author: McMEANS, J.

text:
    HOUSTON OIL CO. OF TEXAS v. LAMBERT et al.
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 18, 1913.
    Rehearing Denied Nov. 13, 1913.)
    1. Adverse Possession (§ 115) — Actions — Evidence— Sufficiency.
    In an action for land which plaintiff claimed by prescriptive title, evidence held sufficient to go to the jury on the issue of plaintiff’s claim to the specific land described in his petition and in the field notes of the surveyor, and of such claim for the period of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 314, 691-701; Dec. Dig. § 115.]
    2. Triad (§ 260) — Instructions — Refusal of Request Covered by Those Given.
    In a suit over land which plaintiff claimed by prescriptive title, where defendant requested two special charges on the issue as to whether plaintiff’s grantor had ever claimed. a definite tract, the giving of one of the special charges was sufficient, and defendant cannot complain of the refusal of the other.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    Appeal from District Court, San Augustine County; L. D. Guinn, Judge.
    Action by W. D. Lambert against the Houston Oil Company of Texas in which Ned Douglas intervened. From a judgment for plaintiff and intervener, defendant appeals.
    Affirmed.
    Hightower, Orgain & Butler and J. D. Campbell, all of Beaumont, for appellant, june C. Harris, of Nacogdoches, and S. M. Davis, of Davis, Old., for appellees.

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

   McMEANS, J.

W. D. Lambert, claiming the merchantable pine timber on 85 acres of land, part of a 160-acre survey out of H. T. & B. section No. 15 in San Augustine county, and Ned Douglas, intervener, claiming title to said 85 acres, brought this suit against the Houston Oil Company of Texas for the recovery of same. It was agreed that the record title to the land is in the Oil Company, and that it is entitled to a judgment for the land and timber unless its right of recovery is defeated by the claim of Lambert and Douglas, based on the statutes of limitation of ten years. A trial before a jury resulted in a verdict and judgment for the plaintiffs, and the defendant Oil Company has appealed.

Appellant requested the court to give to the jury its first and second charges, both of which were peremptory instructions to return a verdict! for it, and also requested the court to give its third special charge, which contained the instruction in effect, that before the plaintiff and intervener can recover anything in this suit the jury must be satisfied from the evidence that the land embraced in the field notes set out in plain- ' tiffs’ petition was the identical land which was claimed by Ned Douglas for a period of ten consecutive years prior to the institution of tile suit on January S, 1911, and that said land as so described was by some means designated or defined on the ground during such period before the suit was filed. The refusal of the court to give said charges is made the basis of appellant’s first, second, and third assignments of error, and under these the appellant asserts the proposition, in substance, that in order to recover land under the statute of limitation of ten years the claimant must show statutory possession of the identical land sued for by the identical boundaries in his petition, and that this had not been shown by the testimony on the trial in the court below. '

The 160 acres is described by field notes in plaintiffs’ petition. It appears that before the filing of the suit Ned Douglas sold 75 of the 160 acres, and his vendee did not Join in the suit as party plaintiff, nor was he made a party. According to the testimony of Douglas, he bought the 160 acres in question from Zetta Curl in 1886 by an instrument in writing which was introduced in evidence, and which is as follows: “Know all men by these presents, that I, Zetta Curl, of the county of San Augustine and state of Texas, for and in consideration of the sum of $160.00, one hundred and sixty dollars cash pade me in hand by Ned Douglas for a firm 160 acres, I bargain, sell and convey, bargained, sold and conveyed and by these presents grant sell to Ned Douglas my homestid premises included and do bind myself.” Douglas testified that the land he bought from Zetta Curl is the. same 160 acres that he had sued the Houston Oil Company for; that he had it surveyed out about five years before bringing the suit; and that the land so surveyed was the same that he so purchased and intended to occupy and live upon. We quote his testimony: “This very land that is involved in this suit has a house upon it with somebody living in it, and I remained there from 1886 to 1898, farming each year. The whole tract of 160 acres was surveyed at the same time five years ago. I don’t suppose that is the first time the land has ever been surveyed. There were hacks around it — old hacks. I guess the property I am claiming has been surveyed. As to how I know what land I was claiming until that was done, it was claimed by other places adjoining it. The other place was 160 acres. The 160-acre tract is what I bought from Aunt Zetta. I reckon it was five years ago I had it run out. Up to that time I did know where my 160 acres of land was because I knowed where the house was. I can map it out to you mighty quick. Here is the Ned Garrett place, and here is the Zetta Curl place. This was claimed from here to this branch here. Here was- the way the place was lying. This dotted line was the line. Those are the metes and bounds I had.” Again he says: “Over there is the Ned Garrett place on. the east end. * * * My western boundary line, as I understood in my purchase from Zetta Curl and as she conveyed it to me, extended to the branch. The north line was to run with this land to the branch. The south line was to run from the corner to the branch — the first corner. I mentioned there — we call it the northwest corner of the Ned Garrett. This (the 160 acres in controversy) is on the western side of the Ned Garrett. It was to run from the northwest corner to the branch, and from the southwest corner to the branch. The east line was the Ned Garrett west line. When I bought this land from Zet-ta Curl in 1886, there were some hacks around that 160 acres where this last survey is — some old hacks there. The last survey made by the surveyor ran with those hacked, lines. Now and then we could find some hacks on the trees. We couldn’t find them all the way but we could part of the way.” The “dotted” line to which Douglas referred indicates on a map or plat the 160 acres claimed by him as run out by the surveyor.

We think the testimony of Douglas above quoted is sufficient to raise the issue of his claim to the specific 160 acres described in his petition and in the field notes of the surveyor, and of such claim for a continuous period of time to perfect his title thereto under the ten-year statute of limitation, and that the requirements stated by the Supreme Court in Louisiana & Texas Lumber Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110, and by this court in Louisiana & Texas Lumber Co. v. Stewart, 130 S. W. 199. were substantially met. See Davis v. Receivers of Houston Oil Co., 50 Tex. Civ. App. 597, 111 S. W. 219. It follows therefore, that the court did not err in refusing to instruct a verdict in favor of appellant, as complained of in its first and second assignments of error.

There was testimony, and notably that of the surveyor, McLaurin, who ran out the 160 acres for Douglas, which was sufficient to raise the issue as to whether the lines which Douglas claimed had ever been surveyed before and, incidentally, as to whether Douglas ever claimed a definite 160 acres. On the issue thus raised two special charges were asked by appellant and one of them, which follows, was given: “You are instructed that before you can find in favor of plaintiff or intervener for anything in this suit you must believe from a preponderance of the evidence that Ned Douglas at some period of the ten consecutive years before the filing of this suit claimed the specific land as described in his petition herein, and that during all of such period of ten consecutive years he had and held open and notorious adverse possession of the land so described, and if you do not so find your verdict must be for the defendant in this case.” The giving of this special charge rendered the giving of the charge set out in the third assignment of error unnecessary.

The appellant having requested the giving of two special charges covering the same issue, one of which was given, cannot complain that the other was not also given. The assignments are overruled.

We have carefully considered appellant’s remaining assignments of error, and are of the opinion that none of them points out reversible error. The seventh and eighth assignments are not followed by such a statement as is required by rule 31, and are not therefore entitled to consideration. The record discloses no reversible error, and the Judgment of the court below is affirmed.

Affirmed.


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    CITY OF LA GRANGE v. BROWN et al.
    (Court of Civil Appeals of Texas. Austin.
    Oct. 29, 1913.
    Rehearing Denied Dec. 3, 1913.),
    1. Dedication (§ 37) — Acceptance — What ' Constitutes.
    Where the streets in a subdivision were dedicated to the public, the use of the streets by the public, and the removal of gravel therefrom by the city, under the claim that they were a public street, is sufficient to show acceptance of the dedication, even though the streets were not always maintained in a fit condition for travel.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 73, 74; Dec. Dig. § 37.]
    2. Dedication (§ 63) — Streets — Abandonment.
    Mere nonuser or delay in the improvement of a street, so that parts of it became practically impassable, and were not used by travelers, is insufficient to establish an abandonment by the city of that portion of the street, where it was a part of the general street system which was dedicated in laying out a subdivision.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 103-106; Dec. Dig. § 63.]
    3. Municipal Corporations (§ 663) — Streets — Care for Streets.
    Even though the abutting owner owns the fee of the street, the city is entitled to remove soil or gravel therefrom when necessary to properly grade it, and to use the gravel or soil in improving the streets in another locality.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 143S-1440; Dec. Dig. § 663.]
    4. Municipal Corporations (§ 663) — Streets — Improvement.
    As Rev. Civ. St. 1911, art. 769, expressly authorizes cities owning waterworks to improve' a highway to their plants even though they be without the corporate limits, a city may use gravel and soil, removed from a street within its corporate limits, for the purpose of improving the highway to its water plant.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1438-1440; Dec. Dig. § 663.^
    Appeal from District Court, Fayette County; Frank S. Roberts, Judge.
    Suit by A. J. Brown and others against the City of La Grange. From the judgment, defendant appeals, and plaintiffs prosecute a cross-appeal.
    Affirmed in part, and in part reversed and rendered,
    L. D. Brown, of La Grange, for appellant, John T. Duncan, of La Grange, for appellees.

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

   KEY, C. J.

This is an injunction suit, the nature and result of which are sufficiently indicated by the trial judge’s findings of facts and conclusions of law, which are as follows:

“Findings of Fact.

“I find that the original town tract of La Grange was laid out into streets, blocks, and alleys about the year 1838, and I find that as an addition to the original town tract of La Grange W. W. Ligón and N. W. Faison laid out on the north side of La Grange what is known as the Faison & Ligón addition of the town of La Grange, and I find that lots 1, 2, 3, and 4 and lot 6 in block 504 in the Faison & Ligón addition belong to the plaintiffs herein, and that they have succeeded to whatever rights the original proprietors, to wit, Faison & Ligón, had in and to said lots. I find that Washington street was a street in the original town tract, and that when the Faison & Ligón addition was laid out it was projected through said addition, and terminated at the north boundary of said town. I find that lots 1, 2, 3, and 4, in block 504, abut upon the east side of Washington street, and I find that plaintiffs own block No. 503, and it abuts upon the east side of Washington street. I find that all property lying opposite blocks 503 and 504, and on the west side of Washington street, lie outside of the town of La Grange, and that there are no blocks or lots in said town lying on the west side of Washington street, and opposite blocks 503 and 504. I find that the Faison & Ligón addition to the town of La Grange was laid' out into blocks, lots, streets, and alleys about the year 1854, and that said streets and alleys were mapped and platted and dedicated to the public. I find that about the year 1856 the city of La Grange was incorporated by an act of the Legislature, and has remained an incorporated town ever since said date, and is now incorporated, but I find that about the year 1S79 or 1880, it abandoned its Legislature charter and adopted the charter which is provided for cities and towns of 1,000 inhabitants and over, as set out in the Revised Statutes of the state of Texas. I find that Washington street is 60 feet in width, and that all streets running north and south are of similar width. I find that the streets running east and west through the Faison & Ligón addition are 30 feet in width, and none of these have been opened through plaintiff’s property by. the city. I find that the lots in the Faison & Ligón addition are 160 feet in length and 91 feet in width. I .find that the blocks In the Faison & Ligón addition are 320 feet long by 364 feet in width. 1 find that North Line street is the northernmost street running east and west in the town of La Grange and in the Faison & Lig-ón addition. I find that its west end abuts upon Washington street, and that it also' abuts upon lot 4 belonging to these plaintiffs in block 504 for a distance of 160 feet, and I find that while said west end of said street was laid out and dedicated in 1S54, and if accepted it has never been worked, used, or traversed by the city of La Grange for street purposes, I am of opinion the evidence shows, and I find, that it was abandoned by the city, and I find that it has reverted to the plaintiffs, who are the owners of the lot No. 4 which is adjacent to and abutting upon said street.

“I find that the defendant has removed gravel from lot No. 4 belonging to the plaintiffs, and also removed gravel from the abandoned portion of the west end of North Line street, and that they were removing it at the time that this writ of injunction was applied for and granted, and also that said gravel was being removed from with (within) the city limits of La Grange, and was being carried and deposited in a roadway outside of the city limits of La Grange, and leading from the power house and the waterworks of the city to the city of La Grange, which was owned by the city of La Grange. I find that, for the purpose of improving the north end of Washington street and making it more traversable, the defendant has removed gravel, earth, and material, and has removed it to other places and used it in other portions of the city for public purposes, and without compensation to the plaintiffs, and that they are likely to continue to do the same hereafter; that the gravel, earth, and material in that part- of Washington street upon which plaintiffs’ property abuts, and over which the defendant has an easement or right of way, is valuable and merchantable and salable and has a market value, and I find that the plaintiffs have a fee-simple title to all that portion of Washington street upon which block 503 abuts, and upon which lots 1, 2, 3, and 4 abut, but such fee-simple title is subject to the easement or right to pass and repass by the defendant; that the defendant owns no title to the soil, but only a right to pass and re-pass, repair and maintain said street for use of the public; that Washington street has been dedicated to and accepted by the city of La Grange.

“Conclusions of Law.

“As a matter of law; I find that the plaintiffs are entitled to a perpetuation of their preliminary injunction in so far as it prohibits the defendant from removing gravel from their lots, and in so far as it prohibits the defendant from removing gravel from the west end of North Line street which abuts upon and lies adjacent to tne lots of plaintiffs.

“I hold that the defendant, by virtue of its corporation, is entitled under the law to improve the north end of Washington street in order to make the same traversable and more useful to the traveling public, and I find as a matter of law that the defendant has the right to remove the excess gravel and material, etc., from said street, and to carry it to any portion of the city and use it on the streets of the city without compensation to the plaintiffs pursuant to a general plan of street improvement. I find that the plaintiffs are entitled to recover all costs in this behalf expended, and I direct that judgment be entered according.”

In pursuance of the foregoing findings and conclusions, judgment was rendered perpetually restraining the city of La Grange from removing gravel from the property belonging to the plaintiffs, and from that portion of North Line street upon which the plaintiffs’ property abuts, and. which is designated as lot 4 in block 504. But the temporary injunction which had previously been issued, restraining the city of La Grange from removing gravel or dirt from Washington street where it abuts upon plaintiffs’ property was dissolved. The city of La Grange has prosecuted an appeal, and is complaining only of that portion of the judgment which relates to North Line street; and the plaintiffs, by cross-assignment of error, are complaining of that portion which relates to Washington street.

Opinion.

1. The questions dealt with in this opinion are presented by proper assignments, and we will now proceed to a consideration of those questions. Counsel for appellant contends, and we sustain the contention, that the trial court committed error in finding and holding that the city had not accepted the dedication of North Line street, and, if it had been accepted, that it was subsequently abandoned. It is not denied, and the undisputed proof shows, that the street referred to, as well as all others in ' the Faison & Ligón addition, was dedicated to the public in 1854; and, while no formal acceptance was shown, the proof disclosed such use of the street referred to by the city and the public as constituted an acceptance. The very fact that the city was removing gravel from that street, claiming the right to do so-because of its’ being a public street, was a sufficient evidence of an acceptance of the dedication. But, in addition to that, it was-shown that the greater portion of the street was used by the public as a highway. And what has been said in reference to the question of acceptance virtually disposes of the-question of abandonment. The trial court seems to have been of the opinion that because it was not shown that that portion of North Line street which abuts upon appel-lee’s property had ever been worked by the city, and as it was shown that there was but little travel on that part of the street, and as a small portion of it was practically impassable, thereby causing travel to diverge and go around that portion, that therefore that portion of the street had been abandoned. In that holding we think the trial court fell into error.

“In determining whether a highway has been abandoned, it is proper to consider the mode in which the abutters and the public acquired their rights, as well as what the necessity and convenience brought about by subsequent progress and growth may require. Roads and streets are frequently laid out or dedicated with reference to future requirements, as well as with reference to the existing condition of things, and it is not lust to assume that, because all of. the way is not used by the public or by the abutters, it has been abandoned.” Elliott on Roads & Streets, p. 660.

“But except where it is otherwise provided by statute, mere nonuser by the public, or the payment of taxes on such property by an individual, or delay in opening or improving the street, or a lease of the street, or permitting a steam railroad to occupy a part of the street, or continued encroachments on the streets by structures, or the inelosure of the street, or a part thereof, is ordinarily not sufficient of itself to show an abandonment.” 28 Cyc. 841, 842.

In Reilly v. City of Racine, 51 Wis. 526, 8 N. W. 417, it was said': “Until the time arrives when any street or part of a street is required for actual public use, and where the public authorities may be properly called upon to open it for the public use, no mere nonuser, of any length of time, will operate as an abandonment of it, and all persons in possession of it will be presumed to hold subject to the paramount right of the public.”

2. But appellees present the contention that, although North Line street may have been a public street, and may not have been abandoned, as was the condition as to Washington street, the city owns nothing but an easement, which is the right to use the land as a public highway, and that the fee remains in appellees; and therefore it is contended, as a necessary corollary, and more particularly because the Constitution of this state prohibits the taking of private property for a public use without compensation, that the city of La Grange had no authority to remove gravel or soil from either Washington or North Line street where those streets abutted upon appellees’ property, and use the same for the purpose of improving other streets not abutting upon appellees’ property, and one of which streets was not within the corporate limits of the city. There is some plausibility in the contention referred to, but, after due consideration, we have reached the conclusion that it is not in fact correct, and that the correct rule is that when a street, or other highway, has been legally established, the officer or governing body charged with the duty of opening up, constructing, and maintaining such street or highway has the right to remove soil, gravel, and other like material from one part of such street or highway to another portion of that or some other street or highway, for the purpose of constructing or maintaining the latter; and our views upon the subject are so well expressed by the Supreme Court of Connecticut in the case of City of New Haven v. Sargent, 38 Conn. 50, 9 Am. Rep. 360, that we copy as follows from, the opinion of the court in that case:

“It is apparent in this case that the real question is whether the city of New Haven has a right, as against an adjoining proprietor, to take soil from one street, in the network of streets in one particular part of the city, and use it in another street of that network near, but not directly connected with, the street from which the soil is taken, for the purpose of making and grading such other street; such soil being reasonably necessary for that purpose. Whether, in other words, the city has a legal and exclusive right, as against the respondent, to carry the soil from in front of his land (which must necessarily be removed by some one in grading the street), and deposit it in a depression in Derby avenue for the necessary purpose of raising that avenue up to a conforming grade. Whenever the performance of a public duty is imposed upon any person or corporation, the powers necessary for its full performance are impliedly, if not expressly and specifically, given. The'duty of laying out, making, and maintaining public highways has been imposed upon the towns in which they are situate. In relation to the laying out of highways their powers and duties are expressly prescribed, .but in relating to making and maintaining them their powers are not prescribed, but are implied, and are commensurate with the duty imposed. We must look, then, at the character of the duty, and see what powers are necessary for its performance.

“There has never been in our history a statutory provision prescribing the manner in which highways should be made. Nor has there been any provision in respect to the material of which to make them. By immemorial usage material has been taken for their construction within the limits of the highways of the town. Hills have been excavated and swamps and valleys filled up with the material taken from the excavation, and material existing in excess at one place has been taken to another where it was deficient. These things and many more have been done from the necessity of the case and the nature of the duty, according to the discretion of the officers appointed to do them; •and, where they have acted reasonably, their power has never been successfully questioned. The inference derivable from the silence of the statute in relation to the manner in which material was to be obtained for the construction of the highways, from the immemorial usage in relation to it, and the necessity in which it originated, and from whatever judicial decision we have respecting it, is very clearly that it has always been contemplated and understood by the General Assembly and the public that material for the construction of highways was to be taken within their limits, and might be removed from any place where unnecessary to any place where its use was necessary, without regard to the rights of adjoining proprietors, if the necessity was a reasonable one, and the power was exercised in a reasonable manner. So, too, in relation to the manner in which highways should be maintained and repaired, and the places from which material should be obtained for that purpose, the statutes have been silent. In 1643 the towns were directed to appoint surveyors of highway to ‘mend’ them, and the surveyors were authorized to ‘call out for that purpose every team and person fit for labor.’ No provision was made as to the manner in which material was to be obtained, or the extent to which the ways should be mended. That statute was extended in the Code of 1650, and a preamble added as follows:

“ ‘Whereas the maintaineing of highwayes in a fitt posture for passage, according to the severall occassions that occure, is not onely necessary for the comfort and safety of man and beast, but tends to the profitt and advantage of any people, in the issue,—
“ ‘It is thought fitt and ordered’ etc.
“This quaint preamble does not prescribe the manner in which highways are to be maintained, but it recognizes the principles which should govern, and have ever since governed, the legislation of the state and the officers of the towns in the maintenance of them. These principles contemplated their maintenance in a ‘fit posture for passage according to thq several occasions that should occur,’ not only ‘for the comfort of man and beast,’ but for ‘the profit and advantage of the people,’ and therefore contemplated all such improvements in structure and grade as ‘occasions’ occurring in consequence of the advancement and growth of the country, and particularly of populous and growing cities, should make necessary. At a subsequent revision this preamble was1 dropped, probably because thought unnecessary, and because preambles were usually omitted when the laws were digested, and the statute was silent on the subject until the Revision of 1821, when it was remodeled, and the present provision inserted, requiring the towns to keep their highways ‘in good and sufficient repair.’ The same usage in relation to the taking of material from any part of the highways, and using it in any other place in the highways, without regard to any of the supposed rights of adjoining proprietors, originating in the same necessity, has existed in respect to the maintenance of highways, as to their construction, and the same inference may be drawn from it.
“Railroads are usually authorized to take additional land outside of their limits for the purpose of obtaining material for the construction of their roads, because it is deemed possible that more material may be required than can be readily obtained within their' prescribed limits. No such provision has ever been made in favor of towns, and it is perfectly obvious that the Legislature and the towns have considered the right and the power to take material where it could be found within the limits of the highways, and use it in any other place where it was necessary to use it, and where it was not to be found, as a right and power necessarily incident to the easement, and adequate to the wants of the public in respect to such material.
“It seems clear to a majority of the court, upon this review of the statutes and usages of the state in regard to the making of highways, that the power of the officers of the town to remove material from place to place upon its highways, for the purposes of construction, improvement, or repair, and their right to do so are commensurate with the duties imposed and the limits of the highways, and paramount to the rights of adjoining proprietors, and that presumptively that right was paid for when the land was subjected to the easement.
“If the foregoing propositions are true in relation to the officers and highways of a town, they are a fortiori true of the corporation and streets of the city of New Haven; for that city is not only a highway district, with all the powers possessed by towns, but by a special provision of its charter it is authorized to grade its streets. The power to grade is not simply the power to level one street so that its parts shall conform with each other, but the power to grade numbers of streets so that they shall conform to each other in a common grade. Such a construction of the charter is necessary to enable them to provide proper drainage and sewerage. No provision is made for the acquisition or disposition of material, and presumptively it was contemplated by the Legislature when they granted the power to grade, and by the board who assessed damages or benefits to the respondent when the street was laid out, that material excavated therein could, and probably would, be removed on some other street which required to be elevated to grade.
“We think therefore that the power and right of the city to remove the soil in question to Martin street or Derby avenue, where it is reasonably required, are undoubted; that the right is paramount to the rights of the respondent; that presumptively he has been paid for the soil which has been or .is to be taken, and has no just cause of complaint; and that, in attempting to remove that soil onto his own premises and deprive the city of it, after being apprised of their immediate intentions and necessities, and to the injury of the city, he was a wrongdoer, and should be restrained by injunction.”

While one expression in that opinion would seem to indicate a dissent on the part of some' member of the court, it is subsequently stated, at the end of the opinion, that the other judges concur. But, be that as it may, we think the opinion is sound; and, as it deals with conditions substantially similar to those existing in this state, we cite and quote from it in support of the conclusion we have reached upon the question now under consideration. That question, in so far as our own and the researches of the counsel representing the respective parties disclose, has not been decided in this state. In fact, the Connecticut case, and Deniston v. Clark, 125 Mass. 216, are the only cases which we have found which are directly in point. The Massachusetts case is to the same effect as the Connecticut ease; but it appears to have been controlled, to some extent, by certain statutory provisions not involved in the case at bar, nor in the Connecticut case.

3. If it be contended that the doctrine announced in the Connecticut case is not applicable to that portion of this case which involves the right of the city of La Grange to remove gravel and soil from the streets abutting upon appellees’ property for the purpose of improving a highway outside the limits of the city, we think a sufficient answer is that, under article 769 of the Revised Statutes of 1911, the city of La Grange was authorized to construct and maintain a street or roadway from the city limits to its waterworks plant, and that it had the same power and authority in reference to that' street or roadway that it had as to any street within the corporate limits.

4. For the reasons above stated, the judgment of the trial court, in so far as it restrains the city of La Grange, its officers and employes, from removing gravel, soil, and similar material from North Line street, is reversed and here rendered for appellant; but in all other respects that judgment is affirmed.

Affirmed in part, and in part reversed and rendered.


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. MEYER.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 19, 1913.)
    1.Railroads (§ 414) — Injuries to Stock-Liability.
    There being no law in this state requiring a railroad to fence its right of way or inclose its track, the only statute on the subject merely declaring that when it has not done so, and an animal is injured by a passing train, the injury shall constitute prima facie evidence of negligence on its part, a railroad company, Lhough its right of way fence at one time inclosed a deep hole on the right of way, was under no duty to keep such hole inclosed for the purpose of preventing live stock from falling therein and was not liable for the death of a cow which fell therein after it had moved its fence so as not to inclose such hole.
    [Ed. Note.' — For other cases, see Railroads, Cent. Dig. §§ 1474, 1475; Dec. Dig. § 414.]
    2. Railroads (§ 411) — Injuries to Stock-Liability.
    A railroad company which constructed a fence at right angles to its road connecting with its right of way fence, which after it moved its right of way fence closer to the track served no purpose except to separate the fields of an adjoining owner, was under no obligation to such adjoining owner or any one else to maintain such fence, and for its failure to do so was not liable to the owner of a cow which escaped from its pasture through such fence and fell into a hole.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1409-1450; Dec. Dig. § 411.]
    3. Railroads (§ 411) — Condition oe Land —Excavations.
    A railroad company which removed considerable dirt from its right of way, leaving a basin into which surface water flowed and washed a deep hole, was under no obligation to guard such hole to prevent persons or animals falling therein, as the excavation was lawful and the hole was caused by natural causes.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1409-1450; Dec. Dig. § 411.]
    Appeal from Fayette County Court; Geo. Willrieh, Judge.
    Action by H. W. F. Meyer against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    G'eo. E. Lenert, of La Grange, for appellant. Edward H. M[oss, of La Grange, for ap-pellee.

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

   KEY, C. J.

This suit originated in a justice of the peace court but was appealed to and finally tried in the county court, where the plaintiff obtained a judgment against the defendant for $125, and the .defendant has appealed.

The cause of action was predicated upon the fact that a cow belonging to the plaintiff fell in a deep hole in the ground and broke her neck. The hole referred to was on the defendant’s right of way. About ten years prior to the trial, during an overflow of the Colorado river, the track and roadbed of the defendant’ were washed away from the approach to the bridge across the river, and the defendant in repairing that injury removed considerable dirt from the right of way, leaving a cut or basin of some length which subsequently formed a ravine, into the upper end of which surface water flowed; and, as a result of the concentration of the flow of water at that place, a large hole, some 8 or 10 feet deep and 17 feet wide, was washed out, and it was into that hole that the plaintiff’s cow fell and was thereby killed. The proof shows that the defendant formerly had its right of way so fenced as to include the greater portion of the ravine referred to and all of the hole in question within the defendant’s right of way inclosure. However, about four years prior to the accident the defendant moved its right of way fence nearer to its railroad track and left the hole and all of the ravine outside of its right of way fence. The proof shows that the defendant at the time in question still had control of and had been maintaining a fence which extended straight out from its track and trestle to and beyond its fence parallel to its track. The fence referred to constituted the dividing fence between a pasture and a field which belonged to one AYilliam Hermes. The proof shows that the plaintiff was pasturing his cow in Mr. Hermes’ pasture; that the cross fence referred to, which extended straight out from the defendant’s trestle, got out of repair, so that stock could pass through it at a point near the ravine on the defendant’s right of way but beyond and outside of the right of way fence; and that the plaintiff’s cow passed through that place and went from there to where she fell in the hole. It seems that at that time there was no fence between the defendant’s right of way and Mr. Hermes’ field, but on account of the bluff formed by the north bank of the ravine there were only one or two places that the cow could have gone into the field, but of course she could have gone back into the pasture at the same place she got out of it. • There was no proof that the cow was frightened by a passing train, or that the defendant did anything proximately contributing to its death, unless the failure to keep the fence repaired at the place where the cow got out of the pasture was the proximate cause of the injury. It was also shown that the hole referred to was surrounded by a considerable growth of vines and grass, which partially obscured its existence.

The foregoing is substantially a correct statement of the material facts, all of which are established by uncontroverted testimony. Counsel for appellant contends, and we sustain the contention, that the facts referred to disclose no cause of action against appellant. There is no law in this state which requires a railroad to fence its right of way or inclose its track, and the only statute we have upon the subject merely declares that, when a railroad has not done so, and an animal is injured by a passing train, the fact of such injury shall constitute prima facie evidence of negligence on the part of the railroad. Therefore it must be held that while, at one time, appellant had the hole in question inclosed within its right of way fence, it was under no duty to keep it so inclosed for the purpose of preventing live stock from falling therein; and from this it follows that it had the right to withdraw its fence and leave the hole referred to outside of the fence which inclosed the track.

Also, and for the same reason, we think it must he held that appellant owed appellee no duty and was under no obligation to keep in repair the cross fence which extended beyond the fence which inclosed the track. Granting that appellant had constructed that cross fence so as to connect with its right of way fence as it originally stood, still, after the right of way fence was moved in nearer the railroad track, the cross . fence which extended beyond the right of way fence served no purpose except to separate Mr. Hermes’ pasture from his field, and appellant was under no obligation to the owner of the pasture, or to any one else, to maintain that fence; and, being under no such obligation, it was not guilty of negligence when it failed to do so. 1 Thompson, Neg. (2d Ed.) § 965; 29 Cyc. 442, 444; Railway Co. v. Oakes, 94 Tex. 155, 58 S. W. 999, 52 L. R. A. 298, 86 Am. St. Rep. 835; Padgitt v. Railway Co., 90 S. W. 67. In the case last cited the proof showed that the railroad ran through Mrs. Padgitt’s farm, leaving her residence on one side and her pasture on the other; that she had a lane, fenced on both sides, leading from the house to the pasture; that the railroad’had fenced its right of way but had put in the cattle guards on the right of way in such manner as that live stock could pass over; and that a horse, belonging to Mrs. Padgitt passed over one of the cattle guards, went upon the track for a distance of about 100 yards to a bridge, and fell in the bridge and was injured. The court states that the cattle guard was so constructed as to form' no obstacle to animals crossing over it. The trial court directed a verdict for the defendant, and upon appeal the Fourth Court of Civil Appeals said; “The animal was not injured through the locomotives or cars of appellee. The case of appellant is no better than if appellee had never inclosed its right of way across the farm. At best the evidence shows that appellee had its track in such condition that animals had free access to it. Appellee was not required to keep its track or bridges in such condition as not to injure animals that went upon the right of way.” We fail to see any distinction in principle between that case and the case at bar.

This case is readily distinguishable from Railway v. Cluck, 99 Tex. 130, 87 S. W. 817, relied on by counsel for appellee. In that case the railroad had leased a spring from the plaintiff’s father converted it into something like a well and covered it over, and was using it to obtain water- for its engines. There was a pathway passing by it, which, to the knowledge of the railroad, was in constant use by Cluck and persons at his residence, which was near by. The covering over the well was washed away, and the railroad negligently failed to replace it, and, as a result thereof, Cluck, the plaintiff in that case, who was visiting his father’s house, while traveling the path in question during the nighttime, fell in the well and was injured; and it was held that the railroad owed him the duty of exercising reasonable care and diligence for the purpose of preventing such accidents. The case in hand is no such case as that.

Nor is this a case in which the owner of premises had dug a hole in the ground and left it in such condition as to constitute a pitfall into which persons or animals might unconsciously step and be injured; and therefore it is not necessary to consider what would be the law in such a case. Appellant had the right to make the excavation it did upon its right of way, and it is not claimed that any injury would have resulted to appellee’s animal if conditions had remained as they were after the excavation referred to. The hole, which was subsequently formed by surface water being concentrated at a particular point and flowing into the excavation, was a condition brought about by natural causes and not by any act of the railroad, and therefore it was under no obligation to appellee, or any one else, to take any steps to prevent live. stock from falling therein.

Eor the reasons stated, the judgment of the trial court is reversed, and judgment here rendered for appellant.

Reversed and rendered.


text:
    BROWN et al. v. BRENNER et al.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 20, 1913.
    Rehearing Denied Dec. 11, 1913.)
    1. Appeal and Error (§ 732) — Assignments oe Error — Requisites.
    An assignment that the court erred in refusing to grant specified defendants’ amended motion for new trial was too general to present any question for review;
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.]
    2. Deeds (§ 78) — Vacation — Grantor — Mental Incompetency — Questions eor Jury.
    In suit to set aside a deed, evidence held to authorize submission to the jury of the question whether the grantor was mentally incompetent to make the conveyance at the time he signed it.
    [Ed. No.te. — For other cases, see Deeds, Cent. Dig. § 648; Dec. Dig. § 78.]
    3. Appeal and Error (§ 742) — Assignments oe Error — Proposition—Relevancy.
    A proposition that the court erred in permitting certain witnesses to testify that in their opinion the grantor in a deed in controversy did not have mental incapacity to transact business, and in the witnesses’ opinion he was not in his right mind when he executed the deed, was not germane to an assignment that the court erred in refusing to grant defendants a new trial because the evidence was insufficient to warrant a finding that the grantor had not mental capacity when he executed the deed and therefore could not be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    4. Appeal and Error (§ 760) — Review — Bribes — Objections and Exceptions.
    A ruling on admission of testimony cannot be reviewed where appellant’s brief does not indicate that any objection was interposed to the testimony when offered and does not refer to bills of exception as having been taken to the court’s ruling.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3095; Dec. Dig. § 760.]
    5. Appeal and Error (§ 742)-=-Assignments oe Error — Propositions—Applicability.
    A proposition that, plaintiff having introduced several witnesses to show that the grantee in a deed in controversy had mental capacity when he executed it, it was error for the court to render a judgment canceling the deed but should have directed a verdict for defendants was not germane to an assignment that the court erred in refusing to grant defendants a new trial because the evidence was insufficient to warrant the jury in answering in the affirmative an interrogatory as to whether the grantees had notice of the grantor’s alleged mental incapacity.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    6. Insane Persons (§ 66) — Conveyance — Execution — Consideration—Duty to Return.
    Where, in a suit to set aside a deed al- , leged to have been executed by an insane person, there was no evidence that he had any money at the time of his death except $125, which was the proceeds of rents of the property in controversy, and there was no proof that he purchased necessaries with the consideration nor that it was invested by or for him for the benefit of his estate or was still on hand, defendants were not entitled to a return of the consideration as a condition to canceling the deed.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 100-102, 104, 105; Dec. Dig. § 66.]
    Appeal from District Court, Harris County ; Charles E. Ashe, Judge.
    Action by W. F. Brenner and others against Carrie Brown and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    -Heidingsfelders and Jas. Slyfield, both of Houston, for appellants. Van Velzer & Lewis, D. F. Rowe, and Leonard Doughty, all of Houston, for appellees.

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

   McMEANS, J.

This suit was brought by appellee W. F. Brenner against Carrie Brown, O. Frosch, V. T. Watson, C. E. Heid-ingsfelder, and Camille Blue in the nature of a bill in equity for the purpose of securing the cancellation of a deed of conveyance of certain lots of land in the city of Houston, wherein plaintiff’s father, Henry Brenner, was grantor and Carrie Brown was grantee, and to secure the cancellation of various instruments subsequently executed, whereby the title to the grantee from Henry Brenner was conveyed to appellants. Cancellation was sought upon the grounds that: (1) Carrie Brown was a fictitious person; (2) the deed to her was a forgery; (3) it was induced by active fraud; (4) that the grantor was mentally incompetent to make the conveyance at' the time he signed it; and (5) the appellants took with knowledge of his mem tal infirmity. After the institution of the suit appellee Brenner conveyed to Camille Blue an undivided interest in the lots, and thereafter she intervened in the suit, setting up the title thus acquired, and became plaintiff with Brenner as against the other named defendants. The defendants answered, setting up various defenses, the character of which, in view of the disposition we shall make of this appeal, need not be stated. The case was submitted to a jury upon special issues, and, upon the coming in of the verdict, judgment was rendered for plaintiffs, and defendants have appealed.

One of the hotly contested issues of fact on the trial was whether, at the time Henry Brenner signed the deed conveying the property in controversy to Carrie Brown, he was mentally incompetent. The court submitted this issue to the jury as follows: “Sixth issue: If in answer to the first issue you find that the purported deed from Henry Brenner to Carrie Brown, therein inquired about, was not a forgery, then and only in such event you will answer this question: Did Henry Brenner have sufficient mental capacity to know and understand the nature and result of the transaction of making and executing the said deed at the time same was made and executed?” To which question the jury answered, “No.”

Appellants’ first assignment of error is as follows: “The court erred in refusing to grant defendants Frosch, Heidingsfelder, and Watson’s amended motion for a new trial.” That this assignment is too general to authorize or require consideration is too well settled to require the citation of authorities.

The second assignment complains that the court erred in refusing to grant said defendants a new trial because the answer' to the jury to the sixth special issue, above quoted, is against the preponderance of the evidence, and there was no evidence, or not sufficient evidence, to warrant the jury in answering the question in the negative. Upon this issue the following is part of the evidence introduced:

Dr. G. W. Larendon testified: “My present profession is physician and surgeon. I have been so occupied since 1889, about 23 years, here in the city of Houston, practicing medicine since 1889. I am city physician at the present time. I have held that position 12 or 15 years. I have also been county health officer several times. My practice has brought me in contact with patients suffering from mental alienation to quite an extent, years’ experience with them. I am investigating cases of mental alienation every week or two throughout my work as city and county health officer; we see them. I knew Mr. Brenner during his lifetime very well. I have known Mr. Brenner about 20 years. I did have an opportunity during Mr. Brenner’s lifetime to observe him in his acts and conduct or business transactions. I was his physician. I attended to him during the life of my father and after his death continuously up to his last illness. I attended to him off and on for 15 years. I was attending him during his last few months of his lifetime; up to the last week, I lost track of him. I did notice peculiarities of conduct or of conversation which would indicate his mental condition. He was suffering with senile dementia, insanity due to old age. It had been coming on him for years. That is a progressing disease, the result of age. This disease does affect a man as to his soundness of mind; it makes them incompetent. My professional opinion in regard to Mr. Brenner, during the last three months of his lifetime, is that he was of unsound mind. He did not have sufficient mental capacity during the last three months of his lifetime to understand ordinary business transactions. T am a graduate of Jefferson College of Philadelphia, class of 1889. In the course of my work as health officer I have been called upon to examine hundreds of cases of insanity. I am still so employed in examining such cases as they come up, but not in court proceedings. I come in contact with them constantly as health officer. Old man Brenner died February 12, 1911, just a year ago. I make this statement under oath, as my judgment as a physician, from what I knew of him and my general knowledge of such cases, that he did not have mental capacity to transact business affairs understandingly; that he was of unsound mind then and a year prior to that. He was in my office every day for a year, most every day or every other day, for the past year. He never left me. In my opinion I think he was of unsound mind prior to his death in February, 1912, of such character that he was incapable of transacting any business or understanding any business transactions for about a year or 18 months. He was mentally unsound prior to that time. I could not say how long prior to a year or 18 months before his death, but he has been going from bad to worse for years. From actual observation with him for years that I know of, he has been of such mental condition. I do not think he did understand any business dealings. I do not think he was capable of transacting any business; not capable of attending to his own business.”

Judge J. A. Breeding, a practicing lawyer of the Houston har, testified: “I have resided in the city of Houston very 'close to 32 years. It will be 32 years in June. I am a practicing lawyer. I was acquainted with Henry Brenner in his lifetime. I first knew Henry Brenner, I think it was, about 1885. I was never very intimate with him, but frequently he would consult with me or come to my office on business, and we always spoke when. we passed by. I never was at bis bouse, and be never was at mine, but I knew bim just like I know hundreds of other people that I meet' daily almost. He has consulted me on some of bis matters. I would not be accurate as to the time prior to bis death that I bad my last conference with bim, but it strikes me about five or six months. During my acquaintanceship with bim I did have occasion to ascertain whether he had any peculiarities or not. The old man in bis late years, well, I will say three or four years of his life, became to my mind very peculiar. He would come to my office and ask me questions or consult me about matters, and, when X would give the information that he wanted, he would sit there; he would pick at himself this way (indicating); and directly he would seem to wake up and go out of the office and come back and ask me what it was he was talking about when he was in before. I had him to do that three or four times. I know that the old man had a mania for making wills. I know of three he made, and he applied to me to make a couple more, but I told him I thought it was useless. Outside of those X had connection with I know of one that Mr. Heidingsfelder made, or attempted to make. Erom my observation of this man my judgment is that he was not competent in mind to transact business, and I refused to transact business for him on that account.”

There was other testimony along the same line, notably that of plaintiff, W. E. Brenner, but that which we have quoted is sufficient to raise the issue and require its submission to the jury and to warrant the jury in answering the question in the negative.

A second proposition under the second assignment is to the effect that the court erred in permitting the witnesses Larendon, Breeding, and Brenner to testify that in their opinion Henry Brenner did not have mental capacity to transact business, and that in their opinion he was not in his right mind. This proposition is clearly not germane to the assignment, which complains that the evidence of these witnesses did not authorize the jury to answer the sixth special issue in the negative. Besides this there is nothing in appellants’ brief to indicate that any objection was interposed to this testimony when it was offered in the court below, nor are any bills of exception referred to as having been taken to the action of the court in permitting the witnesses to testify.. The proposition cannot be considered. The second assignment is overruled.

By their third assignment of error appellants complain that the court erred in not granting to them a new trial because the evidence was insufficient to warrant the jury in answering in the affirmative the seventh special issue submitted by the court, which is as follows: “If you answer the preceding issue, and in the negative, then and only in such event you will answer this question : Was the want of mental capacity in Henry Brenner to make the deed in question known to defendants Frosch and Heid-ingsfelder, or either of them, at the time of the execution and delivery of the purported deed from Carrie Brown to Frosch, if any such deed you find was executed and delivered?” The proposition under this assignment is as follows: “The plaintiff in this cause, having introduced in the trial of this cause several witnesses in their behalf, who had known Henry Brenner — some of them for several years, and one of the said witnesses being Camille Blue, the intervener herein, and who attended to the wants of Henry Brenner for a teim of some months next preceding his death, and who attended to his burial, and she and each of said witnesses having had opportunities of seeing the acts and the deeds of said Henry Brenner in the conduct of his business transactions, and the said acts and deeds as detailed in evidence by the said witnesses to the jury, proving clearly that Henry Brenner, on and before the 1st of December, 1910, waS in full possession of his mental faculties and fully able to transact business up and until his death, then it was fundamental error of law for the court to render the said judgment it did render herein, canceling the two said ■ deeds under which the defendant O. Frosch' now holds the title to the property in controversy in this suit, and it was the duty of the court to have directed a verdict for the defendants.” The proposition is not germane to the assignment, and, even if it were, the testimony set out in the statement in support of the assignment does not remotely refer to knowledge or want of knowledge on the part of defendants Frosch and Heidings-felder of the want of mental capacity of Henry Brenner at the time the deed to Carrie Brown was signed. There is no merit in the contention that the assignment points out fundamental error. Appellees object to the consideration of this assignment, and the objection must be sustained.

The jury found that Carrie Brown paid to Henry Brenner $1,500 as the purchase price of the lots, and this was the consideration recited in the deed. Appellants by their fourth assignment contend in effect that, the jury having found that said Brenner at the time he made the deed to Carrie Brown was mentally incompetent, the court should not have rendered judgment for appellees, unless plaintiffs should place the said Carrie Brown in statu quo by restoring to her the amount of money she so paid Henry Brenner for the land, and that the court should have granted defendants’ motion for a new trial in order that plaintiff and intervening plaintiff might amend their pleadings and offer to do equity.

The jury found that, at the time Henry Brenner executed the deed to Carrie Brown and received the recited consideration, he was mentally incompetent. There is no evidence in the record that Henry Brenner had any money at the time of his death except $125 (and this was the proceeds of collection of rents of property belonging to him and now in controversy), nor that he had purchased necessaries with the $1,500, nor that it had been invested by or for him for the benefit of his estate, nor that it was still on hand. To entitle appellants to this character of relief it was incumbent upon them to show by their pleadings for affirmative relief, and to establish by evidence, that the money received by Henry Brenner from Carrie Brown was expended for necessaries, 'or that it was on hand at the time of his death, or that it had been invested by or for him for the benefit of his'estate. In the absence of such proof, plaintiffs would not be required to return the consideration. Bullock v. Sprowls, 93 Tex. 188, 54 S. W. 661, 47 L. R. A. 326, 77 Am. St. Rep. 849; Williams v. Sapieha, 94 Tex. 436, 61 S. W. 115; Bank v. McGinty, 29 Tex. Civ. App. 539, 69 S. W. 495, on page 496, and authorities cited. The point raised by this assignment was not made an issue upon the trial in the court below either by the pleadings or the evidence; hence the assignment points out no error and is overruled.

The record discloses no reversible error, and the judgment of the court below is affirmed.

Affirmed.


author: JENKINS, J.

text:
    HELMKE v. UECKER.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 26, 1913.)
    1. Bills and Notes (§ 94) — Consideration —Debt Barred by Limitation.
    A previous debt, though barred hy limitation, was a sufficient consideration for the execution of a new note to the extent that it was given for such indebtedness.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 166-173, 175-181, 185-189, 192, 193, 196-198, 200, 202-207, 212; Dec. Dig. § 94.]
    2. Chattel Mortgages (§ 241) — Cancellation — Destruction of Note.
    Where the holder of a note for $240 secured by a chattel mortgage verbally agreed that, if the mortgagor executed a note for a larger amount in consideration, of the surrender of the smaller note and the cancellation of the mortgage, the mortgagor’s execution and delivery of the larger note, without more, canceled the mortgage.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 503, 504; Dec. Dig. § 241.]
    3. Chattel Mortgages (§ 241) — Covenant to Cancel.
    In such case, if the action of the parties did not amount to a present cancellation of the mortgage, it was a covenant on the part of the mortgagee to cancel it in the future, which the mortgagor could enforce in a suit on the mortgage note, or for breach of which he might recover damages.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 503, 504; Dec. Dig. § 241.]
    4.Chattel Mortgages (§ 241) — Foreclosure.
    Where a debt evidenced by a note for $240, secured by a chattel mortgage, was merged in a larger note executed by the mortgagor, without any agreement to release the chattel mortgage, the mortgagee would be entitled to judgment for the principal of the larger note, with foreclosure of the chattel mortgage to the extent of the debt represented by the $240 note.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 503, 504; Dec. Dig. § 241.]
    Appeal from District Court, Comal County; Frank S. Roberts, Judge.
    Action by Heinrich Helmke against Herman Ueeker. ■ Judgment for plaintiff for less than the relief claimed, and he appeals.
    Reversed and remanded for new trial.
    H. M. Wurzbaeh, of Seguin, and Martin Faust, of New Braunfels, for appellant. E. E. Fischer and James Harléy, both of Seguin, for appellee.

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

   JENKINS, J.

This is a suit to recover upon a note for $659.20, executed by appellee in favor of appellant.

According to appellee’s testimony, on October 2, 1912, he was indebted to appellant in the sum of $240 principal and $19.20 interest, represented by his note, and secured by a chattel mortgage, and also the sum of $480 principal, with interest for some nine or ten years, which latter amount was barred by the statute of limitation. Being unable to pay the $240, he made an agreement with appellant that he would execute his note due January 1, 1913, for $659.20, which note was to include the $259.20 due on his note and $400 of the old indebtedness, in full satisfaction of the old indebtedness and of the chattel mortgage, the appellant agreeing to surrender the $240 note, and to cancel and to deliver to him the chattel mortgage; that in pursuance of this agreement he executed the note herein sued on for $659.20; that appellant destroyed in his presence the $240 note, but has never canceled nor delivered to. him the chattel mortgage; and that the bringing of this suit to enforce said mortgage is a breach of the contract on the part of appellant, for which reason the consideration for the execution of the note sued on has failed to the extent of $400 thereof.

According to appellant’s testimony, appel-lee, on October 2, 1912, was indebted to him in the sum of $791.20, besides some interest on $532 of such, amount, none of which was barred by limitation; that $240 .principal and $19.20 interest of said indebtedness was represented by a note secured by the chattel mortgage herein sought to be foreclosed; that on said date he agreed with plaintiff to give Mm $132 of said indebtedness, and take Ms note due January 1, 1913, for tbe remainder, $659.20; that nothing was said about tbe chattel mortgage; that be complied with Ms part of said agreement. Tbe parties hereto are brotkers-in-law.

Tbe court instructed tbe jury as follows: “If you believe from the evidence that defendant renewed the $240 note due plaintiff and secured by a mortgage lien described in the pleadings, and at the time he did so he executed the note for $659.20 as a renewal for said $240 and interest thereon, and as a renewal of the old indebtedness barred by limitation to the amount of $400, but that he did so upon the express condition and promise upon the part of the plaintiff that he (the plaintiff) would release and cancel said mortgage lien on the property theretofore given to secure payment of said $240 note, and you further find that plaintiff did promise to cancel said mortgage lien, and, in consideration of that promise, the defendant renewed or promised to pay the old indebtedness of $400, and that said $400 was merged with the $240 note, and that said note for $659.20 was so executed, and that the plaintiff did not and has not canceled and released said mortgage, then the plaintiff would not be entitled to recover from the defendant the said $400 included in said note, and, if you so find and believe from the evidence, you will return a verdict for the plaintiff in tbe sum represented by the $240 note, together with interest and attorney’s fees, and for foreclosure of said mortgage lien,, and so state in your verdict.”

The jury returned the following verdict: “We, the jury, find plaintiff entitled to the sum represented by the $240, together with the interest and attorney’s fees, and for foreclosure of said mortgage lien.” Judgment was entered in accordance with said verdict, from which plaintiff in the court below has appealed.

Without taking them up seriatim, we dispose of the propositions and counter propositions of appellant and appellee as follows:

1. The previous debt, though barred by limitation, if such was the fact, was a sufficient consideration for the execution of the new note to the extent that the same was given for such indebtedness. Burnham v. McMichael, 6 Tex. Civ. App. 496, 26 S. W. 888.

2. If, in pursuance to a previous verbal agreement that appellee would execute the note herein sued on in consideration of the cancellation and surrender of the $240 note, and the cancellation of tbe mortgage securing the same, and the promise to pay $400 of a previous existing debt, appellee executed and delivered to appellant the note herein sued on, and appellant destroyed the $240 note, without anything further being said about the mortgage, such action operated as a cancellation of the mortgage at said time, and ap-pellee, upon proper pleading, was entitled to have it so decreed in the judgment herein.

3. If it could be held under appellee’s testimony that the action of the parties did not amount to a cancellation of the mortgage in eo- presentí, then it was a covenant ,on the part of appellant to cancel same in the future, which appellee, under proper pleading, would be entitled to have enforced, in this suit, • or for breach of which he might recover damages, if any he has suffered thereby. Johnson v. Gurly, 52 Tex. 226; Byars v. Byars, 11 Tex. Civ. App. 565, 32 S. W. 926.

4. If the facts should be found as claimed by appellant, viz., that the debt evidenced by the $240 was merged in the note sued on, but without any agreement to release the chattel mortgage, appellant will be entitled to judgment for the principal, interest, and attorney’s fees of the note sued on, with foreclosure of the chattel mortgage to the extent of the debt originally represented by the $240 note and interest thereon.

For the reasons indicated, the judgment of the trial court is reversed, and the cause remanded for a new trial.

Reversed and remanded.


text:
    McKNEELY v. BEATTY.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 20, 1913.)
    1. Justices op the Peace (§ 174) — Appeal-New Trial in Appellate Court — New Cause op Action.
    On the trial in the county court of an action appealed from justice court, the county court cannot entertain a cause of action on a demand in excess of that of which the justice court had jurisdiction, and hence where, in an action to recover $152, plaintiff on appeal amended the petition so as to seek a recovery of $356, in addition to that sought in the justice court, the allegations to sustain this additional recovery should have been stricken.
    [Ed. Note. — For other cases, see Justices of the Peace, Gent. Dig. §§ 665-693; Dec. Dig. § 174.]
    2. Appeal and Error (§ 1042) — Harmless Error — Ruling on Motion to Strike.
    Where, though the county court on an appeal from justice court denied a motion to strike out a cause.of action not set up in the justice court, when made, the judgment recited that it was sustained, thus indicating that the new cause of action was not considered, the error was cured..
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4110-4114; Dec. Dig. § 1042.]
    Appeal from Galveston County Court.
    Action by Henry Beatty against G. E. Me-Kneely. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. V. Meek, of Houston, for appellant. Geo. G. Clougb, of Galveston, for appellee.

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

   McMEANS, J.

Henry Beatty brought suit against O. E. McKneely in tbe justice court of Galveston county to recover $152, alleged to be double tbe amount of usurious interest be bad paid defendant, and on a trial in that court recovered a judgment for $144. Defendant prosecuted an appeal from tbis judgment to tbe county court, where tbe plaintiff amended bis pleadings, and therein, in addition to tbe claim asserted in tbe justice court, claimed actual damages in tbe. sum of $100, and exemplary damages in the sum of $250. Tbe case was tried before tbe court without a jury on tbe 4th day of March, 1913, and resulted in a judgment for plaintiff for tbe sum of $136, from which the defendant has appealed.

On tbe day tbe case was tried tbe defendant filed a motion to strike out and bold for naught tbe allegations of plaintiff’s amended petition praying for $100 as actual and $250 exemplary damages in addition to plaintiff’s original demand. This motion appears, by an order entered upon tbe minutes on March 4, 1913, to have been overruled by tbe court, and tbis action of tbe court is made tbe basis of appellant’s only assignment of error. It has been so frequently and consistently held that tbe county court, in a case to be tried de novo on appeal from tbe justice court, has no jurisdiction to entertain a cause of action on a demand in excess of that of which the justice court bad jurisdiction, that we are at a loss to understand why tbe new cause of action was pleaded, and that the court did not sustain tbe motion to strike it out when first presented is inexplicable. However, while it appears from tbe order entered of record that the court refused to sustain the motion, the judgment rendered in favor of plaintiff upon tbe trial recites that tbe motion was sustained. We take it from tbis that tbe court did not consider tbe new cause of action for actual and exemplary damages, and that tbe sustaining of tbe motion as shown by tbe judgment, after overruling it as shown by tbe order, cures tbe error here complained of. Tbe judgment is affirmed.

Affirmed


author: MeKENZIE, J.

text:
    THEODORE KELLER CO. v. MANGUM.
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 20, 1913.)
    1. Appeal and Error (§ 916) — Peesump-tions — Allegations, as to Venue.
    In determining, on appeal, tbe question Whether a plea of privilege to be sued in the county of defendant’s residence, was properly sustained, it will be presumed that the allegations of the petition which are material for the purposes of determining the proper venue of the action are true. '
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3699-3705; Dec. Dig. § 916.]
    2. Venue (§ 21) — Contracts—Statute.
    Under Rev. St. 1895, art. 1194, providing that where a person has contracted in writing to perform an obligation in any particular county, suit may be brought against him either in such county or in the county of his domicile, a consignor of cotton, whose bill of lading with draft attached was taken up and the cotton received in H. county, could not, in the consignee’s action to recover an overpayment, plead the privilege to be sued in T. county, where he resided.
    [Ed. Note. — Eor other cases, see Venue, Cent. Dig. § 34; Dee. Dig. § 21.]
    3. Venue (§ 21) — Commission Contract — Freight Charges.
    In such case, and to avoid a multiplicity of suits, the venue for the consignee’s recovery of its overpayment of freight charges might also be laid in H. county.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 34; Dec. Dig. § 21.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by tbe Theodore Keller Company against E. L. Mangum. From tbe sustaining of a plea of privilege and tbe transferring of tbe cause to tbe county court of Taylor county, plaintiff appeals.
    Reversed and remanded.
    A. R. & W. P. Hamblen, of Houston, for appellant. Cole, Wilson & Cole, of Houston, for appellee.

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

   MeKENZIE, J.

This action was commenced in tbe county court of Harris county by tbe Theodore Keller Company against E. L. Mangum, to recover $214.58 alleged to be due. Tbe following are, substantially, tbe allegations in tbe petition: “That said defendant is justly and truly indebted unto your petitioner in tbe sum of $214.58, and for cause says that your petitioner are cotton factors engaged in tbe business of buying and selling cotton on commission, and allege that on tbe 6th day of September, 1911, tbe said defendant shipped to your petitioner 25 bales of cotton, and drew a draft on petitioner payable at Houston, to which was attached tbe bill of lading for said cotton for tbe sum of $1,375, which said draft your petitioner paid; that the freight charges on said cotton amounted to tbe sum of $59.24, which your petitioner paid, and that the interest on said sum so advanced amounted to tbe sum of $20,89, your petitioner advancing to said defendant tbe sum of $55 per bale; that at tbe request of said defendant your petitioner held said cotton for instructions as to when to sell tbe same, and that before tbe said defendant authorized your petitioner to sell said cotton, tbe .value of said cotton bad declined to less than tbe amount advanced by petitioner to defendant, and upon your petitioner demanding of said defendant tbe margin to cover such decline, said defendant refused and failed to furnish said margin, and thereupon your petitioner sold said cotton, and received therefor tbe sum of $1,230.55, leaving a balance due your, petitioner amounting to tbe sum of $214.58, with interest thereon from tbis date at the rate of 6 per cent, as shown by tbe itemized statement hereto attached marked ‘Exhibit A,’ and made a part hereof, whereby the said defendant became liable, undertook and promised to pay unto your petitioner said sum $214.58, with interest as aforesaid, but to pay the same, or any part thereof, he has .wholly failed. Wherefore your petitioner prays that said defendant be cited in terms of law to appear and answer this petition, and upon a hearing hereof petitioner have judgment against said defendant in such sum of money, interest, and costs, and for such other and further relief to which your petitioner may be entitled in law and equity.” The itemized statement Exhibit A was sworn to, and an examination of it bears out the allegations of the items of indebtedness of the petition. The defendant interposed a plea of privilege to be sued in Taylor county. This plea was sustained by the trial court, and the case transferred to the county court of Taylor county.

The plaintiffs introduced in evidence the original draft, which shows to have been accepted and paid by them. The draft and in-dorsements thereon are as follows:

“Theo. Keller Co., Wholesale Grocers, Importers &. Cotton Factors, Houston, Texas. Trent, Texas, Sept. 1st, 1911. Pay to the order of First State Bank, Trent, Texas, $1375.00, Thirteen hundred seventy-five no/100 dollars. Charge to our account payable at Houston. [Signed] E. L. Mlangum. To Theo Keller Co., Houston, Texas.”

Indorsements:

“Sept.1 6, 1911. Accepted payable at the First National Bank, Houston, Texas. Theo. Keller Co., hy Alex Keller.
“First National Bank, Houston, Texas, Dec. 7, 1911. Paid.”

It was admitted that at the time of trial and at the time of bringing the suit in the county court of Harris county that the defendant resided in Taylor county. It was proved by the defendant that the only writing evidencing a contract was the draft for $1,375 introduced in evidence by the plaintiff, as drawn on Theodore Keller Company, with bills of lading attached for 23 bales of cotton shipped.

The single issue is: Did the trial court err in sustaining the plea of privilege? It will be presumed that the allegations of the petition which are material for the purpose of determining the proper venue of the action are true. Hoffman v. Association, 85 Tex. 409, 22 S. W. 154; Ry. Co. v. Short, 51 S. W. 261; Baldwin v. Richardson, 87 S. W. 353.

It is shown by the pleadings and evidence that the draft was for $1,375, interest amounted to $20.S9, and the amount of freight paid was $59.24. The cotton, .when sold, brought only $1,230.55, leaving an amount due as alleged.

We are of the opinion that this case is analogous to Callender, Holder & Co. v. Short, 34 Tex. Civ, App. 364, 78 S. W. 366. It was there held that bills of lading and drafts attached, sent by the consignor to the consignee through a bank, when on payment of the draft the consignee received the bills of lading, and upon presentation of the bills of lading to the carrier received the consignment in Harris county, pursuant to the terms of the bills of lading, constituted a written contract, as between the consignor and the consignee, to deliver the consignment in Harris county. If the consignee overpaid the consignor for the cotton bought under contract to be delivered in Harris county, a plea of privilege by the consignor, in an action for the overpayment brought in Harris county, where the cotton was delivered, to be sued in the county of the consignor’s domicile is unavailing under R. S. 1895, art. 1194, providing that where a person has contracted in writing to perform an obligation in any particular county, suit may be brought against him either in such county or in the county where defendant has his domicile.

•Of the alleged amount due, $144.45, was for overpayment on the draft, and $20.89, the accrued interest on this overpayment. The draft, by its terms was payable in Houston, and Houston is in Harris county. According to the authority just quoted, we hold that the contract, consisting of the draft and the bills of lading, was in writing, to be performed in Harris county, and as to the overpayment made on the draft, the venue of the suit is properly laid in Harris county, and to avoid a multiplicity of suits, it was proper to embrace in the suit the freight charges, which in this cause is alleged to be $59.24. Middlebrook & Brother v. David Bradley Mfg. Co., 86 Tex. 706, 26 S. W. 935.

It is also our opinion that, since the contract is one in writing and performance is to be in Houston, the freight charges paid being by plaintiff necessary to the performance of the contract, the venue for the collection of such freight charges so paid would also be in Harris county. The trial court in our opinion erred in sustaining the plea of privilege. The cause will therefore be reversed and remanded for trial upon the merits.

Reversed and remanded.


author: REESE, J.

text:
    FRAZIER et ux. v. HOUSTON OIL CO. et al.
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 31, 1913.)
    1. Adverse Possession (§ 25)—Possession bx Lessees.
    Where the owners of land leased it under an instrüment providing that in consideration for the use and occupancy, rent free, of the improvements, the lessee acknowledged himself to be a tenant of and in possession for the owner, and agreed to occupy and hold possession of the land, the tenant had the right to possession of the entire tract of land and could not, hy limiting his occupancy to the inclosed land, limit his lessor’s constructive possession of the entire tract.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 116-120; Dec. Dig. § 25.]
    2. Adverse Possession (§ 13) — What Constitutes.
    One who has adverse, peaceable, an.d continuous possession of land for more than ten years acquires a prescriptive title.
    [Ed. Note. — For other eases, see Adverse Possession, Cent. Dig. §§ 65, 67-76; Dec. Dig. § 13.

    For other definitions, see Words and Phrases, vol. 1, pp. 227-235; vol. 8, p. 7568.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Trespass to try title by W. S. Frazier and wife against the Houston Oil Company and others. From the judgment, plaintiffs appeal.
    Affirmed.
    Jno. L. Little, of Kountze, for appellants. Hightower, Orgain & Butler and J. D. Campbell, both of Beaumont, for appellees.

      For other cases 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

   REESE, J.

This is an action in trespass to try title by W. S. Frazier and wife against the Houston Oil Company, to recover the title and possession of 160 acres of land, part of the G. W. Brooks survey in Hardin county. Plaintiffs sought to recover upon a limitation title under the statute of limitation of ten years. It was agreed “that the record title was, from 1882 until about the first of 1890, in E. A. Irvin, and from then until about 1S98 was in J. P. Irvin, and from that time until July 31, 1901, the record title was in the Texas Pine Land Association, and since the last-named date the record title has been in the defendant. E. A. Irvin and J. P. Irvin and the Texas Pine Land Association are all vendors of the defendant through whom the title passed into the defendant, who now owns all of it, unless the title to the land in controversy has been perfected in the plaintiffs by limitation at any time between the dates of 1875 and the time of the filing of this suit, and is thus owned by them.” It was further agreed that plaintiffs’ possession began in 1875. The evidence showed that plaintiffs had had actual possession by inclosure and improvements of 12 acres of the land,, included within his in-elosure. As to the remainder of the 160 acres, the defense rested upon constructive possession of the league in the several owners in defendant’s chain of title through tenants, under leases, from 1883 up to the date of filing of the suit, thus limiting appellants’ right of recovery to the land actually inclosed. The case was tried by the court,, resulting in a judgment for appellants for this 12 acres and for appellees for the remainder. Appellees were adjudged to pay the costs. From the judgment appellants prosecute this appeal. Incidentally, appellants claimed that J. W. Hilton had cut and removed timber from the land of the value of $50, which had been deposited with one Collier to await the event of the suit. For this sum appellees also had judgment.

The first, sixth, and eighteenth assignments of error are addressed solely to appellant’s right to recover the 160 acres upon the evidence as to his actual possession under the ten-year statute, without reference to the evidence as to appellees’ constructive possession of the entire league (except that actually inclosed) limiting appellant’s right to recovery to the 12 acres; the questions arising upon this latter claim being presented by other assignments. As to these assignments, the undisputed evidence seems to bear out appellant’s contention as to his adverse possession of the 160 acres sued for, and his right to recover the same, less the' several tracts sold by him, except in so far as that right is limited by the constructive possession of appellee and its vendors as aforesaid.

This brings us to the assignments of error from 8 to 11, also the thirteenth and fourteenth assignments of error, which complain of the action of the court in admitting in evidence certain lease contracts entered into by certain persons with the several owners in appellees’ chain of title. Under these assignments appellant states the following proposition of law: “Where a tenant in possession of land is holding under a lease which describes the property as the ‘premises’ occupied by the lessee, or in any manner designates the property the tenant is to occupy, the possession of the tenant inures to the benefit of the landlord only to the extent designated in the lease, and the landlord has no constructive possession of the balance of the tract without the designated portion.” ■

' Each of the leases referred to was substantially to the following tenor and effect: “The State of Texas, County of Hardin. For and in consideration of the use, occupancy and enjoyment, rent free, of the house, field and improvements, now occupied by me and situated on the league of land in said county granted to G. W. Brooks on the 22d day of August, A. D. 1835, by the government of Coahuila and Texas, and in further consideration of the right granted me to make use of any timber necessary for firewood and to keep in repair the fence and house — parti of the improvements, I ’acknowledge myself the tenant of, and to be in possession for, -, the owner of said league of land and agree, as such tenant, to occupy and hold possession of said league of land.”

These several lease contracts were executed, at different times, by different persons, to the respective owners of the land, to wit: J. P. Irvin, E. A. Irvin, the Texas Pine Land Association, and the Houston Oil Company. Clearly, under such a lease the tenant had the right of possession of the entire league. His contract is that he “will occupy and hold possession of” the entire league. What is said with reference to the use, occupancy, and enjoyment of the improved portion is that, in consideration of his contract to occupy and hold possession of the league, he is to pay no rent for this improved portion. This does not have the effect of limiting his right of possession to the improvements. He is granted the special privilege, in connection with his occu-pany of the league, to make use of any timber on it for certain purposes. In so far as this right to use the timber is restricted to certain purposes, this is not inconsistent with the right of the tenant to occupy and possess, to exercise dominion over, the entire league. The case does not fall within the doctrine of Land Co. v. Williams, 51 Tex. 51, Read v. Allen, 63 Tex. 154, Craig v. Cartwright, 65 Tex. 414, and other cases on this point, nor the proposition of law stated by appellants and quoted above.

In support of the foregoing proposition, appellants cite Houston Oil Company v. Kimball, 103 Tex. 105, 122 S. W. 533, 124 S. W. 85, as decisive of the questions arising upon the construction of these leases. In their argument, in the brief, they undertake to quote from the opinion in that case that possessioh under the lease there being discussed, and which appears to have been substantially identical with those in the -present case, “does not establish possession of the entire league of land in the owners thereof.” It is true that the language quoted appears in the opinion (at page 106 of 103 Tex., at page 539 of 122 S. W.), but not in the connection stated by appellants. We quote the entire paragraph to show the sense in which the language quoted was really used: “Hester was occupying a small portion of the land and the improvements thereon wESh the lease was executed, and continued to do so up to his death, which was within a year from the date of the lease. A short time after his death his wife and son sold the improvements to S. A. J. Haire, who did not in any way assume the tenancy contract of Hester. The proof shows that Haire and his son together did occupy the part of the land and improvements which had been in cultivation and which had been occupied by Hester, but there was no evidence that they asserted any right of possession either for themselves or the owner of the land to any other portion of the league. No doubt it is true that Haire could not have disputed the title in the Irvins to the portion of the land which he received possession of from Hester, but this does not establish the possession by Haire, nor by his son, or those who were claiming under them, of the entire league of land in the name of owners thereof, which is a necessary element in order to sustain the plea of limitation to the whole league.” Haire was not in possession under any lease from the owner of the league. Hester had such contract, and was in actual possession, with improvements, of a part of the league under such lease. Haire simply bought Hester’s improvements, but did not assume his lease contract. It was this possession of Haire which the court held did not establish the possession of the entirg league in the owners thereof. There is at least an intimation in the opinion that if Haire had assumed the tenancy contract of Hester, and, a fortiori, if he had gone into possession under such a contract between himself and the owner, his possession would have been that of the owner as to the entire league. Having gone into possession under these leases, none of such tenants could have rid themselves of the obligation imposed upon them to oecupjy and hold possession of the entire legaue by merely limiting their actual possession, or their claim to the right of actual possession and dominion, to the inclosed land and improvements.

The second proposition under said assignments is that “appellants, having had the peaceable, continuous, and adverse possession of the land, were entitled to the land embraced within their inclosure; such possession being for more than ten years.” The proposition is sound. The trial court evidently thought so, as appellant was given judgment for all the land embraced in his inclosure, and for costs. »

The agreement under which the case was tried, and which has been set out, eliminated every issue except that of appellant’s right under the statute of limitation of ten years. This eliminates the questions sought to be presented by the remaining assignments, which became immaterial in the trial court and need not be considered here. The evidence was amply sufficient to support the judgment. It showed, it is true, actual possession in appellant of the 12 acres awarded to him by the judgment, with claim of title to the 160 acres sued for. By agreement this possession began in 1875. The evidence further showed, however, that beginning in 1883, and continuing up to the time of the filing of. the suit, with possibly one or two short intervals of a year or two, there was actual possession by tenants of the respective owners of part of the league, under such leases as are herein described, the effect of which was to give the owners constructive possession of the entire league, except as to the 12 acres in the actual possession of appellant, for which they had judgment, and to limit appellant’s claim under the ten-year statute of limitations to such portion.

We find no error in the judgment, and it is affirmed.

Affirmed.'