author: DUNKLIN, J.

text:
    FT. WORTH & D. C. RY. CO. v. WHITE et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 15, 1913.
    Rehearing Denied April 12, 1913.)
    CARRIERS (§ 16) — Use of Premises — Lunch ■V endors — Injunction.
    A railroad company is entitled to perpetually enjoin lunch vendors from going upon its depot platform, or upon its right of way at or adjacent to its passenger station, as well as from going upon its passenger coaches, in order to sell articles of food to the passengers or others.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 28-30; Dec. Dig. § 16.]
    Appeal from District Court, Clay County; P. A. Martin, Judge.
    Suit by the Ft. Worth & Denver City Railway Company against J. A. White and another. From a decree in part for plaintiff, it appeals.
    Reversed and rendered.
    Thompson & Barwise and J. M. Chambers, all of Ft. Worth, and R. E. Taylor, of Henrietta, for appellant. Wantland & Parrish and W. T. Allen, all of Henrietta, for ap-pellees.

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

   DUNKLIN, J.

The Ft. Worth & Denver City Railway Company instituted this suit against J. A. White and Arthur McNeal to perpetually enjoin them from going upon plaintiff’s trains, depot platforms, and right of way in the town of Henrietta to sell lunches and other articles of food to passengers on plaintiff’s trains while stopping at that station upon the ground that in so doing defendants obstructed ingress and egress to and from said trains, thereby endangering the lives of passengers and obstructing the free use of the platforms by plaintiff’s em-ployés. Plaintiff further alleged that in the prosecution of their occupation of selling lunches to said passengers defendants were in the habit of climbing upon said trains, and passing across the platforms of the coaches, and that in so doing and in conducting their said business upon the depot platforms and the adjacent right of way they endangered their own lives.

The trial court filed his findings of fact and conclusions of law, which are as follows:

“(1) That plaintiff is a railway corporation under the laws of the state of Texas, and does business as such as a carrier of freight and passengers through the city of Henrietta, in Clay county, Tex., and was so engaged in said capacity for a number of years prior to and at the time of the filing of the petition herein and during all of said time maintained and now maintains a passenger depot and platforms for the embarking and debarking of passengers from its passenger trains at said city of Henrietta, and that during all of said time it has operated four passenger trains per day, which stopped and took on and discharged passengers at said depot, the ground and platform of which and ^adjacent right of way was thén the property of plaintiff.

“(2) That for several months prior to and at the time of filing of the petition herein the defendants J. A. White and Arthur McNeal were engaged in the occupation of selling bread and chicken to the passengers on said trains through the windows thereof and to passengers on the steps and depot platforms while said trains would be standing at said depot while waiting the egress and ingress of passengers; said sales being made by defendants on the right of way of plaintiff then and there being used by plaintiff for the operation of its business as such common carrier, the said right of way not then and there being used as a public county road, or for any other purpose by the public except for purposes incident to the operation of said railway; that in making such sales defendants would sometimes go upon the platforms •of the passenger' coaches and get in the way of employés of plaintiff and of the passengers.

“(3)' That prior to the filing of this suit a demand had been made on defendants by plaintiff that he desist from going upon the right of way of plaintiff, and desist from pursuing his said occupation thereon, which demand defendants ignored, and continued to pursue such occupation in the manner heretofore stated until the temporary injunction granted herein was served upon him, since which time he has continued to make sales on the right of way from the side of the trains opposite said depot; that all of said sales and use of the right of way by defendants was without consent, and over the objection of the plaintiff.

“Conclusions of Law.

“From the foregoing facts, I conclude, as matters of law:

“(1) That plaintiff is not entitled to a perpetual injunction prohibiting defendants from going upon its right of way for the purpose of pursuing his occupation of selling bread and chicken to the passengers on its trains at said station; but is entitled to an injunction preventing defendants from going upon the trains or platforms thereof, and preventing him from getting in the way of the passengers and employés of plaintiff, so as to in any way hinder said passengers in the free use of the depot and right of way, or to hinder the employés of plaintiff in the discharge of their duties as such; and I render judgment denying the injunction, except to the extent here indicated.”

Upon such findings judgment was rendered as follows: “That said defendants be and are hereby perpetually enjoined from going upon the trains, platforms, or steps thereof of plaintiff for the purpose of pursuing his said occupation and from getting in the way of passengers and employés of plaintiff on its right of way and depot platforms in such manner as to'obstruct the free use thereof by said passengers and employés, but this judgment shall not preclude the defendants from going upon the private right of way and depot platforms of plaintiff for the purpose of pursuing his occupation of selling articles of food to passengers at said depot and passengers on a^d about said plaintiff’s trains.” Prom the action of the court in refusing the full relief prayed for, plaintiff has appealed.

No statement of facts appears in the record, and no objection is made to the finding of fact, which we therefore adopt,- and upon the decisions in G., C. & S. P. Ry. Co. v. Puckett, 82 S. W. 662, Lewis v. Railway Co., 36 Tex. Civ. App. 48, 81 S. W. 111, and Dycus v. Traders’ Bank & Trust Co., 52 Tex. Civ. App. 175, 113 S. W. 329, the judgment of the trial court is here reversed and judgment is here rendered in favor of appellant,' perpetually enjoining appellees from conducting their said business upon appellant’s depot platforms or upon its right of way at or adjacent thereto at appellant’s passenger station in the town of Henrietta, and also from going upon the steps or platforms of its passenger coaches or upon its trains for the purpose of selling articles of food to passengers of said trains or to any one else.

We have examined the eases cited by appellee—Calcasieu Lumber Co. v. Harris, 77 Tex. 18, 13 S. W. 453, Olive v. S. & E. T. Ry. Co., 11 Tex. Civ. App. 208, 33 S. W. 139, Lyon v. McDonald, 78 Tex. 71, 14 S. W. 261, 9 L. R. A. 295, and Gladys City Oil, Gas & Mfg. Co. v. Right Of Way Oil Co., 137 S. W. 171—and are of the opinion that those decisions do not sustain the action of the trial court in refusing appellant the full relief prayed for.

Reversed and rendered.


source: Caselaw Access Project

author: REESE, J.

license: Public Domain

text:
    RICE et al. v. TALIAFERRO et al.
    (Court of Civil Appeals of Texas. Galveston.
    March 27, 1913.
    Rehearing Denied April 24, 1913.)
    1. Evidence (§ 187) — Admissibility — Purpose.
    In trespass to try title, where plaintiffs claimed that the lost deed upon which defendants relied was a forgery, evidence showing a diligent search for the instrument in question is admissible only for the purpose of allowing secondary evidence of the deed, and should be excluded from the jury notwithstanding the contention that the deed was forged.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 674, 675; Dec. Dig. § 187.] -
    2. Evidence (§ 230) — Admissions — Admissions Against Interest.
    Testimony of statements by defendants’ grantor that 'he had no title to the land in question and was going to quit and abandon his claim is admissible against defendants, being admissions against the grantor’s interest.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 835-851; Dec. Dig. § 230.]
    3. Appeal and Error (§ 232) — Presentation oe Grounds oe Review in Court Below— Objections.
    The admission of testimony which was admissible for the purpose of contradicting defendants’ witness will not be held erroneous on appeal upon the ground that no predicate was laid; no such objection having been made below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426, 1430, 1431; Dec. Dig. § 232.]
    4. Trial (§ 85) — Objections—Specieic Objections.
    Where a general objection was made to testimony, part of which was admissible, it is not error for the court to admit the whole; it not being bound to disentangle the portion admissible from that inadmissible.
    [Ed. Note. — F'or other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. § 85.]
    5. Evidence (§ 237) — Admissions—Agents.
    In trespass to try title, evidence of statements by one in possession of the land as to plaintiff’s title is inadmissible where it did not appear that he was plaintiff’s agent authorized to make such admissions.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 883-886; Dec. Dig. § 237.]
    6. Trial (§ 36) — Evidence—Admitted Facts.
    In trespass to try title, where plaintiffs admitted defendants’ right to compensation for improvements made in good faith, evidence of statements by a third person to defendants’ predecessor in title as to the nature of the title is properly excluded, being admissible only to show defendants’ good faith.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 89; Dec. Dig. § 36.]
    7. Evidence (§ 317) — Admissibility—Hearsay.
    In trespass to try title, where defendants relied upon a lost deed, testimony of statements by a third person as to the description of the land included in the deed is inadmissible as hearsay.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dee. Dig. § 317.]
    8. Evidence (§ 237) — Admissibility.
    Where defendants relied upon a lost deed by which they claimed plaintiffs’ ancestors had conveyed to their grantor part of land which he owned, evidence of an agreement for division between defendants’ grantors and a third person is inadmissible, where it appeared that the third person was not authorized by plaintiffs’ ancestors to make such agreement.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 883-886; Dec. Dig. § 237.]
    9. Trespass to Try Title (§ 35) — Admissibility-Materiality.
    Where in a previous action between the same parties, involving the same land, defendants claimed under a deed from M., evidence that such deed was a forgery is admissible, even though defendants in the present action claim under a lost deed from plaintiffs’ ancestor, such evidence tending to show that the last claim was a mere afterthought.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 50-52; Dec. Dig. § 35.]
    10. Lost Instruments (§ 24) — Prooe of— Forgery — Affidavit—Instructions.
    Where defendants based their title on a lost deed, producing neither the original nor a certified copy, but taking the burden of showing its execution and contents as at common law, an affidavit by plaintiffs of the forgery of the deed is of no effect, and should not be called to the attention of the jury by the charge.
    [Ed. Note. — For other cases, see Lost Instruments, Gent. Dig. §§ 58-63; Dec. Dig. § 24.]
    11. Appeal and Eeboe (§ 1064) — Review-Harmless Error.
    However, a charge calling such affidavit to the attention of the jury is not prejudicial error where the evidence of the lost deed was slight, and the jury could not have failed to understand from the course of the trial that plaintiffs claimed the deed to be forged.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    12. Lost Instruments (§ 23) — Actions—Evidence— Sufficiency.
    In trespass to try title, Where defendants relied on a lost deed, evidence held, to sustain a finding that no such instrument was ever executed.
    [Ed. Note. — For other cases', see Lost Instruments, Cent. Dig. §§ 51-57; Dec. Dig. § 23.]
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Trespass to try title by Sinclair Talia-ferro and others against O. M. Rice and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Baldwin & Baldwin, of Houston, for appellants. R. S. Neblett, of Corsicana, and Stevens & Pickett, of Liberty, for appellees.

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

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

   REESE, J.

Sinclair Taliaferro and wife and J. M. Blanding and wife instituted this suit in trespass to try title against C. M. Rice and others, defendants, to recover land described as leagues Nos. 2 and 8 of the Jose Dolores Martinez grant in Liberty county. On the trial defendants C. M. Rice, J. A. Rice, W. A. White, L. A. White, L. A. Isaacs, T. A. Booth, and C. N. Smith on their application were granted a severance. They disclaimed as to all of the land sued for, except a tract of 705 acres specifically described by metes and bounds, as to which they pleaded not guilty, and the statute of limitations of three, five, and ten years. By an amended petition plaintiffs also pleaded title by limitation. They also pleaded, in reply to appellants’ plea of limitation, cover-ture and minority on the part of Mrs. Talia-ferro and Mrs. Blanding. Upon the trial, with the assistance of a jury, there was a verdict for plaintiffs. From the judgment, a motion for new trial having been overruled, defendants prosecute this appeal.

The land in controversy, 705 acres, was a part of a tract of 1,000 acres running through the league from the west bank of the Trinity river; thence west 11,215 varas; thence north 562 varas; thence east 10,516 varas to the river; and down the river to the beginning. A lake ran across this tract, leaving the 705 acres in controversy between the lake and the river, and 295 acres west of the lake. The controversy hinges upon the issue of the execution of a deed from E. A. and R. J. Palmer, alleged to have been executed in 1860, to B. Wilson or George Wilson, under both of whom appellants claim. E. A. and R. J. Palmer are the ancestors of Mrs. Taliaferro and Mrs. Bland-ing, under whom they claim title as heirs. It is contended by appellants that this deed Was executed by the Palmers in 1860, and that it was recorded in Liberty county previous to the destruction of the records of the county by fire in 1874. They claim that the original deed was also lost, and they sought to establish its execution by the testimony of S. F. Presswood and other circumstances of claim of title, acquiescence by appellees, etc. Appellees denied the existence of this deed, and also attacked the instrument, if any such ever existed as a forgery. Appellants claim title under a deed from George Wilson to George Rice dated April 27, 1876. This deed described the land conveyed as follows: “One undivided one-half of 1,000 acres of land described as follows, to wit: Beg. at a large sycamore tree in the west bank of the Trinity river opposite the corner of the first league of • land below Fields running. Thence west 11,215 varas. Thence north 562 varas. Thence east 10,516 varas to the river, and thence down the river with its meanders to the beginning —containing 1,000 acres (being a part of 11 leagues conveyed to M. L. Preston by Jose Dolores Martinez by deed dated January 18, 1837).” This deed then sets out the chain of title as follows: “And from M. L. Preston to Robert Dunley, August 10, 1845. From Robert Dunley to George W. Turner, September 27, 1860. From George W. Turner to B. Wilson, January 30, 1860. From B. Wilson to S. F. McCarty, August 24, 1866. And from McCarty to George Wilson, March 20, 1869.” It will be noticed that this chain of title makes no mention of the deed from E. A. and R. J. Palmer to B. or George Wilson alleged to have been executed in 1860. Of the deeds thus set out, the one from George Wilson to Rice was recorded in Liberty county in 1876, and at the same time was recorded the deed from Martinez to Preston. A certified copy of the former deed was introduced in evidence by appellants. The Martinez deed was not offered by them, but was introduced by appellees, over their objection, with evidence tending to show tha,t it was forgery. No evidence was offered by either party as to the other deeds in this chain of title; appellants resting their case on the alleged deed by the Palmers to Wilson, which they undertook to establish by parol.

The court submitted to the jury the sole issue of the execution of the deed from E. A. and R. J. Palmer to Wilson, claimed by appellants to have been executed in 1860, and recorded in Liberty county prior to the destruction of the records by fire in 1874. This deed was not produced upon the trial, but appellants, after laying proper predicate for the introduction of such evidence, sought to Show its execution by secondary evidence. The jury found that no such deed was ever executed by the Palmers, and there is ample evidence to sustain the finding. Without recapitulating the evidence upon this issue, we conclude as matter of fact that the alleged deed from the Palmers to Wilson claimed to be the basis of appellants’ title was never in fact executed by E. A. and R. J. Palmer, and never in fact existed, but that, in so far as the evidence shows claim of title by George Rice, through whom appellants claim title, such claim rested upon a chain of title beginning with a deed-alleged to have been executed by Martinez, the original grantee, to M. L. Preston, January 16, 1837, and then by a consecutive chain of deeds, as shown in the deed from George Wilson to George Rice, down to Wilson: The evidence was well-nigh conclusive that this deed from Martinez to Preston was a forgery. The Palmer title, which appel-lees have, began in a deed from Martinez of subsequent date to the alleged date of deed to Preston. Appellants upon the trial relied solely upon title under the alleged deed from Palmers to Wilson. The undisputed evidence established the title of plaintiff, unless title was divested out of E. A. and R. J. Palmer by the deed from them to Wilson aforesaid.

In laying the predicate for the introduction of secondary evidence of the execution of the alleged deed from E. A. and R. J. Palmer to Wilson, and to show search for and loss or destruction of said deed, appellants offered the testimony of their attorney, J. 0. Baldwin, which showed extensive correspondence with different members of the family of George Rice, and in connection therewith offered in evidence letters written by the witness, and received by him, all going to show a patient, diligent and unsuccessful search for said deed. O. M. Rice testified that he at one time had sent the package of deeds to this land to his father in Missouri by mail. His father died about the time the documents were sent, and it was claimed that the entire package, including the Palmer deed, had been lost or inadvertently destroyed. All of the evidence of Baldwin and the correspondence was addressed to the court, the purpose being to lay the predicate for the admission of secondary evidence of the execution of the Palmer deed. The trial court held, as shown by the bill of exceptions filed, “that the testimony would be admissible only for the purpose of laying the necessary predicate for showing the contents of said deed, and that this was a matter addressed to the sole discretion of the trial judge, and in the circumstances he would hold that this testimony should not be heard by the jury, but that it would be heard by the court, and that each and every part of the testimony of said witness as here related should be excluded from the jury, though admitted and heard by the the court out of the presence and hearing of the jury for the sole purpose of establishing said predicate.”

To this appellants excepted, and this ruling is assigned as error in appellants’ first assignment of error. The court held the evidence sufficient to establish the predicate for the admission of secondary evidence. The evidence served the only legitimate purpose for which it was available. It was offered for a purpose with which the jury had nothing to do. It came in such shape, being unsworn statements of the writers of the letters, that it would not have been admissible for any other purpose. In so far as any of these statements would have tended to affect any material issue to be tried by the jury, it would not have been proper for the jury to consider them. The main contention of appellants is that, the Palmer deed having been denounced as a forgery by affidavit if it" in fact ever had any existence, appellants were entitled to have go before the jury this evidence of diligent and unsuccessful search for the deed in order to meet the suspicion that would naturally arise upon its nonproduction. This contention • is. not sound. The letters were only admissible for the purpose stated, with which the jury had nothing to do. McDonald v. Hanks, 52 Tex. Civ. App. 140, 113 S. W. 607. The assignment is overruled.

By the second assignment of error appellants complain of the action of the trial court in allowing the witness Emmet Lum to testify as to certain statements of S. E. Presswood to him. George Rice, by O. M. Rice, his attorney in fact, sold and conveyed the land to Presswood in 1885, and Press-wood conveyed it to C. M. Rice in 1902. The bill of exceptions appears only in the statement of facts, and it is with some difficulty that we can arrive at the exact point presented. As we understand it, over appellants’ objection, that the testimony was hearsay, that it was not shown that at the time the alleged statements of Presswood were made he was the owner of the land, and that it was not shown that the statements had reference to the land in controversy, the witness Emmet Lum was allowed to state that some time in the 80’s Press-wood told witness that he was the owner of the land, that he got a horse and wagon from witness to go up to the land to clear up a field, that he came back in two or three days. Witness understood the land referred to to be the Hare Place at Palmer’s Lake, that the reason Presswood gave for coming back so soon was that Capt. Hare ran him off; that it was Capt. Hare’s' land; that his (Presswood’s) title was no good, and he was going to quit and give up the land; and that he wished he had back the gun he had given in the trade. We believe this is the sum and substance of the testimony embraced in the bill of exceptions. It will be. seen that the testimony does not include any statement made by Hare. It is confined to statements made by Presswood to the witness having reference to his title, and to matters of fact, in the knowledge of the witness. Presswood testified that he occupied the land over a year. The statement made by him with regard to 'his having no title, and that he was going to quit — that is, abandon his claim — and other statements along this line, were admissible as being admissions against his interest, and in derogation of his title at a time when he was the owner of the very title now asserted by appellants. This was sufficiently shown. Snow v. Starr, 75 Tex. 416, 12 S. W. 673. The testimony leaves no doubt that Presswood had reference to the land in controversy.

Some parts of this testimony were admissible for the purpose of contradicting the testimony of Presswood, and if it be contended, as is contended by appellants, that no predicate had been laid for the introduction of evidence of contradictory statements made by him in order to impeach him, it must be replied that no such objection .was made to the testimony.

Finally it may be said that the objections and exceptions relate to the testimony as a whole, some of which was clearly free from any objection whatever, and in such case, even if some part of the testimony was subject to some one of the objections made, the. court was not required to disentangle such part from other parts clearly admissible, but was justified in overruling the objection. G., H. & S. A. Ry. Co. v. Gormley, 91 Tex. 401, 43 S. W. 877, 66 Am. St. Rep. 894. The assignment and the several propositions thereunder are overruled.

The court did not err in excluding the. testimony of Presswood as to statements made to him by Oapt. Hare, over objection of appellees that it was not shown that Hare had any authority to represent them in any way. Any statement made by Hare to Press-wood or any agreement purporting to have been made by him with reference to the land obviously would not be binding on appellees, nor affect their title in any way, unless it was shown that, with reference to the subject-matter of such statements or agreement, Hare was authorized to represent appellees. The uneontradicted testimony shows that he had no such authority. The third assignment and propositions thereunder present no merit, and are overruled.

There is no merit in the fourth assignment of error relating to the exclusion on appellees’ objection of the testimony of Presswood that J. D. Bum, speaking with reference to the Rice title to the land, told him that it was a good title, that it was a perfect chain of title. Appellants pleaded Improvements in good faith. Appellees admitted their right to be paid for such improvements, if any, as improvers in good faith. The testimony referred to above was held by the trial court not admissible for any other purpose than to show good faith on the part of appellants in making their improvements; and, in view of the admissions of appellee on this point, sustained their objections to the testimony. In this there was no error. This disposes also of the fifth assignment of error which is overruled.

Both of the witnesses, C. M. Rice and Joe Rice, testified as to their claim of title and the claim of their father, George Rice, to the land conveyed to George Rice by Wilson, and to payment of taxes. C. M. Rice testified that they only claimed the land east of the lake, the 705 acres in controversy. Upon objection of appellees the court excluded that part of the testimony of each of them relating to statements made by Oapt. Hare that the title of George Rice, as shown by deeds in his chain of title, only extended to that portion of the 1,000 acres east of the lake. Presswood in testifying to the alleged deed from the Palmers to Wilson stated that it said something about the land conveyed being taken east of the lake. He testified, however, that the land was described in that deed in the same way as in the deed from Wilson to Rice and from Rice to himself, in both of which it was described as an undivided one-half of a specified 1,000 acres, the metes and bounds were given, and which ran entirely through the league, and made no reference to the lake. The effect of the excluded evidence as to the statement of Hare would have simply been in substance that this alleged lost deed testified to by Presswood contained the additional description of the land, conveyed by it, that it was to be taken out of that part of the 1,000 acres lying east of the lake. Appellants could not thus establish the contents of this lost deed in any circumstances. The testimony offered was purely hearsay.

The court also excluded testimony as to an alleged agreement between George Rice and Oapt. Hare that Rice was to take as his part of the land all of that east of the lake, being the 705 acres in controversy. All of this testimony was properly excluded on objection of appellees. It was not shown that Hare had any authority to represent appellees; on the contrary, it was expressly shown that he did not have. What he may have said or done was not in any way binding upon appellees. It was shown that Hare was dead. As we have said, both of these parties testified without objection to their and their father’s claim and assertion of ownership of title, and O. M. Rice testified as to the fact of such assertion of title to the 705 acres east of the lake. So that in so far as such assertion of title could be useful, as a circumstance to'show the executiQn of the lost deed, appellants bad the full benefit of it. They did not have the right to go further in this direction and introduce evidence of what Hare said about the deed in the chain.of title conveying only the land east of the lake, and of an agreement with Hare, an indifferent third party, which was substantially an agreement of partition of the 1,000 acres, one half of which, if the Palmer deed was genuine, belonged to Rice and the other half to- ap-pellees. The sixth and seventh assignments of error with the propositions thereunder are overruled. What we have said also disposes of the eighth assignment of error, which is overruled.

Appellees were allowed to introduce in evidence, over the objection of appellants, the deed from Martinez to M. L. Preston, together with other evidence tending to show that the same was a forgery, and appellants complain of this ruling of the court by their ninth, tenth, eleventh, and twelfth assignments of error. In the deed from Wilson to George Rice the grantor’s chain of title is set out in full, beginning with a deed from Martinez to Preston, dated January 16, 1837. Each of the deeds in this chain of title is set out with the dates of the respective deeds, concluding with the deed to Wilson, Rice’s grantor. No reference is made to the deed from the Palmers. In the deed from Rice to Presswood the deed from Martinez to Preston is recited as source of title. Appellees’ title had its inception in deeds from Martinez of a date subsequent to that from Martinez to Preston. To show that this deed which purported to be signed by Martinez in his own hand was a forgery, affidavit that it was a forgery having been filed by appellees, evidence was introduced going to show that Martinez could not sign his name, and also to show that the Commissioner of the State of Texas in New York, before whom this deed purports to have been acknowledged, was not appointed and commissioned as such until subsequent to the date of said acknowledgment. It is true that appellants did not claim under this title, but at the time of the institution of this suit in 1904 appellees, plaintiffs in the suit, applied for an injunction to restrain appellants from cutting timber, and upon the present trial it was shown without contradiction that at the hearing of said application for injunction appellants relied solely upon this title through and under the alleged deed from Martinez to Preston, and the chain of title- thereunder recited in the deed from Wilson to George Rice, and that no mention was made of any deed from Palmers to Wilson. It was further shown for appellees .that they never heard of this deed until Presswood testified with reference thereto on the trial in 1906. In these circumstances, the court did not err in admitting the evidence referred to. It tended to rebut the evidence of the execution of the alleged deed from E. A. and R. J.'‘Palmer, and to support appellees’ contention that appel-ants’ claim of this deed, was an afterthought, born of the evidence of forgery of the deed from Martinez to Preston. The evidence also tended to explain the claim of title on the part of George Rice and the present appellants, which was relied upon as a circumstance to establish the execution of the Palmer deed, by showing that such claim of title rested upon the chain of title under the Martinez deed to Preston, which had no connection with the Palmer title. The admissibility of this evidence for these purposes was not affected by the fact that appellants did not on this trial claim under this deed and chain of title. The admission of the certificate of the Secretary of State as to Gibbs’ appointment as commissioner was covered by the agreement of the parties. In connection with this evidence it was, we think, of some significance that the copy of Martinez’s deed to Preston purporting to have been executed in 1836 was recorded in Liberty county on the day that the deed from Wilson to Rice was recorded, and immediately preceding it on the records. The assignments of error referred to with the several propositions thereunder are overruled.

We think that it was improper for the court in its charge to call the attention of the jury to the fact that appellees had filed an affidavit that the Palmer deed to Wilson was a forgery. As appellants did not produce either the original or a certified copy of this deed, but took the burden of showing its execution and contents as at common law, the affidavit of forgery was of no effect. Howell v. Hanrick, 88 Tex. 394, 29 S. W. 762, 30 S. W. 856, 31 S. W. 611. The evidence, however, could not have failed to convey to the minds of the jury that it was claimed by appellees that this alleged deed, if it ever existed, was a forgery; the real burden of appellees’ claim was that no such document ever existed. We cannot think that this reference in the charge to the affidavit of forgery was such prejudicial error as to authorize a reversal, especially under the liberal rule lately enacted by the Supreme Court. The assignment is overruled.

The fourteenth assignment of error does not present reversible error, and is overruled. While in many cases it has been stated that a charge on the burden of proof was unnecessary, none of them declare such charge to be reversible error, unless, indeed, it places the burden on the wrong party, which this charge does not do.

The court did not err in refusing to give the charge requested by appellants referred to in the fifteenth assignment of error, upon the law as to presumption from circumstances, of the execution of a deed. The evidence disproves any acquiescence on the part of appellees in appellants’ claim of title under a deed from the Palmers to Wilson, and sliows in fact conclusively that there was no such acquiescence, but, on the contrary, entire ignorance on their part of such claim until 1906. There was no break in their claim of title to the land, and they showed a rendition and payment of taxes for practically every year, after as well as before the alleged date of this Palmer deed, up to date. Besides, every assertion of title and every act of ownership on the part of the Bices can be attributed to their title as set up in the Wilson deed to George Bice under the Martinez deed to Preston. The requested charge would have been misleading. The fifteenth assignment of error is overruled, with the several propositions thereunder.

The court did not err in refusing the charge requested by appellants and set out in the sixteenth assignment of error. It is only by the provisions of the statute (article 2312, B. S.) that it is not necessary to prove the execution of a duly recorded deed. If instead of Presswood’s testimony that the deed from Palmer to Bice which he saw had been recorded in Liberty county, appellants had produced such deed, the record thereof would not have dispensed with proof of its proper execution, except under the conditions imposed by the statute that it should have been filed among the papers of the case and notice given. The charge requested gave Presswood’s testimony, that such deed showed that it had been recorded, a greater force than would have been given to the deed itself, unless offered under the conditions imposed by the statute. The cases cited by appellants with regard to ancient instruments themselves or the record thereof produced in evidence have no application.

The only real issue in this case was whether ID. A. and B. J. Palmer did in fact execute to Wilson a deed conveying this land. This issue was clearly submitted to the jury. Without this deed confessedly appellants have no title; appellees having shown title in themselves by the uncontradicted evidence, unless this deed was executed. The jury found that no such deed was ever executed by E. A. and B. J. Palmer to Wilson. To our minds the overwhelming preponderance of the evidence supports this finding. The existence of this deed rests upon the unsupported testimony of Press-wood. Nobody else ever saw it or heard of it. An attorney who was familiar with the records of Liberty county before their destruction by fire in 1874, and who had examined them, testified that no such deed was recorded. C. M. Bice and Joe Bice, sons of George Bice, and appellants here, each of them at one time had in his possession the package of deeds about which Presswood testified and neither of them would swear that this Palmer deed was among them, or that he had ever seen it. The evidence was undisputed that at the injunction hearing in 1904 appellants made no claim that there was such deed, but claimed under the chain of title in the deed from Wilson to George Bice. No reference to this deed is made in the full and careful recital by Wilson in his deed to Bice of his chain of title. The errors, if any, committed during the trial, have certainly not resulted in the rendition of an improper judgment. We find no errors authorizing a reversal, and the judgment is affirmed.

Affirmed.


author: PLEASANTS, C. J.

text:
    W. D. CLEVELAND & SONS v. SMITH et al.
    (Court of Civil Appeals of Texas. Galveston.
    March 28, 1913.
    Rehearing Denied April 24, 1913.)
    1. Acknowledgment (§ 37) — Married Women — Certificate—Validity.
    Under Sayles’ Ann. Civ. St. 1897, art., 4618, providing that no acknowledgment of a married woman shall be taken, unless it was fully explained to her by the officer taking the acknowledgment on an examination privily and apart from her husband, and that the officer shall not certify to' the same, unless she acknowledged that the same was her act and deed, and that she willingly signed it and did not wish to retract, a certificate of acknowledgment, reciting that grantors, who were married women, having been made acquainted with the contents of the instrument, acknowledged, on examination apart from their husbands, that they executed the same freely and voluntarily and did not wish to retract, is sufficient; the provision for a privy examination not meaning that no person other than the officer shall be present.
    [Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 183, 199-216; Dec. Dig. § 37.]
    2. Vendor and Purchaser (§ 265) — Title-Vendor’s Lien.
    Where notes for the price of land acknowledged that a vendor’s lien was retained to secure their payment, one who purchased from the grantee with knowledge of such notes takes subject to the grantor’s lien.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. § 265.]
    3. Estoppel (§ 26) — Deed op Trust — Acquisition of Title by Trustee.
    The trustee in a deed of trust is under no obligation to defend the title of the grantor, and not having been required to sell the land he is not estopped to acquire title adverse to that acquired by the purchaser on foreclosure of the trust deed.
    [Ed. Note.- — For other cases, see Estoppel, Cent. Dig. §§ 61, 62; Dec. Dig. § 26.]
    4. Estoppel (§ 2S) — Warranty Deed — Heirs.
    A warranty in a deed only binds the grantor’s heirs to the extent of the property received by them from the grantor’s estate, and it being insolvent the heirs are not estopped to acquire a title adverse to tijat conveyed by their ancestor.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 68; Dec. Dig. § 28.]

      5. Adverse Possession (§ 90) — Possession Under Color of Title — Payment oe Taxes.,
    Where defendants were in possession of the land in controversy under color of title, and exercised acts of ownership and paid the taxes, the fact that the abstract number under which the land was rendered up to 1904 was not the proper abstract number of the survey will not prevent their acquisition of title by adverse possession, where the survey had not been given a separate abstract number until 1904, but was located under headright certificate consisting of two surveys, and was regarded by all until 1904 as having the same abstract number as the larger tract.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 517-519; Dec. Dig. § 90.)
    Appeal from District Court, Jasper County; W. B. Powell, Judge.
    ’ Trespass to try title by W. D. Cleveland & Sons against George W. Smith and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    H. C. Howell, of Jasper, for appellant. Blake & Williams, of Jasper, for appellees.

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

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

   PLEASANTS, C. J.

This is an action of trespass to try title brought by appellant, W. D. Cleveland & Sons, ■ a private corporation organized and chartered under'the laws of this state, against the appellees, George W. Smith, Sampson Smyth, Isaac Riley, and Isabella Riley, to recover the title and possession of a tract of 385 acres of land, a part of the George W. Smyth headright survey in Jasper county.

The defendants’ answer, in addition to a general demurrer, general denial,, and plea of not guilty, contains pleas of limitation of three, five, and ten years.

The trial in the court below, .without a jury, resulted in a judgment in favor of the. defendants. This is the second appeal of the case. The opinion of this court upon the former appeal is reported in 113 S. W. 547.

The land in controversy was conveyed to W. H. Smith by J. T. and S. A. Armstrong on October 23, 1875, and it is agreed by all parties that the said Armstrongs at the time of this conveyance had the title to the land.

On April 15, 1891, W. H. Smith executed a deed of trust upon this and other lands owned by him to secure an indebtedness due by the firm of Smith Bros., of which he was a member, to the firm of W. D. Cleveland & Co. This deed of trust contains a general warranty of title to the lands thereby conveyed. When W. H. Smith purchased the land from J. T. and S. A. Armstrong, he executed two notes for a part of the purchase money, one for $600 and the other for $500. The deed to Smith recites the execution of these notes, but did not retain a lien to, secure their payment. Such lien was, however, acknowledged by a recital in the purchase-money notes executed by Smith. When the deed of trust to W. D. Clevelánd & Co. was executed, Smith informed them that vendor’s lien notes were outstanding against the land, and did not want to include this land in the deed of trust, but being urged to do so by the agent of Cleveland & Co. finally consented. W. D. Cleveland & Co. foreclosed this deed of trust in the district court of Tyler county on July 14, 1894, and under an order of sale issued on this judgment of foreclosure the land was sold on April 4, 1895. At this sale W. D. Cleveland & Co. bought this and the other lands included in the deed of trust and received a sheriff’s deed thereto; the amount of their bid being credited on their judgment against Smith Bros. The appellant, W. D. Cleveland & Sons, hold the title acquired by W. D. Cleveland & Co. through this foreclosure proceeding.

Appellee George W. Smith was made trustee in the deed of trust above mentioned, but, as before stated, the trust was not executed by him, the sale and conveyance to Cleveland & Co. being made by the sheriff of Jasper county under the order of sale before referred to.

On April 16, 1897, the heirs of J. T. and S. A. Armstrong, in consideration of the payment to them by George W. Smith of the notes for $500 and $600, before mentioned, conveyed to him the land in controversy. This deed recites the former conveyance by J. T. and S. A. Armstrong to W. H. Smith, the execution of the notes by W. H. Smith and their payment by appellee, and in consideration of the premises the grantors, as heirs of said Armstrongs, “release, relinquish, and quitclaim deed unto George W. Smith all right, title, interest and claim that [they] as heirs, as aforesaid, of the said James T. Armstrong and wife, S. A. Armstrong, have or could in any wise have by inheritance in and to the lands for which the above-described notes were given.”

The certificate of acknowledgment to this deed is as follows:

“The State of Texas, County of Hill:

“On the 16th day of April, A. D. 1897, personally appeared before me, J. M. Fennell, a notary, public in and for said county, J. E. Armstrong, Emma Armstrong, W. B. Barnes; Annie Barnes, J. L. White, E. E. White, and Emma Armstrong, Annie Barnes, E. E. White, wives of the said J. E. Armstrong, W; B. Barnes, and J. L. White, whose names are subscribed to the foregoing instrument as parties thereto, personally known to me to be the individuals described in and who executed the instrument as parties thereto, who each acknowledged to me that they, each of them, respectively executed the same freely and voluntarily, and for the uses and purposes therein mentioned. And the said Emma Armstrong, Annie Barnes, and E. E. White, wives of the said J. E. Armstrong, W. B. Barnes, and J. L. White, having been by me first made acquainted with the contents oí said instrument, acknowledged to me, on examination apart from and without the hearing of their said husbands, that they executed the same freely and voluntarily without fear or compulsion or undue influence of their husbands, and that they do not wish to retract the execution of the same.

“In witness whereof, I have hereto set my hand and affixed my official seal the day and year above written.

“J. M. Fennell,

“Notary Public, Hill County, Texas.”

The description of the land contained in this deed sets out the field notes, giving the metes and bounds of the land in controversy, and fixing its beginning corner at the northeast corner of the A. F. Smith survey. It does not give the name of this survey, nor the county in which it is located, but recites that it is the “lands for which said notes were given and executed.” This deed was recorded in the deed records of Jasper county on May 29, 1897. At the time appellee Smith purchased from the heirs of the Arm-strongs the land was in the possession of defendants Isaac and Isabella Riley and Sampson Smyth, who were holding possession as tenants of W. H. Smith. After appellee’s purchase the parties above named continued to occupy and cultivate the land as his tenants. The tenancy and occupancy of the Rileys was continuous and unbroken up to the filing of this suit on .October 30, 1905.

The occupancy of Sampson Smyth as a tenant of appellee continued to the 25th of November, 1901, when he purchased from ap-pellee Smith 92 acres of the land and received a deed therefor, which was duly recorded in the deed records of Jasper county on November 25, 1901. Since said purchase he has occupied and claimed the 92 acres.

Appellee Smith paid the taxes on all the land for the years 1898 to 1901, inclusive, and thereafter on an of the land not sold to Sampson Smyth for each year up to and including the year 1905. Sampson Smyth paid the taxes on the 92 acres purchased by him for the years 1902 to 1905, inclusive. The possession and claim of appellees ■ were of the exclusive and adverse character required to perfect title under the statutes of limitation.

The George W. Smith headright certificate was located upon two separate tracts of land. The abstract number 36 appears to have properly applied to the larger of the two tracts, and the smaller tract of 385 acres in controversy does not appear to have been given an abstract number until 1903, when it was numbered 968. When the land in controversy was first rendered by appellee Smith, it was rendered and accepted by the county authorities as on the George W. Smyth headright, Abstract No. 36. In 1903 the Commissioner of the Land Office gave the smaller tract in controversy the abstract number 968, and thereafter it was rendered by appellees under that abstract number.

Neither the deed of trust under which appellant claims, nor deed from J. T. and S. A. Armstrong to W. H. Smith, nor the deed from the heirs of said Armstrong to appellee George W. Smith, designates the survey by any abstract number, but the deed of trust and the deed to W. H. Smith designate it as a part of the George W. Smyth headright survey.

Under the first assignment of error presented in its brief, appellant complains of the ruling of the trial court in admitting in évidence the deed from the Armstrong heirs to appellee Smith. Appellant objected to the admission of this deed as a muniment of title, on the ground that it was void as to Emma Armstrong, wife of J. E. Armstrong, Annie Barnes, wife of W. B. Barnes, and E. E. White, wife of J. L. White, because the certificate of acknowledgment was insufficient in the following particulars: “(a) The certificate of the officer fails to show that said women were examined by him privily and apart from their respective husbands, (b) Said certificate fails to show that the instrument was fully explained to said women, respectively. (c) Said certificate fails to show that said women willingly signed said instrument, respectively, (d) Said certificate fails to show that said women, respectively, declared that they did not wish to retract said instrument; all of which is shown by plaintiff’s bill of exception No. 1.”

The certificate, which we have before set out, recites that all of the grantors in said deed, naming each of them, appeared before the officer and were known to him to be the persons whose names are subscribed to said instrument, and each acknowledged to him “that each of them, respectively, executed the same freely and voluntarily and for the purposes and consideration therein expressed.” It further recites: “And the said Emma Armstrong, Annie Barnes, and E. E. White, wives of the said J. E. Armstrong, W. B. Barnes, and J. L. White, having been by me first made acquainted with the contents of said instrument, acknowledged to me, on examination apart from and without the hearing of their said husbands, that they executed the same freely and voluntarily without fear or compulsion or undue influence of their husbands, and that they do not wish to retract the execution of the same.” We think this certificate shows that the deed was acknowledged by the parties named in accordance with the -provisions of article 4618, Sayles’ Civil Statutes. It shows that they were examined apart from and without the hearing of their husbands, and were made acquainted by the officer with the contents of the instrument. The provision of the statute that the examination shall be “privily and apart” from the husband does not mean that no person other than the officer shall be present at the examination, but only requires that the examination shall not be in the presence of the husband, and when the examination is apart from and without the hearing of the husband it is a privy examination and meets the requirements of the statute. If, as stated in the certificate, these grantors were made acquainted with the contents of the instrument by the officer, the requirement of the statute that the instrument should be fully explained to them was complied with. The officer could not have made them acquainted with the contents of the instrument without fully explaining it to them. The fact that the certificate does not show that each of the three women separately acknowledged” that she willingly executed the instrument and declared that she did not wish to retract it does not affect its validity. If all of them made such acknowledgment and declaration, each of them necessarily did so, and the statute does not require that such acknowledgment and declaration should have been made severally. The acknowledgment that they executed the deed “freely and voluntarily and without fear or compulsion or undue influence of their husbands” was an acknowledgment that they willingly signed it. The exact words of the statute need not be used in the certificate if the full intent and meaning of the statute is shown by the certificate to have been complied with. We think none of appellant’s objections to the certificate is valid, and the assignment is overruled.

It would serve no useful purpose to discuss in detail the various assignments of error presented in appellant’s brief. Upon the facts before set out, the trial court correctly held that appellees had-the superior title to the land in controversy.

The evidence is sufficient to sustain the finding of the trial court that the notes given by W. H. Smith to J. T. and S. A. Armstrong for the purchase money of the land contained an acknowledgment that a vendor’s lien was retained upon the land to secure their payment. W. H. Smith having failed to pay these notes, the superior title to the land remained in his vendors, and upon their death passed to' their heirs, and the deed from said heirs to appellee George W. Smith, in consideration of the payment of said notes, put this title in him. The agent of Cleveland & Co., who procured the deed of trust from W. H. Smith, was informed that the land was not paid for, and a vendor’s lien had been retained thereon to secure the payment of the purchase-money notes; and therefore said company knew that the superior title was in the Armstrongs.

As said in our opinion upon the former appeal of this case, there is no merit in appellant’s contention that the appellee George W. Smith, because" of the fact of his having been named trustee in the deed of trust executed by W. H. Smith, and through which appellant derives its title, and also because of his relationship as son and heir of W. H. Smith, is estopped from asserting against appellant any title to the land, and that any title acquired by him subsequent to the execution of said deed of trust inured to appellant’s benefit. If George W. Smith had executed the trust imposed upon him by the trust deed, and as such trustee had sold and conveyed the land, his warranty of the title would not have placed him under any personal obligations to defend or protect the title so conveyed by him; and we know of no principle of estoppel that would have forbidden him from thereafter acquiring and asserting against his vendee a superior title to that held by the maker of the trust deed. In such ease, in making conveyance as trustee, he would only have acted as the channel or medium through which the title and warranty of W. H. Smith, the maker of the trust deed, passed to the purchaser, and would not be bound by the express warranty or any of the implied covenants of the grantor in the trust deed. Such being his status in relation to the obligations of the maker of the trust deed, there would be no basis for the application of the doctrine which passes to a grantee by estoppel a title acquired by his grantor after he has conveyed the land. Certainly when, as shown by the facts before set out, George W. Smith was not called upon to act as trustee, and took no part in the conveyance of the title acquired by appellant, he should not be held estopped to acquire and assert a title to the land adverse to that acquired by appellant under the trust deed.

It is equally clear that George W. Smith was not estopped, as an heir of W. H. Smith, to acquire and assert against appellant a title to the land superior to that acquired by appellant under the trust deed. He would only be bound by his father’s warranty to the extent of the value of the property inherited by him from his father, and the evidence shows that the estate of W. H. Smith was insolvent. If he had received property from his father by inheritance, and to that extent was liable on his father’s warranty of title to the land conveyed to appellant, such liability, would not cause his title to the land in controversy to inure to appellant’s benefit. His liability as an heir in the warranty of his father not being a personal liability or obligation, but applying only to the property inherited by him from his father, there is no estoppel against his acquiring and holding the title to the land superior to that conveyed by his father to appellant.

We also agree with the trial court in the conclusion that appellees have title to the land in controversy under the five-year statute of limitation. The undisputed evidence shows that they held adverse possession of the land for more than five years before this suit was brought, claiming under deeds duly registered, and that they paid the tases on the land from 1898 to 1905, inclusive. The fact that the abstract number under which the land was rendered up to 1904 was not the proper abstract number of the survey is immaterial, in view of the facts that the survey had been given no separate abstract number until 1904, and was located under the George W. Smyth headlight certificate, which was located upon two tracts of land, the larger of which tracts was given the abstract number 36, and the tract in controversy, up to the year 1904, appears to have been regarded by the county assessor, as well as appellees, as having the same abstract number as the larger tract In these circumstances its rendition under abstract No. 36 could not have misled appellant, and there is no question that the land in controversy was the land rendered and on which appellees paid the taxes.

We have considered all of appellant’s assignments of error, and in our opinion none of them should be sustained. The judgment of the trial court is affirmed.

Affirmed.


author: JENKINS, J.

text:
    ETTER v. McLENNAN COUNTY.
    (Court of Civil Appeals of Texas. Austin.
    March 12, 1913.
    Rehearing Denied April 23, 1913.)
    Courts (§ 57) — Court Stenographers — Compensation — Certificate op Judge.
    Acts 1909, 31st Leg. (1st Called Sess.) c. 39, § 8, provides that, if in any district the official shorthand reporter shall within the judgment of the court have rendered more services to the court in the discharge of his duties than the act provides for, the district judge shall certify to the commissioner’s court, whether the compensation is commensurate with the services performed, and, if not, that the certificate of said judge shall state the amount that the reporter should receive from each county in the district, and the same shall be a claim against the county. Held, that the statute meant that, if the per diem received in, any given period should not be commensurate with the services performed during that period, the district judge should certify such fact to the commissioners’ court, stating the additional amount which should be paid, and that a certificate that the stenographer “rendered more services to the court” than the statute provided compensation for without stating the amount which in the court’s judgment the reporter should receive was insufficient.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 198-200;.Dec. Dig. § 57.]
    Appeal from McLennan County Court; Sam E. Stratton, Special Judge.
    Action by Hall Etter against McLennan County. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Pat M. Neff and D. C. Woods, both of Waco, for appellant E. J. Clark, of Waco, for appellee.

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

   Findings of Fact.

JENKINS, J.

Appellant herein, at the time the services for which he brings suit were rendered, was the duly appointed and qualified official stenographer of the Fifty-Fourth judicial district at Waco, Tex. There was pending before the county judge of Mc-Lennan county the trial of J. B. Witty upon the charge of lunacy. Appellant was requested by the county attorney of McLennan county to take the testimony in said lunacy proceedings, the said Witty at that time being charged by affidavit with the offense of murder, and the said county attorney desired a correct report- of the testimony to be taken in said lunacy proceedings, in order that he might determine, first, whether or not the said Witty should be indicted for the offense of murder, and, if he was, that he might have the benefit of the testimony taken on said lunacy trial in examining the witnesses upon the murder trial. Appellant, after said request was made by said county attorney, went through the district court room and spoke to the district judge about the matter, explaining to him the request that had been made by the county attorney, and said district judge said, “All right, go ahead.” Appellant then went to the county court room, and reported to the assistant county attorney. The county judge then appointed "appellant official stenographer in that proceeding to take the testimony, which he did, and' for which he was paid the sum of $5 per day. The said Witty was committed for lunacy on said trial; and in compliance with law that the authorities should be furnished with a statement of the testimony taken appellant made out a brief statement in narrative form of the testimony of each of the witnesses, which was signed and sworn to by said witnesses, and for this he received the amount for which he rendered his bill. Subsequently the said Witty was discharged from the asylum, and said county attorney then requested appellant to make out for him in the form of questions and answers the testimony taken on said trial. This he did, and made out and presented to the commissioners’ court of McLennan county the following bill, with the indorsements thereon:

“Waco, Texas, June 1, 1911. McLennan County to Hall Etter, Dr. To services rendered under the direction of the court and the county attorney in the following matters: March 30th, 1911, testimony' in the case of the State of Texas vs. J. B. Witty, non compos mentis, $215.00. May 30th, 1911, testimony on ex parte hearing N. A. Floyd, $7.50. Total, $222.50. Approved: Pat M. Neff, County Attorney. Approved: Richard I. Munroe, Judge.

“It being the judgment of the court that in doing the work for which the above charges are made, Hall Etter, the official shorthand reporter of this court has rendered more services to the court in the discharge of his duties than the terms of the law require defining Ms duties, and fixing Ms compensation ; said account for $222.50 is approved as a claim against McLennan county. It is ordered that this be entered on the minutes of this court. Richard I. Munroe, Judge 54th District Court.”

The said Witty was subsequently indicted for murder, and tried for said offense in the district court of McLennan county, and the county attorney used said testimony taken in said lunacy proceedings to assist him in the examination of the witnesses. 'The county attorney had a stenographer who was paid out of the fees of his office. Said account was allowed by the commissioners’ court, but appellee in its answer expressed a willingness to allow and pay said item for $7.50 when a proper account therefor was presented. The case was tried before a special judge without a jury, and judgment rendered for the defendant.

Opinion.

Appellant bases his right to recovery under the facts above stated upon the following provision of section 8, c. 39, of the Acts of the First Called Session of 1909, p. 377. “ * * * Provided further, however, that if, in any district, the said official shorthand reporter shall, within the judgment of the court, have rendered more services to the court in the discharge of his duties than the terms of this bill shall provide for, then and in that event the district judge shall certify to the commissioners’ court of each county in his district, six months after the taking effect of this act, and at the end of every six months thereafter, whether or not in his judgment the compensation is commensurate with the services performed, and if not, that the certificate of said judge shall state the amount that in Ms judgment the said official shorthand reporter should receive from each of the counties in the district, and same shall be a claim against the county to be allowed or rejected by the commissioners’ court as other claims against the counties. * * * ” We construe the provision of the act above set out to mean that if the per diem received by the official stenographer for.work done in reporting cases, and in performing ,other services under the actual direction of the court, together with the amount that he shall have received for transcripts of his notes, in any given period of six months, beginning when said act took effect, and from time to time thereafter, shall not be commensurate with the services performed during such six months period, the district judge shall certify such fact to the commissioners’ court of the proper county, and shall state in said certificate the additional amount that should be paid by such county in order to render the compensation of said stenographer for said period commensurate with the work done.

The certificate of the district judge, as •set out in the findings of fact herein, is not in compliance with said act, for which reason the account herein sued on was properly rejected by the commissioners’ court of Mc-Lennan county.

The act above referred to took effect April 11, 1909, and consequently the six-month period would extend from April 11th to October 10th, and from October 11th to April 10th, inclusive, of each year. As the work for which this suit was brought was done March 30, 1911, it was done in the period between October, 1910, and April, 1911. The certificate of the district judge is to the effect “that in doing the work” for which the' account was rendered the appellant “rendered more services to the court” than the terms of the bill provide for, in so far as it fixes compensation. This may be true, but it does not follow that during the six-month .period in which said work was done the appellant did not receive from the per diem and fees fixed by said act “compensation commensurate with the services performed-’ during said period, and said certificate does not “state the amount that in his judgment said official reporter should receive” from McLen-nan county, in order to render the compensation of appellant adequate for the work done. during the six-month period, in which the date of the work done is included.

In our opinion the work shown by the account herein sued on was done for the county attorney to assist him in properly preparing a case for trial, and we doubt if it is within the purview of the statute as herein-above set out. The approval of the district judge of this account against McLennan county, in the manner and form as above shown, amounts to no more than would his approval of an account in favor of appellant and against an individual.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.


author: BEESE, J.

text:
    BEAUMONT & G. N. R. CO. v. YARBROUGH et ux.
    (Court of Civil Appeals of Texas. Galveston.
    March 20, 1913.)
    1. Railp.oads (§ 114) — Construction in Street-Damage to Abutting Owner — Evidence.
    In an abutting owner’s action for damages caused by the construction and operation of a railroad on a public street, the dedication of the street and its use as a recognized public street were sufficiently shown by the recorded map and the sale and conveyance of property with reference to such street.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 365-371; Dec. Dig. § 114.]
    2. Railroads (§ 113) — Damages to Abutting Property — Persons Entitled to Re- ' cover.
    Persons who had exclusive possession of an abutting lot, under a claim of title, for seven years before the injury complained of could sue for the damages sustained by the construction and operation of a railroad in a public street, without showing title as in trespass to try title.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 230, 351-357, 359-361, 363, 364; Dec. Dig. § 113.]
    Appeal from Trinity County Court; C. J. Hinson, Judge.
    Action by S. H. Yarbrough and wife against the Beaumont & Great Northern Bailroad Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Clegg & Embry, of Trinity, and. Kenley & Minton, of Groveton, for appellant. Crow & Phillips, of Groveton, for appellees.

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

   BEESE, J.

This is an action in the county court by S. H. Yarbrough and wife against the Beaumont & Great Northern Bailroad Company to recover damages for injuries to the value of a certain improved lot, belonging to plaintiffs, in the town of Trinity, occasioned by the building and operation of the railroad along a public street in said town on which said lot is situated. A trial with a jury resulted in a verdict and judgment for plaintiff for $200. Both parties filed motions for new trial, which were, respectively, overruled; whereupon both parties gave notice of appeal and filed separate appeal bonds, and each party filed in the trial court assignments of error. The record on appeal was filed in this court by the defendant.

We have carefully examined the assignments of error of both parties, and in fact the entire record and statement of facts, with the result that we have concluded that none of the assignments present sufficient ground for reversing the judgment. A discussion of the assignments is not necessary, and would serve no useful purpose. They are all overruled with the several propositions thereunder. There are no principles of law presented by the assignments that would require the writing of an opinion, adding unnecessarily to the mass of such opinions, already too large and growing burdensome to bench and bar.

We will, however, state very briefly our conclusions upon two questions raised by appellant, which may possibly prove useful.

The dedication of the street on which appellees’ property is situated and the use of it as a recognized public street of the town were sufficiently shown by the recorded map and the sale and conveyance of property with reference to such street, showing a recognition of it as a public street.

All of the objections to the evidence introduced by appellees to establish their title to the property are entirely immaterial. Appellees showed exclusive possession, under claim of title, for seven years before the .injury complained of, in themselves, and this was sufficient to support the action. It was entirely unnecessary for them to show title as in trespass to try title. Kolb v. Bankhead, 18 Tex. 229; Linard v. Crossland, 10 Tex. 462, 60 Am. Dec. 213; Pac. Ex. Co. v. Dunn, 81 Tex. 86, 16 S. W. 792.

The judgment is affirmed.

Affirmed.