author: RASBURY, J.

text:
    ST. LOUIS, S. F. & T. RY. CO. v. OVERTURF.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 24, 1914.
    Rehearing Denied Feb. 14, 1914.)
    1. Trial (§ 203) — Instructions—Form, Requisites, AND SUITTCIENCY.
    Defendant is entitled to have affirmatively presented to the jury any specified group of facts developed upon the trial, which, if true, would in law be a defense to the action.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 477-479; Dec. Dig. § 203.]
    2. Trial (§ 260) — Requests — Instructions Already Given.
    In an action by a boiler maker’s helper for an injury caused by his attempting to step_ from the cab of the engine to the tender after it had been removed by other employés, defendant’s request that when plaintiff entered its service he assumed the risks incident to the work, and if it was the custom to disconnect the tender without notifying employés in the fire box of the engine, then plaintiff could not recover was properly refused because sufficiently covered by that part of the main charge which charged that, if it was the custom to notify such employés when moving the- tender, then to find for plaintiff, but, on the other hand, it was not the custom, then to find for defendant; this being a sufficient affirmative presentation of the facts to satisfy the rule that defendant is entitled to an affirmative presentation of any group of facts in evidence which would be a defense.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    3. Trial (§ 253) — Action for Injury to Servant — Instructions Ignoring Issues.
    Where, in an action by a boiler maker’s helper for an injury caused by him attempting to step from the cab of the engine to the tender after it had been moved by other employés, the issue was as to whether it’ was the custom to notify workmen in the fire box of the removal of the tender, the court properly refused defendant’s request that even though its employés did sometimes notify those inside the fire box, hut it frequently occurred that the tender was removed without such notice, then plaintiff assumed the risk of such custom, since the request ignored the issue as made.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    4. Evidence (§ 528) — Action for Injury to Servant — Admissibility of Evidence — Nature and Cause of Injury.
    In an action for injury to a servant, physicians who had examined the injury were properly permitted to testify whether in their opinion the injury was such as would result or be caused by the accident.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2335-2337; Dec. Dig. § 528.]
    5. Damages (§ 131) — Action for Injury to Servant.
    Where, in an action for an injury to an employé, the evidence showed that two of his ribs were broken and his back and spine injured, that he was confined to his bed five or six weeks, suffered much, and had been unable to perform any labor, a verdict for $750 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. § 131.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by W. F. Overturf against the St. Louis, San Francisco & Texas Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Head, Smith, Maxey & Head, of Sherman, for appellant C. Huggins and McReynolds & Hay, all of Sherman, for appellee.

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

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

   RASBURY, J.

Appellee sued for damages for personal injuries alleged to have been received by him while performing his duties as boiler maker’s helper for appellant, and upon trial recovered verdict followed by judgment for $750, from which this appeal is taken.

The ground of negligence urged against appellant was the detaching of the tender from an engine in the fire box of which ap-pellee was at work at the time of the accident; it being further alleged that it -was appellant’s custom to notify those at work in the fire box that the tender had been or .would be detached. The facts hereafter stated will disclose what relation the detaching of the tender from the engine bore to ap-pellee’s injuries, and for that reason a further statement of appellee’s pleading is unnecessary.

Appellant met the allegations of the petition by the general denial, plea charging contributory negligence, and the further plea that appellee assumed the risk of the accident which brought about his injuries in that it was usual and customary to remove tenders from engines while its employés were engaged in the work in which appellee was engaged at the time he was injured, without giving notice to employés engaged at work in the fire box of the engine, and that appellee knew there was no rule requiring such notice, and that it was the usual custom to remove tenders without notice.

The record of the evidence sustains the following essential facts; Appellee was in the employ of appellant in- the capacity of boiler maker’s helper. On December 18, 1911, he assisted a boiler maker to do some work in the fire box of the engine upon which he was injured. When he went into the fire box of the engine, a tender was uncoupled thereto, and he entered upon the engine and into the fire box by going up the steps on the tender, crossing from the tender to the cab of the engine on an apron which was fastened to the cab of the engine by hinges and rested over on the tender, the purpose of which was to furnish a walk way for parties passing from the tender to the cab of the engine, which was the usual and customary way of getting on the engine, and thence into the fire box. The usual way for employés working on the engine to leave it was to pass from the deck of the engine over the apron between the engine and tender and thence down the steps on the tender. There was, at the time appellee entered the fire box, a storm curtain fastened at the top of the engine cab which extended down and reached within two or three inches of the floor of the engine cab at the outer edge thereof between the engine cab and tender. The engine was standing over a concrete pit some two or three feet deep below the rails upon which it was standing; the floor of the cab being some 7 or 8 feet above the rails, making the bottom of the pit 10 or 11 feet below the floor of the cab of the engine. During the time appellee was in the fire" box at his work, members of what was known as the tank gang uncoupled the tender from the engine and by use of pinch bars moved the tender some seven or eight feet back from the engine. Having finished his work about noon, appellee came out of the fire box of the engine, where he was at work, onto the cab of the engine, and assuming the tender was yet coupled thereto, and intending to walk across the apron onto the tender and down the steps thereof, stepped from the cab of the engine and fell into the pit below.

The evidence was conflicting on the issue of whether there was a rule requiring notice to be given of the intention to move the tender as detailed and as to whether it was usual and customary to move it without notice. There is testimony in the record sufficient to sustain a finding by the jury either way. There was also a conflict in the testimony relating to the extent of appellee’s injury, but the evidence in that behalf will in like manner support the finding of the jury.

The first assignment of error complains of the refusal of the court to allow appellant’s requested charge by which the jury was instructed that, when appellee entered the service of appellant, he assumed the risks of the manner in which appellant usually and customarily performed its work, and, if it was the usual and customary method and practice of appellant’s employés to disconnect and move the tender of an engine away without notifying any other employés engaged at work in the fire box of the engine that they had done so, to find for appellant. The only issue'of negligence presented to the jury upon trial and raised by the evidence was that of removing the tender from the engine and being the identical issue presented by the charge refused by the court. It has been repeatedly held and is now settled law that the defendant is entitled to have presented to the jury any specified group of facts developed upon trial, which, if true, would in law establish a given defense, provided, of course, that such requested charge is not substantially covered by the main charge or other allowed special charges. G., C. & S. F. R. Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538; M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058; M., K. & T. Ry. Co. v. Rogers, 91 Tex. 52, 40 S. W. 956; Dallas Consolidated St. Ry. Co. v. McGrew, 115 S. W. 344.

The rule being as we have stated, our duty necessarily narrows to ascertaining whether the court in its main charge substantially complied with the rule involved by the refused special charge. We conclude it did. The court in its main charge, after defining negligence, ordinary care, and contributory negligence, told the jury that: “When plaintiff entered the service of the defendant in the capacity of boiler maker’s helper, he assumed all the risks or danger ordinarily incident to such employment, except that he did not assume any risks or danger, if any, arising from the negligence of defendant, its agents or employés, unless he knew at the time of such negligence, if any, and appreciated the danger therefrom, or in the ordinary performance of the duties of his employment must necessarily have known of such negligence and the danger incident thereto.” Then came the instruction in the charge that appellant was bound to exercise only ordinary care to prevent injury to its employés, and then only in case the employé exercised ordinary care for his own safety. Following this, the only issue of negligence, as we have said, which was raised by the evidence was submitted to the jury from the standpoint of appellee’s evidence, wherein the jury were instructed that if they believed from the evidence “that it was the custom of defendant, while its employés were working in and about said engine, if it became necessary to move the tender therefrom, * * * to notify the employes engaged in working in and about the engine that such tender would be removed,” to find for appellee. After such instruction the court then proceeds: “On the other hand, ⅜ * * if you believe from the evidence that it was not the custom for the defendant or its employés to notify employés working in and about the engine that the tender was going to be moved ⅞ ⅛ * then y0U gn(j £or thg defendant.” As indicated by the asterisks, this issue was submitted along with others of appellant’s defenses in the seventh paragraph of the court’s charge in the same manner that appellee’s side of the case was presented in the sixth paragraph. Thus it clearly appears that the fact constituting the defense which, if true and accepted so by the jury, would in law establish the defense of assumed risk was before the jury for whatever it was worth. If before the jury, was it affirmatively presented? We think it was.' Because, as we understand the rule, it comprehends but two elements, one the grouping, either in the main charge or in special charges, the fact or facts constituting the particular defense and its affirmative presentation to the jury. The refused charge tells the jury, if it was the custom to detach the tender from the engine without notifying those engaged at work in the fire box, to find for appellant. The court charge tells the jury, if it was the custom to notify those at work in the fire box of the removal of the tender, to find for appellee; but, on the other hand, if it was not the custom to notify them, to find for appellant. We are unable to see how the manner of putting the issue could be otherwise and an orderly observance of the burdens cast upon each party to the suit be maintained. The complaint must precede the defense, and when the complaint is that the injury resulted from the violatiou of a custom to notify those inside the engine that the tender would be removed, and defendant asserts that it was not the rule to notify those inside, but to remove the tender without notice, and the jury is instructed, if no such custom existed, to find for the defendant, is -equivalent to saying 'they should find for defendant if it was the custom to detach such tenders without notice to those inside the fire box.

The second assignment of error complains of the refusal of the court to give appellant’s special charge instructing the jury that even though appellant’s employés did sometimes notify those inside the fire box of their intention to detach the tender, but it frequently occurred while appellee was in the employ of appellant that the tender was removed without the notice, then appellant assumed the risk of such custom. This special charge of appellant, in our opinion, was properly refused. Appellee’s pleading charged the existence of a custom by which em-ployés in the fire box were notified of the detaching of the tender. Appellant’s answer denied the existence of the custom and alleged the custom to be to detach without notice. Testimony was introduced to support the allegations of both parties. To have given the requested charge would, in our opinion, have ignored the issue as cast in the case, and in the final analysis would have been to instruct the jury that appellee assumed appellant’s negligence, since under ap-pellee’s pleading and evidence the failure “sometimes” to'give the notice was the very act of negligence complained of, while by appellant’s pleading it was not negligence for the reason it was customary to do so, and, being customary, was a risk assumed by ap-pellee. Further, the charge would in effect tell the’jury if appellant was at times negligent, and appellee knew it, he assumed the risk of such occasional acts of negligence.

The third assignment of error complains of the refusal of the court to allow appellant’s special instruction presenting the issue of assumed risk differing to some extent with the charge discussed under the first assignment. For the reason that w© think that issue was correctly presented in the court’s main charge, said assignment is overruled.

The fourth assignment complains of the admission of the testimony of physicians who were testifying as experts. Drs. W. 0. and J. A. Rutledge testified that they examined appellee about 15 days after his injury and found two of his ribs fractured, his back swollen and tender and sensitive to the touch along the spine in the lumbar region. At this point counsel for appellee detailed the manner in which appellee from the tender, striking. the.draw» bar of the engine tender, falling some 10 or 12 feet below upon the concrete foundation of the pit, and asked the witnesses to state whether such fall would or would not be calculated to .produce the injuries he found when he examined him subsequent to the fall. Over' the objection of appellant properly preserved, the witnesses answered it would. To Dr. J. F. Jones, a witness for appellant, counsel for appellee propounded on cross-examination in substance the same question and secured the same answer. This witness did not examine the appellee until the day before the trial, at which time he did not find any evidence of the injuries complained of by appellee. The answer to the question propounded, however, was that the fall as detailed would be calculated to produce the injuries which appellee claimed to have received. To the same effect was the testimony of Dr. J. O. Matthews, also a witness for appellant. The contention is that the foregoing testimony is irrelevant, immaterial, calls for the opinion and conclusion of the witnesses upon a matter not the subject of expert testimony, is problematical, remote, and an invasion of the province of the jury. The rule contended for by appellant has been decided adversely to.it. In Texas Central Ry. Co. v. Burnett, 80 Tex. 536, 16 S. W. 320, it is said: “The first and fourth assignments of error present the question whether the court erred in permitting physicians who knew the condition of Mrs. Burnett to give their opinions as to whether her injuries were such as would likely result from such a concussion as was shown, and the court correctly received their evidence.” To the same effect is Wheeler v. Tyler Southeastern Ry. Co., 91 Tex. 356, 41 S. W. 876; G., H. & S. A. Ry. Co. v. Cherry, 44 Tex. Civ. App. 344, 98 S. W. 898; G., H. & S. A. Ry. Co. v. Henefy, 115 S. W. 57, and cases cited.

The fifth assignment of error complains of the refusal of the trial court to grant a new trial, because of the excessiveness of the verdict. The amount of the verdict is $750, and the point made is that it is excessive, considering the extent of appellee’s injuries. Appellee testified that as a result of the fall it broke two of his ribs and injured his back and spine; that he was confined to his bed five or six weeks, and suffered much pain, and that after getting out of bed was unable to perform any labor or earn money; and that at the time of trial his back was causing him considerable trouble. Dr. Rutledge, who attended appellee, testified that when he began treating him after the accident two of his ribs were fractured and the muscles of his back rigid and swollen, and that he was wholly disabled from performing any character of physical labor for perhaps six months. This is the testimony of appellee, which is tendered to support the verdict; Considering the elements that go to make up recoverable actual damages, we conclude that the evidence well sustains the amount of the verdict, and that we are not authorized, in view of the narrow and circumscribed prerogative we have in such cases, to say the verdict is excessive.

We conclude that the record presents no reversible errors, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    MASTERSON IRR. CO. et al. v. FOOTE et al.
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 22, 1913.
    Rehearing Denied Feb. 19, 1914.)
    1. Execution (§ 283) — Evidence.
    Evidence, in trespass to try title, held to show that the execution under which land was sold was issued against Elijah “Hunnings,” instead of “Hennings.”
    [Ed. Note. — For other cases, see Execution, Cent. Dig. § 744; Dec. Dig. § 283.]
    2. Trespass to Try Title (§ 11) — Proof of Title.
    Defendant, in trespass to try title, cannot defeat plaintiff’s prima facie title, evidenced by a deed from the common source, merely by showing that he holds a senior deed from such source, without also showing that the land conveyed to him thereby conflicts with plaintiff’s title, but, in case of such showing, plaintiff’s title fails as to the part of the land as to which title conflicts.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 14; Dec. Dig. § 11.]
    3. Trespass to Try Title (§ 6) — Burden op Showing Title.
    Plaintiff, in trespass to try title, can recover only upon the strength of his own title, and he cannot recover if the evidence shows that he has title to only a part of the land claimed, and does not show the part to which he has title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dee. Dig. § 6.]
    4. Trespass to Try Title (§ 38) — Burden op Proop.
    Where the evidence, in trespass to try title, showed that defendant’s senior deed to 200 acres from the common source covered at least a part of the land claimed by plaintiff, the burden was upon plaintiff to show what part of the tract claimed by him was not included within defendant’s conveyance.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.]
    5. Evidence (§ 460) — Parol Evidence — Sheriff’s Deed — Land Conveyed.
    A sheriff’s deed on execution for “two hundred acres off the south end of the eight hundred acres of land known as the Bed Bluff league being a part of tract sold by H. to H.” definitely conveyed 200 acres off the south end 'of the 800 acres, so that parol evidence to show an intention to convey a different tract is not admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. § 460.]
    6. Estoppel (§ 94) — Estoppel by Contract.
    The fact that one who had received a sheriff’s deed to 200 acres of land subsequently tools an acknowledgment of a conveyance of another tract by the owner and read the description in such subsequent conveyance, and knew of the conflict between that and the land conveyed by the sheriff’s deed, would not estop him from asserting title under his own deed, as against the subsequent conveyance; it being his duty, as a notary public, to take the acknowledgment when requested by grantor.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 245-247, 276-284; Dec. Dig. § 94.]
    7. Execution (§ 333) — Beturn — “Next Term op Court.”
    The law in force on February 6, 1844, when an execution was issued' which required that it be returned before the “next term of court;” meant the next regular term of court, so that it was not returnable to the special term.
    LEd. Note. — For other cases, see Execution, Cent. Dig. §§ 1002-1004; Dec. Dig. § 333 For other definitions, see Words and Phrasest vol. 5, pp. 4805-4807.]
    8. Execution (§ 333) — Beturn.
    In view of 2 Gam. Law, pp. 916, 917, authorizing a special term of court, and providing that it shall be deemed the fall term of the district court for the year 1843, and that all process returnable to the fall term should be made returnable to the special term, an execution issued after the date of the regular fall term, and before the passage of the act creating the special term, was not returnable to the special term.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 1002-10.04; Dee. Dig. § 333.]
    9. Execution (§ 60) — Issuance — Officer Entitled.
    Under 2 Gam. Laws, 91, Act Jan. 20, 1839, providing that all process theretofore issued by the county courts in which the amount exceeded $100 should be returned to the district court, the clerk of the district court was authorized to issue execution upon a judgment rendered in the county court.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 146, 147; Dec. Dig. § 60.]
    Error to District Court, Harris County; Chas. E. Ashe, Judge.
    Action by W. O. Foote and another against the Masterson Irrigation Company and others. Judgment for plaintiffs, and defendants bring error.
    Beversed and rendered.
    Elliott Cage and Baker, Botts, Parker & Garwood, all of Houston, for plaintiffs in error. Maco & Minor Stewart and B. W. I-Iouk, all of Houston, for defendants in error.

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

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

   PLEASANTS, C. J.

This is an action of trespass to try title brought by W. O. Foote and George Locke, who will be hereinafter styled appellees, against the Masterson Irrigation Company, H. Masterson, J. O. Boss, and Ellen B. Boss, said J. O. Boss and Ellen B. Boss being sued individually and as executors of the will of J. H. Burnett, deceased, to recover a tract of 137 acres of land, a part of the W. P. Harris league in Harris county. The petition contains the usual allegations in an action of trespass to try title, and in addition thereto the following allegations: “That defendants claim under a sheriff’s deed from Elijah Hunnings (or Hennings) to J. A. Southmayd, wherein the property therein attempted to be conveyed is described as ‘200 acres of land of the south end of 800 acres of land known as Bed Bluff league,’ while the property intended by the parties thereto to be purchased and conveyed was 200 acres off the west end of the 800-acre tract, and that said deed, and defendants’ claim under same, is a cloud upon plaintiffs’ title to the land sued for herein.” The defendants answered by general demurrer, general denial, and plea of not guilty. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiffs.

The land in controversy is a part of a tract of 800 acres conveyed by W. P. Harris to Elijah Hunnings on December 12, 1840. This 800-acre tract is described as follows: “All that certain piece or parcel of land beginning on the margin of Galveston Bay at a point east of an old line marked through an island of timber, laying and situated south and near the dwelling now occupied by Bern jamin F. Hannah, out of a league called the Bed Bluff, granted by the Mexican government to William P. Harris; thence west to the back line or west line of said league; thence south on said back or west line so far that a line run east to'Galveston Bay, and with the meanderings of said bay to the place of beginning shall include in the limits of said survey the area of 800 acres of land.”

The 137-acre tract claimed by plaintiffs is thus described in plaintiffs’ petition, and in a deed from Elijah Hunnings to James Morgan of date April 12, 1846: “Beginning at the lower corner of said Hunnings 800-acre tract on the bay, meandering up sdid bay N. W. far enough to make 250 vrs. perpendicular front to a stake on bay. Thence W. 2640 vrs. to a stake on Taylors bayou a water oak mkd. cross & 3 chops 3 vrs. dst. bears S. Thence with the meanders of Taylors bayou to post set on bank it being on the line of said Hunnings lower line, thence E. 3130 vrs. to post, place of beginning, containing 137 acres of land English measure. The S. boundary line was run at 10 deg. variation, the upper line N. boundary was run at 9 deg. 45 min. variation.”

Plaintiffs • are the holders of the Morgan title, and own whatever land he acquired title to by the deed last mentioned.

On November 1, 1838, in a suit by D. A. McCaskiil, surviving partner of the firm of McCaskiil & Dobie, against Elijah Hunnings, in the county court of Harris county, a judgment was rendered in favor of plaintiff against the said Hunnings for the sum of $132.06 principal and $24.20 interest, and all costs of suit. The minutes of the district court of Harris county contain an entry showing that an execution was issued on this judgment on October 24, 1843, and directed and delivered to the sheriff of Harris county and returned by him on April 6, 1844. The return as shown in these minutes is as follows: “Levied on 200 acres of land and sold to J. A. Southmayd on 6th February, 1844, for particulars see execution.” The entry describes the judgment of date November 1, 1838, and the amount $132.06 debt and $24.20 interest. The style of the case is also given.

There is no question as to the name of the plaintiff, D. A. McCaskiil, surviving partner of McCaskiil & Dobie. Appellees contend that the name of the defendant in said suit, as copied in this entry, is Elijah “Hennings.” A photographic copy of this record has been sent up in the statement of facts, and from an examination of this copy in the light of all the facts disclosed by the record, our conclusion is that the name as written, in the entry is beyond any reasonable doubt “Hun-nings,” and not “Hennings,” as contended by appellees.'

The deed records of Harris county which were introduced in evidence show the following deed, which is dated February 6, 1844, and was duly recorded in said records on February 17, 1844: “Enow all men by these presents, that whereas, at the Hon. the county court of Harris county, held at the city of Houston, on the first day of November, 1838, McCaskiil and Dobie by D. McCaskiil, surviving partner &c. recovered a judgment against Elijah Hunnings or Hemmings [but which plaintiffs contend is ‘Hennings’] the sum of one hundred and thirty two 06/100 dollars, with interest and costs of suit, amounting altogether to the sum of one hundred and eight five 01/100 dollars, upon which said judgment, an execution issued thereupon on the eleventh day of November 1838 from the office of the county clerk of said county, and was returned stayed by order of S. N. Dobie agent for the plaintiff. And whereas, on the 17th day of October, A. D. 1843, the papers in the said case were sent up to the said clerk of the district court for said county for execution to issue thereupon. And whereas an execution was issued from the clerk’s office of the district court aforesaid, bearing date the 24th day of October A. D. 1843, and directed to the sheriff of Hams county, commanding him to levy on the goods and chattels, lands and tenements of Elijah Hunnings (or Hem-mings) sufficient to satisfy the sum of one hundred and thirty two and 06/100 dollars debt, twenty four and 20/100 dollars interest, and twenty eight 75/100 dollars cost to date, as also all costs which may accrue, and expose the same at public sale to the highest bidder after giving lawful notice thereof. That in accordance with the requisitions of said writ, I the sheriff proceeded to levy and seize the following described property, viz.: Two hundred acres of land of the south end on eight hundred acres of land known as the Red Bluff league being a part of tract sold by Wm. P. Harris to the said Hunnings oil-lemmings [or, as plaintiffs claim, Hennings]. * ⅜ ⅜ » g0es on ⅜-0 recite that the land was sold at public auction, and reads: “Whereupon John Allen Southmayd offered the sum of sixteen and two thirds cents per acre for said 200 acres ⅜ * * the said 200 acres of land was sold to him, the said J. A. Southmayd. ⅜ ⅜ * ” The deed closes with the following: “To have and- to hold the same to himself, his heirs and assigns, forever, is as full, good and perfect a manner and estate as the said Elijah Hunnings [very plainly written this time], above mentioned, had at or after the rendition of the cited judgment, in said premises became liable to satisfy the same, with damages and costs of court. * * * Dated February 6, 1844.”

The original execution referred to on the execution docket or minutes of the district court of Harris county above mentioned, and in the deed above copied .is lost, and could not be produced upon the trial.

Defendants have acquired the title of J. A. Southmayd to the 200 acres of land conveyed by said deed. There has been active assertion of ownership of the 200 acres of land out of the Elijah Hunnings 800-acre survey by J. A. Southmayd, and those claiming under him, ever since the execution of said sheriff’s deed, and it does not appear that any claim was ever made to said 200 acres by Hunnings, or any one claiming under him, until 1897, when some of the heirs of Elijah Hunnings brought suit against the predecessors in title of appellees to recover said land, claiming that the execution sale and sheriff’s deed was void because said execution was not issued against Elijah Hun-nings, but against Elijah Hemmings, and because said deed was void for insufficiency in the description of the 200 acres of land thereby attempted to he conveyed. Upon an appeal of that case to this court the judgment of the court below was reversed, and judgment rendered in favor of the defendants in the court below, upholding the validity of said deed. Vide Turner v. Crane, 19 Tex. Civ. App. 369, 47 S. W. 822. The statement of facts in the present case contains a photographic copy of the sheriff’s deed before set out. From this copy the name of the defendant in the judgment and in the execution under which the levy and sale were made, as written in said deed, might be read Elijah Hemmings, and, unless the character which appears to be an “e” in said name be considered as a part of the capital (H) with which the surname of the defendant in the execution begins, and we think it might be so considered, the name of Hemmings. We do not think that it could be read Hennings. The name in the habendum clause of the deed is plainly written Elijah Hunnings.

There is evidence showing that appellants’ predecessor in 'title for many years, in fact until the rendition of the judgment in the case of Turner v. Crane, before cited, understood that the 200 acres of land conveyed by the sheriff’s deed was located on the west end of the 800-acre tract. One of appellants’ immediate predecessors in title brought suit and recovered the value of a railroad right of way extending across the west end of said 800 acres, claiming that said right of way was across the 200 acres which he held under said sheriff’s deed.

It was also shown that J. A. Southmayd, as notary public, took the acknowledgment of Elijah Hunnings to the deed to James Morgan, conveying the 137 acres claimed by appellees.

The trial court instructed the jury to find for defendants if they believed from the evidence that the execution under which the 200 acres of land was sold by the sheriff of Harris county commanded the sheriff to sell the property of Elijah Hunnings, and to find for plaintiff if they believed from the evidence that said execution commanded the sale of the property of Elijah Hennings. This was the only issue submitted to the jury.

We think the verdict of the jury is without any evidence to support it, and appellants’ first assignment of error, which assails the verdict on this ground must be sustained.

The case of Turner v. Crane, supra, is, we think, conclusive of this question. In that case it was held that the discrepancies in the names appearing in the deed as the name of defendant in the judgment and execution were not sufficient, in view of the other undisputed evidence in the ease, to raise an issue as to said execution having been issued against Elijah Hunnings. The evidence in this case is certainly no stronger in favor of appellees’ contention than the evidence in the Turner Case. If, as contended by appel-lees, the entry in the district court minutes showing the issuance of the execution and giving the style of the cause in which it was issued is entitled to greater weight as evidence of the name of the person whose property the sheriff was commanded to sell than any of the other evidence on this issue shown by the record, this case is stronger for the defendants than the Turner Case, because, as we have before found, the name of the defendant in the execution, as shown by the entry in said minutes, is undoubtedly Elijah Hunnings. If there was no other evidence in the case and the written entry could alone be looked to, there might be some doubt as to whether the name was Hunnings, but the most that could be said in favor of appel-lees’ contention would be that the name is as much like “Hennings” as “Hunnings.” When, however, we look at the entry with a knowledge of the facts that a judgment in favor of D. A. McCaskill, surviving partner of McCaskill & Dobie, was, on the date stated in said entry, rendered against Elijah Hunnings for the exact amounts of debt and interest stated in said entry, that under the execution issued on this judgment the sheriff of Harris county levied upon and sold 200 acres of land belonging to Elijah Hunnings and sold it as the property of said Hunnings, and that neither Hunnings nor his heirs, until more than 50 years thereafter, ever questioned the validity of said execution sale, though they must have known of the active assertion of title thereunder by those claiming under the sheriff’s deed, we think no one could hesitate to read the name, as copied ■in said entry, Elijah Hunnings.

In addition to the facts above set out, there is no evidence of the existence of any person by the name of Hennings at the time this execution was issued, or at any time.

We do not think, in the light of all the evidence in this case, that reasonable minds can differ in the conclusion that the execution under which the 200 acres of land claimed by appellants was sold was issued against Elijah Hunnings,- and commanded the sheriff of Harris county to sell the property of said Hunnings.

In the case of Turner v. Crane, supra, it was also held that the description in the sheriff’s deed before set out is sufficient, and that the 200 acres of land thereby conveyed is off the south end of the 800-acre tract, and lies between the south line of the 800-acre tract and a line parallel with said south line extending from the west to the east line of the 800-acre tract, and located far enough north of the south line to include within said boundaries 200 acres of land.

From the description of the 137-acre tract claimed by appellees it is certain that it conflicts with the senior survey of 200 acres owned by appellants, as the location of said 200 acres is fixed by the description in the deed under which appellants claim. The extent of this conflict is not definitely shown. There is no map or plat in the record, and the statement of facts contains no data from which the exact width of the 200-acre tract can be determined. The facts that this tract extends entirely across the 800-acre tract from west to east and along the south line of said tract, and that the 137-acre tract lies in the southeast corner of the 800-acre tract, and extends along the south line of said tract, for a distance of 3,130 varas, conclusively shows that the said two tracts conflict, and that the 137-acre tract is largely, if not entirely, within the boundaries of the 200 acres, but, as before stated, the exact extent of said conflict is not shown. Upon this state of the record the appellees contend that the judgment should be affirmed regardless of whether appellants have shown title to said 200 acres because the burden was on appellants to show the extent of the conflict between the two tracts, and, having failed to discharge this burden, appellees are entitled to recover the 137 acres. In support of this contention appellees cite the cases of McNamara v. Muensch, 66 Tex. 69, 17 S. W. 397, Simmons Hardware Co. v. Davis, 87 Tex. 147, 27 S. W. 62, and Koenigheim v. Miles, 67 Tex. 119, 2 S. W. 81. Each of these cases can be distinguished from the instant cáse. In none of them did the evidence show a conflict between a junior survey claimed by the plaintiff and a senior survey claimed by the defendant. In the McNamara Oase the court held that, the plaintiff having shown a paper title to. the land claimed by him by the introduction of deeds to him describing said land, and by proof of common source, “in the absence of some evidence tending to show a superior right in the defendant to the particular tract claimed by him in his pleading,” judgment should have been refused in favor of the plaintiff. The court further say in this case: “From the record before us there is nothing to show that the plaintiff has not perfect title to every foot of land described in his petition. He exhibited deeds from one admitted to be the common source of title, which conveyed to him the land claimed in his petition; unless there be some fact not shown, that will control the effect which would ordinarily be given to the calls in the deeds. The defendant made no proof whatever, and, under the charge of the court," there should have been a verdict and judgment for the plaintiff.”

In the Koenigheim Case the court finds in effect that the evidence established that the land actually conveyed to the defendant and described in the deed under which he claims did not conflict with plaintiff’s land.

In the Simmons Case the evidence failed to show a conflict between the land claimed by plaintiff and that claimed by the defendant.

It goes without saying that a defendant cannot defeat a prima facie title in a plaintiff, evidenced by a deed from a common source, by merely showing that he holds a senior deed from the common source, but he must go further, and show that the land conveyed to him by the common source is the same land, or conflicts with the land conveyed to plaintiff. When a conflict between the land conveyed by the common source to the defendant and that conveyed by a junior deed to the plaintiff is apparent from descriptions in the deeds, the title of the plaintiff fails to that portion of the land in conflict. To permit plaintiff in such case to recover all of the land claimed under his deed would manifestly permit him to recover land to which the evidence shows he has no title. The plaintiff, in an action of trespass to try title, can only recover upon the strengjth of his own title; and, if the evidence as a whole shows that he has title to only a portion of the land claimed by him, and fails to show to what portion or interest in the land he has title, he shows no right of recovery.

In this case the evidence fails to show that appellees have title to any of the 137 acres claimed by them. As before said, the 200 acres held by the appellants under the senior deed from Hunnings is shown by the description in the two deeds to cover a large portion, if not all, of the 137 acres claimed by appellees. Such being the case, we think the burden was upon appellees to show what, if any, portion of the 137 acres claimed by them was not included in the prior conveyance under which appellants claim. In this connection we will dispose of appellees’ claim that the evidence shows that the 200 acres of land claimed by appellants is located on the west end of the 800-acre tract, and is therefore not in conflict with the 137-acre tract claimed by appellees. As stated in our conclusions of fact before set out, there is evidence showing that some of appellants’ predecessors in' title claimed that the 200 acres was off the west end of the 800 acres, but the claim could not change the location of the land as fixed by the sheriff’s deed.

In the Turner Case, before cited, this court construed that deed, and held that it described a certain definite 200 acres of land off the south end of the 800 acres. We have no doubt of the soundness of this construction of said deed. There being no ambiguity in the description of the land contained in the deed, parol evidence of the intention of the parties cannot be considered for the purpose of showing that a different tract of land from that described in the deed was intended to be conveyed thereby. The deed might have been canceled on the ground of mutual mistake by timely suit for that purpose, but it cannot, in this proceeding, be made to apply to different land from that described therein, by simply showing that the ven-dee in said deed and others of appellants predecessors in title supposed that it conveyed other land. Appellants are not claiming other land than that described in the deed, and all of the remainder of the 800 acres of land is held by other parties under title from Hunnings or his heirs.

We do not think the issue of estoppel is raised by the evidence. It is not shown that appellees, or any of their predecessors in title, at the time they purchased the 137 acres, had any knowledge of the fact that any one claiming under the sheriff’s deed claimed that the land thereby conveyed was located at any place other than where the description in said deed placed it.

The fact that Southmayd, as notary public, took the acknowledgment of Hunnings to the deed to James Morgan does not show that he was aware that the 137 acres conflicted with the 200 acres conveyed to him by the sheriff’s deed. He was not required, as such officer, to read the description of the land conveyed by the deed. If, however, he had read the description and knew of the conflict, the mere fact that he took the grantor’s acknowledgment to the deed would not estop him. It was his duty as notary public to take the acknowledgment when requested by the grantor, and an estoppel against him cannot be based on that fact alone.

There is no merit in appellees’ contention that the execution under which the 200 acres was sold was functus officio. This contention is based on the fact that a special term of the district court of Harris county intervened between the date the execution was issued and the date of sale thereunder. We think the law in force at the time this execution was issued, which required that it be returned before the next term of the court, referred to the next regular term of the court, and the execution was not returnable to the special term.

Besides this, the act authorizing the holding of the special term provides that it shall be “deemed and considered the fall term of said district court for the year 1843,” which had not been held because of the sickness of the judge, and that all process issued and returnable to said fall term should be made returnable to the special term. Gam. Laws, vol. 2, pp. 916, 917. The execution in question was issued after the date for the regular fall term, and before the passage of the act creating the special term; and, as that act only made process originally returnable to the preceding fall term returnable to the special term, we think that process, issued after said fall term, and not returnable thereto, was not returnable to the special term.

The clerk of the district court was authorized to issue the execution upon the judgment rendered' in the county court under the act of January 20,1839 (2 Gam. Laws, 91) which changed the jurisdiction of the county courts, and provided that all process theretofore issued by the county courts in which the amount exceeded $100 should be returned by the judges and clerks of the county courts to the district court. This statute is very clumsily written, and its meaning might well be considered doubtful, but it has been expressly held by our Supreme Court that, in the cases mentioned of which the county court was relieved of jurisdiction, this statute required that the same be transferred to the district court, and conferred upon that court jurisdiction of such cases. Campbell v. Townsend, 26 Tex. 514. This decision is conclusive of the authority of the district clerk to issue , the execution in question.

We are of opinion that the judgment of the court below should be reversed, and judgment here rendered for appellants, but this judgment is not to affect appellees’ title to any portion of the 137 acres claimed by them which- may not be in conflict with the 200 acres claimed by appellants as same is located by the description in the sheriff’s deed under which appellants claim.

Iieversed and rendered.


author: RICE, J.

text:
    RANDOLPH v. LEWIS.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 12, 1913.
    On Motion for Rehearing, Feb. 18, 1914.)
    1. Adverse Possession (§ 80)—Deeds—Suf-ficiency of Description.
    In a suit in trespass to try title, a deed was properly admitted in evidence in support of defendant’s plea of five-year limitation, though it incorrectly stated the certificate number and the name of the original patentee, where the land could be otherwise located from its recitals.
    [Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 463-467; Dec. Dig. § 80.]
    2. Evidence (§ 333)—Admissibility—Public Becords—“Assessor’s Abstract” — Trespass to Try Title.
    The assessor’s abstract, being a public record within Sayles’ Ann. Civ. St. 1897, art. 2306 (Bev. Civ. St. 1911, art. 3694), providing that certified copies of public records shall be prima facie evidence, was admissible in evidence in trespass to try title, though the deed offered by defendant in support of his plea of five-year limitation made no reference to it.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1247-1257, 1259-1265; Dec. Dig. § 333.]

      3. Appeal and Ebbob (§ 1051) — Haemless Eeeoe — Admission oe Evidence.
    Ia trespass to try title, the admission in evidence of the assessor’s abstract, if erroneous because not referred to in the deed offered by defendant in supnort of his plea of five-year limitations, is harmless, where the land is otherwise sufficiently identified.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    4. Advebse Possession (§ 16) — Acquisition oe Title — Sufficiency oe Use.
    Where the purchaser of land immediately placed his deed on record, inclosed the land, and continuously used it for more than five years as pasture for stock, and paid taxes thereon, he acquired title under the five-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 82-89; Dec. Dig. § 16.]
    5. Advebse Possession (§ 95) — Title to Realty — Acquisition—Payment oe Taxes —Evidence.
    Payment of taxes, when relied on as the basis of title by five-year limitations, may be shown by parol or circumstantial evidence.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 530-532: Dec. Dig. § 95.]
    6. Deeds (§ 38) — Descbiption oe Land — Sufficiency,
    That a description in a deed does not entirely inclose the land will not invalidate the deed, where it otherwise sufficiently identifies the land.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 65-79; Dec. Dig. § 38.]
    7. Advebse Possession (§ 19) — Acquisition oe Title — Sueeicienoy oe Possession.
    Merely that one side of a tract of land, to which defendant in trespass to try title claimed title under the five-year statute of limitations, was not fenced, but was bounded by a river, could not defeat defendant’s claim.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 99-105; Dec. Dig. § 19.]
    8. Advebse Possession (§ 19) — Acquisition oe Title — Sufeioiency oe Possession — Sep-ABATE INCLOSUEE.
    It is not essential to the acouisRion of title under the five-year statute of limitations that the land be separately inclosed, but is sufficient that there be a general inelosure; even though other surveys are included therein.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 99-105; Dec. Dig. § 19.]
    Appeal from District Court, Madison County ; S. W. Dean, Judge.
    Trespass to try title by R. J. Randolph against C. H. Lewis. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Randolph & Randolph, of Madisonville, for appellant. E. A. Berry and J. M. Brownlee, both of Madisonville, for appellee.

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

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

   RICE, J.

Appellant brought this suit in trespass to try title against appellee for 369 acres of land in Madison county, patented to Samuel Bogart, assignee of John W. Holman, on February 14, 1852, by virtue of certificate 347. Appellee relied alone on the plea of the five-year statute of limitation, which was sustained, and judgment entered for him for the land, from which this appeal is taken.

The case being tried without a jury, the court filed its conclusions of fact and law, and the questions relied upon for reversal relate to supposed errors in the rulings of the court in the admission of testimony, and urge that the findings of fact are, for several reasons, insufficient to support the judgment, each of which will be considered.

The first assignment questions the correctness of the court’s ruling in admitting in evidence, over appellant’s objection, the deed from Donohoe to Lewis, which was offered by appellee in support of his plea of five-year limitation, the objection being that said deed did not embrace the land in controversy, and because the description was insufficient to identify the land, and therefore the same was not a deed duly registered, as required by law; the contention being that there was such a variance between the description of the land in the patent and that in the deed offered in evidence as to defeat appellee’s right to rely upon the latter as basis for support of his plea of limitation.

The land was'patented to Sam Bogart, as assignee of John W. Holman, by virtue of certificate No. 347, containing two and a fraction labores of land, located on the east side of the Nevasota river, described by metes and bounds; whereas, said deed conveys all that certain tract or parcel of land in said county and state, being 360 acres, patented to John W. Holman, abstract No. 116, certificate 516, vol. 9, as shown by the land records of Madison county, bounded on the south by the Geo. L. Ramsdale, and on the east by the A. G. Wynne, and on the north by another survey of the G. L. Ramsdale, and on the west by the Navasota river. This deed was filed for record in the deed records of Madison county on the 30th of November, 1905, and recorded December 30, 1905. The assessor’s abstract of Madison county, which was offered in evidence, shows the certificate number to be 347, and it was issued to Sam Bogart, and the patent made to John W. Holman. The county map of Madison county, which was agreed to be correct, and which was offered in evidence, shows that the J. W. Holman survey lies on the east bank of the Navasota river, and is bounded by the surveys named in the deed, except that the Wynne forms all of the east and a small portion of the north boundary; and the surveyor testified that he could locate the land in question by the description given in the deed, and that the Wynne and the two Ramsdale surveys, called for in the deed, were located long prior to the date of the deed from Dono-hoe to Lewis.

We think the deed sufficiently describes the land, irrespective of the slight discrepancies as to the certificate number and the name of the original patentee, which may be regarded as surplusage, since the land can be otherwise located by the recitals in the deed. In Bowles v. Smith, 34 S. W. 382, it is said: “Tile object desired in requiring the registry of deeds under the plea of five-year limitation is to give notice to owners of land that persons in possession of it are claiming adversely to them, and, of course, the object will not be attained unless the description of the land is such that it would indicate the land being claimed. Mistake in the name or number of a survey upon which the land may be situated would not necessarily render the deed ineffective under the plea of five-year limitation; for if there be calls for external objects that definitely fix and designate the land, the law is complied with, and the deed is sufficient” (citing Udell v. Peak, 70 Tex. 547, 7 S. W. 786; McCurdy v. Locker, 2 Tex. Civ. App. 220, 20 S. W. 1109). See, also, Basham v. Stude, 128 S. W. 664, where it is said: “If the recitals in the deed, when applied to external objects therein described, identify the land in controversy, although the deed purports to convey land in the Raymond Burford survey (which was a different survey to that named in the deed), it was admissible for the purpose for which it was offered.”

Notwithstanding there is a discrepancy between the patent and the deed as to the certificate number and the name of the patentee, still, in the present case the land was otherwise sufficiently described in the deed, we think, to put the owner upon notice that the land was being claimed by appellee, because, disregarding these recitals, the land was so otherwise described in the deed as to identify it with that owned and claimed by appellant. This being true, the court did not err in admitting the deed for the purpose offered. See Stout v. Taul, 71 Tex. 438, 9 S. W. 329; Cleveland v. Smith, 156 S. W. 247; also Griffin v. Houston Oil Co., 149 S. W. 567; Clifton v. Creason, 145 S. W. 323; Eastham v. Gibbs, 125 S. W. 372.

Notwithstanding there was no reference in the deed to the assessor’s abstract, there was no reversible error in its introduction over appellant’s objection. It is a public record, and under article 2306, Sayles’ Rev. Stat. (article 3694, R. S. 1911), copies of such records are made admissible. Besides, if there was error, it is harmless, in that the land was otherwise sufficiently identified without reference thereto.

The court did not err, we think, in finding as a fact that the defendant had used and enjoyed the land for a sufficient length of time, under deed duly registered, as to give him title to the land under the five-year statute of limitation. The evidence showed that the appellee, immediately after purchasing the land, placed his deed upon record, inclosed the land, and had continuously used it for a period of more than five years as a pasture for cattle, hogs, and goats, paying taxes thereon. Such user is sufficient to show adverse possession. See Hooper v. Acuff, 159 S. W. 934. Pasturing cattle on land inclosed for that purpose, and which is under the exclusive control of the party claiming under the statute, is such use and enjoyment as is sufficient. Hardy Oil Co. v. Burnham, 124 S. W. 221.

The evidence fully supports the court’s-finding that the defendant had rendered and paid taxes on the land in controversy for more than five years prior to the commencement of this suit, and was therefore adequate-to support his plea of limitation, for which reason we overrule the fourth assignment. Payment of taxes may be shown by parol or circumstantial evidence. See Dutton v. Thompson, 85 Tex. 115, 19 S. W. 1026; Watson v. Hopkins, 27 Tex. 637; Ochoa v. Miller, 59 Tex. 460; Allen v. Woodson, 60 Tex. 651.

It is not necessary that the boundaries in the deed should entirely embrace and inclose the land; a slight failure in this respect would not vitiate the deed, provided the land therein mentioned is otherwise sufficiently described to locate and identify it.

The court did not err in its conclusion of law in holding that the defendant was entitled to the land in controversy under the five-year statute of limitation, for the reason that the facts as found by the court and sustained by the record fully warranted his conclusion that defendant’s possession was adverse, and that he was entitled to the land under his plea of limitation. This is true notwithstanding the fact that one side of the survey was not fenced, but was bounded by the Navasota river. See Frazer, v. Seureau, 128 S. W. 649; Dunn v. Taylor, 107 S. W. 956; s. c., 102 Tex. 80, 113 S. W. 265.

Nor was it necessary that the land itself should be separately inclosed. It is sufficient if there is a general inclosure, even though other surveys are included therein. See Smith v. Kenney, 54 S. W. 801; Cunningham v. Matthews, 57 S. W. 1115.

Finding no error in the proceedings of the trial court, and believing that the judgment is amply supported by the facts in evidence, it is in all things affirmed.

On Motion for Rehearing.

In his motion for rehearing, appellant has cited and quoted from a number of cases, insisting that they support his contention to the effect that the deed from Donohoe to Lewis was insufficient to support the plea of the statute of liipitation of five years; and we will review them for the purpose of showing that they do not militate against the doctrine announced in our opinion, to the effect that, even where there are slight inaccuracies regarding the number of the certificate, name of the surveys of patentee, etc., yet if the description otherwise given so identifies the land as to give notice to the owner that the defendant in possession is claiming the same, it is sufficient.

In the case of Clark v. Kirby, 25 S. W. 1096, it appears that the deed relied on by defendants to support the plea of limitation Rad no other description than the name of the patentee and certificate number, and these were in fact misdescribed.

In Williams v. Thomas, 18 Tex. Civ. App. 472, 44 S. W. 1073, the description in the deed was, “The west one-half of the W. N. Morris survey,” whereas the land in controversy was the W- U. Morris survey; no field notes were given. It was held that the description was insufficient, and that it did not identify the land.

In Wofford v. McKinna, 23 Tex. 36, 76 Am. Dec. 53, the deed was held void for want of description, it being ambiguous, and was not sufficient to support the plea of limitation.

In Brokel v. McKechnie, 69 Tex. 32, 6 S. W. 623, the deed contained no other description than the number of the survey, which was misdescribed, and the name of the patentee. This, of course, was held insufficient, and that parol evidence • was not admissible to explain such misdescription.

In Murphy v. Welder, 58 Tex. 235, the court said that the deed did not describe the land with sufficient certainty to meet the requirements of the statute. Besides this, it also held that the proof failed to show payment of taxes and adverse possession, as required.

In Cook v. Oliver, 83 Tex. 559, 19 S. W. 161, this description was held insufficient: “450 acres of land situated in Houston county, on the east bank of -the Trinity river, and the same known as the Brookfield Bluff Place, and the same now occupied by said Murphy * * * and the field notes as rnade by W. M. James are hereby made a part of this transfer.” The field notes were not given.

In Flanagan v. Boggess, 46 Tex. 330, the following description was held sufficient: “620 acres of the headright of David Brown, situated about 12 miles north of Henderson in the neighborhood of Bellview” ; the .court remarking: “The deed in the case before us does not purport to convey an undefined part of a larger tract of land, as in the case of Wofford v. McKinna [23 Tex. 36, 76 Am. Dec. 53], supra. The ‘620 acres of the headright of David Brown’ may be all of the D. Brown headright located in that survey; the balance being elsewhere. Or, if we look to evidence where we find a patent calling for 640 acres, we also find that the land was given in as 620 acres, and it may be that the latter is the real number of acres. In either case the description is not of an uncertain part of a tract of land, but of an entire tract. The name of the headright and the locality, with the number of acres of the survey, fixed the land as definitely as seems to be necessary to satisfy the statute until there is evidence showing the contrary.”

In Kilpatrick v. Sisneros, 23 Tex. 113, the deed was held bad for uncertainty of description and the false reference, the court saying: “The object of the statute in prescribing registry of the deed, as necessary to enable the possessor to avail himself of the five-year limitation, is to give notice to the owner that the defendant in possession is claiming under the deed. And if there is such falsity or uncertainty of description as that it will not answer the purpose intended, it cannot be considered a deed duly registered, within the meaning of the statute.” There was a failure also to prove adverse possession during the period of limitation.

In Young v. Trahan, 43 Tex. Civ. App. 611, 97 S. W. 147, the description of the land is not contained in the report.

In Ozee v. City of Henrietta, 90 Tex. 337, 38 S. W. 768, the description was likewise held insufficient, the court stating that it was lacking in those elements of accuracy and certainty which are required in a conveyance made by an officer under a naked statutory power to sell and convey property for the enforcement of the collection of taxes, citing Wofford v. McKinna and Kilpatrick v. Sisneros, supra, saying that they seriously doubted whether it was sufficient as a conveyance between parties acting in their own right. “A portion of a tract of land of which the original grantee is ‘R. R. Add.’ or railroad addition, if the abbreviations mean that, does not describe a part of an addition to a city, which is known as railroad addition, and of which W. G. Eustis is original grantee. It may be that where, even in a tax deed, a tract or lot of land is clearly and accurately described otherwise, descriptive words false in one particular may be disregarded. But if we strike out the false description in the deed in question, we have substantially nothing left but the words ‘block 23,’ which manifestly is uncertain. The only words to show what ‘block 23’ is meant point to some other ‘block 23,’ and not to that found in Eustis railroad addition to the city of Henrietta. If intended to .designate the latter block, the description is false as a whole, and the deed not sufficient to operate as a conveyance of the property intended.”

In Mars v. Morris, 48 Tex. Civ. App. 217, 106 S. W. 430, the clause in the deed did not embrace the land in controversy; hence the court properly held that the deed was insufficient as a basis for the plea of limitation.

In Berrendo Stock Co. v. Kaiser, 66 Tex. 352, 1 S. W. 257, no other description was given, except the number of the survey and the quantity; the deed was held insufficient.

The rule as gathered from our decisions seems to be that, if the land in possession of defendant is sufficiently described in the deed relied on to support the plea, as to give notice to the owner of such claim, then it is sufficient; and this is true notwithstanding the fact that there may be some other references in the deed that are untrue and misleading, which may be rejected as surplusage, such as the number of the1 survey, name of the patentee, and the like. See McCurdy v. Locker, 2 Tex. Civ. App. 222, 20 S. W. 1109. See, also, Eastman v. Gibbs, 125 S. W. 372.

After a most careful consideration of the motion, we are of the opinion that the deed assailed is sufficient under the statute; and therefore it becomes our duty to overrule the motion for rehearing.

Motion overruled.


author: HIGGINS, J.

text:
    CHRISMAN v. LUMBERMAN’S NAT. BANK et al.
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 5, 1914.)
    1. Banks and Banking (§ 127) — Deposits— Protested Check — Actions—Right to She.
    Where a check is deposited in a bank to the credit of the depositor’s general account, the bank becomes the owner of the check, and on the maker’s refusal to pay, on a mere claim of fraud, the bank may sue thereon, treating the payee as an indorser only, though the depositor’s account exceeded the amount of the check; the bank not being required to charge the check back to the depositor and return the same to him.
    [Ed. Note. — Eor other cases, see Banks and Banking, Cent. Dig. §§ 304, 310; Dec. Dig. § 127.]
    2. Appeal and Error (§ 750) — Assignments op Error — Proposition.
    Propositions as to alleged error of the court in overruling a plea of privilege to be sued in another county were not germane and could not be considered under an assignment of error to the court’s action in rendering judgment on the merits on the ground that the verdict and judgment were contrary to the law under the facts ■proved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dee. Dig. § 750.]
    3. Appeal and Error (§ 743) — Review—Exclusion op Evidence — Bill op Exceptions.
    Alleged error in the exclusion of evidence will not be reviewed, where the Court of Appeals is not referred to any bill of exceptions covering the matter; the court not being required to search the record to ascertain if proper bills were taken.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by the Lumberman’s National Bank and others against J. J. Chrisman, Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    C. W. Nugent, of Conroe, for appellant. W. H. Ward and J. V. Meek, both of Houston, for appellees.

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

   HIGGINS, J.

This is a suit by the Lumberman’s National Bank against J. J. Chrisman, of Montgomery county, and Walter R. Jones, of Harris county, brought in the county court at law of the last-mentioned county upon a draft in the sum of $600 drawn by Chrisman in favor of Jones upon Banks, Griffith & Sons, of Conroe, Montgomery county, given by Chrisman in part payment for an automobile sold to him by Jones. The draft is dated on Saturday, August 5, 1911, and some time after banking hours upon that date same was transferred and delivered by Jones to appellee, and on the following Monday morning the amount thereof was passed to the credit of Jones, who was a regular customer of appellee and carried an account with it. On Monday morning Chrisman stopped payment of the draft, and notice of this fact was communicated on Monday morning to appellee by Banks, Griffith & Sons. From the date payment was stopped until subsequent to the filing of this suit, defendant Jones had .on deposit with appellee to his credit funds more than sufficient to cover the amount of the draft. Chrisman filed a plea o% privilege, claiming the right to be sued in the county of his residence. The cause, upon its merits, was tried upon his second amended original answer, which consists of exceptions, a general denial, and the allegation that he “adopts all and singular, all of the matters and things set out in his first amended original answer filed herein on, to wit, the 18th day'of May, A. D. 1912, this adoption being by and with the consent and agreement of counsel for plaintiff and of the defendant, W. R. Jones, and prays as in first amended original answer.” Since his first amended original answer, filed May 18, 1912, is not in the record, we are not advised as to the issues raised thereby. Jones filed an answer setting up that his liability upon the draft was as an indorser only, and asked for judgment over against Chrisman. The cause was tried before a jury and submitted upon special issues.

By reason of the omission from the record of Chrisman’s first amended answer, as noted above, we are unable to' determine accurately the issues upon which the cause was tried; but we gather from the court’s charge that Chrisman pleaded a failure of consideration, in that the automobile pur-' chased from Jones, and for which the draft was given, did not comply with certain representations made by Jones to Chrisman with respect thereto. In response to the issues submitted, the jury found against the appellant upon this contention, and judgment was rendered in favor of the bank against Chrisman and Jones, and in Jones’ favor over against Chrisman. From this judgment, Chrisman has appealed. His first assignment of error reads: “The court erred to the prejudice of this defendant in refusing to set aside the verdict and judgment rendered herein against this defendant, because said verdict and judgment are contrary to the law applicable to this case and the facts herein, and neither is supported or justified by the law or by the evidence in said cause, because: It is admitted by plaintiff that defendant Jones had money in its bank from the time it cashed the check sued on more than sufficient to cover said draft continuously from the date thereof until after the plaintiff was put on notice of the claim of fraud in the procurement of said check as set up by this defendant, and the giving of notice to the plaintiff of the vice in said check, and therefore plaintiff has no cause of action herein against this defendant.” And in support thereof urges this proposition of law: “The facts being undisputed and agreed by all parties to be true that the appellee, W. R. Jones, who was payee in the draft sued on, had more than sufficient funds in the hands of the appellee Lumberman’s National Bank (plaintiff in the court below) to have covered the draft sued on from the time that said draft was assigned to it until after the appellee bank is admitted to have had notice of the vice in the draft sued on, and of the claim of the appellant Ohrisman of the failure of consideration for said draft, for the false and fraudulent representations alleged by said Ohrisman to have been made to him by said Jones, it was not only the right, but the duty of the appellee bank to have charged said draft back to the account of the said W. R. Jones, and thereby to have protected itself; hence the appellee bank cannot maintain its suit against the appellant Ohrisman, and cannot recover herein against him.”

The following cases are relied upon as supporting the proposition advanced under the foregoing assignment, viz.: Sperlin v. Peninsular Loan & Discount Co., 103 S. W. 232; Union National Bank v. Menefee, 134 S. W. 822; Van Winkle Gin & Machinery Co. v. Citizens’ Bank of Buffalo, 89 Tex. 147, 33 S. W. 862; State Bank v. J. Blakey & Co., 35 Tex. Civ. App. 87, 79 S. W. 331; Johnson County Saving Bank v. Renfro, 57 Tex. Civ. App. 160, 122 S. W. 37. These authorities do not support the contention made. The mere claim of fraud in the procurement of the check did not impose upon the bank the duty of charging the amount thereof against the moneys on deposit with it belonging to Jones. Had fraud, in fact, existed in the procurement of the check or a failure of consideration, then the authorities cited would have been in point; but this issue was resolved against the appellant by the jury, and certainly a mere claim of fraud was insufficient to impose upon the bank the duty of charging to .Jones’ account the amount of the draft. Ohrisman was primarily liable upon the draft. The bank was the owner thereof, and the verdict of the jury has established that it was subject to no defense, even as against Jones, and the bank had the right to sue Chrisman and recover against him, though Jones may have had ample funds on deposit with it to cover the amount of the draft.

The second and third propositions advanced under the foregoing assignment relate to the action of the court in overruling the plea of privilege. The assignment itself relates, not to the action of the court in overruling that plea, but to the judgment as rendered upon the merits; the contention being that the verdict and judgment was contrary to the law under the facts adduced in evidence. Not being germane to the assignment, they are not entitled to consideration; but what has been said above, nevertheless, disposes of same, since Ohrisman and Jones were both liable upon the draft and Jones resided in Harris county, which would give the bank the right to sue in that county, unless there was collusion upon the part of Jones and the bank to fraudulently confer upon the courts of Harris county jurisdiction over the person of Ohrisman. No evidence of fraud in this respect is called to our attention and none has been observed by us. The last two propositions are therefore likewise untenable.

The second and third assignments relate to the exclusion of evidence. We are not referred to any bill of exception covering the matter and will not search the record to ascertain if proper bills were taken. We may say, in passing, however, that the excluded evidence was subject to the objection made that it was the conclusion of the witness and was properly excluded.

The last assignment is disposed of by what is said in passing upon the first.

Affirmed.


text:
    HUFFSTUTLER & HOWELL v. McKENZIE.
    (Court of Civil Appeals of Texas. Austin.
    Jan. 14, 1914.
    Rehearing Denied Feb. 18, 1914.)
    1. Indemnity (§ 13) — Implied Contract— Joint Tort-Feasors.
    That the execution of a sublease without the landlord’s consent was in violation of statute did not render the lessee and sublessees joint tort-feasors in respect to damages done by the sublessees’ stock, so as to preclude the lessee from compelling the sublessees to reimburse him for a sum which he had been compelled to pay the landlord on account of such damages. •
    [Ed. Note. — Por other cases, see Indemnity, Cent. Dig. §§ 29-35; Dec. Dig. § 13.]
    2. Indemnity (§ 13) — Action Against Sub-lessee — Defense — Invalidity of Sublease.
    In a lessee’s action against his sublessee for damages to his crop by the sublessee’s stock, in violation of the sublease, and also for redress for damages done to the crops of his co-tenants, which damages he had been compelled to pay by suit of the landlord, it was no defense that the sublease was invalid under Rev. Civ. St. 1911, art. 5489, declaring that a tenant cannot sublet without the landlord’s consent; such sublease not being void, but merely voidable at the landlord’s option, and hence subject to ratification by him, and, irrespective of this, plaintiff’s suit not being to recover rent under the contract, but merely to recover the damages done by stock.
    [Ed. Note. — Por other cases, see Indemnity, Cent. Dig. §§ 29-35; Dec. Dig. § 13.]
    Appeal from Milam County Court; John Watson, Judge.

      Action by N. H. McKenzie against Huff-stutler & Howell. From a judgment for plaintiff, defendants appeal.
    Affirmed-
    W. D. Taylor, of Waco, M. G. Cox, of Cameron, and Tilos. V. Adams, of Buckholts, for appellants. John B. Durrett, of Belton, and A. D. Dyess and Edmund Helnsohn, both of Temple, for appellee.

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

   RICE, J.

In the year 1910 appellee rented a part of the M. L. Hallenbeck farm in Milam county, consisting of 110 acres of land in cultivation and about 135 acres in pasture; the remainder of said farm being rented to ■other persons. During the fall of said year appellee, without the consent of Hallenbeck, made a contract with Huffstutler & Howell, whereby, in consideration of $100, he agreed to permit them to place in said pasture and a part of said cultivated land so rented by him about 300 head of cattle to remain not longer than 30 days, agreeing to extend a certain fence between his land and that of other tenants on said premises; they obligating themselves to keep herders with said cattle, and prevent them from depredating, either upon his own crops or those of the other tenants, and to indemnify appellee against such depredations and pay any damages that might result from their failure so to do. The ■cattle were placed on said premises for pasture, in accordance with said agreement, and, notwithstanding herders were furnished, they failed to prevent said cattle from depredat-ing upon said crops, whereby the crops both ■of appellee and other tenants of Hallenbeck were injured and destroyed. Prior to the institution of this suit I-Iallenbeek brought suit against appellee, and recovered $150 for injury done by said cattle to the crops of his other tenants, in which he was interested; and this suit was brought by appellee against appellants to recover said sum, as well as $100 damages claimed to have been done to his own crops by said cattle, on account of appellants’ failure to protect said crops from depredation, as they had agreed to do. Appellants answered by plea to the jurisdiction, general demurer, and general denial, and interposed the further plea that, since they were joint tort-feasors with appellee, he was not entitled to recover, and, further, that the contract sued upon was void, on the ground that a tenant cannot sublet without the consent of his landlord. A jury trial resulted in a verdict and judgment in behalf of appellee for the entire amount claimed, from which this appeal is prosecuted.

The first assignment urges that the ■court erred in overruling appellants’ plea to the jurisdiction, insisting that the evidence showed that, since plaintiff and defendants were joint tort-feasors, he was not entitled to recover the $150, hence only $100 was in controversy, and therefore the court had no jurisdiction. We think this plea was properly overruled, because the evidence does not show that appellee was a joint tort-feasor with appellants.

The second assignment urges that the court erred in failing to sustain appellants’ general demurrer to plaintiff’s first amended original petition, on the ground that the contract sued upon was void, and therefore unenforceable. This contention is based upon the theory that, since the statute (Sayles’ Statutes 1897, art. 3250 [R. S. 1911, art. 5489]) declares that a tenant cannot sublet the premises without the consent of the landlord, that a contract made in contravention of this statute is void, and therefore unenforceable. Such contract, in our judgment, is not void, but merely voidable, because the landlord had the right to ratify or confirm at his option. See Wildey Lodge v. City of Paris, 31 Tex. Civ. App. 632, 73 S. W. 70; Betts v. Dick, 1 Pennewill (Del.) 268, 40 Atl. 185. In such cases it is generally held that a contract is voidable instead of void. See 8 Words and Phrases, p. 7333, where it is said: “A thing strictly void in the technical sense of the word is incapable of ratification, while those that are merely voidable may be ratified” — citing Dayton v. Nell, 43 Minn. 246, 45 N. W. 231. In the same volume it is further said; “A contract is void when it is a nullity, binding on no party, and unsuscepti-ble of ratification. When either party is bound, or it may be confirmed, it is only voidable. Breckenridge’s Heirs v. Ormsby, 24 Ky. [1 J. J. Marsh.] 236, 19 Am. Dec. 71.”

In the present case the landlord could have ratified the contract, if he had seen fit, and hence it was merely voidable. Irrespective of this view, however, appellee was entitled to recover, for the reason that he was not suing to recover rents under the contract, but merely to recover such damages as he suffered by reason of the depredation of said stock on his own crops, and likewise to obtain redress for the damages done to the crops of his cotenants, which he had been compelled to pay by suit of the landlord, on account of the failure of appellants to protect them in accordance with their agreement so to do. In discussing restrictions imposed upon subletting premises by tenants, it is said, in 24 Oye. p. 968, that: “Restrictions against assignment or subleases, whether imposed by statute or by the terms of the lease, are intended for the benefit of the lessor and his assigns, and, if neither of these object to a breach of the restriction, no one else may do so. One to whom the term has been assigned in breach of the restriction cannot set up the breach in defense of an action brought against him by the lessor on the lease, or in defense of an action brought against him by the lessee on obligations incident to the assignment.” See, also, note, citing authorities fully supporting text.

No one, we think, except the landlord could complain of the illegality of the lease made by his tenant. See Moore & Rolla v. Graham, 29 Tex. Civ. App. 235, 69 S. W. 200, holding that, “where a creditor levies upon crops growing on the debtor’s homestead, who claims damages therefor, the creditor cahnot, in defense, raise the issue whether the debt- or, who is a sublessee of the premises, is occupying without the consent of the landlord.” See, also, Montecon v. Faures et al., 3 La. Ann. 43, where it is said: “A stipulation that the lessee shall not sublet the premises without the written assent of the lessor is for the exclusive benefit of the latter, and, if he does not take advantage of it, no one else can.”

It does not lie in the mouth of appellants to make this complaint; they cannot take advantage of their own wrong. To permit them in this case to urge such a defense .would be to allow them to say: “We got possession of the premises by contract. We are not declining to pay you for the benefit of the lease, but while in possession it is true we permitted our cattle to depredate on your own land and the land of your cotenants, which we bound ourselves to protect; still, since you had no right under the law to sublet, notwithstanding the landlord is not objecting, we are not liable to you for the trespasses committed by our cattle in contravention of our agreement.” This defense is not tenable, and is not sanctioned in morals or in law. We therefore hold that the demurrer was properly overruled.

The twelfth assignment, urging that the court erred in not submitting the question whether or not plaintiff: and defendants were joint tort-feasors, cannot be sustained, because the evidence did not justify the submission of such issue for the consideration of the jury.

The charge was not upon the weight of evidence, as insisted by appellants’ fourteenth assignment, but is a clear presentation of the issues arising under the evidence, and therefore not subject to the complaint made against it in this respect.

The remaining assignments have been considered, but are regarded as not well taken, and hence are overruled.

Finding no reversible error in the proceedings of the trial court, its judgment is affirmed.

Affirmed.


text:
    WILLIAMS et al. v. McCOMB et al.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 24, 1913.
    Rehearing Denied Feb. 5, 1914.)
    1. Appeal and' Error (§ 759) — Assignment op Error — Bribe.
    A motion to disregard assignments of error because not correctly copied in a brief will be overruled, where the omitted portions embrace merely the reasons upon which the assignments are based, and the omission inures to the benefit of the appellate court in that it saves it the labor of investigating the reasons assigned.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    2. Mortgages (§ 494) — Foreclosure—Judgment — Description op Land — Sueeiciency.
    That the judgment in mortgage foreclosure proceedings did not describe the land by calls did not invalidate it, where it described the land as a certain number of acres out of a certain survey described by metes and bounds and stated that it was the land covered by á recorded deed, and such deed clearly identified the land.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1441-1445; Dec. Dig. § 494.]
    3. Adverse Possession (§ 16) — Requisites.
    Where the grantee’s deed sufficiently described the land by metes and bounds and was-duly recorded for more than five years, and his vendors had had possession thereunder during such time, paying all taxes, he acquired title by the five years’ statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 82-89; Dec. Dig. § 16.]
    4. Vendor and Purchaser (§ 232) — Innocent Purchaser — Adverse Possession.
    That the opposing claimants are innocent purchasers without notice for a valuable consideration will not defeat a title acquired under the three years’ statute of limitations; the doctrine of innocent purchaser not applying against a person holding title by limitation.'
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 540-545, 548-562; Dec. Dig. § 232.]
    5. Vendor and Purchaser (§ 87) — Rescinded Sale — Title.
    Where vendors took vendors’ lien notes for the purchase money, and the purchaser, after living upon the land two years, failed to pay anything therefor, and surrendered the land to the vendors, delivering to them the deed, which had not been recorded, upon their cancellation of his notes, there was then no- title in him. ■
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 147; Dec. Dig. § 87.]
    Error to District Court, Montgomery County; iL. B. Hightower, Judge.
    Trespass to try title by Mrs. Lula B. Mc-Comb, individually and as survivor of the community of herself and her husband, W. P. McComb, against John C. Williams and another, wherein the Lamberton Drilling Company intervened as a defendant. From a judgment for plaintiffs, defendants bring error.
    Affirmed.
    John C. Williams, of Houston, for plaintiffs in error. Dean, Humphrey and Powell,, of Huntsville, and J. T. Rucks, J. Llewellyn,, and W. N. Foster, all of Conroe, for defendants in error.

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

   Statement of the Case.

RICE, J.

This suit was originally instituted by Mrs. Lula B. McComb, individually and as survivor of the community estate of herself and deceased husband, W. P. McComb, against John C. Williams and the Huntsville State Bank, in trespass to try title to 984 aeres of land out of the Lemuel Smith two-thirds league survey in said county, described by metes and bounds, except 100 acres thereof formerly conveyed out of said tract, averring that she was the owner thereof by fee-simple title, and also pleaded the statutes of three, five, and ten years’ limitation. Subsequently the Lamberton Drilling Company intervened in said suit and was also made party defendant.

Williams answered by general demurrer, general denial, and plea of not guilty. The bank disclaimed, and judgment went against it on its disclaimer. ■ The Lamberton Drilling Company by its plea of intervention set up that it was the owner in fee simple of said land, having purchased the same from John C. Williams about the 4th of February, 1910, and was entitled to make defense to said action by reason thereof, and pleaded general denial, not guilty, and specially alleged that on the 20th of July, 1907, said Williams, being the owner of the land, borrowed from the Huntsville State Bank $1,210, for which sum he executed his note, payable to said bank, with interest and attorney’s fees, and to secure the same gave said bank a mortgage on said land; that he subsequently defaulted in the payment of said note, whereupon the bank brought suit against him thereon, and obtained judgment foreclosing its mortgage lien upon said land, which judgment intervener purchased from the bank, paying the sum of $1,587.54 therefor, in evidence whereof the bank, by instrument in writing, conveyed to intervener said judgment; that on the 4th of February, 1910, intervener purchased the land from Williams by warranty deed, which intervener accepted in full satisfaction and discharge of said judgment; that, at the time the Huntsville State Bank made the loan and took the mortgage upon said land, it had no notice or knowledge that plaintiff owned or claimed any interest in said land; and that, ati the time intervener purchased said judgment and said land, it had no notice or knowledge thereof, for which reason it prayed judgment against the plaintiff and defendant for said land. In the alternative it alleged that if mistaken in believing that it was the owner in fee simple of said land, and in the event that the court should hold that Williams, at the time of the execution of said deed, was not the owner thereof, then intervener alleged that, by reason of being the owner of said judgment, which was a valid, subsisting, and unsatisfied lien thereon, said Williams was indebted to it in the full sum of $1,587.54, the amount of said judgment, together with interest, and prayed for foreclosure of its lien upon said land against plaintiff and' all of the defendants for the satisfaction of said judgment debt.

By supplemental petition, defendant in error pleaded: (1) General denial against the plea of intervention, and specially denied that said intervener purchased said judgment from said bank, but averred that it purchased the land in controversy from the defendant Williams, and that either the Lamberton Drilling Company or defendant Williams paid off, out of the money which it paid to Williams, the judgment of said bank, and, in order to strengthen its apparent title, said drilling company procured a transfer of said judgment from the bank; and (2) specially denied that at the time that Williams, the Huntsville State Bank, the intervener, and the Lamberton Drilling Company, or either of them, acquired any claim or right to the land in controversy, they did so without notice of' plaintiff’s right and title therein; and (3) specially denied that they or either of them acquired any claim or right to the land in controversy by their purchase thereof, or by said judgment, but, on the contrary, averred that long prior to Williams’ alleged purchase thereof from the heirs of Stephen C. Thompson, she was the owner by fee-simple' title, and also owned the same under the-statute of limitations of three, five, and ten years, as set forth in her amended petition, and that defendants and interveners had notice of her right and title thereto at the-time of the acquisition of their respective claims, for which reason they were not innocent purchasers as against her title to said land under said statute of limitation; (4) defendant in error further set up that, before intervener acquired any interest in the land in controversy, she had instituted' this suit against the defendant Williams and the Huntsville State Bank, and had caused lis pendens notice to issue and to be recorded as required by law.

There was a trial before the court without a jury, resulting in a judgment for Mrs. Lula McComb, from which this writ of error is sued out.

It was agreed between the parties, among other things, that Stephen C. Thompson was the common source of title of all the parties hereto to the land in controversy in this suit,, and that he was the owner of said land by-regular and consecutive chain of title, extending to him from the sovereignty of the-soil; and we find that, after the death of Stephen C. Thompson, his heirs at law conveyed the land in controversy to F. M. Long, under whom defendant in error Mrs. Mc-Comb claims the land, having shown a regular chain of title from him down to her husband, W. P. McComb. We also find that the-evidence showed title in her to the land in controversy by virtue of the three and five-years’ statutes of limitations.

Opinion.

We overrule the motion of defendants in error to disregard all of plaintiff in errors’ assignments of error, except two, upon the ground that the same were not correctly copied in their brief. While these assignments a^e not copied in the brief in full, the portions omitted embraced the reasons upon, which the assignments are based; but, since-the assignments were good without a statement of such reasons, the failure to copy them inured to the benefit of the court, in that it saved us the labor of investigating the several reasons assigned. Wherefore we •conclude that the motion should be overruled.

The chief contention presented by the first, third, fourth, and fifth assignments is that the land involved is not sufficiently described in the judgment in the Coryell county case, and in the sheriff’s deed thereunder, as well as certain other deeds containing the same description of the land as embraced in said judgment, wherefore said judgment and -deeds are void for uncertainty of description. As these questions relate to the same supposed vice in plaintiffs’ title, it will not be necessary to discuss them separately. In the judgment the land is described as 984 .acres out of the Lemuel Smith two-thirds league survey, situated in Montgomery county, Tex., said two-thirds league survey being •described by metes and bounds; after which it is referred to as being the same land deeded to L. S. Brooks on the 2d day of August, 1879, by deed from E. M. Long, recorded in the deed records of Montgomery county, ■Tex.; and the evidence shows that the land conveyed by said deed was the land in controversy. It has been held that, while it is best to so describe land as to identify it by the calls in the particular instrument under consideration, yet if the same is not done, .but other sources of information are referred to for more perfect description by which its identity can be determined, this will be sufficient. See Lumpkin v. Silliman, 79 Tex. 165, 15 S. W. 231; Steinbeck v. Stone, 53 Tex. 385. Extraneous evidence may be admitted to aid the description in a judgment. See Kelly v. Howard, 94 S. W. 380; Focke v. Garcia, 41 S. W. 187; Pierson v. Sanger, 93 Tex. 160, 53 S. W. 1012. Under these authorities, we do not think the judgment or •deeds were void for want of sufficient description, and therefore overrule these assignments.

The sixth and seventh assignments urge that the proof is insufficient to establish the execution and delivery of the deeds' from the heirs of Stephen O. Thompson to P. M. Long and from Long to L. S. Brooks, both ■of which were lost. We differ with plaintiffs in error in this respect, and hold that the proof is amply sufficient to show the execution and delivery of these deeds, and that they were for the identical land in controversy. It clearly appears that Thompson in his lifetime owned only this one tract of land, and parties who were well acquainted with him and familiar with the land testified to having seen the deeds referred to; and Long himself fully establishes the execution and delivery of both of said deeds.

We feel justified in holding that the evidence fully shows title to W. M. 'McOomb, the husband of defendant in error, to one-half of the land under the five years’ statute of limitation. The deed under which he held sufficiently described the land by metes and bounds, and was duly recorded for more than five years, and his vendors had possession thereunder during such time, paying all taxes thereon.

And, as to the other half of said land, the evidence is ample, we think, to warrant us in holding that she holds title thereto under the three years’ statute of limitation; and the title so acquired by her cannot be defeated on the ground that plaintiffs in error were innocent purchasers, without notice, for a valuable consideration, because the doctrine of innocent purchaser does not obtain against a person holding title by limitation. See MacGregor v. Thompson, 7 Tex. Civ. App. 32, 26 S. W. 649, and East Texas Land Co. v. Shelby, 17 Tex. Civ. App. 685, 41 S. W. 542. We think the facts, however, show that both Williams and the drilling company had notice of Mrs. McOomb’s title before their purchase; and certainly the latter had lis pendens notice at the time it acquired its interest in said land.

We overrule the eleventh assignment, contending that the proof showed an outstanding title in 157 acres in G. H. Hart. The facts seem to be that Jones and Friend, the vendors of MeComb, prior to the conveyance to him, had sold a tract of 157 acres to 1-Iart, taking vendor’s lien notes for the purchase money. 1-Iart lived upon the land two years, failed to pay anything therefor, and surrendered the land to his vendors, delivering the deed to them (which had not been recorded) upon their cancellation of his notes. This, we think, failed to show any outstanding title of any character in him.

The remaining assignments have been duly considered, but, in our opinion, are without merit.

Finding no error in the proceedings of the trial court, its judgment is in all respects affirmed.

Affirmed.