text:
    FRETWELL v. POLLARD et al.
    (No. 1848.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 30, 1917.
    On Motion for Rehearing, Dec. 20, 1917.)
    1. Appeal and Error <@=1078(4) — Brief-Matters Reviewable — Sufficiency of Evidence.
    Where the assignments in appellant’s brief do not challenge the sufficiency of the evidence to support the verdict, the Court of Civil Appeals is not called upon to do so by the oral argument of the parties on such question when the cause was submitted.
    2. Appeal and Error <@=882(8) — Harmless Error — Admission of Evidence.
    Where an abstract of title in its entirety was introduced in evidence by a party in trespass to try title, he cannot complain of the introduction of a part thereof by the other party.
    3. Evidence <@=219(1) — Title—Payment of Taxes — Admissibility.
    Proof that one did not render land for taxes after a certain time was admissible as a circumstance to show that the land was conveyed under a certain instrument.
    4 Appeal and Error <8=204(1D — Master, Reviewable — Evidence — Necessity for Objection.
    Complaint cannot be made of admission of evidence not objected to.
    5. Trial <3=352(1) — Questions to Jury — Weight of Evidence — Legality of Evidence.
    A question to the jury, “Do you find that the evidence showed by a preponderance thereof that on the 12th day of December, 1877, I. M. Ball and B. T. Estes conveyed to J. D. Mason 640 acres of land out of the C. M. Akin headlight survey, containing 2,637 acres, being patent 895, and abstract No. 1, and situated on the line of Bowie and Red River counties, being the 640 acres of which the 440 acres in controversy is a part,” was not on the weight of the .evidence, or as delegating to the jury the right to pass on the legality of evidence; the question being as to the identity of land conveyed. •
    On Motion for Rehearing.
    6. Appeal and Error (@=3262(2) — Matters Reviewable — Exceptions—Necessity for.
    Refusal of a motion for a directed verdict, if it could be treated as a requested special charge, is not ground for complaint where no exception was taken to the ruling.
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Trespass to try title by R. H. Fretwell against S. R. Pollard and others. Judgment for defendants, and plaintiff appeals. Affirmed.
    Motion for rehearing overruled.
    Appellant was the plaintiff in the court below. His suit was against appellees W. B. Munson, J. T. Munson, and S. R. Pollard, to try the title to 440 acres of the C. M. Akin survey of 2,637 acres in Bowie county. It appeared from the testimony that I. M. Ball and B. T. E'stes owned the land on December 12, 1877, that said Ball died testate in 1893, and that said Estes died testate in 1902, and that appellant had acquired such title, and only such title, as said Ball and said Estes respectively owned each at the date of his death. The contention of appellees was that Ball and Estes, on said December 12, 1877, had conveyed the land to one J. D. Mason (whose title they had), and therefore that neither said Ball nor said Estes had any title to or interest in the land at the date of his death. It further appearing that ap-pellees had the title to the land, if their contention should be sustained, the court submitted to the jury an issue as to whether said Ball and said Estes conveyed the land to said Mason on said December 12, 1877, or not, and the jury, having answered that they did, rendered judgment that appellant take nothing by his suit; whereupon he prosecuted this appeal.
    J. B. Manning, of New Boston, for appellant. P. A. Turner, E. A. Smitha, T. N. Graham, and J. Q. Mahaffey, all of Tex-arkana, for appellees.
   WILLSON, C. J.

(after stating the facts as above). The sufficiency of the evidence to support the finding of the jury and judgment of the court is not challenged by any of the assignments in appellant’s brief. Those assignments, except one of them in which complaint is made of the form of the question submitted to the jury, all relate to the action of the court in overruling objections made by appellant to the admission of testimony offered by appellees. This court, therefore if it might do so, is not called upon to review the evidence and determine the question as to its sufficiency presented by the oral argument of the parties when the cause was submitted. Rules 24 and 29 for Courts of Civil Appeals (142 S. W. xii); Vernon’s Statutes, art. 1612.

It appeared that a survey containing 1,968 acres of land, situated east of Boston, in Bowie county, was patented to C. M. Akin in 1844, and another survey, containing 2,637 acres, situated west of Boston, in said county, was patented to said Akin in 1855. The records of Bowie county were destroyed in January, 1889. Before they were destroyed the Texarkana Abstract Company made abstracts of deeds recorded therein affecting the title to said surveys and parts thereof. At the trial it was agreed between the parties that said abstract company had complied with the provisions of article 3703, Vernon’s Statutes, and that the abstracts made by it of deeds, etc,, affecting the title to the 440 acres of the 2,637 acres survey in controversy should be admitted as evidence, and as ‘‘prima facie true,” subject to such objections as might ‘‘apply to the original instruments referred to by such abstracts.” It appeared from the abstracts that on December 12, 1877, I. M. Ball and B. T. Estes owned a tract of 640 acres in the 2,637-aere survey and a tract of 640 acres in the 1,968-acre survey, and that said Ball and said Estes by their deed of that date conveyed to one J. D. Mason land described in said deed, according to the abstract thereof, as follows:

“All our interest in 640 acres of the H. R. S. of O. M. Akin. Reference to deed from G. M. Akin to L. M. Rice and H. D. Mason.”

This abstract, except the second of the two sentences thereof quoted above, was offered in evidence by appellees and admitted by the court over appellant’s objection thereto on the ground that the land described in'it was not the land in controversy, but was land in the Akin 1,968-acre survey. The action of the court in admitting the abstract indicated is the basis of appellant’s first assignment of error. As it appears from the record that after said abstract, with the exception stated, was admitted over his objection, appellant himself offered and the court admitted the whole of the abstract as evidence in his (appellant’s) behalf, it is not necessary to determine whether the part offered by appellees was admissible in their behalf or not. If it was not, appellant could not be heard to complain of the error in admitting it after he himself introduced the entire abstract in evidence. Eastland v. Maney, 81 S. W. 574, 36 Tex. Civ. App. 147; Canal Co. v. Miller, 40 Tex. Civ. App. 460, 90 S. W. 206.

Appellees claimed that the reference in the abstract of the deed from Ball and Estes to J. D. Mason to a deed from Akin to L. M. Rice and H. D. Mason, which was made in 1846, and conveyed 640 acres in the Akin 1,968-acre survey, was a mistake of the compiler of the abstract, and that the reference should have been, instead, to a deed from said Akin to L. M. Rice alone, made in 1859, which conveyed the 640 acres in the 2,637-acre survey. They undertook to prove their contention by circumstances and to show that the land Ball and Estes in fact conveyed to J. D. Mason by their'deed of December 12, 1877, was the 640 acres, including the 440 acres in controversy, in said Akin 2,637-acre survey.

As a circumstance tending to support their contention, appellees offered, and the court over appellant’s objection, on the ground that it was irrelevant and immaterial and liable to mislead the jury, permitted appellees to prove that after 1877 neither Ball nor Estes rendered any of the land in controversy for taxes. When it is remembered that “a conveyance of land may be established by circumstantial evidence” (Gaines, C. J., in Thompson v. Dutton, 71 S. W. 544, 96 Tex. 205), we think it is plain that, while.the testimony may have been inadmissible because a proper predicate for its admission had not been laid (Bounds v. Little, 75 Tex. 316, 12 S. W. 1109), it was not subject to the objection urged to it (Walker v. Pittman, 18 Tex. Civ. App. 519, 46 S. W. 117; Herndon v. Burnett, 21 Tex. Civ. App. 25, 50 S. W. 581; Lumber Co. v. Gwin, 52 S. W. 110; Lumber co. v. Bonner, 56 Tex. Civ. App. 208, 120 S. W. 577; McMahon v. McDonald, 51 Tex. Civ. App. 613, 113 S. W. 322; Surghenor v. Ducey, 139 S. W. 23).

Therefore the second assignment is overruled, as is the third, for the same reason, and also because it does not appear from anything in the record that the testimony of the witnesses S. O. Ball and W. L. Estes was objected to when same was offered by appel-lees.

The question submitted by the court to the jury was as follows:

“Do you find that the evidence showed by a preponderance thereof that on the 12th day of December, 1877, I. M. Ball and B. T. Estes conveyed to J. D. Mason 640 acres of land out of the C. M. Akin headlight survey, containing' 2,637 'acres, being patent S95 and abstract No. 1, and situated on the line of Bowie and Red River counties, being the 640 acres of which the 440 acres in controversy is a part?”

Appellant insists that the question was on the weight of the evidence, in that ’ “the court assumed that the land described in the deed from O. M. Akin to L. M. Rice and H. D. Mason was a part of the O. M. Akin west survey, patent No. 895,” and was further objectionable because “it delegated to the jury the right to pass upon the legality of the evidence.” It is clear, we think, that the question is not subject to either of the objections urged to it.

Appellant having failed to show error requiring a reversal of the judgment, it is affirmed.

On Motion for Rehearing.

In his motion appellant insists that he did in his assignments question the sufficiency of the evidence to support the judgment, and that the statement to the contrary in the opinion of this court is erroneous. Carefully re-reading his brief, we find that appellant complains in one of the assignments of the action of the court in refusing to give to the jury a special charge he says he requested instructing them to find in his favor. It does not appear from the record that he prepared and presented such a charge to the trial court with a request that he give it, but it does appear that he filed a motion in which he prayed the court to direct the jury to return a verdict in his favor. If this motion should he treated as a requested special charge, appellant is not in a position to complain here of the action of the court in refusing it, because it does not appear from the record that he excepted to such action of the court. Article 2061, Vernon’s Statutes.

Appellant further insists that he offered the abstract of the deed from Ball and Estes to Mason in evidence to prove common source only, and that this court therefore erred in holding that he could not be heard to complain because the trial court over his objection permitted appellees to introduce said abstract as evidence on their behalf, whether, if appellant had offered the abstract as evidence of common source only, the court should have sustained his objection to it when appellees offered it as evidence, need not be determined; for it does not appear from the record sent to this court that he offered the abstract for the purpose of proving common source only.

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

      iSr^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    AMERICAN NAT. INS. CO. v. BLALOCK.
    (No. 1881.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 21, 1917.
    Rehearing Denied Jan. 3, 1918.)
    Insurance (§=3602 — Action — Attorney’s Fees.
    In action for $165, unpaid portion of insurance policy, with 12 per cent, damages and reasonable attorney’s fees, allowance by trial court of $100 attorney’s fees was excessive by the sum of $50.
    Appeal from Bowie County Court; J. B. Lytal, Judge.
    Action 'by Henry Blalock against the American National Insurance Company. ' From judgment for plaintiff, defendant appeals.
    Affirmed on condition.
    W. H. Arnold, Jr., of Texarkana, for appellant. Wheeler & Wheeler, of Texarkana, for appellee.
   HODGES, J.

This is an appeal from a judgment in favor of the appellee for the unpaid portion of an insurance policy. The important question of law involved lias already been determined by tbis court in American National Insurance Co. v. Hawkins, 189 S. W. 330. It is unnecessary to repeat wbat is there said.

The suit was for only $165, with 12 per cent, damages and reasonable attorney’s fees. The trial court allowed $100 as attorney’s fees. This amount we think is excessive. If the appellee will file in this court within ten days a remittitur of $50, the judgment will be affirmed; otherwise it will be reversed and remanded.
      itewPor other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. FREEMAN.
    (No. 1876.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 21, 1917.
    Rehearing Denied Jan. 3, 1918.)
    1. Insurance <@=5791(1) — Fraternal Benefit Society — Suicide.
    A fraternal benefit society policy for $1,000 provided that “omsatisfaetory proof of total and permanent disability” the insured should receive the value of the policy at that time in ten equal annual installments, and, should death intervene, the installments should be completed to the beneficiary, and in the event of self-destruction there should be paid only one-fifth the amount payable in case of natural death. Held, where insured suicided before proof of incurable insanity had been furnished the society, and before it had paid anything on account thereof, the beneficiary’s right to recover was predicable, not on disability, but only on insured’s death; and, death being due to suicide, she could recover only $200.
    2. Appeal and Error <@=1151(2) — Reforming Judgment.
    Where appellee beneficiary suing fraternal benefit society was not entitled to recover on her pleadings, the appellate court could look to appellant’s pleadings, which conceded a smaller sum due appellee on another theory, and reform the judgment to adjudge appellee’s recovery of the smaller sum.
    3. Appeal and Error <@=1152 — Reforming Judgment — Costs.
    It appearing that before trial appellant tendered appellee a smaller sum than sued for, the appellate court, in reforming judgment for ap-pellee to reduce it to such smaller sum, could further reform the judgment to adjudge against appellee costs accruing in the trial court after such tender.
    Appeal from Titus County Court; J. W. Tabb, Judge.
    Action by Mrs. Ruthie P. Freeman against the Eminent Household of Columbian Woodmen. From judgment for plaintiff, defendant appeals.
    Reformed and affirmed.
    Appellant was a fraternal benefit society. By a contract dated October 21, 1908, it bound itself, on satisfactory proof being made of the death of R. J. Freeman while in good standing as a member of the society, on conditions specified, to pay $1,000 to his wife, appellee here. The contract contained such stipulations as follows:
    “On satisfactory proof of total and permanent disability at any age, this guest shall receive the value of this covenant at the time of such disability, in ten equal annual installments. Old age shall be a cause of disability after 70. Should death intervene, the installments shall be completed to beneficiary.
    “In the event of loss of two oyes, or two limbs at or above the ankle or wrist, or one limb and one eye, or for incurable insanity, this guest shall receive the same benefits as above provided for total permanent disability.
    “In the event of loss of one arm, one foot, or total and permanent loss of one eye, this guest shall receive one-half the value of this covenant at the time of such loss, in five annual installments, and shall further have the option to continue this covenant in force till death, in which case the additional half of the same will be paid in further accumulation. Should death intervene the installment^ shall also be completed to beneficiary.
    “This covenant shall not be contested for suicide, but there shall be due and payable, in event of self-destruction, only one-fifth of the amount of benefits which would have been payable in event of death by natural cause, provided, however, that in no case shall the benefits in case of suicide exceed five hundred dollars.”
    R. J. Fteeman died September 3, 1915. This suit was commenced by appellee April 26, 1916. In her petition, after alleging that appellant issued “a certain certificate” whereby it agreed to pay her $1,000 at the death of said R. J. Freeman, appellee alleged:
    That “the said certificate further provides that defendant shall be liable to R. J. Freeman in the event he (R. J. Freeman) became permanently disabled, for the full amount of the said certificate, which is $1,000; that R. J. Freeman be-camg permanently disabled several months before his death, and was afflicted with an incurable malady that resulted in his permanent disability. Said certificate provides that said amount shall be payable in ten annual installments unless death intervene between the happening of the permanent •■■disability, and then whatever remained unpaid shall be payable to the beneficiary, who is this plaintiff. Plaintiff says that no payment was ever made to R. J. Freeman of any part of the amount named in this certificate to R. J. Freeman prior to his death, and that she is entitled to receive the full sum of $1,000 from defendant because of the permanent disability to R. J. Freeman prior to his death and because of his death after having become permanently disabled.”
    In its answer appellant alleged that said R. J. Freeman suicided, and that for that reason, and others which need not be here specified, it was liable to appellee in the sum of only $200, which, it alleged, it tendered to her before she commenced the suit, and which it still tendered to her.
    The trial was to the court without a jury. Finding as a fact that R. J. Freeman “became sick in the year 1914, and in the month of June, 1915, became incurably insane and totally disabled,” the court concluded as a matter of law that appellee was entitled to recover of appellant $1,000, and rendered judgment accordingly.
    L. E. Keeney, of Texarkana, for appellant. Seb F. Caldwell, of Mt. Pleasant, for appel-lee.
   WILLSON, C. J.

(after stating the facts as above). Having found that the insured, because of incurable insanity, became permanently disabled before be died, tbe trial court concluded tbat appellee was entitled to recover $1,000 of appellant, notwithstanding proof of such disability was not furnished, and appellant did not pay anything on account thereof during the lifetime of the insured.

In reaching that conclusion the court must have ignored provisions in the contract which operated, we think, to deprive appel-lee of a right to recover anything on account of disability of the insured, and a provision therein that “in no case,” quoting, “shall the benefits in case of suicide exceed $500.”

No reason is apparent why those provisions should be ignored. It is plain that the contract can be so construed as to give effect to all its provisions; and, as it can, it ought to be so construed and the rights of the parties determined with reference to such construction.

Effect is given to every provision in the contract, if it is construed to mean: (1) That the insured, if he became permanently disabled on furnishing satisfactory proof of the fact to appellant, was to be paid $1,000 in ten equal annual installments. If he died before all the installments were paid, those remaining unpaid were to be paid to appellee, unless his death was due to suicide, in which event, if appellant had paid to the insured as much as $500, appellee was not to be paid anything, but, if it had paid him less than $500, payment of the installments was to continue to her until appellant had paid to the insured and appellee together $500; (2) that if the insured became permanently disabled and died from other causes than suicide before making proof of such disability and receiving a payment from appellant on account thereof, appellee was not to be paid anything on account of his disability, but was to be paid $1,000 on account of his death; if he suicided, she was to receive only $200; (3) that the insured, if he lost an arm, foot, or eye, was to be paid $500 in five equal annual installments, and was to have a right to have the contract continued in force until he died, in which event, if the five installments were not paid to him before he died, those remaining unpaid were to be paid to appellee, and $500 in addition thereto, unless his death was due to suicide, in which event appellee was not to be paid anything on account of his death.

It is obvious, if the contract should be so construed, and we think it must be, that, the insured having suicided before proof of his disability had been furnished to appellant, and before it had paid anything on account thereof, appellee’s right to recover anything of appellant was not predicable on such disability, but was predicable alone on the death of the insured, and that, as his death was due to suicide, she was entitled to recover only $200. It is further obvious, if appel-lee’s pleadings alone could be considered as a basis for the judgment, that one in her favor for any amount could not be sustained; for she sought a recovery only on account of disability of the insured. But we have concluded that the pleadings of appellant can be looked to for that purpose, and, it appearing therefrom that appellant conceded it was liable to appellee in the sum of $200 on account of the death of the insured, that the judgment of the trial court should be here so reformed as to adjudge a recovery by her of that sum only, and, it appearing that before the trial began appellant tendered said sure to appellee, that the judgment should be further so reformed as to adjudge the cost? which accrued in the trial court after sue! tender against appellee. Therefore the judgment will be reformed accordingly, and as s*> reformed will be affirmed.
      <@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BEY'S, J. HODGES, J.

text:
    FANNIN COUNTY NAT. BANK v. GROSS.
    (No. 1856.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 7, 1917.
    Rehearing Denied Jan. 3, 1918.)
    1. Courts <@=>247(11) — Jurisdiction — “Amount in Controversy” — “Exclusive oe Interest and Costs.”
    Although a garnishment proceeding under Rev. St. 1911, art. 271, is ancillary to the maiir action yet in view of articles 274, 293, 299, it is a suit between the judgment creditor and the garnishee, in which the “amount in controversy” affecting jurisdiction is “the amount of plaintiff’s judgment, with interest and costs,” and where plaintiff’s judgment is less, but with interest called for on the face of the judgment exceeds, $100, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1589, providing the amount in controversy shall be “exclusive of interest and costs,” does not apply.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Amount in Controversy.]
    2. Garnishment <@=>203 — Third Persons — Prior Claims.
    If, in a garnishment by judgment creditor, the intervening bank owned a beneficial interest in the money before the garnishment, it could recover, since the plaintiff’s rights are not more extensive than those of defendant.
    Hodges, J., dissenting in part.
    Appeal from Fannin County Court.
    Action by J. W. Gross against T. P. Rodgers. Judgment for plaintiff, writ of garnishment issued, and the Fannin County National Bank intervened. Judgment for plaintiff against garnishees, and intervener appeals.
    Reversed and remanded.
    The appellee recovered a judgment in the justice court against T. P. Rodgers for $96.-28, with interest and costs, and he procured issuance of a writ of garnishment against Marshall & Lindsey, a copartnership. The garnishees answered that they were indebted to the defendant Rodgers in the sum of $133.-15. The appellant bank intervened in the garnishment proceeding claiming all of the $133.15 in the hands of the garnishees as its own, alleging that such money was the proceeds of certain 10 hogs sold to garnishees by Rodgers as its agent, and that before the writ of garnishment was issued Rodgers had transferred and assigned such funds to the bank. A judgment was rendered in the justice court against the garnishees in favor of the plaintiff for $105.91, and the intervener appealed to the county court. In the county court a verdict was peremptorily instructed against the intervener and judgment was entered against garnishees in favor of plaintiff for $108.80 and costs of the garnishment. The intervener appeals from the judgment.
    Cunningham & McMahon, of Bonham, for appellant. Rosser Thomas, C. A. Wheeler, and J. W. Gross, all of Bonham, for appellee.
   BEY'S, J.

(after stating the facts as above). The original judgment in the justice court in favor of the plaintiff against the defendant Rodgers was for “the sum of $96.28, with 10 per cent, interest per annum thereon from date hereof, together with the costs in this behalf expended, for all of which execution may issue.” The garnishment judgment in the justice court in favor of the plaintiff against the garnishees was for “the sum of $105.90, being the amount of the judgment now due and owing in the case of the plaintiff against the defendant Rodgers,” and the further sum of the costs of the garnishment. The garnishment judgment only was appealed from the justice court to the county court and from the county court to this court. And the question is, In determining the jurisdictional amount of appeal to this court, shall the appealable amount be determined by the amount of the garnishment judgment, or, as contended by appellees, only by the principal amount of $96.28 of the original judgment in the justice court in favor of the plaintiff against the defendant Rodgers?

It is quite true that a garnishment proceeding is incidental or ancillary to the main action against the defendant (article 271, R. S.; Simmang v. Railway Co., 102 Tex. 39, 112 S. W. 1044, 132 Am. St. Rep. 846; Holek & Co. v. Insurance Co., 63 Tex. 66; Townsend v. Fleming, 64 S. W. 1006), and that the garnishees’ liability is dependent upon the judgment rendered against the defendant (Rowlett v. Lane, 43 Tex. 274; Ins. Co. v. Seeligson, 59 Tex. 3). This, though, does not cover nor affect the question of amount in controversy on the right to appeal. In a garnishment proceeding, as a remedy given by the statute to a creditor or judgment plaintiff against a third person, the nature of the plaintiff’s demand against the garnishee is the entire judgment against the principal defendant. Eor the statute has provided (article 293, R. S.) that the judgment appropriate to the case and the complete measure of the garnishee’s liability is, when he is so indebted, “the amount of the plaintiff’s judgment against the defendant, with interest and costs.” Thus, in effect, the original judgment recovered against the defendant in turn becomes the ground and right for judgment upon it against the garnishee. So a proceeding on the judgment in garnishment becomes in a sense a suit on a judgment debt, wherein the judgment creditor is plaintiff and the garnishee is defendant (article 274, R. S.), and wherein the liability of the garnishee may be litigated (article 299, R. S.), and judgment may be- entered against the garnishee when he is indebted to the defendant. Even third persons may intervene and assert their rights. Ragsdale v. Groos, 51 S. W. 256; Turner v. Wade, 48 S. W. 542; Kelley Grain Co. v. English, 34 S. W. 651. And this judgment so entered in garnishment is so far final between the parties as to be of itself appealable. Freeman v. Miller, 51 Tex. 443; Armstrong v. Elbert, 14 Tex. Civ. App. 141, 36 S. W. 139. Thus, in effect, whore the question involves the liability of the garnishee to the extent of a judgment, as here, recovered against the defendant, the entire judgment recovered in the justice court, according to its face and tenor, is, it appears, the amount in controversy as affecting appellate jurisdiction. It was so held in Hubbard v. Vacher, 26 S. W. 921. For the claim of the plaintiff to the money as against each the defendant and the intervener is to the full extent of the terms of the plaintiff’s original judgment in the justice court. And here the entire original justice judgment made the ground for the garnishment judgment reads, “in the sum of $96.28 with 10 per cent, interest per annum thereon from date hereof, together with the costs in this behalf expended,” which aggregates more than $100. As affecting the jurisdictional amount of appeal to this court, the “amount in controvers3r,” it has been ruled, is the highest sum for which judgment may be rendered in favor of the plaintiff (Siensheimer v. Insurance Co., 157 S. W. 228), as sued for in the justice court (Railway Co. v. Cunnigan, 95 Tex. 439, 67 S. W. 888). And while the garnishment judgment embraces accrual interest on the original judgment from the date of its rendition and the costs of that suit, such accrual interest and costs are (in virtue of article 293, R. S.) a part of the demand of the plaintiff, like obtaining a new judgment on an unsatisfied original judgment. Green-Rea Co. v. Holman, 107 Tenn. 544, 64 S. W. 889; Siensheimer & Co. v. Insurance Co., supra. See Davis Bros. v. Railway Co., 73 Ark. 120, 83 S. W. 318, 3 Ann. Cas. 658. Article 1589, Vemon’s Say les’ Statutes, providing that the amount in controversy shall be “exclusive of interest and costs,” does not have application Where the new judgment against the garnishee is based on the original judgment demand of the plaintiff when interest and costs, by the terms of such original judgment, are a part of the demand. It is believed that this court has jurisdiction of the garnishment appeal in this case.

On the merits of the case error is predicated upon the action of the court in peremptorily instructing a verdict against the intervener. Upon a consideration of the evidence, in the light of the intervener’s pleading, it is believed that issues of fact arise that should have been passed to the jury for decision.

If, under the agreement in evidence between the bank and Rodgers, the bank Owned or had a beneficial interest in the money before the garnishment, it may recover. Stillson v. Stevens, 23 S. W. 322; Bank v. Convery, 8 Tex. Civ. App. 181, 27 S. W. 828; Gardner v. Bank, 54 Tex. Civ. App. 572, 118 S. W. 1146. For a creditor stands in the same attitude in relation to a garnished fund that a judgment debtor stands, and can enforce only such rights as the debtor himself might enforce.

The judgment is reversed and the cause remanded.

HODGES, J., agrees to the result on the merits, but dissents on the conclusion as to the jurisdiction of this court on appeal.

HODGES, J.

(dissenting in part). I disagree with my Associates only upon the question of jurisdiction. The essential facts upon that issue are clearly stated by Justice LEVY in the opinion of the majority. Subdivision 3 of article 1589 of the Revised Civil Statutes limits the appellate jurisdiction of this court to cases of which the county court has appellate jurisdiction when the judgment or amount in controversy or the judgment rendered shall exceed $100, exclusive of interest and costs. Since a correct judgment cannot be for more than the amount in controversy, the use of the words “or judgment rendered” appears to be surplusage. It was held by our Supreme Court in G., C. & S. F. Ry. Co. v. Cunnigan, 95 Tex. 439, 67 S. W. 888, that the expression “judgment rendered” might be construed as referring to instances where a judgment was rendered for an amount in excess of that sued for. It was also there held that the language “amount in controversy” means the sum of money or value of the thing originally sued for. The amount originally sued for in the case of Gross v. Rodgers, out of which grew this garnishment proceeding, was $96.28, exclusive of interest and costs. By the time this writ of garnishment ’was applied for the costs and the accumulated interest exceeded the sum of $100, and the fund garnished equaled the entire amount then due on the judgment. The question here presented is, AVhich of these “amounts in controversy” furnishes the true test of jurisdiction on this appeal? Evidently the test must be the same as that by which we determine the jurisdiction of the trial court, for the language of both the Constitution and the statute clearly implies that the same standards shall be applied in both instances. In the case of Simmang v. Insurance Co., 102 Tex. 39, 112 S. W. 1044, 132 Am. St. Rep. 846, the Supreme Court reviewed upon writ of error a garnishment judgment for only $341. Justice Brown, in rendering' that opinion, said:

“Defendant in error filed a motion to dismiss the writ of error because the amount in controversy is within the jurisdiction of the county court and the proceeding might have been had in that court, therefore it is claimed that this court has no jurisdiction of this case. The garnishment proceeding is not an original suit but ancillary to the judgment of the district court which was rendered in favor of Simmang against Geise, being a process for the enforcement of said judgment. Therefore, the garnishment could not have been sued out from any other court than that in which the judgment was rendered. Kelly v. Gibbs, 84 Tex. 148 [19 S. W. 380, 563]; Kreisle v. Campbell, 89 Tex. 104 [33 S. W. 852]; Townsend v. Fleming, 64 S. W. 1006.”

Since the jurisdiction of the Supreme Court over cases originating in the district court is limited to those over which the latter has exclusive jurisdiction, it follows from the language quoted above that the amount involved in the original controversy was relied upon to sustain the jurisdiction of that court. If that original suit had involved only $600, the Supreme Court could not have taken jurisdiction solely because it was an appeal from the district court. If the amount put in issue in the garnishment controversy, and not that involved 'in the original suit, supplies the true criterion, we might have the spectacle of the Supreme Court granting writs in cases falling exclusively within the jurisdiction of the county court.

Again, it is well settled that only the court that renders the original judgment can issue the writ of garnishment, and, except where the answer of the garnishee who resides in a different county is contested, that court alone has power to adjudicate the issues which arise in the garnishment proceedings. In section 16 of article 5 of the Constitution the civil jurisdiction of the county court, exclusive of probate matters, is limited to suits involving more than $200 and which do not exceed, $1,000, exclusive of interest and costs. It is easy to imagine a case in which the county court has rendered a judgment for $1,000, exclusive of interest and costs, and where a writ of garnishment has been issued for the purpose of collecting the entire amount. Let us suppose, in such an instance, that the interest and costs of the original suit make the total liability of the defendant amount to $1,250. The creditor may sue out a writ of garnishment and impound a debt or other property in the hands of a third party equal in value to the entire amount due upon the judgment — $1,250. The county court alone could issue the writ and decide the garnishment controversy, and might render a judgment for the full sum then due, regardless of the amount. If the garnishment proceedings constituted a separable controversy, within the meaning of the Constitution, where the amount in controversy must be looked to in order to ascertain the jurisdiction of the court, we should have frequent instances of a trial court taking cognizance, under statutory authority, of suits where the amount involved exceeded its constitutional limits. The fact that a third party intervenes and claims some portion or all of the fund which the creditor is endeavoring to reach does not affect the jurisdiction of the court to determine the issues involved. Instead of using an illustration where the garnishment proceedings involve more than the jurisdictional limit of the trial court, we may take one where it is less. Still the jurisdiction of the court would be equally unaffected. Article 302 of the Revised Civil Statutes is as follows:

“If the garnishee whose answer is so controverted he a resident of some other county than that in which the proceeding is pending, the plaintiff may file in any court of the county where the garnishee may reside, having jurisdiction of the judgment in the original suit, a duly certified copy of such original judgment and of the proceedings in garnishment, including the plaintiff’s application for the writ and the answer of the garnishee and the affidavit controverting the same.”

Article 303 provides for the trial in, that tribunal of the issues thus presented. Here we have a separation of the two proceedings, the original suit and the garnishment, each pending in different courts ; yet the jurisdiction of the court which may take cognizance of the garnishment contest must be determined by its power to take cognizance of the original suit. If in the latter a judgment has been rendered for exactly $200, exclusive of interest and costs, a justice court alone has power to determine the garnishment contest, notwithstanding it may involve $300. If that be true, then the same tests would logically apply when an appeal is prosecuted, for the character of the controversy is not thereby changed so as to call for a different test of jurisdiction.

A garnishment proceeding is not in fact a “suit” or a “civil ease” within the meaning •of the language used in the Constitution in fixing the jurisdiction of courts. “Civil cases” and “suits” as there used mean original actions or suits instituted by an aggrieved party in some court for the purpose of protecting or enforcing a legal right. A garnishment is exclusively an ancillary proceeding, having for its sole object the execution or enforcement of the judgment rendered in such original suit.

The confusion that seems to have arisen regarding the question of jurisdiction in •garnishment proceedings is probably due to .an apparent analogy to the statutory trial of the right of property. Writs of execution, attachment, and sequestration, like that of garnishment, are issued for the purpose of enforcing judgments for money. In the former the officer is directed to seize only the property of the party against whom the judgment has been rendered, which is ordinarily found in the possession of the defendant. The presumption being that the writ will be obeyed and levied only on property that is subject to seizure, the remaining duties necessary to collect the judgment are purely ministerial. It is only when the rights of third parties become involved that the judicial functions of the court may be invoked, and this occurs only when the officer having the writ seizes property which is claimed by some stranger to the judgment. Hence the trial of the right of property is not a necessary part of the proceedings of enforcing judgment through writs of execution, attachment or sequestration. In order to dispose of controversies arising from the seizure of property claimed by third parties, the statutory remedy of the trial of the right of property has been provided. This remedy is available only when a wrong has been committed which is sufficient in itself to justify a suit for damages against the parties responsible for the trespass. In such instances the aggrieved party may elect between two remedies, either of which will afford adequate relief. 1-Ie may submit to the wrongful seizure of the property and thereafter sue for his damages, or he may pursue the statutory remedy of trial of the right of property for recovering its possession. The latter method is as much an original suit to protect or preserve a property right as the other. It is founded upon conditions in which are present all the elements of an independent cause of action. The affidavit and bond provided for in articles 7769 and 7770 of the Revised Civil Statutes as the beginning of this special proceeding constitute the pleadings through which the complaining party presents his case in court. The amount involved is measured by the value of the property levied on, and the issue to' be determined is the right of the claimant to hold the property free from the writ. This presents a situation where the authority of the tribunal which decides the controversy must be determined by reference to appropriate constitutional provisions-conferring jurisdiction. In garnishment proceedings the essential conditions are materially different. There the writ is issued as a notice to a third party and as a means of making him, in effect, a party defendant in the enforcement of the judgment rendered. There is no attempt to invade his rights, or to take his property for the benefit of another; the purpose being to ascertain whether or not he owes the defendant anything or has in his hands property belonging to the defendant which is subject to execution. The judgment rendered is a judicial ascertainment that one or more of the relations aboye referred to exist or do not exist. If found to exist, the obligation due from the garnishee to the defendant is merely transferred to the plaintiff in the original suit, to be applied on his demand against the defendant. If those relations do not exist the garnishee is discharged. The garnishee sustains no injury and suffers no damage by this proceeding; neither is he required to resort to it in order to protect or preserve any right he may have. The proceeding is not commenced by him, but by the plaintiff in the original suit. It is not based upon any new and distinct cause of action, but is merely a method of enforcing one already established and of reaching property belonging to the defendant not otherwise accessible. What it involves in excess of the original amount for which judgment was rendered in the- main suit are exclusively the interest on that amount and the costs of collecting that judgment, and these items are excluded by the statute in determining jurisdiction.

In the list of cases cited in the opinion of the majority I find but one which conflicts with the views here expressed, and that is the case of Hubbard v. Vacher, 26 S. W. 921. After diligent search I have been unable to find where that case has ever been cited with approval on that question. It seems to be wholly irreconcilable with the later cases of Simmang v. Insurance Co., referred to above, and Childress v. Harmon, 176 S. W. 154.

I am of the opinion that this court had not jurisdiction over #this appeal, and for that reason that it should have been dismissed.
      <§=»For other cases see same topic and KEY-NÍJMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    BROOM et al. v. PEARSON et al.
    (No. 1854.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 28, 1917.
    Rehearing Denied Dec. 20, 1917.)
    1. Trespass to Try Title <&wkey;38(l)—Burden to Prove Interest in Land.
    In a suit of trespass to try title, the burden was on plaintiffs to prove the extent of tlieir interest in the land, and, having failed, they have no right to complain that the interest awarded them was less than that owned by them.
    2. Partition <&wkey;78 — Tenancy in Common— Improvements by One Tenant.
    In Texas, in effecting a partition of land owned in common by the parties, where one of them has improved a part, it is the rule to allot such part to him if possible without detriment to the interest of his cotenants.
    3. Partition &wkey;>78 — Allotment oe 'Land Improved to Cotenant — Pleading.
    Where a tenant in common against whom partition was sought in his first supplemental answer set out in detail improvements which he had made on the land, and asked that the part of the land on which the improvements were situated be allotted to him, he brought himself within the rule that in effecting a partition of land owned in common, where one tenant has improved a part, that part will be allotted to him if possible without detriment to his coten-ants.
    4. Partition &wkey;j26 — Effect of Improvements by Cotenant.
    The right of a cotenant to possess and improve the land was neither destroyed nor suspended by the commencement of the other co-tenants’ suit for partition against him.
    5. Tenancy in Common <&wkey;28(l) — Liability of One Cotenant to Other for Use and-Occupation.
    One tenant in common cannot recover against his cotenant on account of occupation and use of the premises by the latter.
    6. Tenancy in Common <&wkey;28(3) — Liability of One Cotenant to Others for Use and Occupation.
    Where land had a rental value of $1,000, while a cotenant was in actual possession of a part and constructive possession of the remainder, the court properly refused to award the other cotenants recovery of any sum as rents, the rental value being due entirely to the improvements made by the cotenant in possession, the possession by the cotenant, his plea of not guilty, and his setting up of the statute of limitations as a bar to his cotenants’ suit in trespass to try title not constituting an ouster of them rendering inapplicable the rule denying to tenants in common recovery against his co-tenant on account of occupation and use by the-latter of the premises.
    Appeal from District Court, Rusk County; Daniel Walker, Judge.
    Suit by Permelia Broom and others against John Pearson, to which P. J. O. Wood and W. H. Wood were made parties defendant. From-the judgment, plaintiffs appeal.
    Judgment affirmed.
    See, also, 81 S. W. 753; 98 Tex. 469, 85 S. W. 790 ; 86 S. W. 733; 180 S. W. 895.
    This was a suit of trespass to try title and' for damages (statutory in form), brought by Bertha Compton, Thomas Brown, and appellants Permelia Broom and her husband John Broom, George B. Compton, Minnie Love-lady and her husband Luther Lovelady, Thomas Compton, and Bird Compton, against appellee John Pearson. Bertha Compton died after the suit was commenced, leaving the other appellants, except the Brooms, as her only heirs. The land in controversy was described in the plaintiffs’ petition, filed December 2, 1902, as 200 acres, more or less, of the Francis Hamilton survey in Rusk county. P. J. O. Wood and her husband, W. I-I. Wood, having conveyed the land to appel-lee and warranted the title, he made them parties, seeking to recover against them on. their warranty in the event the title was found to be in the plaintiffs. The trial was to the court without a jury, and he made findings as follows: (1) That appellant Mrs. Broom as an heir of her half-brother J. D. Hamilton owned an undivided interest of 13/144 of the land; that the other appellants owned an undivided interest of 13/144 thereof; and that appellee owned the remaining-118/144, undivided, thereof. (2) That appel-lee, on February 20, 1900, believing in good; faith that P. J. O. Wood and her husband, W. H. Wood, owned the entire tract, purchased same of them, paying them $527.60 in cash therefor, and receiving of them their deed “with full warranty of title” conveying same. (3)/That appellee afterwards, before this suit was commenced, in good faith and without ■any knowledge of a claim by appellants thereto, took actual possession of and made permanent improvements of the value of $350 on •50 acres of the land, and after this suit was instituted made further improvements of the value of $350 on said 50 acres. (4) That the land after said 50 acres was so improved to the date of the trial had a rental value of $1,000. (5) That said rental value was due ■solely to the improvements placed by appel-lee on the 50 acres, and that but for those improvements the land never had any rental value. (6) That appellants never improved nor offered to improve any part of the land. (7) That from the time they commenced' the suit to the date of the trial appellants and their eoplaintiffs claimed to own all the land, and that during that time appellee also claimed to own all of it. (8) That appellee never took actual possession of nor committed waste upon any of the land except the ,50 acres referred to; that in clearing said 50 acres for cultivation appellee cut a part ■of the timber growing thereupon into cord wood, which he sold, realizing therefrom less than the cost of cutting and handling said timber. (9) That, apart from the amount received by appellee for the wood cut as stated, it was worth $8 per acre to clear the 50 acres for cultivation; that appellee fenced said 50 acres at an expense of $60, built a dwelling house worth $200 thereon, and made ■other improvements thereon — said improvements aggregating in value $700. (10) That the land was capable of partition between appellants and appellee so as to allot to the latter the 50 acres he had improved as stated.
    The court concluded from the facts found by him:
    (1) That appellee “should not be charged with any rents, and that when the land upon which his improvements are situated shall have been allotted to him there is nothing to be adjusted as to rents or improvements among the successful plaintiffs and the defendant Pearson.”
    (2) That appellants ought to recover of ap-pellee 26/144 of the land described in their petition, exclusive of the value of the improvements thereon.
    (3) That Thomas Davis ought not to recover anything.
    • On the findings made by him the court rendered judgment: 0) In appellants’ favor for ■26/144 and in appellee’s favor for 118/144 of the land, and directed a partition thereof “according to quality, quantity and value, as if the whole was entirely unimproved, setting off to defendant John Pearson his 118/144 interest so as to include his improvements, ■but not charging him with the value of the improvements”; (2) in favor of appellee against W. H. Wood on Ms warranty for 26/144 of the $527.60 paid by the former for the land; and (3) that Thomas Brown take nothing by his suit.
    Reports of former appeals of the case will be found in 81 S. W. 753; 98 Tex. 469, 85 S. W. 790; 86 S. W. 733; and 180' S. W. S95.
    J. H. Turner, of Henderson, for appellants. John R. Arnold, of Henderson, for appellees.
   WILLSON, O. J.

(after stating the facts as above). The contention made that appellants owned a 3/16 interest in the land and therefore that the court erred when he found that they owned only, a 26/144 interest, must be overruled. The interest owned by appellants does nofi appear from the testimony forming a part- of the record sent to this court. The burden was on them to prove the extent of their interest in the land; and, having failed to do so, they have no right to complain that the interest awarded to them was less than the interest they in fact owned. Laferiere v. Richards, 28 Tex. Civ. App. 63, 67 S. W. 125; 30 Cyc. 244.

The contention made that the court erred in holding that, in the partition to be made of the land, appellee was entitled to have the part he had improved allotted to him, also must be overruled. It appeared from the testimony that the part of the land unimproved was equal in value per acre to the part improved by appellee, but for the improvements thereon, and that the part improved consisted of only 50 pr 55 acres — much less in quantity that the court found appellee was entitled to. It is the rule in this state, in effecting a partition of land owned in common by the parties, where one of them, has improved a part of the land, to allot same to him if it can be done without detriment to the interest of his cotenants. Broom v. Pearson, 180 S. W. 895; Taylor v. Taylor, 26 S. W. 889; Baker v. Hamblen, 48 Tex. Civ. App. 529, 107 S. W. 577; Ord v. Waller, 107 S. W; 1166; Holloway v. Hall, 151 S. W. 895. Appellants’ insistence seems to be that the rule is not applicable to this case for two reasons. The first is that the pleadings on the part of appellee did not, they assert, authorize the court to grant appellee such relief. This insistence cannot be sustained, in view of the fact that appellee in his first supplemental answer set out in detail improvements which, he alleged, he had made on the land, and asked that the “part of same on which his improvements were situated” be allotted to him. It is next insisted in support of the complaint made that appellee was not entitled to such relief because it appeared that he had willfully disregarded appellants’ rights by setting up the statute of limitations as a bar to a recovery by them of any of the land. The argument is that it therefore appeared that appellee had improved the land for the purpose of embarrassing appellants in the assertion of their rights. But the court'found, and we think there was evidence authorizing the finding, that appellee made the improvements in good faith, which, in effect, was finding that he did not make them for the purpose of embarrassing appellants in the assertion of rights they had in the 'land. The only evidence which it could be claimed was opposed to the court’s finding was that showing that a part of the improvements on the land were placed there by ap-pellee after this suit against him was commenced. We think the right in appellee as an owner in common with appellants of the land to possess and improve- it was neither destroyed nor suspended b$r the commencement of appellants’ suit against him; and therefore that the fact that'he continued to make improvements on the land, after the commencement of the suit was’hot inconsistent with an absence on his part of a purpose to thereby “embarrass” appellants in the assertion of rights they had, and did not, standing alone, show that to be his purpose. Whitmire v. Powell, 103 Tex. 232, 125 S. W. 889; Spicer v. Henderson, 43 S. W. 27; Lynch v. Lynch, 130 S. W. 461. If it appeared that appellee was not an owner with appellants of the land, and that his right as a litigant depended solely upon the fact that he had in good faith made improvements thereon, appellants’ insistence that, having placed the improvements on the land with notice of their claim thereto, appellee was not entitled to claim anything of them on account of same, would present a different question and would be more Strongly supported by many of the authorities they cite than it is on the facts as they appear in the record before us.

The only other contention presented by the assignments which we will refer to is that, it appearing that the land had a rental value of $1,000, as found toy the court, during the time appellee was in actual possession of a part and constructive possession of the remainder thereof, it was error to refuse to award appellants a recovery of any sum as rents, notwithstanding it further appeared that such rental value was due entirely to improvements made on the land by appellee. The insistence is that such possession by appellee, and his pleading “not guilty”- and setting up the statute of limitations as a bar to their suit, constituted an ouster of appellants from the land, and that, therefore, the rule which denies to one tenant in common a right to recover against his cotenant on account of occupation and use by the latter of the premises (Akin v. Jefferson, 65 Tex. 137) did not apply to the case. In support of their insistence, appellants cite Autry v. Reasor, 102 Tex. 123, 108 S. W. 1162, 113 S. W. 748; Stephens v. Hewitt, 77 S. W. 229; Duke v. Reed, 64 Tex. 716; and Stephens v. Taylor, 36 S. W. 1084. In neither of those cases did it appear, as it did in this one, that the land was without rental value except for improvements placed thereon toy the respective defendants. Those cases therefore cannot be regarded as authority for saying the court erred in holding as he did in the particular stated on the facts of this case. The action of the court seems to be- fully sustained by the ruling in Thompson v. Jones, 77, Tex. 626, 14 S. W. 222; Spicer v. Henderson, 43 S. W. 27; and Whitmire v. Powell, 103 Tex. 232, 125 S. W. 889. The Jones Case was one of trespass to try title by Thompson. The /defendants answered, as the appellee here did, by a plea of not guilty, and set up the statute of limitations and improvements made toy him in good faith. The plaintiff replied that the statute of limitations and claim for improvements were not available as against her, because she was a minor. The judgment in the trial court was in her favor for one half the land for rents, and in favor of the defendant for the other half of the land. In disposing of the appeal,. Judge Gaines said:

“We are clearly of opinion that defendants should not have been charged with rent of the land in tiiis ease until a demand for .possession was made, and then not upon their improvements.”

The judgment is affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TOMPKINS et al. v. HOOKER et al.
    (No. 1739.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 29, 1917.)
    1. Evidence <&wkey;271(16) — Hearsay—Declarations of Decedents — Family History.
    The rule admitting the declarations of deceased persons to prove family history and pedigree will not be extended to include declarations made in the declarant’s interest.
    2. Judgment <@=725(1) — Res Judicata — Questions Concluded.
    Whenever a question of fact is of such a character that it requires evidence to sustain it, and on that evidence a determination has been reached and declared, the fact adjudicated is one which the parties and their privies will not be permitted to reopen in a second controversy among themselves.
    3. Judgment &wkey;5956(l) — Res Judicata — Burden to 'Show Particular Question Has Been Determined.
    When the subject-matter of the two suits is not the same, it devolves upon those invoking an estoppel by prior adjudication to show either by the record or extraneous evidence that the particular question before the court has been previously determined.
    4. Judgment <&wkey;956(l) — Presumptions in Favor of.
    In a second partition' suit, the court must assume that the court, in a prior partition suit involving the same parties and their privies, wherein a husband claimed an interest by inheritance from his wife, who died without issue, heard the necessary evidence as to who were the wife’s lawful heirs, and on such evidence based the portion of the decree relating to the husband’s interest.
    5. Judgment &wkey;>956(5) — Res Judicata — Identity of Issues.
    Where a second partition suit involves property different from that involved in a first, though involving the same parties or their privies, in order for the judgment in the first to be conclusive as to whether a party’s wife left children, it must appear that the particular issue was decided in the first suit.
    6. Paetition <&wkey;55(2) — Pleading Titles.
    Joint owners in a partition suit were not required specifically to plead their respective titles.
    7. Judgment <&wkey;540 — Res Judicata— Friendly Litigation.
    The fact that a decree claimed to conclude an issue in subsequent litigation was rendered in friendly litigation, where no real contest took placo, is without importance; the conclusiveness of the adjudication depending on the sojirce from which it came, and the issue it determined, not upon the violence of the controversy.
    8. Appeal and Error <§=P1051(1) — -Harmless Error — Evidence.
    The judgment and record in a prior partition suit being conclusive on the issue as to whether or not a wife died without issue, error in permitting the introduction of improper testimony tending to show such fact was harmless.
    9. Descent and Distribution <&wkey;6 — Rights of Heirs — Laws Governing.
    The rights of the heirs of a deceased wife were fixed by the laws in force at the time of her death.
    10. Descent and Distribution <&wkey;6 — Vested Property Rights — Rights of Heirs.
    The rights of a deceased wife’s heirs which accrued upon her death were vested property rights which could not thereafter be disturbed, either by statutory or by constitutional restrictions.
    11. Appeal and Error <&wkey;207 — Preserving Ground of Review — Reading of Inapplicable Statute.
    In a partition suit, defendants setting up adverse possession in their predecessor, the action of the court in permitting to be read over objection an article of a statute which had no application to the case, thus in effect authorizing the jury to exclude from the period of adverse possession the time defendants’ predecessor occupied the premises as a homestead, is available error,, though defendants’ attorney failed to request á written instruction directing the jury to disregard the_ action of opposing counsel, and the law read in their hearing.
    12. Partition &wkey;>83 — Property Owned by Tenants in Common — Deed of Cotenant to Third Person — Division of Land.
    The deed of one cotenant conveying to a third person a specific portion of the common property is void as to the other cotenants, but, to preserve property rights, in partition proceedings courts of equity usually will set aside to the purchaser the portion described in his deed if possible without injury to the remaining cotenants, and the division will be made according to value exclusive of the purchaser’s improvements, a rule applicable in cases where all of the common property is before the court for partition.
    13. Partition <&wkey;83 — Conveyance of Part of Land by Cotenant — Consideration fob Purpose of Ascertaining Value.
    Where the portion of land previously convoyed to a third person by a cotenant was omitted from a partition suit between the eotonants because of adverse titles acquired by limitation, though the court may not exercise any power of partition over the lands sold by the cotenant, it may consider the portion to ascertain its value, and be governed thereby in adjusting the equities of the parties; if there was no voluntary partition as to the portion of the land conveyed, the valuation should be ascertained at the date of the trial, when final division is to be made, and, if it is proper. to charge the cotenants’ vendees with such portion of the common property, they should be made to account for it at the value it had when the rights of the cotenants were to be adjusted.
    14.Partition <&wkey;86 — Liability for Rent.
    In partition between cotenants, plaintiffs were entitled only to their proportion of the rents after they were legally ousted from possession.
    Appeal from District Court, Red River County; Ben H. Denton, Judge.
    Suit by F. A. Hooker and others against T. T. Tompkins and others. From a judgment for plaintiffs, defendants appeal.
    Judgment reversed, and case remanded.
    Lennox & Lennox, of Clarksville, for appellants. Kennedy & Robbins, of Clarksville, and V. I-I. Biddison and J. Q. Mahaffey, both of Texarkana, for appellees.
   HODGES, J.

The appellees as plaintiffs below brought this suit to recover an undivided interest in the tract of land described and for a partition. The material facts, briefly stated, are as follows: In 1807 David Fulbright conveyed as a gift to his daughter, Christina Lawson, 301 acres of land of the Gooch survey situated in Red River county, a part of which is involved in this suit. Christina Lawson and her husband, Pleasant Lawson, moved onto this tract of land and occupied it as their homestead till her death in 1870. She died intestate, but whether or not she left a child surviving is one of the important issues involved in this litigation. Soon after this conveyance to his daughter, David Fulbright died leaving considerable real estate and a number of children and their descendants. His son P. Fulbright was appointed administrator of his estate. In 1875, some years after the death of Mrs. Lawson, the descendants and heirs of David Fulbright sought a judicial partition of his real estate. A petition was filed in which the children and heirs of David Fulbright were named as plaintiffs, and P. Fulbright, the administrator, as defendant. Among those enumerated as petitioners appeared the name of P. Lawson. After naming other children of David Fulbright, the petition mentions Christina Lawson, “who,” it alleges, “died intestate in 1870, leaving a husband, petitioner Pleasant Lawson, but no descendants.” The petition was signed by attorneys and shows that service was waived by P. Fulbright. A judgment of partition was thereafter rendered specifying the interest each claimant was entitled to have and appointing commissioners to make the division. Among other recitals, the partition decree contains the following:

“And to Pleasant D. Lawson as heir of his deceased wife Christina Lawson one twenty-second (V22) Pal't of said land.”

The evidence showed that David Fulbright had eleven children, and that the part awarded lo Lawson was only half of a child’s portion. Lawson afterwards married a second wife, and they continued to reside upon the tract of land conveyed to his first wife; his residence, however, was shifted to different places on the land to suit his convenience. Some time aftef the death of his first wife, Lawson began to sell off specific portions of the land, in each instance executing a deed as the owner in fee simple of the entire interest conveyed. After the death of his second wife, Lawson continued his residence on the land till his death, which occurred in the latter part of 1911. A few months prior to his death he conveyed 175 acres, being all that remained of the original conveyance to Mrs. Lawson, to T. T. Tompkins and Fletcher Tompkins, and it is under this deed the appellants now claim title.

The appellees are the surviving brothers and sisters of Mrs. Lawson, and the descendants of those deceased. They contend in this suit that Mrs. Lawson died intestate and without issue, and that they are entitled by inheritance to one-half of the separate real estate she owned at the time of her death. They claim that those who hold under Lawson should in a partition be charged with that portion of the 301 acres of land he had previously conveyed, and that the deed to the appellants was valid as a conveyance of only the excess then remaining of the one-half interest in the original tract.

The appellants defend upon two grounds: First, they'say that Christina Lawson was survived by a child who died in infancy, and that Pleasant Lawson took all of the land by inheritance from his deceased child and therefore had a right to convey. As a second defense, they urge that Lawson acquired a title by adverse possession extending over a period of more than ten years pri- or to the institution of this suit. _

In response to questions propounded by the court, the jury found that Mrs. Lawson died without issue, and that there had been no adverse possession by Lawson and those claiming under him sufficient to create a title by limitation.

There was a sharp conflict in the evidence regarding the birth of a child before the death of Mrs. Lawson. Over the objection of the appellants, the court permitted the appellees to prove by certain witnesses declarations made by deceased sisters and brothers of Mrs. Lawson that she had' died without leaving a child. This testimony was objected to upon the grounds that it was hearsay and that the declarations were self-serving. It is now well settled that the rule which admits the declarations of deceased persons to prove family history and pedigree has its- limitations. Byers v. Wallace, 87 Tex. 507, 28 S. W. 1056, 29 S. W. 760. The doctrine will not be extended so as to include declarations made in the interest of the declarant. The court, we think, erred in permitting the introduction of such testimony, and for that error the judgment should be reversed unless it may be treated as harmless.

As proof that Mrs. Lawson died without issue, the appellees offered in evidence the petition and judgment in the partition proceedings instituted by the Fulbright heirs in 1875. They now contend that the record in that case settled that question, and that Lawson and those who claim under him were thereafter estopped to raise that issue in any proceeding between the same parties or their privies. Appellees admit that the land here involved was no part of what was then before the court, but insist that, the parties being legally the same as those involved in this case, the judgment then rendered was conclusive and that issue cannot be again reopened.

It will be observed that this is not an. instance in which a former judgment is insisted upon as a bar to the suit because of the identity of the subject-matter, but one in which the issue and the parties are legally identical. It is sometimes difficult to determine when the particular issue settled in a judicial proceeding is of sufficient dignity to be covered by the rule of estoppel. Whenever the question of fact is of such a character that it requires evidence to sustain it, and upon that evidence a determination has been reached and declared, the fact adjudicated is one which the parties and their privies will not be permitted to reopen in a second controversy among themselves. Cromwell v. Sac County, 94 U. S. 351, 24 L. Ed. 197; Hanna v. Read, 102 Ill. 596, 40 Am. Rep. 608; 2 Black on Judgments, § 609; 15 Ruling Case Law, pp. 973-976, and numerous cases cited in notes. Where the subject-matter of the suit, however, is not the same, it devolves upon those invoking the estoppel to show either by the record of extraneous evidence that the particular question then before the court has been previously determined.

In the partition proceedings above referred to it was necessary for the court before rendering a decree dividing the estate-to ascertain the full extent of the interest of each joint owner.

The petition alleged, in substance, that Lawson owned an interest by inheritance from his wife, and, as measuring the extent of that interest, stated that Mrs. Lawson died without issue. This, if true, would entitle him to one-half of a child’s portion. The partition decree shows that he was awarded that interest. We must therefore assume that the court in that proceeding heard the necessary evidence as to who were the lawful heirs of Mrs. Lawson, and upon that evidence based that portion of his decree relating to Lawson’s interest. That decree involves a finding that Lawson was an heir and also that Mrs. Lawson’s brothers and sisters were joint heirs witli him. This finding could not have been made except upon proof that Mrs. Lawson died without issue; for if she had been survived by a child the latter would have inherited her entire estate, and upon the death of the child this would have passed to Lawson, the father. If, therefore, we take the pleadings as the basis of the partition decree, the judgment can be sustained only by a finding that Mrs. Lawson left no surviving child. We do not overlook the fact that, this being a suit in. volving different property, it must appear that this particular issue was decided in that suit. While the joint owners in that litigation were not required to specifically plead their respective titles, they elected to do so. In the absence of evidence to the contrary, we must presume that they followed the usual legal rule and proved the essential facts which they alleged. If that be true, then the very question here put in issue was then tried and decided. The fact that the particular decree was rendered in a friendly litigation where no real contest took place is of no importance. The conclusiveness of the adjudication depends upon the source from which it came and the issue it determined, and not upon the violence of the controversy. If the parties by their agreements and confession dispensed with the necessity for offering an array of evidence, the issue to be determined was not for that reason robbed of its importance or altered in its nature. Richardson v. Trout, 135 S. W. 677; Last Chance Mining Co. v. Tyler Mining Co., 157 U. S. 687, 15 Sup. Ct. 733, 39 L. Ed. 859. The judgment and record in the partition proceedings being conclusive upon the issue as to whether or not Mrs. Lawson died without issue, there was no reversible error in permitting the introduction of the improper testimony previously referred to.

It is also insisted by the appellants that the evidence conclusively established a title in them by adverse possession of ten years, and that the court should not have submitted that issue to the jury. While there was much testimony tending to show an adverse possession by Lawson, there was enough evidence to the contrary to require a submission of that question to the jury.

There was no error in the rulings made in admitting the testimony objected to upon the issue of limitation.

Complaint is made of the action of the court in making certain remarks in the presence and hearing of the jury. The bill of exception reserved thus presents the question:

“Be it remembered that on the trial hereof, it being contended by the plaintiffs that as the homestead of P. Lawson and Christina Lawson was on the 301-acre tract in controversy at the date of the latter’s death in May, 1870, it was not subject to partition, and that limitation did not commence to run against her heirs so long as Lawson’s homestead right existed, and the defendants contended that it was subject to partition under the existing laws at the time and that his holding was presumed to be adverse after four years, and the court having already submitted the issue of limitation to the jury with appropriate instructions in connection therewith, and the defendants’ counsel having closed their argument, the plaintiffs’ counsel in his closing argument offered to read to the jury article 3429 of Yernon’s Statute as proof and in substantiation of their contention, to which the defendants then and there objected on the ground that it was not the law at the time Christina Lawson died and that- the court had already instructed the jury on the issue. The court overruled the objection and permitted the attorney to read the article of the statute in question, and in connection therewith remarked that he had instructed the jury on the question of limitation in the charge so given, but saw no objection to counsel reading the statute in question as it was the law on the subject.”

The article above referred to provides that on the death of the wife leaving a husband the homestead shall descend and vest as other real property, but that it shall not be partitioned among the heirs of the deceased during the lifetime of such surviving husband, or so long as he may elect to use or occupy the same as a homestead. The rights of the heirs of Mrs. Lawson were fixed by the laws in force at the time of her death. Lindsay v. Freeman, 83 Tex. 259, 18 S. W. 727. The record shows that Mrs. Lawson died in May, 1870, before the general revision of the probate laws enacted that year took effect. 3 Sayles’ Early Laws, art. 3484 et seq. Any limitation upon the rights of the heirs to then partition the homestead must be found in the General Act of 1848 with its amendments. The only provisions of that law which can be relied on as withdrawing the homestead from assets subject to partition appears in section 45 of Acts 2d Leg., c. 157; P. D., art. 1305. This section provides for setting aside to the widow and minor children of the deceased the exempt property, and protects this from distribution only when the estate is insolvent. No such provision is extended to a surviving husband without children. Hence there does not appear to have been any legal obstacle to the partition of the land in controversy at the time Mrs. Lawson died. Jergens v. Schiele, 61 Tex. 257; Putnam v. Young, 57 Tex. 464. The rights of the heirs which then accrued were vested property rights which could not thereafter be disturbed by either statutory or constitutional restrictions. Wright v. Straub, 64 Tex. 64. The article of the statute read to the jury by counsel for appellees had no application whatever. The action of the court in permitting it to be read over objection was tantamount to a ruling that it did apply and that it should be considered by the jury as a part of the law of the ease in passing upon the issue of adverse possession. This in effect authorized the jury to exclude from the period of adverse possession the time Lawson occupied the premises as a homestead. If this were done there was little, if any, evidence remaining upon which to base a finding for the appellants upon that issue. Unless tlie jury wholly disregarded the article read, and its express approval by the court, appellants were materially injured by the conduct complained of. The objection is not rendered unavailable because of the failure of the appellants’ attorney to request a written instruction directing the. jury to disregard the action of appellees’ attorney and the law read in their hearing. It is not probable that the court would have excluded in writing what he had expressly approved orally. The authorities relied upon by the appellees to sustain their contention are not applicable. This error we regard as of such importance as to require a reversal of the judgment.

In the decree dividing the land between the plaintiffs and defendants in the court below its value was disregarded, 150% acres were awarded to the appellee, and the remainder to the appellants. Presumably in making that division the court charged the appellants with the number of acres which Lawson had previously conveyed out or the original tract and limited the interest which he had a right to convey to the appellants to what remained in acreage of his undivided half. ' The evidence tended to show that the 176 acres in controversy were much more valuable than that which had been previously disposed of, and it is insisted by the appellants that this difference in value should have been taken into consideration by the court in measuring the interest or number of acres which the appellees were entitled to recover, since to that extent there was to be a partition of the land. It is well settled that the deed of one cotenant conveying to a third party a specific portion of the common property is void as to the other cotenants; but in order to preserve property rights in partition proceedings, courts of equity will usually set aside to a purchaser the portion described in his deed, provided this can be done without injury to the rights of the remaining co-tenants. Broom et al. v. Pearson et al, 200 S. WW. 191, recently decided by this court, and cases there cited. And in such cases the division will be made according to the value, exclusive pf the improvements put upon the land by such purchaser. That rule, however, is generally applied in those cases where all of the common property is before the court for partition. In this case there is involved a part only of the Christina Lawson estate, which,the claimants once owned in common. It appears from the briefs and argument that the portion previously conveyed was omitted from this suit because of adverse titles acquired by limitation. The question isDoes that situation alter the rule? Assuming that there has been no voluntary partition previously made as to that portion of the land which Lawson had conveyed, we are of the opinion that the valuation taken should be ascertained at the date of the trial, the time when the final division is to be made. If in the adjustment of the equities between the parties to the suit it is proper to charge the vendees of Lawson with that portion of the common property which he had wrongfully disposed of, they should be made to account for it at the value it had when the rights of the cotenants were to be adjusted. In the application of that rule the appellees will lose nothing by reason of the wrongful conduct of Lawson, their cotenant, in placing a portion of the land beyond their reach. AVhile the court may not exercise any power of partition over what had been sold by Lawson, it may consider that portion for the purpose of ascertaining its value,' and be governed thereby in adjusting the equities of the parties in what remains. AVe are therefore of the opinion that the court erred in not taking into consideration the present value of all the land which formed the Christina Lawson estate described in the deed from hfer father.

In remanding the case we take occasion to call attention to an error in rendering a judgment against the appellants for all of the rents that had accrued upon the property. The appellees are only entitled to their proportion after they were legally ousted from the possession.

The judgment of the court will be reversed, and the case remanded.
      iS=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 200 S.W. — 13

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