text:
    HOUSTON OIL CO. OF TEXAS v. GORE.
    (Court of Civil Appeals of Texas. Galveston.
    June 21, 1913.
    Rehearing Denied Oct. 9, 1913.)
    1. Vendor and Purchaser (§ 209) — Recon-veyance — Evidence.
    In trespass to try title, evidence held insufficient to show that A., to whom plaintiff made a verbal sale of the land in controversy in 1895, resold only a part of the land to plaintiff in 1904.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 425-427; Dec. Dig. § 209.]
    2. Appeal and Error (§ 695) — Record—Review— Insufficiency of Evidence.
    Under an assignment of error that the court erred in holding that plaintiff was only entitled to recover a part of the land sued for, in that A., to whom plaintiff had sold the land in 1895, resold but a portion thereof to plaintiff in 1904, it was appellant’s duty to set out at least the substance of all of the testimony on such issue ; it being insufficient to set out only the testimony of A., ignoring that of plaintiff to the contrary.
    [Ed.- Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2911-2914; Dec. Dig. § 695.]
    3. Adverse Possession (§ 43) — Right to Possession — Iaiprovements — Sale — Tacking — Privity.
    A verbal sale of the improvements and right of possession by one in possession of land under the ten-year statute of limitations, made before such possession and claim had matured into title under the statute, is sufficient to constitute privity between the vendor and ven-dee, and enable the latter to tack his possession to that of his vendor.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§, 213-224; Dec. Dig. § 43.]
    4. Frauds, Statute op (§ 71) — Interest in Land — Sale—Validity.
    Where adverse possession and claim to land have matured into title under the ten-year statute of limitations, a verbal sale of the land is void under the statute of frauds, in the absence of circumstances taking it out of the operation of the statute.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 83, 113-139; Dec. Dig. § 71.]
    5. Frauds, Statute oe (§ 129) — Interest in Land — Sale—Payaient op Purchase Money-Possession — Iaiprovements.
    Where one who has acquired title to land by adverse possession makes an oral sale thereof, payment of purchase money and taking possession by the vendee will not take the sale out of the bar of the statute of frauds, nor will the making of improvements have such effect, unless they are permanent and of some appreciable value bearing relation to the value of the land.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 287-292, 303, 306-308, 311, 314, 318-320, 322, 325, 326; Dec. Dig. § 129.]
    6. Frauds, Statute of (§ 71) — Interest in Land — Sale—Validity.
    Plaintiff, having acquired title to land in controversy under the ten-year statute of limitations, verbally sold the land to A. in 1895, and he verbally resold it to plaintiff in 1904, under an agreement that he might remain in possession, keeping up the fences, and looking after the improvements, and would surrender possession on demand. He remained in possession thereunder till 19Í0. The only evidence of A.’s improvements was that while in possession he cleared and added abput four acres to a field on a ridge. Reid, that both the sale by plaintiff to A. and the resale were void under the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 83, 113-139; Dee. Dig. § 71.]
    7. Trespass to Try Title (§ 7) — Title by Limitation — Effect.
    Plaintiff in trespass to try title, seeking to recover under a title by limitations, can only recover on the strength of his own title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 10; Dec. Dig. § 7.]
    8. Adverse Possession (§ 7) — Liaiitations— Government Title.
    Since limitations do not run against the state, and all land titles emanate from the sovereignty, plaintiff claiming title by limitation must show that the sovereignty has parted either with the legal title by patent or grant, or its equitable title by location or survey.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 24-42; Dec. Dig. § 7.]
    9. Adverse Possession (§, 114) — Title — Conveyance by State — Proof.
    Where plaintiff in trespass to try title claimed under the ten-year statute of limitations, proof that the land was part of a league survey, and that the record title was in a certain private corporation, sufficiently showed that the state had parted with its title prior to the commencement of plaintiff’s adverse possession in 1884, since no league grants could have been lawfully made since the adoption of the Constitution of 1876.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682, 683, 685, 686; Dec. Dig. § 114.]
    10. Trespass to Try Title (§ 47) — Partition.
    Where, in trespass to try title, it appeared that plaintiff was entitled to only a part of the land sued for by adverse possession, and that defendant was the record owner of the balance, the court was authorized to order a partition.
    [Ed. Note. — For other cases, see Trespass to Try. Title, Cent. Dig. §§ 69-71; Dec. Dig. & 47.]
    11. Trespass to Try Title (§ 50) — Costs— Apportionaient.
    Rev. Civ. St. 1911, art. 6125, providing for the apportionment of costs in partition, does not apply to an action of trespass to try title, where plaintiff and defendant were each found to be owners of portions of the land, and partition was ordered.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §■§ 80, 81; Dec. Dig. §, 50.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Trespass to try title by W. J. Gore against the Houston Oil Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Hightower, Orgain & Butler, and W. II. Davidson, all of Beaumont, and H. O. Head, of Sherman, for appellant. Singleton & Nall, of Kountze, for appellee.

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

   REESE, J.

This is an action in trespass to try title by W. ,J. Gore against the Houston Oil Company of Texas to recover 160 acres of land out of the Rafferty league in Hardin county. Plaintiff claimed title under the ten-year statute of limitation. Defendant pleaded not guilty and title under the statute ■of limitation of three years. Upon the trial without a jury, the court rendered judgment for plaintiff for 145 acres, to be taken as nearly as practicable in a square form to include his improvements, and to be an equitable partition between plaintiff and defendant. Commissioners were appointed to survey, set apart, and designate the 145 acres in accordance with the judgment aforesaid. The commissioners made partition accordingly, and made their report to the court, which, so far as the record shows, was not objected to by either party. The report was approved •by the court, and final decree entered, adjudging to plaintiff the tract of 145 acres so marked out and designated by the commissioners. Defendant filed a motion for a new trial, which was overruled, whereupon it prosecutes this appeal.

The following conclusions of fact of the trial court are approved and adopted as our conclusions of fact:

“(1) I find from the evidence in this case that the plaintiff, W. J. Gore, with Üis family, resided on the land in controversy in this suit in September, 1884, and immediately •commenced to make improvements and clear •and put in cultivation a farm thereon. That from September, 1884, to February, 1895, the plaintiff held peaceable and adverse possession of said land, cultivating, using, and enjoying the same, and claiming 160 acres thereof.

“(2) That when plaintiff first settled on the place he put in a small farm contiguous to his house, lots, cribs, and other improvements, which was increased in size at intervals during the next ten years. That some years after the first farm was opened, plaintiff cleared and fenced a 15-acre field, something like one-half mile from his other improvements, and across the creek therefrom, on what was known as ‘Peach Tree Ridge.’

“(3) That in February, 1895, plaintiff made a verbal trade with one Hr. Ard, by the terms of which Ard took possession of said place, agreeing to hold possession thereof, and turn over to plaintiff one-third of the corn raised thereon each year until the value of such corn should amount to $200, and that after such payment should be made plaintiff would deed to Ard the place, consisting of 160 acres. That said Ard went into possession under that agreement in February, 1895, and held possession of said place continuously, making a crop thereon each year until the end of the year 1910.

“(4) That some years after 1895, and approximately during the year 1904, and after Ard had delivered to plaintiff the amount of corn agreed to be delivered under said verbal contract, Ard and plaintiff made another verbal agreement, by the terms of which plaintiff was to pay Ard $100, and Ard agreed that plaintiff should have all of his right and title in and to said premises except the field across the creek known as the ‘Peach Tree Ridge field.’ It was further agreed between plaintiff and Ard that Ard should continue to hold possession of said premises, and have all the crops raised thereon, but was to keep up the fences and improvements and surrender possession to plaintiff whenever plaintiff made demand for same. That plaintiff then and there paid to Ard about $50, and during the summer or fall of 1910 paid the balance of the $100 agreed to be paid, and at the end of the year 1910 Ard surrendered possession to plaintiff, and plaintiff placed one Cunningham in possession as tena'nt, and that Cunningham lived on said place and made a crop thereon during the year 1911.

“(5) That while Ard was in possession he added about four acres to the Peach Tree Ridge field; but there was no testimony tending to show whether such improvement was made before or after he traded the place back to plaintiff Gore. That a crop was made on said place each year from 1885 to 1911, inclusive, by plaintiff and those holding in privity with him.

“(6) That on --— day of -, 1907, Ike Gore was living on the O. C. Nelson league, had a field of some 22 acres on the James Rafferty league near the south line thereof, and some three miles from the place claimed by plaintiff herein. That on the last above mentioned date the said Ike Gore signed an acknowledgment of tenancy to the Houston Oil Company of Texas for the whole Rafferty league, and said acknowledgment of tenancy was on the-day of-duly recorded in Hardin county, Tex. That said Ike Gore had been in possession of his said field on the Rafferty league, making a crop thereon each year for about 16 years before executing said contract with the Houston Oil Company of Texas, and that after executing said contract there was no change in the character of his possession. He continued to cultivate his 22-acre field, but did not exercise or attempt to exercise any control ov r any other part of said league.

“(7) I find in accordance with the agreement of counsel in this case that the legal title (except in so far as defeated by plaintiff’s limitation) is now in defendant Houston Oil Company of Texas to the entire Rafferty league; but there is no testimony to show when they connected themselves or their title with the state or sovereignty.”

By its first assignment of error appellant complains that the court erred in holding that plaintiff was entitled to 145 acres of the land sued for, and the judgment is contrary to the evidence in that the testimony shows that plaintiff sold the entire 160 acres to Neal Ard, wlio in turn sold back to Mm only tbe “House place” of about 20 or 25 acres. Tbe second assignment of error presents substantially tbe same question. In support of these assignments, in its statement of tbe evidence, appellant sets out only tbe testimony of Neal Ard on this point, entirely ignoring tbe testimony of appellee Gore, which certainly tbe court wias at liberty to accept, even if in conflict with that of Ard. This testimony is rather rambling, as is that of Ard; but tbe clear and unmistakable import of it is that appellee sold tbe entire 160 acres by verbal sale to Ard in 1895, who occupied it until 1904, and that in 1904 Ard sold it back to him, but appellee told him that be laid no claim to tbe little field on tbe “Peach Tree Ridge,” and that Ard might keep that part. All of tbe 160 acres except that “inside field,” as appellee called it, which embraced about 15 acres, Ard was to keep. This field was about half a mile from tbe main field and other improvements. Appellant seems to base this contention mainly upon tbe fact that Ard paid appellee $200 for tbe 160 acres, and when appellee bought it back be paid only $100, and from this be contends that be only got by this verbal sale one-half of tbe 160 acres. There is no support even in Ard’s testimony for this contention that be only sold back to Gore one-half of tbe land, and this is clearly and positively denied by appellee. Under tbe rules it was incumbent upon appellant, under such an assignment as this, to set out at least tbe substance of all of tbe evidence on tbe point, and specially to set out in substance all of the evidence supporting tbe conclusion which is attacked as not supported by tbe evidence. There is no merit in tbe assignments, which are overruled.

Under tbe third and fourth assignments of error appellant presents the contention that under tbe verbal sale to Ard of the 160 acres Ard paid tbe purchase money, went into possession, and made valuable improvements, and that, in equity, this took tbe verbal sale out of tbe statute of frauds, and was a valid conveyance of tbe land, and that as to tbe verbal sale and conveyance by Ard to appellee Gore there were no improvements made and no change in tbe possession, Ard continuing in possession until 1910, and this sale was void under tbe statute of frauds. A verbal sale of the improvements and right of possession by one in possession of land under tbe ten-year statute of limitation, made before such possession and claim has matured into a title under tbe statute, is sufficient to constitute privity between such vendor and vendee, and to enable him to tack bis possession to that of bis vendor. Johnson v. Simpson, 22 Tex. Civ. App. 290, 54 S. W. 308.

But after such possession and claim has matured into a title under tbe statute, a verbal sale of tbe land falls under tbe general rule, and is void under tbe statute of frauds, unless circumstances exist wMcb, under well-settled rules of equity, take it out of tbe operation of tbe statute. It seems to be well settled that in such case payment of tbe purchase money and taking possession alone will not suffice to relieve such sale from tbe bar of tbe statute of frauds. Ann Berta Lodge v. Leverton, 42 Tex. 18; Hibbert v. Aylott, 52 Tex. 530. Where tbe making of permanent and valuable improvements is relied upon, such improvements must bear some relation to tbe value of tbe property, and, if they are of very slight and insignificant value, they will not have this effect. Cobb v. Johnson, 101 Tex. 443, 108 S. W. 811; Lodge v. Leverton, supra; Eason v. Eason, 61 Tex. 227; Bradley v. Ousley, 74 Tex. 71, 11 S. W. 1052.

Tbe burden of proof is upon one who relies upon such improvements to take such verbal sale out of tbe statute to show that such improvements Were of such value, compared to tbe value of tbe land, as to answer tbe requirements of tbe law as stated in the decisions cited. In any ease it must be shown that such improvements were permanent and of some appreciable value.

There is in tbe present case no evidence whatever of tbe value of tbe improvements made by Ard under the verbal sale by appellee to him. The only evidence is that be cleared and added to tbe field on tbe ridge about four acres. Both of these sales were made after appellee’s title bad matured under tbe ten-year statute. It is true that ap-pellee left Ard in possession when he bought back from him, and be so remained in possession until 1910; but it was upon a distinct agreement that Ard was to keep up tbe fences, and take care of tbe improvements, instead of paying rent, until appellee demanded possession. This constituted Ard a tenant of appellee, as much so as another person would have been if appellee bad put Ard out and put such other person in under such agreement. The only difference between these two verbal sales, so far as tbe statute of frauds is concerned, then lies in tbe fact that Ard cleared tbe additional four acres, which, as we have shown under tbe authorities, bad no effect; no value being shown.

Another thing is to be taken into account with regard to these alleged improvements made by Ard. Appellee sold to Ard in 1895, and Ard sold back to him tbe 145 acres (excluding tbe ridge field) in 1904, but remained in possession as tenant of appellee until about 1910. Tbe evidence entirely fails to disclose when tbe alleged improvements were made by Ard. They might have been made after the sale by him to appellee in 1904, and as tbe improvements consisted in clearing and adding four acres to this ridge field, which was excepted out of tbe sale from Ard to appellee, clearly this would not operate to relieve tbe sale from appellee to Ard in 1895 of the bar of the statute of frauds. If one of these sales was void under the statute of frauds they both were. Under the authorities cited by appellant they were both void, and left the title in appellee to the entire 160 acres. The evidence conclusively establishes that appellee’s title to 160 acres was complete, as found by the court, in September, 1894, a year before the verbal sale to Ard. The third and fourth assignments of error and the propositions thereunder are overruled. What we have said also disposes of the fifth and sixth assignments of error, which are also overruled.

The seventh assignment of error presents the proposition that the evidence was not sufficient to support the judgment of the court sustaining appellee’s claim of title under the ten-year statute of limitation, because it fails to show when the state parted with its title, and that, as the statute did not begin to run in favor of appellee so long as the state had not parted with either the legal or equitable title, appellee has failed to establish his title, and was not entitled to recover.

The plaintiff seeking to recover on his limitation title under the ten-year statute could only recover on the strength of his own title. It is settled law that as limitation does not run against the state, and as all land titles emanate from the sovereignty, limitation did not begin to run in appellee’s favor until the sovereignty had parted with either the legal title by patent or grant, or the equitable title by location and survey. Kimbro v. Hamilton, 28 Tex. 560; Keys v. Mason, 44 Tex. 140; Montgomery v. Gunther, 81 Tex. 325, 16 S. W. 1073; Tarlton v. Kilpatrick, 1 Tex. Civ. App. 107, 21 S. W. 407. It follows that in order to entitle him to recover appellee was required to show ten years adverse possession in himself or those under whom he claimed title, after the state had parted either with the equitable or legal title.

There was no direct evidence as to the date of the issuance of the patent or the location and survey of the Rafferty league; but it was agreed, as part of the evidence in the case, “that the record title of the land in controversy herein and of the James Raf-ferty league is in the defendant, the Houston Oil Company of Texas.” Here we have two facts established; that the land in controversy was part of a league survey, and that this league had been located, surveyed, and patented or granted by the sovereignty, otherwise the record title could not be in the Houston Oil Company of Texas. There has been no authority for the grant of a league of land or the issuance of a certificate for a league of land by the state, nor could such grant have been made or certificate issued at least since the adoption of the Constitution of 1876. It is not necessary to the decision of the question involved to go back further than this.- The only league grants in fact ever authorized were the headrights given to heads of families by the colonization laws of 1825 (1 Sayles, Early Laws of Texas, art. 47; 1 Sayles, Real Estate Laws of Texas, c. 5) and by the Constitution of the Republic of 1836 (General Provisions, § 10). It was provided by section 2, art. 14, of the Constitution of 1876: “All unsatisfied genuine land certificates now in existence shall be surveyed and returned to the General Land Office within five years after the adoption of this Constitution (April 18, 1876) or be forever barred.” The certificate for the Rafferty league could not legally have come into existence since the adoption of this Constitution, and could not legally have been located after April 18, 1881. It conclusively follows, from the fact that this was a league grant to a citizen, and that it had been located, surveyed, and patented, which was necessary in order that appellee should have the record title, that it was surveyed and the field notes returned to the General Land Office prior to April 18, 1881, that is, within five years after the adoption of the Constitution of 1876. The title was thus shown to have been out the state at least at the time appellee’s possession began in 1884. We are inclined to think, but do not decide the point, as it is not necessary to a decision of the question presented by the assignment, that the court could take judicial notice of the contents of the published abstracts of land titles published by the comptroller as provided by the act of March 9,1875 (General Laws 1875, c. 56, p. 71), from which it appears that the James Rafferty league in Hardin county (and the only James Rafferty league in that county) was patented August 18, 1835. It follows from what we have said that the seventh assignment must be overruled.

The court was authorized to order partition of the land, as was done. No objection was made to the report of the commissioners of partition, nor is it shown in any way that they did not make a just and equitable partition of the land as they were ordered to do. Lumber Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110; Lumber Co. v. Stewart, 130 S. W. 199. There is no merit in the eighth and ninth assignments of error, which are overruled.

The court adjudged all costs (which included costs of the partition) against appellant, to which it objects by the tenth assignment of error. We do not think that the provisions of article 6125, R. S. 1911, control the judgment for costs in this kind of a proceeding, and that the court committed no error. But if it were it was. the duty of appellant to make the objection in the trial court. There was a motion for a new trial by appellant; but therein no objection was made to the judgment, in the matter complained of in this assignment, which is overruled.

We find no error requiring reversal, and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: REESE, J.

license: Public Domain

text:
    STEWART et al. v. BLAIN et al.
    (Court of Civil Appeals of Texas. Galveston.
    June 7, 1913.
    Rehearing Denied Oct. 9, 1913.)
    1. Deeds (§ 134) — 'Construction—“Conditional Limitation” — Condition Subsequent.
    Where a grantor conveyed land to a county judge for a schoolhouse for colored children, the deed providing that in the event of the removal of the schoolhouse therefrom the land should revert to the ■ grantor, his heirs or assigns, and the deed should become inoperative, such provision was a conditional limitation, and not a condition subsequent, so that on the property ceasing to be used for colored school purposes the title reverted to the grantor or his heirs.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 448, 449; Dec. Dig. § 134.

    For other definitions, see Words and Phrases, vol. 2, pp. 1407, 1408.]
    2. Deeds (§ 166)— Conditional Limitation — Judgment — Subsequent Deed by Adverse Claimant — Effect.
    B. conveyed a portion of a tract of land to the county judge for a colored school, subject to a conditional limitation that the land should revert to his heirs or assigns in case the county ceased to use the property for such purposes. Thereafter a' judgment was rendered against B. in favor of an adverse claimant of the entire tract, after which, in order to settle the litigation, such claimant executed a deed of the land to B., in which she ratified and confirmed the deed of B. to the county. Held, that such deed by the adverse claimant did not destroy the "conditional reversion in B.’s deed to the county, but left it in full force.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 522-525; Dee. Dig. § 166.]
    3. Deeds (§• 160) — Construction—Conditional Limitation — Reversion.
    Where a deed conveying land to a county judge for a colored school provided that in case of the removal of the schoolhouse therefrom by the county judge or his successors, the land should revert to the grantor, his heirs or assigns, a subsequent sale of the property by the •county, and the abandonment of the land for school purposes, amounted to a removal of the schoolhouse therefrom within the limitation, so as to authorize the enforcement of the reversion, though the schoolhouse in fact remained on the land.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§,505-517; Dec. Dig. § 160.]
    4. ScnooLS and School Districts (§§' 48, 82) — Counties (§§ 59, 124) — Liability on Covenants in Deed.
    Where county officers executed a warranty •deed of property conveyed to the county for school purposes and warranted the title in their official capacity, they were not liable personally for breach of the warranty, nor did the warranty impose any liability on the county or school district in the absence of proof that the officers were authorized to bind either thereby.
    [Ed. Note. — For other cases, see Schools and •School Districts, Cent. Dig. §§ 100-111, 160, 197, 198; Dec. Dig. §§■ 48, 82; Counties, Cent. Dig. §§, 83, 84, 185; Dec. Dig. §§ 59, 124.]
    Appeal from District Court, Jefferson County; W. H. Pope, Judge.
    Trespass to try title by W. R. Blain, in which Henry Lee and others intervened claiming the land, against Jesse R. Stewart and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Chas. D. Smith and Morris M. Mothner, both of Beaumont, for appellants. Blain & Howth and M. G. Adams, all of Beaumont, for appellees.

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

   REESE, J.

This is an action in trespass to try title by W. R. Blain against Jesse R. Stewart to recover one acre of land. Stewart pleaded not guilty and the statute of limitations of three, five, and ten years. He further alleged that he had bought the land from the county judge and commissioners of Jefferson county and the school trustees of school district No. 6, who had warranted the title, and he asked that they be made parties, and that if judgment be rendered against him he recover of his said warrantors the price paid, $450. These parties came in and answered, admitting the sale, conveyance, and warranty as alleged. Henry Lee and his wife, Ollie Lee, and C. H. Ainsworth intervened, claiming title to the land. A trial without a jury resulted in a judgment for the interveners, from which the defendant Stewart appeals. Pending the trial W. R. Blain conveyed his right, title, and interest to the interveners.

The case was tried upon an agreed statement of facts, which is incorporated in the record and is as follows:

“First. On the 21st day of October, 1876, Thomas G. Watson and his wife, by deed in Volume ‘R,’ p. 408, deed records of Jefferson county, conveyed to Zelian Blanchette a tract of 40 acres, more or less, out of the J. W. Bullock survey in Jefferson county, described by field notes as follows: ‘Beginning 3,450 varas from the northeast corner of the J. W. Bullock league, a stake for corner; thence south 350 varas, a stake for corner; thence west 730 varas, a stake for third corner; thence north 350 varas, a stake for the fourth corner; thence east to place of beginning.’

“Second. On the 15th day of August, 1885, by deed duly recorded on that day in Volume ‘X,’ p. 450, of the deed records of Jefferson county, Zelian Blanchette and wife conveyed to the county judge of Jefferson county, and his successors in office, one acre out of the 40-acre tract above referred to, which is the land here in controversy, which deed is as follows, to wit:

“ ‘The State of Texas, County of Jefferson.

“ ‘Be it known that I, Zelian Blanchette, of the above state and county, for and in consideration of the sum of one dollar to me in hand paid by the county judge of said county, J. F. Pipkin, have bargained, sold and conveyed and do hereby bargain, sell and convey to the county judge as aforesaid, and his successors in office, for the purpose of erecting a sehoolhouse, for the benefit of the colored school community No. 4, one acre of land bounded and described as follows: Out of the J. W. Bullock league, and the southeast corner of my tract, bought by me from Thos. Watson and beginning at the southeast corner as aforesaid; thence north 75 varas; thence west 75 varas; thence south 75 varas; thence east 75 varas to the place of beginning. To have and to hold unto the said J. J. Pipkin, county judge of Jefferson county, and his successors in office forever, hereby warranting and defending the title to same from any claim or demand whatsoever, it being expressly understood that in event of the removal of the sehoolhouse therefrom by said county judge and his successors in office the said acre of land shall revert back to me or my heirs or assigns, and this deed shall become thereafter void and inoperative. Witness my hand at Beaumont, this 15th day of August, A. D. 1885.

“ ‘Zelian X Blanchette, mark
“ ‘Witnesses: J. Bordage. W. Pipkin.
“ ‘The State of Texas, County of Jefferson.
“ ‘Sworn to before L. L. Miller, clerk of the county court of Jefferson county, by I. Bord-age, Deputy. [Seal.] ’

“Third. On the-day of-, 18-, Maggie Polk, joined by her husband, L. B. Polk, brought suit in the district court of Jefferson county, which suit was styled Maggie Polk et al. v. Jeff Chaison et al. and numbered 1,015, and the 40, more or less, acres of land conveyed to Zelian Blanchette in 1876 by Thomas G. Watson and wife, as shown above, were involved in said suit, and said Maggie Polk on the 6th day of June, 1889, recovered judgment in said suit against Blanchette for the entire tract. Said judgment, as it affected said tract of land, was to this tenor and effect: Blanchette having pleaded improvement in good faith, both the land and improvements were separately valued, and the plaintiffs, Mrs. Polk et al., were given one year from the date of judgment to pay to Blanchette the amount assessed as the value of his improvements; if Mrs. Polk et ah failed to pay said amount within the time specified, then Blanchette had six months after the expiration of said time in which to pay to Mrs. Polk et al. the amount assessed as the value of the land and take title to same. The judgment was settled between the parties by the execution of the following deed:

“ ‘The State of Texas, County of Jefferson.
“ ‘Know all men by these presents that we, Mrs. Maggie Polk (sole heir at law of Matthew S. Miller, deceased) and her husband, L. B. Polk, by their legally authorized agent and attorney in fact, E. A. Blount, all resident of the county of San Augustine, in the state aforesaid, for and in consideration of the sum of one hundred and twenty-nine ($129.00) dollars to us paid and secured to be paid by Zelian Blanchette (sometimes called Azalia Blanchette) as follows: Fifty dollars in cash, the receipt whereof is hereby acknowledged, and the balance as evidenced by his three promissory notes by him executed to us, payable to our order for three equal amounts of $26.33% (twenty-six and 33%/TOO dollars) with interest on each at rate of ten per cent, per annum from date until paid and due and payable, viz.: The first due the 18th day of June, 1890, but may be paid on or before the 18th day of June, A. D. 1891, with vendor’s lien, etc., recited therein; have granted, sold and conveyed and by these presents do grant, sell and convey unto the said Zelian Blanchette of the county of Jefferson and state of Texas all that certain piece, parcel or tract of land in said last named county and state, being a part of the north half of the James W. Bullock league, and being the same tract of land of about 45% acres, more or less, mentioned and called the land of Zelian or Azalia Blan-chette in the decree of the district court of said county at its spring term 1889 in case of Maggie Polk et al. v. Jeff Chaison et al., and being all of said 45% acres less than, and except the 12 (twelve) acres by us this day deeded and conveyed by consent of said Blan-chette to Albert Andrus, and less the one acre more or less of land heretofore conveyed by said Blanchette to the county judge of Jefferson county for school purposes, which conveyance we hereby ratify and confirm and for which acre of land he does not pay and we, the undersigned Zelian Blanchette and his wife, accepting this deed with the deed to Albert Andrus as a full final and conclusive adjustment of all matters left unsettled by said decree, do hereby release and relinquish all our rights and privileges to purchase or take said land or only part thereof at the appraised and decreed value thereof, as stipulated and provided for therein. To have and to hold the above described premises, together with all and singular, the rights and appurtenances thereto in anywise belonging unto the said Zelian Blanchette and his heirs and assigns forever, and we do hereby bind ourselves and our heirs, executors and administrators, to warrant and forever defend all and singular the said premises unto the said Zelian Blanchette and his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. But it is expressly agreed and stipulated that the vendor’s lien is retained against the above described property, premises and improvements until the above described notes and all interest thereon are fully paid according to their face and tenor, effect and reading, when this deed shall become absolute. Witness our bands this 18tb day of December, A. D. 1889.
“ ‘Maggie Polk,
“‘L. B. Polls,
“ ‘By Tbeir Agent and Attorney,
“ ‘E. A. Blount, his
u ‘[Signed] Zelian X Blanchette.
mark
■‘ ‘Witnesses to Zelian’s signature: G. W. O’Brien. J. B. Langham, Jr.’
“Fourth. Neither the county judge, Jefferson county, nor the school trustees, were parties to the suit above referred to, wherein said judgment was recovered by Maggie Polls et al.
“Fifth. The county, through its proper officers, immediately tools possession under the deed from Blanchette of the one acre conveyed to it by him on the 15th day of August, 1885, and duly recorded the deed and from that date continuously and uninterruptedly, peaceably occupied, used, and enjoyed the same (for school purposes) until the 9th day of August, 1910, when it was conveyed to the defendant herein for a consideration of $450, which said fund was by the school authorities, under direction of the proper county authorities, immediately reinvested in other school property for the use and benefit of the colored population for whose benefit the school has always been maintained thereon.
“Sixth. It is agreed that the deed from the county and school authorities to the defendant Stewart was regular in every particular.
“Seventh. The said one acre in controversy has not been used for school purposes since it was conveyed to the defendant on August 9, 1910, but the schoolhouse still remains thereon.
“Eighth. It is further agreed that the said Zelian Blanchette and his wife are both dead, and that they left surviving them the following children: A daughter named-, who
married Henry Lee and • who is now dead, without issue; another daughter, Ollie Gainer, who is now the wife of the said Henry Lee, and a son, Sidney Blanchette.
“Ninth. The said Sidney Blanchette conveyed all of his interest in the land in controversy to O. H. Ainsworth, by deed dated -day of -, 19-, and recorded in Volume 108, p. 439, of the deed records of Jefferson county, Tex.
“Tenth. It is further agreed that the said L. B. Polk is now deceased and that Maggie Polk, acting by and through her attorney in fact, E. A. Blount, conveyed the land in controversy to the plaintiff, W. R. Blain, by quitclaim deed dated 25th day of October, 1910, which is recorded ih Volume -, p. —--, of the deed records of Jefferson county, Tex.
“Eleventh. At the time of the conveyance from Zelian Blanchette to the county judge of the land in controversy, Maggie Polk was a married woman, and her husband, L. B. Polk, was still living on the day upon which the act removing the disabilities of married women went into effect.
“It is agreed that since the institution of this suit the plaintiff, W. R. Blain, has conveyed whatever interest he acquired in the land in controversy from Maggie Polk to the interveners, Ollie Lee and O. H. Ainsworth.”
Upon these facts the trial court concluded that upon the abandonment of the property as school property, and sale thereof by the county authorities, the title and right of possession reverted to the heirs and assigns of Zelian Blanchette, the interveners.

Most of appellant’s brief is devoted to a discussion of the question, presented by his first assignment of error, involving the distinction between a conditional limitation and a condition subsequent. Appellant’s contention is that the provision for reversion in the deed of Zelian Blanchette to the county judge is a condition subsequent, and not a conditional limitation, and (1) did not survive to the grantor’s heirs, (2) was not capable of conveyance to a stranger (Ainsworth), and (3) could not be asserted without re-entry. We are inclined to hold that, even under the fine spun theorizing with regard to the largely fanciful distinction between a condition subsequent and a conditional limitation, the provision in question in the deed is a conditional limitation. Templeman v. Gibbs, 86 Tex. 362, 24 S. W. 792; Green v. Gresham, 21 Tex. Civ. App. 601, 53 S. W. 382; Stearns v. Godfrey, 16 Me. 158; Williams v. Jones, 166 N. Y. 522, 60 N. E. 240; Church, etc., v. Grant, 3 Gray (Mass.) 142, 63 Am. Dec. 725. The sense and evident intention of it was that the grantees were to own and possess the property as long as it was used for school purposes. But we do not find it necessary to follow appellant in what is so learnedly discussed in his brief with regard to this distinction. Neither of the parties to the deed had in mind any such distinction. They came to an agreement about the matter and endeavored to express their meaning by the language of the deed. The property was a gift or donation from Blanchette, and he had a right to make what conditions and limitations he chose. The property is conveyed to the county judge “for the purpose of erecting a schoolhouse for the benefit of colored school community No. 4, * * * it being expressly understood that in the event of the removal of the schoolhouse therefrom by said county judge and his successors in office or the school trustees, or their successors in office, the said acre of land shall revert back to me or my heirs or assigns, and this deed shall become thereafter void and inoperative.” It seems to us that this language expresses the intention of the parties in terms so plain that the court would not be authorized to resort to any recondite distinction between a conditional limitation and a condition subsequent, or technical definition of these terms, in order to arrive at such intention, nor to make use of such to thwart such expressed intention. It seems to us that these provisions mean, and were intended to mean, that the grantees should own and use and enjoy the property so long as it was so used for the purpose for which it was conveyed, and that '.when thi^ .condition ceased the title and right of possession should at once revert to the grantor, “or his heirs or assigns.” What other effect could follow from the provision that the deed, upon such contingency, should “become thereafter void and inoperative”; that is, should become as though it had never been executed? The grantees have title only by virtue of the deed. What becomes of their title when the deed by its own terms becomes “void and inoperative”? This contingency is carefully provided for in the deed. It shall “revert back to me, or my heirs or assigns.” From this view the title did revert to Mrs. Lee and Sidney Blanchette, and thereafter by his deed Sidney Blanchette’s interest passed to C. H. Ainsworth.

As to the effect of the judgment in favor of Mrs. Polk and the subsequent contract and agreement between her and Blan-chette, whereby, for a valuable consideration, Mrs. Polk “ratified and confirmed” the deed of Blanchette to the county judge, which deed or contract between Blanchette and Mrs. Polk is set out in full, we are of the opinion that the effect of such confirmation was to leave the title of the grantee in Blan-chette’s deed just where it would have been if Mrs. Polk had never asserted her title to the land. It takes the one acre out of the operation of the judgment, in substance and effect, and leaves the title of the grantee to rest ¡on Blanchette’s deed, reinforced by Mrs. Polk’s confirmation. It is contended by appellant that this destroyed the conditional reversion provided for in the deed. The defendant Blain, who had a quitclaim from Mrs. Polk, contends that it passed to her; the interveners contend and the court concluded that it did not affect this conditional reversion at all, but left it as it was. We think this latter view correct.

There was no question of limitation in the case. If the conditión for reversion was destroyed by Mrs. Polk’s judgment and deed to Blanchette, neither the plaintiff nor inter-veners have any title. If it was not, then the cause of action asserted by appellees, or either of them, did not arise until the removal of the schoolhouse, which was immediately followed by the sale of the property to the defendant Stewart which was in 1910. This sale and the abandonment of the land for school purposes was to all intents and purposes “a removal of the schoolhouse therefrom.” The building may be there yet, but it is not a schoolhouse.

It is assigned as error that the court failed to render judgment against the county judge, the members of the commissioners’ court, and the trustees of the school district on their warranty of title. The only evidence on this point in the agreed statement is that the land “was conveyed to the defendant herein for a consideration of $450.” It was alleged in the petition that the persons impleaded as warrantors had executed a deed to the appellant in which they had “officially” warranted the title, and these parties, in their answer, admitted that they had executed the deed and warranted the title as so alleged; that is, they admitted that they had in their official capacity' warranted the title. This did not impose upon them any personal liability. They were agents, the county judge and the commissioners of the county, and the school trustees of the school district. Did this official warranty impose any liability upon the county and the school district? It is not shown by this admission in their answer that they were authorized to so bind either the county or the school district. Under this showing the court did not err in refusing to render judgment, either against these parties individually, or the municipal bodies which they officially represented.

We have carefully examined the several assignments of error and the propositions thereunder. Our conclusion is that none of them presents any grounds for reversal of the judgment. They are severally overruled. The judgment is, we think, correct, and is affirmed.

Affirmed.


author: PLEASANTS, C. J.

text:
    NONA MILES CO. et al. v. JACKSON et al.
    (Court of Civil Appeals of Texas. Galveston.
    June 27, 1913.
    Rehearing Denied Oct. 9, 1913.)
    1. Trespass to Try Title (§ 41) — Actions —Evidence—Sufficiency.
    In trespass to try title evidence held sufficient to support a finding in plaintiff’s favor and not to necessitate a finding in favor of defendant.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dee. Dig. § 41.]
    2. Trespass to Try Title (§ 41) — 'Weight and Sufficiency.
    In trespass to try title, where both parties claimed under a location made under a certificate which concededly belonged to plaintiffs’ ancestor at one time, plaintiffs’ long acquiescence in the claim of defendants is not entitled to much weight where there was nothing to show that they knew that their ancestor ever owned the certificate under which the land was located; it appearing that it was not recorded in the county and had not been issued directly to him.
    [Ed. Note. — Eor other cases, see Trespass to Try Title, Cent. Dig. §■§ 62, 63; Dec. Dig. § 41.]
    3. Tenancy in Common (§ 55) — Rights of Tenants in Common.
    While one tenant in common is, as against a trespasser, entitled to the possession of the entire tract, a single tenant cannot, where the fee is injured, recover more than that portion of the damages to which his interest entitles him.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §,§ 140-156; Dec. Dig. § 55.]
    4. Appeal and Error (§ 1172) — Determination of Case — Reversal.
    Under Court Rule 62a (149 S. W. x), providing that if an error affects part only of the matter in controversy and the issues are sever-able the judgment shall be reversed and a new trial ordered only as to that part corrected, the whole judgment in trespass to try title brought by only part of the tenants in common, wherein damages for the cutting of timber were also recovered, will not be reversed, but only that part which improperly awarded the entire damages to plaintiffs.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4555^561; Dec. Dig. § 1172.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Trespass to try title by Ambrose Jackson and others against the Nona Mills Company and another. From a judgment for plaintiffs, defendants appeal.
    Affirmed in part, and in part reversed and remanded, with instructions.
    Greer & Minor, of Beaumont, Sleeper, Boyn-ton & Kendall, of Waco, and Singleton & Nall, of Kountze, for appellants. Jno. L. Little, of Kountze, for appellees.

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

   PLEASANTS, C. J.

This is an action of trespass to try title and for damages brought by the appellees against the appellants. The land in controversy is a tract of 220 acres in Hardin county patented to Cor-1 bet Stevens. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiffs against the defendants Nona Mills Company and W m. Cameron & Co. for the title and possession of the land, and against the defendant Wm. Cameron & Co. for the sum of $1,600, the value found by the jury of the timber cut from the land by said defendant.

The record discloses that the original certificate by virtue of which the land was patented was a bounty warrant for 320 acres issued by the Secretary of War for the republic of Texas to Corbet Stevens on December 11, 1837. This certificate, which is now in the Land Office, has indorsed thereon transfers from Corbet Stevens to Wm. Daniel, from Wm. Daniel to Wm. H. Sewall, and from Wm. H. Sewall to Thomas Hughes. The transfer to Hughes bears date August 25, 1838. One of the witnesses to this transfer, John P. Wilds, proved it for record before G. W. O’Brien, county clerk of Liberty county, on December 14, 1858. The certificate, as shown by file marks thereon, was filed in the Land Office on February 9, 1860, and again on December 31, 1874. It was first located in Liberty county in 1856 on two tracts of land, one containing 220 and the other 100 acres. These locations were void because made on titled land.

Thomas Hughes died in 1851, and his estate was administered by John P. Wilds, who was his father-in-law. The inventory of Hughes’ estate, which was filed on October 27, 1851, contains the following list of lands and land claims belonging to said estate:

Half league land. $350 00
One land certificate for 1,000 acres.. 50 00
One land certificate for 1,000 acres... 50 00
One labor of land. 2Ó 00
One labor of land in Jefferson county 20 00
The chance for 200 acres land. 20 00
The chance for 320 acres land. 20 00
The chance for 640 acres land. 30 00

In October, November, and December, 1870, J. N. Dark, who had married a niece of John P. Wilds, and who lived near to and was intimately acquainted with Wilds and his daughter, the widow of Thomas Hughes, published for 60 days in the Liberty Observer, a weekly newspaper published at Liberty, Tex., a notice of the loss of the Corbet Stevens 320-acre certificate, and of his intention to apply for a duplicate of said certificate. In January 1871, Dark made affidavit of his ownership of said certificate, and its loss. On February 22, 1871, the land commissioner issued and forwarded to Dark a duplicate certificate; the fee for said certificate having been paid by Dark. The land in question was surveyed on July 10, 1873, and patent issued on May 1, 1874. On September 29, 1874, Dark conveyed the land to S. E. Parker, and through mesne conveyances this title became vested in appellant Nona Mills Company on October 29, 1886. On December 31, 1874, the original certificate was returned to the Land Office by W. 0. Snider, county surveyor of Harrison county, together with the field notes of a location in Harrison county, which purported to have been made for Thomas Hughes, assignee of Corbet Stevens, on July 10, 1874. These are the only field notes in the Land Office of any location made under this certificate. The indorsements on the wrapper of the file of the Harrison county location shows that the location was canceled by the Land Office because the duplicate certificate had been issued and land located and patented thereunder. Sarah Hughes, the widow of Thomas Hughes, married the second time. Her second husband died in 1864, after which she lived with her father, John P. Wilds, at Sour Lake until his death in 1871. After her father’s death she continued to live at his home until her death in 1872. Dark and those who have claimed under him have paid taxes on the land continuously since 1875, and their assertion of ownership has been open and continuous. The appellees are heirs of Thomas and Sarah Hughes. Several of them are children of said Thomas and Sarah and have lived in the vicinity of the land all their lives, and none of them ever asserted any claim to the land until shortly before this suit was filed.

Under appropriate assignments of error appellants assail the verdict on the ground that it is unsupported by the evidence in that “the undisputed facts and circumstances in evidence show that J. N. Dark, under whom these defendants claim title to the land in controversy, was the owner of the certificate by virtue of which the land was granted, and the facts and circumstances in evidence • showing such ownership of said J. N. Dark are so cogent and persuasive that a reasonable mind could reach but one conclusion therefrom, to wit, that said J. N. Dark had acquired the title to said certificate.” While the circumstances shown by the evidence are sufficient to authorize the finding that Dark was the owner of the certificate, they do not require such finding. The long acquiescence of the heirs of Thomas Hughes in the claim of those hold* ing under Dark is not entitled to much weight for the reason that there is nothing in the record to indicate that the children of Thomas Hughes or any of the plaintiffs in this suit knew that Thomas Hughes ever owned the certificate upon which the land was located. The certificate was not issued to Hughes and there was no record in Hardin county showing the transfer to him. Such being the facts, the long acquiescence of Hughes’ heirs in the claim of the land by those holding under Dark was probably due to the fact that they did not know that their ancestor ever owned the certificate, and not to any knowledge or belief on their part that his title'to the certificate had passed to Dark. The circumstances shown by the evidence are not conclusive of the fact that either John P. Wilds, the administrator of the estate of Thomas Hughes, or Sarah Hughes, his widow, knew of the claim of Dark to the certificate. His affidavit of ownership and loss of the certificate upon which the duplicate was issued was not made until January, 1871. This affidavit was filed in the Land Office, and it is not improbable that Wilds, who died during that year, and Mrs. Hughes, who died in 1872, knew nothing of such affidavit or of the notice of loss of the certificate which was published in the Liberty Observer in the fall of 1870. The land was not surveyed under the Dark claim until 1873, and was not patented until 1874. We do not think these facts compel the finding that Wilds or Mrs. Hughes had knowledge of Dark’s claim. The assignments complaining of the verdict on the grounds stated cannot be sustained.

Complaint is also made of the judgment in favor of plaintiffs for the $1,600 found by the jury to be the value of the timber taken from the land by the appellant Wm. Cameron & Co., on the ground that the evidence shows that plaintiffs are not all of the heirs of Thomas Hughes and fails to show definitely what interest in the property is owned by plaintiffs. We think the assignments presenting this complaint should be sustained. As tenants in common with the other heirs of Thomas Hughes who are not parties to this suit, plaintiffs were entitled to recover against the defendants, who had no title, the title and possession of all of the land; but they could only recover that portion of the damages to which their interest in the land entitled them. The evidence shows that they are not entitled to recover all of such damages, and fails to show what portion thereof belongs to them.

The judgment of the court in favor of the plaintiffs for the land in controversy and that portion of the judgment fixing the damages at $1,600 is affirmed. That portion of the judgment awarding plaintiffs $1,600 found by the jury to be the value of the timber taken from the land is reversed, and the cause remanded to the court below with instructions to hear evidence upon the question of what interest in said sum belongs to plaintiffs and give judgment accordingly. Rule 62a (149 S. W. x).

Affirmed in part. Reversed and remanded in part, with instructions.


author: HUFF, C. J.

text:
    HOOPER et al. v. ACUFF.
    (Court of Civil Appeals of Texas. Amarillo.
    June 21, 1913.
    Rehearing Denied Oct. 11, 1913.)
    1. Trespass to Try Title (§ 8) — Right to Sue — Possession—School Land.
    Mere possession of school land, without a showing of right thereto, will not confer a right to maintain trespass to .try title to an adjoining disputed strip of land of which plaintiff was not in actual possession.
    ■ [Ed. Note. — For other cases, see Trespass to Try Title, Cent Dig. § 11; Dec. Dig. § 8.]
    2. Trespass to Try Title (§6) — Rights of Plaintiff — Strength of Title.
    Plaintiff in trespass to try title must recover on the strength of his own title, and not on the weakness of his adversary’s.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5--9, 15, 16; Dec. Dig. § 6.]
    3. Adverse Possession (§ 13) — Limitations —Occupation—Disputed Boundary.
    Where, in a suit to determine the location of a disputed boundary line between two sections, all under one fence, plaintiff was in possession of one section under a lease, and had no color of title as to the other and no actual possession of the strip in dispute, he was a mere intruder, and was not entitled to the benefit of the three-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76; Dec. Dig. § 13.]
    4. Adverse Possession (§ 31) — -Nature of Holding — Notice to Owner.
    Possession required to give a claimant the benefit of the statute of limitations must be such as to charge the real owner with notice of a hostile holding.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 128-133; Dec. Dig. § 31.]
    5. Adverse Possession (§ 85) — Color of Title — Evidence.
    Proof of a conveyance dated June 3, 1901, from A. and wife to plaintiff, conveying the A. survey, giving field notes and a patent as in the state abstract book, and also conveying the W. A. pre-emption claim, which by the recitals of the deed appeared to be a reconveyance from A. to plaintiff, he having, theretofore conveyed the same to A., was sufficient to show title in plaintiff under the 10-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 313, 498-503, 656, 657, 660, 668, 688-690; Dec. Dig. §- 85.]
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Trespass to try title by M. S. Acuff against Ed. Hooper and others. Judgment for plaintiff, and defendants appeal.
    Affirmed in part, and reversed in part.
    W. D. Benson, of Lubbock, for appellants. W. H. Bledsoe and H. C. Ferguson, both of Lubbock, for appellee.

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

   HUFF, C. J.

The appellee, M. 8. Acuff, brought this suit against appellants, Ed. Hooper, J. F. Collett, and H. T. Randell, in the nature of trespass to try title. The real question at issue in the case should have been the true location of the boundary line between section 44, block 1, claimed by ap-pellee, and section 43, claimed by appellants, and the location of the north boundary line of section 43 and the south boundary line of pre-emption surveys, one in the name of T. A. Acuff, and the other in the name of M. S. Acuff. However, there is no agreement of title in the respective claimants, and hence it devolved upon the appellee to establish the right of possession of the strip of land claimed by him. He also claims the land by three, five, and ten years statute of limitation in his petition. As to section 44, all the evidence offered by appellee is the proof of occupancy filed in the land office July 14, 1898. The application to purchase the obligation, award, payment of interest, or the standing of the sections in the land office was not shown, so that the only right shown to section 44 in appellee is one of possession, which he claims to have had since 1892. Ap-pellee testified he went into possession of section 44 at the time he claims to have filed on the land, and that he fenced the section according to the survey made for him by the then county surveyor. The testimony shows that the title to section 43 is in appellants, and that some time in 1910 — the evidence is not clear just when — appellants had their section run out by a surveyor, and established the west line of section 43 some distance west of where appellee claimed it to be. Appellants, after such survey, erected a fence on what they claimed as the west line of section 43. The strip between the two lines is part of the land in controversy. Ap-pellee testified after he erected his fence in 1892, on what he claims to be the east line of section 44, that he in 1898 leased from the then owner of section 43, and that he then took down the fence on the east line of section 44, and moved it on the east line of section 43, and since said time there had been nothing between the two sections to mark the division line. For some time, just how long is hot shown, appellee used section 43 under his lease, together with his other lands. It is contended, because he had possession of section 44 for more than 10 years, that he could go to the line as he claimed it to be without having actual, visible possession of the disputed strip. The two sections were, as we gather from the evidence, under one inclosure, without anything, since 1S98, to mark the line between the two, as the land claimed by appellee. It should be stated that appellee first filed on section 44, according'to his oral testimony, in 1892, and afterwards permitted it to forfeit, and again filed on it some time in 1898, but during the time of its forfeiture he continued to live on section 44.

We do not think that mere possession of school land, without showing some right thereto, will give appellee the right to maintain an action of trespass to try title. Snyder v. Nunn, 66 Tex. 255, 18 S. W. 340; Gracey v. Hendrix, 93 Tex. 26, 51 S. W. 846, 847; Thompson v. Autry, 52 S. W. 581. We do not think the mere fact that appellee was claiming section 44 gave him the right to maintain trespass to try title to a disputed strip of land when he was not in actual possession of the land in question. When the appellants erected their fence they did not trespass upon the land or break the inclosure of appellee, but admittedly both sections 43 and 44 were under one inelosure, with no visible mark designating appellee’s claim of possession.

We do not believe the case of Watkins v. Smith, 91 Tex. 591, 45 S. W. 560, applicable to the facts in regard to this section. In eases falling under the rule there announced, there was either a deed to the particular land designating the boundaries, or actual possession of the land in dispute. If appel-lee had shown a contract to purchase all of section 44 from the state, then his line would go where the court should find the field notes placed it. The fact that he was occupying some portion of section 44 does not give him the right to all of it when he has no deed to it or possession of the disputed land. Even though the court may have found section 44 situated on the ground as claimed by appellee, he could not recover under the title introduced in evidence by him. He must recover on the strength of his own title, and not the weakness of that of his adversary.

The statute of limitation we do not believe will aid appellee as to this section. He did not have three years’ possession under color of title. The last filing, according to his oral testimony, was in 1898, at which time he leased section 43 and took down his fence and placed it on the east line of section 43. He was holding section 43 as a tenant for the owner, which would constructively go to the true boundaries. These two surveys were made at the same time, calling for each other, and were part of the same block. The boundary line between the sections depended upon the true location of the block. There is testimony which will sustain the court’s judgment placing the lines as claimed by appellee. If the lines were so located, when appellants placed their fence on what they claimed as their west lines to section 43, they were intruders. But as appellee showed no title in himself to section 44 and no actual possession of that strip of land inclosed by the fence, he, too, was an intruder (Morris v. Jacks, 96 S. W. 637), and would be confined to his actual possession and could not recover against appellee.

The possession required under the statute of limitation must be such as to charge the real owner with notice of a hostile holding against him. Bracken v. Jones, 63 Tex. 184; Forsod v. Golson, 77 Tex. 666, 14 S. W. 232. Appellee removed his fence and placed it on the east line of section 43, which he then had leased. There was nothing to mark the line as he claimed it to be. He grazed this disputed strip as he did the land he leased. There is no testimony indicating a hostile holding under a claim of title—nothing which would give to the holder of section 43 notice that appellee was claiming the disputed strip as part of section 44. We, therefore, think the .trial court in error in rendering judgment for the appellee for the disputed strip, for the reason that there is no evidence of title in appellee—no actual possession proven, and no title shown by the statute of limitation. As to the boundary line between T. A. Acuff and M. S. Acuff surveys and section 43, we think the evidence sufficient to support the judgment of the trial court. The surveyor who ran out section 43 for appellants placed the north line of section 43 north of the south line of the Acuff surveys, upon which line appellants placed their north fence. At the time they did so, appellee had a fence erected on the south line which had been there since 1896. The two Acuff surveys were inclosed and the fences on their south line were where appel-lee claimed as the true location of his south line, and the fence was on that line when ap-pellee leased section 43 in 1898. Some time in 1910 appellants entered the appellee’s inclosure on said land and placed their fence:

The appellee introduced a patent to himself as assignee of M. S. Acuff, dated August 27, 1896, for 160 acres of land, being part of the land in controversy. Over the objection of appellants, he introduced “State Abstract Book, vol. 22, p. 142, abstract 549, original grantee, T. A. Acuff, patentee, T. A. Acuff, quantity, 160 acres, class, pre-empt., patent date, May 11, 1898, No. 112, vol. 30, patent No. 9167.” It appears the original patent was filed with the paper in another case, but had been lost, and upon trial that fact appears to have been discovered and the court permitted the abstract books in evidence. We think, perhaps, there was no error in this if the land claimed by appellee was sufficiently identified as the same land mentioned in the abstract book.

The view taken by us, however, on this branch of the case will not require further notice or discussion of the issue raised, as we think the case can be properly disposed of on other grounds. The appellee introduced in evidence a certified copy of the field notes of 160-acre pre-emption made for T. A. Acuff, July 21, 1895, describing the land as set out in appellee’s petition. Appellee also introduced in evidence a deed dated June 3, 1901, and recorded June 5, 1901, from T. A. Acuff and wife to M. S. Acuff, conveying the T. A. Aeuff survey, giving field notes and patent No. 112, vol. 30, as in the state abstract book, and also conveying the M. S. Acuff pre-emption survey, which by the recitals of the deed appears to be a reconveyance from T. A. Acuff to M. S. Acuff, M. S. Acuff baying theretofore conveyed to T. A. Acuff. Under •the facts and the evidence of title above set out, the appellee had title to the two Acuff 'surveys by the 10-year statute of limitation, and if appellee had proven the payment of the taxes thereon, under the deed from T. A. Acuff to M. S. Acuff, which appears to convey both tracts, dated June 3, 1901, he would have had title by the five-year statute and in addition thereto the appellants entered upon the appellee’s possession, and without his consent tools charge of the land. Under the case of Watkins v. Smith, 91 Texas, supra, appellee would have the right under such entry, to maintain an action of trespass to try title therefor, and if the court found the true boundary line upon the north of section 43, as claimed by appellee, then appellants could not recover, and there was no error in rendering judgment for the appellee for the land included in the Acuff survey.

The various assignments are not discussed in detail, as they will not likely arise upon another trial. We think the judgment sufficiently definite to establish the boundary between those surveys and section 43 claimed by appellants, and we pverrule assignment No. 12, asserting that the judgment does not sufficiently describe the land.

The judgment of the trial court will therefore be affirmed as to the land claimed by ap-pellee in the two Acuff surveys and establishing their south boundary line as the boundary line between them and section 43; but we reverse the judgment of the trial court as to the boundary line between sections 44 and 43, and direct that the trial court enter up judgment for appellee for the Acuff surveys as he heretofore decreed, but that as to section 44 he set the judgment aside and order a new trial as to the boundary and title to the disputed strip, and that he order that the issues be so formed as to try the question involved.

We have not discussed the evidence of the witnesses as to how the surveys should be located for the reason that these facts must be passed upon by the trial court upon the further trial of the remaining issues.

Under rule 62a (149 S. W. x) the case is affirmed in part and reversed in part.


text:
    SHEARER v. CHAMBERS COUNTY.
    (Court of Civil Appeals of Texas. Galveston.
    June 27, 1913.
    Rehearing Denied Oct. 9, 1913.)
    1. Appeal and Error (§ 742) — Assignment of Errors — Proposition Accompanying the Assignment.
    A proposition that a maker of a note has all of the day upon which the note matures to pay it, and where the payee does not exercise his option to declare the note due until the suit is filed, the suit was prematurely brought, is not germane to an assignment of error that the petition did not show that the plaintiff properly exercised the option to mature the note.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §, 3000; Dec. Dig. § 742.]
    2. Bills and Notes (§ 468) — Construction —Time of Maturity — Default on Interest Payments.
    Where a note provided that default in the payment of interest should, at the option of the holder, mature the note, the holder was not required to give any notice of the exercise of his option prior to the filing of the suit, which constituted sufficient notice of that fact, and an allegation in the petition that he had exercised his option was unnecessary.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 1462, 1463; Dec. Dig. § 468.]
    3. Bills and Notes (§ 489) — Petition—Exercise of Option to Mature.
    An allegation that the plaintiff “has and here now exercises its option” to declare a note due is sufficient to entitle the plaintiff to prove that that option had been exercised before the suit was filed, if such proof were necessary.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1587-1642; Dec. Dig. § 489.]
    4. Appeal and Error (§ 934) — Presumption —Proof Necessary to Support Judgment.
    Where there is no statement of facts in the record, it must be presumed that proof was made of the exercise of the option, if such proof was necessary to support the judgment.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§, 3777-3781, 3782; Dec. Dig. § 934.]
    5. Costs (§ 260) — Appellate Costs — Damages — Appeal for Delay.
    Where one who defaulted in an action to foreclose a vendor’s lien note thereafter brought error on the ground that the petition was not sufficient, in that it failed to show that the plaintiff had exercised its option to declare the note due for default in interest, the question was not so trivial as to indicate that the writ of error was taken only for delay, and damages will not be awarded to the defendant in error.
    [Ed. Note. — Eor other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dee. Dig. § 260.]
    Error from District Court, Chambers County; L. B. Hightower, Judge.
    Action by Chambers County against T. W. Shearer. Judgment for the plaintiff, and defendant brings error.
    Affirmed.
    Stevens & Stevens, of Liberty, for plaintiff in error. A. W. Marshall, of Anahuac, for defendant in error.

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

   PLEASANTS, C. J.

This suit was brought by Chambers County against the plaintiff in error to recover on a note for $2,685, and to foreclose a vendor’s lien upon land described in the petition. The note sued on bore date June 10, 1907, and was due and payable 10 years after date, with interest from date at the rate of 6 per cent, per annum, payable annually in advance on August 1st of each» year, and provided for an additional 10 per cent, attorney’s fees in ease the note was not paid at maturity and was placed in the hands of an attorney for collection. It is also provided in said note that default in the payment of any installment of interest that might become due thereon should, at the option of the holder, mature said note, and the principal thereof should become due and payable. The petition, which was filed on July 12, 1912, alleges that defendant had failed and refused to pay interest that became due on said note August 1, 1911, “and that plaintiff has and here now exercises its option as provided in said note, and declares the principal and all interest and attorney’s fees due on said note due and payable.” The defendant was duly served with citation, but failed to appear and answer the suit and judgment by default was rendered against him for the full amount of principal and interest due upon said note and 10 per cent, attorney’s fees, as provided in the note, and foreclosure of the vendor’s lien.

The only assignment of error presented in the brief of plaintiff .in error is as follows: “The court erred in rendering judgment against the defendant for the reason that it is not shown in plaintiff’s petition that the plaintiff properly exercised the option to mature the note sued upon.” The proposition under this assignment is as follows: “The maker of a note has all of the day of its maturity within which to pay it, hence suit cannot be legally instituted upon a note until the day after its maturity; and, since no attempt was made to exercise the option of maturing the note until at the time and upon the day of filing suit, the suit was therefore brought prematurely, and the judgment should' be reversed and remanded.” This proposition is not germane to the assignment, and presents a question not raised by the assignment. The error complained of by the assignment is not the premature filing of the suit, but the failure of the petition to show that the plaintiff had properly exercised the option to mature the note. The question presented by the proposition is different and distinct from that presented by the assignment and cannot be considered as raised by the assignment. For that reason neither the assignment nor the proposition is entitled to consideration.

But, waiving the imperfect manner in which the question is presented, we are of opinion that there is no merit in the contention that the suit was prematurely brought. The plaintiff' was not required to make any declaration or give any notice of its intention to exercise its option to consider tlie note matured in accordance with its terms, upon the failure of the defendant to pay the interest when it became due. The filing of the suit was all that was necessary to show that plaintiff had exercised its option in this matter, and it was unnecessary for the petition to allege that “plaintiff has and here now exercises its option and declares the principal and all interest and attorney’s fees due on said note due and payable.” Luzenberg v. Loan Association, 9 Tex. Civ. App. 261, 29 S. W. 237; Pant v. Wickes, 10 Tex. Civ. App. 394, 32 S. W. 126.

The allegations in the petition that plaintiff “has and here now exercises its option” is certainly not conclusive that plaintiff had not determined to bring the suit for the whole of said debt prior to the day on which the suit was filed; and, if it was necessary for plaintiff to prove that fact, it could have done so under this allegation of the petition.

There being no statement of facts in the record, if proof of this fact was necessary to support the judgment, it must be presumed that such proof was made.

Defendant in error has filed a motion asking that the judgment of the court below be affirmed with 10 per cent, damages for delay. We do not think the question attempted to be presented by plaintiff in error is so trivial as to justify the conclusion that the writ of error was not sued out in good faith and in the honest belief that the judgment should be reversed, but only for the purpose of the delay.

The judgment of the court below will be affirmed, without damages.

Affirmed.


author: McMEANS, J.

text:
    SCURLOCK, Co. Atty., v. FAIRCHILDS et al.
    (Court of Civil Appeals of Texas. Galveston.
    June 10, 1913.
    Rehearing Denied Oct. 9, 1913.)
    1. Intoxicating Liquoes (§ 34) — Local Option — Elections — Time — Statutes — Mandatory Requirements.
    Rev. Civ. St. 1911, art. 5717, provides that, on. petition for a local option election beirfg filed, the court shall order that an election be held on a date not less than 15 nor more than 30 days from the date of the order. Held, that the provision for the time of the election was mandatory, and that a local option election held at .a date later than that prescribed was void.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. § 34.]
    2. Intoxicating Liquors (§ 30) — Local Option Election — Territory — Several School Districts — Separate Justice’s Precincts — Joinder—Statutes—'Validity.
    Const. 1876, art. 16, § 20, requiring the Legislature to enact a law authorizing the voters of any county, justice’s precinct, town, or city to determine whether the sale of intoxicating liquors should be prohibited within the prescribed limits, was amended in 1891, so as to require the enactment -of a law whereby the voters of any county, justice’s precinct, town, or city, “or such subdivision of the county designated by the commissioner’s court,” by a majority vote may determine from time to time whether intoxicating liquors shall be prohibited within the prescribed limits. Held, that such provision as amended authorized the passage of Rev. Civ.-St. 1911, §, 5715, providing that the commissioners’ court of each county might order a local option election to be held by the qualified voters of the county, or of any commissioners’ or justice’s precinct, or school district, or any two or more of the political subdivisions of the county as might be designated by the court; and hence it was proper for a commissioners’ court to order a local option election in territory comprising several school districts, though they were included in different justice’s precincts.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Gent. Dig. § 37; Dec. Dig. § 30.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Suit by George Fairchilds and others against Marvin Scurlock, County Attorney of Jefferson County, to contest a local option election. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Smith & Mothner, of Beaumont, for appellant. E. A; McDowell, of Beaumont, and E.. B. Pickett, Jr., of Liberty, for appellees.

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

   McMEANS, J.

On November 11, 1912, there was presented to the commissioners’ court of Jefferson county a petition requesting said court to order an election in school districts Nos. 1, 2, 3, and 18. in Jefferson county, to determine whether intoxicating liquors should be sold in the territory comprised of said school districts, usually called a local option election. The commissioners’ court on said date granted the petition, and ordered the election to be held on December 21, 1912, which was more than 30 days — in fact 40 days — after the date of making the order. The election was held on the date designated, and a majority, of the qualified voters in the territory affected voted in favor of prohibition, and the result of the election was duly declared. George Fairchilds and Charles Fairchilds, claiming that the election was void, brought this suit against Marvin Scurlock, county attorney of Jefferson county, to contest said election, the grounds of contest being: (1) That the commissioners’ court was without legal authority to order the election to be held 40 days after the date of the order; and (2) that said court was without lawful authority to direct the holding of such election in more than one existing political subdivision of the county. The case was tried before the court without a jury, and resulted in a judgment for contestants; the court holding that the election was void upon both grounds urged, as will appear from the following copy of a portion of the court’s decree: “And it appearing to the court, from the pleadings and exhibits thereto, which were offered as evidence, the testimony adduced before tbe court, that in this cause, which is a contest of a local option election granted and ordered by the commissioners of Jefferson county, by order of said court, duly made on the 11th day of November, 1912, fixing the territory within which said election should be held as school districts Nos. 1, 2, 3, and IS in said county, and directing and ordering that the said election be held on the 21st day of December, 1912, and it appearing from the said order of the said commissioners’ court that the said election was ordered to be held, and from the evidence that said election was actually held, on the 21st day of December, 1912, 40 days after the date of making of said order, it is the opinion of the court that the said order of the said commissioners’ court is void; said court being without power to fix the time for holding said election more than 30 days from and after the date of the order calling the election. It further appearing to the court that the evidence introduced before the court, and the order of the said commissioners’ court that this election was ordered to be held, and was held, in territory composed of four separate school districts, and that part of said territory lies in two separate and distinct justice’s precincts of said county, to wit, a part in justice’s precinct No., 5, and a part in justice’s precinct No. 1, it is the opinion of the court that the commissioners’ court is without power to create local option territory by combining several school districts comprising a part of two justice’s precincts, for the purpose of voting upon the question of sale or nonsale of intoxicating liquors, and the said election is null and void for this reason also. It is therefore ordered and adjudged by the court that the local option election so held on the 21st day of December, 1912, is, and the same is hereby declared to be, null and void and of no effect; and the said election having been ordered and held in territory not permitted by law, this court is without power to order another election.” From this judgment the county attorney has appealed.

By his first assignment of error appellant complains of the action of the court in holding that the election was void because the commissioners’ court was without authority to order the election to be held at a date 40 days after the date upon which the order was made. Under this assignment appellant contends that article 5717, Revised Statutes 1911, which provides that it shall be the duty of the commissioners’ court, when ordering an election for local option purposes, to order the same to be held upon a day .not less than 15 nor more than 30 days from the date of such order, although mandatory in the sense that it imposes an imperative duty upon such courts to comply with its letter, is not mandatory in the sense that it renders void an election duly called and held on the date fixed by the court’s order, although more than 30 days after the order, and that when such an election has been held, and the result duly declared, the election is valid, unless it appears that the order to hold, and holding of the election, at a date more than 30 days after the date of the order prevented a fair election, or that the result thereof was in some manner or degree affected thereby, or that such action on the part of said court was fraudulent and tainted the election with fraud.

The article of the statute above referred to, in part, reads as follows: “Art. 5717. When the commissioners’ court, of their own motion, or upon the petition provided for in article 5715, shall order the election as herein provided for, it shall be the duty of said court to order such election to be held at the regular voting place or places within the proposed limits, upon a day not less than fifteen nor more than thirty days from the date of said order. * * * ” Appellant admits that the above requirements are mandatory in the sense that it imposes an imperative duty upon the commissioners’ court to comply with their letter, but contends that an election ordered to be held and held at a date later than that prescribed by the statute would be valid unless for some other reason it should be held to be void. We agree with appellant that the statute is mandatory, and are further of the opinion that the commissioners’ court had no power or jurisdiction to order a local option election at a date later than the date prescribed by the statute, and that the election so held is absolutely void. This has been the uniform ruling of our Court of Criminal Appeals (Curry v. State, 28 Tex. App. 475, 13 S. W. 753; King v. State, 33 Tex. Cr. R. 547, 28 S. W. 201; Yates v. State, 59 S. W. 275), and the reasons given therefor in the Curry Case seem sound and meet with our approval.

Appellant by his second assignment of error complains of the action of the court in holding the election void on the ground that the commissioners’ court in ordering the election combined four school districts, and the election was held in the territory thus designated, and the territory thus designated was composed in part of. two justice’s precincts. This assignment raises the question, Did the commissioners’ court have the power to order a local option election to be held within the limits embraced in two or more political subdivisions of the county? Section 20 of article 16 of the Constitution of 1876 reads as follows: “The Legislature shall, at its first session, enact a law whereby the qualified voters of any county, justice's precinct, town or city, by a majority vote, from time to time, may determine whether the sale of intoxicating liquors shall be prohibited within the prescribed limits.” In 1879 the Legislature in obedience to this' constitutional requiremefit enacted the following (Laws 1879, c. 90): “It shall be the duty of the commissioners’ court of each county in the state, upon the written petition of fifty qualified voters of said county, or upon such petition by twenty qualified voters of any justice’s precinct, town or city therein, to order an election to be held by the qualified voters of said county, justice’s precinct, town or city, as the ease may be, to determine whether the sale of intoxicating liquors * * * shall be prohibited in such county, justice’s precinct, town or city, or not,” etc. It is too clear for argument, we think, that under the quoted provision of the Constitution, and of the legislative enactment adopted in obedience thereto, the commissioners’ courts were without lawful authority to order a local option election in any political subdivision of a county other than those expressly named, to wit, justice’s precincts, towns, and cities, and equally without authority to order an election in two or more of such subdivisions combined; and an election so held would unquestionably have been void.

Recognizing the fact, doubtless, that there were other subdivisions of counties than these named, and evidently for the purpose of enlarging the scope of the authority conferred by the articles of the Constitution and statute upon the commissioners’ courts, the above provision of the Constitution was, in 1891, amended (see Const, art. 16, § 20) so 'as to read as follows: ‘‘The Legislature shall, at its first session, enact a law whereby the qualified voters of any county, justice’s precinct, town or city (or such subdivision of the county as may be designated by the commissioners’ court of said county) may, by a majority vote, determine from time to time whether the sale of ^intoxicating liquors shall be prohibited within the prescribed limits.” At the first session of the Legislature after the adoption of this amendment that body, in obedience to its requirements enacted the following law (Gen. Laws 1893, c. 45): “The commissioners’ court of each county in the state, whenever they deem it expedient, may order an election to be held by the qualified voters of said county, or of any justice’s precinct, or such subdivision of a county as may be designated by the commissioners’ court of said county, or any town or city therein, to determine whether or not the sale of intoxicating liquors shall be prohibited,” etc.

This statute received judicial construction by the Court of Criminal Appeals in the following cases: Ex parte Segars, 32 Tex. Cr. R. 553, 25 S. W. 26, Ex parte Brown, 35 Tex. Cr. R. 443, 34 S. W. 131, Speagle v. State, 34 Tex. Cr. R. 465, 31 S. W. 171, Williams v. State, 35 Tex. Cr. R. 52, 31 S. W. 654, and Nichols v. State, 37 Tex. Cr. R. 546, 40 S. W. 268, and many others, and by the Court of Civil Appeals in Kimberly v. Morris, 10 Tex. Civ. App. 592, 31 S. W. 809, in none of which was the right of the commissioners’ court to order a local option election in any subdivision of the county other than those specifically enumerated in the Constitution in the least questioned, but it does not appear in any of said cases that the constitutionality of the statute in question was raised. In Ex parte Brown the right of such court even to carve out territory in a county, not confining it to any existing subdivision thereof, for the purpose of holding such an election, seems to have been recognized. In that case the court says: “Prohibition, in article 3393 (R. S. 1895) applies to the county, cities, or subdivisions of the county, and that an election cannot be had, whether prohibition carries or is defeated, until the expiration of two years thereafter. This means where the precise territory is to be affected, and has no reference to carving below the extent of such territory. The last act gives to a commissioners’ court the right to carve out just such territory as they may deem proper. It may be taken from two or more adjacent precincts. When carved, it is treated as a separate and distinct subdivision of the county for local option purposes.”

In 1907 the statute above referred to wás amended, and as so amended and now in force is brought forward in the Revised Statutes of 1911 as article 5715, which provides, in substance, that the commissioners’ court of each county in this state, whenever they deem it expedient may, or whenever petitioned by the requisite number of qualified voters shall, order an election to be held by the qualified voters of the. county, or of any commissioners’ or justice’s precinct, or school district, or any two or more of any such political subdivisions of a county, as may be designated by the commissioners’ court of said county, to determine whether or not the sale of intoxicating liquors shall be prohibited in such county, or commissioners’ or justice’s precinct, or school district, or any two or more of any such political subdivisions of such county, or in any town or city. By this act a school district was clearly recognized as a political subdivision of a county.

It is contended in this ease by appellees that under the 1891 amendment of the Constitution a commissioners’ court has no power to combine two or more school districts of a county for the purpose of forming a local option district, and that this is especially true where such school districts are composed in part of separate justice’s precincts. There is no question that the statute of 1907 confers the power upon commissioners’ courts in express terms to combine two or more school districts for the purpose of holding a local option election, and the question now presented is whether the adoption of the statute was prohibited by the constitutional amendment referred to. We have given the matter careful consideration, and have reached the conclusion that the statute is not unconstitutional. The amendment of 1901 commands the Legislature to enact a law whereby the qualified voters of any county, or of certain enumerated subdivisions of the county as may be designated by the commissioners’ court of said county, may, by a majority vote, determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits. The only change made in the former provision of the Constitution was the insertion of the language in parenthesis “(or such subdivision of the county as may be designated by the commissioners’ court of said county).” From this it is evident, we think, that the framers of the amendment and the people who adopted it by their votes, not only intended to give the Legislature the right, but to command it, to enact a law whereby the commissioners’ courts were required to submit the question of prohibition in any one of the enumerated subdivisions of a county under certain conditions to be prescribed by the Legislature, but to confer upon such courts the power and discretion to order an election in any territory in a county that they might designate, even though it comprised two or more subdivisions of the county, provided that in ordering such election the existing subdivisions of. the county be recognized and regarded. In construing a constitutional provision the construction placed upon it by the Legislature which passes laws for its due enforcement is entitled to great weight, and clearly the Legislature construed the provision under consideration as authorizing it to empower commissioners’ courts to combine two or more school districts or other political subdivisions of a county into a local option district. The same construction was given it by the executive department of the state, else the legislative enactment would have fallen under the Governor’s veto.

That our Supreme Court holds the same view, we think is evident by its reasoning in Griffin v. Tucker, 102 Tex. 420, 118 S. W. 635, State v. Schwarz, 103 Tex. 119, 124 S. W. 420, and Durrett v. Robinson, District Judge, 103 Tex. 502, 131 S. W. 400. In the case last cited a petition was filed in the Supreme Court seeking to compel the district judge to issue a mandamus to require the commissioners’ court to order a local option election in a particular territory of the county not specifically designated in the Constitution. In refusing to order the judge to issue the writ, the Supreme Court says: “The commissioners’ court has refused to designate the territory in which the petitioners sought to have the election ordered as a subdivision of the county for local option purposes and to order an election therein, and it was not one of those specifically designated by the Constitution, viz., the county, justice’s precinct, town, or city. The designation of other subdivisions besides these is expressly committed by the Constitution to the commissioners’ court, and the discretion allowed to that body cannot be usurped by other courts. The effort of the petitioners was to have treated as a subdivision the territory covered by several justice’s precincts, which is not one of those fixed by the law itself. While this court has recognized the proposition that a subdivision may lawfully be thus constituted by action of the commissioners’ court in causing an election to be held therein, there is no authority whatever for the contention that it can be done without action of that court. That contention disregards the Constitution and the statute, which commit to the commissioners’. court the question as to the propriety of making other designations than those specifically made in the law itself, a discretion which cannot be controlled by mandamus.”

We are not unmindful that the conclusion we have reached is in direct conflict with the opionion of our Court of Criminal Appeals as expressed in Ex parte Heyman, 45 Tex. Cr. R. 532, 78 S. W. 349, Ex parte Williams, 78 S. W. 928, Ex parte Mills, 46 Tex. Cr. R. 224, 79 S. W. 555, Ex parte Mitchell, 79 S. W. 558, Anderson v. State, 49 Tex. Cr. R. 195, 92 S. W. 39, and other cases, and it is with reluctance that we feel compelled to disagree with the views of that court. Ordinarily the civil courts follow the construction given to penal statutes by the Court of Criminal Appeals, since the enforcement of such statutes must be in accordance with such construction. Griffin v. Tucker; State v. Schwarz, supra; Nolan County v. Beall, 98 Tex. 104, 81 S. W. 526. In the case last cited it was held that the local option laws of this state depend wholly for their enforcement upon the infliction of the penalties prescribed by the statute through the procedure provided for that purpose by our ■Code of Criminal Procedure, that prosecutions thereunder must be instituted and tried in the courts having criminal jurisdiction; that the local option statutes are strictly and essentially criminal laws, and as such primarily subject to the decisions of the criminal courts as to their validity and construction, and that the decisions of the Court of Criminal Appeals are final upon such questions determined by them. After this decision was rendered the Legislature passed an act, amendatory to article 3397, Revised Statutes 1895, being article 5728 of the Revision of 1911 (Acts 1907, 1st Ex. Sess. c. 8), wherein it is expressly provided that contests of local option elections shall be made in the district courts, which shall have original and exclusive jurisdiction to contest such election, and in 1907, the Legislature enacted a law by which the violation of such laws may be enjoined by a proceeding on the part of the state, whereby the power to enforce the local option laws is conferred upon the civil courts (Acts 1907, p. 156, c. 77). Since the passage of these laws it has been held by our Supreme Court that “decisions of questions coming within the scope of eases of contested elections are intrusted to the civil courts, and must be in accordance with their own construction of the controlling constitutional and statutory provisions.” State v. Schwarz; Griffin v. Tucker, supra. It would seem, therefore, that the decision of the Court of Criminal Appeals in the Heyman Case, and others based upon it, is no longer authority upon the points decided, but that in the future the construction placed upon the constitutional provision and the statute under discussion by the Courts ■ of Civil Appeals, which in contested election cases, such as this, has final jurisdiction (R. S. 1911, art. 1591) must control.

Holding, as we do, that the election is void because held more than 30 days after the order of the commissioners’ court was made, the judgment of the court below must be affirmed, and it has been so ordered.

Affirmed.