author: WILLSON, C. J.

text:
    DUNN et al. v. EPPERSON et al.
    (No. 1375.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 18, 1915.
    On Appellants’ First Motion for Rehearing, March 11, 1915.
    On Appellants’ Second Motion for Rehearing, April 22, 1915.)
    1. Evidence ©=^318 — Hearsay—Recitals in Deed.
    Where the .title of one T. was an essential link in plaintiffs’ chain of title, better evidence being unavailable, recitals that T. owned the land in a proof of loss of a land certificate filed with the General Land Commissioner and in a transfer of such lost certificate to one P. were admissible to prove the fact that T. claimed ownership, a general exception to the rule against hearsay, and where the court heard the case without a jury, the presumption being that the evidence was considered only in its legitimate aspect, the inadmissibility of such recitals to prove the fact of T.’s ownership of the land certificate furnished no ground for reversal.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. &wkey;318.]
    2. Evidence <&wkey;318 — Hearsay Admissible Under the Facts.
    Where proof of loss of a land certificate was made in 1848, and its transfer by plaintiffs’ predecessor in title to one P. in 1851, where the proof of loss was filed in the General Land Office when or before a duplicate certificate was issued, where the deed to P. was recorded in the county where land had been surveyed under the duplicate certificate, where all the records of the county where the land in controversy was situated had been destroyed by fire, where plaintiffs had continually asserted title to the certificate and to the land located under it, and where no one else had asserted title either to land or certificate until a few years before suit, recitals, in the proof of loss of land certificate and in transfer to P. by plaintiffs’ predecessor in title, that he owned the original lost certificate to the land, were admissible in evidence.
    LEd. Note. — For other cases, see Evidence, Cent. Dig. §§ 1193-1200; Dec. Dig. &wkey;318.]
    3. Appeal and Error <&wkey;1051 — Harmless Error — Evidence—Fact Established.
    Where other testimony was sufficient to warrant an inference that plaintiffs’ predecessor in title had acquired the owner’s title, judgment was not reversed for errors in admitting certain documentary evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4163-4170; Dec. Dig. &wkey; 1051.]
    4. Trespass to Try Title <&wkey;41 — Title — Sufficiency op Evidence.
    Evidence held sufficient to show that plaintiffs’ predecessor in title owned land in controversy.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. <&wkey;> 41.]
    5. Vendor and Purchaser t&wkey;105 — Rescission — Wild Lands — Recovery op Rent.
    Where land in controversy had been used as pasturage for 700 or 800 head of horses, had been fenced, and 100 acres cleared and 36 acres cultivated, it was not so wild, unproductive, and without rental value that the vendor upon rescission of the contract could not recover its rental value.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 183-187; Dec. Dig. &wkey;5l05J
    6. Trespass to Try Title <&wkey;41— Title — Sufficiency op Evidence.
    Evidence held sufficient to show title in predecessor in title of plaintiffs’ remote grantor.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. &wkey;> 41.]
    On Appellants’ First Motion for Rehearing.
    7.Appeal and Error &wkey;>754 — Assignment op Error — Necessity.
    Where no error was assigned to the action of the court in excluding a deed from evidence, the bill of exceptions on the point should not have been made part of the record and was not entitled to be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3086-3089; Dec. Dig. &wkey; 754.]
    8. Appeal and Error <&wkey;754 — Review — Waiver op Error.
    Under rule 24 for the government of Courts of Civil Appeals (142 S. W. xii), where appellants failed to assign error to the exclusion of evidence, they technically acquiesced in the ruling of the trial court and waived any right to complain.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3086-3089; Dec. Dig. <&wkey;> 754.]
    9. Appeal and Error <@=^1170 — Harmless Error — Rule op Court.
    Where the sheriff’s deed which it was error to exclude from evidence could not have served to establish anything but an imperfect title in appellants, in an action to quiet title and recover possession of land under rule of court 62a (149 S. W. x), declaring that no judgment shall be reversed on appeal, unless the error complained of probably, caused the rendition of an improper judgment, such exclusion was not ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. &wkey;1170.]
    10. Trespass to Try Title <&wkey;53 — Wild Lands — Recovery op Rents — Sufficiency op Evidence.
    Evidence held insufficient to show that land in controversy was so productive when certain defendants bought from another defendant as to enable plaintiffs to recover rental value on such land during the term of their dispossession.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 85, 86; Dec. Dig. <&wkey;> 53.]
    11. Trespass to Try Title <&wkey;>53 — Recovery op Rents.
    In an action to recover possession, plaintiffs could not recover rental value of the land unless land was not wild but productive.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 85, 86; Dec. Dig. <&wkey;> 53.]
    12. Vendor and Purchaser c&wkey;341 — Wild ' Land — Recovery op Interest.
    Where F. J. and S., codefendants with D. in an action to recover possession of land, had purchased from D., if they were not liable to the plaintiffs, owners of the land, for its rental value during the time they had been in possession, D. is not liable to them for interest on the purchase money paid.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1008-1017; Dec. Dig. &wkey;341.] •
    13. Appeal and Error <&wkey;1149 — Reformation op Judgment.
    A judgment that can be corrected in the appellate court will not be remanded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4483-4496; Dec. Dig. &wkey;> 1149.]
    On Appellants’ Second Motion for Rehearing.
    14. Appeal and Error <&wkey;1170 — Harmless Error — Exclusion op Evidence —Judgment — Rule op Court.
    In trespass to try title, where defendants offered in evidence against plaintiffs a judgment and sheriff’s deed thereunder as tending to show title in their predecessor, although they did not offer to prove that the land had been sold under such judgment, its exclusion, if otherwise admissible, was ground for reversal under rule of court 62a (149 S. W. x), declaring that no judgment shall be reversed on appeal unless the error complained of was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. &wkey;1170.]
    15. Appeal and Error «&wkey;754 — Review — Waiver of Eeeoe.
    In trespass to try title, where appellants failed to assign error to the exclusion frorn evidence of a sheriff’s deed given under a judgment, although they technically acquiesced in the ruling of the court, that such was not their attitude in fact was sufficiently shown by the brief of the adverse party.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3086-3089; Dec. Dig. &wkey; 754.]
    16. Judgment <&wkey;130 — Process to Support —Admissibility—Joint Parties.
    In trespass to try title, a judgment in a suit against plaintiffs, offered in evidence by defendants as tending to show title in. their predecessor, was not inadmissible because reciting “that the defendant was duly served with notice of the pendency of this suit,” although it appeared therefrom that it was by default against three persons; a notation that the citation had been “returned executed” sufficiently showing .that it had been executed as to each of the defendants, and that the use of the word “defendant” in the singular instead of the plural in the judgment was a clerical error.
    LEd. Note. — For other cases, see Judgment, Cent. Dig. §§ 241, 242; Dec. Dig. &wkey;130.]
    17. Executors and Administrators <&wkey;453 —Actions—Judgment—Admissibility.
    In trespass to try title, where defendants offered in evidence, as tending to show title in their predecessor, a judgment against plaintiffs, such judgment was not inadmissible in evidence, on the ground that it did not appear to be against plaintiffs in their representative capacity as executors, where it recited that “said plaintiff have and recover of the said defendants as such executors,” they having been referred to above as executors, of the last will and testament of a named decedent, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3362, authorizing an “independent administration,” which was the character of the one in question, and article 3363, providing that any person having a debt may enforce payment by suit against the executor and when judgment is recovered against him the execution shall run against the estate of the testator in his hands made subject to such debt.
    - [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1884^-1908; Dec. Dig. <&wkey;>453.]
    Appeal from District Court, Titus County; I-I. F. O’Neal, Judge.
    Action by B. H. Epperson and others against Gordon Dunn, one Yantis and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded as to all parties except defendant Yantis, and affirmed as to him.
    The appellees, hereinafter referred to as plaintiffs, claiming, as the heirs of B. H. Epperson and his wife, Harriet A. Epperson, both deceased, to own 1,292 acres of the William Walker survey in Titus county, brought this suit to recover the title and possession thereof, and damages, against Gordon Dunn, E. D. Fee, G. R. Stewart, O. R. Jackson, Spill Brown, Mrs. Alice Brown, and Tom McLean. One Yantis, claiming that he owned the land, intervened in the suit; and the plaintiffs thereupon, by an amended petition, made him a party defendant.
    The answers of Fee, Stewart, and Jackson to the petition of the plaintiffs and that of the intervener consisted of a general denial, pleas of not guilty, and the statute of limitations of five years, a suggestion of improvements made by them on the land in good faith, and a plea setting up that they had purchased the land of their codefendant Gordon Dunn, who had warranted the title, and asking a recovery against him on his warranty in the event plaintiffs or the in-tervener recovered against them.
    The answer of Dunn to said petitions consisted, so far as necessary to state it, of a general denial, pleas of not guilty, and of the statute of limitations of five and ten years, so far as the plaintiffs and intervener sought to recover the land, and of the statute of limitations of two years, so far as they sought to recover damages.
    .Spill Brown, Mrs. Alice Brown, and Tom McLean seem not to have made an answer to the suit.
    It appeared from the testimony that the land was surveyed November 15, I860, by virtue of certificate No. 1014/1113 for three-fourths of a league, issued by the Commissioner of the General Land Office December 14, 1848, to the “legal representatives of William Walker, deceased.” Said certificate was issued as a duplicate of certificate No. 566 “issued by the board of land commissioners of Washington county to Wm. Walker, heir Nancy Walker,” on proof made by one J. J. Tumlinson that said certificate No. 566 had been lost. The land was phtented to the heirs of William Walker, deceased, March 29, 1871.
    Plaintiffs claimed that said Tumlinson was the owner of said certificate No. 566, and, being unable to show the fact by direct evidence, they relied upon circumstances they adduced to prove it. It sufficiently appeared from the evidence that plaintiffs’ ancestors, B. H. Epperson and his wife, by mesne conveyances, had acquired the title, if any, owned by Tumlinson.
    Yantis claimed that certificate No. 1014/1113 was issued to William Walker as heir of Nancy Walker, deceased, and that he had acquired the title of said William Walker. As evidence of the fact that he had acquired that title, Yantis relied upon deeds purporting to convey the land as follows: (1) From William Walker to J. F. Walker, in trust to secure a debt due to F. E. Walker, wife of said J. F. Walker, dated June 27, 1886; (2) from William Walker to J. B. Walker, dated.February 7, 1887; (3) from J. B. Walker and from J. N. Walker and wife and M. Eelce and wife, heirs, it seems, of said J. F. and F. E. Walker, to himself (Yantis), dated July 25, 1912.
    Fee, Stewart, and Jackson, and Dunn as their vendor, claimed title under deeds as follows: (1) From Spartan Berry and Alice O. Martin, as the only heirs of William Walker, Jr., who it appears was a brother to a Nancy Walker, to L. N. Cole, dated September 9, 1901; (2) from said Cole to J. W. Thomas, dated September 20, 1901; and (3) from said Thomas to Dunn, dated May 4, 1903. It was agreed by the parties to the suit that the effect of the deeds specified and of the deed from Dunn to Fee, Stewart, and Jackson was to pass to the latter “all the title ever owned or held by Alice O. Martin and her husband, W. G. -Martin, and Spartan Berry.” Said Fee, Stewart, and Jackson also claimed title under mesne conveyances from one Gulie Hargrove, and it was agreed that they had acquired and held “all of the right, title, interest, and estate in and to the William Walker survey that was acquired by G. Hargrove by virtue of the sheriff’s deed dated June 7, 1881.” The sheriff’s deed referred to is not a part of the record on this appeal.
    The trial was before the court without a jury, and resulted in a judgment in favor of plaintiffs for the land as against all the other parties, and in favor of Fee, Stewart, and Jackson against Dunn on his warranty for $8,263.34. Dunn and Fee, Stewart, and Jackson by appeal, and Yantis by writ of error, have brought the cause to this court.
    J. G. McGrady, of El Paso, Ward & Ward, J. S. Sherill, S. P. Pounders, and J. M. Bur-ford, all of Mt. Pleasant, and R. N. Grisham, of Sweetwater, for appellants. Lenox & Len-ox, of Clarksville, for appellees.
   WILLSON, C. J.

(after stating the facts as above). It is conceded by appellants Fee,. Jackson, and Stewart in their brief, and not questioned by either of the other appellants, that, if Tumlinson acquired the title of Nancy Walker to the original certificate No. 566, the title to the land in controversy was in B. H. Epperson September 6, 1878, when he died. Plaintiffs were unable to show by direct evidence that Tumlinson had acquired that title, and undertook to prove the fact by circumstances. For this purpose plaintiffs offered and the court, over objections to portions thereof interposed by said appellants and appellant Dunn, hereinafter stated, admitted as evidence, documents as follows: (1) A certified copy from the General Land Office of the proof made by Tumlinson of the loss of the original certificate issued to Nancy Walker as heir of William Walker, to procure the issuance of the duplicate certificate. The proof consisted of (1) the certificate of one Stone, “printer and publisher Texian Advocate,” dated April 15, 1848, showing that-a notice by Tumlinson, as the owner thereof, of the loss of “the headright of William Walker, number not recollected, for three-quarters of a league of land issued by the board of land commissioners for Washington county in August, 1836,” had been published in the Victoria Advocate “for nine weeks from the 18th of November, 1846”; and (2) the affidavit of said Tumlin-son, made November 3, 1848, “that he was the just and legal owner of the certificate issued to William Walker by” said board of land commissioners “for three-quarters of a league and labor of land, No. -, dated in August, 1838, that he had never sold, alienated, or transferred the same in any manner, that it has been lost, and that since lost he has neither heard or known of the same.” (2) A transfer, dated September 27, 1851, recorded in Red River county October 27, 1880, to Paschal from Tumlinson, in which he described the certificate thereby conveyed as follows:

“A land certificate for three-fourths of a league and one labor, it being originally the certificate No. 566 issued in the county of Washington to Nancy Walker as heir at law of William Walker, deceased, and transferred by her by chain of transfers to me.”

Plaintiffs then proved by instruments recorded in Red River county said October 27, 1880, that Paschal transferred the certificate to Temple, who transferred it to Shugart, who transferred it to Morrill, who by a deed dated February 10, 1860, transferred it to said B. H. Epperson.

Plaintiffs further proved facts, among others, as follows: At the instance of said Ep-person, surveys were made by virtue of the duplicate certificate as follows: In Titus county, in November, 1860, a survey of 8,055,188 square varas, and a survey of 7,301,109 square varas; the last-mentioned survey being the land in controversy here. And in Red River county, on Blossom Prairie, in May, 1867, a survey of 8,839,169 square varas. In a letter, dated July 21, 1870, to the Commissioner of the General Land Office, Epperson as the owner thereof abandoned the survey of 8,055,188 square varas made in Titus county, and on March 31, 1871, said commissioner issued and delivered to Epperson a certificate, No. 16/383, authorizing him to locate 12,448,892 square varas, as the part then unlocated of the duplicate certificate. Said certificate No. 16/383 seems to have been applied by Epper-son to the survey of 8,839,169 square varas which had been made in 1867 by virtue of the duplicate certificate. In April, 1872, the Commissioner of the General Land Office issued and delivered to Epperson a certificate, No. 17/224, authorizing him to have 3,609,-723 square varas surveyed as the balance then unlocated of said certificate No. 16/383. By virtue of said certificate No. 17/224, a survey of said quantity of land, to wit, 3,609,723 square varas, was made for Epper-son in Red River county in November, 1874. The survey of 7,301,109 square varas in Titus .county, and the surveys of 8,839,169 and 3,609,723 square varas, respectively, in Red River county, together aggregated the amount of land specified in the duplicate certificate. Each of the three surveys was patented to the heirs of William Walker, deceased; the one in Titus county March 29, 1871, as hereinbefore stated, and those in Red River county April 18, 1872, and September 12, 1876, respectively. The patent on the survey in Titus county was delivered by the Commissioner of the General Rand Ofliee to Epperson at the time it was issued, and it was shown that the patents issued on the two surveys in Red River county were found after the death of said Epper-son among papers belonging to him. During his lifetime Epperson subdivided the survey on Blossom Prairie, in Red River county, and sold parts of same to different parties. After his death the other parts of the survey were sold by his legal representatives. The deeds conveying the respective parts of said survey were all of record in Red River county as long ago as 1880. It seems that the purchasers of parts of said survey, at or about the dates of their' respective purchases, took, and thereafterwards, either in person or by their vendees, continued in actual possession each of the part he had purchased, and paid taxes assessed against the same. No claim of title adverse to the title asserted by Epperson to said survey seems ever to have been made by any one. But it • appeared that the purchasers of the parts of said survey, or their vendees, commenced and prosecuted in the district court of Red River county a suit against the unknown heirs of William Walker, deceased, and Nancy Walker, deceased, to remove cloud from their title to the land, and that the suit resulted in a judgment rendered May 31, 188S, awarding them the relief they sought. The land in controversy was inventoried as property belonging to said Ep-person’s estate after his death. It seems to have been overflow land and used only as a pasture until 1909, when appellant Dunn sold it to appellants Fee, Jackson, and Stewart; except that the testimony of the witness Susan Smith indicated that she and her first husband, Brad Welch, claiming under a sale of 192 acres thereof by Epperson to James Welch, Brad Welch’s father, for many years lived on a part of said 192 acres. It was shown that the taxes on all but 200 or 300 acres of the land for the years 1874, 1875, and 1876 were assessed against Epper-son, and there was testimony sufficient to support a finding that for many years after Morrill conveyed to Epperson it was known in the neighborhood as the “Epperson land,” and that no other person than Epperson asserted a claim to any part of it except the 192 acres mentioned as having been claimed by Welch. In fact, it seems that no claim to- any of the land surveyed by virtue of the duplicate and unlocated balance certificates mentioned, other than the one asserted by Epperson and his vendees and heirs, was evef made by any one in any way prior to September, 1901, when Spartan Berry and Alice .O. Martin, as the heirs of William Walker, Jr., brother to Nancy Walker, conveyed the survey in controversy to one Cole, whose title appellant Dunn acquired, except that in 1886 the William Walker under whom the appellant Yantis claimed conveyed it to a trustee to secure a debt he owed to one F. E. Walker.

It is insisted that the recitals in the proof of loss of the original certificate and in the transfer from Tumlinson to Paschal were inadmissible to prove that Tumlinson owned the original certificate, and that the other facts shown of themselves did not authorize a finding that Tumlinson owned said original certificate. It is not believed that either of the contentions should be sustained.

In the brief of the appellants Fee, Jackson, and Stewart it is conceded, and it is not denied by either of the other appellants, that the proof of loss was admissible for the purpose of showing the regularity of the issuance of the duplicate certificate. As we think this admission should be construed as an abandonment of the contention that the proof of loss was irregular and not an archive of the General Land Office, the objection to it on those grounds will not be considered. The other grounds of the objection had reference to recitals in the proof of loss and wére the same as those- urged to the admissibility of recitals in the transfer from Tumlinson to Paschal, to wit, that they were hearsay and self-serving.

Plaintiffs had a right to show, as a circumstance tending to support their contention,, that Tumlinson claimed to own the original certificate at the time the duplicate thereof was issued, and claimed to own the duplicate at the time he conveyed it to Paschal. Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033. If there was any other way, certainly there was no other more satisfactory way, to prove that he claimed to own those certificates at the times stated than to show that he then said he owned same. That he said he owned the certificates doubtless was a mere legal conclusion, and not of itself sufficient to prove Ownership; but it was not hearsay when offered as a circumstance from which, considered with other circumstances, to infer that he owned the certificates. That the recitals should be classed as self-serving: may be admitted, but that they were did not, we think, render them inadmissible as evidence that Tumlinson then claimed to own the certificates. Where the fact that a person at a given time claimed to own property in controversy is relevant and competent as a circumstance to support an inference that he did then own it, we do not understand that testimony offered to prove the fact is inadmissible because it is a self-serving declaration of that person. Hickman v. Gillum, 66 Tex. 316, 1 S. W. 339; Lockridge v. Corbett, 31 Tex. Civ. App. 676, 73 S. W. 98. We are of opinion, therefore, that the recitals, in so far as they were offered to prove that Tumlinson claimed to own the certificates, were not subject to the objection urged to them.

It is insisted, however, that, on the grounds stated, the recitals were inadmissible to prove the truth of matters they stated as facts. The trial being by the court without a jury, if the recitals were admissible for any purpose, it should be assumed that the court considered them for that purpose alone, and the fact that they were inadmissible for other purposes would not be a reason for reversing the judgment. But we are of opinion that the court, under the circumstances of the case, had a right to consider the recitals as evidence of the truth of the facts they stated. Harrison v. Fryar, 8 Tex. Civ. App. 524, 28 S. W. 250; McMahon v. McDonald, 51 Tex. Civ. App. 613, 113 S. W. 322; Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033. As shown above, the proof of loss was made in 1848, and the transfer to Paschal in 1851, more than 60 years before the cause was tried, when, presumably, Tumlinson and Paschal were both dead. The proof of loss was filed in the General Land Office at the time, or before, the duplicate certificate was issued, and in 1880 the deed to Paschal was spread upon the records of Red River county, where land had been surveyed by virtue of the duplicate certificate. It was shown that all the records of Titus county, where the land in controversy was situated, were destroyed by fire in September, 1S95. And it was shown that from the time Morrill conveyed the duplicate certificate to him in 1860 to the time this suit was commenced, to wit, March 4, 1911, Epperson and those claiming under him continuously asserted title, first, to the certificate, and then to the land located by virtue of it, and that until a few years before the suit was filed no one else asserted title to either the certificate or the land. We do not regard the cases cited by appellants as supporting their contention, when considered with reference to their respective facts, as opposed to the views we have expressed.

But if the recitals objected to in the documents referred to were inadmissible and should not have been considered by the court for any purpose, it should be assumed the court did not consider them, and, if the other testimony was sufficient to support an inference that Tumlinson had acquired the title of Nancy Walker, the judgment should not be sot aside for the errors of the court in admitting the documents as evidence. We are of opinion the other circumstances shown by testimony were sufficient as a basis for the inference.

As before stated, it was shown that B. H. Epperson died September 6, 1878. He left a will which was probated October 2, 1878, in which he named J. P. Russell and R. B. Epperson as his general executors, and E. S.. Epperson as his executor to manage and control a certain plantation for a period of five years, after which said E. S. Epperson was to act with J. P. Russell and R. B. Ep-person as general executors of the will. October 8, 1878, Russell and R. B. Epperson qualified as general executors and E. S. Ep-person qualified as executor for the special purpose stated.

Appellants Dunn, Fee, Jackson, and Stewart offered in evidence a judgment rendered in a justice court of Marion county March 29, 18S0, in favor of *W. S. Harris against “J. P. Russell and R. B. Epperson as executors of the last will and testament of B. H. Epper-son, late of Marion county, deceased,” and against A. U. Wright, for the sum of $113.-32. The judgment, on objections thereto interposed by plaintiffs, was excluded as evidence, and the action of the court in excluding it is assigned as error. We are inclined to think the judgment was not inadmissible on any of the grounds urged against it, but we do not feel called upon to determine whether it was or not, for if it was admissible the error of the court in excluding it, on the record as it is presented to us, would appear to be harmless. It does not appear from the bill of exceptions made the basis of the assignment presenting the contention, or otherwise from parts of the record we are authorized to consider, that said appellants offered to prove that the land was sold under the judgment in question. Unless the land was lawfully sold under the judgment, their rights could not have been prejudiced by the refusal of the court to admit the judgment as evidence.

Appellant Dunn insists that plaintiffs “were not entitled to recover of the defendants Fee, Jackson, and Stewart any rents for the use of the premises, and therefore those defendants were not entitled to recover against him any interest on the money for the purchase of said land.” The contention is predicated on the claim that it appeared from the testimony that the land was wild, unproductive, and without rental value, except for improvements placed on it by said Fee, Jackson, and Stewart after they purchased it in 1909. As we understand the record, it did not conclusively appear that the land was without rental value. The witness Moore testified that by an arrangement he had with Thomas (or one Holbrook, as Thomas’ agent), who conveyed the land to appellant Dunn in May, 1903, he fenced the land, and thereafter wards while Thomas owned it, and until Dunn sold it to said Fee, Jackson, and Stewart in April, 1909, used it as a pasture for horses and cattle, having on it at times as many as from 700 to 800 head. He further testified that at the time he fenced it about 100 acres of the land had been cleared, but, he added, that the cleared part was not cultivated during the time he used the land as a pasture. He further testified that while he had possession of the land he “cleared off a little field and planted a little crop”' on it. It further appears from the statement of facts that it was agreed between the parties that 40 acres of the land had been cleared (when, not stated); that 80 acres of it, lying north and west of the slough, were in cultivation ; and that 6 acres south of the slough were in cultivation. In view of the testimony referred to, we do not think it can be said to have so conclusively appeared that the land was without rental value as to require us to hold that there was no basis for the finding in plaintiffs’ favor against Fee, Jackson, and Stewart for rents.

As stated above, appellant Yantis claimed that the duplicate certificate by virtue of which the land was surveyed was issued to William Walker as the heir of Nancy Walker, deceased, and that he had acquired the title of that William Walker. The contention was that there were two William Walkers — one in whose right the original certificate was issued to Nancy Walker, and the other, one to whom the duplicate certificate was issued as the heir of Nancy Walker. If the testimony in the case warranted a finding that the William Walker named in the duplicate certificate was not the William Walker named in the original certificate, the judgment as to said appellant Yantis would have to be affirmed because of his utter failure to show that the William Walker, whose title he had acquired, was the William Walker to whom the duplicate certificate was issued. But the testimony admits of no other reasonable conclusion than that the William Walker mentioned in the certificates was one and the same person. It conclusively appears from the record that the William Walker who acquired the right to the original certificate was dead when it was issued in August, 1838, and it as conclusively appears that that certificate was issued to Nancy Walker as his heir. That the William Walker mentioned in the duplicate certificate was the William Walker mentioned in the original certificate, we think almost conclusively appears from the face of the duplicate certificate itself as set out below:

“1014/1118. General Land Office, Austin, December 14, 1848.
“This is to certify that satisfactory evidence having been produced of the loss of headlight certificate No. 560, class 1st, issued by the board of land commissioners of Washington county to Wm. Walker, heir Nancy Walker, for three-fourths of a league and one labor of land, date not recollected, this duplicate will, therefore, entitle the legal representatives of William Walker, dec’d, to all of the benefits granted in said original certificate. In testimony,” etc.

Evidently the Commissioner of the General Land Office intended by the language he used to be understood as meaning that the legal representatives of the William Walker in whose right the original certificate was issued, and not the legal representatives of some other then deceased William Walker, were the beneficiaries of the certificate. But if he meant some other William Walker than the one in whose right the original certificate was issued, it could not have been the William Walker under whom appellant Yantis claims, for that William Walker, it appears from testimony offered by said Yantis, was alive in 1886, whereas the William Walker mentioned in the duplicate certificate was dead in 1848.

The judgment is affirmed.

On Motion of Appellants Dunn, Fee, Jackson, and Stewart for Rehearing.

In overruling assignments in which appellants Dunn and Fee, Jackson, and Stewart complained of the action of the trial court in excluding the judgment of the Marion county justice court as evidence, we said:

“It does not appear from the bill of exceptions made the basis of the assignments presenting the contention, or otherwise from parts of the record we are authorized to consider, that said appellants offered to prove that the land was sold under the judgment in question. Unless the land was lawfully sold under the judgment, said appellants’ rights could not have been prejudiced by the refusal of the court to admit the judgment as evidence.”

In the motions it is earnestly insisted that it did appear from the record that the land was so sold, and as supporting their contention said appellants quote from the statement of facts as follows:

“It is hereby agreed by the parties that the defendants Fee, Jackson, and Stewart acquired and now hold all of the light, title, interest, and estate in and to the Wm. Walker survey that was acquired by G. Hargrove by virtue of the sheriff’s deed dated June 7, 1881, above copied.”

The same quotation was made in the opinion, except that the words “above copied” were omitted — because as a matter of [fact the deed referred to, or a statement of its contents or any of same, was not in the statement of facts.

As further supporting their contention, said appellants, in their motions, as they did in their briefs, call attention to the fact that a deed dated June 7, 1881, purporting to have been made by the sheriff of Titus county and to convey the land to Gulie Hargrove as the purchaser at a sale thereof made by virtue of an execution issued on a judgment of said justice court rendered “in favor of W. S. Harris against J. P. Russell, R. B. Epperson, executors of B. H. Epperson, de-. ceased, and A. U. Wright on the 20th day of March, 1880,” was copied in a bill of exceptions in the transcript taken by said appellants to the action of the trial court in sustaining objections to said deed and exclud1-ing it when it was offered as evidence.

No error having been assigned to the action of the court in excluding the deed, we were, and are, of opinion the bill of exceptions referred to should not have been made a part of the record and was not entitled to be considered as a part of same. Mattfield v. Huntington, 17 Tex. Giv. App. 716, 43 S. W. 55. If, however, we were wrong in so concluding, and if the bill of exceptions should have been treated as a part of the record, the ruling made by us would not, for that reason, have been different; for said appellants would have been in the attitude, because of their failure to assign error on the action of the trial court in excluding the deed, of acquiescing in the ruling made by that court and of having waived any right they had to complain of it. Rule 24 for the government of Courts of Civil Appeals (142 S. W. xii). The situ'atioii which then would have confronted this court would have been this: That it appeared that the trial court, for reasons said appellants conceded to be sufficient, had excluded the deed as evidence. In other words, appellants would have been in the attitude of conceding that they had neither proved nor offered to prove that the land had been lawfully sold under the judgment. In this condition of the record, under the rule (62a) declaring that “no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case,” this court- would have been without authority to reverse the judgment for the error of the court in excluding the justice’s judgment; for it is plain if the land was not lawfully sold under the judgment the error in excluding it not only was not calculated to cause, but could not have caused, the rendition of an improper judgment in the case. Viewing the case from this standpoint, of course the recital in the statement of facts, quoted above and in the opinion, that Eee, Jackson, and Stewart had acquired the title of G-. Hargrove by virtue of the sheriff’s deed, was entitled to no weight; for, if the title Hargrove had acquired was only such as an admittedly (as we must reL gard it) insufficient sheriff’s deed passed, he had acquired none at all.

With reference to the contention of. appellant Dunn that it appeared that plaintiffs were not entitled to recover anything of Eee, Jackson, and Stewart as rentals, and therefore that Eee, Jackson, and Stewart were not entitled to recover anything of him as interest on the money they paid him for the land, this statement was made in the opinion:

“It further appears from the statement of facts that it was agreed between the parties that 40 acres of the land had been cleared (when, not stated); that 30 acres of it, lying north and west of the slough, were in cultivation; and that 6 acres south of the slough were in cultivation.”

In his motion appellant Dunn insists that the agreement had reference “to the condition of the land after it was improved by Fee, Jackson, and Stewart,” and renews his contention that it appeared that Eee, Jackson, and Stewart were not liable to plaintiffs for rents, because it appeared that the land was without rental value except for improvements placed thereon by said Eee, Jackson, and Stewart. We have reached the conclusion, after further examination of the record, that both contentions should be sustained. A fairer construction than that given the agreement in the opinion we now think is that it referred to clearings made on the land by Fee, Jackson, and Stewart after they purchased it. It appeared from the testimony of the witness Crawford, which it seems was not contradicted by any other testimony in the record, that none of the land was cultivated until after Fee, Jackson, and Stewart purchased and improved it. And it appeared that the only use made of it or which could have been made of it, prior to that time without improving it, was the use Moore made in pasturing stock on it, and that he, after fencing it for that purpose, removed the fence he had erected when said Eee, Jackson, and Stewart purchased it. In other words, it was not shown that the land had any rental value except that given it by improvements placed on it by Moore and by Eee, Jackson, and Stewart. Therefore we think it did not appear that plaintiffs were entitled to recover anything of Fee, Jackson, and Stewart- for use of the land. Benson v. Cahill, 37 S. W. 1088; CahUl v. Benson, 19 Tex. Civ. App. 30, 46 'S. W. 889. As they were not so entitled, and as it appeared .that Eee, Jackson, and Stewart took possession of the land when they purchased it, and thereafterwards continued in possession thereof, we think they were not entitled to recover of Dunn interest on the money they paid him. Brown v. Hearon, 66 Tex. 63, 17 S. W. 395; Huff v. Reilly, 26 Tex. Civ. App. 101, 64 S. W. 387. As the error in the judgment in this respect can be corrected here, the cause will not be remanded, but the judgment of this court will be set aside, the judgment of the trial court will be so reformed as to allow Fee, Jackson, and Stewart a recovery against Dunn of only the amount of the money paid by them for the land, to wit, $6,381, and interest thereon from the date of the entry of the judgment of the court below, and as so reformed said judgment of the court below will be affirmed. The motion of appellant Dunn so far as it is for other relief will be overruled, as will the motion of the appellants: Eee, Jackson, and Stewart.

On Motion of Appellants Fee, Jackson, and Stewart for Rehearing.

It is urged in the motion that the conclusion reached by us that it appeared from the testimony that plaintiffs were not entitled to recover anything of Eee, Jackson, and Stewart as rents, and therefore that the latter were not entitled to recover of Dunn interest on the money they paid him for the land, is erroneous. As, for reasons hereinafter stated, we have determined to set aside the order heretofore made overruling the motion of appellant Dunn and the motion of appellants Fee, Jackson, and Stewart for a rehearing, and the judgment affirming the judgment of the court below in so far as it was in favor of plaintiffs against said Dunn, Fee, Jackson, and Stewart, and in so far as it was in favor of Fee, Jackson, and Stewart against Dunn, and to remand the cause for a new trial as between those parties, the question made as to whether the conclusions complained of were erroneous or not will not be now further considered.

In the opinion affirming the judgment we said, with reference to the action of the trial court in excluding as evidence the judgment rendered by a justice court of Marion county, that we were “inclined to think the judgment was not inadmissible on any of the grounds urged against it,” but did not “feel called upon to determine whether it was or not; for if it was admissible the error of the court in excluding it on the record as presented would appear to be harmless.” Why we thought the exclusion of the judgment, if error, should be treated as harmless, was stated in the opinion overruling the motions referred to. Further consideration of the matter has resulted in convincing us that, if the trial court erred in excluding the judgment as evidence on the grounds urged by plaintiffs, the error should not be held to be a harmless one within the meaning of rule 62a (149 S. W. x), referred to in the opinion overruling the motions. The conclusion reached that the bill of exceptions based on the action of the court in excluding the judgment was defective because it did not appear from anything in it that the land had been lawfully sold by virtue of an execution issued on the judgment is adhered to as correct, as is also the conclusion: (1) that, error not having been assigned on the exclusion of the sheriff’s deed as evidence, the bill of exceptions based on the ruling of the court in that respect should not be treated as a part of the record; and (2) if it should be, that, technically, said appellants were in the attitude of acquiescing in the ruling as correct. But we believe it sufficiently otherwise appears from the record that they were not actually in that attitude, and that it would be unjust to hold that they were. That plaintiffs did not understand that to be their position is shown by their brief, in which they not only do not combat, but virtually concede, the facts to be that said appellants offered the deed as evidence, that same as copied in the bill of exceptions properly was a part of the record on this appeal, and that said appellants had not abandoned their contention that the effect of the judgment and sale thereunder, had they been permitted to prove same, would have been to pass to them the title to a part, if not all, of the land in controversy. Under the circumstances of the case, if the court erred in excluding the judgment, we believe it would be unfair to apply rule 62a and hold otherwise than that the error “was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.” The question then is: Did the trial court err in excluding the judgment as evidence on the grounds urged against its admission? The judgment was as follows:

“W. L. Harris v. A. U. Wright, J. P. Russell and R. B. Epperson, Executors of B. PI. Epperson, Dee’d. No. 2181.
“Attorney, J. Pennman.
“Sworn a/c for cash advanced.
“A/c Filed March 8th, 1880.
“Citation issued same day.
“John Grant, J. P.
“Cit. returned executed March 16, 1880.
“[Signed] M. IC Crawford, Constable.
“Court in session this 29th day of March, 1880.
“This day coming on to be heard came the plaintiff by his attorney and the said defendants having failed to appear and answer in this behalf but wholly made default, whereupon the said W. S. Harris ought to recover against the said J. P. Russell and R. B. Epperson, as executors of the last will and testament of B. H. Epperson late of Marion county, deceased, and against the said A. U. Wright, his damages by occasion of the premises; and it appearing to the court that the cause of action is an account for money held and received and is proven and established in the manner prescribed by law and it further appearing- to the court that the defendant was duly served with notice of the pendency of this suit and the court having assessed the damages aforesaid at the sum of one hundred and thirteen 32/100 dollars.
“It is therefore considered by the court that the said plaintiff, W. S. Harris, do have and recover of the said J. P. Russell and R. B. Ep-person as such executors and the said A. U. Wright the sum of one hundred and thirteen 32/ioo dollars, with interest at the rate of 8 per cent, per annum from date of judgment together with his costs of suit in this behalf expended and that he have his execution.
“It is further ordered that the execution issue in favor of the officers of the court against defendants for costs incurred.
“John Grant, J. P.
“Execution issued September 4, 1880, against defendants for one hundred and thirteen 32/ioo dollars and sent to Montague county, Texas.
“Alias execution issued February 19/81 against defendant for judgment $113.32 and for costs and placed in the hands of Judge Penn-man and directed to the sheriff-county.
“W. F. J. Graham, J. P.
“Returned April 23/81 without any indorsement.
“Alias pluries execution issued April 27/81 against defendants for judgment $113.32 and for costs $8.30 and given to -”

Tbe grounds of the objection were as follows:

“(1) It appears therefrom that it was a judgment by default against three defendants and shows on its face and by the recitations therein that only one of the defendants was served with notice or citation, and it was therefore void as to the other defendants not served.
“(2) It is immaterial, incompetent, and irrelevant ; it not appearing to have been a judgment against J. P. Russell and R. B. Epperson in their representative capacity as executors of the estate of B. IT. Epperson, deceased, if properly served, so as to bind said estate, but against them personally.”

We do not think it should be said that the effect of the recital in the judgment “that the defendant was duly served with notice of the pendency of this suit” was to show that only one, and not each, of the defendants was served with citation issued March 8, 1880, and “returned executed March 16, 1880.” Properly construed, we think the notation that the citation had been “returned executed” meant that it had been executed as to each of the defendants, and that the use of the word “defendant,” instead of “defendants,” in the recitation in the judgment, should be viewed as a clerical error. Certainly it should not be said, if the notation could be looked to, and we think it could be, that it. affirmatively appeared that each of the defendants had not been cited. And, if the notation should not be looked to in connection with the recital in the judgment, we think it nevertheless should not be said that it so appeared. Turner v. City of Houston, 43 S. W. 69; Hodges v. Robbins, 23 Tex. Civ. App. 57, 56 S. W. 565.

The contention that the judgment did not appear to be “against J. P. Russell and R. B. Epperson in their representative capacity as executors of the estate of B. H. Epperson, deceased,” clearly is not tenable. Provisions in the will of said B. H. Epperson, deceased, appointing said Russell and R. B. Epper-son executors, were construed in Epperson v. Reeves, 35 Tex. Civ. App. 167, 79 S. W. 845, and were held to create “what is commonly known as an independent administration,” as authorized by article 3362, Vernon’s Statutes. In such an administration it is expressly provided that:

“Any person having a debt or claim, against said estate may enforce the payment of the same by suit against the executor of such will; and, when judgment is recovered against the executor, the execution shall run against the estate of the testator in the hands of the ex,-ecutor that may be subject to such debt.” Article 3363, Vernon’s Statutes.

And see articles 2004, 2005, Vernon’s Statutes ; Croom v. Winston, 18 Tex. Civ. App. 1, 43 S. W. 1072.

It is clear, we think, that the judgment was not inadmissible as evidence on either of the grounds relied upon.

The order and judgment of this court as specified above will be set aside, the judgment of the court below so far as it adjudicated the rights of the parties, except the appellant Yantis, will be reversed, and the cause as between all the parties to the appeal, except the appellant Yantis, will be remanded to the court below for a new trial. In so far as the judgment of the court below is in favor of other parties against said appellant Yantis, it will be affirmed.
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source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    McWHORTER v. ESTES.
    (No. 428.)
    (Court of Civil Appeals of Texas. El Paso.
    April 8, 1915.
    Rehearing Denied April 29, 1915.)
    1. Continuance <&wkey;14— Right to Continuance.
    The original petition indicated that plaintiff purchased the note in suit after maturity. Defendant’s answer set up failure of consideration and purchase after maturity. The testimony at the first trial was not sufficient to notify defendant that purchase before maturity would be relied upon. By trial amendment, made the day before the second hearing, plaintiff set up purchase before maturity. The property transferred by plaintiff in consideration of the note was located at a point far distant. Only three days of the term remained. Held that, where defendant’s motion for a continuance alleged that he believed and had good cause to believe the transfer was made after maturity, and it appeared that his plea of failure of consideration might be sustained, it was improper to deny him a continuance, his original answer sufficiently denying the trial amendment.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 25, 99-112; Dec. Dig. &wkey;14.]
    2. Pleading <&wkey;205 — General Demurrer — Special Exceptions.
    A petition in an action on a note, which averred purchase before maturity, is not subject to general demurrer because not averring the date of maturity, although it is subject to special exception; but, where not excepted to, there is no variance between the petition and a note showing that it would mature in one year.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 496, 498-510; Dec. Dig. <&wkey;>205.]
    3. Limitation oe Actions &wkey;> 127 — Running op Limitations — Amendments—New Cause op Action.
    Where the original, as well as the amended, petition described the same note, though the last alleged purchase before maturity, no new cause of action was stated, and limitations were tolled by the original suit.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. 127.]
    Appeal from Martin County Court; A. C. Eidson, Judge.
    Action by A. D. Estes against S. D. McWhorter. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    S. W. Pratt, of Stanton, and Earl Anderson and Chas. Gibbs, both of Midland, for appellant. W. T. Daniel, of Merkel, and R. N. Grisham, of Sweetwater, for appellee.
   HARPER, C. J.

This suit was instituted by appellee against S. D. McWhorter, appellant, to recover amount of a promissory note.

The first assignment is to the action of the court in overruling motion for continuance. Application was based upon the ground of surprise, in that the original petition showed upon its face that appellee had purchased the note after maturity; that the trial amendment wherein it was alleged that the note was purchased before maturity was filed the day before the trial; that on account of the short time he had to meet the new allegations of fact lie was unable to produce evidence at that term of court.

The motion contained the further allegation that he had reason to believe and does believe that he can produce evidence at the next-term of court to meet and rebut the allegations of the transfer of the note before maturity. This is not a statutory, but an equitable, application. The record discloses that.the cause was tried upon the 23d day of September, and the term ended on the 26th, same month; that the property transferred by appellee as a consideration for the note was located at Roby, Tex., many miles distant from the town of Stanton, where the court was being hel.d, thus rendering it difficult to ascertain whether the transfer was in fact made as testified to by the appellee, or not, within the three days left for the term of court. The appellant had, in June prior to the trial, pleaded that the note was purchased after maturity, and that the consideration had failed; that is, that the original payee, as a consideration for the note, had agreed to obtain from the state of Texas a valid and binding award to certain school lands, which had not been done. True, the evidence discloses that appellant has a ruling from the Court of Civil Appeals that his award is valid. But a writ of error has been granted by the Supreme Court; therefore it cannot yet be determined whether the defense pleaded obtains. Wie think the application should have been granted. Railroad v. Henning, 52 Tex. 474; Cowan v. Williams, 49 Tex. 396.

Appellee urges that the appellant had notice of the claim that the note was purchased by him before maturity by reason of the testimony in the former trial, and, further, "that appellant had not filed an answer to the amended petition, denying the allegation that the note was purchased before maturity at the time he filed his motion for continuance. The testimony given at the former trial was not sufficient to require him to prepare for an issue not made by the pleading. And the answer filed in June to the original petition sufficiently asserts that the note was purchased after maturity to support his motion for continuance.

The second assignment is that the trial petition is insufficient upon general demur-i-er, because it does not contain any allegation as to the date of maturity of the note sued on. The following authorities are to the effect that the petition is not sufficient if a special exception had been interposed: Pennington v. Schwartz, 70 Tex. 211, 8 S. W. 32; Whitaker v. Record, 25 Tex. Supp. 382; Wood v. Evans, 43 Tex. 175. But it is sufficient upon general demurrer. This disposes of the third assignment, which is that, the pleading being on a note without any specified date for maturity, and the note introduced being one to mature upon its face in one year, there was a fatal variance. The case of Salinas v. Wright, 11 Tex. 575, is not in point.

The answer to the fourth assignment, which alleges that, the amended petition having set up a new cause of action, by reason of the fact that the description of the note sued on was different from the description contained in the original petition, and four years having elapsed since the note became due, it was barred by the statute of limitations, is that, as held above, the two petitions sufficiently describe the note introduced in evidence to stop the running of the statute.

For the failure to grant the continuance, the cause must be reversed and remanded for a new trial; and it is so ordered.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes'


author: HALL, J.

text:
    ROWAN v. HODGES et al.
    (No. 756.)

    (Court of Civil Appeals of Texas. Amarillo.
    March 27, 1915.
    Rehearing Denied April 17, 1915.)
    1. Insane Persons &wkey;>26—Adjudication as to Insanity—Admissibility.
    In a suit to set aside a conveyance on the ground of the grantor’s insanity, a copy of a judgment finding him insane, rendered a year after the conveyance, is not admissible.
    [Ed. Note.—For other cases, see Insane Persons, Cent. Dig. §§ 35, 36; Dec. Dig. <§¿=>26.]
    2. Appeal and Error &wkey;>1051 — Review — Harmless Error.
    The erroneous admission of incompetent evidence as to a fact abundantly established by other evidence is harmless.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <§=> •1051.]
    3. Trial c&wkey;350—Province op Jury—Issues.
    Special issues, not supported by evidence, should not be submitted to the jury.
    [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. &wkey;350.]
    4. Evidence <&wkey;67—Presumptions.
    Where a person was insane on a certain date, there is a presumption, in the absence of proof, that the condition continues.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 87, 88, 103; Dec. Dig. &wkey;67J
    5. Insane Persons <&wkey;66 — Rescission of Contract—Burden of Proof.
    Where a wife sought to set aside her husband’s conveyance of their homestead on the ground of his insanity, defendant has the burden of proving the amoymt of the purchase price expended by her for necessaries.
    [Ed. Note.—For other cases, see Insane Persons, Cent. Dig. §§ 10Nl02, 104, 105; Dec. Dig. <&wkey;>66.]
    6. Insane Persons &wkey;>66 — Rescission of Contract—Jury Question.
    In a suit to set aside her insane husband’s conveyance of their homestead, the issue of the amount of the purchase price expended by plaintiff for necessaries should not be submitted to the jury, where the only evidence was that plaintiff expended part of the purchase price in renting another residence.
    [Ed. Note.—For other cases, see Insane Persons, Cent. Dig. §§ 100-102, 104, 105; Dec. Dig. <§=>66.]

      7. Insane Persons <&wkey;66 — Rescission of Contract — Condition Precedent.
    A wife, seeking to set aside a conveyance of their homestead by her insane husband, averred that none of the consideration had been expended by him for necessaries. There was no exception to her pleading. Held that, as the evidence failed to show the value of any necessaries acquired with the purchase price, the' wife could recover without tendering a return of the consideration received by the husband.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 100-102, 104, 105; Dee. Dig. &wkey;?66.]
    Appeal from District Court, Hale County; L. S. Kinder, Judge.
    Action by Pearl Harp against Mrs. M. J. Hodges, individually and as community administratrix of W. R. Hodges, in which B. Rowan and another were impleaded. Prom a judgment against the impleaded defendant Rowan, he appeals.
    Affirmed.
    Graham & Graham, of Plainview, for appellant. Y. W. Holmes and W. B. Lewis, both of Plainview, for appellees.

       Writ of error pending in Supreme Court.

   HALL, J.

Miss Pearl Harp instituted'this suit in trespass to try title against Mrs. M. J. Hodges, as an individual, as well as community administratrix of her husband, W. R. Hodges, to recover the possession of and . quiet the title to certain property situated in Hale county. Mrs. Hodges answered by plea of not guilty, general denial, and pleaded specially that she was the wife of W. R. Hodges; that her husband was confined in the lunatic asylum, having been adjudged insane in Montague county, the 10th of May, 1913; that at the time he conveyed the property to B. Rowan on the 11th day of April, 1912, under which deed plaintiff claims title, he was insane and incapable of transacting business and of protecting his interest; that at the time of the conveyance the property was occupied by defendant and her husband as a homestead; that they have not since owned or acquired any other home, and that she is still occupying it as a home with her minor children. In her capacity as community survivor, she alleged, further, that her husband, on April 12, 1912, and long prior thereto and ever since, was and is insane; that the land sued for is community property; that she has been appointed and qualified as community survivor; that the property was at the time of the conveyance reasonably worth $700, but was exchanged for property actually worth only $150, and that none of the consideration received for said land was expended for necessaries for said W. R. Hodges. Plaintiff, by supplemental petition, impleaded B. Rowan and I. A. Smith, seeking to recover upon the warranty of title, alleging that on February 13, 1913, defendant Rowan conveyed the property to Smith for a consideration of $700 cash and $200 in a vendor’s lien note, and that on October 17, 1913, Smith conveyed to plaintiff, in consideration of $200 cash and the assumption of the above-described vendor’s lien note. She prayed for judgment against both defendants for the $200 cash paid, with 6 per cent, interest, and for cancellation of the unpaid note, in the event Mrs. Hodges should recover.

Defendants Rowan and Smith answered, adopting the pleadings of the plaintiff as their own. There was a jury trial, and only one special issue was submitted, as follows: Was 'the defendant, W. R. Hodges, insane at the time he made the deed to B. Rowan for the property in controversy on April 11,1912? This question having been answered in the affirmative, judgment was entered accordingly.

The first complaint is that the court erred in admitting, over plaintiff’s and defendant B. Rowan’s objections, a certified copy of a judgment rendered in the county court of Montague county, adjudging W. R. Hodges to be a lunatic. This judgment was entered more than a year after the execution of the deed, and according to the holding in Uecker v. Zuercher, 54 Tex. Civ. App. 289, 118 S. W. 152, the court erred in admitting it for the purpose of proving the incapacity of I-Iodges. The record, however, contains an abundance of testimony upon which the jury could and should have returned a verdict declaring the mental incapacity of Hodges at the time he executed the deed, and the admission of this testimony was therefore harmless.

By the second and third assignments of error it is insisted that the court should have submitted as. special issues to the jury the question as to whether or not Hodges at any time after the execution of the deed was sane, and, if so, did he understand the terms of the deed and disaffirm it? There is no evidence in the record showing or tending to show that Hodges ever recovered his mental faculties at any time after the execution of the deed. Two witnesses testified that during the year 1912 they had transactions with him and he appeared to be in his right mind; but, since the record conclusively shows that Hodges left Hale county within a month after the execution of the deed, it is evident that these witnesses are mistaken with reference to the year in which they transacted business with him. The jury having found that he was insane on April 11, 1912, the presumption is, in the absence of proof to the contrary, that such condition continued. Mitchell v. Inman, 156 S. W. 290. The question of subsequent ratification or affirmance by Hodges is not raised either by the pleadings of appellant or evidence, and the court did not err in refusing to submit the special issues to the jury.

By the fourth assignment appellant insists that the court erred in refusing to submit to the jury the third special issue requested by plaintiff and defendant Rowan, as follows:

“Did W. R. Hodges or defendant M. J. Hodges use any of the proceeds derived from the sale of the goods received as consideration for the execution of the deed for the benefit of their community estate?”

Under this assignment it is insisted that a voidable contract can be annulled only by returning, or at least offering to return, the consideration received by the party seeding to avoid the same. The burden of pleading and proving the amount, if any, expended by appellee for necessaries, rested upon appellant. Brown et al. v. Brenner et al., 161 S. W. 14. The issue, if raised at all, is by the pleadings of Mrs. Hodges, by this allegation:

“That none of the consideration for said land from said Rowan went for necessaries of said W. R. Hodges.”

She admitted that she expended part-of the proceeds of the goods which were received by Hodges in exchange for the property in controversy for rent of a house used by herself and minor children; but the proof fails to show the amount so expended. There being no proof upon this issue, from which the jury could determine the amount, the court could not have properly submitted it.

The fifth assignment directly raises the question as to the right of Mrs. Hodges to recover without first tendering the consideration received by her husband for the home. It is held in Hancock v. Haile, 171 S. W. 1053, that an offer in the pleadings to allow a credit upon her demand equal to the reasonable value of the necessaries furnished rendered an actual tender of money in such amount unnecessary. There was no exception to appellee’s pleadings upon this ground, and since the evidence failed to show the value of any necessaries this assignment is without merit.

The record Contains no reversible error, and the judgment is affirmed.
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author: KEY, O. T.

text:
    MOORE v. COMMISSIONERS’ COURT OF BELL COUNTY et al.
    (No. 5453.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 10, 1915.
    Rehearing Denied April 15, 1915.)
    1.Highways <&wkey;90 — Road Districts — Territory — Constitutional and Statutory Provisions.
    Const. art. 3, § 52, as amended in 1904, empowers the Legislature to authorize any county, any number of adjoining counties, or any political subdivision of the state or a county, “or any defined district now or hereafter to be described” by a majority vote of its resident property tax payers, to issue bonds or lend its credit for the construction and operation of roads, which territory may include municipal corporations, and Rev. St. art. 627, giving to such districts the same powers, and other articles thereof relating to the election, and to the issuance and sale of bonds, were not intended to be limited to political subdivisions either then in existence or to be subsequently created by the Legislature ; but such political' subdivisions might for the first time be created by the action of the commissioners’ court in ordering an election-in a particular territory.
    [Ed. Note — For other cases, see Highways,. Cent. Dig. §§ 301, 302; Dec. Dig. &wkey;90J
    2. Statutes <&wkey;206 — Construction—Giving Effect to All Parts.
    All the language of a statute must be given effect, if it is possible to do so.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 283; Dec. Dig. <i&wkey;206.]
    3. Highways <&wkey;90 —Road Districts — Indebtedness — Statutes.
    Under Const, art. 3, § 52, as amended in. 1904, declaring that the total indebtedness of any city shall never exceed the limits imposed by other constitutional provisions, the issuance of bonds of a road district, including a city which had already created an indebtedness and, issued bonds to the amount permitted by the Constitution, did not increase the bonded or other indebtedness of the city, as it and the district were separate municipalities, and, the provisions not prohibiting the placing of an additional burden by taxation upon property located within a city which has already reached its constitutional limit of indebtedness, but only prohibiting bonded indebtedness of the municipality beyond a certain limit, such municipal indebtedness did not render the road district’s issuance-of bonds void.
    [Ed. Note. — For other cases, see Highways,. Cent. Dig. §§ 301, 302; Dec. Dig. &wkey;>90.]
    4. Highways <&wkey;90 — Road Districts — Bonds —Time.
    Under Rev. St. art. 632, providing that the bonds of a road district shall run not less than 20 nor more than 40 years, with such option of redemption as may be fixed by the commissioners’ court, the court’s fixing of 40 years as the-date of maturity of the district bonds, reserving the option to redeem some of them before the expiration of 20 years, was valid, since the option, did not relate merely to such time as might intervene after the expiration of 20 years and the time fixed for the maturity of the bonds.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 301, 302; Dec. Dig. <§=>90.]
    5. Highways <&wkey;90 — Road Districts — Bonds-—Interest.
    •Under Rev. St. arts. 627-641, not requiring the order providing for an election on an. issuance of bonds by a road district to state when interest thereon shall be payable, and providing that the bonds shall bear not more than 5% per cent., and article 633, making the general laws relating to county bonds applicable, and article 612, declaring that interest on county bonds may, in the discretion of'the commissioners’ court, be payable semiannually, the issuance of bonds of a road district bearing interest at 5 per cent, payable semiannually was valid, although the order of the commissioners’ court under which the election was held stated, that the vote was to be on the issuance of bonds bearing interest at 5 per cent, per annum.
    [Ed. Note. — For other eases, see Highways, Cent. Dig. §§ 301, 302; Dec. Dig. <&wkey;>90.]
    Appeal from District -Court, Bell County; John D. Robinson, Judge.
    Action by T. T. Moore against the Commissioners’ Court of Bell County and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    A. W. Gibson, of Rogers, and Morrison Lewis, of Cameron, for appellant. Lewis H Jones, of Rogers, and W. O. Cox, of Temple for appellees.
   KEY, O. T.

T. T. Moore instituted an injunction suit, by wiiicii lie sought to restrain the commissioners’ court of Bell county from selling certain bonds which had been issued, and which he alleged were about to be sold by that court for road district No. 10 of Bell county; and he also sought to restrain the tax collector from collecting the taxes levied to pay interest and create a sinking fund for the redemption of the bonds. The district judge granted a temporary restraining order to remain in force until the 31st day of August, 1914, at which time the case was set for further hearing. The defendants filed an answer, but we do not deem it necessary to set out in full the pleadings of either party, and content ourselves with saying that the questions of law hereafter discussed were and are presented by the pleadings. At the' time set there was a further hearing, as a result of which the trial court held that the plaintiff was not entitled to injunctive or other relief, and he has appealed.

The validity of the bonds and the levy of the taxes were assailed on the following grounds, as stated in appellant’s brief.

“(1) That there is no provision of law conferring authority on the commissioners’ court of a county to create a road district or corporation out of territory less than an already existing' political subdivision of the county, and that therefore the attempted creation of such district is void.
“(2) That even if the authority can be found in the commissioners’ court by implication to create such a district, yet that the provisions of the statutes embraced in articles 627 to 641 are obnoxious to section 19 of the -Bill of Rights of the Constitution of Texas, and section 1 of the fourteenth amendment of the Constitution of the United States, in that and because the method providing for the creation of said road district by the statutes mentioned are of such character as to take the appellant’s property by taxation, without due process of law, and to deny him the equal protection of the law, for the reason that it is sought thereby to create a corporation with the power of taxation, and there is a total failure to provide for a hearing by appellant or any other person interested in the creation of said district, and that there is no provision by which an interested person can be heard or allowed to state his objections to the creation of such district, and that the methods employed are too vague, indefinite, and uncertain to constitute due process of law.
“(3) That the field notes of the district are too vague, indefinite, and uncertain to close or define the territorial limits of a corporation with power to levy and collect taxes.
“(4) That the levy and collection o'f 75 cents taxes on the $100 valuation of property is excessive and unconstitutional as applied to the appellant, for the reason that in said purported road district, and entirely surrounded by the territory thereof, is situated the incorporated city of Rogers, which is a city of less than 5,000 inhabitants incorporated under the general laws of the state, and that said city before the issuance of said road bonds had issued and sold waterworks bonds of said city in the sum of $14,000, and had levied taxes to the full constitutional amount of 25 cents on the $100 valuation of all property in said city to pay the interest and create a sinking fund for the redemption of said bonds, and in addition thereto had also levied the full constitutional limit of 15 cents on the $100 valuation on the property of said city for streets and bridges; and for those reasons is it contended that the territory comprising the city had no authority to ‘lend its credit’ in the issuance of the road bonds, for the reason that its ‘total bonded indebtedness’ and rate of taxation were thereby made to exceed the limits provided by the Constitution.
“(5) That in the order of the commissioners’ court calling the election, and in the notices, and in the publication of said election, it was provided and stated that the issue of bonds to be voted on in said election should bear interest at the rate of 5 per cent, per annum and mature 40 years from date, but that the bonds had not been issued in accordance with such order and notices of election, and that said order and notices of election had been violated for the reason that the bonds had been issued bearing interest at 5 per cent., payable semiannually, and that they should mature annually every year from 1915 to the end of the 40 years.”

All of the foregoing questions have been ably presented in this court by counsel for appellant, maintaining the affirmative, and by counsel for appellees, maintaining the negative. Each, of these questions have received careful consideration at the hands of this court, and our conclusion is that the trial court ruled correctly when it decided the points referred to against appellant’s contention, and some of the reasons for that conclusion will now be stated.

In 1904, section 52, title 3, of the Constitution of this state, was so amended as to confer power upon the Legislature to authorize any county, any political subdivision of the county, any number of adjoining counties, or any political subdivision of the state, “or any defined district now or hereafter to be described and defined within the state of-Texas,” in addition to all other debts, by a vote of two-thirds majority of the resident property tax-paying voters, to issue bonds or otherwise lend its credit in any amount, not to exceed one-fourth of the assessed valuation of the real property of such district or territory, for certain designated purposes, one of which is the construction, maintenance, and operation of roads and turnpikes, or in aid thereof. It is specifically stated in that article that the territory which might be authorized by the Legislature to issue bonds, etc., “may or may not include towns, villages or municipal corporations”; and it is also therein stated that the total bonded indebtedness of any city or town shall never exceed the limits imposed by other provisions of the Oonstitution. Acting under that constitutional provision, in 1909 the Legislature passed the road law, which now comprises articles 627 to 641, inclusive, of the present Revised Statutes. Article 627 reads as follows:

“Power to Issue Road, etc., Bonds and Levy Tax for Interest and Sinking Fund. Any county in this state, or any political subdivision or defined district, now or hereafter to be described and defined, of a county, is hereby authorized and empowered to issue bonds, or otherwise lend its credit, in any amount not to exceed one-fourth of the assessed valuation of the real property of such county, or political subdivision, or defined district thereof, and to levy and collect such taxes to pay the interest upon such bonds and provide a sinking fund for the redemption thereof, for the purpose of constructing and maintaining and operating macadamized, graveled or paved roads and turnpikes, or in aid thereof.”

The other articles relating to that subject cover all the details necessary for the election and the' issuahce and sale of the bonds. It was under that law that the commissioners’ court of Bell county was proceeding when this suit was instituted. The main question in this case, and the. point which seems to be urged with greatest confidence by appellant, involves the 'construction to be placed upon the language of the Constitution, and also the statute, which reads, “or any defined district now or hereafter to be described and defined.” Counsel for appellant contend that while that language in the Constitution may authorize the Legislature to create and define additional districts itself, or may authorize it to prescribe the mode and manner in which such districts may be created by the commissioners’ court, before any action is taken looking to the issuance of bonds therein, that it does not confer power upon the Legislature to authorize the issuance of bonds in territory that has not been defined as a district, until it is so done in the order of the commissioners’ court providing for the election to determine ■whether or not the bonds shall be issued. In other words, the contention is that the language quoted was intended to prescribe and be limited to political subdivisions either then in existence or to be subsequently created by the Legislature, or under its authority, and that such political subdivisions cannot for the first time be created by the action of the commissioners’ court in ordering an election in a particular territory. We are unable to sanction that contention. In the first place it violates a cardinal rule of construction, which requires all the language of a written instrument'to be given effect, if it is possible to do so, because that which preceded the language under consideration covered every political subdivision, both state and county, which then existed or might thereafter be created, and therefore it was not necessary to use any further language in reference to such territory, and if the language “or any defined territory,” etc., can be given any other meaning it should be so construed. We are of opinion that, in using the language referred to in amending the Constitution, it was the intention of those who framed the amendment, and of the people who adopted it, to authorize the Legislature to bring the government closer to the people, in order that the latter might have the right, if they saw proper, to place an additional tax upon themselves for certain designated. purposes,- and in order to place its benefits within the reach of all, after specifically designating the political subdivisions of the state and its several counties, the language referred to was added, so that the people in any territory which might not be embraced in those specified could have the benefits of the law.

In using that language in the statute, no doubt the Legislature was aware of the fact that whenever it was sought to obtain its benefits, in order to accomplish that result it would be necessary for a petition to be presented to the commissioners’ court, describing and defining the proposed territory, and it would also be necessary for that court, in ordering the election', to give the same description that was given in the petition. Now, when that has been done, then the district. has been described and defined -by the commissioners’ court by an order entered upon its minutes; and it is probable that in enacting the statute the Legislature intended that the district should' be so defined and described by the commissioners’ court. Neither the Constitution nor the Legislature designated the mode and manner by which other districts should be described and defined; and when the Legislature passed the law, making it the duty of the commissioners’ court, upon proper application, to order an election to be held in “any defined district now or hereafter to be described and defined,” and did not designate any other officer or person to describe and define it, it seems reasonable to conclude, and we hold, that it was intended that the .commissioners’ court should do so. That is the course that was pursued in this case, and we think it was authorized by the statute referred to, and therefore was legal.

The proof shows that road district No. 10 includes the city of Rogers, containing less than 5,000 inhabitants, incorporated under the general laws of the state, and that before the issuance of the bonds here involved that municipality had created indebtedness and issued bonds' to the full extent permitted by the Constitution, and therefore it is contended by appellant that that provision of the Constitution which is incorporated in the section authorizing the issuance of bonds, and which declares that “the total indebtedness of any city or town shall never exceed the limits imposed by other provisions of this Constitution,” renders the proceeding here involved unconstitutional and void. The answer to that contention is that the matters here complained of do not increase the bonded indebtedness, or any other indebtedness, of the city of Rogers. The constitutional provision referred to does not prohibit the placing of an additional burden by taxation upon property located within a town or city which has already reached its constitutional limits of bonded indebtedness, but it prohibits bonded indebtedness of the municipality beyond a certain limit. In other words, the county government and city or town government are separate and distinct legal entities, and while each ma.y embrace a particular territory, yet they are separate and distinct, and the imposition of a tax by one does not increase the indebtedness of the other. That subject is dealt with and the distinction .referred to clearly shown by Mr. Justice Dibrell in the opinion of the Supreme Court in Simmons v. Lightfoot, 105 Tex. 212, 146 S. W. 872, a case which involved the statute under which the commissioners’ court acted in this case; and while it does not appear that the constitutional questions that are urged in this case were presented or considered in that case, still that decision is at least persuasive authority upon some of the questions involved in this case.

Going back to the immediate question under consideration, we cite in support of our holding Campbell v. City of Indianapolis, 155 Ind. 186, 57 N. E. 920; Board v. Harrell, 147 Ind. 500, 46 N. E. 124; Kennebec Water District v. City of Waterville, 96 Me. 234, 52 Atl. 774; Ex parte City of Newport, 141 Ky. 329, 132 S. W. 580, 37 L. R. A. (N. S.) 1034, Ann. Cas. 1912C, 447; Wilson v. Sanitary District, 133 Ill. 443, 27 N. E. 203; Irwin v. Lowe, 89 Ind. 540. All these authorities tend to support the proposition that while the city of Rogers is an integral part of road district No. 10, still, as they are separate and distinct corporations, having separate and distinct powers and privileges, the indebtedness of one is not the indebtedness of the other. In Ex parte City of Newport, supra, the Court of Appeals of Kentucky copies with approval the following statement of the law:

“Where two or more municipal corporations or political bodies are wholly or partly coincident in territory, they are nevertheless regarded as separate bodies for the purposes of constitutional debt limitations, unless the contrary is expressed in the Constitution. In reckoning the indebtedness of a county, the indebtedness of a city within its borders is not to be considered ; in reckoning the indebtedness of a city, the debt of an independent school district wholly or partly in the city limits is not to be considered; and vice versa.”

It is also contended by appellant that the bonds in question are illegal because of the failure to comply with article 632 of the Revised Statutes, which in part reads thus:

“Such bonds shall run not' less than twenty nor more than forty years, with such option of redemption as may be fixed by the commissioners’ court.”

The commissioners’ court fixed 40 years as the date of maturity of the bonds, but reserved an option by which the county could redeem some of them before the expiration of 20 years, and this is the point of appellant’s complaint. In other words, the contention is that the provision of the statute declaring that the bonds shall run not less than 20 years is mandatory, and that the option conferred upon the county merely relates to such time as may intervene after the expiration of 20 years and the time fixed for the maturity of the bonds. While at first blush there may be some plausibility in that contention, we do not think fit will stand the acid test of reason. Eor instance, suppose the commissioners’ court should fix 20 years as the time for bonds to mature, then, according to appellant’s contention, the court would have no power to fix an earlier date for the redemption of any of them. The language of the statute “with such option of redemption as may be fixed by the commissioners’ court,” is just as much a part of the statute as that portion of it which declares that the bonds shall run for not less than 20 years. Without the language conferring the option, the bonds would be compelled to run at least 20 years, and the commissioners’ court would have the power to extend the date of maturity to 40 years, and would have no option of redemption. But the Legislature saw proper to confer an option of redemption upon the commissioners’ court, and instead of sayiñg that the option should be in any wise limited the Legislature said that it should be such as may be fixed by the commissioners’ court. That language is as broad as it could well have been made, and when given its ordinary and usual signification it covers the entire period of .time embraced in the life of the bonds. The meaning of the language “run not less than twenty years” is by no means as clear and certain as the language “such option of redemption,” etc. There is no ambiguity about the meaning of the word “such” in the connection in which it is used. It conveys the idea and expresses the thought of unlimited power as to the exercise of the right therein conferred. But the meaning of the word “run,” as used in this statute, is by no means as obvious and clear; and by holding that it means that the bonds shall be so written as that payment cannot be lawfully demanded until the expiration of 20 years, and was not intended as a limitation upon the power of the commissioners’ court in fixing the option of redemption, then the option clause can be held, as its language imports, to apply to the entire time, thereby giving harmonious effect to every word of the statute. Therefore we place that construction upon it, and hold that the bonds comply with the law in that regard.

The bonds bear interest at the rate of 5 per cent, per annum, payable semiannually, while the order of the commissioners’ court under which the election was held stated that the question to be voted on was the issuance of bonds, amounting to 8250,000 bearing interest at the rate of 5 per cent, per annum, and maturing 40 years from the date thereof. The order referred to was silent as to the time when the interest was to be paid, and as to the right of redemption; and for these reasons it is contended on behalf of appellant that the bonds were illegal, because they are not in compliance with the order of the commissioners’ court. The statute does not require the order providing for the election to state the time when interest shall be payable; nor does it require such order to show what option of redemption will be reserved by the county; and the same may be said as to the article of the statute requiring notice of the election. The law provides that the bonds shall bear not more than 5y2 per cent, interest per annum. The bonds in this case, as said above, bear interest at the rate of 5 per cent, per annum, payable semi-annually, wbicb is less, tban 514 per cent, payable annually. Furthermore, it is provided by article 633 of this statute that tbe general laws relating to county bonds, not in conflict with tbe act referred to, shall apply to the issuance and payment of the bonds then under consideration by the Legislature; and article 612, B. S., which has been in force since 1893, and relates to county and municipal bonds, declares that interest upon county bonds may, in the discretion of the commissioners’ court, be made payable semiannually. Hence we hold in the ease at bar that, as the act of 1909 contains no provision m conflict with article 612, the latter article authorized the commissioners’ court to make the interest payable semiannually.

We also overrule appellant’s contention that the order of the commissioners’ court does not sufficiently describe the territory, and hold that the record shows substantial compliance with all the requirements of the law, and that the trial court ruled correctly when it held that the bonds are valid and refused to restrain the commissioners’ court from selling them; and therefore the action and judgment of that court is affirmed.

Affirmed.
      dS=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes