author: BROOKE, J.

text:
    HOUSTON OIL CO. OF TEXAS v. REESE-CORRIHER LUMBER CO. et al.

    (No. 47.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 16, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Pleading <©=>236 — Amendment — Discretion of Court.
    The right to file an amended petition is not an absolute right, but is within the discretion of the trial court.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 601, 605; Dec. Dig. <^»236.]
    2. Trespass to Try Title <®=>6 — Evidence-Title Provable.
    Under a petition in trespass to try title, any title except title by limitation can be shown, and facts supporting any character of title may be introduced in evidence, unless they rest upon limitation alone.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dee. Dig. <&=6.]
    3. Appeal and Error <§=>1041 — Harmless Error — Amendment of Pleadings.
    The original petition in an action was in the ordinary form of a petition in trespass to try title and for damages to timber cut and converted. On the day the ease was set for trial, plaintiff presented an amended petition, alleging that defendants were estopped, by reason of certain alleged facts, to set up title against plaintiff, and offering to do equity. The court refused to permit the filing of this amended petition, but plaintiff on the trial was permitted in open court to make the same offer to do equity made in the amended petition, and to introduce all of the evidence claimed to show an estoppel. Held, that it did not appear that plaintiff suffered any injury from its failure to file its amended petition, or from the absence of any tender in the original petition.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. <§=> 1041.]
    4. Public Lands <§=>172 — Forfeiture of Purchase — Effect.
    Where a purchase of land from the state was forfeited by the Commissioner of the General Land Office for nonpayment of interest on the purchase price, the title acquired by the purchase was extinguished, and the land was restored to the public domain of the state.'
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 523-543; Dee. Dig. <¿¿>172.]
    5. Estoppel <§=>49 — Assets and Rights Subsequently Acquired.
    T. purchased land from the state as an actual settler in 1896, and in 1901 conveyed to plaintiff’s grantors by warranty deed in consideration of a cash payment and the assumption by plaintiff’s grantors of the obligation to the state for the unpaid purchase money and interest thereon. The interest was not paid, and the purchase was forfeited for nonpayment of interest, and the land was again placed on the market for sale, reappraised, and again sold to T. as an actual settler. T. Subsequently completed his purchase and acquired a patent. Held, that he was qualified to purchase the land from the state upon its resale, and the title so acquired did not pass to plaintiff by estoppel, as there was no breach of T.’s covenant of warranty, and plaintiff’s title was lost through its own neglect and default, especially as title could not pass by estoppel at the date of the second purchase, since plaintiff, a corporation, could not be an actual settler and could not comply with the conditions upon which title could be obtained, while to hold that title passed when T. completed his 3 years’ occupancy would require a holding that plaintiff had a right to require T. to live on the land for 3 years and spend his money in making permanent and valuablé improvements for its benefit.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 119; Dec. Dig. <¿¿>49.]
    6.Public Lands @=>172 — Forfeiture of Purchase — Right of Reinstatement.
    Where land purchased from the state was ■forfeited for nonpayment of interest, and the right of those claiming under the purchaser to reinstate the purchase had never been exercised, the naked right to reinstate did not amount to a title.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 523-543; Dec. Dig. <^=172J
    Appeal from District Court, Orange County ; A. E. Davis, Judge. .
    Action by the Houston Oil Company of Texas against the Reese-Corriher Lumber Company and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Parker & Kennerly and J. J. Lee, all of Houston, for appellant. Smith, Crawford & Sonfield, Minor & Minor, all of Beaumont, and Andrews, Streetman, Burns & Logue, of Houston, for appellees.

      Writ of error pending in Supreme Court.

   BROOKE, J.

This is an action of trespass to try title and for damages for timber cut from the land in controversy, brought in the district court of Orange county, Tex., on the 11th day of August, 1913, by appellant against appellees. The trial in the court below resulted in the court peremptorily instructing the jury to return a verdict against, and the judgment of the court being rendered against, appellant on the issue of damages for timber cut, as well as for the land in controversy.

The tract of land in controversy is T. & N. O. section 38, in Orange county, Tex., which formerly belonged to the public school fund. On April 9, 1896, it was awarded to one C. W. Theriot, as an actual settler, as dry-grazing land at $1 per acre, one-fortieth of the purchase money being paid by Theriot, who executed to the state of Texas his obligation of payment of the balance of the purchase money, with interest thereon, as provided by law. On January 3, 1901, Theriot conveyed said tract of land to George W. Carroll by general warranty deed, the consideration clause of which was as follows:

“For and in consideration of the -sum of 81,200 to me in hand paid by George W. Carroll,the receipt of which is hereby acknowledged, and the further consideration of the assumption by tho grantee herein of all sums of money due and to become due the state of Texas by me as purchase money or interest thereon for land hereinafter described.”

On the same day, January 3, 1901, Theriot conveyed the tract of land to Beaumont Lumber Company, by general warranty deed, the consideration clause of which reads as follows :

“$1,200 cash in hand paid, the receipt whereof is hereby acknowledged and the further consideration of the assumption by the grantee herein of all unpaid obligations due by the grantor herein to the state of Texas, on account of the lands herein conveyed.”

The deed from Theriot to Carroll was recorded on the day following this, but the deed from Theriot to Beaumont Lumber Company has never been recorded. On April 22, 1915, a few days before the trial of this case, Carroll conveyed the tract of land to the Houston Oil Company of Texas, and that deed contains the following recital with reference to Theriot’s deed of January 3, 1901, to wit:

“Said conveyance or instrument having been executed by the said Theriot to me for the benefit of Beaumont Lumber Company, I, the said George W. Carroll, being trustee of said Beaumont Lumber Company,” etc.

On June 3,1902, Theriot’s purchase of said land from the state of Texas was forfeited for nonpayment of interest due November 1, 1901, and the land was thereafter, on or about the 10th day of June, 1902, again placed on the market for sale, reappraised at $3 per acre, and on November 17, 1902, the same was sold and awarded to C. W. Theriot as an actual settler. On January 26, 1906, the tract of land in controversy was patented by the state of Texas to C. W. Theriot, under and by virtue of purchase made by him on November 17, 1902, the patent reciting that the land had been purchased and fully paid for in accordance with the School Land Act of April 19, 1901.

Houston Oil Company of Texas claims under a deed from Beaumont Lumber Company of date January 3, 1902, executed by its vice president, George W. Carroll and under a deed from George W. Carroll of date April 22, 1915. In other words, the Houston Oil Company of Texas claims title under the first sale by the state of Texas to C. W. Theriot. The appellee John N. Gilbert claims title to the land in controversy under a deed to him from C. W. Theriot, dated September 21, 1906, conveying the east half thereof, and under a deed to him and W. A. Ward dated January 21, 1906, conveying the west half thereof, said west half thereof having been conveyed to W. A. Ward by C. W. Theriot on January 22, 1906. The appellee R. W. Wier Lumber Company claims the merchantable pine timber on the land under deed from John N. Gilbert of date August 28, 1907, and appellee Reese-Corriher (Lumber Company claims a portion of the merchantable pine timber -upon said land under deed from R. W. Wier Lumber Company, of date April 3, 1913, the Gilbert title to the timber being the same as his title to the land, except by deed dated January 22, 1906, Theriot conveyed the pine timber on the east half of the land to W. A. Ward, who on January 23, 1906, conveyed said timber to John N. Gilbert. In other words, the appellees all claim under the second sale by the state of Texas to Theriot, and the patent issued by the state of Texas on said second sale.

Appellant’s assignments of error are six in number. The first two relate to the rulings of the trial court in connection with the effort of appellant to file an amended petition on the morning when the case was set for trial, it being claimed that it was error for the trial court to refuse to permit the amended pleading to be filed; and, second, that it was error for the court to refuse to postpone or continue the cause after refusing to permit the amendment to be filed, the remaining assignments of error being 3 to 6, inclusive, complaining of the action of the trial court in peremptorily instructing the jury to return their verdict in favor of appellees.

First, on the right of appellant to file amendment to its petition on the day the case was set for trial. The plaintiff’s original petition in this case was the ordinary form of petition in action of trespass to try title, and for damages for timber alleged to be cut and converted by the defendants herein, or some of them. The amended petition, which the court refused leave to file, contained additional allegations, in substance, as follows: (a) That the appellee Gilbert was estopped by reason of certain alleged facts to set up or claim title against appellant; (b) that all of the appellees, by reason of certain alleged facts, were estopped to set up title against appellant; (c) an offer on appellant’s part to do equity.

The right to file an amended petition is not an absolute right, but is within the discretion of the trial court. In the case of Lipscomb v. Perry, 100 Tex. 122, 96 S. W. 1069, Justice Williams uses the following language:

“When the court acted, it was in the exercise of its sound discretion, and the presumption is that its action was based upon a due consideration of all of the facts which should affect it. The party complaining cannot say that any absolute right of his was violated, and, therefore, in order to successfully attack the ruling, he must show an abuse of the discretion and an injury to him. The burden is not upon the opposite party to show affirmatively that the ruling was correct, because he would have been surprised by the pleading. The rule laid down, in the decision referred to is not that the right of amendment exists subject to the right of the opposite party to show that the proposed pleading would surprise Mm, but that in such situation the matter is subject to the sound discretion of the court, the exercise of which may be based, not only on the fact that the pleading on its face appears to be calculated to surprise, but also on the fact that it may delay the trial and impede the speedy and orderly administration of justice and the dispatch of the business of the court.”

Judge Fly of the San Antonio Court, in the case of S. A. & A. P. Ry. Co. v. Miller, 137 S. W. 1194, said:

“Appellant could not quietly sit by for six months, and then, after the case had been called for trial and announcement of ready made by the plaintiff and a codefendant, seek to file a pleading that would not only interpolate new issues, but probably cause a continuance and seriously interfere with the business of the court. Matters relating to the amendment of pleadings during a trial must be largely intrusted to the discretion of the trial judge, and, unless there is a palpable abuse of such discretion, appellate courts will not interfere with rulings in connection therewith. Bailey v. Fly, 97 Tex. 425 [79 S. W. 299].

Nowhere in the plaintiff’s brief is even an effort made to show any injury resulting to it from its inability to file its amended petition. Under a petition in trespass to try title, any title except the title by limitation can be shown. The party may introduce in evidence facts which would support any character of title he may claim to have acquired he may see fit to assert excepting they rest upon limitation alone. Meade v. Logan, 110 S. W. 188.

Upon trial of this cause appellant was permitted to prove the connection of John N. Gilbert with the Beaumont Lumber Company, and all facts and circumstances surrounding the execution of the deed by Beaumont Lumber Company to Houston Oil Company of Texas. Appellant was also permitted, upon the trial of the case, in open court, to make the same offer to do equity as it made in the amended petition. It also offered the entire chain of title out of C. W. Theriot upon each of the sales made by the state of Texas to him; and, so far as we can ascertain from the record before us, there was before the court upon the trial of this cause all the evidence the appellant claimed had the effect of vesting in it title by estoppel as against Theriot and the appellees claiming under his second purchase. As said above, from the record we cannot say that the appellant was not permitted to prove anything which it could or would have proven had the amendment been permitted, and it is not shown that there was any matter set up in the amendment which it could and would have proven that would have necessitated a different judgment. It is not even claimed that the additional matters pleaded were not proper to be proven under the original petition, and as a matter of fact, as said above, the appellant was permitted to prove in the court below, so far as it could prove the thing, all facts set up in the amendment by way of additional allegations; also was permitted to make the offer upon the trial to do equity.

A careful consideration of the record impresses this court with the fact that no showing has been made that, by reason of the failure of the appellant to file his amended petition, or by reason of the absence of any tender in the original petition, or its effectiveness upon the trial of the cause resulted in any 'injury of any character to appellant.

The second assignment complains of the refusal of the court to postpone or continue the cause after refusing leave to file the amended petition. That postponement was claimed upon the ground alone that the court refused to permit the amended petition to be filed. Therefore, appellant’s first and second assignments of error are overruled.

By the appellant’s third assignment of error, error is based upon the court instructing the jury to return a verdict in favor of defendants, and in rendering a judgment against plaintiff, because it is claimed that the evidence in this case shows that C. W. Theriot in 1901 conveyed by general warranty deed to plaintiff’s vendors the land in controversy, prior to the issuance of the patent to C. W. Theriot in 1900, and that defendants had full notice and knowledge of such conveyances to plaintiff’s vendors prior to the conveyances by G. W. Theriot to them in 1905 and 1906, and it is claimed that the defendants, and all of them, took only such title or claim as the said Theriot had at the date of the deeds from him to defendants and their vendors, and that, as all title and right of C. W. Theriot to the land in controversy had, prior to the deed from him to defendant, passed by virtue of said Theriot’s warranty into the plaintiff, the defendants, nor any of them, have any title or claim against the plaintiff for any part of the land in controversy. The first purchase made by C. W. Theriot from the state of Texas was forfeited for nonpayment of interest, and the land thereby reverted to the public school fund, said first purchase from the state being made on March 24, 1896. He conveyed to Carroll and Beaumont Lumber Company on January 3, 1901. J. T. Robison, Commissioner of the General Land Office, testified by deposition as follows:

“It [the sale made in 1896 to Theriot] was forfeited June 3, 1902 for nonpayment of interest. I have attached to the preceding interrogatory certain copies of records, showing the forfeiture of the sale of said land, and I further attach hereto a certified copy of that part of the delinquent list of 1902, furnished this department by the state treasurer, which pertained to said section 38, which list contained the lands upon which the interest had not been paid, and were reported to this department by the state treasurer, and marked the same ‘Exhibit O’ for identification, and also a certified copy of notice of forfeiture of said land furnished the county clerk of Orange county on said date, June 3, 1902, marked ‘Exhibit P’ for identification.”

There was also offered in evidence classification and appraisement, showing the classification and appraisement of the land in controversy, dry-grazing land, at $1 per acre; also the application and obligation of C. W. Theriot to purchase said land as an actual settler on 40 years’ time, -at 3 per cent, interest, filed May 24, 1896; also the notation on said application and obligation, showing the award of said land to Theriot on April 9, 1896. The indorsement upon the obligation also was introduced, being as follows:

“Land forfeited for nonpayment of interest, June 3, 1902.
“Chas. Rogan, Commissioner G. L. O.”

The account of the state of Texas with C. W. Theriot, showing the last payment of interest on November 1, 1900, and indorsement thereon “forfeited for nonpayment of interest due November 1,1901”; also letter from Commissioner of the General Land Office to the county clerk of Orange county, of date June 10, 1902, advising tire clerk of the forfeiture of said purchase on June 3,1902, for nonpayment of interest and indorsement on the file wrappers were also introduced, containing papers relating to said sale to Theriot, reading as follows:

“Land forfeited for nonpayment of interest June 3,1902.
“Chas. Rogan,
“Commissioner General Land Office.”

In addition to the above testimony, no question is made in this record as to the legality of the forfeiture of Theriot’s first purchase.

The next question is what effect the forfeiture had. In the case of Lawless v. Wright, 39 Tex. Civ. App. 28, 86 S. W. 1040, it is said:

“It is the settled law that the state of Texas has the power and authority to forfeit, through a declaration of the Land Commissioner, a sale of its lands, for the nonpayment by the vendee of the interest on the purchase money. Fristoe v. Blum, 92 Tex. 76, 45 S. W. 998; Standifer v. Wilson, 93 Tex. 232, 54 S. W. 898; Brightman v. Comanche County, 94 Tex. 599, 63 S. W. 857. Such being the law, the act of the Land Commissioner in forfeiting the purchase of the land by Faneher had the effect of restoring such land to the public domain of the state. When the declaration of forfeiture was made, appellee had been in possession of the land for only seven years, and, of course., had not perfected his title by 10 years’ limitation. Statutes of limitation not applying to the sovereign, the moment the forfeiture of Fancher’s title went into effect the statute of limitation as to the land was interrupted. After the forfeiture the land assumed the same status that it occupied before the sale to Faneher, and the state clearly had the right, which it exercised, of placing the land on the market again and selling it. It is provided in article 4218l, Sayles’ Ann. Civ. St. 1897, that when a forfeiture takes place the land ‘shall revert to the particular fund to which it originally belonged, and be resold under the provisions of this chapter or any future law.’ It is true that in article 4218f it is provided that: ‘In any case where lands have been forfeited to the state for the nonpayment of interest, the purchasers or their vendees may have their claims reinstated on their written request, by paying into the treasury the full amount of interest due on such claim up to the date of reinstatement ; provided that no rights of third persons may have intervened.’ But that provision in no way weakens or affects the proposition that a forfeiture restores the land to the public domain and reinvests the title in the state. In this case, after the forfeiture, the state exercised its right to again sell the land; and, had it not been for the voluntary relinquishment of bis title by D. Lawless, the purchase made by Faneher would never have been reinstated. The forfeiture destroyed his claim to the land completely, and the privilege given to him to have it restored depended on certain payments, and on the rights of others not intervening. That privilege did not limit the rights of the state in the land, no more than if it had been provided that the original purchaser should have the right to puz'chase again if no'one else had purchased, and that credit would be given for the amounts already paid. In other words, the provision as to reinstatement did not have the effect of continuing the title, whether legal or equitable, in the purchaser, after the forfeiture ; and, although he may have fully intended to have his claim reinstated at some future time, he could not, until that reinstatement was made, have maintained a suit for possession. He did not have any possession, or right of possession, to be invaded by appellee after the forfeiture, and limitation could ntit run against him.”

We are of opinion that the above decision disposes of the question as to the status of the title claimed by appellant under the first sale to Theriot.

The next proposition for us to consider is whether or not the title which Theriot acquired in his second purchase passed by estoppel to the appellant. The appellees, in an able brief and argument, take the position that an after-acquired title—

“never passes under a covenant of general warranty where there has been 'no breach of covenant, and that the ejection of the grantee by reason of an incumbrance resting on the land at the time of its conveyance does not constitute a breach of covenant of warranty where the grantee, knowing of the existence of the incum-brance at the time of the execution of the deed, has agreed to discharge the same.”

It is evident from the record that the Beaumont Lumber Company and Carroll, by the wording of the deed from Theriot to them, assumed Theriot’s obligations to the state of Texas, including the annual payment of interest, and it is also evident that the title conveyed to them by Theriot was lost by reason of their failure and the failure of their grantee to pay the annual interest. There is no breach, so far as this record shows, of Theriot’s covenant of warranty, and the question is whether the title which he afterwards acquired from the state of Texas passed to appellant by estoppel. Appellees assert that a covenant of general warranty contained in a. deed will not be construed as an undertaking by the vendor to be accountable for acts or omissions of the vendees, after the date of the deed, in consequence of which the vendee may have parted with the title to the property, and that if the vendee has in such manner parted with the title to the property, neither the vendor nor those claiming under him thereafter will be estopped to set up, as against such vendee an after-acquired title. They further assert that an after-acquired title does not pass by a covenant of warranty where the assertion of such title is not a' violation of the covenant, and that a covenant of general warranty has relation to the state of the title at the date of the deed, and a title afterwards acquired by the grantor which was not in existence at the date of the deed, does not pass to the grantee by estop-pel ; also that an after-acquired title does not pass by estoppel where the assertion of that title is not inconsistent with the title conveyed by the deed containing the covenant, and they assert that the title acquired by Theriot at the second sale made by the state of Texas to him did not pass by estoppel to the Houston Oil Company of Texas, by reason of the covenant of warranty contained in the deeds to Carroll and the Beaumont Lumber Company, for the reason: (a) That the title conveyed by said deed failed, through the neglect and default of said grantor, Beaumont Lumber Company, and Houston Oil Company of Texas, and not through, the laches or default of Theriot; and (b) bfecause the loss of title conveyed by said deed did not constitute a breach of Theriot’s covenant; and (a) because the assertion of title acquired by Theriot in the second sale is in no respect-either a breach of covenant or inconsistent with the title conveyed by said deed.

There is great force in these counter propositions, and to the mind of the court they are conclusive. The doctrine of estoppel is an equitable one, and has never been applied where its application would result in injustice. So far as we have been able to ascertain, in cases where a grantor is not permitted to set up an after-acquired title, it is true only because to permit him to do so would permit him to deny a fact which, by his deed, he has affirmed. The title that Theriot conveyed to Carroll and the Beaumont Lumber Company was a' good title, but it was incumbered by Theriot’s obligation to the state of Texas. Carroll and the Beaumont Lumber Company assumed to discharge these obligations. There was no obligation remaining in Theriot to pay the interest in question. The obligation was not carried out, and the title was lost. There was no responsibility upon Theriot to meet obligations that had been assumed by his vendee. Theriot was not to blame for the loss of the title. We grant that the Houston Oil Company of Texas, or its tenants, had the right, after the forfeiture of this title, upon an application in writing to the General Land Office, to reinstate the purchase, by paying all amounts then due the state of Texas. This, however, was not done, and this record does not disclose that any effort had ever been made to reinstate the purchase. Practically 14 years have elapsed since the purchase was forfeited.

The record, however, does not show that under his first purchase, Theriot ever complied with the obligation of settlement which rested upon him. At any rate, the right to reinstate, if it in fact has existed, has never been availed of, and we do not believe that the naked right to reinstate amounts to title. Lawless v. Wright, supra. It seems to us apparent, therefore, that the Houston Oil Company of Texas had no title of any character under Theriot’s first purchase. When Theriot made tne second purchase of the land in question, he paid $3 per acre, and he purchased.on condition of settlement, it being required that he occupy the land for 3 consecutive years, and that he make permanent and valuable improvements thereon, at least worth $300. It was subject to sale only- to actual settlers, and a corporation cannot be an actual settler. No title could have passed by estoppel to the Houston Oil Company of Texas at the date of Theriot’s second purchase, as contended by appellees, for the obvious reason that the land had to be occupied for 3 consecutive years by an actual settler, and that these conditions could not be complied with by the Houston Oil Company of Texas. Theriot in fact had no title which he could convey the .Houston Oil Company of Texas before the three years’ occupancy was completed, and if he had no title which he could convey, it occurs to us that he had no title that could pass by estoppel.

The question then arises, Did the title pass when Theriot completed his 3 years’ occupancy? If so, then it must' be admitted that the Houston Oil Company of Texas had the right to require Theriot to live on the land 3 years for its benefit, and the right to require him to spend his money for its benefit, in making permanent and valuable improvements to the extent of $300.

There are a great many authorities which hold' in similar cases that a person situated as Theriot was as fully authorized to purchase the land as any other person. Snyder v. Snover, 56 N. J. Law, 20, 27 Atl. 1013, uses the following language:

It is held that “there is no legal principle which prevents a man who has conveyed a piece of land from another acquiring title to it in the same manner as other persons might. He may not deny that his deed conveyed a good title, but he may show that by subsequent acts the title or some interest in the land has passed back to him.”

We shall not go into a discussion of the various eases that have been submitted to us by parties to this case, but in the case of Lang v. Crothers, 21 Tex. Civ. App. 118, 51 S. W. 271, which was a case in which the title of the purchaser of school land had been forfeited for nonpayment of interest due the state, a tenant acquired the land by purchase from the state, the court says:

“ * * * But it seems to be as well settled that he can do either, without surrender of possession, where the landlord’s title has been legally extinguished or determined, so, that it no longer exists, and he has become the purchaser of the paramount title. Ryder v. Mansell, 66 Me. 170; Hardin v. Forsythe, 99 Ill. 320; Lancashire v. Mason, 75 N. C. 458; Presstman v. Silljacks, 52 Md. 656; St. John v. Quitzow, 72 Ill. 335; Higgins v. Turner, 61 Mo. 250; 2 Tayl. Landl. & Ten. (8th Ed.) pars. 629, 708. Here Lang’s title had been canceled and forfeited by the commissioner for nonpayment of the annual interest installments due on the purchase, which cancellation or rescission our Supreme Court has held may lawfully be made by the commissioner, though purchased under the act of 1883. Fristoe v. Blum [92 Tex. 76], 45 S. W. 998. This forfeiture or rescission took place in the year 1896, and,- when made by the commissioner, terminated and extinguished Lang’s title completely; and, the land being legally placed upon the market and Crothers being an actual settler thereon, he had the right to apply for the purchase thereof, the same as if he had never been a tenant of Lang, unless Lang had applied for reinstatement of the Coulson sale within the time required by law, which would have been within 90 days from the date it was again placed upon the market. He did not, by setting up. his title in defense of Lang’s suit, or by showing that Lang’s purchase had been forfeited, dispute the title of Lang under which he entered. The logic of his pléa and defense was: ‘True, Rang had title when I rented from him, but that title then hold by Lang had, by the neglect and default of Lang, reverted to the state, and I bought the state’s title, the paramount title, Lang’s title having been extinguished, so that when this suit was brought it no longer existed.’ ”

The rule laid down in Am. & Eng. Enc. of Law, vol. 8, p. 171, seems to be that where the title to land is lost by the foreclosure of an incumbrance assumed by the cove-nantee, the covenant is extinguished, and no recovery can be had upon the covenant of warranty, because of the extinguishment thereof in such manner. Other authorities place the rule upon the proposition that where the forfeiture is due to the laches or default of the vendee, the covenant of warranty is not breached, nor can a recovery be had where the loss results from such default. It is said by an eminent authority:

“Estoppel against estoppel commonly sets the matter at large, which is another limitation of the doctrine under consideration (estoppel by deed). And such a case occurs where the deed is encountered by another instrument of equally high rank, inconsistent with the same and made between the same parties. ‘In this case,’ said the court in Brown v. Staples, ‘Winthrop Allen could maintain no action upon the covenants of the deed made to him by the demandant for a breach occasioned by his being deprived of the land by virtue of the mortgage made by Elliott Staples to John Welles, for he had, by an obligation of as high, a nature, obliged himself to discharge that mortgage, and had thereby annulled the operation for such purpose of those covenants. It has been decided that a covenant of warranty would not include an incumbrance which the grantee had engaged to discharge.” Bigelow on Estoppel, page 892.

In the case of Smith v. Montes, 11 Tex. 24, the following language is used:

“I am aware of no principle of law which would prevent a vendor who, after title has passed, remains in the undisturbed and exclusive possession of the property, without recognition of the vendee’s rights, from claiming the benefit of the statute.”

The decision in Smith v. Montes was followed in the case of Harn v. Smith, 79 Tex. 314, 15 S. W. 242, 23 Am. St. Rep. 340, wherein it is said:

“But appellant says that defendant and her husband sold the land to Herring, under whom plaintiff claims, and warranted the title to him, and therefore she cannot claim title by possession against her and her husband’s warranty, but that the title so acquired (if it could be) would inure to the warrantee. We cannot agree to this. It had as well bo said that the vendor cannot disseise his vendee or acquire a title from him. He can acquire title from his vendee by limitation where the deed is executed. Rawl on Covenants, p. 398. The covenant of warranty will not defeat such title acquired after the deed. Such title is no breach of the covenant, which cannot be extended to cover laches of the vendee by which he loses the title conveyed to him. Stearns v. Hendersass [9 Cush.] 63 Mass. 497 [57 Am. Dec. 65].”

T. & P. v. Maynard, 51 S. W. 255; Thompson v. Wiesman, 98 Tex. 175; Dickey v. Forrester, 148 S. W. 1181.

We are not disposed to burden this record with a further citation of authorities, but cannot omit to cite the following language from Kelso v. Pratt, 26 Tex. 381:

“The covenant of warranty in the deed had reference to the state of the title at the date of the bond. It cannot be construed as an undertaking on the part of Pratt to be accountable for the acts or omissions of Kelso, after that date, by which he may have parted with the title. It was not the fault of Pratt that the land was sold to satisfy the judgment against Kelso for the purchase money for the land, which the latter had failed to pay. It was the fault of Kelso — the consequence of his failure to pay the purchase money. Pratt can no more be held responsible to the heirs * * * for the sale of the land by the sheriff to satisfy the judgment against Kelso than he could be for a sale of the land by Kelso himself.”

Also the language of Judge Brown, in the case of Foster v. Johnson, 89 Tex. 640, 36 S. W. 67:

“The tax sales at which Daggett bought were made for taxes accruing upon the land after he sold to Brown, and the purchase made by Dag-gett at such sale did not inure to the benefit of either Brown or Stone, for the reason that his warranty was not broken by the fact that the land was incumbered for such taxes.”

We believe the authorities above cited are decisive of the questions raised by the appellant in his assignments from the third to the sixth assignments of error, inclusive, save and except the proposition of appellees not being innocent purchasers for value, and without notice. As we understand this record, appellees did not claim in the court below, and do not claim in this court, that they purchased without notice of the claim of the Houston Oil Company of Texas, under the first sale from the state of Texas to Theriot. There is no such question of innocent purchaser, as we view the matter, involved in this case.

Therefore we are persuaded to believe that the Houston Oil 'Company of Texas has no title under the first sale made by the state of Texas to Theriot, for the reason that the title was extinguished by the forfeiture of the land for nonpayment of interest, and that the forfeiture was not affected by the right accorded by the statute to a purchaser, to reinstate a forfeited purchase upon written request, and upon the payment to the state of the amount due, because no application has been made to reinstate, the right has never been exercised to reinstate, and the forfeited title has never been revived.

We are of opinion, also, that the Houston Oil Company of Texas has no title under the second purchase by Theriot, for the reason that through its neglect and default the title conveyed to its grantors' by Theriot was lost. Theriot’s covenant of warranty was not breached. In addition, we may say that Theriot, in our judgment, was qualified to purchase the land from the state of Texas upon its resale, and the title so acquired did not pass to the Houston Oil Company of Texas by virtue of estoppel.

What we have said disposes completely of all of appellant’s assignments of error. We believe that-the court was correct in its judgment, and that the appellees, under the facts and the law, were entitled to recover.

The judgment of 'the lower court is, in all things, affirmed.
      cgEs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    HALBROOK et al. v. ORANGE ICE, LIGHT & WATER CO.
    (No. 2.)

    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 28, 1915.
    Rehearing Denied Dec. 16, 1915.)
    1. Master and Servant <@=>124^-Mastee’s Duty oe Inspection.
    The master is not relieved of the general duty he owes his servant to inspect the place of work to discover dangerous conditions unless by his contract of employment the servant is required to perform the duty of inspection himself, and such duty is one of the primary objects of the employment.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §jj 235-242; Dec. Dig. <®=> 124.]
    2. Master and Servant <©=>217 — Injury to Servant — Assumption of Risk — Duty of Inspection.
    Where the employé of an electric lighting company, one of whose duties, among others, was to take down and replace any unsafe poles, was killed by the breaking off and falling of a pole against which he had been warned and which he had climbed to adjust a wire, which pole, of white cedar, had been put in new some four years before, the light company was not liable for such employé’s death, since he had assumed the risk of injury as the duty of inspecting the pole rested on him.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. <©=> 217.]
    Appeal from District Court, Orange County ; A. E. Davis, Judge.
    Action by Alice Halbrook and others against the Orange Ice, Light & Water Company. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    O. R. Sholars, of Orange, and Smith, Crawford & Sonfield, of Beaumont, for appellants. Bisland & Bruce, of Orange, for appellee.

       Application for writ of error pending in Supreme Court.

   BROOKE, J.

Mrs. Alice Halbrook, for herself and as next friend of the minor children of herself and W. A. Halbrook, to wit, Mamie Sue Halbrook, Win. W. Halbrook, and Jack A. Halbrook, filed her original petition, on which the case went to trial, on October 8, 1913, alleging substantially that her husband and the father of said children entered the employ of the defendant, which was engaged in conducting an electric light and power system in the city of Orange, and while in the discharge of his duties, he, on the 10th day of July, 1914, ascended one or defendant’s poles supporting its wires, situated on Fourth street, in said city, and while on said pole the same, by reason of its age, rottenness, and defective condition, suddenly broke loose and fell to the ground, carrying with it the said Halbrook, and fell upon the said Halbrook, crushing, wounding, and bruising him in various parts of his body, and causing him internal injuries which caused his death about four hours after his injury, and proximately caused by the negligence and carelessness of the defendant company in the following particulars, to wit:

(a) In having and using and permitting to be used the pole which broke with deceased, in a rotten, aged, and defective condition, as it was.

(b) In failing to properly inspect said pole or maintain a system of inspection of its poles, including said pole, and in this connection the plaintiffs allege that the pole was very much aged, and had been in use and standing where it was when it fell for at least 15 years, which was much longer than such poles remain in a safe condition, and that this fact particularly required inspection by the defendant company, and plaintiffs further allege that a proper inspection of the pole, as due care on the part of the defendant company, would have disclosed its rotten condition.

(e) In permitting grass and weeds to grow up and around the base of said pole, which obstructed the rotten condition of same and prevented its being discovered from sight that said pole was rotten.

(d) In failing to warn the said Halbrook of the age of said pole, or that same was or might be in a rotten condition and of the danger there might be in the condition it was in.

(e) In permitting the deceased to use such pole in such condition, and plaintiffs allege that the deceased did not know of the condition of the pole, and that it was no part of his duty to inspect said pole, any more than a casual observance of same, and that such casual observance of same would not have and did not disclose to the said Hal-brook its condition, although the said Hal-brook exercised due care in going up and in using said pole. The appellants, plaintiffs in the court below, further allege that said Halbrook at the time of his death was 32 years of age, and that he was an electrician by profession, was a capable, honest, and upright man, and that he was at the time of his death earning $80 per month, and was gaining proficiency and experience, having a reasonable expectation of soon commanding a salary of as much as $150 per month, and that by his death the plaintiff, his widow, was deprived of his earnings and services to her, and that she had thereby been damaged by reason of the premises in the sum of $20,-000, and that said minor children had been deprived of his earnings and services and of his nurture and care and attention as a father during their minority, and had thereby been damaged by his death in the sum of $10,000 each, all of which amount appellants seek to recover.

The defendant company pleaded general denial, and especially that the deceased had, by reason of his employment, full, complete, and entire control, direction, and management of all the poles, wires, and connections of said electric plant outside of the plant proper, and that it was especially his duty to inspect and to replace all defective poles, repair all wires, or direct the replacing of said poles and repairing of said wires, and that he was warned and advised not to ascend the pole, and that deceased was guilty of contributory negligence, in that he, knowing the weakened condition of said pole, cut the wires supporting said pole, and that he was further negligent in attempting to ascend said pole on the south side of same, at the top of which there was a large iron box.

At the conclusion of the evidence introduced by all parties the court refused to submit the same to the jury, and the court Instructed the jury to return a verdict for appellee. In due time the plaintiffs filed a motion for new trial, which was afterwards amended by their amended motion, on the hearing of which the same was by the court refused, to which action of the court plaintiffs, who are the appellants here, duly excepted, gave notice of appeal to the Court of Civil Appeals, and within due time filed their appeal bond, which was duly approved, and, 30 days having been allowed by the court in its order in which to file the statement of facts and bills of exception, the plaintiffs, appellants, within such allowed time filed their said statement of facts and bills of exception, and perfected their appeal to the Court of Civil Appeals at Galveston, which has since been duly transferred to this court Appellant predicated error upon the action of the trial court in instructing the jury to find for appellee. The facts in this case appear to be as follows:

That some time in March, 1913, some correspondence was had between the appellee and deceased' with reference to his employment by the appellee. There was no agreement between the parties at the time, but on April 16, 1913, appellee wrote the following letter to deceased, Halbrook:

“April 6, 1913.
“W. A. Halbrook, Weatherford, Texas — My Dear Sir: This morning when I reached the office it was to learn that the electrician we had employed about a month ago had skipped out during the night, without having intimated any dissatisfaction or suggesting such a move to anyone. This not only leaves us without an electrician, but right in the middle of a heavy job of conduit work in an office building. Eor this reason we wired you this morning as follows : ‘Must have electrician at once. Can you come and when? Wire reply.’
“Very truly yours, Sam O. Trimble,
“President.”

There was no written contract of employment other than said letter set out above, but when deceased, Halbrook, reached Orange, he succeeded a man named Young, and entered upon the duties of said Young, the said duties being defined as follows (quoting from testimony of D. P. Hodges):

“As to what are the duties of an electrician, I will state that this is not a lineman’s job nor an electrician’s either. It is a combination man. I have known Mr. Halbrook since he has been here. He didn’t succeed me. It was a fellow named Young that took my place. I believe Mr. Halbrook succeeded him. I don’t think they had a man in between Mr. Halbrook and Mr. Young. I met him at the plant. Mr. Trimble [the general superintendent] employed him, I suppose. He hired all the men. I was not present when he hired him. Mr. Halbrook was at the plant. _ I worked with him maybe a day or two, but it was only when somebody would come up to my room when he wasn’t here or at the plant. As to whether I ever had occasion to go with him on Fourth street, I will state that I was going out to deliver some lumber, and had to go up that way where they were at work to deliver the lumber. I saw him going up there when I wasn’t busy, and he went with me right up Fourth street. He was going with me up Fourth street to put up a four-pin cross-arm on a pole. I saw him put up the cross-arm. I told him he was using a big one, and he said: ‘I am going to move it out of there, on the corner.’ I can’t say how long that was before the accident.”

He further testified that he worked for the defendant company for 22 years, and that he had never heard of an independent pole inspector in his life until upon the trial of this case; that it was the duty of the electrician to inspect the poles, and he was employed to keep it up; that the electric light company never had an inspector since he had known them; that he had never heard of the light company having any one to inspect the poles outside of the lineman. And he also testified that he cautioned Mr. Halbrook, the deceased, about this pole. He said that the pole had a crook in it, and that he warned Halbrook about climbing it; that, when Mr. Halbrook first came, he went over the system with him; and that he called his attention to things and told him that he could see for himself, and Halbrook said he was going to replace the poles as he could get to them. Further testifying, he says:

“That was a part of his duty. Mr. Halbrook took the place that I filled, and at Mr. Trimble’s request I went over the line with Mm.”

The witness Burr, defendant’s general manager when Trimble was absent, testified:

“Halbrook erected all poles, put in lines, and connected them to the house; fixed the trouble in the lines. He employed all the assistance he needed to help him. He had charge of everything from the dynamo and switchboard to the end of the pole line, and he did it. I tMnk the last time I saw Mm before the accident was the evening before. I think he left there before I got down that morning. Mr. Trimble, Mr. Hal-brook,_ myself, and Mr. Gill were present. We were in the office. There had been an accident on Fourth street where a wire dropped down during a storm three or four nights before that. A horse had been killed by an electric wire. Mr. Trimble paid for the horse that morning, and we were talking it over. This was the first time Mr. Trimble had seen Mr. Halbrook, and he asked him how came the wire to drop down, and cautioned him to keep the line up tight. I called the attention of Mr. Halbrook to another bad place on that same street further down, where we have a main line laying across an insulator and not tied. He said he would not go to fix that. T can’t climb that pole.’ It was a pole,in bad condition. Mr. Trimble said: ‘If it is in bad condition, don’t climb it or any other that is in bad condition.’ Mr. Halbrook said: T think I have got to put another pole there.’ *Mr. Trimble said: T want to know now if you intend to follow my instructions on that line.’ Halbrook said he would.”

Elspaugh testified that he had been working for the defendant company since January 30, 1014, and that it was the duty of a lineman to inspect the poles.

Jeff Gill also testified that he had been a lineman for the defendant company, and that while he was doing that work he inspected the poles, and testified that there was no independent or general inspection.

The deceased had been in the employ of the defendant company and performing his duties as set out above; that is to say taking down old and defective poles, putting up new poles in their place, and stringing the wires, etc., for more than 2 months before the accident occurred.

W. H. Hogg also testified:

“Mr. Halbrook had full charge of the wires, and nobody else was with it; nobody connected with the ice company helped him. He did it all.”

J. B. Sargent also testified:

“There had been a light company man at that pole [that is, the pole at which the accident occurred] half a dozen times in two weeks before the accident. It was the trouble man, but 1 do not know whether it was this man [Halbrook] or not.”

Joe Ratcliff also testified:

“The lineman is supposed to climb the pole and do any kind of top work.”

And this witness also testified that he had lived in Orange for 38 years, and that the defendant company never had an independent inspector that he knew of.

The witness Burr further testified that Mr. Trimble is general manager, and that he (the witness) represented Mr. Trimble during his absence; that Mr. Halbrook’s duty was to take charge of all of the electrical equipment; that he (Halbrook) erected all poles, put in all lines, and connected them to the house, and fixed the troubles in the lines; that he employed all of the assistance he needed to help him. “He had charge of everything from the dynamo switchboard to the end, of the pole lines, and he did it." (Italics ours.)

There was testimony that it was not the duty of the lineman generally to inspect the poles, but there was no testimony that it was not the duty of the lineman at Orange to inspect the poles. As to the age of the pole the testimony is as follows:

“The pole was white or Michigan cedar.”

And the witness D. P. Hodges testified:

“I put that pole there, and it was a new pole when I put it there, I don’t know when I put it there. It was a good long time ago. I know that curb of Mr. Call’s. As to whether or not we put it in there before or after that curb was put in, I will state that we had to cut it off and move it when they put in the curb. I cut it off at the top of the ground and reset it then. It was all right then. It toas sound. The condition of the pole was all right then. I considered it a fairly good pole.”

It was agreed by the parties to this suit that George Call would testify, if present, that he put the curbing around his walk in front of his house during the latter part of April or the first of May, 1909.

Mr. Hodges, further testifying, says:

“I cautioned Mr. Halbrook about that pole [the pole from which the accident occurred]. This pole had a crook in it right here and I warned him about climbing it. I don’t know anything about the condition of that pole in the ground except by the looks of the pole.”

There was no controversy that there was nothing externally to show that the pole was not in good condition.

Joe Ratcliff testified that the pole that was broken was 8% inches at the butt or top of the ground, and that the average life of a white cedar or cypress pole in this climate of that size would be anywhere from 7 to 10 years.

Jeff Gill testified:

“The defendant company did not employ an inspector of poles. While I was doing the work I inspected the poles.”

As to the immediate accident W. R. Hogg testified:

“At the time Mr. Halbrook was killed I suppose. I was about 30 feet from him. I rang up the ice plant to see if I could get the wire cut so as to get the house under them, and they told me to find Mr. Halbrook. Halbrook told me he would come the next morning. The next morning about 8:30 I found him at breakfast, and he said that he would come, and I waited for him and rode down in the wagon with him. He went around and. looked at the north pole from the one that fell on him and shook it kind of, and attached a tie rope to it, and he went up the pole and cut the wire. One wire came loose on the pole with the transformer on it. That was the pole that fell on him, and he made the remark: ‘I will have to go up and fix that damn wire.’ He caught the pole and shook it, and it seemed like it would hold him, and I started to the closet right west of there, of where the pole was. I had gotten about 30 feet before the pole fell. He was right up about the transformer when the pole fell, about 4 feet from the top of the pole. The pole was about 18 or 20 feet high, and about 8 or 9 inches in diameter at the bottom, and tapered up to about 5 inches at the top. There was no weeds around the pole. The pole where we cut the wires at the corner of George Gall’s property. It was about 12 feet from the corner. It was a corner pole and about 12 feet from the intersection of Pine and Fourth — about 6 feet from Fourth street,' and about 12 feet from Pine. It was about the same size pole as the other, the one he didn’t climb. He didn’t climb up this pole instead of the other because it was most dangerous to climb up this one that had the load on it, because it had more strain than the other. It was the main line wire running up and down Fourth street that was slipping. It was swinging down to the sidewalk. This pole [upon which the accident happened] had about 4 inches of heart that looked like it was doty a little. It wouldn’t crumble. It was fairly sound. The sap was rotten and would crumble. I don’t know whether or not it was worm-eaten. It broke off right at the ground.”

The above is a résumé of the testimony with reference to the condition of the pole, and the time when the same was erected, and with reference to the duties of the deceased.

The appellants seem to rely largely upon the case of Dupree v. Alexander, reported in 29 Tex. Civ. App. 31, 68 S. W. 739, the opinion in which was handed down by the Galveston court. A close reading- of this case is needed in order to find if the same bears out the appellants’ contention that it was authority for a reversal of the instant case. In that case the court says:

“The facts disclosed by the record are as follows : Appellee was employed by appellant as a lineman, and in that capacity was required to perform all work that was necessary to be done on the top of or about the poles of appellant in the talcing down and hanging of wires [italics ours]. He was only employed to work with wires, but such employment included the climbing of poles and all work proper and necessary in the handling of wires. At the time he was injured he, with other employés of appellant, was engaged in the work of real-ranging- appellant’s lines at the junction of McKinney avenue and Brazos street, in the city of Houston. Appellant’s foreman, J. H. Britti-gan, who was directing the work, ordered ap-pellee to ascend the pole [italics ours] on which the arc circuit in said streets was fastened, and to cut everything off. There were an arc circuit and two guy wires attached to this pole. When he got to the pole, he kicked it two or three times to see if it was solid, and it seemed to be perfectly sound. He went up the pole and cut the wires as he had been directed by the foreman, and as he cut the second circuit wire the pole broke and fell with him, and he thereby received the injuries complained of. The pole broke from 8 to 12 inches under the ground. It was rotten entirely [italics ours] through at the place of the break, but was perfectly sound above the ground. If the pole had not been rotten Litalics ours], he would not have fallen. Ap-pellee was an experienced lineman, had worked in that capacity for four or five years, and had been working for the appellant for three weeks prior to the accident. He had before this taken wires off of old poles and put them on new ones, had repaired old lines, and worked on all kinds of poles, and knew that poles in the ground would rot. He did not know how long this pole had been there. It did not look like a new pole, but was apparently in good condition. It was a red cedar pole of at least an average size, being about 5 inches in diameter at the top and 12 inches at the bottom. It was appellee’s habit as a lineman to kick old polos to test their soundness before going upon them. He knew that poles which had been up a short time are safer to handle wires on than poles which had been in use for a longer time. He did not discover any unsoundness in this pole when he kicked it, nor while climbing up to the cross-arm on which the wires were fastened. It seemed perfectly firm and steady. After reaching the cross-arm, he first cut the circuit wire on one side, then one of the guy wires, and then the circuit wire on the other side. The pole fell after he had cut the second circuit wire. * * * He could have cut both guy wires from the ground, but cut them from the top because the foreman ordered him to do so. It had no load above the ground, and was perfectly sound except below the ground. * * * He did not know whether this pole had ever been examined; had never heard of the appellant sending any one to examine this or any of the poles.”

The court further says in that case that one witness testified that he assisted in putting up the pole in question, and that it had been in the ground 6 years, and that it was perfectly sound when it was put up. Several witnesses testified that red cedar poles were the most durable pole that could be used, and that the average life of a pole of this kind was from 10 to 25 years. Two of the witnesses for the appellant testified that all-prudent linemen would inspect for themselves to see whether old poles which they were ordered to dismantle were rotten; that he would do this if he were diz-ected to take down an old pole; that he always did this.

The opinion in the case of Dupree v. Alexander further says:

“There was nothing about the appearance of this pole to indicate that it was not perfectly sound. He was acting foreman, in charge of the worh at the time of the accident, and appellee was worlcing under him, and had to obey his orders.’’ [Italics ours.]

The court also says:

“The general rule of law that imposes upon the master the duty of using reasonable care to provide the servant with reasonably safe appliances and a reasonably safe place in which to work, and whenever, in the fulfillment of this duty, an inspection is necessary, it places the duty of such inspection upon the master, and n-ot the servant.
“The evidence shows that appellee was employed in the capacity of lineman, and that his duties were connected only with the handling of wires. He was not employed as an inspector of poles, and the erection or talcing down of poles was not a part of the duties of his employment. He was required by law to take notice of any obvious defect in any pole upon which he might be called to climb in the discharge of the duties of his employment, but he was not required to inspect the pole for latent defects. There is no evidence in the record which would justify the conclusion that it was his duty, under his contract of employment, to malee such inspection.’’

The appellant could only relieve itself from the duty of inspection which it owed appellee by showing that under a contract of employment that duty devolved upon him as a primary duty. We do not mean to hold that the position of lineman and inspector might not be filled by the same person, but, when the master seeks to relieve himself of the general duty of inspection which he owes to his servant, he must show that by his contract of emplosunent the servant was required to perform said duty, and that the same was one of the primary objects and purposes of the employment, and cites Railway Co. v. Butchek, 66 S. W. 335; Railway Co. v. Lindsey, 27 Tex. Civ. App. 316, 65 S. W. 669; San Antonio Edison Co. v. Dixon, 17 Tex. Civ. App. 320, 42 S. W. 1010; Railway Co. v. Crowder, 55 S. W. 387; Railway Co. v. Darby, 28 Tex. Civ. App. 413, 67 S. W. 446.

After citing the above eases in .support of its conclusion, the court says:

“The evidence in this case merely shows that the appellant has never discharged its duty of inspecting its poles, had no system of inspection, and no pez-sons employed whose special duty it was to make such inspection, but relied upon its linemen to perform that duty for themselves. The appellee had been in appellant’s employment for only a few weeks, and it is not shown that he knew that the appellant had never inspected its poles, or that he left their inspection solely to the linemen, to be performed cr not, as they might elect.”

And rightly says:

“We think under this evidence that appellee, when he went upon- the pole in question, had the right to presume that the appellant had performed its duty of inspection, and that the pole was safe, and that he did not assume the risk of its being rotten below the ground.”

We concur in the conclusion pf the court and the judgment in the above case. But no such state of facts exists in the instant case. In the case before us Halbrook’s duty, one of his primary duties, which he began immediately to enter upon and assume, was the taking down and replacing of poles that were in an unsafe condition, and, further, the facts of this case show that he knew the condition of the pole upon which the accident occurred, and had been warned by the defendant company as to its unsafe condition. Therefore the facts in the case above cited are not parallel with the facts in this case. The deceased did not rely upon any inspection or supposed inspection that had or should have been made by the appellee, but it was his duty, among others, to find and inspect the poles to see if the same were safe to ascend and work upon. We believe that in the ease before us Halbrook assumed the risk, and that the duty of inspection was upon his shoulders, and that the appellee has not been shown to have been negligent in the premises.

The case of Southwestern Telegraph & Telephone Co. v. Tucker, reported in 102 Tex. 224, 114 S. W. 790, seems to be decisive of the instant case. The facts of that case, as stated by the court of Civil Appeals, were as follows:

“ ‘This suit was instituted in the district court of Brazos county some time during the year 1905, by the appellee, M. D. Tucker,-to recover of the appellant damages in the sum of $1,999.-50 for personal injuries sustained while in the service of the appellant. The facts show substantially that the appellant owns and operates a line of telephone wires in and through the town of Bryan; that at the time the injury occurred it was necessary to cut the wire that passed over a certain street in the town of Bryan, in order to permit the passage of a church which was being moved. Clopton, who was * * * inspector of the appellant, and who had charge of that particular portion of appellant’s line, was sent to Bryan for the purpose of having the work done. Upon arriving there he concluded that he needed the services of some other linemen to assist him in doing the work that was required to permit the passage of the church. He accordingly employed the appellee, Tucker, for that day only, to assist him in cutting the wires over the street along which the church was to pass. The appellee was instructed by Clopton to ascend the telephone pole on the north side of the street, and at the same time a man by the name of Eaves was directed to ascend another telephone pole on the opposite side. The instructions given to the two men were to cut the wires between the two poles, so that there would be no obstruction to the steeple of the building in passing. The linemen were to cut the wires at each end at the same time, in order to prevent some confusion resulting to the line. There were something like 18 or 20 wires to be clipped in this manner. When all had been cut except one, the pole upon which Tucker was working began to fall, and fell slowly for some distance, when it increased its motion, and fell rapidly to the ground, resulting in the injuries complained of in the appellee’s original petition, and for which he recovered a judgment. The pole broke off just about the top of the ground; some of the witnesses testifying about an inch below the surface; all testify that it was rotten, and that only a small’ portion of the outer surface was sound; the dimensions of this rim of sound wood varying according to the estimate of the witnesses, some stating that it was one-sixteenth of an inch in thickness, while others make it a little thicker, but all agree that beneath the ground the pole was entirely rotten, and that the fall was occasioned solely by the fact that it was rotten. The evidence tended to show the pole had been in place something like six years, was of white cedar, and that the life of such poles varies from 10 to 15 years; 12 years being the general average. There is nothing in the record to indicate whether this pole was new when placed in its present position, or what its condition was.
“ ‘The evidence supports the conclusion that there had been no inspection further than a superficial observation of the pole after its erection ; the appellee stating that when he was directed to ascend the pole he kicked it with his spur, as he generally did, for the purpose of ascertaining whether or not it was sound, and that to all appearances it seemed to be so; that he believed it was sound at the time he climbed it, and that it was sufficient to sustain his weight and the additional strain that would be put upon it by clipping the wires between that and the one on the opposite side of the street. No issue was made as to whether or not the pole was not otherwise properly sustained by guys, and that other precautions were taken to prevent an undue strain being imposed by releasing it from the support of the wires on the opposite side of the street; in fact, the rotten condition of the pole was shown to be the sole cause of its giving way at the time it did. The case was tried in the district court before a jury, resulting in a verdict in favor of defendant in the sum of $1,500 on the-day of September, 1905. From that judgment an appeal was taken, which was heard in the Court of Civil Appeals for the Fourth Supreme Judicial District, and the case was reversed and remanded. The case was again tried, resulting in a verdict in favor of appellee for the sum of $1,625, and from that judgment this appeal was prosecuted.’
“This writ of error was granted upon the ground that it was thought that there was no evidence of negligence on the part of the plaintiff in error. We are still of the same opinion. [Italics ours.] There can be no question but that the defendant in error was injured by the falling of the pole. If there was any negligence on the part of the plaintiff in error in not having inspected the pole sufficiently to have discovered the defects, or if there had been anything to indicate that the pole was rotten under the ground, it would clearly have been the duty of the company, through its inspector, to have examined the pole, which would have resulted in the discovery of the defect. The evidence discloses, so far as is known, that there was no reason to suppose that the pole was rotten; for, according to the testimony, the pole had been standing only for six years. The rottenness of the pole having been concealed by the ground, we fail to see that there was anything in the testimony tending to show that the plaintiff in error ought to have discovered it. We know of no rule of law that imposes upon the master the duty of looking out for defects in objects with which the servants are working, where there is nothing to indicate that any such defect existed. To so hold would be to make the master the insurer of the safety of the servants absolutely. As we have said, poles of the same character usually last unimpaired for a period of 12 years. To all appearances it was entirely sound, and we cannot see that there was anything to indicate that it required any more inspection than was given to it by the injured party. The case narrows itself down to the question: What would a man of ordinary prudence have done under the circumstances; there being- nothing in regard to the pole to excite any suspicion as to its soundness, or anything to indicate that a further inspection was necessary in order to test its sufficiency? We do not see how it can be said that an ordinarily prudent man would have taken any other steps in regard to it. The plaintiff in- error also insists that the duty of inspecting the pole devolved upon the defendant in error. We find it unnecessary to pass upon the question. But in cases strikingly like this it has been so held by the courts of highest authority in the United States”—citing McIsaac v. Northampton Electric Light Co., 172 Mass. 89, 51 N. E. 524, 70 Am. St. Rep. 244; Flood v. Western Union Tel. Co., 131 N. Y. 603, 30 N. E. 196; McGorty v. Southern New Eng. Tel. Co., 69 Conn. 635, 38 Atl. 359, 61 Am. St. Rep. 62; Sias v. Warranted Lighting Co., 73 Vt. 35, 50 Atl. 554; Kellogg v. Tramway, 18 Colo. App. 475, 72 Pac. 609.

The opinion in the Tucker Case, supra, was delivered by Chief Justice Gaines of the Supreme Court, and we believe as in that case the case before us narrows itself down to the question: What would a man of ordinary prudence have done under the circumstances? The pole in question having been planted only for something like four years, and the deceased, Halbrook, having been warned with reference to the pole, and it being one of his primary duties to inspect it, we are of opinion that the duty of inspecting the pole devolved upon the appellant in this case, and not upon appellee, and we hold that the action of the court below in instructing the jury to bring in a verdict for the appellee was correct.

So believing, we overrule appellant’s assignment of error, and the judgment of the court below is in all things affirmed.
      —,TVnr other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HAVARD v. CARTER-KELLEY LUMBER CO.
    (No. 8.)

    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 25, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Partition <@=5 — Parol Partitions — Validity.
    A verbal partition of land followed by delivery of possession is valid.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 13-17; Dec. Dig. <@=5.]
    2. Infants <@==>58 — Contracts — Disabttbm-anoe.
    Where an infant who was entitled to share in lands was a party to a verbal partition, he must, if desirous of disaffirming, disaffirm within a reasonable time after reaching his majority; a reasonable time being such a time as a person of ordinary prudence and diligence would under similar circumstances require to disaf-firm the contract.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 149-160; Dee. Dig. <@=35S.]
    3. Costs <@=68 — Award — Discretion oj? Court.
    Under Rev. St. 1895, arts. 1425, 1438, declaring that the prevailing party shall be entitled to all costs, and authorizing the court on good cause to adjudge costs otherwise, it is not an abuse of discretion where plaintiff, who sought recovery of the value of % of the timber cut from a parcel of land, recovered only V22 °f V2 °f the value of the timber, to award 21/2 2 of costs in favor of the defendant.
    [Ed. Note. — For other eases, see Costs, Cent. Dig. §§ 287-289; Dec. Dig. <@=68J
    Appeal from District Court, Angelina County; Ras Young, Special Judge.
    -Action by S. W. Havard against the Carter-Kelley Lumber Company. From a judgment denying part of the relief sought, plaintiff appeals.
    Affirmed.
    W. J. Townsend, Jr., of Jacksonville, for appellant. Mantooth & Collins, of Lufkin, for appellee.

       Application for writ of error pending in Supreme Court.

   BROOKE, J.

This is a suit by the appellant against the appellee for the market value of the pine timber alleged by the appellant to have been converted by appellee to its own use and benefit, and involved the title to one-half of the value of the timber removed from the homestead tract of W. F. Havard, now deceased, and his wife, Frances Havard, on the Jas. Warren survey, situated in Angelina county, Tex. W. F. Havard, now deceased, and his wife, Frances Havard, formerly owned all the property sued for, as their community estate, and the land upon which the timber was cut and removed was the homestead of said W. F. Havard and wife, Frances Havard. That said W. F. Havard died in 1894 or 1895, leaving surviving him his wife, Frances Havard, and the following children: W. F. Havard; J. F. Havard; P. T. Havard; A. G. Havard, who afterwards married Sam Horton; L. C. Havard; J. L. Havard; C. J. Havard; B. W. Havard; Mary Havard, who afterwards married C. C. Barnes; Annie Havard, who died before her father; S. W. Havard; and Caroline Havard, a feme sole, and an idiot from birth, who died since the institution of this suit.

W. F. and Frances Havard were the common source of title. Appellant deraigns his title by inheritance from his deceased father, and from purchase from his mother and the remaining heirs of said W. F. Havard, deceased. The appellee deraigns its title from a purchase from Frances Havard only, the wife of said W. F. Havard, deceased; she attempting to convey the whole of said timber situated upon the homestead tract of land.

The appellant, by inheritance and purchase aforesaid, claimed an undivided one-half interest in said timber, and the appellee claimed the whole of said timber upon said homestead tract by purchase from said Frances Havard, the widow of said W. F. Havard, deceased, alleging that she was the sole owner of said land at the time of said sale of said timber by her, by virtue of a parol partition entered into by and between the surviving widow, Frances Havard, and her children, except Caroline Havard, the idiot, whereby the widow was to take the homestead tract of land, and the children, except Caroline Havard, were to take the remaining community land. The appellee assumed this position upon the trial of the ease, and offered testimony to support its plea; whereas, the appellant denied any such agreement, and further pleaded that the said Caroline Hav-ard was an idiot, unable to contract or to agree to any such parol partition, rendering any attempted partition on the part of the other heirs void, and further pleaded that he was a minor of tender years at the time of said alleged partition, and that, if he participated in such alleged parol partition, he did not ratify same after reaching his majority, but sought to disaffirm said parol partition.

A general warranty deed from Frances Havard, surviving wife of W. F. Havard, deceased, to William Cameron & Co., for the timber on the 120 acres of land in controversy, dated May 8, 1902, acknowledged on same date before D. H. Johnson, notary public of Angelina county, Tex., was filed for record in the office of the county clerk on May 12, 1902, recorded May 12, 1902, in volume 29, p. 206, Deed Records of Angelina County, Tex. There was also introduced a deed from Wm. Cameron & Co. to Carter-Kelley Lumber Company, the appellee, for the timber in issue in this case, dated March 20, 1906, acknowledged May 22, 1906, filed for record April 6, 1906. The deed under which appellant claims his interest in the land, other than by inheritance from his idiotic sister, is dated June 4, 1906, filed for record August 27, 1908.

The case was submitted to the jury on special issues by the court. The jury found against the appellant, and the court rendered judgment in favor of the appellant for 1/22 of Y2 of the total value of the timber cut, namely, $35.04, besides interest, and, on its own motion, rendered judgment in favor of appellee and against appellant for 21/22 of the costs in this case. The appellant in due time filed his motion for new trial, which motion the court in all things overruled, and the appellant gave notice of appeal, as required by law, which appeal was by him perfected, and said judgment of the lower court is now before this court for review.

Appellant complains, by his first assignment of error, that the court erred in not rendering judgment in favor of S. W. Hav-ard and against the Carter-Kelley Lumber Company for the amount sued for, and claims that the preponderance of the evidence produced upon the trial shows conclusively that the plaintiff was the owner of the property sued for, and was entitled to recover its market value.

We have gone over the record carefully, and cannot agree with the appellant with reference to the preponderance of the evidence, showing that the plaintiff ought to recover the property, and therefore we overrule this assignment.

By his second assignment, the appellant challenges the action of the court in failing to render judgment in favor of the plaintiff, in that there was no legal verbal partition of the land of W. F. Havard, deceased, and his wife, Frances Havard, whereby the said Frances Havard became the sole owner of the homestead place, from which the timber was cut and removed, and that since W. F. Havard was the owner of one-half of said homestead, and the timber thereon, he was entitled to recover its market value.

It was decided by our Supreme Court as early as 1849, in the case of Lynch v. Baxter, 4 Tex. 431, 51 Am. Dec. 735, that a verbal partition of land proved by delivery of possession was as valid under the Mexican law as if evidenced by writing, and the court in that case, through Judge Lipscomb, says:

“There can be no doubt, that, at the time the partition was made, a verbal sale of land between individuals was binding, and the contract as valid as if evidenced by writing. It was so decided by this court, under the Republic (citing Scott & Solomon v. Maynard and Wife, Dallam’s Digest, p. 551, and authorities there cited). But if the law at that time had required that the partition should be in writing, it could not be disturbed now; the right to the respective shares, according to the partition, is now established beyond controversy by the statute of limitation.”

In 17 Tex. 418, in the case of Chas. A. Stuart v. Joseph Baker, it was held that a parol partition of land is not obnoxious to our statute of frauds, but is valid and binding, and is placed beyond all doubt where the parties have acted upon and acquiesced in such partition, and have never attempted to repudiate it. In that case the appellants interposed the following objections: (a) That there is no legal evidence of a partition or division of the land, (b) That the deed to Mrs. Nichols is not in conformity to the statute, her husband not having joined her in it. (e) The infancy of Asa Sowell. The court, in its opinion, said:

“The objection to the evidence of the partition of the land is based on its being by a verbal or parol agreement, and it is alleged to be contrary to the provisions of our statute of frauds, which it is contended requires that it should be in writing. This objection, we apprehend, grows out of misconception of our statute, and following the English statute. The difference in our statute of frauds and the English was very fully investigated, and clearly shown in the opinion of this court, delivered by the Chief Justice in the case of James v. Fulcrod, 5 Tex. 512 [55 Am. Dec. 743]. The difference in the two statutes is shown to be this: In our statute the contract for the sale of lands must be in writing. The English statute goes further, and embraces not only a sale of lands, but any interest in or concerning them; and it was decided that a verbal contract between the parties, that one of them should bid off a lot of land at public sale, in his own name, to be divided between them, was not a contract of sale of land within our statute. So the case of Watkins v. Gilkerson, 10 Tex. 340, was an agreement by which one party agreed to procure land certificates and the other to locate them and procure patents, and divide the land so obtained. The agreement was not in writing. We decided that it was not a contract for the sale of land, and not within the statute. And in case of Houston v. Sneed, decided at the last term of the court, 15 Tex. 307, the court decided that a verbal agreement between adjoining land holders, on a division line was not a contract for the sale of land within the statute, but bound the parties. The doctrine of these cases seems to be conclusive in favor of a verbal division between the parties in the case under consideration, and is certainly placed beyond all doubt, where the parties, as in this case, acted upon, and acquiesced in, such division. * * * From the view we have taken of the point just discussed, it will not be necessary to bestow anything more than a mere passing notice upon the second point. The interest of Mrs. Nichols having been severed, it is not material whether she is bound by the deed in which she joined with her son to Godwin or not. The deed would still be valid, as to them, although she was not bound by it, the land surveyed being upon their share; and it was really a sale by them, and, from the evidence, they received the purchase money. We will proceed to the third and last point proposed to be discussed. It is objected that Asa Sow-ell, at the date of his deed to Godwin, was a minor; and it appears from the evidence that he was not 21 years of age until the 30th day of April, 1843, the deed bearing date something over one year before he arrived at the age of 20 years. Whatever the conflict may have been in the other courts, as to the legal effect of a minor’s deed conveying his lands, the doctrine is well and firmly settled in this court that such deed is not void, but only voidable. It is well discussed in the opinion of this court, in the ease of Cummings v. Powell, 8 Tex. 80, and many of the authorities reviewed, and the conclusions were announced that if an infant makes a deed, purporting to be for a valuable consideration, such as would be valid against an adult, it is valid until the infant has avoided it by disaffirming it, after arriving at majority; that it is indispensable to the disaffirmance that the consideration, if money or property, should be tendered to the purchaser. In this case, there is no pretension set up that there was an offer to return the purchase money, and there was not proof that the infant had received the purchase money. The only evidence of a disaffirmance of the deed to Godwin by Asa Sowell is his conveyance to Davis on the 28th day of October, 1845, about two years and six months after attaining the age of 21 years. We will see if that conveyance amounts to evidence on the part of Asa Sowell, of a disaffirmance of his deed to Godwin, even if the want of a tender of the purchase money should not be regarded as material. The deed is as follows: ‘Know all men by these presents: That we, Andrew B. Sowell and Asa J. L.. Sowell, have this day, in the consideration of the sum of $1,100 to us in hand paid by A. W. G. Davis, the receipt of which is hereby acknowledged, granted, bargained and sold, and by these presents do grant, bargain and sell, unto A. W. G. Davis, all our right, title, interest and claim, in and to the estate of our * * * father, John Sowell, to have and to hold said granted, bargained and sold premises, to said Davis and his heirs forever. Signed, sealed and delivered this 28th day of October, 1845. * * * ’ We believe that the deed from Asa J. L. Sowell to Davis does not amount to a disaffirmance of his deed, made during his minority, to Godwin. But, had the deed gone to show an intention to disaffirm that sale to Godwin, without * * * a tender of the purchase money, it would have been insufficient to effect the disaffirmance.”

In the case of Glasscosk et al. v. T. P. Hughes, 55 Tex. 461, it was held that a parol partition of land is not within the statute of frauds, nor his possession under it necessary to its validity. When those who it is alleged made it are dead, when it is of an ancient date, and from lapse of time it is impossible to give evidence of either the making of the partition or the conduct and acts of the parties, and every circumstance of acquiescence in such acts as are consistent only with the fact that a partition had been made, it should be admitted in evidence. The court in that case said:

“In this state it is well settled that a parol agreement for the partition of lands is valid (citing Houston v. Sneed, 15 Tex. 309). It is not within the statute of fraud (citing Stuart v. Baker, supra). It is not necessary that it shall be executed by taking possession, to render it valid. It is to be proved as any other contract.”

Believing that the doctrine announced above is a settled law of Texas, we overrule appellant’s second assignment.

Appellant, by his third assignment, assails the action of the court in rendering judgment in favor of defendant, against plaintiff, for the value of plaintiff’s interest in said timber, as inherited by him from bis deceased father, claiming that the evidence showed that, at the time of said alleged partition, one of said heirs was a minor, and that if any such verbal partition of said lands was made, and at such time agreed to by the plaintiff, be sought to disaffirm same within a reasonable time after arriving at the age of 21 years.

The court submitted this question of. dis-affirmance to the jury under the following charge:

“Reasonable time within which to disaffirm a contract concerning land is such time, after the minor making the contract reaches his majority, as a person of ordinary prudence and diligence would require in which to disaffirm the contract, under the same or similar circumstances. The undisputed evidence shows that if there was an agreed partition of the community lands of Mrs. Frances Havard and her deceased husband, between herself and her children, the same was had while plaintiff was a minor, and in such event the agreed partition, if one was had, would not be void, but would be voidable, if the plaintiff should disaffirm the same within a reasonable time after arriving at the age of 21 years, and the questions of whether or not there was an agreed partition of the land, and as to whether or not the plaintiff has disaffirmed such agreement of partition, if any was made, and whether or not such disaffirmance, if any was made by him within a reasonable time after he became 21 years old, are questions to be decided by the jury, in answer to questions propounded to you. You are to answer such questions according to the facts you find from a preponderance of the evidence, and you are instructed that a preponderance of the evidence means the greater weight and degree of the credible evidence. After instructing you as hereinbefore set out, I will now give you the questions which I desire you to answer:
“(1) Do you find from the evidence, prior to the date the deed was made by Mrs. Frances Havard to Wm. Cameron & Co., that Mrs. Frances Havard and her living children, except Caroline Havard, had an agreed partition of their lands, and that said children agreed that she take as her part of the community estate of herself and deceased husband the 120 acres of land described in plaintiff’s petition?
“(2) If you answer, ‘Yes,’ to the foregoing question, you need not answer this one, but, if you answer, ‘No,’ to the foregoing question, you will then answer this second question: Do you find from the evidence that prior to the date the deed was made from Frances Havard to Wm. Cameron & Co., any one or more of the living children of Mrs. Frances Havard, except Caroline Havard, but not all of them, had -an agreed partition of their land with her, and that the children, if any, agreeing to said partition, agreed that the said Mrs. Frances Havard take as her part of the estate the 120 acres of land constituting the east half of the J. Warren survey, which is the same land set out in the plaintiff’s petition, and give the children other lands as their part?
“ (3) If you answer, ‘No,’ to the first question, and answer, ‘Yes,’ to the second question, then I ask you this question: Give the names of the children that had the agreement with her to let her take the 120 acres of land described in plaintiff’s petition. If you answer, ‘Yes,’ to the first question, you will not answer this third question.”
“(6) Do you find from the evidence that the plaintiff, with other children of Mrs. Frances Havard, before the deed was made by Mrs. Frances Havard to Wm. Cameron & Co., entered into an agreed partition of the lands owned by them, and that in the agreement the said Mrs. Frances Havard was to take the 120 acres of land described in the deed to Wm. Cameron & Co.?
“(7) If you answer, ‘Yes,’ to the sixth ques-lion, then you will answer this seventh question, but if you answer, ‘No,’ to the sixth, then you will not answer this seventh question: _ Do you find from the evidence that the nlaintiff disaf-firmed the agreement, if any, that was made with his mother to the partition of lands?
“(S) If you answer, ‘Yes.’ to the sixth question, and answer ‘Yes,’ to the seventh, you will then answer this question, but, if you answer, ‘No,’ to either the sixth or seventh questions, you will not answer this eighth question: Do you find from the evidence that the plaintiff dis-affirmed the agreement, if any, made with his mother to partition the land within a reasonable time, as that term has been defined to you, after arriving at the age of 21 years?”

The jury found against the appellant, and we are not willing to say that there is not evidence in this record to support their finding. Therefore we overrule this assignment.

By the appellant’s fourth assignment of error, the action of the court is called in question in rendering a portion of the amount of costs against him in the final disposition of said cause, in that he was a successful party to said cause, and there was no good cause shown why any portion of said costs should be adjudged against him, and the court adjudged same against him of his own volition.

The lower court, in his judgment, recites the following facts:

“The plaintiff in his suit prayed for a judgment for Yz of the timber cut by the Carter-Kelley Lumber Company, but was not able to show that he was entitled to recover but a V22 of the said % of the value of the timber, and therefore it is the judgment of the court that the plaintiff do .have and recover of and from the defendant V22 of the costs in this case, and the defendant recover of the plaintiff and his sureties 21/22 of the costs in this case.”

In the case of Morrow et al. v. Terrell, reported in 21 Tex. Civ. App. 28, 50 S. W. 734, it was held that under Revised Statutes, art. 1425, entitling the prevailing party to all costs, except as otherwise provided, and article 1438, authorizing the court on good cause to adjudge the costs otherwise, it was not an abuse of the discretion of the court to tax the costs in proportion of recovery, where one suing for a certain number of acres recovered a less number. In that ease it is said:

“It has been held that, in a suit where judgment is in part for one party and in part for another party, the costs may be apportioned (citing Cannon v. Hemphill, 7 Tex. 184; Payne v. Benham, 16 Tex. 364; Wheatley v. Griffin, 60 Tex. 209). What is ‘good cause’ for adjudging costs, ‘otherwise than provided,’ * * * is not stated in the statute, and it must in a great measure rest in the sound judgment of the trial court to say what it is. The trial court having adjudged the facts above recited as good cause for the apportionment of costs, we are not prepared to say that it abused its discretion; and, unless there is manifestly such abuse, we do not feel authorized in disturbing its judgment.”

So, in the instant case, it does not appear that the c'ourt, in adjudging the costs as above set out, abused its discretion. Therefore this assignment is overruled.

Finding no error in the trial of this case' by the lower court, the same is in all tilings affirmed.

Affirmed.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes