text:
    DUNN v. LAND.
    (No. 5756.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 28, 1917.
    On Motion for Rehearing, March 21, 1917.)
    1. Judgment <@=>710 — Evidence — Parties Against Whom Admissible.
    In trespass to try title in which the location of a boundary was the only issue, it was error to allow a witness to testify as to the location of the boundary as shown on a map before the jury as established by the decision of the Supreme Court in another ease, since the failure of parties to introduce testimony in a case cannot affect the rights of parties claiming other lands, and in this case the rights of defendant cannot be affected by the fact that meager testimony was introduced in a case between other parties, or even by the fact, had it existed, that a jury in another case on testimony not conclusive had found against his contention.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1230.]
    2. Appeal and Error <@=>1050(1) — Boundaries <@=>35(2) — Evidence—Admissibility —Prejudicial Error.
    Evidence that the line contended for by plaintiff and had been recognized as the western boundary line of a grant since decision of the Supreme Court in said case, and that the witness after such decision had made all the surveys for locations of state land certificates between the east line of another grant and the line contended for by plaintiff, was prejudicial, and should have been excluded, since the decision itself was inadmissible, and could affect no rights of the parties in this case, and the construction placed thereon by the witness or others should not be permitted to go before the jury directly or indirectly.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157; Boundaries, Cent. Dig. §§ 154, 155.]
    3. Evidence <@=116 — Admissibility — Explanation op Map.
    Where a witness had made a map on which alternate surveys were marked “state” which was introduced in evidence by defendant, plaintiff could ask the witness to explain the lines on his map to show that the land in question was blanketed by state surveys.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 134, 135.]
    4. Evidence <@=333(5) — Documentary Evidence-Records.
    The records of a certificate in the Spanish language properly translated and shown to be made by the original surveyor of the grant under which defendant claimed, which stated the location of a point designated on a map, was not admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1253.]
    5. Evidence <@=471(27) — Opinion Evidence —Admissibility. •
    Where a witness was permitted to testify to the facts concerning his occupancy and possession of land, the court properly refused to let him state his conclusion that such possession was exclusive.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2172; Witnesses, Cent. Dig. § 833.]
    6. Appeal and Error <@=1050(1) — Boundaries <@=35(2) — Evidence — Admissibility-Prejudice.
    Where defendant claimed under a Mexican grant and plaintiff under a grant from the state, evidence that other land had been taken up in that vicinity by settlers under the 'state since the litigation arose was irrelevant, since the general reputation admissible must be that existing before the controversy arose, and the testimony was prejudicial because it made known to the jury that the validity of many surveys granted by the state is dependent upon the location of the west line of a Mexican grant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157; Boundaries, Cent. Dig. §§ 154, 155.]
    7. Appeal and Eeeoe @=31051(1) — Review— Haemless Eeeoe.
    Error in the admission of evidence that other lands in the vicinity had been taken up by settlers under the state, prejudicial because made known to the jury that the validity of many surveys granted by the state is dependent upon the location of the west line of a Mexican grant, was harmless, where a map in evidence would disclose the same information.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4105, 4166.]
    8. Evidence @=>545 — Expert Testimony — Boundaeies.
    Testimony of a witness that during the years he had been an abstractor in a county he had become familiar with the old titles in the county should have been excluded, since the witness’ knowledge of land titles has no bearing on his knowledge of the location of the boundary line in question.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2360-2362.]
    9. Appeal and Eeeoe @=>1050(1) — Review-Harmless Eeeoe.
    The admission of testimony of a witness that during the years he had been an abstractor in the county he had become familiar with the old land titles in the county was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.]
    10. Evidence @=>333(5) — Documentary Evidence — Recoeds.
    The action of the trial court in permitting plaintiff to read from a memorandum book of the county surveyor, containing data of application to purchase school lands, memoranda concerning applications by defendant to purchase portions of sections which was the register provided for in articles 3894 and 3895, Rev. .St. 1879, entries in which are not by statute made admissible in evidence, was error, since such data was not competent evidence to prove the contents of the application agreement; as the use of records instead of copies should be limited to those -of which the contents are admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1253.]
    11. Appeal and Eeeoe @=>1050(1) — Review-Harmless Eeeoe.
    The action of the trial court in permitting plaintiff to read from a memorandum book of the county surveyor, containing data of applications to purchase school lands, memoranda concerning applications by defendant to purchase portions of sections which was the register provided for in articles 3894 and 3895, Rev. St. 1879, as harmless error, where the applications themselves were admitted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.]
    12. Evidence @=>219(3) — Admissibility — Purchase op Adverse Title.
    The admission of a deed and patent to defendant from the state dated after a former case concerning the land was error, since, while acquiescence of a party to the suit in a dividing line, even though not of a character to estop him from denying its correctness, may be shown as a circumstance tending to show that'such line is the line as established by the surveyor who located the surveys, defendant did no more than protect himself in case the boundary of his grant should be declared contrary to his contention, and the purchase of an adverse title may be made without the hazard of forfeiting title and without prejudice to the purchaser’s right.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 767-769.]
    13. Trespass to Try Title @=>47(1) — Suit foe Moee Tuan Dependant Claims — Effect.
    In trespass to try title, although, when plaintiff sues for more land than defendant claims or is in possession of, the latter should promptly disclaim to that part not in his possession, the fact that plaintiff sues for more than defendant claims will not prevent recovery of the land claimed by defendant to which plaintiff proves title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 69.]
    14. Boundaries @=>41 — Instruction — Presumed Geant.
    In an action of trespass to try title, in which both parties claim under grants from the sovereignty proven and title established thereunder, the doctrine of presumed grant invoked by defendant had no applicability; hence a charge that the evidence would not be considered as establishing an adverse claim was not reversible error.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 205-207.]
    15. Trespass to Tey Title @=>45(1) — Misleading Instructions.
    As no issue of limitation was pleaded, and boundary was the only issue submitted, although the doctrine of presumed grant had no application, a charge that there was no issue of limitation, and that the evidence should not be considered as establishing any adverse claim or right, was unnecessary, and should not have been given, since it would create the impression that the court was afraid too much weight would be given to the testimony, and it was confusing in telling the jury first that the evidence could not be considered as establishing any right to the land, and then that they might consider it.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 67.]
    16. Appeal and Eeeoe @=>231(9) — Review-Objections.
    Objections that the portions of the charge are calculated, especially on account of not being applicable to the facts in evidence, to mislead and'confuse the jury in an effort to reach a verdict, as there is • practically no conflict whatever in the evidence as to the lines or any boundaries of the grant, and which are addressed to the question whether a peremptory instruction should have been given, and do not point out in what respect the charge was not applicable to the evidence or how it might confuse the jury, were too general, and as the objections failed to show that it would not be proper to give in the charge the rules with regard to the relative dignity of calls, an assignment of error based thereon will be overruled.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 689.]
    17. Appeal and Eeeoe @=>1033(5) — Estoppel to Allege Eeeoe.
    A party may not object on appeal to portions of the charge which emphasized the importance of the matters relied upon by him.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4056.]

      18. Trial <@=>2-28(3) — Instructions — Desideratum.
    In a boundary case tbe court should avoid the use of the word “desideratum,” and use instead words generally used and concerning the meaning of which the jury can have no doubt.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 512.]
    19. Trial <@=>194(2) — Instructions—Weight oe Evidence.
    A charge that it was the duty of a survey- or to extend a correct description of courses and distances into the field notes, and the map accompanying such field notes, and until the reverse was proven it would be presumed the surveyor did his duty in those respects, was not erroneous as on the weight of the evidence, although the distances marked on this map are shown to be erroneous, where the charge also states that it was the surveyor’s duty to actually run around the land intended to be embraced in the survey and see that such natural or other objects were designated on it as would clearly point out and identify the locality and boundaries of the given .tract and to extend a correct description of these objects, natural and artificial, in the field- notes and map.
    [Ed. Note. — Eor other eases, see Trial, Cent. Dig. § 441.]
    20. TeIial <@=>290(9) — Instructions—Cure oe Error.
    A charge that a call for a survey to be circumscribed on three sides by waters called for must control proof of a survey inconsistent with such theory, although on the weight of the evidence when standing alone was not error, where in another portion of the charge this charge is applied to the facts in a way not objected to, and so that the call for the survey to be surrounded on three sides by water is not permitted to control.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 712.]
    21. Trial <@=>252(5) — Instructions — Applicability to Evidence.
    A charge on the rule that in arriving at the bounds of a survey courses and distances yield to natural or artificial objects of demarkation, but courses and distances will not be made subordinate to an unmarked line or corner in an older survey when such line or corner can only be found and identified by running course and distance from some other marked line or corner or well-known object, held, not applicable to the facts, which showed the marks of a first survey to have existed at the time the record survey was made.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § COO.]
    22. Boundaries <@=>3(6) — Surveys.
    If the marks called for by a first survey existed at the time a second survey was made, but did not exist when the controversy arose, but the location of the old line can be identified, the same rule would be applied as if the marks still existed at the time of the controversy.
    [Ed. Note. — Eor other cases, see Boundaries, Cent. Dig. §§ 24-29.]
    23. Trespass to Try Title <@=>47(1) — Judgment— Statute .
    Under direct provisions Rev. St. 1911, arts. 7741 and 7758, whenever the defendant in trespass to try title pleads not guilty, he puts in controversy plaintiff’s title to all land sued for, and a judgment that plaintiff take nothing by his suit has the same effect as a judgment that defendant recover the land.
    [Ed. Note. — Eor other cases, see Trespass to Try Title, Cent. Dig. § 69.]
    '24. Trespass to Try Title <@=>47(1) — Judgment-Statute.
    Under direct provision of Rev. St. 1911, art. 7756, in trespass to try title in which issue was whether the land claimed was within a Mexican grant, a judgment for plaintiff describing the land was proper, and it was not necessary to fix the boundary of such grant; as the case would not settle other persons’ rights even by fixing the boundary.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 69.]
    25. Boundaries <@=>4(K1) — Question eor Jury.
    The location of the boundary in question held, for the jury.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 196-203.]
    On Motion for Rehearing.
    26. Boundaries <@=>35(2) — Dooation oit Lines — Reputation.
    ■Common repute relied upon in support of a line in a survey, having its inception 47 years after the original survey, and originating from the survey of one who did not pretend to know the location of the original lines, was inadmissible.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 154, 155.]
    27. Trial <@=>296(2) — Instructions—Cure oe Error.
    An instruction on the rule regarding_ unas-certained lines in former survey and their control over coui’ses and distances eri’oneous, because not applicable to evidence, held not cured by a charge that, if the gi’ant under which defendant claims was bounded by a named grant, to find for defendant, or a charge that to find for defendant the line of such other grant and its comers must be identified.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 70S.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Trespass to try title by Charles Land against John Dunn. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    J. C. Scott, of Corpus Christi, for appellant. G. R. Scott and Boone & Pope, of Corpus Christi, for appellee.
   MOURSUND, J.

Charles Land sued John Dunn in trespass to try title, seeking to recover 184.29 acres of land in Nueces county, described by metes -and bounds, and alleged to be a portion of survey 404, made by virtue of Beaty, Seale, and Eorwood certificate No. 1740. Dunn answered by plea of not guilty. The controversy resolved itself into one of boundary, Dunn contending that the land was situated within the boundaries of a Mexican grant made by the state of Tamauli-pas to Enrique Villareal, while Land claimed that it was situated west of the west line of said Mexican grant, and therefore the sale thereof to him by the state of Texas vested in him the title thereto. The trial resulted in a verdict and judgment for plaintiff for the land sued for and for damages in the sum of $23.16.

By the first assignment of error complaint is made of the ruling of the court in permitting the plaintiff to ask the witness Blucher, in effect, what was the line, as shown in the map then before the jury, designated as the western boundary of the Rincon del Oso grant according to the decision of the Supreme Court of Texas in the case of Schaeffer v. Berry. The case referred to is reported in 62 Tex. 705. The opinion speaks for itself, and need not be discussed. The failure of parties to introduce testimony in a ease cannot affect the rights of parties claiming other lands, and in this case the rights of Dunn cannot be affected by the fact that meager testimony was introduced in a case between other parties, or even by the fact, had it existed, that a jury in another case no testimony not conclusive, had found against his contention. We cannot imagine any more prejudicial testimony in a boundary suit than that of a witness to the effect that the highest court of the state had established the line at a place contended for by one of the parties: The qualification of the bill of exceptions fails to show any ground for admitting the testimony. The map in evidence, it is true, had the Dix line marked on it, .which was the line contended for by Land, but we are unable to see how this could justify" getting before the jury the witness’ construction of the Schaeffer v. Berry Case or any one else’s construction thereof.

The second and fourth assignments show that the witness was permitted to testify that the line contended for by Land had been recognized as the western boundary line of the Rincon del Oso grant since the decision of the Supreme Court in said case, and that the witness after such decision had made all the surveys for locations of state land certificates between the east line of the Grogaria Farias grant ánd the line contended for by Land. This testimony should have been excluded. The decision itself was inadmissible, and could affect no rights of the parties in this case, and the construction placed thereon by the witness or others should not. be permitted to go before the jury directly or indirectly. The logical inference from this testimony would be that the Supreme Court had held the land in controversy not to be embraced in' the Villareal grant. The decision itself might do less harm than such testimony, and this case should be tried on the evidence introduced therein entitled to probative force, and not upon the failure of parties in another suit to adduce testimony. W e cannot permit any intimation to the jury that the Supreme Court has established the line, and that defendant is controverting the correctness of such decision. That the testimony was highly prejudicial cannot be doubted. Colonial Mortg. Co. v. Tubbs, 45 S. W. 623. Assignments 1, 2, 4, 5, 6, and 9 are sustained.

By the third assignment complaint is made because the' court permitted plaintiff to prove by its witness C. F. H. Blucher that south of the Oso Creek, between the lines of the Farias grant and the Dix line, the territory was blanketed with state surveys. This witness had made a map on which all of such state surveys were delineated, which was introduced in evidence by defendant, and afterwards the question was asked. Under the circumstances plaintiff could ask the witness to explain the lines on his map. The map showed the alternate surveys to be marked “state,” and wel fail to see how the jury could have failed to understand that locations under the state had been made upon all of such territory. The assignment is overruled.

Defendant offered in evidence the record of a certificate in the Spanish language made by Antonio Canales, the original surveyor of the Villareal grant, with proper translation thereof, recorded in the deed records of Nueces county in 1849. The certificate is dated March 24, 1849, and is to the effect that the point designated with the letter B on the map of the Rincon del Oso which he made on August 2, 1831, and which in the titles is given the name of the Refugio, is the first'pass which is found on ascending the Nueces river higher than the heights of White Bluff, well known to all the old settlers, and that when he made the survey of the land Enrique Villareal was one of the chain bearers. The governor of Tamaulipas certified to Canales’ signature to the certificate, and a witness thereto swore before the county clerk of Nueces county that he saw Canales sign it. The record of the certificate was not admissible in evidence. Barrow v. Gridley, 25 Tex. Civ. App. 13, 59 S. W. 602, 913; Mackey v. Armstrong, 84 Tex. 159, 19 S. W. 463; White v. McCullough, 56 Tex. Civ. App. 383, 120 S. W. 1093; Magee v. Paul, 159 S. W. 325.

The eighth assignment is overruled. The witness was permitted to testify to the facts concerning his occupancy and possession, and the court only refused to let him state his conclusion that such possession wps exclusive.

By the tenth assignment complaint is made because the court permitted plaintiff to ask defendant’s witness Noakes the following question:

“Now, I will ask you, Mr. Noakes, if it isn’t a fact that since that time [the litigation as to the location of the western line of the Villareal grant] that land out there has, a great deal of it, been taken up by settlers under the state, lots of people out there who weren’t out there before have taken up land out there?”

The objection was th'at the testimony sought to be elicited was immaterial and irrelevant, and an effort to prove by parol what was shown by the records of the general land office and the records of Nueces county. The argument under the assignment relates almost entirely to the reference to litigation contained in the question, but the proposition submitted thereunder relates solely to the issue whether testimony that the land had been taken up by settlers under the state was irrelevant. The testimony, in our opinion, is irrelevant. The fact that persons have bought under the state other lands than that in controversy can add no force to ap-pellee’s contention as to the boundary line. It cannot he relevant as establishing general reputation for the general reputation admissible must be that existing before the controversy arose. It is bound to be prejudicial for it to be made known to the jury that the validity of many surveys granted by the state is dependent upon the location of the west line of the Rincon del Oso grant (Matthews v. Thatcher, 33 Tex. Civ. App. 139, 76 S. W. 61), and yet, in view of the maps used in evidence, we fail to see how much such fact could he kept from the jury, and for that matter, owing to the large territory involved, it is doubtless a matter of common knowledge in Nueces county. In view of the disclosure by maps of such locations, we hold that the error is harmless, and overrule the assignment.

The eleventh assignment complains of the admission of the testimony of A. M. French to the effect that during the years he had been an abstractor in Nueces county he had become familiar with the old land titles in the county. The witness’ knowledge of land titles has no bearing on his knowledge of the location of the boundary line in question, and should have been excluded. This error is trivial, and would not require the reversal of the judgment.

We see no objection to the testimony objected to by the twelfth assignment. The assignment is overruled.

Assignments 13 to 15, inclusive, complain of permitting plaintiff to read from a memorandum book of the county surveyor, containing data of applications to purchase school lands, memoranda concerning applications by defendant to purchase portions of sections 404 and 406. We presume the book was the register provided for in articles 3894 and 3895, R. S. 1879. We have found no statute, and are cited to none, which made said register or certified copies of its entries admissible in evidence. Objection to the evidence was made on the ground that such data was not competent evidence to prove the contents of the application, and such objection should have been sustained, as the agreement for the use of records, instead of copies, should be limited to those of which the contents are admissible. However, as the applications themselves were admitted, the evidence complained of was harmless.

By assignments 16 and 17 complaint is made of the introduction in evidence of a patent and deed to defendant. The patent was for survey 314, Gulf, Colorado & Santa Eé ' Railway Company, containing 277% acres, and the land is á part of that covered by' Kinney section IV-7,' the subdivision claimed by defendant under the Villareal grant. The deed was to 136.28 acres out of the strip sued for by plaintiff, and the land was described as a part of section 404, the state grant under which plaintiff claims. Appellant fails to state why he considered the testimony immaterial and irrelevant; while appellee is of the opinion that it tends to show that the Dix line was commonly and generally known after the Schaeffer-Berry suit as the west line of the Villareal grant. As we have before stated, the survey made by Dix created the controversy, and common reputation as to said line thereafter established would not tend to establish the footsteps of the original surveyor. We must therefore reject appellee’s theory. It is held, however, that acquiescense of a pax-ty to the suit in a dividing line, even though not of a character to estop him from. denying its correctness, may be shown as a circumstance tending to show that such line is the line as established by the surveyor who located the surveys. However, in this case the acts relied on to show acquiescence .occurred after the controversy created by the Dix survey arose, and could not tend to raise a presumption that the Dix line was the line established by Oanales. In fact, what defendant did was no more than to protect himself in case the Dix line should be determined to be correct. If plaintiff had bought the adverse claim under the Villareal grant to part of the land claimed by him, it could as well be held that the acceptance of the conveyance would tend to show that the east line of the Earias survey was the west line of the Villareal. We believe the evidence should be excluded, and sustain the assignments.

The eighteenth assignment complains of the refusal to give the following special charge:

“In this case you are instructed that the plaintiff cannot recover in this action othenvise than according to the' description he has given of the land sued for in his petition. And inasmuch as the defendant, Dunn, is in possession of and asserts title to only a part of the land described in the petition and sued for by plaintiff, the plaintiff is not entitled to recover, and you will accoi-dingly return a verdict in behalf of the defendant, John Dunn.”

The ruling was correct. When plaintiff sues for more land than defendant claims or is in possession of, the latter should promptly disclaim as to that part not in his possession; otherwise, even if he wins as to the part claimed by him, he will be charged with costs. Ballard v. Carmichael, 83 Tex. 366, 18 S. W. 738; Zarate v. Villareal, 155 S. W. 340. When defendant disclaims as to part, judgment will be rendered upon the disclaimer. Pouns v. Zachery, 46 Tex. Civ. App. 604, 103 S. W. 234. When he pleads not guilty, plaintiff will recover all to which he proves title, as well as his costs. Bender v. Brooks, 61. Tex. Civ. App. 464, 130 S. W. 653. If plaintiff is correct as to the boundary dispute, all tbe land sued for by bim is párt of section 404 and owned by bim, and be is entitled to recover it. Defendant, instead of disclaiming as to tbe part not covered b'y tbe Kinney section, pleaded not guilty, thus putting plaintiff on proof as to tbe whole tract sued for as fully as if defendant was in possession. Article 7741, R. S. 1911. Tbe cases relied upon bave no applicability to tbe question involved in tbis case. Tbe assignment is overruled.

Tbe twelfth assignment complains of tbe giving of a special charge limiting tbe consideration by tbe jury of .the evidence as to possession of the strip of land in controversy and adverse claims thereto to the issue of boundary and acquiescence. Tbe jury was told that, as there was no issue of limitation, tbe evidence should not be considered by them in any way as establishing any adverse claim or right to tbe land, but only in passing upon tbe question as to tbe location of tbe boundary line in dispute and tbe question of acquiescence, if any, in said boundary line. Tbe objection was that tbe charge would deprive defendant of one of bis most valuable defenses, namely, that bis long possession raises tbe presumption, on which tbe jury must act in the absence of evidence to tbe contrary, that tbe land was long ago severed from tbe public domain and has become and is tbe property of defendant. We fail to see how tbe doctrine in regard to presumption of a grant has any applicability to tbe facts of tbis case, in which it is admitted that both parties claim under grants from 'the sovereignty and connect themselves therewith, and tbe only issue is one of boundary. When a grant is proven and title thereunder established, tbe 'doctrine of presumed grant can have no applicability. Tbe assignment must be overruled. However, we believe the charge should not bave been given. No issue of limitation was pleaded, and it was unnecessary to limit the testimony, for fear the. jury would consider limitation. Tbe charge of tbe court submitted only one issue, that of boundary, and a charge such as was given may tend to create the impression that tbe court was afraid they would give too much weight to tbe testimony mentioned. Besides, tbe charge might confuse tbe jury, in that it unequivocally tells them tbe evidence should not be considered in any way as establishing any right to the land, and then states that they may consider it. All unnecessary charges should be avoided.

Tbe twenty-first assignment is based upon objections to certain paragraphs of tbe charge. Tbe objections in substance are that tbe portions of tbe charge are calculated, especially on account of not being applicable to tbe facts in evidence, to mislead and confuse tbe jury in an effort to reach a verdict; as there is practically no conflict whatever in tbe evidence as to the lines or any boundaries of tbe grant. -These objections were so' general that we fail to see bow tbe court could have been aided by them. It-is not pointed out in what respect the charge was not applicable to tbe facts in evidence, or bow it might confuse tbe jury, and tbe last part of tbe objection addresses itself to tbe question whether a peremptory instruction should bave been given. Tbe objections failed to show that tbis was a case in which it would not be proper to give in tbe charge tbe rules with regard to tbe relative dignity of calls, and for that reason the assignment is overruled. We will say, however, that we see no reason why tbis charge should not be given.

A similar complaint is made in tbe twenty-second assignment concerning paragraph IY 6 of tbe charge. What we bave said in discussing the previous assignment applies to tbis one, besides it occurs to us that defendant should not object to this paragraph; for, as we understand tbe evidence, it emphasized the importance of tbe matters relied upon by bim. Tbe assignment is overruled.

Paragraphs 7 and 8 of tbe IY subdivi-" sion are also complained of. We do not think these paragraphs are erroneous, nor are tbe ideas expressed in such language that it can be said tbe jury was probably confused thereby, and therefore we overrule assignments 23 and 24. At tbe same time we suggest that the first sentence of paragraph 7 be eliminated. For that matter, the idea conveyed by tbe entire paragraph appears to be sufficiently expressed in tbe concluding portion of paragraph 5 of tbe same subdivision. We also suggest that paragraph 8 could be, improved'by avoiding tbe use of tbe word “desideratum,” and using instead of tbe words generally used and concerning tbe meaning of which tbe jury can bave no doubt.

Tbe ninth, tenth, and twelfth paragraphs, subdivision IY, are also attacked. The ninth paragraph is objected to as being upon tbe weight of tbe evidence, because therein.tbe jury are told that it was tbe duty of Canales to extend a correct description of courses and distances into tbe field notes, and the map accompanying such field notes, and until the reverse was proven it would be presumed tbe surveyor did his duty in those respects, and in tbis connection it is contended tbe evidence clearly shows that tbe distances marked on Canales’ map are erroneous. When thus presented it appears that there is much merit in tbe contention, but, as tbe charge also states that it was Canales’ duty to actually run around tbe land intended to be embraced in tbe survey and see that such natural or other objects were designated on it as would clearly point out and identify tbe locality and boundaries of tbe given tract and to extend a correct description of these objects, natural and artificial, in tbe field notes and map, it is seen that the calls for cotfrse and distance are not particularly singled out so as to make tbe charge one on tbe weight of tbe evidence. Tbe matters called for relied upon by each party are thus required to be presumed to be correct, until proven incorrect. We overrule the assignment.

The first sentence in paragraph 10 announces a familiar rule of law applicable to boundary disputes, and is not subject to objection. The second sentence, under the peculiar facts of this case, might be upon the weight of the testimony because the jury might infer therefrom, when standing alone, that the call for the survey to be circumscribed on three sides by the waters called for must control proof of a survey inconsistent with such theory. However, in paragraph 11 the first part of paragraph 10 is applied to the facts in a way not objected to by appellant, and in such a way as to give prominence to his 'theory, as well as in a way so that the call for the survey to be surrounded on three sides by water is not permitted to control. ■Under the circumstances it must be held there is no merit in the twenty-sixth assignment of error.

The twelfth paragraph reads as follows:

“You are further instructed that the calls for course and distance will control a call for an unmarked line when the facts and circumstances offered in evidence tend to show that the surveyor calling for said unmarked line, was unacquainted with its true locality, and called for it by mistake, and such call for course and distance will harmonize the remaining calls of the grant, and furnish a correct guide for ascertaining the true 'boundaries of the grant as originally surveyed and called for in the grant. The rule that a call for a marked line of an elder survey will prevail over a call for course and distance has no application to an unmarked line whose terminal points cannot be identified by natural or artificial objects. Nor will a call for a line or corner of an older survey prevail over a call for course and distance when such line or comer of such older survey can only be found and identified by running course and distance from some other marked line or comer or well known object. Though of the calls employed in grants for land courses and distances are the lowest in dignity and importance, yet, if, from all the evidence in the ease, the land granted can be more certainly identified by running the courses and distances called for by the surveyor who made the original survey, then the grant should be so determined by the jury in arriving at their verdict.”

This charge is not applicable to the facts •of this case. The description of the Farias survey made by Canales, the surveyor thereof, calls for the boundary monument of “San Antonio” to be some distance south of the northeast comer of the survey, and for the boundary monument called “Nuestra Señora) d.el Refugio” to be at the southeast corner of said survey. He identified the corner sometimes called “Señor San Antonio,” sometimes called “San Antonio,” by taking for the monument a cluster of “anacuas and hack-berries,” and said that a cross was painted on it. The testimony of Blucher tends to show that this cluster of trees was to be found long after Canales made his survey. Canales did not run south from this point, because the “expert” informed him there was a large thicket through which the cord would have to run and where no water could be had. He therefore went back to the Puehtici-tas creek, along which he had surveyed for the west line of the grant to Herrera and sons and Farias, and from there ran out the south line, marking the southeast corner of the Farias survey. He stated that he reached a prairie where a long pole was set for a boundary land mark, fonning a cross on top of it, and he gave it the name of “Nuestra Senpra del Refugio,” and ordered the party to set a stone monument “as it was a locality where a wooden one might perish.” Said survey was made in. 1805. In 1831 Canales located the Rincon del Oso grant, under which defendant claims. The principle announced in the charge was applied in the case of Gerald v. Freeman, 68 Tex. 201, 4 S. W. 256, and other cases, in which the facts called for it, but it has since become well established that it cannot be laid down as an absolute rule, and limitations thereof have been found necessary. See Maddox Bros. v. Fenner, 79 Tex. 279, 15 S. W. 237; Ware v. McQuinn, 7 Tex. Civ. App. 107, 26 S. W. 126; Hermann v. Thomas, 168 S. W. 1048, and cases cited therein. In fact, it is merely a rule of evidence which in some cases is viewed as the best guide in determining what was actually included in the survey. Of course, if at the time the second survey is made there are no marks to be found by which the line marked for the older survey can be identified, the rule might be as applicable as if the line of the older survey had never been marked. If the marks existed at the time the second survey is made, but do not exist when the controversy arose, but the location of the old line can be identified, the same rule would be applied as if the marks still existed at the time of the controversy. Goodson v. Fitzgerald, 40 Tex. Civ. App. 619, 90 S. W. 898. The charge was inapplicable to the facts of this case, and upon the weight of the evidence in several particulars. Clawson v. Wilkins, 93 S. W. 1086; Holland v. Thompson, 12 Tex. Civ. App. 471, 35 S. W. 19. The assignment is sustained.

There is no merit in the twenty-eighth assignment. Whenever the defendant pleads not guilty, he puts in controversy plaintiff’s title to all land sued for, and a judgment that plaintiff take nothing by his suit has the same effect in trespass to try title as a judgment that defendant recover the land. The verdict and judgment are not subject to objection on the grounds urged. Articles 7741, 7758, R. S. 1911.

The twenty-ninth assignment is also overruled. There was no necessity for the verdict fixing the boundary for the Villareal grant. This case could not settle other persons’ rights even if the jury had fixed the boundary, and the only issue between plaintiff and defendant was whether the land sued for is within the Villareal grant. If none of it is within the grant, a verdict and judgment for plaintiff for the land sued for is proper; if part of it be found to be within the older i grant, it would, of course, be necessary to describe the portion awarded plaintiff so that it could be identified. Article 7755, R. S. 1911. We are not confronted with a case in which the description of the line or land by the jury is uncertain, and the authorities relied on are not applicable. l

The thirtieth assignment questions the sufficiency of the evidence to sustain the judgment. We have read the testimony carefully, and conclude that the location of the west line of the Rincon del Oso grant is a question for the jury.

Defendant contends that Canales’ survey appropriated all land lying east of the Farias survey, but, as we understand the evidence, ¡ there is nothing in the Farias grant to in-1 dicate that its northeast corner was called the “Refugio,” which is the name given by Canales to the northwest comer of the Rin-con del Oso survey. The southeast comer of the Farias grant is named in the Farias grant “Nuestra Señora del Refugio,” while Canales called his southwest corner “the one on the prairie.” Canales made no mention of the boundary point called “San- Antonio.” The specific calls therefore cannot be said to make the east line of the Farias survey the west line of the Rincon del Oso. It is attempted to show by other portions of the description that said lines are identical. Canales said his'survey was bounded on the west by the Barranca Blanco pasture land, and that the boundary of the “Refugio” was also the division from, the Barranco Blanco lands. The grants to the Herreras and- Farias do not state that the lands therein mentioned are known as the Barranca Blanco lands, but the survey thereof calls for Barranco Blanco, meaning “white bluffs,” and white bluffs are found on the Nueces on one of the Herrera tracts, but not on the Farias tract. It therefore became a question of fact as to what was meant by Barranco Blanco pasture lands. Ordinarily it would be said that a surveyor would, of course, call for lands granted, and that Canales must have meant the land on the west which had been granted by the sovereignty, and therefore went to the Farias survey. But it appears that he also surveyed the large survey known as Corpus Christi lands south of the Cayo del Oso, and called for the Barranco Blanco pasture lands to adjoin it on the west, when in fact said Herrera and Farias grants lie much further west than the west line of the Corpus Christi land. It also appears that Canales in describing the Rincon del Oso survey said it was bounded on the south by the Cayo del Oso “forming division from Corpus Christi lands,” and on the other sides (except the west) by the lagoons and the Nueces river, and also said that the land had an irregular shape because the Laguna Madre and the Cayo del Oso contract it upon all sides except the west. The | ¡ l evidence shows conclusively that the survey either does not go to the Farias east line, or else it is not contracted on all sides by the Cayo del Oso and the other waters named. Defendant’s theory is that the Cayo del Oso is only a part of the southern boundary, and that the remainder is constituted by a line run east from the southeast corner of the Farias survey until it strikes the Cayo del Oso, and that this line is called for by the words, “the one on the prairie and the one on the cayo” from west to east, on the southern side, while plaintiff contends that the “one on the prairie” does not mean the comer known as Nuestra ■ Señora del Refugio, but is a corner on the edge of the prairie upon the i Oso, because it is so placed upon Canales’ | map accompanying his description of the survey, and that the “one on the cayo” means a call at the mouth of the cayo. The map is very inaccurate in many particulars, and the descriptive calls conflict, for, if Canales ran his west line along the east line of the Farias grant, portions of his description will have to give way, while, if he ran it where plaintiff contends it should be established, the calls for Barranco Blanco pasture lands is a mistake, if thereby he meant to call for the east line of the Farias survey. It appears from the two surveys in evidence made by Canales that accuracy in the general expressions descriptive of the location of his surveys was not deemed necessary, and this would be true enough if his calls for boundary points were sufficiently specific. The problem is further complicated by the fact that there is a conflict as.to what is meant by cayo, upon which meaning" is dependent the location of the place where Oso Creek ends and the cayo begins. This point is material on the issue whether a grant of the size described by Canales can be made by adopting a west line running north from any part of the Cayo del Oso. The above will 'disclose same of the difficulties in locating the west line of the Rincon del Oso. We believe the question to be decided is one for the jury, and therefore overrule the thirtieth assignment, as well as the nineteenth assignment, which complains of the refusal of a peremptory instruction.

What we have said is not intended as a discussion of the relative weight and importance of the calls or of the circumstances relied upon, many of which have not been stated. Our purpose was to point out the conflicting calls and other elements of uncertainty, so as to show the basis for overruling appellant’s earnest contention that we should render judgment for him upon the evidence. The facts of this case cannot well be compared to the facts of any other case; still the reasons relied upon for holding the issue to be one for the jury find support in expressions in other boundary suits. See Booth v. Upshur, 26 Tex. 64; Titterington v. Kirby, 47 Tex. Civ. App. 595, 106 S. W. 899; Jacoby v. Norton, 40 Tex. Civ. App. 313, 90 S. W. 524.

The judgment is reversed, and the cause remanded.

On Motion ior Rehearing.

In appellee’s motion we find it stated that he is unable to understand why we should hold that it was not error for the court to permit Blucher to testify about the state surveys on his map, and yet refuse to permit him to explain the Dix line, which also appeared on his map. This is begging the question. Of course, if a map is introduced in evidence containing a lot of surveys and lines, the other side is entitled to ask what each line represents, and there could be no objection to asking him about the line marked D-Y and have him answer that such line represented the west line of the grant as located by Dix. But we fail to find anything on the map about the case of Berry v. Schaeffer, and no reason can be urged why it should be held to have been harmless to ask questions which were bound to impress the jury with the idea that the Supreme Court had decided in favor of the correctness of the Dix line. The decision itself was not admissible, and common repute as to its’ effect could not be introduced on the theory that it was really common repute as to the correctness of the Dix survey. Appellee calls attention to the fact that this suit was filed a good many years after the Dix line was run, and that therefore we erred in applying the rule that the common repute must have been established before the controversy arose. When the Dix survey was made it created the controversy with regard to the true location of the west line of the Rincon del Oso survey, and the fact that this particular suit was not filed to determine the controversy as to the land involved until many years afterwards does not change the fact that the controversy existed. There was no common reputation in existence when Dix made his survey whereby the line fixed by him was recognized as the west line of the Rincon del Oso survey. Dix located his line at the place where the length of the west line would come nearest to corresponding with the distance called for on Canales’ map, and there is no pretense that he found any marked lines or that any one before him recognized the line so run by him. After the controversy arose which was created by his survey, people bought from the state, and doubtless many who claimed under the Villa-real grant bought from the state in order to have peace; but how could the reputation thus created tend to show that the Dix line traced the footsteps of Canales? The common repute relied on by appellee in favor of the Dix line had its inception 47 years after the Rincon del Oso survey was made, and originated from the survey of a man who did not pretend to have any knowledge of the location of the original lines. Such repute would not tend in any way to show the location of the lines run by Canales, and is inadmissible. State v. Dayton Lumber Co., 159 S. W. 396.

Appellee contends that we erred in sustaining the sixteenth and seventeenth assignments of error.

Acquiescence is admissible on the theory that every one is presumed to know the boundaries of his own land, but in this case there is no contention that Dunn ever acquiesced in the line contended for by plaintiff as.the dividing line between their lands. It is only contended that by taking a quitclaim reconveyance five years after the suit was filed in which the parcel is described with reference to corners of a state survey as well as with reference to the Kinney section lines, and purchasing from the state another state survey, he has recognized the right of the state to sell land west of the Dix line, and thus indirectly acquiesced in the correctness of the Dix line. Judge Wheeler said in the case of Turner v. Smith, 11 Tex. 632, that the purchase of an adverse title can be made without incurring the hazard of forfeiting title and without prejudice to the purchaser’s right. Buying from the state would not preclude Dunn from contending that the Villareal title was the superior one, nor amount of an admission that it was not the superior one, and we therefore fail to see how it could be a circumstance tending to show acquiescence in the correctness of the Dix line. The acceptance of a reconveyance pending the suit in which the land is described by reference to corners of a state survey and also with reference to the Kinney sections made under the Villareal grant, and which shows on its face that Dunn’s fence is situated on the West line of the Kinney section, cannot be said to show any acquiescence in the correctness of the Dix line.

By inadvertence, in discussing the twenty-seventh assignment, we described the Farias survey as having been made by Can-ales instead of Medrano. This has been corrected in the original opinion. We are unable to see any force in the argument made with regard to said assignment of error. Appellee apparently contends that Canales, in making the Rincon del Oso survey, did not call for an unmarked line of an adjacent survey, but merely called for an unmarked line for the west line of his survey, and that therefore the charge was peculiarly applicable. If the facts indisputably bore out the statement so made, there could not be the slightest doubt that the charge was entirely inapplicable to the facts, because the charge is based upon the theory that Canales did call for an unmarked line of another survey, 'or at least that the jury might find that he intended to do so. The charge speaks of his calling for an unmarked line by mistake. Surely if he called only for an unmarked line of his own survey lie did not do so by mistake. The second portion of the charge continually refers to marked line of an older survey, thus making it plain that the rule given to the jury was to the effect that, if they found that Canales called for the east line of the Farias survey, but the marked corners made by Medrano could not be found then, regardless of how certainly the location of the east line of the Farias could be established, they should locate the Rincon del Oso survey by course and distance. There'is no merit in the contention that other portions of the general charge or special charge No. 3 rendered harmless the error in the twelfth paragraph of the charge. It may be doubted whether there is even a conflict between paragraphs 11 and 12; for in order to find for appellant under paragraph 11 the jury was required to find not only that the location of the east line of the Farias could be definitely ascertained, but that its corners must be established and marked and capable of identification. Special charge No. 3 instructs the jury that if the Rincon del Oso grant is bounded on the west by the Farias grant then to return a verdict for defendant. The jury would naturally follow the instructions of the court with regard to the rules to be observed in determining whether the Farias bounded the Rincon del Oso on the west, and would not understand from said special charge that they were at liberty to disregard rules laid down for determining the question. ,

The motion is overruled.
      <@=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

       @=Foi other oases see same toDio and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    EVANS et al. v. REA et al.
    (No. 7474.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 22, 1912.
    Rehearing Denied March 17, 1917.)
    1. Execution &wkey;>154 — Forthcoming Bond-Release of Levy — Accrual of Liability.
    When the sheriff released the levy of execution upon a judgment debtor’s goods, and later indorsed the forthcoming bond “forfeited,” as provided by Rev. St. 1895, art. 2359, the right of plaintiff in judgment as against the sureties on the bond became fixed.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 421-424.]
    2. Bankruptcy &wkey;>431 — Debts Discharged —Liability of Sureties.
    If a judgment debt was in fact duly scheduled, as required by Bankr. Act July 1, 1S9S, § 17, 30 Stat. 550 (U. S. Comp. St. 1913, § 9601), as among the debts of the judgment debtor in bankruptcy proceedings against him, the bankrupt himself was entitled to a discharge from the judgment, though nothing in section 67f (section 9651) of the act, relative to the nullification of liens, requires abrogation of the liability of the sureties on the bankrupt’s forthcoming bond to release levy of execution; section 10 (section 9600) declaring that the liability of a person who is a surety for a bankrupt shall not be altered by his discharge.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 783-786.]
    Appeal from Knox County Court; J. H. Milam, Judge.
    Action by William Rea and others against Dave Evans and others. From a judgment for plaintiffs, deffendants appeal.
    Affirmed.
    See, also, 191 S. W. 1133.
    D. J. Brookreson, of Benjamin, and Valentine & Le Gett and Theodore Mack, all of Ft. Worth, for appellants. Harris, Harris & Xoung, of Ft. Worth, for appellees.
   CONNER, C. J.

While the question presented in this case has not been entirely free from difficulty in our minds, we have concluded that it is distinguishable from the cases cited in behalf of appellants and more nearly in accord with those of Haber v. Klauberg, 3 Mo. App. 342; Rosenthal et al. v. Perkins et al., 123 Cal. 240, 55 Pac. 804; Hill v. Harding, 130 U. S. 699, 9 Sup. Ct. 725, 32 L. Ed. 1083; St. Louis World Pub. Co. v. Rialto Grain & Securities Co., 1083 Mo. App. 479, 83 S. W. 781; and Hancock v. Henderson, 45 Tex. 479. True, J. R. Lagow, the debtor, was insolvent at the date of the judgment against him in favor of the First National Bank of Benjamin and at all times thereafter. It is also true that the levy of the execution upon Lagow’s goods on May 29, 1911, was within four months preceding the levy, and that hence the lien of the levy as such was nullified under the terms of section 67f of the Bankrupt Law (Act July 1, 1898, c. 541, 30 Stat. 564 [U. S. Comp. St. 1913, § 9651]; page 693, vol. 1, Federal Statutes Anno.). But the question of lien vel non is only incidentally involved here. Nothing in the record indicates that the state court had any notice of the proceeding in bankruptcy. No application was made in behalf of the bankrupt or of his creditors to stay proceedings in the state court, and the property levied upon in fact was surrendered to the debt- or and later taken by the trustee in bankruptcy and promptly applied pro tanto to the satisfaction of the insolvent’s debts. So that, as stated, the question of the validity of the lien created by the levy of the execution can only be incidentally and remotely material, if at all.

When the sheriff released the levy, as in effect was done, and indorsed the forthcoming bond “forfeited,” as provided by Revised Statutes 1895, art. 2359, the right of the plaintiff in judgment as against the sureties on the bond became fixed, and this occurred prior to the adjudication in bankruptcy. True, if the judgment debt was in fact duly scheduled, as required by section 17 of the Bankrupt Act, as among the debts of the insolvent in the bankrupt proceedings (which, however, has not been made to appear), J. R. Lagow, himself, would be entitled to a discharge, but nothing, in section 67f of the Bankrupt Law, to which we have already referred, requires an abrogation of tbe liability of tbe sureties on Lagow’s forthcoming bond that bad already become fixed in favor of tbe plaintiffs in tbe judgment. On tbe contrary, section 16 of tbe Bankrupt Act (Comp. St. 1913, § 9600; 1 Fed. Statutes Annotated, p. 578), expressly declares that:

“The liability of a person who is a codefend-ant with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt.”

See, in this connection, St. Louis World Pub. Co. v. Rialto Grain & Securities Co., 108 Mo. App. 479, 83 S. W. 781, cited above.

It is to be remembered that tbe obligation of appellants Dave Evans, Chas. Evans, and T. A. Cambrón was not merely that they would redeliver to tbe sheriff tbe goods levied upon at the time and place named in tbe bond as we infer to have been tbe case in D. C. Wise Coal Co. v. Columbia Zinc & Lead Co., 157 Mo. App. 315, 138 S. W. 69, cited in behalf of appellants, but also in the alternative to pay to the officer making tbe levy the fair value of tbe goods in the event they were not so delivered. This condition of tbe bond was not impossible of performance, nor was compliance therewith prevented by an act of God or by any restraining order of court, and we hence think tbe sureties named were liable for tbe breach.

The conclusions above noted we think must lead to an affirmance of the judgment. The trial court’s conclusions of fact and law are approved.

Judgment affirmed.
      <£^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J. PER CURIAM. GRAVES, J.

text:
    LAURAINE v. MASTERSON et al.
    (No. 7282.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 21, 1917.
    On Rehearing March 15, 1917.)
    1. Appeal and Error <&wkey;544(3) — Record — Bill of Exceptions — Statement op Facts.
    The fact that’ no statement of facts or bills of exceptions are brought up with the record precludes reversal of the judgment except for fundamental error appearing on the face of .the record, but does not affect the right to appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2417, 2424, 2479.]
    2. Appeal and Error <&wkey;332 — Right to Bring Error — Administrator.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2107, providing that in case of the death of any party entitled to an appeal or writ of error, the same may be taken by his administrator, where an insane person was represented at trial by a guardian who was satisfied with the judgment against her and did not appeal, the administrator of such insane person, the latter having died and administration been opened upon her estate, within a year after the judgment was authorized to sue out writ of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1842-1845.]
    3. Courts i&wkey;472(4) — Exclusive and Concurrent Jurisdiction — District and Probate Courts.
    Where the district court, through its receiver, had taken possession of all the property belonging to a son and his iñother, and none of the property came into the possession of the guardian of the mother’s estate appointed by the probate court on account of her insanity, the property being owned in common by the son and the mother, the district court had jurisdiction of a suit brought against the receiver on notes constituting a joint indebtedness, the lien to secure it having been given jointly by the son and mother on their common property, since the powers of the probate court were inadequate to grant plaintiff full relief, and in such cases the district court can properly be called upon to exercise its equity powers and grant adequate relief.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 1212.]
    4. Courts &wkey;>472(4) — District Court — Jurisdiction.
    In suit on a joint indebtedness against the receiver of the property of a mother and son appointed by the district court, the court had jurisdiction to fix the priorities of the several liens asserted upon the joint property of the mother and son, and to direct the sale of the property to enforce the judgment, though the mother was insane and under guardianship by appointment of the probate court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 1212.]
    5. Insane Persons <&wkey;62 — Claims—Guardian-Compromise.
    The rule preventing the guardian of an insane person from compromising a claim by or against the estate of his ward without the consent of the probate court had no application in suit against a guardian where the judgment rendered against him was not a compromise judgment, nor a judgment by confession.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 108, 109.]
    6. Receivers <&wkey;77(l) — Liens — Creation Against Property in Hands op Receiver.
    The owners of property in the hands of a receiver could incur debts and give a lien on the property to secure them valid as against any interest the owners had left in the property after the payment of all prior claims allowed in the receivership proceedings.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 91, 138, 144.]
    Error from District Court, Harris County; J. W. Woods, Special Judge.
    Petition in intervention in receivership proceedings by H. Masterson against Margaret E. Allen and another, whereon plaintiff secured judgment. After death of the named defendant, her administrator, W. V. Lauraine, brings error.
    Affirmed.
    Rehearing denied; Graves, J., dissenting.
    Jno. G. Tod and Cooper & Merrill, all of Houston, for plaintiff in error. Elliott Cage, of Houston, for defendants in error.
   PLEASANTS, C. J.

The writ of error by which this cause has been brought before us is from a judgment in a suit in intervention brought by defendant in error in a receivership proceeding pending in the district court for the Eleventh judicial district.

On December 26, 1908, in a suit brought by lien creditors, Norman G. Kittrell, Jr., was appointed receiver of all tbe property, real or personal, belonging to A. G. Allen and bis mother, Mrs. Margaret E. Allen. This receivership has been pending in the court below since the date of the receiver’s appointment, and the receiver has possession of all of said property. On November 6, 1914, defendant in error, H. Masterson, filed a petition ip intervention in the receivership proceeding in .which he alleges the execution of two certain promissory notes by the said A. 0. Allen in person and as attorney in fact for Mrs. Margaret E. Allen; said notes being described as one note, for the sum of $8,596.11, bearing date the 17th day of February, 1911, due on or before two years after date, and one note for the sum of $2,115.15, also bearing date the 17th day of February, 1911, and due on or before two years after-date, each of said notes being payable to the order of the said H. Masterson.

It was further alleged that said notes were secured by deeds of trust on the property of the said A. 0. Allen and Mrs. Margaret E. Allen, and that the said Norman G. Kittrell, Jr., who was at the time of the execution of said original deeds of trust and notes in possession of all of said property as receiver, acting under the orders and directions of said Eleventh judicial district court, was named as trustee in said deeds of trust. It further appears from the petition that practically all the property described in said deeds of trust is owned jointly by the said A. C. Allen and Mrs. Margaret Allen.

Said petition names as defendant A. C. Allen, Mrs. Margaret E. Allen, as a person non compos mentis, Norman G. Kittrell, Jr., as receiver of the estate of A. O. Allen and Mrs. Margaret E. Allen, and T. N. Jones, as guardian of the estate of Mrs. Margaret E. Allen, a person non compos mentis; it appearing that prior to the institution of said intervention the said Mrs. Margaret E. Allen had been duly adjudged a person non compos mentis, and the said T. N. Jones had been appointed and was then acting under such appointment by the probate court of Bosque county, as guardian of the estate of the said Mrs. Margaret E. Allen.

The petition prayed for joint and several judgment's against each of said defendants in the amount of principal, interest, and attorney’s fees due on said notes, and for a foreclosure of the dqed of trust liens on the property described therein, for an order of the receiver to sell said property to satisfy the debt thus established, and for general relief.

No answer appears to have been filed by A. O. Allen individually; but T. N. Jones, as guardian of the estate of Mrs. Margaret E. Allen, came in on the 27th day of November, 1914, and filed his answer in which he admits the execution of the notes set out in said petition of intervention, upon information and belief, but, stating that he would require the production of the notes in evidence, and further alleging upon information and belief that the notes were executed for legal services rendered the estate of A. 0. Allen and Mrs. Margaret E. Allen, and were given on a contingent basis of one-half of what was saved to the said estate in certain litigation, as represented by the difference between the claims asserted and the judgment rendered, and that the said notes were secured by third deed of trust lien on substantially all of the property belonging to the said Allens. He further admits in said answer that the fees charged and evidenced by said notes were fair and reasonable.

Norman G. Kittrell, Jr., as receiver of the estate of A. G. Allen and Mrs. Margaret E. Allen, filed an answer on November 21, 1914, which contains a general demurrer and general denial, and submits to the court the question whether or not the said notes and deeds of trust having been executed pending the receivership should be asserted as a lien taking precedence over unsecured claims against .the said A. O. Allen and Mrs. Margaret B. Allen, or either of them, existing prior to the dates of said notes.

Judgment was rendered in said suit in intervention on 27th day of November, 1914, which, after reciting the personal appearance of all parties defendant, and that a jury was waived and all matters of fact and of law submitted to the court, further recites that the court, having been advised in the premises, found as a fact that the inter-vener’s cause of action was liquidated and evidenced by the promissory notes herein-before described, and that the answer of the guardian showed that said notes were for services rendered to the estate of Mrs. Margaret E. Allen, under a contract that was fair and reasonable under the circumstances, and of which the ward received the benefit of the services of the said H. Masterson; that said notes were secured by deeds of trust on the property described in said judgment ; that said trust deeds were subordinate to existing deeds of trust in favor of J. ’ J. Sweeney and also to the deed of trust held by II. Kempner and H. Masterson; and that the attorney fees named in said notes has accrued. It was therefore ordered and adjudged by the court that the said I-I. Master-son have judgment against all the parties; jointly and severally, in the sum of $12,652; that deed of trust lien described in said petition as it existed on February 17, 1911, be foreclosed, and that said property be ordered sold under execution or order of sale, or otherwise, as the court may hereafter order to satisfy said judgment, by the receiver, Norman G. Kittrell, Jr., who was instructed and ordered to make deed to the purchaser thereof, subject to the further order of the court as to the method of sale, and subject also to the'first lien in favor of J. J. Sweeney and the second lien in favor of H. Kempner and H. Masterson. Said judgment contained the further recital that it appeared to the court that R. M. Vaughn, N. H. Atkinson, John C. Williams and S. Kahn and M. Kahn, as assignees of H. E. Kahn, held notes of like kind secured by the same deeds of trust, whereupon it was adjudged by the court that the proceeds arising from the sale of the property described in said deeds of trust should be prorated among and between the said Williams, Vaughn, Atkinson, Masterson, and Kahn Bros., in proportion to the amounts due them. All costs were adjudged against the defendants, provision was made for the issuance of writs to enforce the judgment, and it was further adjudged and decreed by the court that no personal judgment be awarded the intervener against A. O. Allen for any deficiency or balance that may exist ' on the judgment after the sale of the property described therein. None of the parties defendant in said judgment excepted thereto or gave notice of appeal therefrom, and none of them are parties plaintiff in the writ of error.

On the 2d day of February, 1915, the said Mrs. Margaret E. Allen died, and plaintiff in error has been duly appointed by the county court of Harris county, Tex., as temporary administrator, and later as permanent administrator of said estate; and acting as such administrator, on the 26th day of November, 1915, filed with the clerk of the district court of Harris county his petition for writ of error, upon which service has been duly had, and has filed his assignments of error, and now brings said judgment before this court for review and correction. The record contains neither statement of facts nor bills of exception.

Before considering the assignments of error we will dispose of the contention of defendant in error that plaintiff in error has no right to prosecute this writ of error. Unless the right of appeal is given by statute such right does not exist. Article 2107, Vernon’s Sayles’ Statutes, provides:

.“In caso of the death of any party entitled to an appeal or writ of error, the same may be taken by his executor, administrator or heir.”

The contention of defendant in error is thus stated in his brief:

“While the statute provides that an administrator may take an appeal in case of the death of a party entitled to appeal, it seems clear to us that this was meant only to affect cases where the party himself dies pending his right of appeal, and not a case such as the one at bar where the party for whom the appeal is taken was represented at the trial by a guardian who was satisfied with the judgment and did not appeal. In such case the parties’ rights are concluded by the judgment, and the administrator is estopped from appealing.”

The right of appeal by writ of error is not lost by the failure to except to the judgment of the lower court. The fact that no statement of facts or bills of exceptions is brought up with the record precludes a reversal of the judgment except for fundamental errors apearing upon the face of the record, but does not affect the right to appeal. The guardian might have sued out this writ of error at any time within a year after the judgment was rendered if his ward had not died and an administration been opened upon her estate in the meantime. Mrs. Allen was the real party in interest, and she having died and plaintiff in error having become the representative of her estate, and the right of the guardian having terminated by Mrs. Allen’s death and the appointment of an administrator, we think the administrator was authorized, under the statute above quoted, to sue out this writ of error. A contrary holding would, we think, be too restricted and literal a construction to place upon a remedial statute.

The first assignment of error presented by plaintiff in error is as follows:

“The district court was without jurisdiction to render judgment against T. N. Jones, guardian, and against the estate of Mrs. Margaret E. Allen, in a direct proceeding in the district court, for the reason that the probate court which appointed the said T. N. Jones guardian of such estate had exclusive jurisdiction to pass upon the validity of claims against such estate, and to classify the same and provide for their payment.”

We think the jurisdiction or power of the district court to hear and determine the suit brought by defendant in error and to render the judgment, the substance of which we have before set out, cannot be questioned. That court, through its receiver, had taken possession of all the property belonging to A. O. and Mrs. Margaret Allen, and none of said property same into the possession of the guardian upon his appointment. The property is owned in common by A. 0. and Mrs. Margaret Allen, the indebtedness sued on is a joint indebtedness, and the lien to secure it was given jointly by said defendants upon their common property. Other liens had been established upon the property ip the receivership proceeding, and other claims were pending.

The district court having acquired jurisdiction to administer the property through a receivership, its possession of the property withdrew it from the jurisdiction of all other courts. It would in some cases be a wrongful or erroneous exercise of jurisdiction for a district court to continue to administer an estate by a receiver after the owner of the property had become insane arid a guardian of her estate had .been appointed, but such erroneous exercise of jurisdiction, like other errors committed on the trial of a cause, can only be availed of on appeal when timely exception is made and properly preserved for presentation to the appellate court. If, however, in this case the guardian of Mrs. Margaret Allen had claimed the right to have the claim against his ward passed on by the probate court, had preserved proper exceptions to the action of the trial court in proceeding to determine the cause and render judgment, the exception could not be sustained. The nature of the case as disclosed by the foregoing statement was such that the powers of a probate court were inadequate to grant the defendant in. error the full relief to which he was entitled, and it is well settled that in such cases the district court can properly be called upon to exercise its equity powers and grant adequate relief. Cannon v. McDaniel, 46 Tex. 303; George v. Ryon, 94 Tex. 317, 60 S. W. 427; National Guaranty Loan & Trust Co. v. Fly, 29 Tex. Civ. App. 533, 69 S. W. 231; Stewart v. Webb, 156 S. W. 537.

The second assignment assails the judgment on the ground that the district court was without jurisdiction to render the judgment fixing the priority of the claims and liens established by the judgment, and the third assignment complains of that portion of the judgment ordering the sale of the property, on the ground that said court had no power or jurisdiction to order or direct and control the sale of the property belonging to the guardian’s ward.

Neither of these assignments can be sustained. Fixing the priorities of the several liens asserted upon the property and directing the sale of the property to enforce the judgment is an essential part of the jurisdiction of the court in suits of this character. In many cases, and this is especially true in this case, the court could not give that adequate and complete relief to which defendant in error is entitled unless that court directed the sale of the property. The debt and mortgage is joint and the mortgage is upon property owned in common by A. C. Allen and Mrs. Margaret Allen. Defendant in error is entitled to have the whole of the property sold to pay the entire indebtedness, and this right often is, and may be in this case, of great importance. The probate court is without power to make a sale of the whole of the property, and defendant in error cannot be required to divide his claim and security and have one portion of the judgment enforced by a sale made by the probate court and the other by sale directed by the district court. The rule which denies jurisdiction to the probate court to adjudicate the case, because of the inadequacy of the powers of such court to render a judgment adjusting the equities of the parties so as to grant full relief,, necessarily denies to that court the right to enforce the judgment of the district court, by ordering and directing the mode and manner of the sale of the property, when the sale which the court has power to make would not give the defendant in error such enforcement of his judgment as is adequate and necessary to his full relief.

What we have said in discussing the assignments before mentioned disposes of the question presented by the fourth assignment, and said assignment is overruled without discussion.

By the fifth assignment the judgment is attacked on the ground that it was rendered on the confession of the guardian which he had no authority to make. The answer of the guardian has been set out and also the recitals of the judgment, and it does not appear from either that the judgment was upon confession. The guardian admitted certain facts to be true, and the court so finds. In the absence of a statement of facts we cannot know that the facts admitted by the guardian were not shown to be true by the undisputed evidence, and if the establishment of the admitted facts was necessary to entitle defendant in error 'to the relief asked, which does not appear, we know of no rule which required the guardian to deny facts known to be true. The rule which prevents a guardian from compromising a claim by or against the estate of his ward without the consent of the probate court had no application since the judgment rendered in this case is in no sense a compromise judgment, nor, as before stated, a judgment by confession.

The sixth assignment is without merit, and is overruled without discussion.

The seventh and eighth assignments complain of the judgment on the ground that the lien upon the property which was foreclosed by the judgment was illegal and void because at the time it was given by A. O. Allen and Mrs. Margaret Allen the property was in custodia legis. This contention cannot be. sustained. It may be conceded that one cannot acquire a lien upon property of an insolvent debtor in the hands of a receiver which would affect the rights of other creditors of the debtor, but we can see no reason why the owner of property in the hands of a receiver may not incur debts and give a lien on the property to secure the same, which would be valid as against any interest the owner might have left in the property after the payment of all prior claims allowed in the receivership proceedings, just as the heir may mortgage his interest in an estate which is in process of administration. In such case, after the debts of the estate are paid, the remaining interest of the heir would be subject to the mortgage, and in this case, we think, the mortgage should be held valid upon the interest of the mortgagor in the property remaining after the payment of all debts of the receivership. As we have before stated, the receiver has not appealed from the judgment, and there is no statement of facts. In these circumstances, we cannot presume that the rights of any creditors of Mrs. Margaret Allen were infringed upon by the judgment.

The objection to the judgment made in the ninth assignment is one that cannot be sustained in the absence of a statement of facts, if it be conceded, for the sake of argument, that the proposition submitted under the assignment is abstractly considered a correct legal proposition.

This disposes of all of the assignments presented in the brief of plaintiff in error, and. our conclusions upon the questions presented require that the judgment be affirmed; and it has been so ordered.

Affirmed.

On Motion for Rehearing.

PER CURIAM.

Rehearing denied.

GRAVES, J.

(dissenting). For the same reasons and to the same extent as expressed in a dissenting opinion filed on April 11, 1917, in the companion case to this one, to wit, No. 7^83, H. N. Atkinson, Intervener, v. W. V. Lauraine, Temporary Administrator, etc., 193 S. W. 712, the writer dissents from the action of the majority of the court in refusing this motion for rehearing, and here refers to that dissenting opinion for full statement of his reasons, and of the action he thinks should have been taken also in this case.
      &wkey;»For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J. PER CURIAM. • GRAVES, J. GRAVES, J.

text:
    LAURAINE v. VAUGHN et al.
    (Nos. 7279, 7280, 7281, 7283.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 21, 1917.
    On Rehearing, March 15, 1917. Dissenting Opinion April 11, 1917.)
    Error from District Court, Harris County; J. W. Woods,' Special Judge.
    Separate suits by W. V. Lauraine, administrator, against R. M. Vaughn and othérs (No. 7279), against Kahn Bros, and others (No. 7280), against John C. Williams and others (No. 7281), and against H. N. Atkinson and others (No. 7283). To review judgments for defendants, plaintiff brings error.
    Affirmed.
    Rehearing denied; Graves, J., dissenting.
    John G. Tod and Cooper & Merrill, all of Houston, for plaintiff in error. Elliott Cage, of Houston, for defendants in error.
   PLEASANTS, C. J.

This writ of error is from a judgment in a suit in intervention in a receivership proceeding pending in. the court below. The case is in all respects similar in its facts, and presents the identical questions determined by us in the case of Lauraine, Administrator, v. Masterson, 193 S. W. 70S, in which we on this day filed our opinion.

Affirmed.

On Rehearing.

PER CURIAM.

Rehearing denied.

• GRAVES, J.

(dissenting in No. 72S3). Believing that the district court was without any jurisdiction to order the sale of the property here involved as against the estate of Mrs. Allen, it becomes the duty of this member to dissent from the opinion of the majority of the court so holding.

Administration had been commenced and was then pending in the county court of Harris county. Our Constitution (article 5, § 16) in broad terms confers upon the county court the general jurisdiction of a probate court, and for the transaction of “all business appertaining to deceased persons, * * * including the settlement, partition and distribution of estates of deceased persons.” Likewise, in terms just as broad and general, the Constitution confers equity jurisdiction upon the district court; it is further true that the probate jurisdiction thus vested in the county court is not in all cases and under all conditions an exclusive one, but it has been often recognized that special conditions 'may exist in a particular case, such as the adjustment of equities between various parties, which make the relief obtainable through the county court inadequate to the necessities of the case, and for which its powers are insufficient; in this class of cases the equity powers of the 'district court may be invoked for the establishment and determination of those special issues making resort to that tribunal necessary; of such character is Cannon v. McDaniel, 46 Tex. 303, and the line of supporting cases cited on this point in the majority opinion; but as the writer understands those cases, there were actually in issue such equities between various necessary parties to the litigation as could not he resolved or established through the limited powers of the probate court, and even then, after their determination in the district court the judgment should be performed through the probate court, the proper procedure being prescribed in article 2004, Vernon’s Sayles’ Revised Statutes, as follows:

“Where a recovery of money is had against an executor, administrator or guardian, as such, the judgment shall state that it is to be paid in the due course of administration, and no execution shall issue on such judgment, but the same shall be certified to the county court, sitting in matters of probate, to be there enforced in accordance with law.”

Indeed it seems to me that, when rightly applied to the well-established authority of the county court over matters relating to the estate of deceased persons under administration, our Supreme Court meant to hold, in Cannon v. McDaniel and other cases following it, that the resort there permitted to the district court to determine matters ordinarily within the exclusive cognizance of the probate court, was really only a special jurisdiction, auxiliary to the general jurisdiction of the probate court, and to be exercised as such in special cases only. Mortgage Co. v. Jackman, Adm’r, 77 Tex. 626, 14 S. W. 305; Groesbeck v. Groesbeck, 78 Tex. 669, 14 S. W. 792; Pomeroy’s Equity Jur. vol. 3, § 1154, pp. 2283-2294.

If this construction be correct, and it seems to me that the unmistakable current of our decisions from at least Gannon v. McDaniel on down has been but to emphasize it, then it is further true that where, in those particular cases, the adjustment of equities makes the powers of the probate court inadequate to afford full relief, and the equity jurisdiction of the district court may consequently be invoked in aid of it, the same rule still prevails, and performance of the judgment, such as a sale of property belonging to the estate would be, must be performed through the probate court. Title 64, chapter 11, Vernon’s Sayles’ Revised Statutes; Rogers v. Kennard, 54 Tex. 30; Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486; Atchison v. Smith, 25 Tex. 228.

If these deductions correctly state the rule, then, looking to the facts of the case at bar, what here made the powers of the probate court inadequate? Perhaps the recitations upon that point from the opinion of the majority will best answer the question, and they are copied as follows:

“The property is owned in common by A. 0. and ¡Mrs. Margaret Allen, the indebtedness sued on is a joint indebtedness, and the lien to secure it was given jointly by said defendants upon their common property. Other hens had been established upon the property in the receivership proceeding, and other claims were pending.”
“In many cases, and this is especially true in this case, the court could not give that adequate and complete relief to which defendant in error is entitled, unless that court directed the sale of the property. The debt and mortgage is joint, and the mortgage is upon property owned in common by A. O. Allen and Mrs. Margaret Allen. "Defendant in error is entitled to have the whole of the property sold to pay the entire indebtedness, and this right often is, and may be in this case, of great importance. The probate court is without power to make a sale of the whole of the property, and defendant in error cannot be required to divide his claim and security, and have one portion of the judgment enforced by a sale made by the probate court, and the other by sale directed by the distinct court.”

It thus appears that the mere fact that Mrs. Allen had joined with A. 0. Allen in the execution of a joint note and mortgage against the property owned jointly between them to intervener Atkinson was held to create such a condition as made the powers of the probate court inadequate, and as a result to oust its otherwise exclusive jurisdiction and to confer upon the district court the right, in effect, to administer Mrs. Allen’s estate.

If this be the law, then it occurs to the writer that all those provisions in our Constitution and statutes, and all the long line of our decisions, vesting exclusive jurisdiction over the administration of estates of decedents in the probate court, and jealously protecting and guarding them through its simple, efficient, and speedy methods, are stricken down .and set at naught, because few cases will then arise in which some excuse cannot be found to divest the probate court of its long-recognized exclusive jurisdiction, and vest the administration of such estates in Texas in the district court as a court of equity. To this doctrine the writer cannot bring himself to consent.

In this ease there were no equities whatever involved as between the Allens, but merely the joint character of their obligations as between them, or either of them, and intervener Atkinson; this consideration may have been under the other facts alleged, and thp writer thinks it was, sufficient to confer jurisdiction upon the district court to hear the ease, establish the debt and lien, and foreclosure of the lien, but not to order the sale of the land through that court’s processes as against the estate of Mrs. Allen; that, after going so far, it should have stopped there, and certified the judgment thus rendered to the county court, for enforcement against her, as provided in said Revised Statutes, art. 2004. It is no answer to say that intervener could not be expected to divide his . relief, and obtain part of it through the one court and part through the other, because, in originally accepting the joint obligations of the two persons, he must have contemplated that one of them might die, and it thereupon become necessary for him to prosecute hjs claim against that one through an administration upon his estate: nor is any difficulty presented here by the requirement that sale as to Mrs. Allen be had through the county court, since her undivided interest in the joint property alone could as well be there disposed of as if she had owned the whole of it.

Moreover, it has been repeatedly held in the cases herein cited that the powers of t the county court were not inadequate to give full relief merely because of some inconvenience, hardship, or even loss to the party affected. Giddings v. Crosby, 24 Tex. 299; Atchison v. Smith, 25 Tex. 230; Cannon v. McDaniel, 46 Tex. 312.

Thus concluding and holding that the district court was without power to order .the sale through its process of Mrs. Allen’s interest in the lands involved, it follows that, in the writer’s opinion, that part of the trial court’s judgment ordering such sale was void; wherefore this motion for rehearing should be granted, and the case reversed and remanded, with instructions to the trial court to vacate that part of its judgment, and then to certify its amended and corrected judgment to the county court for observance and enforcement pursuant to the statute previously quoted.

It is, indeed, the writer’s information that our Supreme Court, in the case of Lauraine v. Ashe, 191 S. W. 563, decided February 7, 1917, and not yet officially reported, has expressly reaffirmed what it is herein maintained has heretofore been the rule as to the want of authority in the district court to order sale of property belonging to an estate when administration thereon is pending.

GRAVES, J.

(dissenting in Nos. 7279, 7280, and 7281). For the same reasons and to the same extent as expressed in a dissenting opinion filed on April 11, 1917, in the companion case to this one, to wit, No. 7283, H. N. Atkinson, Intervener, v. W. V. Lauraine, Temporary Administrator, etc., the writer dissents from the action of the majority of the court in refusing this motion for rehearing, and here refers to that dissenting opinion for full statement of his reasons, and of the action he thinks should have been taken also in this case.