source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    HOUSE et al. v. STEPHENS.
    (No. 245.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1917.
    Rehearing Denied Nov. 14, 1917.)
    1. Judgment ©=>707— Conclusiveness — Subject-Matter and Issues.
    A petition in another suit to which defendants were not parties and which did not involve the land in controversy or relate to the subsequent suit is inadmissible even for the purpose of proving heirship of plaintiff in the subsequent suit.
    2. Evidence ©=3271(20) — Heirship — Self-Serving Declaration.
    A petition in a prior action to which defendants were not parties and which was unverified is in the nature of a self-serving declaration and is inadmissible to prove plaintiff’s heirship.
    3. Adverse Possession ©=>115(1) — Presumption of Graniv-Question for Jury.
    In trespass to try title, where it appeared that plaintiffs asserted rights to the land which it was claimed had not been asserted by their ancestors for 50 years, the question of the presumption of the grant by reason of the lapse of time should be submitted to the jury.
    Appeal from District Court, Harris County. Trespass to try title begun by James Stephens and Susan V. Stephens against H. C. House and others, and continued by the last-named plaintiff as surviving wife of James Stephens. Prom a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Tharp & Tharp and Baker, Botts, Parker & Garwood, all of Houston, for appellants. Carothers & Brown, of Houston, for appellee.
   BROOKE, J.

This is a suit in trespass to try title, filed October 14, 1913, in the Sixty-First district court of Harris county, Tex., by James Stephens and Susan V. Stephens against H. C. House and others for an undivided one-sixth of the Mary Owens league, lying partly in Harris county and partly in Montgomery county, Tex. The brief for the appellee admits that the statements in appellants’ brief with) reference to the nature and result of the suit are in the main correct, and therefore we follow the said statements in the general brief for appellants.

On J anuary 6, 1916, plaintiff Susan V. Stephens filed a second amended original petition, in which she seeks to recover as surviving wife of James ‘Stephens, deceased, against H. C. House, J. E. Lafferty, G. W. Tharp, R. L. Whitehead, Sam H. Dixon, H. Schlakzug, R. Leslie Bruce, R. W. Houk, W. A. Paddock, Hugh Carwile, Mrs. J. D. Crawford, S. E. Needham, Emory Albertson, and the Producers’ Oil Company, for an undivided one-sixth of a certain tract of land lying partly in Harris and partly in Montgomery county, Tex., and known as the Mary Owens survey. She further charged the defendants Producers’ Oil Company and H. C. House, and each of them, with having drilled oil wells on the land, and taken from the land large quantities of oil, and having converted such oil to their own use and benefit, the value of which amounts to $250,000. She prayed judgment for title and possession of the land hereinafter described, and for an accounting by the Producers’ Oil Company and H. C. House for the oil taken from the land since October 1, 1913, for damages and costs, general and special relief. On January 6, 1916, she also filed a first supplemental petition, in which she denied the allegations in the answers of the defendants. She further alleged: That the property described in her second amended original petition was owned by Jacob Miller in his lifetime as his separate estate. That he died intestate on or about September 21, 1894, and left surviving as his only heirs at law his wife, the plaintiff, and the following children, to wit: Travis B. Miller, born April 19, 1866; Mary Willcerson, wife of Pred A. Wilkerson, born February 14, 1871; Emma Winkler, wife of Frank Winkler, born January 1, 1876; Henrietta Chambless, wife of Ed Chambless, born March 24, 1881; Lizzie Litz-ler, wife of John Litzler, bom February 14, 1885, and Fred Miller, born March 26, 1891. That each of said children, by deeds executed and delivered on or about ttie 4th day of October, 1912, conveyed to plaintiff all their interest in said property, and because of disabilities of said Children, limitation did not run against them. Plaintiff pleaded by trial amendment filed March 31, 1916, that defendant H. C. House was without the limits of the state of Texas from April 1, 1914, to April 1, 1915, and for 9½ months during 1915, during which time the statute of limitations did not run in his favor.

The defendant H. C. House filed demurrer and answer, in which he says he is owner of 985 acres out of what is known as the Willard Richardson 1,135-acre tract, off the south end of the Mary Owens league, described as follows:

“Beginning at a point on the west line of the Mary Owens league 5,120 feet north of the southwest corner of said league, said point 'being the northwest corner of said Richardson tract; thence east at right angles to the Mary Owens league and along the north line of said Richardson tract 7,080 feet, more or less, to the east line of said Mary Owens league; thence south along the east line of the Mary Owens league to the southeast corner thereof on the San Jacinto river, and being the west fork of said San Jacinto river; thence up said river with its meanders to the southeast corner of 150-acre tract conveyed by H. O. House to W. P. Hamblen by deed dated October 25, 1905, and recorded in volume 182, pages 157-159, Deed Records for Harris County, Tex.; thence north along the east line of said W. P. Hamblen 150-acre tract 5,383 feet to a gas pipe set for the northeast corner of W. P. Hamblen 150-acre tract; thence west 1,364 feet to the west line of the Mary Owens league; thence north along the west line of said Mary Owens league 874 feet to the place of beginning. And as to said land above described this defendant denies all and singular the allegations in plaintiffs petition, and says he is not guilty of the wrongs, injuries, and trespasses therein complained of, and as to all the remainder of said tract herein sued for by the plaintiffs this defendant disclaims all interest therein.”

To which he pleads not guilty, also pleads the several statutes of limitation for three years, five years, and ten years to the lands above described. Defendant House also pleaded tbe two-year statute of limitations as to tbe damages by reason of taking oil from said land.

Defendants W. A. Paddock and R. W. Houk filed answer, in which they demurred and pleaded “not guilty.” They also pleaded the statute of limitations of three years, five years, and ten years to 62.8 acre tract at Pauli, conveyed by W. H. Taylor to D. C. Kemp and R. W. Houk on April 1, 1911, by deed recorded in Vol. 62, page 518, Deed Records of Montgomery County, Tex., and disclaimed as to all lands sued for except said tract.

Defendant J. E. Lafferty filed second amended answer, in which he demurred, denied every allegation in paragraphs 1, 2, and 3 of plaintiffs’ second amended original petition, pleaded “not guilty,” and that he is the owner of the following tract:

“A rectangular shaped tract of land of about 211 acres off the west end of that certain 836-aere tract out of the Mary Owens survey, which survey is situated partly in Harris and partly in Montgomery counties, Tex., said 336-acre tract being thus described: Beginning at a point on the west boundary line of said Mary Owens survey distant from its southwest corner of 1,906½ varas, said beginning point being the northwest-corner of the Richardson tract out of said survey, which tract is now known as the House or the Hamblen tract; thence north along the west line of said survey 750 varas to corner; thence east to the east line of said Mary Owens survey to corner; thence south along the east line of said Owens survey 750 varas to the northeast corner of said Richardson tract; thence west along the north line of said Richardson tract to the place of beginning.”

He disclaimed as to all other lands except the above tract. He also pleaded tbe statute of limitations of three years, five years, and ten years to tbe above tract. Defendant J. E. Lafferty filed demurrer to paragraph 3 of plaintiffs’ first supplemental petition, in which plaintiffs set up disabilities, because same only states dates of births of various married women, and fails to state date of their marriages, respectively.

Defendants G. W. Tharp and R. L. White-bead filed answer, in which they pleaded “not guilty,” and disclaimed as to all lands sued for except the following:

“One hundred and twenty-five (125) acres of land, rectangular in shape, off the east end of a tract of 336 acres out of said Mary Owens league, all of which 125 acres lie in Harris county, said 336-aere tract described as follows: Beginning on the west boundary line of said league at a point 1,906½ varas north from its southwest corner; thence north along the west line of said league 759 varas, more or less, to a gas pipe, same being northwest corner of said tract; thence east along the north line of said tract 2,549 varas, more or less, to corner in the east line of said league; thence south along the east line of said league 759 varas, more or less, to House’s northeast corner; thence west along the north line of the House and Hamblen tract 2,549 varas, more or less, to the place of beginning.”

They also pleaded the statute of limitation of three years, five years, and ten years to the above tract of 125 acres, G. W. Tharp claiming an undivided six-tenths, and R. L. Whitehead claiming an undivided four-tenths thereof.

Producers’ Oil Company filed second amended original answer, in which it demurred generally, disclaimed except as to the 985-acre tract, described in answer of H. O. House, to which tract it pleaded “not guilty”; that it is the owner of said tract as lessee from H. O. House. It pleaded statute of limitations of three years, five years, and ten years; also improvements in good faith.

Emory Albertson filed answer, in which be pleaded “not guilty”; statutes of limitations of three, five, and ten years.

This cause was submitted to a jury on special issues on April 3, 1916. Defendants requested special charges, which were overruled, and filed special objections before it was read to tbe. jury, and excepted to tbe court’s ruling. The const took from tbe jury the consideration of questions involved in a certain tax judgment, sale, and deed to the lands claimed by J. E. Lafferty, G. W. Tharp, and R. L. Whitehead, and rendered judgment against said Lafferty, Tharp, and Whitehead thereon, which said last-named parties required the court to file its findings of fact and conclusions of law thereon, from which findings and conclusions defendants excepted.

On the answers of the jury to special issues and the findings by the court decree was rendered on the 5th day of April, 1916, as follows: In favor of plaintiff against I-I. C. House and Producers’ Oil Company for an undivided 97/672 of the 9S5 acres claimed by House; against G., W. Tharp and R. L. Whitehead for an undivided 97/672 of 125 acres claimed by them; against Emory Al-bertson for a undivided 1115/10000 of a 52-acre tract claimed by him; against R. W. Houk and W. A. Paddock for an undivided 1115/10000 of a 62.8-acre tract claimed by them; also plaintiff took judgment by default against Hugh Carwile and against Mrs. J. D. Crawford for an undivided one-sixth of the Mary Owens survey. She further recovered from H. O. House $649.42 damages for oil removed from the land. Suit was dismissed as to all other defendants except those above named.

It was further decreed:

“With reference to the validity and effect of the tax judgment and sale thereunder to W. W. Kirkpatrick and the conveyances by said Kirkpatrick to the defendants J. B. Lafferty, G. W. Tharp, and R. L. Whitehead having been by the court withdrawn from the jury, and by the court decided in favor of plaintiff, it is ordered, adjudged, and decreed that said defendants have •nothing of plaintiff’s title under said tax judgment, sale thereunder to Kirkpatrick, and conveyances by Kirkpatrick to said defendants.”

To which judgment the defendants in open court excepted, and gave notice of appeal. All of the defendants filed motion for new trial on April 6, 1916, also amended motion for a new trial. Lafferty, Tharp, and Whitehead filed supplemental motion for a new trial.

All motions for a new trial by all parties were on the 13th day of April, 1916, overruled, and also on the same day the supplemental motion for new trial by Tharp, Whitehead, and Lafferty was overruled, to which rulings all parties excepted, gave notice of appeal to the Court of Civil Appeals for the First 'Supreme Judicial District of Texas, and 90 days after adjournment of the term was allowed in which to file statement of facts and bills of exception.

On May 1, 1916, the defendants H. O. House, R. L. Whitehead, G. W. Tharp, Producers’ Oil Company, Emory Albertson, W. A. Paddock, R. W. Houk, and J. B. Lafferty filed appeal and supersedeas bond, which was duly approved.

In the general brief for appellants complaint is made by the first assignment of error, as follows:

“The court erred in admitting, over the objection of defendants, an examined copy of a purported petition in the case of Travis Miller et al. v. Christian Kelch, No. 46 on the docket of the district court of Colorado county, Tex., and bearing file mark April 8, 1848, to the introduction of which testimony defendants objected, because the copy offered was made from an instrument then in the hands of H. W. Carothers, one of plaintiff’s attorneys, who was not the proper and official .custodian of such paper, and the copy offered was made from such instrument at a time when the instrument was not in the custody of the proper official, and because such copy was made in Harris county, Tex., when the instrument of which it purports to be a copy was an alleged file paper in the office of the district clerk of Colorado county, and because the matters set forth in said copy and in said original do not purport to be made by any member of the Miller family, or of the Reels family, or of the Owens family, but are simply self-serving declarations of an attorney, and are hearsay, and because they clearly show that they are statements made post litem mo-tara, and after a controversy had sprung up involving the matters therein set forth, and because it purports to be a copy of an instrument to which these defendants were not parties, nor any one with whom they are in privity, and it is not a matter of which these defendants could have knowledge or notice, and because it was not shown it was the declaration of any member of a family qualified to make a declaration of family history of any of the descendants of Mary Owens or Patrick Reels or the Miller family, and because it was only a part of what purports to be a record, and any part of a judicial record without the whole is incompetent, and for the further reason that the record in this case already showed the introduction of a certified copy of the probate court of Colorado county, entered on the 30th day of November, 1846, at a regular term of the probate court of said county, under which the will of Sarah Kelsey, deceased, was regularly admitted to probate, and the instrument- now offered was a copy of the petition in a suit brought by certain persons in the district court to set aside the decree of the probate court on the ground that the will was a forgery, and that the testatrix did not have testamentary capacity, and the distriot judge of Colorado county was without jurisdiction or authority to set aside the decree of the probate court of Colorado county, which had been regularly made, and a proceeding brought in the way shown by the copy offered would be void, and the petition and decree offered in evidence are void. All of which objections were by the court overruled, and the defendants then and there in open court excepted.”

The above assignment will be considered in connection with the following assignment:

‘The court erred in admitting over the objections of the defendants certified copy of a decree in the case of Travis Miller et al. v. Christian Kelch on the docket of the district court of Colorado county, to the introduction of which the defendants objected on the same grounds as set forth in the preceding assignment, and for the further reason that the will of said Sarah Kelsey has not been offered in evidence, and the decree shows that the only party defendant to the suit was the alleged executor of the will, and that A. W. Kelsey and the beneficiaries under him were not parties to the suit, and for the further reason that the only proof that Christian Kelch had any interest in the matter in controversy is the ex parte statement of the attorney for the plaintiff in the case, and no evidence had been offered to show that the matters alleged in the petition and set out in the decree are true. All of said objections were overruled by the court, and the defendants then and there, in open court, excepted.”

It will be, perhaps, well to set out a copy •of the instruments referred to, as follows: “The State of Texas, Colmado County.

“To the Hon. Judge of the District Court of ■Said County: Your petitioners, Travis Miller and Diana Miller, his wife, late Strawsnider, and George Reels, John Reels, Joseph Reels, and James Reels, minors under the age of 21 years, each suing by their next friend, the said Travis Miller, all residents of said county and state, would respectfully represent that heretofore Sarah Kelsey, deceased, late Strawsnider, intermarried with one A. W. Kelsey, now deceased, and on the - day of -, 1846, departed this life intestate, leaving no valid will or issue or children to inherit her estate as heirs thereof by descent; that Gabriel Straw-snider, the father of said Sarah Kelsey, deceased, and Diana Miller, departed this life on the
-day of-•, 18 — , long before the death of the said Sarah; that the said Sarah and Diana were the only issue and surviving children of the said Gabriel Strawsnider and his wife, Mary, with whom he was intermarried on
the - day of -, 18 — ; that the said Mary, mother of plaintiff, and surviving widow of Gabriel Strawsnider, deceased, after his death intermarried with Patrick Reels, who, together with said Mary, his wife, departed this life prior to the death of said Sarah Kelsey, leaving the said George, John, Joseph, and James the only issue of said last marriage and their only children and heirs, and they allege the said Sarah left no surviving brother or sister or descendants of either or the whole blood, except the said Diana, as aforesaid, and that the said George, John, Joseph, and James were the only surviving brothers of the half blood, and that the-left no sister or descendants
•of the half blood, or any other person, to inherit her estate, save the petitioners.
“Now, they allege that said Sarah owned at her death in her own individual right a tract of land near one-fourth of a league, descended to her from her father, situated in said county on the east bank of the Colorado river, and is a portion of his headright league granted him by the Mexican government, and will more fully appear by the records of division of said estate, and also one negro girl name Lott, worth $500.-00, descended to her from her said mother; that the said A. W. Kelsey, surviving husband of said Sarah, deceased, at the November term, 1846, of the probate court of said Colorado ■county, produced in the said court paper purporting to be the last will and testament of the .said Sarah, deceased, the said A. W. Kelsey was by said paper made the sole devisee of all the real and personal property of the said Sarah, deceased, as will more fully appear by the said paper, which will be shown the court with the proceedings thereon in the said probate court. They further allege the said A. W. Kelsey made a will on the-day of March, 1848, bequeathing therein all his real and personal property to one Christian Kelch, and departed this life on the-day of March, 1848, and that the said Kelch, at the last March term of the probate court of said county, produced the said will of said A. W. Kelsey in said probate court, and the same by order of said court was admitted to record as the last will and testament of said A. "W. Kelsey, and the said Kelch was then appointed executor of said will, and was duly qualified as such.
“Now your petitioners positively aver that the said paper probated as first aforesaid as the last will and testament of said Sarah Kelsey, deceased, was and is not the last will and testament of the said Sarah Kelsey, deceased, and that the same was illegally and wrongfully admitted to record as her last will.
“They allege that the said paper was not written until after the death of said Sarah, and that she never signed her name to the same, nor did she ever authorize any other person so to do, nor did she make her mark as appears on said paper; that she did not authorize any person to sign her name thereto in the presence of the subscribing witnesses, nor was her name signed in their presence by her as her name and last will, but that the same was written and made without the knowledge or consent or approbation of the said Sarah, and they further allege that the said Sarah Kelsey at the time said paper purports to have been written (to wit) on the 27th day of October, 1846, and at the time of her death, November —, 1846, was minor under the age of 21 years, and was bom in the year 1828, and by the law was incapable to make a will.
“And they further allege that James Dickson and Christian Kelch, whose names appear to said paper as witnesses, did not sign their names to said paper in the presence of said Sarah Kelsey nor with her knowledge or approbation.
“Your petitioners allege the said paper was and is not the last will and testament of the said Sarah Kelsey, deceased, in law or justice; that at the time said paper purports to have been written and a long time previous and up to her death she had not a sound and disposing mind and memory. Wherefore they sue and citation may issue against the said Christian Kelch, resident of said county, to appear at the next term of the district court of said county and answer this petition as devisee and executor aforesaid, and they pray your honor may grant them a decree or judgment whereby the said paper probated as the last will of said Sarah Kelsey may be annulled, vacated and set aside and declared invalid and not to be the last will and testament of the said Sarah Kelsey, deceased, and that the proceedings thereon in the said probate court may also be annulled and set aside, and they further pray your honor may further award them a proper decree vesting all the property, both real and personal, • that belongs to said Sarah, real, personal, and mixed, in them according to their respective right of distribution, and that the said Kelch be compelled to surrender up to them the same, and that they may be quieted in the possession thereof against the said Kelch and all other persons, and for all such other relief and further relief, both general and special, as to equity and law may belong in the premises, and will ever pray, etc. [Signed] Geo. W. Smith,
“Atty. pro Pltffs.”

• Indorsed:

“No. 46, Travis Miller et al., No. 525, Petition, v. Christian Kelch. Filed April 8th, 1848. W. J. Herbert, C. D. O. C., by Tho. J. Neavitt, Dep.”

The decree offered is as follows:

“Travis Miller & Others v. Christian Kelch, etc., and Angus McNiell, Adm. with the Will Annexed of Sarah Kelsey, Dec’d. No. 46. The parties appeared by their counsel and agreed to waive a jury and submitted their matters to the court, whereupon evidence was heard and the arguments of counsel, and it is considered, adjudged, and decreed by the court that the will of said Sarah Kelsey, deceased, be declared void and of no effect, that the same be vacated and set aside, because the said Sarah was an infant, under the age of 21 years, and incapable by law to make a valid will; that the property left by the said Sarah, at her death, to wit, the tract of land near one-fourth of league, inherited by the said Sarah Kelsey from her father, Gabriel Strawsnider, and distributed to her and assigned by partition under the decree of the probate court of Colorado county, be recovered by the plaintiff Diana Miller, and the same is hereby forever vested in her, the said Diana, in full and perfect title. And it appearing that the said slave is not and has not been in the possession of the said Christian’ Kelch, or of the said McNeill, administrator, as aforesaid, this judgment and decree is final as to- the said defendant Christian Kelch and the said land, and the plaintiff recover their costs expended against said Kelch the case is continued to the attachment and the said slave.’

The propositions submitted by appellants under these assignments are as follows:

(a) A copy of an instrument not in the custody of the proper officer, and not made while in the custody of the proper officer, imports no verity, and is inadmissible for any purpose.

(b) The copy admitted was a copy of a pleading in behalf of persons seeking to establish themselves as heirs of a deceased person in a controversy in which that was an issue, the pleading itself was not verified, was made by plaintiff’s attorney therein, who had no -personal knowledge of the matters pleaded, and was self-serving and hearsay, and the statements therein made post litem motam were inadmissibe, even on the question of pedigree.

(c) Appellants were not parties to the suit in which the petition was filed, and it was not in relation to property involved in this suit, and no part of the proceedings therein ought to have been received in evidence to prove heirship of the persons through whom appellee claims.

On the other hand, appellee contends:

(a) An examined copy of a court record or file paper, supported by the testimony of a witness, is admissible in evidence wherever a certified copy of the same record or file paper is admissible.

(b) Objections to this petition were addressed to the document as a whole, and if the instrument itself or any portion thereof was admissible in evidence for any purpose, the trial court properly overruled the objections to the instrument as a wfiole.'

(c) The declarations of the plaintiffs in this suit, made through their duly authorized attorney, are properly admissible, and, as this pleading was 70 years old and formed a part of a court proceeding which resulted in a judgment in favor of the declarant, it will be presumed that the attorney was duly authorized to make these statements in behalf of the plaintiffs.

(d) The declarations of Diana Miller were admissible in evidence against the appellants, because they claimed to hold under a lost deed from her.

Thus the issues are sharply drawn. In the case of Pratt v. Jones, reported in 64 Tex. 694, the action was one of trespass to try title, brought by the appellee, Jones, in the district court of Olay county, to an undivided 320 acres of land of the B. B., B. & O. R. R. Co., situated in Olay county, Tex., as described in the original petitions of plaintiffs, filed in the district court of Olay county on the 19th day of September, 1881. The appellant pleaded not guilty and answered on the 11th day of November, 1881. A jury was waived, and the cause was tried at the April term of the district court of Olay county, 1882. The land was patented to Olara Y. Bulkley, and the plaintiff showed a regular chain of transfer from J. H. and D. D. Atchison, and to show that the land passed from Olara V. Bulkley to J. H. and D. D. Atchison plaintiff offered in evidence a certified copy of the judgment of the district court of Grimes county, styled R. L. Heflin et al. v. D. D. Atchison et al., No. 2056, to the introduction of which appellant objected as not the proper evidence of heirship; objection overruled. Here appellee rested. Appellant offered in evidence a tax sale deed to the bond executed by the tax collector of Olay county May 6, 1879, duly acknowledged July 14, 1879, and recorded August 5, 1879, to the introduction of which plaintiff objected. ‘ Objection was by the court overruled, and the tax deed admitted for what it was worth. Here the evidence of appellee and appellant closed. The court, speaking through Judge Robertson, used the following language:

“The appellee brought trespass to try title to a tract of land patented to Mrs. O. V. Bulk-ley, and proved a regular chain of title from J. H. and D. D. Atchison down to himself. He claimed that the Atchisons were the heirs of the patentee, but the only proof made of their heir-ship was by the introduction of a decree of the district court of Grimes county vesting in them, as heirs of Mrs. Bulkley, an undivided one-half of the land in controversy. Appellant was not a party to that decree, and we cannot see how he is to be bound by its adjudication of the heirship of the Atchisons. The decree contains recitals which indicate the proof of heirship in that case was made by the admission of the parties, but if it was proved and formally adjudged to be the fact, that fact in this suit cannot be proved by the simple production of that decree. Wharton’s Ev. § 823; Freeman on Judgments, 416 and 417.
“Nor does the fact that the court had jurisdiction of the parties and the subject-matter, and by the decree vested in the Atchisons the title to the land, obviate the necessity of the proof of their heirship in this case. Unless Mrs. Bulkley was dead and they were her heirs, her heirs were not before the court, and the decree would pass the title only as against the parties to the suit and privies. The decree was admissible, but not sufficient to prove heirship of the Atchisons.
“There was no proof of common source, and the appellee having failed to connect himself with the patent to Mrs. Bulkley by sufficient evidence, the judgment in his favor was not sustained by the evidence.”

’ As said in that case, the entire testimony depends, outside of the admitted instruments; upon the testimony of Mrs: Stephens. Aside from her testimony, there was nothing to show or in any manner prove the heirship of the plaintiff in this case, save the admitted instruments. The jury would have been warranted, the case being one in which Mrs. Stephens was a party at interest, in not considering her testimony, without the introduction and admission of the instruments above set out.

Appellants were not parties to the suit in which the petition was filed, and it was not with reference to property involved in this suit, and the proceedings therein were not in any way related to the matters in the instant case. It may be said, therefore, truthfully, that really, the only matter in which it was pertinent to the proceedings in this suit was for the purpose of proving heirship of the appellee herein. In our opinion, it should not have been received in evidence to prove the heirship of the persons from whom appellants claim, and, as said before, it was not, and would not have been, pertinent to any inquiry in the instant case, save and except the matter of heirship of the persons through whom appellants claim, and we reiterate that appellants were not parties to the suit in which the petition was filed, and which was admitted in evidence in this cause.

We are confirmed in our opinion on this matter by the case of Freeman v. Hawkins, 77 Tex. 501, 14 S. W. 364, 19 Am. St. Rep. 769. The opinion was rendered by Chief Justice Stay ton, and is as follows:

“This action was brought in right of Mary E. Freeman, the wife of D. C. Freeman, to recover a tract of land patented to James Rose. She claims through conveyance from Louis and Margaret Rose, who'are alleged to have been the father and mother of James Rose, who died without issue. Defendants claim through a woman other than Margaret Rose, whom they assert to have been the mother of James Rose, and they admit and claim that he was the natural son of Louis Rose. There was much evidence as to the maternity of the grantee, and appellants claim that it required a finding that he was a son of Louis and Margaret Rose, who were husband and wife; but the evidence bearing on the question was conflicting, and we could not hold that the court below might not with propriety have found that he was the son of the woman through whom appellees claim. If such was the finding, it would be conclusive of the rights of the parties, but, in the absence of conclusions of fact and law, we cannot know on what the judge who tried the cause based his judgment, for there was evidence introduced upon another matter which may have been thought decisive of the case. Appellants were married on March 9, 1869, and have resided in this state since 1871. D. 0. Freeman held under chain of transfer from Louis and Margaret Rose, but prior to his marriagé to his coplain-tiff, conveyed to her, her name being Mary E. Robison. Some time after their marriage, but prior to February 11, 1878, Henry Lewis, through whom appellees claim, brought a suit in the district court of the county in which the land is situated against Mary E. Robison to recover or to remove cloud from his title to the land. Service was had only by publication, and, at date last named, a judgment was rendered in favor of Henry Lewis against ‘Mary E. Robi-son’ for the land. On the trial of this cause ap-pellees were permitted to offer in evidence that judgment, and the court may have held that it was decisive of the rights of the parties, although he may have been of the opinion that James Rose was shown to be the son of Louis and Margaret Rose. On the marriage of Mary 'E. Robison the law conferred on her the surname of her husband. Bish. Mar. & Div. 704a. A citation, whether to be served personally or by publication, must contain the names of the parties to the action. Rev. St. art. 1215. We are of opinion that a citation by publication requiring ‘Mary E. Robison’ to be cited and to ap_-pear was not sufficient to give the court jurisdiction . tp render a judgment that would bind .‘Mary E.( Freeman.’ McRee v. Brown, 45 Tex. .506. If there had been actual service on Mrs. Freeman under the name of ‘Mary E. Robison,’ it might have been her duty to appear, even though cited in the wrong name, and although her husband was not made a party defendant with her; but the case before us is one in which she was only cited by publication issued on the ground that she was a nonresident of the state, which was untrue. She had no knowledge of the pendency of the suit against ‘Mary E. Robison,’ or opportunity to defend it. She was not a party to the. suit, and is not bound by the judgment; and it should not have been admitted for any purpose. Dunlap v. Southerland, 63 Tex. 38.
“On August 10, 1855, Louis Rose and wife, through their attorneys, brought an action ■against Thomas Collins in the district court for Travis county to recover a land certificate, other than that by virtue of which the land in controversy in this cause was granted, which had been issued to James Rose. In that action they claimed as the father and mother and as sole heirs of James Rose, and recovered the certificate. Appellants offered to read in evidence the petition, answer, and judgment in that cause, which the court excluded. In this ruling we are of the opinion there was no erroh The averments of the petition in that case were essentially self-serving, and ■ we understand the rule to be that a bill in equity, coming under such circumstances, cannot be received in evidence, even on a question of pedigree. Starkie, Ev. 439, and Whart. Ev. par. 210, with cases cited in notes to both. Appellees were not parties to that suit. It was not in relation to property involved in this, and no part of the proceedings therein ought to have been received in evidence to prove the heirship of the persons through whom appellants claim. Pratt v. Jones, 64 Tex. 694.”

What has been said in the cases of Pratt v. Jones, supra, and Freeman v. Hawkins, supra, is decisive of the matter complained of in this cause. Therefore, believing the assignment is well taken, and that the admission of the testimony was prejudicial to the rights of the appellant, the assignment, is in all things sustained.

The second assignment in the joint brief of all the appellants complains that the court erred in its refusal to submit special issue No. 11, requested by all the defendants, as follows:

“It is claimed by the defendants that, even though you should find that the Patrick- Reels under whom the plaintiff claims was the son of Mary Owens, in view of the long lapse of time and a total nonclaim of ownership on the part of Patrick Reels during his lifetime, and after his death nonclaim by his administrator, non-claim by the children of Patrick Reels, and after their deaths nonclaim by Diana Miller or her husband, Travis Miller, and after their death nonclaim by their son, Jacob Miller, and after his death nonclaim by his children, which total nonclaim extends over more than 30 years, during which period there was an assertion and claim of ownership on the part of the defendants and those from whom they claim, and from whom they derive title, which acts of ownership by them and those whose title they have are coupled with the other facts and circumstances in the case, that it ought to be presumed and found that Patrick Reels or Diana Miller (or Obenhaus) or Jacob Miller made a transfer or executed a deed of conveyance to his or her in- ■ terest, if any they had, in the Mary Owens 'sur- ■ vey.
“The law is that, where the facts or deed which is sought to be presumed lies back 30 years or more, and the parties claiming the presumption, or those whose estate they have, or both combined, have, during such period, openly and notoriously and with the acquiescence of their adversaries, claimed the land and exercised acts of ownership over it, such as might reasonably be expected from the owners thereof, and the circumstances in evidence in their entirety are consistent with the presumption sought, and it is more reasonably probable that the facts sought to be presumed existed than that they did not exist, then the jury is at liberty to presume them and find accordingly. The court therefore submits the following: ‘Issue No. —. Is it or is it not more reasonably probable to presume that during his lifetime Patrick Reels, or during her lifetime_ Diana Miller, or Obenhaus, or during his lifetime Jacob Miller, made a transfer or executed a deed or conveyance of his or her interest, if any, in said land, than to presume the contrary? Let your answer be, “We presume he, or she, did convey,” or “We presume he or she did not convey,” as you may find by your verdict.’ ”

We will consider, in addition to the above assignment, the fourth and fifth assignments, ¿S follows:

(a) “The court erred in its refusal to submit special issue No. 21, requested by all the defendants, as follows: ‘Was there a conveyance or transfer by Patrick Reels to the other alleged heirs of the interest of Patrick Reels in the Mary Owens headright certificate? Answer “Yes” or “No.” ’ ”
(b) “Hie court erred in its refusal to submit special issue No. 22, requested by all of the defendants, as follows: ‘Did Patrick Reels make a deed to any interest he may have had in the land located under the Mary Owens headright certificate to John Owens, Mary White, Emily Robinson, and Alexander Armstrong, or to any of said parties? Answer “Yes” or “No.” ’ ”

The propositions under these assignments are as follows:

“As neither the plaintiff nor those through whom she claims for a period of more than 60 years made any claim to the lands in controversy, and the lands in controversy have been claimed by the defendants and those from and through whom they claimed through deeds duly recorded, with every act of exclusive ownership, for 50 years prior to the filing of this suit, it was affirmative and matez-ial eri’or for the coui't to refuse to submit the issue of presumed grant to the jury for its determination.”

On the other hand, it is urged :

(a) “The evidence was not sufficient to justify the court in submitting to the jury an issue as to the presumption of a deed or conveyance from Patrick Reels or Diana Miller or Jacob Miller.”
(b) “The court properly refused to submit special issue. No. 2 because same is on the weight of the evidence, in that it assumes the existence of facts which were not established by uncon-tradicted evidence.”
(c) “The court properly refused to submit special issue No. 2 because it would have submitted three distinct issues in one question, and an affirmative answer thereto would have left the court in doubt as to what the jury intended to find.”
(d) “The court properly refused to submit special issue No. 2 because it inquires whether Diana Miller or Diana Obenhaus executed a conveyance during her entire lifetime, when the issue, if submitted at all, should have been confined to the period subsequent to the death of James Reels in 1858.”
(é) “The court properly refused to submit special issue No. 21 because there were ‘no other alleged heirs’ and the question could not be intelligently answered ‘Yes’ or ‘No.’ ”
(f) “The court properly refused to submit special issue No. 2 because same did not confine the inquiry as to whether or not these had been a conveyance to any one from whom the appellants had a chain of title.”
(g) “The court properly refused to give special issue No. 21, because, if the expression ‘other alleged heirs’ means the other children of Mary Owens, the evidence forms no basis for presuming any such conveyance.”
(h) “The court properly refused to give special issue No. 22 because same is so ambiguously framed that an answer thereto might mean that any one or more of five separate and distinct conditions of fact existed.”
(i) “The court properly refused to give special issue No. 22 because the evidence did not raise any issue as to whether or not Patrick Reels conveyed his interest in this land to Mary White, or as to whether or not Patrick Reels conveyed his interest in this land to Emily Robinson, or as to whether or not Patrick Reels conveyed his interest in this land to Alexander Armstrong, or as to whether or not he executed a conveyance jointly to John Owens, Mary White, Emily Robinson, and Alexander Armstrong.”

The holding of the court upon the first assignment of error, heretofore set out, will necessitate a reversal of the cause, and a retrial of the same. Therefore, however interesting it might be to give a critical examination to the various matters and questions raised upon the assignment set out above, in our judgment, it is sufficient to say that this court is of opinion that upon another trial of the case the matter of presumption of a deed should be by the trial court submitted to the jury, in a charge which sufficiently states the law, as applied to the facts, an appropriate charge concerning the defensive matter heretofore called to the attention of the court by the assignments of error-set out above, and while not, perhaps, in the language complained of in the above assignments, we believe that, if they are not strictly correct, they are sufficient to suggest to the trial court the propriety of a correct charge embodying the law as applied to the facts in the case with reference to the presumption of a deed or deeds.

Therefore, with this suggestion, and the further suggestion, which is made for the reason that it was urged and insisted upon as being correct, in the decision of the cause, we may say that, the matter being obviated as to the motion filed in this court by the appellants, to consider their assignments of error incorrectly copied in the brief, which said assignments are as follows: The twenty-fifth assignment in motion for new trial and the twenty-sixth assignment in motion for new trial, calling the attention of the trial court and requesting that a special charge be given under the five-year statute of limitation, and requesting another special charge, requesting the court to submit the ten-year statute of limitation — these in our judgment, and in another trial of the case, should be given, for the reason that the record which we have on these propositions carefully considered in our opinion fairly raises issues that these matters, under appropriate instructions, he submitted to the jury for their consideration. We do not think it advisable, with reference to these matters, to call attention to the particular facts in which these matters of limitation are applicable in the trial of the case, but suffice it to say that we are of opinion that the appellants were entitled, under the law, to this phase of the matter being a correct instruction of the law as applicable to both the five and ten year statutes of limitation.

Therefore, believing, as we do, that the trial court erred in the admission of the instrument, as heretofore stated, whereby the appellees were enabled to make out their claim with reference to heirship, the cause is reversed, and remanded for a new trial.
      <&s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBTJRY, J.

text:
    ROLATER v. ROLATER.
    (No. 7799.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 27, 1917.
    Rehearing Denied Nov. 24, 1917.)
    1. Divorce <©=>253 — Division of Property-Evidence — Presumptions.
    Suits for divorce and an accounting with respect to community property are not unlike all other judicial proceedings, and proof must be adduced in support of every material issue asserted, and when such issue fails of proof, it cannot be established by presumption.
    2. Husband and Wife ®=»2C2(1) — Community Property — Presumptions as to Character.
    In an action for divorce and a partition of community property, where the evidence did not show that certain payments on an indebtedness on the husband’s property during the existence of the marriage relation were made from community funds,, there was no presumption to that effect, especiálly where the jury found that only a certain amount was so paid, thus excluding the payments in question.
    3. Husband and Wife <©=>257 — Community Property — Insurance on Separate Prop-ebit.
    Where a wife insured the family residence, constituting the husband’s separate property, and her own household furniture therein, in the husband’s name, paying the premium from her separate funds, and, a fire having occurred., a portion of the proceeds was used in rebuilding the home, this did not convert the property into community property, since, when a house is destroyed by fire, the proceeds of insurance thereon stands in place and instead of the house and is the same character of property.
    4. Insurance <§=>115(1) — “Insurable Interest” — What Constitutes.
    Any one has an, “insurable interest” in property who derives a benefit from its existence or would suffer loss from its destruction, and a mere equitable title or other qualified property in the thing insured, though not in fee, may be protected by insurance if insured would suffer loss by the destruction of the subject-matter of the insurance.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Insurable Interest.]
    5. Divorce <©=>286 — Division of Property-Review.
    In an action for divorce and a partition of community property, the court’s action in charging the wife with one-half of an amount collected from a hotel owned by her, thereby finding that she received the benefit of the full sum, could not be disturbed where there was testimony tending to show that the husband never received the money and that it was not expended for community needs.
    6.Divorce <©=¿252 — Disposition of Property-Insurance.
    In an action for divorce and a partition of community property, where it appeared that the wife from her separate property procured insurance on her household furniture and the family home, constituting the husband’s separate property, and that a part of the proceeds was used in rebuilding after a fire, and a part paid to the wife as the value of her furniture, the jury was authorized to prorate the premium on the basis of the ratio that the house and the furniture each bore to the whole sum of insurance.
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Suit by Josephine Rolater against Edward M. Rolater. From the decree, plaintiff appeals.
    Affirmed.
    Claude M. McCallum, of Dallas, and L. J. Truett, of McKinney, for appellant. Newton P. Morrison, of Garland, and W. F. Bane and K. R. Craig, both of Dallas, for appel-lee.
   RASBTJRY, J.

Appellant sued appellee for divorce, partition of community property, and an accounting in that respect. Upon the verdict of the jury upon special issues of fact divorce was granted and certain sums of money allowed her and made an equitable charge against the separate real estate of appellee. Neither party complains of the divorce decree, but appellant has brought the case to this court complaining on several grounds of the accounting ordered by the judgment on the findings of the jury. These matters are so presented as to render a statement of the pleading and all the facts found by the jury unnecessary. The facts necessary to be detailed will be fully enumerated in discussing the several assignments of error.

The first issue attacks the sufficiency of the evidence to sustain the finding of the jury that $810 of appellee’s separate funds were used in paying an indebtedness against separate lands of appellee existing at the time of the marriage of the parties. The facts necessary to be related on the issue thus raised axe these: Appellant and appel-lee were married in the year 1903, appellee owning at the time a 66-acre farm, against which there was a principal indebtedness of $1,200, which the evidence shows without dispute was paid during the years 1906, 1907, 1909, 1910, 1911, and while the marriage relation existed. The total amount of principal and interest paid on the note during marriage of the parties was $1,879. The jury found that the community funds contributed for that purpose $973, appellee’s separate funds $810, and appellant’s separate funds $96, and no complaint is made concerning the sufficiency of- the evidence to support the finding that $973 of community funds and $96 of appellant’s separate funds were applied for the purpose stated. The only proof which sustains the finding of the jury that $810 was paid out of appellee’s separate funds is his statement that he sold two mules and two cows, his separate property, from which he realized $265, which amount he says at one point he applied on his note, and at another he used in payment of household expenses. Such sum falls $545 short of the amount found by the jury to have been paid out of appellee’s separate estate. Likewise there is in the record no proof that said sum was paid from the community funds. Such being the facts disclosed by the record, counsel for appellant contends, in effect, that the presumption arises as matter of law that the sum not accounted for was paid from the community funds. No such presumption, we believe, may be indulged under the authorities. Suits for divorce and an accounting are not unlike all other judicial proceedings, in that proof must be adduced in support of every material issue asserted, and when such. issue fails of any proof at all it cannot be established by presumption. The finding of the jury that the $810 was paid out of the separate funds of the appel-lee, we agree as stated, is not supported in full by the evidence. At the same time there is nothing whatever in the record that will support a finding of fact that it was paid out of the community funds. The finding of the jury that only $973 was so paid tends to deny the presumption that the $810 was paid from the community funds. It is true that the entire indebtedness was paid by appellee during the years 1906 to 1911, both inclusive, and while the marital relation existed, but the jury found, with all the facts before them, that only $973 was contributed by the community. We have found no case exactly in point as to the facts, but it has been held that payments made shortly after marriage by one of the spouses upon separate indebtedness will not be presumed to have been made out of community funds in the absence of proof in that respect. Medlenka v. Downing, 59 Tex. 32; McDougal v. Bradford, 80 Tex. 558, 16 S. W. 619; Richmond v. Sims, 144 S. W. 1142. It is, we believe, correct to say that, in the absence of all proof on such issue, the presumption does not arise that the money so paid was not contributed by the separate estate of the spouse bound to pay. As much is said in the Medlenka Case. Hence the proof being as we have stated, and no presumption arising in support of appellant’s contention, it follows ■ that no reversible error is shown.

The next contention is the claim of appellant that she was entitled to have established against the separate estate of appellee as an equitable charge the sum of $575, which the cqurt refused to do. The claim is based on these facts: Upon appellee’s farm, which we have shown was his separate property, was his residence. In the year 1915 appellant caused the residence and contents, consisting largely of appellant’s household furniture, to be insured in the name of ap-pellee against loss by fire in the sum of $2,-000, paying the premium of $81 out of her separate funds. The house and furniture were destroyed by fire, the insurance collected, out of which appellant was paid $700, the value of her household furniture, etc., $1,150 used in rebuilding appellee’s home, and the remainder used for current expenses. In the accounting appellant was allowed the amount of the premium as a charge against appel-lee. Appellant contends that, in view of the payment of the premium from her separate funds, and in the absence of anything in the contract of insurance limiting appellant’s probable interest in the insurance money in case of fire, and in view of her insurable interest therein as the consequence of her homestead rights, the proceeds of the policy became community funds, to one-half of which she was entitled. In support of her contention appellant cites the case of Martin v. McAllister, 94 Tex. 567, 63 S. W. 624, 56 L. R. A, 585. The substance of the holding in that case is that the proceeds of an insurance policy on the life of Martin’s wife payable to the former became at the death of the latter separate funds of the former, because acquired after dissolution of the marriage relation, and was not converted into community funds by the fact that the policy premiums were paid by the husband from the community, unless done in fraud of the wife’s rights. The rule so announced is, we believe, without application to the factsi of the instant ease. The insurance was payable, to Martin, and could only accrue after his wife’s death, and, as a consequence, after dissolution of the connubial partnership, and hence was not controlled by the statutes relating to acquisitions during that period. It is true that the premiums on' the policy were ’ paid from the community funds, but the court did not rule‘that community funds by such act could be converted into separate funds, as appellant, in effect, ar/gues in order to support her theory that she could by such process convert her husband’s separate lands into community holdings, but sustained the act of Martin on the ground that by law he had the sole control of the community affairs, and that his judgment in respect to what was best would not be interfered with, even when community funds were appropriated for such purpose, in the absence of a showing that such act was in fraud of the rights of the wife.

Appellant also relies upon Continental Fire Association v. Wingfield, 32 Tex. Civ. App. 194, 73 S. W. 847, and Grant v. Buchanan, 36 Tex. Civ. App. 334, 81 S. W. 820. Briefly stated, it was ruled in the case first cited, which was a contest between the insurance company and Wingfield, that the husband has an insurable interest in property owned by his wife and her minor children by a former husband and occupied at the time as the homestead of the husband and wife. This holding was in response to the defense of the company that Wingfield was not the unconditional owner of the insured property, as provided by the policy, and hence had no insurable interest therein. The conclusion of the court was that, while the property was that of his wife and her children by a former husband, it was nevertheless the homestead of Wingfield and wife in actual use and occupation as such, and the right, being a valuable one, attaching to the house and improvements as well as the land, could be protected against loss from fire by the husband.

In the case last cited Mrs. Buchanan owned a life estate in certain lands, with knowledge of which the insurance company for her sole benefit and in her name insured the improvements thereoh against loss by fire. There was a loss. The remaindermen intervened, claiming the fund on the ground that they were the owners of the land. Verdict was directed' for Mrs. Buchanan, and on appeal it was ruled that, the policy being payable to Mrs. Buchanan, the remaindermen were only entitled to recover the excess over the value of her life estate, and, having failed to submit any testimony on that issue, the judgment was affirmed: The distinguished justice writing the opinion gave' it as, his personal view, the contráet having been made for the sole benefit of Mrs. Buchanan, that she was entitled in any event to recover the full amount of the money.

The general rulé announced in both cases concerning the insurable interest of the parties is sound in principle and reasori and supported by authority. Adopting in substance the language of another, any one has an insurable interest in property who derives a benefit from its existence or would suffer loss from its destruction, and the mere equitable title or other qualified property in the thing insured, though not the fee, may be protected by insurance in case the insured might suffer loss by the destruction of the subject-matter of the insurance. 14 R. C. L. 910; 19 Cyc. 583; Kludt v. German Fire Ins. Co., 152 Wis. 637, 140 N. W. 321, 45 L. R. A; (N. S.) 1131, Ann. Cas. 1914C, 609. Aside from the cases from our own courts cited above on the question of insurable interest we have found the same principle sustained in East Texas Fire Ins. Co. v. Crawford (Sup.) 16 S. W. 1068; Warren v. Springfield F. & M. Ins. Co., 13 Tex. Civ. App. 466, 35 S. W. 810; Georgia Home Ins. Co. v. Brady, 41 S. W. 513.

A careful consideration of the texts and decisions cited by us will disclose that the contention of appellant is sustained by none of them, unless it be the Buchanan Case: That case is distinguishable in its facts from the instant case in the respect that the policy was issued to Mrs. Buchanan and intended for her sole use and benefit, while in the instant case the policy was issued to appellee,, but covered partly his separate property and partly the separate property of appellant. We conclude, whatever may be the analogies to be drawn from the Buchanan Case, it never was intended thereby to hold that, because the premium upon a policy insuring the home situated on the husband’s separate property was paid by the wife from her separate funds, this would, in case of loss, convert the proceeds of the policy into community funds. We base such conclusion upon our conviction that when the house upon the land is destroyed by fire and there exists thereon a policy of insurance the money arising therefrom stands in the place and stead of such home. That it does as between the owner and creditors has been. settled. Chase v. Swayne, 88 Tex. 218, 30 S. W. 1049, 53 Am. St. Rep. 742. In that case, which was one to subject the proceeds from insurance on the home to garnishment by creditors, it was said in substance that in such eases insurance policies are not considered strictly personal contracts, separate from the realty, but should be regarded as contracts, which pass with the land to whomsoever, the title passes, and that a destruction of the property by fire is an involuntary conversion of the house into money, which represents to the owner of the land the house lost, and in that párticulkr case exempt from garnishment -at the suit of creditors,' because the realty upon which it was located was exempt. The application of the rule to this case is that the policy on. appellee’s home' attached to and formed a part of the realty, and when the house was destroyed by fire the fund arising from the policy occupied the same status which the hotise did, that is, the separate estate of appellee. To hold otherwise would present the startling situation.of conferring upon one of the spouses the authority of converting the separate estate of the other into the joint property of both for a wholly inade( quate consideration and without that other’s consent, since it would seem that either spouse, having, as they do, an' inslirable interest in such property, could upon their own initiative procure insurance. in their own name. We do not, of course, intend in any. respect to challenge- the claim that appellant had an insurable interest in appellee’s bonle, but only to say that such insurable interest is in such subjection to his superior and controlling interest as to prevent an actual conversion or transfer of his interest to her:"

We also' conclude, all- other, issues aside; that when appellee used the insurance money" to' rebuild the home, as he did, and the parties resumed its occupancy as a home, appellant’s interest and right in the fund was restored in contemplation of the rule holding she had an insurable interest in the same.

Appellant complains of the action of the trial court in charging her with an item of $120. The court’s action arises upon these facts: At the time the parties were married appellant owned a hotel in Melissa. The jury-found in response to appropriate questions that appellant collected $240 from such source. According to her testimony, she spent such sum in current family expenses. Appellee, while not so positive in his statements, in effect denies he ever received it, or that it was expended for the community needs. How the money was used was not submitted to the jury. The court, the record beiug as stated, charged appellant with one-half the sum, which is but a finding that appellant received the benefit of the full sum, and there being, as we have shown, testimony which will support the finding, we are without authority to disturb it, whatever our personal deductions from the testimony might be.

In view of the conclusion we have reached on the sixth assignment of error, it will be unnecessary to discuss the third and fourth assignments, save to say that we think the jury was authorized to prorate the premium cost on the house and furniture on the basis of the ratio each bore to the whole sum of insurance which they appear to have done in their finding.

We have carefully read the testimony adduced and the authorities cited, and as carefully considered the propositions advanced, and feel on the whole that the record fails to disclose reversible error, and for which reason the judgment is affirmed.
      <®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    BAKER v. SCHROEDER.
    (No. 5898.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 24, 1917.
    Rehearing Denied Nov. 21, 1917.)
    1. Railroads <S=»441(2) — Killing Stock on Track — Prima Facie Case — Statute.
    Proof of the killing of stock on a railway track makes a prima facie case against the railway, Vernon’s Sayles’ Ann. Civ. St. 1914, § 6603, making a railway liable for killing stock on its tracks, though if the railway can plead and prove that it fenced the track where the injury occurred, it is a defense against the prima facie case, and the merits of the case depend on the questions of the railway’s negligence, the owner’s contributory negligence, and the question of proximate cause.
    2. Railroads <®=^446(5) — Killing Stock on Track — Evidence as to Fen cinq — Duty to Instruct Verdict — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, § 6603, in an action for killing stock on the track, where the undisputed evidence disclosed that no adequate fence had been maintained by the road at the place of the injury, it was the trial court’s duty to instruct the jury to return a verdict for plaintiff.
    Appeal from Bexar County Court; J. H. Clark, Judge.
    Suit by W. M. Schroeder against James A. Baker, receiver of the International & Great Northern Railway Company. From a direct-led verdict for plaintiff, defendant appeals.
    Judgment affirmed.
    Cobbs <& Cobbs, of San Antonio, and Wilson, Dabney & King, of Houston, for appellant. F. R. Williams, of San Antonio, and R. R. Smith, of Jourdanton, for appellee.
   SWEARINGEN, J.

This is a suit by W. M. Schroeder against James A. Baker, receiver of the International & Great Northern Railway Company, to recover $159 damages, the value of two cows killed by appellant’s engine. The court instructed the jury to return a verdict a-gainst appellant for the market value of the two cows. The jury returned the verdict as directed, and assessed the value of the two cows at $150, for which judgment was rendered.

The cause of action alleged was that the cows were killed by appellant’s locomotive in running over appellant’s track. Appellee alleged that the appellant did not maintain an adequate fence at the place where the cattle were killed. Appellant answered—

“by a general demurrer, a general denial, and by the special plea that the cattle were killed upon a private crossing, constructed, maintained, and used for the exclusive use and benefit of the Schroeders, and that the Schroeders owned the land on both sides of the track at the place where the crossing was located, and that the crossing was put in there for their benefit; that on the night the cattle were struck, they were in the lane across the track, and the train struck them without any negligence on the part of the train crew, and the train crew did not have an opportunity to stop their train after discovering the cattle upon the crossing.”

The undisputed evidence disclosed that appellant’s engine killed the two cows valued at $75 each on its track outside of the city limits of San Antonio, Tex., and that appellant’s fence was in such bad condition at the place of injury, and at the time of this injury and prior thereto, that the fence was wholly inadequate to prevent cattle from passing through it.

Section 6603 of the statutes makes the railway company liable for killing stock on its track. The proof of the killing makes a prima facie case against the railway company. If the railway company can plead and prove that it fenced the track where the injury occurred, it would he a defense against this prima faoie case, and the merits of the case would then depend upon the questions of negligence of the railway, the contributory negligence of the owner of the stock, and the question of which negligence was the proximate cause of the injury.

In the case at bar the undisputed evidence disclosed that no adequate fence had been maintained by the appellant at the place of injury. In this condition of the evidence it became the duty of the trial court to instruct the jury to return a verdict as he did. Vernon’s Sayles’ Rev. St. 1914, § 6603; Texas Central R. R. v. Pruitt, 101 Tex. 548, 109 S. W. 925.

Four oí appellant’s assignments of error complain of tlie instruction to find for tlie appellee. What lias been said above disposes of these four assignments which are overruled.

The fifth assignment complains that the court erred by its refusal to instruct the jury to find for the appellant, which assignment is overruled for reasons apparent from what has already been said herein.

The other assignment complains that the instruction to find for appellee was error, because the evidence disclosed that the injury was on a private crossing between portions of appellee’s pasture divided by appellant’s track.

The undisputed evidence proved that the gates on both sides of the private crossing were closed, and that the cattle got on appellant’s track through an inadequate fence.

The judgment is affirmed.
      <fc»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    MUMME v. SUTHERLAND.
    (No. 5905.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 7, 1917.)
    1. ThiAL <©=350(7) — Special Issues — Matters to be Submitted.
    In an action for damages sustained in a collision with an automobile, where defendant pleaded and introduced evidence tending to show contributory negligence, and at the proper time called the court’s attention to the omission of a special issue as to such negligence, it was error to fail to submit such issue.
    2. Highways <©=183 — Collisions — Liability eor Injuries.
    There was no causal connection between the failure of an automobile driver to register his car and place a number thereon and a collision between the automobile and plaintiff’s wagon, and such failure did not make him a trespasser, and hence in an action for damages an exception should have been sustained to the allegations as to such failure to register the automobile and place a number thereon, and evidence thereof should have been excluded.
    3. Appeal and Error'<©=1053(2) — Cure of Error — Withdrawal of Evidence. '
    In an action for damages sustained in a collision with an automobile, where evidence was admitted to show that defendant had not registered the ear and placed a number thereon, the attempt after the evidence was all in to withdraw the matter from the jury could not have destroyed the prejudice likely to have been engendered by showing that defendant was a violator of the law.
    4. Highways <⅜^184(2) — Collisions — Actions fob Injuries — Evidence.
    In an action for damages sustained in a collision with an automobile, it was error to require defendant to testify that he had been sued in another instance for colliding with another vehicle.
    Appeal from District Court, Atascosa County; F. G. Chambliss, Judge.
    Action by J. H. Sutherland against H. T. Mumme. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Jas. A. Waltom and R. R. Smith, both of Jourdanton, for appellant. J. R. Garnand, C. G. Bass, and W. E. Jones, all of Jourdan-ton, for appellee.
   FLY, C. J.

This is a suit for damages instituted by appellee against appellant, alleging that appeliee was injured in his person and his property by appellant driving his automobile into the wagon of appellee which was being hauled by a horse and mule hitched thereto. It was alleged that appellant was operating his automobile unlawfully, in not having registered the same in Atascosa county and in failing to place a number on it; that the car was being driven at an unreasonable rate of speed; and that appellant willfully, recklessly, and negligently ran the automobile into the rear end of appellee’s wagon, in which he was riding, throwing him out and injuring him, and bruising and injuring the horse and mule, and damaging them. The cause was submitted to a jury on three special issues, and upon the responses thereto a judgment was rendered in favor of appel-lee for $1,500.

Appellant pleaded contributory negligence upon the part of appellee, and introduced evidence tending to substantiate his allegations, but the question of contributory negligence was not submitted to the jury by the court,' although the issues were objected to by appellant on the ground of such omission, and an issue as to contributory negligence was duly requested by appellant. The issue as to contributory negligence was ignored by the court, and it should have been presented when the omission was called to the attention of the court at the proper time. Railway v. Washington, 94 Tex. 510, 63 S. W. 534; Railway v. Belt, 24 Tex. Civ. App. 281, 59 S. W. 607; Railway v. Everett, 40 Tex. Civ. App. 285, 89 S. W. 457.

The court should have sustained the special exception to the allegations as to the failure of appellant to register his automobile and place a number thereon. There was no causal connection between the failure to register and the injury, and evidence was improperly admitted on the subject. Huddy on Automobiles, c. 5, pp. 71 to 120; Hemming v. New Haven, 82 Conn. 661, 74 Atl. 892, 25 L. R. A. (N. S.) 734, 18 Ann. Cas. 240. The question is fully discussed in the case cited and the proper conclusion reached. It gives expression to the following principles, which now prevail in most, if not all the states:

“In actions * * * for injuries not intentionally inflicted, but resulting from a breach of duty which another owes to the party injured— commonly classed as actions for negligence — the fact that the plaintiff or defendant at the time of the injury was a lawbreaker may possibly be relevant as an incidental circumstance, but is otherwise immaterial unless the.act of violating the law is in itself a breach of duty to the party injured in respect to the injury suffered.”

In this case the failure to register had no connection whatever , with the collision. The accident would have happened if appellant had covered his car with numbers and registration had taken place in every county in Texas. The failure to register did not make a trespasser of appellant The attempt, after the evidence was all before the jury, to withdraw the matter from the jury could not have destroyed the prejudice likely to have been engendered by evidence tending to show that appellant was a violator of the law.

The court erred in compelling appellant to state that he had been sued in another instance for colliding with another vehicle. Such evidence could have had no legitimate place in the case, and must have tended to arouse prejudice in the minds of the jury. The size of the verdict, under the facts, indicates that' there was such prejudice.

Por the errors indicated, the judgment is reversed, and the cause remanded.
      ®=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    KELLY v. COLLINS et al.
    (No. 7810.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 27, 1917.)
    1. Justices of the Peace <®^>91(1) — State- ment of Cause of Action.
    The statement of plaintiffs’ cause of action on the docket of the justice of the peace: “Suit upon damages for $150.00 of date - due - interest —-- per cent,” — was not as full and accurate a statement of plaintiffs’ cause of action as defendant was entitled to.
    2. Justices oar the Peace <⅜=>174(24) — Imper-itect Statement of Cause of Action — Remedy of Defendant.
    The county court correctly refused to sustain defendant’s motion to strike out the transcript from the justice court and dismiss the appeal; defendant’s remedy for the general and imperfect statement of plaintiffs’ cause of action being the presentation of a special demurrer thereto.
    3. Appeal and Error <S=1082(2) — Failure to Object Below — Waiver.
    Defendant, having failed to except to the statement in justice court of plaintiffs’ cause of action, either in that court or in county court on appeal, cannot ask the Court of Civil Appeals to reverse the county court’s judgment against him because of the imperfect statement.
    Appeal from Dallas County Court; T. E. Work, Judge.
    Suit by E. M. Collins and others against William Kelly. Prom a judgment for plaintiffs, defendant appeals.
    Judgment affirmed.
    H. I. Phillips and J. T. Kelly, both of Dallas, for appellant. MeCutcheon & Church, of Dallas, for appellees.
   TALBOT, J.

This suit was brought in the justice court of precinct No. 1, Dallas county, Tex., on the 27th day of August, A. D. 1914, by the appellee E. M. Collins and wife, Lizzie Collins, against Wm. Kelly, the appellant herein, for damages in the sum of $150.

The defendant answered and a jury trial, March 30, 1915, resulted in a verdict and judgment in favor of the plaintiffs for' the sum of $35. Prom this judgment the defendant appealed to the county court, and in that court a jury trial resulted in a verdict and judgment for the plaintiffs in the sum of $87.50, from which the appeal to this court is prosecuted. In the county court the defendant filed and urged a motion to strike out the transcript and dismiss the appeal from the justice court on the ground that said transcript did not contain a statement of the nature or character of plaintiff’s cause of action, did not inform or advise the defendant of the time of the accrual of plaintiff’s cause of action or whether it was one arising ex contractu or ex delicto. The statement of the plaintiff’s cause of action upon the docket of the justice of the peace is: “Suit upon damages for $150.00 of date —■—■— due-interest-per cent.” This is not as full and accurate- a statement of the plaintiff’s cause of action as the defendant was entitled to, but the county court correctly refused to sustain defendant’s motion and strike out the transcript from the justice court and dismiss the appeal. The defendant’s remedy for the general and imperfect statement of plaintiff’s cause of action was the presentation of a special demurrer thereto, and not a motion to strike out the transcript and dismiss the appeal. The record fails to disclose that he sought to avail himself of this remedy either in the justice court or in the county court. Having thus failed to except to the statement of plaintiff’s cause of action, he is in no position to ask this court to reverse the judgment rendered against him.

The judgment of the county court is therefore affirmed.

Affirmed.