author: WILLSON, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. TUNE.
    (Court of Civil Appeals of Texas. Texarkana.
    May 29, 1913.
    Rehearing Denied June 12, 1913.)
    1. Master and Servant (§ 276) — Injuries to Servant — Evidence—Sufficiency—Defective Railroad Car.
    In an action for injuries to a brakeman, evidence consisting of experiments and photographs held insufficient to show that it was physically impossible for the brakeman to be knocked from a dump car by the door swinging out and striking the arm by which he was holding to the grabiron, as he testified.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.*]
    2. Master and Servant (§ 278) — Injuries to Servant — Evidence — Sufficiency — Negligence of Master.
    In an action for injuries to a brakeman, caused by being knocked from a dump car when the door swung out and struck him, evidence held sufficient to show that the company knew or should have known that the door of the car was unfastened.
    [Ed. Note. — For other cases, see Master and Servant. Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*]
    3. Master and Servant (§ 286) — Injuries to Servant — Safe Places for Work — Custom.
    Where a brakeman was injured by the door of a dump car swinging out and knocking him from the car, the fact that there was no rule or custom requiring the fastening of the doors of such cars does not require the direction of a verdict for the defendant, since, notwithstanding such fact, the jury might find that the failure to fasten the door was negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008. 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]
    4. Master and Servant (§ 295) — Injuries to Servant — Instruction—Assuming Negligence of Master.
    In an action for injuries to a brakeman who was knocked from a dump car by a swinging door, an instruction that it was the duty of the company to keep the car in a reasonably safe condition for use, and that plaintiff could assume that this had been done, but that if he saw that the door was open and swinging, and an ordinarily prudent man would not have mounted a car. in that condition, he assumed the risk, is not misleading as instructing the jury that the car was not safe unless the door was fastened.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1168-1179; Dec. Dig. § 295.]
    Appeal from District Court, Bowie County ; P. A. Turner, Judge.
    Action by James Tune against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Glass, Estes, King & Burford, of Texar-kana, and E. B. Perkins and D. Upthegrove, both of Dallas, for appellant. Graham & Smitha, of Texarkana, for appellee.

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

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

   WILLSON, C. J.

A report of the action of this court on the first appeal of this case will be found in 147 S. W. 364, 365. The judgment for $2,500 in favor of appellee, from which relief was then sought, was reversed because of an error in the charge of the trial court to the jury. The testimony on the trial resulting in the judgment for $3,-500 in favor of appellee, from which this appeal is prosecuted, does not appear to have been materially different from that heard on the first trial. In an amended petition filed in the court below, after the case had been remanded for a new trial, appellee alleged as negligence on the part of appellant, which entitles him to the recovery he sought, its failure to fasten or securely fasten the door of the dump car, which he alleged swung out and, striking his arm, caused him to fall from the car.

It appeared from the testimony that appellant’s local freight train was due to leave Ft. Worth for Commerce every morning at 5 o’clock. The witness Ivey was the conductor, the witness Mason the engineer, and appellee and the witness Rotemberry the brakemen, for the train. It was the duty of other employés of appellant, before the time the train was due to leave arrived, to assemble the ears appellant desired to go out as a part of the train on track No. 3 in its yards. In assembling the cars on this track it seems they were left thereon coupled in groups. All the crew of the local had to do before 'leaving was to couple an engine to the cars on track No. 3, couple together the groups of cars left on that track, and then move same to another track and couple to a caboose. On the morning appellee was injured the crew began before daylight, the usual time, to make up the train to be carried out. The groups of cars on track No. 3 had been coupled together and were being slowly moved off of said track when appel-lee, in the discharge of his duty, in an attempt to ride one of the cars, of the kind known as “dump cars,” loaded with cross-ties, fell and suffered the injury he complained of. The dump ear was uncovered, like a coal ear, and, it seems, was like an ordinary flat car, except that its sides were provided with framework intended to prevent dirt, gravel, etc., with which it might be loaded, from falling therefrom. This framework consisted of upright posts 4x4 or 4x6 inches, supporting long pieces of timber, running with the car lengthwise, from which were suspended by hinges five doors on each side of the ear.. The doors were made of heavy boards 5 or 6 feet long. The car was equipped with appliances operated by levers for fastening thg doors at their bottoms. On the post situated at the southeast end of the ear (as it was then moving) was an iron handhold 24 or 30 inches long, extending up and down the post. Appellee claimed that while he was holding to said handhold with his left hand and was resting his right foot on an iron stirrup attached to the bottom of the car and extending below it 12 or 14 inches, and his left foot on the arch bar or oil box under the car, the door thereof nearest its said southeast end swung out and, striking him on the under side of the wrist of his left arm, caused him to fall from the ear. His account of the accident and circumstances surrounding it was as follows :

“After I had coupled up all the cars and signaled to the engineer to go forward and stood back to see that all the cars on No. 3 were coming, I then caught onto this dump car. I caught onto it in the usual way, while it was in motion. I had my lantern in my right hand. The train was going towards Commerce. I- was on the right-hand side, the engineer’s side. It was necessary for me to be on that side in order to signal the engineer. As the train was passing me I grabbed onto the handhold on one of the corner posts on the front end of the car. When a ear is in motion and you are, on the right-hand side you always find the handhold on the front end. When I caught onto this ear this door swung out and hit my arm and knocked my hold loose. It struck my left arm about two or three inches below the wrist, and caused me to turn loose my hold. I then fell and in scrambling around I dropped my lamp and caught my hand under the wheel — my left hand. I lost the forefinger close to the last joint, the middle one at the last joint, the next one between the first and second joints, and the little finger just behind the nail. * * * It was just a short time, just a moment, after I got on the car before the door flew open and knocked my hold loose. I could not hardly say how far we had gone, just a short distance. Just giving a rough estimate I would say the train was running at that time between three and five miles an hour. It was just pulling out. * * * This car door flew out and struck me on the arm and knocked my hold loose, and that is what caused me to fall. I was holding on with my left hand. I was faced towards the engineer. * * * When a man reaches up and catches hold of the iron bar his body will swing around the opposite way the train is going. You sometimes go backwards and forwards several times before you get a good hold. The motion of the train will jerk you around to the side. * * * It is my recollection now that I had one foot on the arch bar and one foot in the stirrup. * * * I did not notice exactly where or how I put my foot, and I am not able to tell the jury exactly' where my foot was. I got on in the usual way and was hanging on in the usual way. It could not have been more than three or four seconds from the time that I got on the car until the accident occurred, just a moment. * * * Sometimes you put your foot on the arch bar and sometimes on the oil box. The arch bar goes over the framing of the wheel and the wheel is on the inside of it. The oil box comes out further than the arch bar. The arch bar is something like 18 or 20 inches under the car; I could not say exactly. * * * The arch bar and stirrup are further back on the car than the grabiron. If this car was going east, the grabiron would be on the end post; the stirrup would be something near straight with the grabiron. * * * The dump doors fitted in right close to the corner posts. * * * The grabiron stood out from the corner post three or four inches. * * * The car was moving slow when I mounted it. Whether I got up on it and got in a position so that I had all the hold that I intended to get is something I can’t explain exactly. * * * The car moved about a car and a half length, and I was looking towards the engineer, and all at once the door came out and hit me on the wrist, on the inside part of the arm about 2½ or 8 inches above the wrist. That is the way I say now that it happened. I said that I got up there and was in that position and had my left hand about four or five inches, I supposed, above my head, holding onto that grabiron. I swore before that I was in that position and stayed there until the car ran about a car and a half length. I say the same thing now. * * * My face was towards the engineer, watching for the switch frog about 150 or 200 yards away. * * * When one of those doors is loose and is swinging loose it extends out with the motion of the train; it goes backwards and forwards. * * * When those dump doors are hanging loose the motion of the train jostles them in and out. Low joints on the track have a great deal of effect on the motion of the car. One down here on this side and one here on the other keeps the car in a rock, one side down and the other up. There are usually low joints and high centers found in the yards. * * * I don’t know whether any part of the door hit me anywhere else or not. On the arm was the only place I saw any skin knocked off or bruise. I had on my coat and gloves.”

In face of testimony of appellee set out above, appellant insists that “the evidence,” quoting from its brief, “without dispute showed that by actual demonstration the plaintiff could not have received the injury as he Claimed, for the physical construction of the car was such that the injury could not have occurred as he claimed,” and that therefore the trial court erred in refusing its request that the jury be instructed to find in its favor. The contention is based, it seems, mainly on testimony of the witnesses Pritchard and Hunter to the effect that tests made in their presence, “shortly after” the accident occurred, showed that the door of the car, when the car was moving as appellee testified it was moving at the time he was injured; would not swing out far enough to strike the arm of a person holding to the handhold as appellee claimed he' was, and on the testimony of the witnesses Hart and Ruff to the effect that they believed from experiments they had made with the car while it was standing still that the door, if it swung out as appellee testified it did, must have struck the trunk of appellee’s body instead of his arm. As we view the testimony of those witnesses, even if it appeared that the tests were made under conditions similar to those existing at the time appellee was hurt, we would be of the opinion that it lacked much of proving that it was not possible for appellee to have been struck on the arm by the door and so knocked from the car, as he testified he was. But it appeared that the tests were made under materially different conditions, and we think they therefore were of little value as proof that it was impossible for the accident to have happened as appellee swore it did. Nor has an examination of the photographs of the car, made a part of the record, in connection with the testimony of witnesses as to the construction of the car, convinced us that the accident could not have happened as appellee testified it did happen.

As another reason why the jury should have been so peremptorily instructed, appellant insists that if the door was unfastened “there was,” quoting further from its brief, “no evidence showing or tending to show how long it had been unfastened, or that defendant could have discovered its condition .by the use of ordinary care.” But we think there was testimony from which the jury might have inferred that the door was unfastened when the car was placed on track No. 3 to be taken out in the train, and that appellant knew or should have known it was unfastened. It was shown that the car reached appellant’s yards two or three days before the accident occurred, and that all its doors were then properly closed and fastened. It was shown that during the two pr three ¡days the car was in tlie yards before it was set on said track No. 3 it “was,” using the language of a witness, “switched around the yard considerably.” It was shown that doors of such cars could become unfastened as the result of a switching thereof in the yards. It was not shown that the ear was switched around or moved in any way after it was placed- on track No. 3 to be taken out in the train. It was shown that directly after the accident occurred the middle door on the side of the ear appellee was on when he fell was found to be unfastened. It seems to us the jury might have inferred from the facts recited that the doors had become unfastened as the result of switching the car was subjected to in the yard before it was placed on track No. 3, and that appellant, if it did not know they were unfastened at the time it placed the car on said track No. 3 for the purpose of having it carried out in the train, in the discharge of its duty to use ordinary care to furnish appellee a reasonably safe place in which to work and reasonably safe instru-mentalities with which to work, should have known it. We do not think the jury would not have been warranted in so finding because of the testimony of the witnesses Ivey, Mason, and White that they examined the car directly after appellee was injured and found all the doors thereof fastened, except said middle one, for there was testimony warranting an inference by the jury that the door appellee claimed struck him was fastened by some one between the time it struck him and the time said witnesses inspected the car. The case on its facts, we think, is not like Railway Co. v. Anderson, 118 S. W. 1113, Railway Co. v. Jones, 103 Tex. 187, 125 S. W. 309, Railway Co. v. Endsley, 103 Tex. 434, 129 S. W. 342, and others cited by appellant.

Further urging its contention that the action of the trial court in the particular referred to was erroneous, appellant asserts that it appeared without dispute that ears like the one in question "were moved and hauled about without the doors being fastened,” and that it did not appear that “there was any rule or custom to fasten said doors.” As we understand the record, it does not support the assertion made; but, if it did, we think a question nevertheless would have been presented for the jury to determine, to wit, whether under the circumstances of the case appellant, if it failed to fasten the door before placing the car on track No. 3 to be taken out in the train, discharged the duty it owed appellee to use ordinary care to see that the car was in a reasonably safe condition for the use he was expected to make ' of it or not. If appellant in the exercise of such care should have seen to it that the door was fastened, neither the fact that there was no custom requiring it to be fastened nor the fact that such cars were moved about with the doors unfastened would have furnished a reason why it should escape a liability the law visits on one guilty of such negligence.

Our conclusion is that the court did not err in refusing to instruct the jury to return a verdict in appellant’s favor. On the contrary, we think the testimony was sufficient to support the finding of the jury that appellee without fault on his part, as the proximate result of negligence on the part of appellant, was injured as alleged by him, and we so find.

By its second and fourth assignments appellant attacks as erroneous the seventh paragraph of the court’s charge, which was as follows:

“It was the duty of the defendant to use ordinary care to put and keep the ballast or gravel car in a reasonably safe condition for use, and plaintiff: had the right to assume that defendant had performed this duty and that said car was in such reasonably safe condition for use. However, if you believe from the evidence that the door of said car was open and swinging when plaintiff mounted it and that he saw its condition before he mounted it, or would have seen it by the exercise of that ordinary circumspection that an ordinarily prudent man would have used in' the particular employment, and that a person of ordinary care and prudence would not have mounted said car under the circumstances of the situation, then he assumed the risk and can’t recover, and you will find for the defendant. However, if you believe that in mounting said car the plaintiff did that which a person of ordinary care and prudence would have done under the circumstances of the situation, then he did not assume the risk, and his right to recover would not be defeated.”

It is claimed that the effect of the instruction1 was to tell the jury that the car was not reasonably safe for the use appellee was expected to make of it, unless the doors thereof were closed and fastened. Had the jury considered said portion of the charge without reference to other portions thereof, we do not think they would have understood that to be its effect; and we are sure, if they considered it with reference to the other portions of the charge, they could not have been misled to believe such was its effect.

Objections made on the first appeal to certain instructions the court had given to the jury are renewed on this appeal to instructions identically the same given at the last trial. We were of the opinion, with reference to the record on the former appeal, that the objections were not tenable. Having again considered them, with reference to the record now before us, we are of the same opinion.

The judgment is affirmed.


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    PEARCE et al. v. HEYMAN et al.
    (Court of Civil Appeals of Texas. San Antonio.
    June 4, 1913.)
    1. Infants (§ 78)— Actions — Judgments — Validity.
    A judgment, adjusting rights of property between an infant and his guardian, rendered pursuant to an agreement in open court while the infant was represented only by the guardian, is void.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. §§, 195-207, 209; Dec. Dig. § 78.*]
    2. Appeal and Error (§ 843) — Questions Reviewable — Immaterial Errors.
    The court 'reversing a judgment will not pass on a question which will not arise on a subsequent trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3331-3341; Dec. Dig.- § 843.]
    3. Trespass to Try Title (§ 39) — Evidence —Admissibility.
    Where, in trespass to try title, defendant pleaded that a deed made by plaintiff conveyed a half interest, and the court so construed it, and plaintiff did not contend that the deed was fraudulent and without consideration, unless construed to convey more than a half interest, there was no error in refusing to permit plaintiff to testify that she only intended to convey a half interest.
    [Ed. Note. — For other cases, see Trespass to Try Title; Cent. Dig. § 54; Dec. Dig. § 39.⅞]
    4. Trial (§ 349) — Special Issues.
    The court need not submit any special issue unless it submits the case on special issues; and, where it directs a verdict, it is not error to refuse to submit an immaterial special issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 823-827; Dec. Dig. § 349.*]
    5. Evidence (§ 429) — Parol Evidence — Judgments — Validity.
    Where a judgment adjusting property rights between an infant and his guardian did not show on its face that it was void because the infant was represented only by the guardian, parol evidence that no issue was made between the parties, and that the infant was not in court to settle any dispute with the guardian, was admissible to show that the judgment was void.
    [Ed. Note. — Fpr other cases, see Evidence, Cent. Dig. §§ 1969-1971, 1973, 1974; Dec. Dig. §, 429.*]
    6. Vendor and Purchaser (§ 230) — Innocent Purchasers — Void Judgments.
    There can be no innocent purchaser for value under a judgment which shows on its face that it is void.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 502-512; Dec. Dig. § 230.*]
    Appeal from District Court, Atascosa County; F. G. Chambliss, Judge.
    Action by Georgia O. Pearce and another against Julius Heyman and others. From a judgment for defendants, plaintiffs appeal.
    Reversed and remanded.
    Ben P. Lane and W. J. Bowen, both of San Antonio, and' Frank H. Búrmeister, of Pleasanton, for appellants. W. M. Abernethy, of Jourdanton, and W. W.' Walling, of San Antonio, for appellees.

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

   MOURSUND, J.

Georgia O. Pearce and her husband, Lawson W. Pearce, sued Julius Hey-man, Joe Heyman, California Bradford and husband, Buell Bradford, Mrs. H. B. Palmer, Ethel, Essie, and Anson Palmer, minors, Mrs. Florentine Palmer, H. B. Palmer, Burton Palmer, and J. B. Harrison, in trespass to try title to recover 1,215.7 acres of land, damages, and rents. In addition-to the usual allegations, it was alleged that said Georgia O. Pearce was, before her- marriage, Georgia O. Heyman, and was the only child and heir of George Heyman, deceased, who died intestate in 1884; that said lands were the separate property of said George Heyman, acquired before his marriage to California Henderson, who is the mother of Georgia O. Pearce, and who was at -the time of the trial the wife of Buell Bradford. Defendants answered by pleas of not guilty, pleas of limitation of three and five years, and pleaded that plaintiffs were estopped from claiming the land, and for cause alleged: “First. Because in a suit in trespass'to try title to the lands owned or claimed by George Heyman, deceased, father of defendant, Georgia O. Pearce, filed in this honorable court, on the 14th day of March A. D. 1893, by Mrs. Callie Bradford, mother of defendant, Georgia O. Pearce, while said Georgia O. Pearce was yet a minor, against-Edward Heyman, an agreed judgment was rendered in said cause on the 16th day of April A. D. 1894, vesting title to said lands in Callie Bradford and Georgia O. Heyman, her, minor daughter, now Georgia O. Pearce, in equal undivided shares. Second. On the 26th day of August A. D. 1901, Georgia O.-Pearce, joined by her husband, Lawson W. Pearce, plaintiffs, conveyed by deed to defendants Buell Bradford and California Bradford an undivided one-half (½) interest in and to 225.7 acres of land, being, as recited' in said deed, ‘My interest inherited from my father, George Heyman, deceased,’ etc., which said deed was on the 10th day of September A. D. 1901, recorded in the Deed Records of Atascosa county, in volume W No. 1, at pages 547, 548, and 549.” Plaintiffs, by supplemental petition, excepted to defendants’ plea' of estoppel, and denied that in said suit the respective shares or interests of said Callie Bradford and Georgia O. Heyman, a minor, were litigated, alleging that said Callie Bradford in said suit' attempted to act for herself and also as guardian of said minor, and' in violation of her plain duty as guardian fraudulently attempted, by said decree, to deprive her ward of one-half of her estate, and. said purported decree is not binding as against said minor, because she in fact owned' said entire estate at said time; that before the signing of said deed said Buell Bradford' and California Bradford represented to plaintiffs that said Georgia O. Pearce only owned a ha.lf interest in the land therein mentioned which representation was false, as said Bradford and wife knew, and was made with intent to deceive and defraud plaintiffs, and induced plaintiffs to sign said deed in ignorance of their rights, and under a mistake of the facts; that plaintiffs own the lands described in their petition as tenants in common with the other defendants, except as in such petition mentioned, the particular tracts and interests claimed to be owned by plaintiff being there particularly described. Defendants, by supplemental answer, excepted' to' plaintiffs’ allegations contained in the supplemental petition, on the ground that same constituted an attempt to change or alter the force and effect of the judgment, the same being the judgment of a court of competent jurisdiction, and all parties being before the court. Defendants also denied that they were tenants in common with plaintiffs of any lands described in plaintiffs’ petition, and pleaded an agreed verbal partition, and denied that fraud was practiced by Bradford and wife. The court instructed a verdict, for defendants, and, judgment being entered, plaintiffs appealed.

The first and second assignments are based upon the refusal of the court to permit oral evidence to explain what land was litigated and what the issues were in suit No. 479, Oallie Bradford et al. v. Edward Heyman, the judgment in such case having been introduced in evidence by defendants, it being contended by plaintiffs that said judgment was vague, uncertain, and of doubtful meaning, and it being shown that the papers in said case had been lost. The purpose of such testimony was to show that Oal-lie Bradford and Georgia O. Heyman, now Georgia O. Pearce, were not adverse parties in said suit, and their respective rights and interests in said lands were not litigated in said suit. The judgment referred to reads as follows: “No. 479. Callie Bradford et al. v. Edward Heyman. April 16, 1894. In District Court, Atascosa County. This cause coming on for trial, and it appearing to the satisfaction of the court that the parties plaintiffs and defendant having entered into a written agreement as follows: That Callie Bradford take one-half of the land sued for in her right, namely, 106% acres, and that she take, as guardian of her minor child, Georgia O. Heyman, one half of the land, namely, 106% acres, and that the 106% acres of land sued for be vested in Callie Bradford absolutely as her own, and the other half, 106% acres of land, that she holds as guardian of her minor child, and that plaintiffs pay all costs in this behalf expended (that is, that Callie Bradford pay one half of the costs, and that she pay the other half out of the estate of her minor child, Georgia O. Heyman)—it is ordered, adjudged, and decreed by the court that all the right, title, and interest in the land described in plaintiffs’ petition held by Edward Heyman, defendant in this suit, be divested out of the defendant Edward Hey-man, and invested in Callie Bradford, namely, 106% acres of land be absolutely vested in Oallie Bradford in her own right, and 106% acres of land described in plaintiffs’ petition be vested in Callie Bradford, as guardian of her minor child, Georgia O. Heyman. It is further ordered that the officers of this court have judgment against Callie Bradford for one half their costs and as guardian, her minor child, the other half, and for which execution may issue, and that this cause be dismissed.”

Few decrees can be found as remarkable as the one now being considered. Apparently Oallie Bradford litigated the title with Edward Heyman for herself and as guardian of her minor daughter, and having obtained an agreement for a recovery, proceeded to litigate for herself individually, with herself as guardian of her minor daughter, regarding the interests to be awarded to each in the recovery. There is nothing in the judgment indicating any character of pleadings making an issue between the mother and her daughter, no appointment of a guardian ad litem for the daughter, but simply an agreed judgment, in which the mother represented both herself and her. daughter. Then to render matters more incomprehensible, for some reason it wa.s deemed proper to wind up the decree with a statement that the case was dismissed. The recitals of the judgment demonstrate the impossibility of there having been any jurisdiction of the person of the minor for the purpose' of decreeing a recovery against such minor in favor of the guardian, and therefore the judgment was void. Dunn v. Taylor, 42 Tex. Civ. App. 247, 94 S. W. 347; Sandoval v. Rosser, 86 Tex. 682, 26 S. W. 933.

An agreement made in open court may supply the want of pleadings, but the persons who are recited as making the agreement must be in court, and we hold most emphatically that when a judgment shows that the minor is represented only by the adverse party in the agreement, then such minor is not in court so that her rights can be taken from her by a judgment based upon such agreement. It follows that we consider it unnecessary for appellants in this case to introduce the evidence sought to be introduced, as shown by the first two assignments of error; also that defendants are not entitled to hold under the judgment, and as the court’s judgment was based upon said judgment as to half of the land described therein, and upon a deed as to the other half, the court erred in instructing a verdict for defendants, and assignments 8 and 11 are sustained.

The error, if one, complained of in assignment No. 3 cannot occur upon another trial, and the court will not waste time in passing on the question presented. Worcester v. Ry. Co., 91 S. W. 339; Telegraph Co. v. Tucker, 98 S. W. 909.

As we understand the pleadings, appellants did not contend that the deed from tliem to the Bradfords was fraudulent and without consideration, unless construed to convey more than a half interest. In view of the fact that the court appears to have construed it as conveying only a half interest, and that defendants pleaded it conveyed only a half interest, there was no error in refusing to let Mrs. Pearce testify that she only intended to convey a half interest. Assignment No. 4 is' therefore overruled.

It appears from the bill of exceptions upon which the fifth assignment is founded that the question raised is practically the same as raised by the fourth assignment, and said fifth assignment is overruled.

The court did not err in holding as a matter of law that the land described in the deed from Georgia O. Pearce and husband to the Bradfords was included in the deed from the Bradfords to Palmer. The undisputed evidence shows that the 160 acres out of survey 1138, grantee, A. L. Bacon, was taken by George Heyman by verbal partition as his one-third of said survey acquired by deed from P. H. Fields. The deed from the Pearces to the Bradfords describes the particular 160 acres by metes and bounds, while the deed from the Bradfords to Palmer describes it as it was described in the deed to George Heyman. The other tract, being part of survey No. 1084, grantee, P. G. Beall, described by metes and bounds in the deed from Pearces to Bradfords, is necessarily included in the description of the entire survey made in the deed from Bradfords to Palmer. The sixth assignment is overruled.

The seventh assignment complains of the refusal to submit the special issue, whether the property was community property of Geo. Heyman and wife or separate property of Geo. Heyman. The court was not required to submit any special issue unless he decided to submit the case upon special issues. I-Iengy v. Hengy, 151 S. W. 1127, and eases therein cited. Having concluded to instruct a verdict, and basing his conclusion upon the theory that the judgment divested Georgia O. Pearce of one half the land, and the deed divested her of the other half, he necessarily concluded that it was immaterial whether she acquired half or all from her father. As the judgment does not settle anything as between the mother and daughter, upon another trial it will be necessary to decide whether or not the property was the separate property of Geo. Hey-man; and if the evidence on the issue is conflicting, the court will submit the question to the jury.

Assignments 9 and 10 complain of the overruling of the motion for new trial, the contention being that said motion should have been granted because of the discovery of the papers in the case, in which the agreed judgment was rendered under which defendants are claiming that Mrs. Bradford was vested with a half interest in certain lands as against her daughter. Plaintiffs desired to show by the pleadings in said case that no issue was made by the pleadings as between the mother and daughter. Were it not for the fact that we consider the judgment void on its face, we would hold this evidence admissible for the purpose of showing that no issue was made between the parties, and that the minor was not in court for the purpose of settling any dispute with her guardian, and that therefore the judgment, purporting to adjust rights of property between the minor and her guardian, was void. Dunn v. Taylor, 42 Tex. Civ. App. 249, 94 S. W. 347.

Much has been said in appellees’ brief about innocent purchasers for value. There can be no innocent purchaser for value under the judgment which carries on its face the warning that a mother is representing her child in an agreement by which she is to hold certain property rights against her child. As to the deed, as both sides appear to agree in their pleadings that it carried only a half interest, we fail to see how any question of innocent purchaser for value can arise. If appellants seek to set aside the said deed in its entirety, it would be incumbent upon them to show that those holding under the deed were not innocent purchasers for value, as the latter would have the legal title.

The judgment is, reversed, and the cause remanded.


author: REESE, T.

text:
    TEXAS & P. RY. CO. v. LANGBEHN.
    (Court of Civil Appeals of Texas.
    May 29, 1913.)
    1. Carriers (§ 160)— Carriage of Freight —Contract of Dimitation — Validity.
    Under Rev. Civ. St. 1911, art. 5713, making it unlawful for any person or corporation to make any agreement shortening the time to sue to a period less than two years, a stipulation in a bill of lading that in no event should any suit be sustained unless commenced before the expiration of two years from the date the cause of action accrued was invalid, since it did not allow the full two years’ time.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 231, 673; Dec. Dig. § 160.*]
    2. Courts (§ 92) — Rules of Decision — Dictum.
    Although the contract under discussion by the Supreme Court was clearly void on another ground, its opinion, placing the real emphasis on the ground that a stipulation as to the time within which action should be brought was invalid under the statute, was not dictum.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 335; Dec. Dig. § 92.]
    3. Commerce (§ 33) — Interstate or Intrastate-Continuity of Transportation— “Interstate Shipment.”
    A shipment of cotton from a point in this state to Galveston on local bills of lading, which was in fact destined for export, so that the transportation from the place of delivery to Galveston was a part of the journey to a foreign port, was an interstate shipment.
    [Ed. Note. — Eor other cases, see Commerce, Cent. Dig. §⅝ 26, 81; Dec. Dig. § 33*
    Eor other definitions, see Words and Phrases, vol. 4, pp. 3724-3731.]
    4. Commerce (§, 8) — Federal Power — State Regulations — Carrier’s Liability.
    State laws, declaring contracts invalid which require the bringing of an action against a carrier for loss of or damage to a shipment in less than the statutory period, were superseded, as to interstate shipments, by the Car-mack amendment of .Tune 29, 1906 (34 Stat. 593, c. 3591, | 7 [U. S. Comp. St. Supp. 1911, p. 1307]) to the act of February 4, 1887 (24 Stat. 386, c.. 104, § 20 [U. S. Comp. St. 1901, p. 3169]), which furnishes the exclusive rule on the subject of the liability of the carrier under contracts for interstate shipments.
    [Ed. Note. — For other eases, see Commerce, Cent. Dig. § 5; Dec. Dig. § 8.*]
    5. Carriers (§ 160) — Limiting Liability-Time for Bringing Suit — Carmack Ajmendment.
    Under the Carmack amendment of Tune 29, 1906 (34 Stat. 593, c. 3591, § 7 [U. S. Comp. St. Supp. 1911, p. 1307]), to the act of February 4, 1887 (24 Stat. 386, c. 104, § 20 [U. S. Comp. St. 1901, p. 3169]), prohibiting exemptions from liability imposed by that act, a stipulation in a bill of lading, requiring suits for loss or damage to be brought before the expiration of two years after the cause of action arose, was valid and binding.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 231, 673; Dec. Dig. § 160.*]
    On'motion for further rehearing.
    Motion overruled.
    For former opinion and rehearing, see 150 S. W. 1188.

      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, T.

This ease has had a rather tumultuous career in this court. The history thereof is as follows: On May 20, 1912, the judgment of the trial court was in all things affirmed. The opinion of the court will be found in 150 S. W. 1190. Appellant, on Tune 4, 1912, filed a motion for rehearing, which was carried over to the present term, and on October 11, 1912, the motion was granted in part, and the judgment of the trial court was reversed, and judgment rendered for appellee as to the value of the three bales of cotton marked “DONE.” The judgment as to the value of the cotton marked “LKWB” was undisturbed. The opinion on this motion for rehearing will also be found in 150 S. W. 1188. Within 15 days after the rendition of this opinion appellee filed a motion for a rehearing, which was overruled October 31, 1912. The case remained in this condition until February 13, 1913, when appellee filed a second motion for rehearing, when for the first time the proposition is advanced by him that, under the decision in Taber v. W. U. Tel. Co., 137 S. W. 106, 34 L. R. A. (N. S.) 185, the stipulation in the bill of lading that “in no event shall any suit be sustained, unless the same shall be commenced before the expiration of two yeaTs from the date the cause of action occurred” was invalid. After the filing of this motion, being in some doubt as to the validity of this stipulation, we held up this motion to await the answer of the Supreme Court to a certified question in the ease of Elder, Dempster & Co. v. Ry. Co., 154 S. W. 975, as to whether the two oi four years’ statute of limitation applied to this kind of an action. The Supreme Court having replied that the four-year statute applied, appellant’s case, so far as this point is concerned, rested entirely upon the contractual limitation of two years stipulated in the shipping contract. If this stipulation is valid, then this motion of appellee must be overruled^ and our opinion on appellant’s motion for rehearing, as against appellee’s attack upon it, must stand. This second motion of appellee for rehearing might be dismissed without consideration, but we have deemed it best to pass upon it regularly, as it, together with the reply thereto filed by appellant, raises important questions not heretofore raised or passed upon in this case.

The stipulation in the bill of lading in this case is as follows: “In no event shall any suit or action in any court for damages arising from any breach of this contract, or for damages or injury to or loss or destruction of said cotton, or any part thereof, be sustained, unless the same shall be commenced before the expiration of two years from the date when such breach, injury, loss, or destruction occurred, and the lapse of such time shall be conclusive evidence against the validity of any such claim or demand.” The statute under which it is contended that this stipulation is invalid is article 5713, R. S. of 1911 (article 3378, R. S. of 1895), which is as follows: “It shall be unlawful for any person, firm, corporation, association or combination of whatsoever kind to enter into any stipulation, contract or agreement by reason whereof, the time in which to sue thereon is limited to a shorter period than two years. And no stipulation, contract or agreement for any such shorter limitation in which to sue shall ever be valid in this state.”

Reasoning by analogy from the doctrine announced in the Taber Case, supra, it is contended that by the terms of the statute quoted no contract or agreement shall be valid which does not allow full two years for bringing the suit, this construction being given to the language of the statute, and that the contract in this case, requiring suit to be brought “before the expiration of two years” from the time the cause of action accrued, does not allow two full years for bringing such suit. In the Taber Case the stipulation as to notice required such notice to be given “within ninety days.” It was contended that this stipulation in the contract was void under article 5714, R. S. 1911 (article 3379, Sayles’ Civil Statutes) which is as follows: “No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon shall ever be valid unless such stipulation is reasonable, and any such stipulation fixing the time within which such notice shall be given at a less period than ninety days shall be void.” It was held by the Supreme Court that the term “within ninety days” must be construed to mean “before the expiration of ninety days,” and that this did not allow full 90 days for presenting the claim, and was void under the statute. We followed this decision in its application to a similar stipulation as to notice in this case. ’See original opinion referred to; also in the case of Smith v. I. & G. N. R. R. Co., 138 S. W. 1075.

There is no reasonable ground upon which this case, so far as concerns the contractual limitation, can be distinguished from the Taber Case. There is a slight difference in the verbiage of articles 3378 and 3379, but it would be like “dividing a' hair ‘twixt south and southeast side” to discern any difference in meaning between the words “a shorter period” and “a less period.” The stipulation in the contract in the Taber Case required notice to be given “within 90 days.” In the present contract suit is required to be brought “before the expiration of two years.” In the Taber Case the court says: “The provision in the contract requiring that notice shall be given within 90 days we construe to mean that notice shall be given before the-expiration of 90 days.” The provisions of the two articles of the statute are identical in meaning. The stipulations in the two contracts are identical in meaning. There is no escape from the logical conclusion that if the contract in the Taber Case was void under article 3379, this contract is void under article 3378. We cannot agree with appellant’s counsel that this much of the opinion in the Taber Case was dictum. It is true that the contract there under discussion was held void and was clearly void on another ground, but the real emphasis is placed upon the first ground referred to. Black’s Law Dictionary, “Dictum” and “Obitur Dictum.” The conclusion of the Supreme Court that the stipulation requiring notice to be given within 90 days — that is, as the court says, before the expiration of 90 das's — offends against the statute, in that it does not allow full 90 days, with the highest respect for that court, does not seem to a majority of this court to be sound, and we have some doubt that it will be adhered to. It was really not necessary to the conclusion that the contract was void. Justice MeMeans, however, does not agree with the majority in this opinion as to doctrine of the Taber Case. However, regardless of our own opinion, we feel compelled to follow the plain declaration of law in the Taber Case, and to hold that the stipulation in the present shipping contract, requiring suits to be brought “before the expiration of two years,” is invalid under the statute referred to.

In an able and exhaustive argument and reply to appellee’s motion for a rehearing, however, counsel for appellant presents the contention that the shipping contract, or bill of lading in question;, was a transaction with regard to interstate commerce, and therefore the state laws referred to are not applicable under the provisions of the present federal statute with regard to interstate commerce. Act Feb. 4, 1887, e. 104, § 20, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169]; Act Cong. June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1909, p. 1307], known as the “Carmack amendment.” There can be no doubt that the shipments in question were interstate shipments under the decision of the Supreme Court of the United States in T. & N. O. Ry. Co. v. Sabine Tram Co., 227 U. S. 111, 33 Sup. Ct. 229, 57 L. Ed. —, Ry. Com. v. Worthington, 225 U. S. 101, 32 Sup. Ct. 653, 56 L. Ed. 1004, and So. Pac. Terminal Co. v. Interstate Com. Com., 219 U. S. 498, 31 Sup. Ct. 279, 55 L. Ed. 310. The case first cited, which was an appeal from a judgment of this court (121 S. W. 256), is precisely in point The testimony of the appellee leaves no doubt on the point that the cotton embraced in both of the shipments in this ease, although it came to Galveston on local bills of lading, was in fact destined for foreign transportation, and that the transportation from point of delivery to Galveston was a part of the journey to a foreign port. The testimony of the appellee, Langbehn, establishes this fact beyond controversy, and brings these shipments clearly within the authority of the Sabine Train Co. Case, supra.

In the case of Armstrong v. G., H. & S. A. Ry. Co., 92 Tex. 117, 46 S. W. 33, it was held by our Supreme Court that the provisions of articles 3378 and 3379 were valid and effective in contracts for interstate or foreign transportation, but this decision was based upon the federal laws with regard to interstate commerce then existing, and before the enactment of the present statute on that subject above referred to, and the court cites the case of Railway v. Solan, 169 U. S. 133, 18 Sup. Ct. 289, 42 L. Ed. 688, from which it quotes at length. This case is also cited by the Supreme Court of the United States in Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. -, along with other cases, as indicative of the rule of decision on this question before the enactment of the federal statute of 1906. In the Croninger Case the court says: “Prior to that amendment the rule of carrier’s liability, for an interstate shipment of property, as enforced in both federal and state courts, was either that of the general common law as declared by this court and enforced in the federal courts throughout the United States (Hart v. Railroad, 112 U. S. 331 [5 Sup. Ct 151, 28 L. Ed. 717]), or that determined by the supposed public policy of a particular state (Pennsylvania Railroad v. Hughes, 191 U. S. 477 [24 Sup. Ct 132, 48 L. Ed. 268]), or that prescribed by statute law of a particular state (Chicago, etc., Railroad v. Solan, 169 U. S. 133 [18 Sup. Ct. 289, 42 L. Ed. 688]).”

In the case of M., K. & T. Ry. Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. -, decided March 10, 1913, on appeal from the Court of Civil Appeals of the Fifth District of Texas, it was held, quoting from the syllabus, which is fully sustained by the opinion, that “state laws declaring contracts invalid which require the bringing of an action against a carrier for loss of or damage to a shipment in less than the statutory period were superseded, so far as interstate shipments are concerned, by the Carmack amendment of June 29, 1906, to the act of February 4, 1887, § 20, which furnishes the exclusive rule on the subject of the liability of the carrier under the contracts for interstate shipments. The shipper and carrier of an interstate shipment are not forbidden to stipulate that an action against the carrier in case of damage to shipment must be brought within 90 days after the damage was sustained, by the provisions of the Carmack amendment of June 29, 1906, to the act of February 4, 1887, § 20, prohibiting exemptions from liability imposed by that act.”

In that ease the Court of Civil Appeals had approved a charge of the trial court that:' “The contract of shipment in this case contains, among other things, a stipulation that suit for any damages growing out of this shipment must be commenced within 90 days. You are instructed that such stipulation is void, and not binding upon the plaintiff herein.” It was held by the Supreme Court of the United States, speaking of this stipulation in the contract: “The liability imposed by the statute (the Carmack amendment) is the liability imposed by the common law upon a common carrier, and may be limited or qualified by special contract with the shipper, provided the limitation or qualification be just and reasonable, and does not exempt from loss or responsibility due to negligence” — and it was held that the 90-day limitation for bringing suit was not unreasonable. This declaration of the law by the Supreme Court of the United States, the tribunal of final authority for the settlement of such questions, is of controlling force, and is decisive of the question now before us. We are compelled to conclude that the stipulation in the shipping contracts in this case, requiring suits to be brought before the expiration of two years after the cause of action arose, is valid and binding. Under this view of the law, as was held by us in our last opinion in this case, of which a rehearing is here sought, appellee’s .cause of action for the “DONE” cotton is barred by this contractual limitation of two years, and the motion for rehearing is therefore overruled.

It is not necessary to determine what effect these decisions of the United States Supreme Court would haye upon the stipulation as to 90-day notice of claim, which in' our first opinion we held invalid under the authority of the Taber Case, that matter having been some time since finally disposed of, and no further contest being made as to that by appellant.


author: LEVY, J.

text:
    STANSBERRY v. BOOGHERY et al.
    (Court of Civil Appeals of Texas. Texarkana.
    May 29, 1913.)
    1. Yendob and Pubchaseb (§ 265) — Yen-dob’s Lien — Renewal oe Lien.
    The renewal of a debt due from a real estate purchaser to the assignee of notes for the price secured by a vendor’s lien operates as a renewal of the lien, but the renewal cannot affect the rights of a third person accruing pri- or to the renewal and while the original debt and lien were barred by limitations.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. § 265.*]
    2. Vendos and Pubchaseb (§, 265) — Title of Vendos — Conveyance by Yendob to Assignee of Puechase-Money Notes.
    Though a vendor’s lien note is barred by limitations, a subsequent transfer by the vendor of the legal title to the assignee of the note is valid, and the assignee takes title superior to that of the purchaser, but the bringing of a suit on the debt and obtaining of a decree of foreclosure of the vendor’s lien concludes any assertion of the superior title remaining in the vendor while the purchase money is unpaid.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. § 265.*]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by W. E. Stansberry against 'Banks Booghery and another, in which J. B.. Atkins, receiver of the ,W. F. Taylor Company, intervened. From a judgment for defendants and intervener, plaintiff appeals.
    Reversed and rendered.
    The appellant brought the suit against Banks Booghery and W. M. Bell in trespass to try title to 31 ½ acres of land of the Mary Richardson headright survey in Harrison county. J. B. Atkins, receiver of W. F. Taylor Company, Limited, intervened, claiming an interest in the land, as against the plaintiff and, pleading ownership in fee simple, asked title to be decreed 'in him. After hearing the evidence the court peremptorily instructed a verdict for the defendants. Judgment was entered against the plaintiff and in favor of 'intervener and defendants on their pleadings. The parties have treated W. F. Yates and his wife, iS. E. Yates, as the common source of title. The evidence is admittedly without conflict or dispute. On October .13, 1902, W. M. Hightower and Richard Hightower purchased from W. F.. Tates and his wife, S. E. Tates, three tracts-of land of the Ashland and Richardson surveys in Harrison county, aggregating 231 acres. The land in suit is a part of one of. these tracts. The deed executed by Tates and wife recited a consideration of $3,000,. evidenced by two .notes, one for $1,000 and-the other for ■ $2,000. The note for $2,000 was dated the same day as the deed and: was due one day after date. Said deed and notes expressly retained a vendor’s lien upon the land to secure the payment of the same. The note for $1,000 was duly paid. The note for $2,000 recited in the deed was later transferred by indorsement by Tates to Gill, and by Gill to W. F. Taylor Company, Limited. The deed was not filed for record until February 1, 1911. This note was not paid by the Hightowers, and it became barred by limitation of four years on October 14, 1906. On March 1, 1907, after the note was barred by limitation, W. M. Hightower renewed the same in writing. Thereafter, on February 20,1908, W. F. Taylor Company, Limited, instituted suit upon the said note against W. M. Hightower and wife and Richard Hightower to foreclose the vendor’s lien on the 231 acres of land; and on November 18, 1910, a judgment by agreement was entered, by the terms of which W. F. Taylor Company, Limited, recovered of the Hightowers $3,960, being the principal, interest, and attorney’s fees called for in the note at that time, and foreclosed the vendor’s lien upon the 231 acres of land which the Hightowers had bought from Tates and -of which the 31 ½ acres in controversy is a part. To carry out the agreed judgment W. M. Hightower and wife and Richard Hightower on February 20, 1911, executed a conveyance to W. F. Taylor Company, Limited, to 130.54 acres of the 231 acres of land described in the deed from Tates to the Hightowers, and W. F. Taylor Company, Limited, conveyed to them (High-tower and wife) the remaining 100 acres of the land. These deeds were in consideration of the full settlement and in satisfaction of the judgment foreclosing the vendor’s lien on the land. J. B. Atkins, receiver of W. F. Taylor Company, Limited, executed a deed to appellee Booghery on April 8, 1911, to the 130.54 acres of land. This deed was filed for record. The consideration for the deed was three vendor’s lien notes, which appellee Bell purchased. It was proven that Atkins was properly qualified and acting as receiver of the W. F. Taylor Company, Limited. This is the title that the appellee Booghery relies upon.
    Intervener introduced in evidence and relied for title upon a transfer by W. F. Tates to himself, dated March 13, 1912, and acknowledged September 9, 1912, of the superior title to the 231 acres of land conveyed by Tates..and wife. to.the Hightowers and upon which the vendor’s lien was retained to secure payment of the two notes.
    It was proven by appellant that after the $2,000 note held by the W. F. Taylor Company, Limited, was barred by limitation of four years, and before its renewal on March 1, 1907, the Goodbar Company, a corporation, instituted suit and recovered a judgment in the district court jointly and severally against W. M. Hightower and Richard High-tower on account of merchandise. An abstract of this judgment was made on February 16, 1907, and filed and properly recorded in the county clerk’s office on same date. The filing and recording of his abstract was prior to the renewal of the $2,000 note held by W. F. Taylor 'Company, Limited. The abstract of the judgment was made out and was recorded and indexed in the county clerk’s office in due form and all requirements of law. Execution was issued upon the judgment and levied upon certain personalty and on the 231 acres of land purchased by the Hightowers from Tates; and the land was sold by the sheriff, who executed a deed therefor to the Goodbar Company on June 4, 1907. The sheriff’s deed was filed for record June 6, 1907. On September 28, 1907, the Goodbar Company filed a suit of trespass to try title and for partition against W. M. Hightower and his wife and Richard Hightower, alleging that W. M. Hightower and wife owned a homestead interest in the 231 acres of land. On October 8, 1907, the defendants W. M. Hightower and his wife answered claiming specific parts of the 231 acres of land as a homestead. It does not appear that any judgment was entered in this suit, but it is explained that all the parties to the suit agreed on a settlement and executed deeds to carry out the agreement. It appears that it was agreed that the Hightowers were to have 200 acres of the land as a homestead, and the Goodbar Company was to have a specific tract of 31 ½ acres, which latter is the land in controversy here. On-February 17, 1908, W. M. Hightower and his wife, Mattie, and Richard Hightower executed a deed to the Goodbar Company to the 31 ½ acres of land in controversy. This deed was filed for record March 18, 1908. On September 23, 1908, the Goodbar Company for a money, consideration, executed a warranty deed to appellant W. E. Stansberry to the 31 ½ acres of land in suit. The deed was filed for recr ord September 24, 1908. This is the title that appellant relies upon. On February 11, 1909, the defendant Booghery’ rented the land in controversy from appellant, and in 1910 he again rented it from appellant; but when he received the deed from J. B. Atkins, receiver, he repudiated the claim of appellant and claimed the land as his own.
    A. G. Carter and P. M. Toung, both of Marshall, for appellant. Beard & Davidson, of. Marshall, for appellees.

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

   LEVY, J.

(after stating ■ the facts as above). By the first and second assignments of error appellant makes the contention that under the evidence he was entitled to have judgment for the land sued for, and the court erred in directing a verdict against him. The facts are undisputed, and the rights of the parties aré made to depend purely upon a matter of law. All the parties claim through and under the conveyance from W. F. Yates and wife to W. M. and Richard Hightower. This deed expressly retained a vendor’s lien on the land to secure the payment of the purchase-money note. The W. E. Taylor Company, Limited, became the assignee of the purchase-money note, and, while such note was in the hands of the said assignee unpaid, the debt became barred by limitation of four years. While the original debt was barred by four years’ limitation, Goodbar & Co., appellant’s vendor, obtained a judgment jointly and severally against the Hightowers and fixed a judgment lien on the premises in suit. The High-towers, as seen in the evidence before set out, conveyed to Goodbar & Co. the said premises. After the Goodbar & Co. judgment lien had attached, W. M. Hightower undertook a renewal of the debt to W. F. Taylor Company, Limited. Subsequently W. F. Taylor Company, Limited, instituted suit upon the renewal note against the Hightowers and prayed for foreclosure of the vendor’s lien on the land purchased by the Hightowers from Yates. The subsequent renewal of the debt by the Hightowers to W. F. Taylor Company, Limited, the assignee of the note, would, as between them, operate as a renewal of the lien given to secure it originally, but, by reason of the specially pleaded and proven statute of limitations in bar of the assignee’s asserted lien, such renewal could not affect the rights of Goodbar & Co. which accrued prior to the renewal and during the time the original debt and the lien were barred by limitation. Cason v. Chambers, 62 Tex. 305. This rule of law being well established, and limitation being pleaded and successfully proven by appellant, it would follow that the appellant’s right in and to the particular land in suit would be superior to appellees by reason of the vendor’s lien. And the controlling question, and the only one remaining, is whether or not the defendants and the intervener, who appeared to defend title for his vendee, have shown superior right to recover the land in suit by reason of the transfer by Yates to intervener of the superior title by virtue of the deed of' Yates to the Hightowers.

It is not doubted, as contended for by appellees, that it is a general rule that, though the note be barred by limitation, the later transfer of the legal title to the as-signee of such note is valid, and the assignee takes title superior to that of the original vendee. White v. Cole, 87 Tex. 500, 29 S. W. 759; Jackson v. Bradshaw, 24 Tex. Civ. App. 30, 57 S. W. 879; Anderson v. Silliman, 92’ Tex. 560, 50 S. W. 576; Atteberry v. Burnett, 102 Tex. 118, 113 S. W. 526. But we-further understand that it is equally well settled that bringing suit on the debt and obtaining a decree of foreclosure of the vendor’s lien concludes any assertion of the-superior title remaining in the vendor while the purchase money is unpaid. Van Boeder v. Bobson, 20 Tex. 754; Bartley v. Harris, 70 Tex. 182, 7 S. W. 798; Gardener v. Griffith, 93 Tex. 358, 55 S. W. 314. See Trust Co. v. Beckley, 93 Tex. 267, 54 S. W. 1027. Hence the principle sought to'be applied .by-appel'lees could not obtain in the facts here. The evidence here conclusively establishes; that W. F. Taylor Company, Limited, the-assignee of the vendor’s lien note, brought suit on the debt and obtained a foreclosure of the vendor’s lien. And the evidence further shows that deeds passed between the W. F. Taylor Company, 'Limited, and the-Hightowers in consideration of the full settlement and satisfaction of the judgment, foreclosing the vendor’s lien on the land. It was after this suit was brought by appellant for the land in controversy that the-receiver of the W. F. Taylor Company, Limited, undertook to procure from Yates a transfer of the superior title remaining in-him as vendor while the purchase money is-unpaid. Under the authority above mentioned the obtaining a decree of foreclosure of the vendor’s lien by the assignee concluded any assertion of the superior title remaining in the vendor Yates while the purchase-money is unpaid and therefore appellees could legally predicate no claim on such-instrument against appellant.

The court erred in instructing a verdict against appellant and the judgment is therefore reversed and here rendered for appellant with all costs.


author: PLEASANTS, C. J.

text:
    GOTOSKEY v. GRAWUNDER.
    (Court of Civil Appeals of Texas. Galveston.
    May 28, 1913.)
    1. Appeal and Error (§ 742) — Assignments-ox Error — Sufficiency of Statement.
    Where neither the assignment -of error complaining of a certain action of the trial' court, nor the statement thereunder, stated that appellant made any objection thereto, or the nature of the objection, and where the statement did not mention any bill of exceptions and the-assignment’s reference to it did not give the page of the record upon which it could be found,, the statement was insufficient, so that the assignment cannot be considered.
    [Ed. Note. — For other cases, see Appeal and' Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]
    2. Trial (§ 312) — Recalling Jury — Additional Instructions.
    The action of the trial court in recalling the jury after they had received the charge and begun their deliberations, and, without the consent of the plaintiff, giving them additional instrnctions requested by defendant, was not error.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 744, 745; Dec. Dig. § 312.*]
    3. Adverse Possession (§ 86) — Cultivation and Use — Payment oe Taxes.
    Under the 10-year statute of limitations, it is not required that the claimant shall pay taxes on the land in order to perfect his title thereto, but it is only necessary that he have peaceable and adverse possession thereof, cultivating, using, or enjoying it for the 10 years prior to the institution of the suit.
    [Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. | 504; Dec. Dig. § 86.*]
    4. Appeal and Error (§ 1066) — Harmless Error — Instructions.
    . Where the evidence in trespass to try title raised the issue of plaintiff’s title by limitation of 10 years to at least a part of the land in controversy, the giving of an erroneous charge as to such limitation was affirmative and prejudicial error.
    ' [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*]
    6. Trial (§ 296) — Instructions—Contradictory Instructions.
    In trespass to try title, an erroneous instruction that, under the 10-year statute of limitations, the claimant must have paid taxes in order to have perfected his title, was not cured by later charges authorizing a finding for plaintiff on his claim of limitation to such part of the land as the evidence showed that he and those under whom he claimed had peaceable and adverse possession for 10 years before the filing of the suit, since they were contradictory, and gave the jury no guide upon the question of limitation.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dee. Dig. § 296.*]
    6. Adverse Possession (§ 80) — Estoppel^ Possession as Notice.
    The mere fact that the deed under which plaintiff in trespass to try title claimed did not locate or describe the line as claimed by him would not estop him from claiming to such line as against defendant who purchased when. he had possession up to such line; such possession being notice of his claim.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 463-467; Dec. Dig. § 80.*]
    Error to District. Court, Austin County; Frank S. Roberts, Judge.
    Trespass to try title by Joe Gotoskey against H. Grawunder. Judgment for defendant, and plaintiff brings error.
    Reversed and remanded.
    Johnson, Matthaei & Thompson, of Bellville, for plaintiff in error. C. G. Krueger, of Bell-ville, and J. M. Mathis, of Brenham, for defendant in error.

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

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

   PLEASANTS, C. J.

This is an action in the form of trespass to try title brought by Joe Gotoskey against the defendant in error, H., Grawunder, to recover the title and possession of a tract of 25 acres of land, a part of the W. C. White league in Austin county. In addition to the usual allegations in trespass to try title, the petition alleges that the east line of plaintiff’s land is the west line of a tract owned by the defendant, and' that the location of said division line between said tracts was fixed and established by an agreement between the vendors of plaintiff and defendant, and as so fixed and established had been recognized as the true line between said tracts for more than 12 years before this suit was filed, and that by agreement between plaintiff and defendant, and in order to settle a controversy between them as to the true location of said line, a survey of said line was made on December 10, 1910, which survey fixed the location of the line as same had been fixed and located by their predecessors in title, and that the line so fixed by agreement was plainly marked and located by both natural and artificial objects. Plaintiff further pleaded title by limitation of 10 years to all of the land described in his petition. The defendant answered by general denial and. plea of not guilty and by special plea, in which he avers, in substance, that he purchased his tract of land in good faith and for a valuable consideration, and without any notice that plaintiff claim-' ed the division line between said tracts was located at a place different from that which the course and distance called for in the deeds under which plaintiff and defendant acquired title, and that plaintiff had never prior to the filing of this suit asserted any claim that said division line was located otherwise than as described by course and distance in said deeds. He further pleads title by limitation to all of the land described in his answer under the five and ten year statutes of limitation. The trial in the court below with a jury resulted in a verdict and judgment in favor of the defendant. As developed by the evidence, only five acres of land is involved in the suit, and the only issues raised by the evidence are agreed boundary and limitation. Upon both of these issues the evidence is conflicting.

The first assignment of error complains of the action of the trial court in recalling the jury after they had received the charge of the court and retired and began their deliberation, and without the consent of plaintiff, giving them additional instructions requested by the defendant Neither the assignment nor the statement thereunder states that plaintiff made any objection to this action of the court. The assignment does refer to a bill of exceptions taken by plaintiff, and it may be inferred from this reference to a bill of exceptions that plaintiff objected to the proceeding, but there is nothing in the statement showing the nature of the objection, or that any objection was made. There is no mention of a bill of exceptions in the statement, and the reference to the bill in the assignment does not give the page of the record upon which it can be found. Such statement is clearly insufficient, and therefore the assignment is not entitled to consideration. ICostoryz v. Leary, 130 S. W. 456; Stevens v. Porter, 143 S. W. 264. If the assignment was considered, we are of opinion that the action of the court complained of was not error. The point was expressly decided by this court in the case of Cheek v. Nicholson, 146 S. W. 594, in which a writ of error was denied by the Supreme Court.

The second assignment complains of the following special charge given at the request of the defendant: “You are further charged that the evidence shows that the plaintiff, Gotoskey, purchased his tract of land prior to the time that the defendant purchased, and if you believe from the evidence that the plaintiff, Gotoskey, had his deed recorded in the deed records of Austin county, Tex., describing his land by metes and bounds, such description in said deed would be notice to the world to the extent of his claim, and that the defendant, Grawun-der, purchased with reference to the field notes in the plaintiff’s deed, then the plaintiff would be estopped from claiming beyond the course and distance of his deed and field notes, unless you find that he, the plaintiff, and those under whom he claims, has held it by limitation of ten years and paid all the taxes thereon regularly for 10 years, under the instructions hereinbefore given you by the court.” The error in this charge is apparent. Under the 10-year statute of limitation it is not required that the claimant shall pay taxes on the land in order to perfect his title thereto by limitation. All that is necessary to give title to the claimant is that he shall have held “peaceable and adverse possession thereof, cultivating, using or enjoying it” for 10 years prior to the institution of the suit. The evidence raised the issue of title in plaintiff by limitation of 10 years to at least a portion of the land in controversy, and the giving of this charge was affirmative error and prejudicial to plaintiff. This error was not cured by subsequent portions of the charge in which the jury were authorized to find for plaintiff on his claim of limitation to such portion of land as the evidence showed he and those under whom he claimed had held in peaceable and adverse possession for 10 years before the filing of the suit. The two charges are contradictory, and the jury could not have determined from the charge as a whole what law should guide them in reaching a verdict upon the question of limitation. Baker v. Ashe, 80 Tex. 357, 16 S. W. 36; Railway Co. v. Jazo, 25 S. W. 712.

There is another error in this charge which is pointed out by another assignment presented in the brief of plaintiff in error. The mere fact that the deed under which plaintiff claims does not locate or describe the line as now claimed by plaintiff would not estop plaintiff from claiming the agreed line against the defendant if at the time defendant purchased plaintiff had possession up to the line now claimed by him; such possession would have been notice to defendant of plaintiff’s claim.

The remaining assignments presented, in the brief do not point out any material error or present any question which we think requires discussion.

For the errors in the charge above pointed out, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


author: MeMEANS, J.

text:
    STANDARD PAINT & WALL PAPER CO. v. ROWAN.
    (Court of Civil Appeals of Texas. Galveston.
    May 24, 1913.)
    1. Trial (§ 403) — Findings and Conclusions — Delay in Filing — Effect.
    Findings of fact and conclusions of law not filed within the time required by law cannot be considered on appeal.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 954-956; Dec. Dig. § 403.*]
    2. Vendor and Purchaser (§ 289) — Lien-Foreclosure— Redemption.
    Where the deed reserving a vendor’s lien did not show that the lien notes stipulated for an attorney’s fee, a subsequent purchaser having no actual knowledge of such stipulation could redeem from a sale at foreclosure without paying the stipulated fees.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 820, 821; Dec. Dig. § 289.*]
    3. Judgment (§ 707) — Conclusiveness—Persons Not Parties.
    The holder of a deed of trust subsequent to a vendor’s lien who purchased the land on foreclosure of his deed of trust was not concluded by the judgment in a suit to foreclose the lien to which he was not a party.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. § 707.*]
    4. Vendor and Purchaser (§ 289) — Lien-Rights of Subsequent Purchasers.
    Where the vendee of land on which the vendor reserved a lien for the unpaid purchase money gave a deed of trust which was subsequently foreclosed, the purchaser acquired the vendee’s right to redeem from the lien by paying the indebtedness.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 820, 821; Dec. Dig. § 289.*]
    5. Vendor and Purchaser (§ 265*) — Lien-Rights of Subsequent Purchasers.
    Where the purchaser of land subject to a vendor’s lien was not made a party to a suit for its foreclosure, he could, in an action in trespass to try title brought against him by the purchaser at the foreclosure sale, have his equities protected upon tendering and paying into court the' purchase money due, although he made no tender previous to the suit, and although he was given an opportunity to pay the amount due on the judgment of foreclosure before the sale and execution of the deed.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. § 265.*]
    Appeal from District Court, Wharton County; Wells Thompson, Judge.
    Trespass to try title by S. F. Rowan against the Standard Paint & Wall Paper Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded, with directions.
    Ered R. Switzer, of Houston, for appellant.

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

   MeMEANS, J.

On March 3, 1908, Julia Adling and others sold and conveyed lots 4, 5, and 6 in block 27, in South El Campo, Wharton county, to E. A. Nelson, reserving the vendor’s lien thereon to secure the payment of several notes given by Nelson for the purchase money, one of said notes being for $300. On November 26, 1910, Julia Adling and others, having received payment of all the notes except the one for $300, and upon which a payment of $25 was made on September 17, 1910, sold and conveyed the note last mentioned together with the vendor’s lien by which it was secured to Mrs. M. E. Swedhin. June 18, 1910, Nelson executed and delivered to J. D. Switzer, as trustee for the use and benefit of the Standard Paint & Wall'Paper County, a deed of trust upon the lots in question as security for the payment of an indebtedness of $760.-35. Nelson having made default in the payment of his indebtedness to the Standard Paint & Wall Paper Company, the trustee in the deed of trust, acting upon the powers therein conferred upon him, duly made sale of the lots, and the same were purchased at the trustee’s sale by the Standard Paint & Wall Paper Company, subject, of course, to the superior rights of Mrs. Swedhin, the owner of the vendor’s lien. Afterwards Mrs. Swedhin brought suit against Nelson on the $300 note and to foreclose her vendor’s lien on the lots, and on November 29, 1911, she recovered a judgment for the principal, interest, and attorney’s fees on said note, amounting to $404.12, and foreclosure of the vendor’s lien on the lots. The Standard Paint & Paper Company was not made a party to this suit. An order of sale was issued on the judgment last mentioned, and on April 2, 1912, the lots were sold thereunder to S. F. Rowan, and a deed therefor duly executed to him by the sheriff. Thus standing, the Standard Paint & Wall Paper Company began negotiations for redeeming the lots by offering to pay the amount due as principal and interest upon the $300 note, or the principal and interest for which judgment was rendered in the suit to foreclose the vendor’s lien, but declined ‘to pay the attorney’s fees computed as a part of the judgment, basing its refusal to pay the attorney’s fees on the ground that no such fees were stipulated for in the deed from Adling and others to Nelson, and that it had no actual notice that such fees were provided for in the notes given by Nelson for the lots. Rowan refused to accept payment of the judgment, unless the entire amount, including the attorney’s fees, should be paid. We find as a fact that the deed from Adling and others, conveying the lots to Nelson did hot show that the notes given-to secure the payment of the purchase money provided in any way for the payment of attorney’s fees.

This suit was brought by S. F. Rowan, the appellee, against the Standard Paint & Wail Paper Company, in the ordinary form of trespass to try title to recover the lots in question, and to remove the cloud cast upon appellee’s title by the deed of Switzer, trustee, conveying said lots to appellant. Appellant answered by general denial and plea of not guilty, asserted its ownership of the lots by purchase at the trustee’s sale, but alleging the existence at the time of its purchase of the vendor’s lien to secure the payment of the balance due on the $300 note, and that the same was superior to its mortgage lien; and pleaded that it had- paid into the registry of the court the sum of $500 and tendered and offered to pay to the appellee out of said sum any sum of money which the court might find to be due on the judgment rendered on the vendor’s lien note. It prayed that the equities be adjusted between the parties, and that it be adjudged to have the title and possession of the lots. The case was tried before the court without a jury, and resulted in a judgment for plaintiff Rowan, from which the appellant Standard Paint & Wall Paper Company has appealed.

The court upon request of appellant made and filed findings of fact and conclusions of law, but such findings and conclusions were not filed within the time required by law, and will not therefore be considered. Melvin v. Deer Co., 126 S. W. 681. We are asked to reverse the judgment because the findings and conclusions were not filed within the proper time. A full statement of the" facts accompanies the record, and the facts appear to be without conflict. As the judgment must be reversed for other errors hereinafter pointed out, we will not pause to determine whether the court’s failure to file its findings and conclusions within the time prescribed by law was under the circumstances reversible error.

We will not discuss appellant’s assignments of error in detail. Granting that the vendor’s lien note, upon which judgment of foreclosure was entered, contained a provision for the payment of attorney’s fees in certain contingencies, and that the contingencies had happened, yet if the deed in which the lien was reserved did not show that the stipulation for attorney’s fees was contained in the note appellant would not be charged with constructive notice thereof, and if then it had no actual notice of such stipulation, it would not be required, as a condition precedent to his right to redeem, to pay or offer, to pay the amount so stipulated to be paid as attorney’s fees. Dalton v. Rainey, 75 Tex. 516, 13 S. W. 34; Powers v. Smith, 29 S. W. 416.

It follows, therefore, that if appellant had no such notice, and that it made tender to appellee of an amount sufficient to pay off the principal and interest of the vendor’s lien note, or of the judgment rendered thereon, it was entitled to a judgment for the lots upon his paying to appellee or into the registry of the court the amount of the principal and interest of the note. It appears that appellant paid into the registry of the court the sum of $500, and tendered the same or so much thereof as the court should find to be due in payment of the judgment in the proceedings to foreclose the vendor’s lien, which tender appellee declined to accept. It appears from the recitals in the judgment that the court held that inasmuch as no previous tender had been made by appellant, and that as it had been offered an opportunity to pay the amount due on said judgment before the sale of the land thereunder and the execution of the deed to ap-pellee, the tender when made in this case came too late and therefore appellee was entitled to a judgment for the lots, and appellant was not entitled to redeem.

As before shown, the appellant, a junior incumbrancer, was not a party to the suit to foreclose the vendor’s lien, and he was not therefore concluded by the judgment there rendered. McDonald v. Miller, 90 Tex. 309, 39 S. W. 89.

Nelson’s purchase of the land subject to the vendor’s lien carried with it the right to pay to the holder of the note the amount with which the land was charged, and therby perfect his title. When he gave to Switzer a deed of trust thereon to secure to appellant the payment of his indebtedness to it, and when the trust deed was foreclosed and the land purchased under such foreclosure by appellant, there passed to it the same right to redeem that Nelson previously had.

This suit having been brought by ap-pellee to recover the lots, appellant had the right in this suit to plead his defenses and make or tender payment of the purchase money. Pierce v. Moreman, 84 Tex. 601, 20 S. W. 821. This he did, and asking equity he proceeded to do equity by offering under appropriate allegations to pay the purchase money and by depositing in the registry of the court a sum sufficient for that purpose. Under such circumstances, his equities can ⅜⅛11 be enforced. Ufford v. Wells, 52 Tex. 620. We think, therefore, that the court erred in holding that appellant had lost its right of redemption, and for this error the judgment must be reversed and the cause remanded with instructions to the district court to enter judgment for appellant for the land, after ascertaining the amount due for the purchase money, and that this sum when so ascertained be directed by the court to be paid out of the $500 deposited in the registry of the court by appellant, or, if said sum shall have been withdrawn by appellant, then that the judgment shall require the appellant to pay off and discharge' the purchase money within a reasonable time, such time to be stated in the judgment, and further provide in the judgment that, if appellant shall fail to pay said amount within the time allowed, its right to redeem shall be forever barred, in which ease the appellee shall be quieted in the title and possession of said lots.

Reversed and remanded, with instructions.


author: McMEANS, J.

text:
    WILLIAMS et al. v. RANDALL et al.
    (Court of Civil Appeals of Texas. Galveston.
    April 7, 1913.
    On Rehearing, May 17, 1913.
    Appellee’s Motion for Rehearing Denied May 8, 1913.
    1. Adverse Possession (§ 43) — Continuity op Possession — Tacking Successive Possessions.
    After the death of two brothers, each of whom owned an undivided half interest in a tract of land, the widow and two daughters of one of them took possession of the property, and the widow repudiated the claim of the heirs of the other brother. After five or six years she moved off from' the land, leaving it in the possession of her daughters. Held that, in the absence of evidence showing that the daughters were holding for their mother or under a claim derived from her, the adverse possession required by the 10-year statute of limitations was broken by the removal of the mother.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §! 213-224; Dec. Dig. § 43.]
    2. Tenancy in Common (§ 15) — Adverse Possession.
    Since th.e widow of one of two brothers, tenants in common of land, who repudiated the interest of her brother-in-law’s heirs, was herself a tenant in common with them, her repudiation did not inure to the benefit of her daughters, who were also tenants in common, in the absence of an agreement by the daughters authorizing the mother to take possession for their benefit.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 42-52; Dec. ■ Dig. § 15.]
    3. Witnesses (§ 150) — Transactions with Deceased Ancestor — Interest oe Party.
    Where daughters had introduced testimony to show that their mother had repudiated the interest of her brother-in-law’s heirs in a tract of land, the heirs had a right to testify, after the death of the mother, to letters and conversations with the mother showing that she did not repudiate, since the daughters did not claim the land as the heirs or legal representatives of their mother, and therefore such evidence did not concern a transaction with a deceased ancestor.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 560, 653-657; Dec. Dig, §. 150.]
    On Rehearing.
    4. Appeal and Error (§ 1175) — Reversal-Rendering Final Judgment — Partition.
    In a suit for partition, where the defendants resisted the plaintiffs’ claim on the ground of the 10-year statute of limitations, and the record showed no other claim of title and that the claim of limitations was insufficient, and did not indicate that the defendants bad been prevented from making their strongest case, on reversal of an erroneous judgment for the defendants, judgment will be entered for the plaintiffs.
    [Ed. Note. — For .other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dee. Dig. § 1175.]
    Appeal from District Court, Harris County'; Norman G. Kittrell, Judge.'
    Suit for partition by Emma Williams and another against Julia Randall and others. Judgment in favor of defendants, and plaintiffs appeal.
    Reversed, and judgment ordered for plaintiffs.
    A. C. Van Velzer and Fred R. Switzer, both of Houston, for appellants.-

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

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

   McMEANS, J.

This is a suit for partition of a tract of land containing 245 acres, situated in Harris and Montgomery counties, brought by appellants Emma Williams and Elijah Beckton, who claimed an undivided one-half interest therein, against appellees Julia Randall, William Jefferson Turner, and Jesse Turner, who, the plaintiffs alleged, were the owners of the other half undivided interest. Appellees answered, denying that the appellants owned any interest in the land, claiming the entire tract for themselves, and set up that they claimed the same under their mother Fannie Irwin, nSe Simmons, and that their said mother had acquired the title under the statute of limitation of 10 years. In reply to appellees’ plea of limitation the appellant Elijah Beck-ton pleaded disability of minority. The case was tried before a jury, and resulted in a verdict and judgment for appellant Elijah Beckton for one-fourth of the land, and in favor of appellees against-appellant Emma Williams for the remaining three-fourths.

The land in question was purchased and owned by three brothers, Jeff Simmons, William Simmons, and Isaac Beckton, each owning one-third undivided interest. William Simmons died without issue, and his one-third was inherited by and vested in his brothers, Jeff Simmons and Isaac Beckton, one-half to each. Isaac Beckton died and his half of the whole tract descended to and vested in his two children, Emma Williams and Elijah Beckton, the appellants. Jeff Simmons and his wife, Fannie Simmons, died, and the half interest of Jeff Simmons descended to and vested in their two daughters, Julia Randall and Norvella Turner, and the latter died and her interest descended to her two children, William Jefferson Turner and Jesse Turner. Thus the appellants Emma Williams and Elijah Beckton owned one-fourth each, the appellee Julia Randall one-fourth, and William Jefferson Turner and Jesse Turner one-fourth, or one-eighth each. It appears that Jeff Simmons lived on the land until his death in 1894, but that Emma Williams and Elijah Beckton lived elsewhere. The testimony warrants the conclusion that in 1895 Fannie Simmons, the widow of Jeff' Simmons, who with her two daughters, Julia Randall and Norvella Turner, continued to live on the land after her husband’s death repudiated the claim and title of Emma Williams and Elijah Beckton, and set up a claim thereto in her own right. After this she continued to live on the land; cultivating, using, and enjoying the same, until about the year 1900, when she moved away and never returned. She died in 1907, and this suit was brought the same year, but after her death. When Fannie Simmons moved off of the land, her two daughters, Julia Randall and Norvella Turner, remained in possession, and continued to use and occupy the same up to the time the suit was filed. There was no testimony that they or either of them held possession for their mother, but the evidence indicates that they held such title as they had as heirs of their father, each in her own right; and, if they or either of them ever repudiated the title and interest of Emma Williams and Elijah Beckton, such repudiation was not pleaded. The testimony fails to disclose what title, other than by limitation, Fannie Simmons claimed.

The court correctly instructed the jury under what circumstances one tenant in common might claim title by limitation against the other tenants in common, and then charged the jury, in effect, that if they should find that Fannie Simmons made a distinct denial and repudiation of the interest of Emma Williams, and that thereafter the said Fannie Simmons, and Julia Randall after her death, remained in peaceable and adverse possession of said'land, using, cultivating, and enjoying the same for more than 10 years next after such repudiation, and before the filing of the suit, to find for defendant. We think that the giving of this charge was error in view of the proof that Fannie Simmons only held adverse possession of the land for some five or six years after the repudiation of appellants’ interest, and in the absence of proof that Julia Randall, in remaining in such possession after her mother left, was holding the same for her mother or in privity with her. The mere fact that she remained in possession was not sufficient to show that the adverse possession begun by Fannie Simmons was not broken* by her abandonment of the land, in the absence of evidence that she was holding in privity with or under a claim derived from her. Brownson v. Scanlan, 59 Tex. 228; Rushing v. Lanier, 132 S. W. 528; Blum v. Rogers, 11 Tex. Civ. App. 184, 32 S. W. 713.

Again, if Fannie Simmons was one of the tenants in common of the land, and for herself repudiated the interest of Emma Williams and Elijah Beckton, as the evidence indicates she did, this repudiation did not inure to the benefit of Julia Randall and the heirs of Norvella Turner, who were also tenants'in "common,'in the absence of evidence of an agreement or understanding between them authorizing Fannie Simmons to take and hold possession for their benefit, and, even if there had been, it seems that Julia Randall and the heirs of Norvella: Turner could not avail themselves of their mother’s possession under it for the purpose of acquiring title under the statute of limitation. Frey v. Myers, 113 S. W. 592. The defendants’ plea of limitation of 10 years was defective, in that it asserted that the defendants held adverse possession for 10 years next before • plaintiffs’ cause of action accrued, instead of after. However, there was no exception urged against the plea. We assume that if, upon another trial, the defendants rely upon this defense, a proper plea will be filed embracing the essential requisites of article 5675, Revised Statutes, and will not pause now to determine whether the plea was sufficient to let in proof of title by limitation.

On the trial the plaintiffs offered in evidence the testimony of Emma Williams, Alee Williams, and Elijah Beckton to the effect that said witnesses had never heard the defendants or Fannie Simmons dispute that the witnesses had one-half interest in the land, that it was understood by Fannie Simmons and the defendants that each set of heirs owned a half interest, and that in 1900 Fannie Simmons wrote a letter to Emma Williams, asking them to come to the place and divide the land.; that at the time they went to visit the land Fannie Simmons did not, nor did any of the defendants, claim all the land, but only contended for all the improvements. This testimony was objected to on .the ground that the “evidence concerned a transaction with a deceased ancestor,” and the objection was sustained. We think this was error. The defendants had introduced testimony to show that Fannie Simmons had repudiated any interest of plaintiffs in the land in which they all were tenants in common. The testimony offered tended to prove that there had been no such repudiation. The defendants did not claim as the heirs or legal representatives of Fannie Simmons; and, as said in Wootters v. Hale, 83 Tex. 564, 19 S W. 134, “the exceptions mentioned in the statute will not be extended by implication to a class of persons not named, although the reason for embracing them was equally as strong as those which existed for including the persons expressly designated.” Newton v. Newton, 77 Tex. 510, 14 S. W. 157; Ivy v. Ivy, 128 S. W. 682; and authorities cited.

We have not discussed appellants’ assignments of error in detail, but have passed upon all of them, and have sustained those which we think point out material error. All others are overruled.

The judgment of the court below in favor of appellees Julia Randall and William Jefferson Turner and Jesse Turner for one-half of the land, and in favor of Elijah Beckton for one-fourth of the land, will be affirmed, and so much of the judgment as is against Emma Williams for the one-fourth of the land claimed by her is reversed, and the cause remanded for further proceedings in accordance with this opinion.

Affirmed in part.

Reversed and remanded in part.

On Motion for Rehearing.

Appellant Emma Williams in her motion for rehearing insists that this court in reversing the judgment rendered against her in the district court should have here ren-' dered judgment in her favor for one-fourth of the land in controversy instead of remanding the cause as was done. Her contention is that the appellees did not claim nor did they attempt to establish by proof any title to the one-fourth interest owned by her except the alleged title under the statute of limitations of 10 years, and that as the attempted claim by limitation was. insufficient because it was shown the possession and occupancy by Fannie Simmons did not continue for a sufficient period to mature the title in her, and that when she abandoned the land that such possession and occupancy were not continued by any person or persons under or in privity with her, and that there is no indication from the record that the appellees were prevented from making out as strong a case as they were able:

We think appellant’s contention is sound, and that the motion should be granted. Standard Paint Co. v. San Antonio, etc., Co., 136 S. W. 1151; Davis v. Joiner, 140 S. W. 252; Maverick v. Routh, 7 Tex. Civ. App. 669, 26 S. W. 1010; Trezevant v. Powell, 130 S. W. 235. It is therefore ordered that the judgment of the court below in favor of Julia Randall and William Jefferson Turner and Jesse Turner for an undivided one-half of the land and in favor of Elijah Beckton for an undivided one-fourth of the land be affirmed, and that s.o much of the judgment as is against Emma Williams for one-fourth of the land be reversed and judgment is here rendered in her favor for an undivided one-fourth of said land; and the trial court is hereby directed to proceed to partition' the land among the several owners in accordance with this opinion and the provisions of the law governing partition of land.