at once disbursed by the parties.
“(14) It is agreed and understood that this contract shall cover all sales and contracts of sales made from said eighteen thousand seven hundred and twenty and 5-10 acre tract before the signing of this agreement, and when this agreement shall have been executed all earnest money, cash, and notes held by second parties shall be deposited in accordance with terms of this agreement as to lands to be hereafter sold.
“(15) Expense of maintaining an office at S'an Antonio shall nob be chargeable as an item of expense on final settlement had between parties herein.
“(16) No obligation shall, under any circumstances, rest upon the^ first party, or any liability arise against him, for any act or thing done by the second parties, outside of the scope of this contract, and it is distinctly understood between these contracting parties, and all sub-agents acting under the second parties shall take notice of the fact, that the party of the first part shall not be liable to second parties, nor to any other person in any event, for commissions on the sale or proposed sales of any of said lands or for any expenses o-r other claims or demands whatsoever, except as herein provided, and all contracts made between second parties and any other persons shall be made to conform to the terms and conditions of this conti'act so far as the first party is concerned.
“(17) Second party agrees to operate and advertise for sale said land under the trade ñame of ‘Simms Colonization Company,’ a co-partnership composed of second parties.
“(18) This contract shall not be varied by either party, except in writing, signed by them. This contract is made in lieu of, and to take the place of, said contract dated September 17, 190S, and supplement thereto of January 28, 1909.
“(19) The death or disability of W. M. Sims shall terminate this contract at once.
“(20) Each party hereto shall have a lien on all interest of the other party in this contract, and all proceeds arising therefrom, to satisfy any indebtedness due by one to the other undgr the terms hereof.”

The seventh clause of the contract made June 10, 1909, in regard to the sale of the Word section of .640 acres is as follows:

“(7) First party shall have the option to cancel this contract on January 1, 1910, provided second parties have not, previous to said date, sold a quantity of said land sufficient to satisfy first party, and, in case of such cancellation, a settlement to he then made between the parties on the basis of the terms hereof ,as to all said land sold by second parties prior to said cancellation, and further than such a settlement no liability to rest against either party in favor of the other on account of said cancellation.”

There was no error in the court’s refusal to charge the jury to find for the defendant. The contract provides that the proceeds of sales of the land in the shape of notes shall be placed in some bank in B'eeville, to be held in trust; and, while Plummer is given the right to place said notes with the Lotts as collateral security for the purchase money of the land, he is not given the right to dispose of appellee’s interest therein. Each party having an interest in these notes, the mere privilege is extended appellant to place them as collateral security. He is not given the right to sell appellees’ interest therein, and when he does sell same and pay his own debt with that interest in the notes he converts that interest to his own use and benefit. Instead of preserving tbe interest of appel-lees in the notes, appellant sold same or applied the whole of the notes in settlement of his own debt, which is a final disposition of the same. This assignment is overruled. Russell v. Deutschman, 100 S. W. 1164; Oliver v. Piatt, 44 U. S. (3 How.) 401, 11 L. Ed. 622; S. A. Nat. Bank v. Blocker et al., 77 Tex. 73, 13 S. W. 961; Hardie v. Wright, 83 Tex. 345, 18 S. W. 615; Marberry v. Bank, 6 Tex. Civ. App. 607, 26 S. W. 215.

The evidence shows that appellant disposed of all the notes received, and it is really immaterial whether the original purchase-money debt for the land was paid or merely transferred to the Central Trust Company, because Plummer said himself:

“The sale of the land was so slow money was not provided to meet the interest and make payment on my notes as they became due; therefore I was obliged to sell these notes as soon as they became marketable to meet the interest that was due and past due on my notes, and the money was applied and credited on my notes.”

Subdivision 15 of the contract provided that the Lotts should keep all notes until Plummer had paid his obligation to them in full, and, while this would give the Lotts the right to hold the proceeds until their debt was paid, and appellees would be bound by that as a part of their sales contract, it would not give appellant the right to sell appellees’ interest in said notes, nor would it relieve him from the duty of accounting therefor in a final settlement after he had sold them.

Clauses 3 and 4 of the contract provide for the distribution of the money, etc., and a full and complete settlement in case the contract of sale runs its full term and is carried out. But a provision was also incorporated in paragraph 12 giving appellant the right to cancel the contract January 1, 1910, and that right he exercised; consequently the question arises as to what the intention of the parties was as to how the items of expense were to be divided in the event of such cancellation. Testimony explaining this intention would not vary the provisions of paragraphs on subdivision 1, 2, and 3 of section B of the .third paragraph of the contract, because those subdivisions deal with a completed contract where its terms have been carried out by the sale of the land or the running the full term of the contract. The question here at issue was: Did the parties intend by paragraph 12 of the contract to provide that in the event the contract was canceled that the expenses referred to in paragraph 3 should he prorated on the basis of the number of acres sold? Paragraph 3 says that on final settlement these expenses shall be borne equally, and that is where the contract expires by its terms or is fulfilled by the sale of all the land. Paragraph 12 must have meant a different method of settlement than in 3, because, if such were not Its purpose, it would be useless. It occurs to us that the meaning of paragraph 12 is that any settlement growing out of a cancellation of the contract should be based on the number of acres sold; but this meaning cannot be said to be so certain as to preclude the necessity of submitting it to the jury to determine what the intention of the parties were as to such expenses. The objections, however, to the testimony were not well taken, because it was merely for the purpose of explaining what was meant by the parties when that clause was put in the contract, meaning of the writing not being certain. This is not varying the terms of paragraphs 3 and 4, because they deal with a contract whose terms have been fulfilled, and. this paragraph deals with another subject entirely. And, where a. part of a contract is ambiguous, it is not error for the court to submit to the jury to determine what the intention of the parties was. The court did not err in submitting that matter to the jury, and the second assignment is overruled. Arlington Heights Realty Co. v. Light Co., 160 S. W. 1109; Railway v. Anderson, 36 Tex. Civ. App. 121, 81 S. W. 781; Nalle v. McKnight, 126 S. W. 902; Feigelson v. Brown, 126 S. W. 17; Ginnuth v. Blake Co., 28 S. W. 828.

The third assignment is disposed of by what we have already said, and the same is overruled.

The court did not err in refusing appellant’s special charge No. 5, because the settlements provided in paragraphs 3 and 4 had reference to the completion of the contract or the expiration of the same under the time limit. The contract was canceled, and it therefore became necessary to adjust the rights of the parties as provided in the twelfth paragraph. The fourth assignment is overruled.

The fifth to seventh assignments, both inclusive, relate to the introduction of testimony as to the intention of the parties or meaning of clause 12, and they are overruled for the reasons already given. If it was not error to submit that issue to the jury, - certainly it was not error to admit the evidence on that issue.

The eighth assignment complains that the evidence does not show that the contract for the Word section was canceled before its expiration by its own terms, and therefore there is no basis for prorating the expenses, advances, etc., on account of that land. The plaintiff’s petition charged that both contracts were canceled January 1, 1910, and defendant’s answer does not deny this. Further, appellant, answering paragraph 5 of the petition, denies that at the time of the cancellation of said contracts aforesaid Simms, Harrison & Simms had made sales of said land, and says the sales were made by the Simms Colonization Company. It seems to have been undisputed that both contracts were canceled. Where the petition charges that both contracts were canceled, and this is not denied, proof on that matter is entirely unnecessary. The assignment is overruled.

The contract (thirteenth clause) provided that forfeit money on sales that were not completed should be divided, one-third to subagent making the sale, and one-third each to the contracting parties (appellant and appellees). Appellant requested a charge to the effect that in determining the number of acres sold the jury should take into account the number of acres contracted to he sold upon which earnest money was collected. . Appellant received his one-third of that money, the distribution of which was governed by said thirteenth paragraph, and, of course, he still had his land. In the event of snch forfeit money, the parties had fixed their own measure of adjustment hy providing for the distribution of the forfeit money. The ninth assignment is overruled; and the tenth and eleventh assignments, being without merit, are also overruled.

The twelfth assignment assails the action of the court in refusing to give appellant’s requested special charge No. 4, to the effect that if Simms, Harrison & Simms had assigned their contract to the Simms Colonization Company, a Kansas corporation, before the service was performed, and that corporation accepted the contract and undertook to carry it out, and it had not obtained a permit to do business in Texas, to find for the defendant. There was what was known as the Simms Colonization Company, a corporation chartered under the laws of Missouri, of which appellant was president. In making the contract with appellees, or with Win. Simms, appellant stipulated that they were to do business under the name of Simms Colonization Company, and business was done under that name. The appellees all testified positively that the contract was not assigned to the Simms Colonization Company of Kansas, hut stated that they did organize said corporation, and expected to- pay for their stock therein out of what they realized out of this' sales contract. They further say that the corporation never undertook to carry out the contract of sale at all. These parties, together with J. J. Harrison’s wife and D. F. Bowman, owned all of the stock in the corporation. This corporation was not organized until about October, 1909, and Harrison said:

“We expected to go ahead, after the sale of this land was over, with the corporation. That is what the corporation was intended for, to get another piece of land, buy it, and go ahead and sell it. The contract made with Mr. Tlum-mer provides that Simms, Harrison & Simms were to devote their exclusive time and attention to the sale of the Lott lands.”

In paragraph 17 it is provided that the land should be advertised for sale under the name of Simms Colonization Company, and paragraph 19 provides that the death or disability of W. M. Simms should terminate the contract. It is true some of the correspondence with appellant was on the letter heads of, and signed by, the corporation, but appellant says he made no contract with the corporation and did not recognize the same. Some of the checks given were indorsed hy Simms, Harrison & Simms to the corporation. This, however, is in line with their uncontra-dicted statements that they were paying for their stock out of what they made out of the sale of the Lott lands. It is absolutely immaterial, though, what they did with the money they made out of the Lott lands, so long as the corporation itself was not doing business in Texas in handling this land. In view of appellees’ positive testimony that they did not assign the contract, and the further requirement of the contract that Simms, Harrison & Simms do business in advertising these lands under the trade-name of Simms Colonization Company, and in the absence of any evidence of an assignment of a positive nature, we do not think the charge would have been justified. Furthermore, the auditor’s report was not excepted to because it improperly states an account between appellant and Simms, Harrison & Simms, or on the ground that there was no money due and owing that firm because of the alleged assignment of the contract. The assignment is overruled. St. Louis, etc., Ry. Co. v. Freedman, 18 Tex. Civ. App. 553, 46 S. W. 101; Galveston, etc., Ry. Co. v. Noelke, 110 S. W. 82; El Paso, etc., Ry. Co. v. Harris & Liebman, 110 S. W. 145.

On the whole, it appears that the case was fully developed and fairly tried, and we are not disposed to disturb the judgment, and it is in all things affirmed.

On Motion for Rehearing.

Appellants in their motion for rehearing contend that we erred in holding that the sale by Plummer of appellees’ interest in the notes deposited with the Lotts as collateral constituted conversion. This holding was made in considering the assignment of error complaining of the refusal of the court to give a peremptory instruction requiring the jury to return a general verdict in favor of defendant. This request was not made on the theory that defendant was not indebted to plaintiffs, for there can he no doubt in regard to that matter. The main controversy was in regard to the amount of the indebtedness, but defendant also pleaded that he had never paid off the debt due by him to the Lotts, and therefore the plaintiffs should not be permitted to collect their portion of the proceeds of the notes deposited as collateral. Defendant did not ask the court to dismiss plaintiffs’ case because the suit was prematurely brought, but, without assigning any reasons, asked the court to instruct a verdict upon which a judgment upon the merits would have been rendered in favor of defendant. The court refused this request, and in the motion for new trial defendant contended the request should have been granted on the ground that the suit was prematurely brought. Plaintiffs pleaded that defendant's sale of the plaintiffs’ interest in the notes deposited as collateral pursuant to the Lott contract, which sale was made without their knowledge or consent, and the appropriation of the proceeds to defendant’s benefit by applying the same to the payment of his debt to the Lotts, constituted a conversion of such interest in said notes, hut plaintiffs also pleaded the contract. Therefore, if under the terms of the contract and the facts proven plaintiff was entitled to collect his debt at the date of the judgment, it is immaterial whether defendant’s acts constituted conversion.

One of the clauses of the Lott-Pluinmer contract referred to in the original opinion provides that after Plummer has paid $30,000 of the purchase money a deed will be made him, retaining a vendor’s lien to secure the payment of five promissory notes by Plum-mer to the Lotts, one for $20,000, payable on or before 15 months from December 10, 190S, one for $18,041.85, passable on or before 18 months from December 10, 1908, one for $45,701.20, payable on or before 30 months from December 10, 1908, one for $45,761.20, payable on or before 42 months from December 10, 1908, and one for $45,761.20, payable on or before 54 months from December 10, 1908. Plummer is given the privilege of having released from the vendor’s lien retained in such deed tracts and subdivisions of land upon certain conditions, one of which is that the vendor’s lien notes given Plum-mer by the purchasers shall have been indorsed and delivered to the Lotts as collateral to secure the payment of the five purchase-money notes given by Plummer to the Lotts. The contract also provides as follows:

“All payments of principal or interest made on all purchase-money notes received by Plum-mer for tracts of the land sold by him to third parties, and which said notes have been theretofore indorsed by him to said first parties as collateral as provided in subdivision 9 hereof shall be retained by first parties, who shall receipt for said payments to the party paying same, and the same shall be credited by them on such notes. The first parties shall also at the same time receipt Plummer for saiíie and credit same as payment on Plummer’s purchase-money obligations to them, then maturing next after twelve months from December 10, 1908.”

The contract between Plummer and the Lotts is made a part of the contract between Plummer and Simms, Harrison & Simms, and said last-mentioned contract provides that sales of land except those of ten-acre tracts shall be made as provided in the Lott contract, and provides, further, that at the expiration of the contract there shall be a complete settlement between the parties, and, if any purchase-money notes then remain pledged to secure Plummer’s debt to Lott, the share and interest of Simms, Harrison & Simms therein shall be designated and set apart to them, and shall be kept by the holders thereof in escrow, subject only to the pledge, and with the understanding that Plummer’s interest in such pledged notes shall be first exhausted if the collateral is subjected to payment of Plummer’s debt; that, when the debt for which said notes may be pledged at the time of such settlement has been fully paid off and discharged, then that amount of said notes designated and set apart' for Simms, Harrison ■& Simms shall be delivered by the holder thereof to them, and they shall have the benefit of all interest accruing thereon. The contract was terminated by Plummer on January 1, 1910, under the option given Mm in paragraph 6 of the contract between him' and Simms, Harrison & Simms. No settlement and'designation of the interest of Simms, Harrison & Simms,' in the notes ever took place'. There was a direct conflict in the testimony on the point whether a request was made that Plummer should designate and set apart said notes. The record shows that a deed was made by the Lotts to Plummer, and, while the testimony is not clear, we construe it as showing that such deed was not executed until about February 25, 1910. Nothing is said about the notes, so we assume they were as called for in the contract. When the purchasers had paid the first of the three notes, Plummer was able to sell the remaining notes, and did so without the consent or knowledge of Simms, Harrison & Simms, the proceeds being credited upon his notes to the Lotts. He did this because sales were so slow that money was pot provided to pay the interest and the notes when due. It was admitted that the Lotts have been fully paid through a loan negotiated by Plummer with the Central Trust Company. Plummer testified:

“The Lotts have been paid, but the debt was transferred and has not been paid by me.”

The date when this occurred is not shown.

If the deed and notes from the Lotts to Plummer were executed according to the terms of the contract, and we must presume they were, the last note from Plummer to the Lotts matured 54 months after December 10. 1908; that is, on June 10, 1913. This suit was filed on May 6,1913, but no tender of the amount due was made by defendant, and the judgment was rendered on May 8, 1911. about 11 months after the last note to the Lotts became due.

The contract between Plummer and Simms. Harrison ■& Simms was drawn with the view of protecting the rights of the Lotts under the other contract, and it was therefore provided that Simms, Harrison ■& Simms could not get their part of the notes until the Lott debt was paid off. It was the intention of the parties to show clearly that no demand for a half interest in notes could be enforced so long as such notes were deposited as collateral for the benefit of the Lotts. No provision was made to the effect that Simms, Harrison & Simms could not collect from Plummer their half of such notes as should be paid, even though the proceeds thereof had been applied by the Lotts to the payment of Plummer’s debt to them. Therefore, had the settlement been made as provided in the contract, plaintiffs would have received their part of the proceeds of notes which had been paid, but their interest in the unpaid notes would have been merely designated and set apart, “subject alone to said pledge,” as is stated in the contract. No settlement was made, and plaintiffs were forced to seek one in the courts. At the time the court compel' led a settlement no notes were on hand, and therefore there was nothing “subject alone to said pledge.” Plummer bad voluntarily changed the situation so that the proceeds of the notes had answered the same purpose as if tlie notes had been collected. Thereby he deprived 'plaintiffs of their right to interest on their part of the notes, for which he would be answerable, but otherwise the transaction had the same effect as if the notes had been paid. In addition, it is to be noted that at the time the court by its judgment made the settlement between the parties all of the notes would have been paid, if paid at their maturity, and Plummer, having sold the1 notes cannot be heard to say that perchance some of them might not have been paid when due, and might still have been collateral had he not sold them. 'We believe there is no provision' of the contract which postpones until the payment of the T-iott debt, the collection by plaintiffs of their half of the proceeds of notes paid or sold. But, if such collection should be held to be postponed to the time when the Lott debt shall have been paid, we think that Plummer could not be permitted to take advantage of his failure to pay the Lott indebtedness when it matured, and, by getting some one else to carry it, keep plaintiffs from having a settlement until such time as suits his convenience. The parties contemplated that Plummer would pay his notes when due, and, while the Lotts could keep the proceeds of notes, or hold the notes themselves if not paid or sold, when their rights no longer interfere, Plummer cannot take advantage of rights they might have had in the notes liad he not sold them. The judgment was rendered 11 months after the last note to the Lottó would have been paid off had Plummer complied with his contract, and he cannot be heard to say that the time has not yet arrived when he should pay plaintiffs. We conclude that, aside from the issue of conversion, there is no merit in the first assignment of error.

The motion for rehearing is overruled.
      <£=^For other oases see same topic and KEY-NUMBER- in. all Key-Numbered Digests and Indexes

      <@x^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and .Indexes