author: HUFF, C. J.

text:
    WICHITA VALLEY RY. CO. v. SOMERVILLE et al.
    (No. 808.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 16, 1915.
    On Motion for Rehearing, Nov. 6, 19-15.)
    1. Wills <&wkey;792 — Election—Questions fob Jury.
    A husband at the time of Ms death owned two lots with a hotel thereon, constituting community property, -on which he and his wife had been living’. His will gave the property to a son, subject to the payment of rent to the widow for life, and also gave the widow all of the furniture. The son had been living with his father and mother as one of the family, and continued to live there and manage the hotel without any change being made in the management of the property. He had the will probated, but, though named as executor, never qualified, and never exercised any authority as such, nor attempted to carry out the provisions of the will, further than to pay certain sums to the other children as provided in the will. The hotel was subsequently sold, the widow and son both signing the deed, and part of the furniture being turned over to the purchaser apparently passing with the sale of the hotel, and not being sold for any fixed price or as the property of the widow. The widow claimed that she did not know the contents of her husband’s will, and never accepted the provisions thereof, but continued to- occupy the premises, claiming her community and homestead rights. Reid, that the facts did not conclusively show an election by her to accept the provisions of the will, and whether there was such an election was a question for the jury.
    [Ed. Note. — Por other cases, see Wills, Cent. Dig. §§ 2049^-2052, 2061-2063; Dec. Dig. &wkey; 792.]
    2. Wills <&wkey;792 — Election — Acts Constituting.
    An election by a widow to take under her husband’s will in lieu of her community and homestead'rights must be unequivocal and with the intention to make an election.
    [Ed. Note. — Por other cases, see Wills, Cent. Dig. §§ 2049-2052, 2061-2063; Dec. Dig. &wkey; 792.]
    3. Adverse Possession <&wkey;103 — Extent of Rights Acquired.
    Whore a husband at the time of his death was in possession of two lots constituting' community property, but the record title to a small part of one of the lots was in a third party, and he had not acquired title thereto by limitation, if the wife remained in peaceable adverse possession, cultivating, using, and enjoying the land in question under a claim of title for the required period, she acquired title to the whole thereof, and not merely to an undivided one-half interest.
    [Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 59CM594; Dec. Dig. &wkey;> 103.]
    4. Adverse Possession &wkey;>86 — Payment of Taxes — Statutory Provisions.
    Under Vernon’s! Sayles’ Ann. Civ. St. 1914, art. 5674, providing that every suit to recover real estate as against any person having peaceable and adverse possession, cultivating, using, or enjoying it, and paying taxes thereon, if any, and claiming under a deed duly registered, shall be instituted within five years, the party in adverse possession must pay all or the taxes, and where defendant claimed title by limitation under such article, she was bound to show the payment of city taxes, as well as a special school tax levied by an independent school district.
    [Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. § 504; Dec. Dig. <&wkey;>86.]
    5. Appeal and Error <@=>1064 — Harmless Error — Burden of Negativing Prejudice.
    It must appear that an erroneous charge calculated to mislead the jury did not have that effeet, or the judgment will be reversed.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221 — 4224, Dec. Dig. <@=31064.]
    6. Appeal and Error <&wkey;1064 — Harmless Error — Instructions.
    In trespass to try title, where defendant pleaded the five and ten year statutes of limitation, an erroneous instruction allowing her to prevail under the five-year statute, though she had not paid city and school taxes, could not be held immaterial, unless she was entitled to a peremptory instruction under the ten-year statute, as'it was probable that the jury did not investigate the question of adverse possession for longer than five years, and it therefore probably caused the rendition of an improper verdict within rule 62a (149 S. W. x), providing that no judgment shall be reversed for an error of law in the course of the trial, unless the appellate court shall be of opinion that the error amounted to such a denial of appellant’s rights as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. <@^1064.]
    7. Adverse Possession <&wkey;115 — Evidence-Issues.
    A husband at the time of his death was residing with his wife and son on two lots on which was a hotel and which constituted community property. He gave the property to the son, subject to the payment of rent to the widow during her life. The son had been living with his father and mother as one of the family and working for them as during his minority, and after his father’s death he continued to manage the hotel; no change being made in the management of the property. The widow also continued to occupy the lots, and, though the son was named as executor of the will, he never qualified or exercised any authority as executor. Title to a portion of one of the lots was in plaintiff. There was evidence tending to show an election by the widow to take under the will, but she denied this and claimed to have been in possession, claiming her community and homestead rights. In plaintiff’s suit against the widow and son in trespass to try title there was no testimony that the son was his mother’s tenant, and it was shown that after the expiration of five years, but within ten years from the commencement of the adverse possession, he leased the disputed land from plaintiff, and there was testimony, though contradicted, tending to show that the widow knew of ’this lease and acquiesced therein. Held, that the widow was not entitled to a peremptory instruction under the ten-year statute of limitations, and an erroneous instruction allowing her to prevail under the five-year statute, notwithstanding nonpayment of taxes, was not immaterial, as the facts raised an issue as to whether the son was not in possession, and the widow merely living .with him, and also raised the issue of a mixed or joint possession or occupancy, and, if this was the case, she was not in peaceable adverse possession during the time the son was also in possession under the lease from plaintiff.
    [E-3. Note. — Eor other cases, see Adverse Possession. Cent. Dig. §§ 314, 691 — 701; Dec. Dig. &wkey;115.]
    8. Adveeise Possession <&wkey;68 —Mixed Possession-Effect.
    When two persons are in mixed possession of the same land, one by title, and the other by wrong, the law considers the one who has title as in possession to the extent of his rights, so as to preclude the other from taking advantage of the statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 387-393; Dec. Dig. <@=> 68.]
    9. Adverse Possession <@=3112 — Evidence-Burden of Proof.
    In trespass to try title against a mother and son, where it appeared that both had been living on the property, and that the son, within the period of limitation, had taken a lease from plaintiff, the burden was on the mother to show thát she, and not the son, had possession under a claim of exclusive ownership.
    [Ed. Note. — For other cases, see Advei'se Possession, Cent. Dig. §§ 651, 653, 654, 657-659, 661-663, 665, 666; Dee. Dig. &wkey;112.]
    10. Trial <&wkey;255 — Instructions—Necessity oe Requests.
    In trespass to try title against the widow of a former owner of lots, embracing the tract in controversy, if plaintiff desired the submission of the question as to the wife’s election to take under her husband’s will in lieu of her community and homestead rights, or if it desired its theory of the case presented, it should have requested proper charges.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. &wkey;255.]
    11. Adverse Possession <&wkey;116 — Trial — Instructions.
    In trespass to try title against a mother and son, both of whom had been living on the land, and each of whom pleaded title by limitation and claimed to have had possession, where it appeared that the son, after his father’s death, continued to live as theretofore as a member of the family and to manage the property, and that within the period of limitation he accepted a lease to the property from plaintiff, the refusal of an instruction that, if he had actual control and management of the property, and was authorized by his mother to control and manage her property, and that in leasing it he was acting within the scope of the authority granted to him, the jury should find for plaintiff as against both defendants, was not error.
    [Ed. Note. — For other eases, see Adverse Possession, Cent. Dig. § 66; Dee. Dig. <&wkey;>116.]
    12. Appeal and Error1 <&wkey;1068 — Harmless Error — Errors Rendered Harmless by Verdict.
    In trespass to try title against a mother and son, each of whom claimed title, the refusal of an instruction to find against the son under certain facts was immaterial where the jury found for the mother, as it thereby, in effect, found against the son.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. 'Dig. §§ 4225-4228, 4230; Dec. Dig. 4&wkey;1068.]
    Appeal from District Court, Wichita County; E. W. Nicholson, Special Judge.
    Trespass to try title by the Wichita Valley Railway Company against C. F. Somerville, in which Mrs. Sarah Somerville intervened. From a judgment in favor of the intervener, plaintiff appeals.
    Reversed and remanded.
    Thompson & Barwise, of Ft. Worth, and Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. A. A. Hughes and T. R. Boone, both of Wichita Falls, for appellees.
   HUFF, C. J.

This case was reversed and remanded upon a written opinion by the court. In its rendition we overlooked an agreement by the parties, filed in addition to the record, in which it was agreed that the filing of appellee’s (Mrs. Somerville’s) intervention was on the 16th day of August, 1912. This will necessitate a reconsideration of the entire case. The former opinion by this court will therefore be withdrawn. In discussing this case we shall refer to Mrs. Sarah Somerville, who was the, inter-vener in this case, as appellee, and her son, C. F. Somerville, either by name or as the son.

On the 4th day of November, 1911, appellant, Wichita Valley Railway Company, brought suit in trespass to try title against appellee C. F. Somerville for a small triangular piece of land out of lot 2, block 211, in the town of Wichita Falls, Tex. Thereafter, on the 16th day of August, 1912, Mrs. Sarah Somerville filed her petition for intervention in this suit, setting up her right to the land in controversy. Both C. F. Som-erville and Mrs. Sarah Somerville pleaded that they were each the owners of the land by deed, and also pleaded the five and ten year statutes of limitation, seeking separate recoveries. We will not set out the pleadings of appellant and appellees more at length at this time, as we believe that the statement of the facts will sufficiently present the issue.

The Wichita Valley Railway Company alone is appealing. C. F. Somerville does not appeal, but he is made an appellee in this case. The court submitted the case to the jury on general charges, instructing the jury substantially that appellant had title to the land sued for, unless defeated by the statutes of limitation pleaded by the respective parties, and submitted the case on that theory alone.' The jury returned a verdict in favor of the intervener, Mrs. Sarah Som-erville, upon which judgment was rendered for her, decreeing her the land as against both appellant and C. F. Somerville, For the purposes of this opinion we do not believe it will be necessary to set out the title of the respective parties, 'but we find the record title is shown to be in appellant, and it should recover, unless defeated by the statutes of limitations. For convenience, and for the purpose of getting generally the issues in this case, we will adopt the statement made by appellee, but will, as we consider the several assignments, refer to such facts as may be deemed necessary in considering the same:

“On the 14th day of March, 1901, A. D. Anderson, Frank Kell, and J. J. Lory conveyed to A. J. Somerville, by their deed of that date, lots 1 and 2 in block 211 of the town of Wichita Falls, which deed embraces the land in controversy. Said deed was duly recorded in the deed records of Wichita county, Tex., on the 25th day of March, 1901; said deed was duly acknowledged. Immediately after said land was conveyed to A. J. Somerville, he and his wife, Sarah Somerville, moved into the hotel building, which was situated on both the said lots, and had a fence built around the entire lots, inclosing the same by said fence. This fence was built the last of March or about the first of April, 1901. The intervener was at that time the wife of A. J. Somerville, and they lived in the said house and ran a hotel business therein until some time in November, 1903, when A. J. Somerville died. During the lifetime of A. <T. Somerville the appellee 0. F. Somerville, who was the son of A. ,†. Somerville and Sarah Somerville, lived in said hotel with them, and in a lai’ge part managed said hotel for them. O. P. Somerville had lived with his father and mother all of his life; had never left them, had never worked for wages, but had lived with them and worked for them just as he did when he was a minor, without making any account against him for the money that lie received or making any account for his clothing, and he charged nothing for his services; in other words, he lived with them just as one of the family, as he did before he grew to manhood. He managed the hotel for them during the life of A. J. Somerville and under his direction. A. J. Somerville died in 1903, and left a will, which was duly probated in the county court of Wichita county, Tex. The will provided that O. P. Somerville should be the executor. It further provided that small sums of money should be paid to each of his other children, and that the widow, Sarah Somerville, should receive the rent from said hotel during her life, and should have all of the furniture, but devised the fee to Chas. Somerville, subject to the payment of said rent. C. E. Somerville had the will probated and filed an inventory, but never qualified as executor, and, so far as the records show, never exercised any authority as executor or attempted to carry out the provisions of the will, further ' than to pay the said sums of money to the other children as provided in the will.
“Lots 1 and 2 in block 211 was the community property of A. J. Somerville and intervener, and they resided on said lots up to the time of his death, and after his death intervener, Sarah Somerville, continued to occupy the same as her homestead just the same as she did before his death, and C. E. Somerville continued to manage the hotel for her just as he did for A. J. Somerville during his lifetime; in other words, the business continued after the death of A. J. Somerville just as it did before his death, no changes being made whatever in the management of the property. ,
“C. E. Somerville testified on the stand that he considered he had an interest in the property after his father’s death, but explained what he meant by stating that it would come to him after his mother’s death.
“Sarah Somerville continued to occupy said lots and building inclosed by a fence up to the time she intervened in' this suit and for some time thereafter. She testified she did not know the contents of A. J. Somerville’s will, and did not accept the provisions, therepf, and did not accept the rent and furniture in lieu of her legal rights, but that she continued to occupy the house and premises, claiming her legal rights to the property and claiming her homestead rights therein until after she filed her plea of intervention in this suit.”

The first assignment is urged to the action of the court in refusing to instruct peremptorily a verdict to find for appellant. The proposition under this assignment, and the only one, is there was no evidence sufficient to authorize the jury to find either for the defendant or the intervener, under the pleading setting up the. statutes of limitation. We take it from the statement that the appellant’s main - reliance under this assignment is that the' evidence is conclusive that' .Mrs. Sarah Somerville elected to accept under the will made by her husband. In this we do'not agree with appellant. She testified that she did not do so, but at all times claimed her community interest in the property and her homestead rights on the lots. These lots were deeded to her husband in March, 1901, and were fenced in April of that year, and remained so until after the suit was instituted against her son, O. F. Somerville, November 4, 1911. She lived in the hotel on the lots and made it her home during all those years. Under the will, she was to have all the hotel furniture and the rents from the property during her life. She testified she did not accept such property or rents in lieu of the community interest or of her homestead rights. It appears after this suit was brought the hotel was sold to one Perkins, and that she and her son signed the deed. Part of the furniture was turned over to Perkins. The testimony does not show that it was sold as her property or that any fixed price was placed on it, but it rather suggests that the property passed simply with the sale of the hotel. The mere fact that the furniture was used in the hotel, or that it was transferred with the hotel, does not conclusively show she accepted the personal property in lieu of her interest in the land. It is just as conclusive that the son claimed it as that she did, and the deed is just as conclusive that she claimed the land as that she claimed the personal property. Its use by her was not inconsistent with her undivided interest and right to exemption therein, and not conclusive that she accepted it in consideration for the relinquishment of her rights in the lots. Under the will, the son would take the father’s interest, even if the wife did not accept, and the sale of the property and the manner of it indicates it was so treated by both mother and son. The husband had no right-to dispose of her interest without her consent. There is no express election shown, and we think the evidence must show such election, and that she received property of value under the will to which she was not entitled otherwise. She had the right to retain the personal property until it was divided, since she had an undivided interest therein, all of which was furniture for the hotel and household and kitchen purposes. She was not called upon to divide the same by any of the heirs, and no reason is shown why she should relinquish her right of- possession thereto. In the sale the son is shown to have participated therein as much as did the mother. The action of election must be unequivocal and with the intention to make an election. 40 Cyc. 1976, 1977; McClary v. Duckworth, 57 S. W. 317; Mayo v. Tudor Heirs, 74 Tex. 471, 12 S. W. 117; Gilroy v. Richards, 26 Tex. Civ. App. 355, 63 S. W. 664; Chace v. Gregg, 88 Tex. 552, 32 S. W. 520; Cobb v. MacEarland, 87 Neb. 408, 127 N. W. 377; Archer v. Barnes, 149 Iowa, 518, 128 N. W. 967.

We think the evidence raised the question of election, which was for the jury to determine under a proper charge by the court. At this time we will not notice the questions raised on the statutes of limitations, upon which appellant probably sought an instructed verdict.

The second assignment asserts error in refusing special charge No. 2, to find for plaintiff an undivided half interest in -the land sued for. It asserted that, if Mrs. Somerville did not accept under the will, her claim was for an undivided half interest, and, as the son was in possession as plaintiff’s tenant, appellee could get title to no more than she claimed. If Mrs. Somerville was in possession of the land, claiming it as her own for the period of time required to vest her with title, then she would recover the whole of the land, and not merely an undivided interest. At the time of the husband’s death no title by limitation had vested, but was an inchoate right in the wife. If she remained in peaceable, adverse possession, cultivating, using, and enjoying the same under a claim of title, the required period, it would vest in her title to the land in question. Gafford v. Foster, 36 Tex. Civ. App. 56, 81 S. W. 63.

By the third assignment appellant complains of the following charge of the court to the jury:

“You are instructed that, in order to claim land by limitation under the five-year statute, it is not necessary that the city or any special school taxes be paid by the party claiming the same.”

The fourth assignment of error urges that the court was in error in authorizing the jury to find under the five-year statute of limitation in favor of Mrs. Somerville. The trial court also submitted to the jury the ten-year statute of limitation. The jury returned a general verdict in favor of Mrs. Somer-ville. The jury were also instructed by the trial court that in considering the five and ten year statutes they would exclude one year following the death of A. J. Somerville, the husband of appellee. The land was conveyed to A. J. Somerville March 14, 1901, and the deed therefor was filed for record on that date. He went into possession of the property April 2, 1901, and died in November, 1903. His will was probated February, 1904, and the suit was instituted against his son November 4, 1911. The executor named in his will never qualified as such, and no inventory of the property was filed. C. F. Som-erville testified that he paid the taxes from 1902 to 1908, inclusive, at the courthouse, and that the taxes were paid by him to the city for the same years. On crossrexamination, however, he testified he would not swear positively he paid them every year; he had no receipts and was not positive and would not swear he paid the city taxes for 1904 or 1905. The city tax collector testified the city taxes for the years 1904 and 1905 were delinquent and unpaid, and for the years 1904, 1905, 1906, and 1907 the taxes were assessed for the independent school district and were not paid. Wichita Falls is shown to be an incorporated city and to be an independent school district, and the lot in question was in that district. Bonds had been issued for the district, and taxes levied to pay the interest and sinking fund. Under these assignments the question is raised as to the correctness of the instruction that the payment of city taxes and special taxes was not necessary under the five-year statute. Under article 5674, Vernon’s Sayles’ Civil Statutes, suit must be brought in five years next after the cause of action accrues against a party claiming under a deed duly recorded, having peaceable and adverse possession, cultivating, using, or enjoying the same, and paying taxes thereon. It has been repeatedly held by the courts of this state that all incidents of the statute must concur and be continued for a period of five years. A failure to pay the taxes for five consecutive years had been held not sufficient to prescribe under the statute. Converse v. Ringer, 6 Tex. Civ. App. 51, 24 S. W. 705; Club Land Co. v. Wall, 99 Tex. 591, 91 S. W. 778, 122 Am. St. Rep. 666. The statute does not say that all the taxes shall be paid; neither does it say that the payment of part of the taxes will be sufficient; but the language is, “paying taxes thereon.” It will be noted the statute does not say that the taxes shall be paid for five consecutive years, or that taxes shall concur with the time of the recording of the deed or with the adverse possession; but it is clearly implied from the wording of the statute. “Paying the taxes thereon” is not met by paying part of the taxes thereon. Taxes thereon include all the taxes. City taxes and school- taxes are taxes thereon, recognized by both the Constitution and laws of this state. It is suggested the purpose of paying taxes is to give notice to the owner. We doubt if this is correct. Possession of the land and the recordation of the deed answers that purpose. If, however, that is its purpose, the laws and the Constitution recognize two sep-' arate assessors and collectors in county and city. If an owner should go to the city rolls and find that taxes on his property are not paid by any other, would he have the right to rest on the fact that it was not adversely held in possession under‘a deed duly registered? The statute says such holder shall pay taxes. The city rolls notify the .owner such' claimant is not doing so. These taxes are a lien on the land in the city. We believe good faith upon the part of the adverse claimant requires that he pay off this debt against the land and relieve it of the lien. In jurisdictions where there is no statute of limitations prescribing the payment of taxes as a prerequisite thereto the payment of taxes by the adverse claimant is admissible to show adverse holding. Wren v. Parker, 57 Conn. 529, 18 Atl. 790, 6 L. R. A. 80, 14 Am. St. Rep. 127. However, in Draper v. Shoot, 25 Mo. 197, 69 Am. Dec. 462, it is stated payment of taxes by a stranger tends to show knowledge of that, fact by the true .owner. We think under the statute that the claimant should show that he has paid the city.and the special school tax; otherwise he is holding property which he permits to become incumbered, and it is a circumstance tending to show he does not claim it adversely. Such a failure does not meet the full requirements of the statute, which all the courts hold is a necessary prerequisite to prescribe under the statute. Dunn v. Taylor, 102 Tex. 80, 113 S. W. 265. In Dutton v. Thompson, 85 Tex. 115, 19 S. W. 1026, Judge Stay ton said it was not very clear why the Legislature made the payment of taxes necessary to sustain the defense of five years. It may have been to require evidence of good faith by the occupant to secure the state and its municipal subdivisions in the payment of taxes due thereon, or to give further notice of the adverse claim. It will be noted by the expression of Justice Stayton that, in his mind, at that time the statute required the payment of taxes due municipal subdivisions. If it is required for the purpose of additional notice, each tax roll, whether state, county, city, or independent school district, must each show the payment in order to give such notice; for each are required to be kept and the payment on each is notice of an adverse claim. We have been unable to find any case in this state involving the question here under construction. Counsel for both parties state that they are unable to find any case in this state. They cite us to the cases of Allen v. Allen, 159 Cal. 197, 113 Pac. 160; Railway Co. v. Pyle, 19 Idaho, 3, 112 Pac. 678; Green v. Christie, 4 Idaho, 438, 40 Pac. 56; Coonradt v. Hill, 79 Cal. 587, 21 Pac. 1099. These cases, in so far as they discuss the question, hold that all the taxes, state and special, must be paid, but we gather from the opinion of the courts this holding is based on the statute which so prescribes. However, as we interpret our statute, it clearly implies the payment of all taxes. The taxes to be paid are not specified, and the requirement for payment is not limited to any particular tax. State, county, municipal, and school taxes are each a charge on the property — made so by the Constitution and the laws. This must necessarily have been known to the Legislature, and, having failed to limit the tax to be paid, they must have intended all taxes which are a charge upon the land. We believe the court was in error in giving the charge that it was unnecessary to show the payment of city and school taxes.

The appellee suggests that, if the trial court was in error in giving the charge, it was not material, and should not reverse the case. It is suggested the facts under the charge of the court would have authorized the verdict of the jury under the ten-year statute. The jury could have properly, under the charge of the court, based their verdict on jthe five-year statute. If it was apparent to us that the verdict was rendered on the ten-year statute, and not the five-year statute, ,we might be authorized to hold the charge harmless; but we are unable to determine from the record upon which statute the jury found. Adkins v. Galbraith, 10 Tex. Civ. App. 175, 30 S. W. 291; Thompson v. Chaffee, 39 Tex. Civ. App. 567, 89 S. W. 285-287. It must appear that an erroneous charge calculated to mislead the jury did not have that effect, or the judgment would be reversed. “In such case the duty does not devolve upon the party complaining to show that he was thereby injured, but upon him in whose favor the verdict was returned to show that the complaining party was not prejudiced by the error.” Railway Co. v. Johnson, 91 Tex. 569, 44 S. W. 1067. If rule 62a (149 S. W. x) has modified the above, it is, as we conceive it, in placing the duty on the appellate court to determine whether such error amounted to such a denial of the right of appellant as was reasonably calculated to, and probably did, cause the rendition of an improper judgment. Clearly, appellant’s rights required that the law applicable to the five-year statute should be correctly given, and to tell the jury that the taxes for five consecutive years was not required in order to prescribe under the five-year statute was a denial of appellant’s right to have the jury told these taxes must be paid before a title would vest under the five-year statute. Under this charge it is probable the jury did not investigate the question of adverse possession longer than the period of five years. It was reasonably calculated to induce the jury to rest content with five years, and not to consider the subsequent years of possession or the acts of the parties with relation thereto, and thereby probably caused the rendition of an improper verdict. If we are correct in holding the court erroneously stated the law in his charge, then, as we believe, the only justification we would have in holding the error immaterial would be to find that appellee, under the facts, was entitled to a peremptory instruction for a verdict under the ten-year statute. The facts in this ease are peculiar to it, and more so than is usual. The evidence, aside from the appellee’s testimony, tends to support an election by appellee under the will, and would support a finding that she was living with her son on the property as his. This, however, appellee contends, is rebutted by the verdict of the jury. This question was not submitted to the jury by the court by a direct charge on the question, but was doubtless included in the general charge on adverse possession. The bearing the election would have on the question of limitation, however, may not have been clearly perceived by the jury; hence not given that consideration it deserved. There is no testimony that the son was the tenant of appeh lee. His possession, management, and control of the property is consistent with his claim of title asserted in his answer and his declaration while in possession. If he was not so in possession, then he could have been only so as the agent or servant of appellee. The issue is raised by the evidence whether he was in possession of the property under a claim of title. If he was so in, possession, claiming title, it would be adverse to appel-lee. After the five-year period, and before the expiration of the ten-year, he entered into a written lease contract for the land from appellant. He paid either two or three years’ rental to appellant for the land, and after he refused to pay the rent he was notified by the agent of appellant to remove his fence from around the land. This he did, and moved, if not all, at least a part, back on his land. The evidence suggests that he sought advice, and thereafter replaced the fence to its original position; whereupon appellant instituted this suit for the land. Ap-pellee testifies she knew nothing of the lease and did not consent to it. Aside from her testimony, there are circumstances from which a jury might infer she did know of it, and, if she did not consent to it, she nevertheless acquiesced. Again, the facts in this case suggest that C. F. Somerville was in possession of the land, holding or claiming it as his own, and that his mother, appellee, was living with him thereon, and not he with her. If this shall be found to be true, we see no reason why the principle announced in the case of Hurley v. Lockett, 72 Tex. 262, 12 S. W. 212, should not apply. In that case the controversy was over a strip of land growing out of the location of the true boundary between two surveys. Hurley owned one of the surveys, and M. S. Lockett owned the other. Lockett sought to establish her right to recover under the ten-year statute. Testimony was offered and rejected to the effect that, while Reuben and Charles Lockett were living on the land of M. S. Lockett, they claimed that they were the owners of the place, and they claimed at that time the boundary was where Hurley contended, and did not during the year hold the strip of land in controversy adversely to Hurley. The court held in that case this testimony should have been admitted; that it was not conclusively shown that Reuben and Charles were tenants of M. S. Lockett. There is no contention in this case that C. F. Somerville, when he gave the lease on this land, was in possession of the land as the tenant of appellee. He was there claiming title or simply living with his mother as a servant, or acting for her as agent. He managed the hotel, rented it, and mortgaged it as his own, collected the rents, and in a measure appropriated the proceeds. He had his father’s will probated, and paid the legacies provided for in the will to the heirs. The furniture was retained in the hotel, which was given to appellee by the will, in lieu of her interest in the land. These facts, we think, clearly raise the issue of possession by the son under his claim of title, and, if he was so, then he relinquished it by leasing the land from appellant. Adverse possession for ten years would not, under such circumstances, be established in appellee. The facts also raised the issue of joint possession under a claim of title in the fee by both the mother and son. The son, by leasing the land from appellee, held the possession adverse to his mother for appellant, and she could not be said to be in peaceable adverse possession of the land in question. Neither the mother nor the son had the titleto the land in question. There is evidence in the record tending to show that neither held and used exclusively the possession of the land and neither was the tenant of the other. Would not the acknowledgment by one of the joint possessors of title to the land in appellant and taking possession as the tenant of appellant destroy the peaceable adverse possession of the other? If the possession of the land was in the son, under a lease from appellant, this possession, it occurs to us, would be adverse to appellee. Wiley v. Bargman, 90 S. W. 1116. Unless there was such fiduciary relation existing between ap-pellee and son, such as would preclude an adverse holding by the son, we think appellant would not be barred by the ten-year statute. Mere possession will be presumed to be in subordination to the title of the true owner. The law presumes the true owner is in possession until adverse possession is proved to begin, and when two persons are in mixed possession of the same land, one by title, and the other by wrong, the law considers the one who has title as in possession to the extent of his rights, so as to preclude the other from taking advantage of the statute of limitation. 2 Corpus Juris, Adverse Possession, § 587, p. 264; Satterwhite v. Rosser, 61 Tex. 166; Holland v. Nance, 102 Tex. 177, 114 S. W. 346. As heretofore suggested, the evidence tends to show that O. F. Somerville was claiming title to the lots and was in possession, asserting such ownership in himself, and was not in possession under his mother. If the mother was claiming ownership, and was in possession, she and her son were holding a mixed or joint possession, under different claims of title. Up to five years it may be the possession was held adverse to appellant by both mother and son, but by a joint possession, under adverse claims of title as to each other. After that period, and before the expiration of ten years, the son acknowledged the title of the true owner and leased the land and paid rent for two or three years. Appellant, then by tenant, entered into possession of the land for that period and was thus holding the possession. Appellee, under such circumstances, it occurs to us, would not during that time be in “peaceable, adverse possession.” If the jury should find the mother was in possession, claiming under her community and homestead rights, and the son at the time was in possession with her, claiming title under the willj this would necessarily be a mixed possession. Now, suppose tlie son had purchased the land from the true owner before limitation was complete, could the mother recover upon a title resting alone upon adverse possession for ten years? Did she have exclusive, peaceable, adverse possession for that period? Wherein is the difference between a purchase and a lease? The acts of the son could not have affected the rights or title which appellee may have had; yet she had none, but must rely 'upon peaceable, adverse possession to acquire one by limitation. When the son changed his attitude towards the true owner, that possession which they had theretofore held adverse to the owner ceased to be adverse. “This becomes obvious when it is reflected that, had he completed his purchase and obtained plaintiff’s title, his possession would have been a rightful one held in his own right, and there could have been no holding adverse to his by other members of the family.” Burrell v. Adams, 104 Tex. 183, 135 S. W. 1156. In other words, he would be the true owner in possession, and the wrongful possessor could not prevail under limitation. The rightful title would draw to it the seisin. “Adverse possession is an actual and visible appropriation of the land, commenced and continued under a claim of right, inconsistent with and hostile to the claim of another.” Article 5681, R. C. S. In this state, as we .understand the rule, it is not necessary to show actual notice of such possession to the true owner, but it must be actual, continuous, visible, notorious, distinct, and hostile. It is stated by the courts that such holding is necessary so “that the adverse claimant may be thus notified that his title is disputed.” Gillespie v. Jones, 26 Tex. 346; Richards v. Smith, 67 Tex. 610, 4 S. W. 571; Cyc. vol. 1, p. 1032 (b).

In Richards v. Smith, supra, it is said:

“When the acts done upon a tract of land are such as to give unequivocal notice to all persons of a claim to it adverse to the claim of all others, and this is accompanied by an actual possession, exclusive in its character, then limitation will run in favor of the person so asserting adverse claim, and enjoying an exclusive possession from the time such exclusive occupancy began, whether the land be inclosed or not.”

Again, it is said in Mhoon v. Cain, 77 Tex. 316, 14 S. W. 24, in order for possession to be adverse to the true owner, it “must be ‘of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.’ ” Also see Bender v. Brooks, 103 Tex. 329, 127 S. W. 168, Ann. Cas. 1913A, 559.

Gan the evidence in this case be said to conclusively show “unmistakably an assertion of claim of exclusive ownership” in ap-pellee? She was an occupant thereon, and so was the son. If the evidence conclusively showed that the possession was her possession, and not the son’s, and that she was exercising such possession under her claim of title, and which was sufficient to afford appellant notice of that fact, then we might sustain appellee’s contention. We think appellant, under the evidence in this case, may well have understood she was not in possession, asserting a claim of exclusive ownership. Of course, if the facts show that ap-pellee was so in possession, and appellant knew that fact, or if the facts’Show that she was in possession and so occupied the land, and it was of such a character as to unmistakably show she was asserting under such possession an exclusive ownership, then ap-pellee would be entitled to recover. The burden is on the appellee in this case to prove such possession under claim of title.

The trial court therefore could not have instructed a verdict for appellee under the ten-year statute, and, if the charge of the court was error, as held by us, on the five-year the error was material.

The fifth and sixth assignments will be overruled. The question of- election under the will was one of fact. If appellee accepted under the will, she had no right to the land, and, in so far as she was concerned, the act of G. IP. Somerville in leasing the land did not matter, if she was claiming the land. If appellant desired the submission of the question of her election under the will, it should have requested a charge to that effect On the hypothesis of appellee’s theory urged by her, the charges of the court objected to were correct. If appellant desired its theory presented, a proper charge should have been requested presenting its theory. On the question of election we refer to what has been said in disposing of the first assignment and the authorities cited thereunder, and we also cite the additional cases of Carroll v. Carroll, 20 Tex. 731; Moss v. Helsley, 60 Tex. 426.

For the reasons above suggested, we overrule the seventh assignment.

The appellant requested the following charge:

“You are charged that, if you believe from the evidence that from 1904 to 1911 G. F. Somer-ville had actual control and management of the property in controversy and was authorized by his mother to control and manage her property, and that in leasing the property, in controversy from plaintiff he was acting within the scope of the authority granted by his mother, you will find for the plaintiff as against the defendant and intervener.”

This court is unanimous in the opinion that the trial court was not in error in refusing the above charge, and we have decided not to express the views of the majority with reference to the principles sought to be presented by the charge, and withdraw our opinion with reference to the same, heretofore filed in this case.

The ninth assignment will be overruled, for the reason particularly that under the facts submitted the jury were instructed to find against C. F. Somerville. The jury, in refusing to render a verdict for Mm, and finding for the intervener, practically found against 0. F. Somerville, and the refusal of the charge became immaterial, if otherwise correct, which we do not now decide.

The tenth assignment is overruled. We think the charge was correctly refused.

The eleventh assignment is overruled. There was some evidence as to the payment of the taxes for the year 1903, and it would have been improper to charge the jury that there was none. If the charge had requested the issue to be submitted as one of fact to be found by the jury, it should have been given under the testimony in the record.

For the reasons given, the judgment will be reversed and the cause remanded for another trial.

The motion for rehearing will therefore be overruled, but, as we have given a different reason for reversing the case to that given in the former opinion, appellee will be permitted to file a motion for rehearing on this opinion.

On Motion for Rehearing.

In some measure appellee’s criticism of our use of joint possession in the original opinion, is correct, as there, of course, can be but one possession. We might more properly have expressed our meaning by saying “occupancy.” We are well aware of the class of cases in which the question of mixed possession has found expression. This is an anomalous case. The true owner of this land found two occupants on it. One had or claimed title to it, as would appear from the probate records by will, and before ten years had elapsed he acknowledged the title of appellant and leased the land as its tenant. Thereafter the true owner is in possession by tenant. The appellee was in possession, or rather living in the house on another portion of the lot. Why should not the rule of mixed possession apply in this kind of a case? We believe it should. Again, the appellee, under the law, as we conceive it, must have had actual, open, visible, exclusive, distinct, and hostile possession. It must have been such ás would give notice to the owner that its title is disputed. This joint occupancy by the mother and son, especially after the lease by the son, does not by the record, we believe, conclusively show that ap-pellee had such exclusive hostile possession. The fact that the jury may have found such hostile possession was had for five years might be warranted under the facts; for neither mother nor son was occupying the land as the tenant of appellant up to that time. Thereafter the jury may have well concluded appellee did not have actual, exclusive, and hostile possession such as to give notice to appellant of an adverse claim of title to it.

The motion will be overruled.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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      <@=u>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, O. J.

license: Public Domain

text:
    LEVY et al. v. DUNKEN REALTY CO.

    (No. 5488.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 20, 1915.)
    1. Brokers &wkey;>82 — Actions for Commissions —Complaint—Allegations as to Ability and Willingness.
    In a broker’s action for commissions for procuring a contract for the exchange of lands between defendants and C., which provided that if either party failed to perform, such party should forfeit and pay to the other party a specified sum as liquidated damages, an allegation that C. was at all times ready, able, and willing to carry out the contract and take defendants’ property upon the terms agreed upon, as evidenced by such contract, was more than an allegation that he was ready, able, and willing to take the property or pay the stipulated penalty, and was a specific and distinct allegation of his ability and willingness to exchange the property upon the terms agreed upon.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 101-103; Dec. Dig. &wkey;S2.]
    2. Trial &wkey;>343 — Verdict —• Construction and Operation.
    In a broker’s action for commissions, where the testimony on an issue as to plaintiff’s breach of a contract to procure a loan for defendants with which to clear up an incum-brance was conflicting, and such issue was submitted to the jury, a verdict for plaintiff necessarily decided it against defendant.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 809-812; Dec. Dig. &wkey;>343.]
    3. Brokers <@=61 — Right to Commissions— Failure of Negotiations.
    Though brokers with whom defendants listed property for sale or exchange, and who had knowledge of the existence of incumbrances on the property, could not themselves have made a contract binding defendants to sell or exchange their property otherwise than subject to the incumbrances, where defendants made a contract to exchange lands with a party procured by the brokers which bound them to remove such incumbrances, the brokers were entitled to their compensation, notwithstanding their knowledge of the incumbrances, and though defendants’ failure to comply with the contract resulted from their failure to remove such incumbrances.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 77, 78, 92, 93; Dee. Dig. &wkey;61J
    4. Brokers <@=82 — Actions for Commissions —Complaint—Allegations as to Ability and Willingness.-
    In a broker’s action for commissions for procuring a contract for the exchange of lands between defendants and C., plaintiff’s allegation that C. was ready, able, and willing to carry out the contract was equivalent to an allegation that he had title to the property he contracted to exchange, especially where it otherwise appeared that the failure to carry out the contract was due to defendants’ failure to remove incumbrances from their property.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 101-103; Dec. Dig. <@=82. ]
    5. Pleading <&wkey; 129 — Failure to Deny — Admissions — Actions for Commissions — Evidence.
    Where, in a broker’s action for commissions for procuring a contract for the exchange of lands between defendants and C., defendants’ answer alleged that the trade was not consummated because of incumbrances on their property, and that by reason of their failure to remove such incumbrances, they became liable to C. for liquidated damages, their brief on appeal stated that the trade was not consummated because of such incumbrances, and one of the defendants testified that he paid O. $2,500 on account of their liability under the contract, it sufficiently appeared that O. did not break the contract, especially where the petition alleged that C. was at all times ready, able, and willing to carry out the contract, and the statute then in force required parties to swear to their pleadings, and provided that the failure of the opposite party to deny under oath a fact thus pleaded should operate as an, admission of the truth of such fact, and defendants did not deny the allegation in question.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 270-275; Dee. Dig. &wkey;129J
    6. Pleading &wkey;>290 —Evidence Admissible under Pleadings.
    Where defendants did not deny under oath the truth of an allegation in the petition that plaintiffs were partners, as they were required to do by the statute then in force in order to make it an issue, evidence that they were not partners was properly excluded.
    [Ed. Note. — For other cases, see Pleading, Cent.Dig. §§ 859-863, 886y2 ; Dee.Dig. &wkey;290.]
    7. Trial <&wkey;329 — Verdict — Sufficiency — Failure to Dispose oe Issues.
    Where, in a broker’s action for commissions for procuring a contract for the exchange of lands which defendants failed to perform, defendants pleaded as a defense plaintiffs’ breach of a contract to procure a loan to enable them to clear up an incumbrance on the land, and this issue was submitted to the jury by a charge requiring a verdict for defendants if such issue was decided in their favor, a general verdict for plaintiffs for a specified sum, disposed of defendants’ cross-action for expenses claimed to have been incurred by reason of plaintiffs’ alleged breach of contract, and judgment was properly rendered against defendants on such cross-action.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 774-776, 782; Dec. Dig. &wkey;329.]
    8. Pleading <&wkey;406 — Waiver oe Errors.
    Where, in a broker’s action for commissions, though the allegation of the petition charging defendants with fault was general, and did not specify in what particular they had breached their contract, it was not excepted to for that reason, it had its standing in court as a plea fixing responsibility upon defendants for their failure to consummate the deal.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1355-1359, 1361-1365, 1367-1374, 1386; Dec. Dig. &wkey;406.]
    9. Trial <&wkey;251 — Instructions—Conformity to Issues — Actions-for Commissions.
    Where, in .a broker’s action for commissions for procuring a contract for the exchange of lands which defendants failed to perform, the supplemental petition alleged that the other party to the contract was at all times ready, able, and willing to carry out the contract, and that if the contract was not carried out by defendants, it was the fault of defendants themselves, an objection tó a special charge on the ground that the pleadings raised no issue as to whether it was defendants’ fault that the contract was not performed was not well founded.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. &wkey;251.]
    10. Appeal and Error &wkey;>835— Objections to Instructions — Waiver.
    Objections to a paragraph of the court’s main charge and to a special charge, contained in a motion for .a rehearing, were waived, where in appellants’ brief no complaint was made of such paragraph of the charge and a different, objection was made .to the special charge in question. ■
    „[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3241-3243; Dec. Dig. <&wkey;> 835.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    On motion for rehearing.
    Motion overruled.
    For former opinion, see 178 S. W. 984.
    Gross & Street and W. L. Eason, all of Waco, for appellants. J. A. Stanford, of Waco, for appellee.

      Application for writ of error pending in Supreme Court.

   KEY, O. J.

Appellants have presented an elaborate motion for rehearing, which has been duly considered and the conclusion reached that it should be overruled. In that motion, among other things, it is said:

“We earnestly insist that the court give to this case that mature consideration which it deserves, as we feel, as is shown by its opinion in this case, that you have not heretofore given much consideration to it.”

Assuming that the statement quoted was made in good faith, and conceding the right to so make it, we have concluded to write this additional opinion, in order that it may be seen that the case has received due consideration at the hands of this court. If the charge that this court had not given sufficient consideration to the ease is based upon the fact that we did not, in our original opinion, discuss all the questions presented in appellants’ brief, then every appellate court in this state, and perhaps in all others, is subject to the same criticism, as that course is pursued in a majority of cases decided by all other appellate courts; and any other course would be impracticable if the business of s.uch courts is to be disposed of with any reasonable degree of dispatch.

On the last page of the brief upon which appelants submitted the case to this court it is stated that, while some minor questions are presented, yet the real questions involved in the appeal are only three, viz.:

First. “That appellees predicate their right to recover on the theory that they procured the execution of the contract in suit, which contract is not capable of specific performance in a court of equity, and therefore they did not earn a commission when they procured its execution. It was incumbent on them to show that Crowley was ready, able, and willing to exchange properties with the Levys, and this they have failed to do. They allege that Crowley was ready, able, and willing to carry out his contract, that is to say, he had the right to demand the forfeit.” Second. “Appellees knew of the incum-brances on appellants’ property when the same was listed, and the trade in question was not consummated because of these incumbrances. It is well settled that a real estate broker cannot recover a commission from his customer where a trade is not consummated by reason of defects known to the broker at the time he accepts the listing.” Third. “Appellees failed to show that Crowley had a good title to the Tar-rant county land, and for that reason the contract in question was not capable of specific enforcement in a court of .equity, and therefore the real estate broker is not entitled to his commission. A party must prove his case before he can recover.”

When the record is examined, even conceding that appellants’ contention that the contract between them and Crowley was not capable of enforcement by suit for specific performance is correct, still, the three questions enumerated in appellants’ brief are not difficult of solution, and therefore do not require any very extended consideration. As to the first of these questions; the answer to appellants’ contention is that appellees not only alleged in their original petition that Crowley was ready, able, and willing to carry out his contract, but in their supplemental petition they alleged—

“that the said A. E. Crowley was at all times ready, able, and willing to carry out said contract and to take defendants’ property upon the terms agreed upon as evidenced by said written contract as set out in plaintiffs’ amended petition, and if said contract was not carried out by the defendants, then it was the fault of the defendants themselves, for which these plaintiffs are in no way responsible.”

The allegation that Crowley was at all times ready, able, and willing to carry out the contract and take appellants’ property upon the terms agreed upon was more than an allegation that he was ready, able, and willing to take appellants’ property or pay the penalty stipulated in the contract. It was a specific and distinct allegation of his ability and willingness to exchange property with appellants upon the terms agreed upon in the written contract.

The answer to appellants’ second contention is that appellees brought Crowley and appellants together, and they entered into a written contract, by the terms of which appellants obligated themselves to remove the incumbrances referred to; and, such being the case, appellees were entitled to compensation for their services as brokers, unless they were in fault in procuring appellants to make the contract, 'or unless they made and breached the contract pleaded by appellants in the eighth and ninth paragraphs of their amended answer, which read as follows:

“(8) These defendants further represent that it was expressly understood and agreed between plaintiff herein and these defendants that said loan should be negotiated against said Wise county land, and that in case same was not negotiated, and for that reason exchange of properties should not be consummated by actual delivery of deeds, then in that event defendants should not be liable to plaintiff for any commission whatsoever, but in case said loan should be negotiated, and said exchange of properties be finally consummated by the passing of deeds, then in that event it was understood and agreed that these defendants should pay plaintiff the sum of $1.000. These defendants further represent that they entered into the contract with A. E. Crowley upon the faith which they had in the representations and guaranty of plaintiff herein that he would negotiate a loan against said land sufficient to clear the incumbrance which was against these defendants’ property in Waco, Tex.
“(01 These defendants further represent that after the execution of said contract with the said A. F. Crowley plaintiff and these defendants undertook to procure a loan .against said land in Wise county, as hereinbefore described, but that in this their efforts were futile; that by reason of their inability to procure such loan the agreement between these defendants and A. F. Crowley was not finally consummated. Wherefore these defendants say that by reason of the foregoing they never became liable -or bound to pay plaintiff any sum whatsoever.”

Appellees denied under oath that such contract was made. The issues so made and upon which the testimony was conflicting were submitted by the court to the jury and the verdict for appellees necessarily decided these issues against appellants. The result of the verdict is that the agreement pleaded by appellants as a defense was never made; and, in the absence of such an agreement, if appellants listed their property with appellees for sale or exchange (which appel-lees charged in their petition and appellants admitted in their answer) then, if they brought the parties together, although appel-lees may not have been authorized to bind appellants to remove the incumbrances upon their property, yet if appellants themselves entered into a contract with Crowley by which they bound themselves to do so, appel-lees had the right to recover their compensation as brokers, although they knew the existence of the incumbrances when the property was listed with them, and although the failure of appellants to comply with their contract with Crowley resulted from their failure to remove the incumbrances referred to.. Hamburger & Dreyling v. Thomas, 118 S. W. 770. We quote as follows from the opinion in. that case, including the authorities there-cited :

“The rule seems to be well settled that where-a real estate broker has contracted for a certain compensation for procuring a customer to-purchase on certain terms and conditions, and he procures a purchaser who agrees to purchase under modified terms and conditions differing from those the agent was authorized by his principal to make, and such terms, as modified, are agreed to by the owner of the property by his entering into a written contract of sale, embodying the modified terms and conditions, with the purchaser, the- broker is entitled to his compensation as stipulated in his contract of agencyr if through the failure of his principal to comply with the terms and conditions he has undertaken on his part to perform and comply with the contract of sale is not consummated. Graves v. Bains, 78 Tex. 94, 14 S. W. 256; Conkling v. Krakauer, 70 Tex. 789, 11 S. W. 117; Hahl v. Wickes, 44 Tex. Civ. App. 76, 97 S. W. 838; McDonald v. Cabiness (Tex. Civ. App.) 98 S. W. 943; Id., 100 Tex. 615, 102 S. W. 721; West v. Thompson [48 Tex. Civ. App. 362], 106 S. W. 1134; Stewart v. Mather, 32 Wis. 344; Gilder v. Davis, 137 N. Y. 504, 33 N. E. 599, 20 L. R. A. 398; Lockwood v. Halsey, 41 Kan. 166, 21 Pac. 98; Gelatt v. Ridge, 117 Mo. 553, 23 S. W. 884, 38 Am. St. Rep. 683; Smith v. Schiele, 93 Cal. 144, 28 Pac. 857.”

So it seems quite clear that, although ap-pellees, having knowledge of the existence of the incumbrances, could not themselves have made a contract binding appellants to sell or exchange .their property otherwise than subject to the incumbrances, yet when appellants made a contract binding themselves to remove the incumbrances, appellees were entitled to their compensation as brokers, unless their right thereto was defeated by the matters pleaded in appellants’ answer.

Appellants’ third proposition is answered by citing the fact that at the time this case was tried the statute was in force which required parties to swear to their pleadings, and provided that the failure of the opposite party to deny under oath a fact thus pleaded should operate as an admission of the truth of such fact. As shown by the quotation from appellees’ supplemental petition, they alleged that Crowley was at all times ready, able, and willing to carry out the contract by taking appellants’ property, and appellants did not, by any pleading, sworn to or otherwise, deny the allegation so made in appellees’ supplemental petition. Crowley could not have been able to carry out his contract and convey to appellants a good title to his property unless he had such title, and therefore the averment that he was able to convey such title was equivalent to saying that he had such title. Besides, it is averred in appellants’ answer that the trade in question was not consummated because of the incumbrances upon their property, and that by reason of their failure to remove such incumbrances they became liable to Crowley for $2,500, the damages stipulated in the contract between them; and it is also stated in appellants’ brief that the trade was not consummated because of the incumbranc-es referred to; and it is shown by the testimony of appellant Ike Levy that he paid Crowley- $2,500 on account of such liability under the contract. What has been said in reference to this matter relates to appellants’ contention, made elsewhere in their brief and also in the motion for rehearing, that appellees were not entitled to recover because they failed to prove that Crowley had submitted to appellants an abstract, showing that he had title to his property, within the time required by the contract Appellants’ statement in their answer that on account of their failure to remove the incumbrances from their property they thereby breached their contract with Crowley and became liable to him for $2,500, and the testimony given by one of them that they, paid Crowley that sum because of such liability, and the admission in appellants’ brief that the trade in question was not consummated because of such incumbrances, is sufficient to satisfy this court that Crowley did not breach the contract, and was ready, able, and willing to carry it out by conveying to appellants the property he contracted to convey.

This covers all the questions presented in appellants’ brief except the minor question, hereafter adverted to. It is contended that error was committed in not permitting appellants to prove that appellees were not partners, as alleged in their petition. Appellants did not deny under oath the truth of that allegation, as they were required to do by statute in order to make it an issue, and therefore we overrule their contention in that regard.

Error is also assigned upon the action of the court in rendering judgment against appellants upon a cross-action which they set up against appellees; the contention being that the cross-action was not disposed of by the verdict. The verdict was a general finding for the plaintiffs for a specified sum of money, no reference being made therein to appellants’ cross-action; but the cross-action was founded upon the facts pleaded in defendants’ answer as a defense. In other words, it was alleged that by reason of ap-pellees’ failure to comply with their agreement to procure a loan for them, appellants were entitled to recover from appellees $25 which they had paid an attorney to examine the title to the Crowley property, $100 paid to the same attorney for going to Ft. Worth and endeavoring to induce Crowley to release appellants from their obligation to pay the $2,500 penalty, and another sum of money which constituted the expense of shipping cattle to Ft. Worth to discharge appellants’ indebtedness to Crowley. Thus it appears that appellants sought to predicate appellees’ liability upon the fact that they had breached their contract to secure a loan for appellants; and, as that issue was submitted to the jury and decided against appellants under a charge requiring a verdict for them if decided in their favor, it necessarily follows that the verdict of the jury does in fact dispose of the cross-action.

Before closing this opinion we deem it proper to call attention to the fact that, while in their first assignment of error appellants complain of the action of the trial court in overruling a special exception to the plaintiffs’ petition, the record does not show that the exception referred to was ruled upon or called to the attention of that court. In so far as the record shows, appellants either concluded to abandon that exception or negligently failed to call it to the attention of the court and have it ruled upon. At any rate, the record does not sustain that assignment. However, the exception in question should not have been sustained. It asserted that inasmuch as appellees’ petition showed upon its face that appellants had entered into a contract with Orowley which would not support an action for specific performance, appellees were not entitled to recover compensation for the services rendered by them in regard to the matter. Appellees alleged that the failure to consummate the deal was caused by the fault of appellants; and, if such was the case, and the other necessary facts were shown, then appellees were entitled to recover as brokers, even though the contract may not have been such as would have supported a suit for specific performance — a point upon which we express no opinion. It is true that the plea charging appellants with fault was general, and did not specify in what particular appellants had breached their contract, but it was not excepted to for that reáson, and therefore it had its standing in court as a plea 'fixing responsibility upon appellants for the failure to consummate, the deal between them and Crowley.

Also attention is called to the fact that nearly nine pages of appellants’ motion for rehearing are devoted to complaints urged against a certain paragraph of the court’s charge and a special charge given at the request of appellees, submitting to the 'jury the issues of fact involved in the case. In appellants’ brief no complaint was made of that paragraph of the court’s charge, but the special charge referred to was assigned as error, the sole objection being, as shown by the only proposition submitted under that assignment, that the pleadings did not raise any issue as to whether or not it was appellants’ fault that the properties were not exchanged, and therefore that issue should not have been submitted to the jury. What we have already said refutes that contention. We have already quoted from appellees’ supplemental petition the allegation that if the deal between appellants and Crowley was not consummated, it was on account of appellants’ fault, which pleading renders it apparent that that complaint in appellants’ brief against the action' of the court in giving appellees’ special charge No. 2 was not well founded. However, in appellants’ motion for rehearing five other objections are urged against the action of the court in giving that charge, and the charge given by the court, upon which no error was assigned. Those objections do not disclose fundamental error; and, if they indicate such error as might have required a reversal of the case if presented in time, they must now be considered as waived on account of the failure of appellants to present them in the time and manner required by law. However, it is proper to say that the controlling questions as to the merits of the case as summarized on the last page of appellants’ brief were presented by other assignments complaining of the action of the court in refusing to instruct a verdict for appellants, and in refusing to give certain other requested instructions. • At the original hearing those questions, as well as all others presented in appellants’ brief, received all the consideration at the hands of this court that was deemed necessary for their proper decision; and a reconsideration of them in the light of appellants’ motion for rehearing, instead of producing any doubt upon the subject, has confirmed the belief that our former decision was correct, and therefore the motion for rehearing is overruled.

Motion overruled.
      ®=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    PYE et al. v. CARDWELL.
    (No. 6864.)
    (Court of Civil Appeals of Texas. Galveston.
    June 10, 1915.)
    Appeal and Ebbor i&wkey;833 — Motion por Ke-hbaring — Piling.
    Where appellee’s motion for rehearing contains much abusive and vituperative language referring to appellant, it will be dismissed, with leave to file another.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3214, 3229-3240, 324A-3246; Dee. Dig. &wkey;>833.]
    Appeal from Galveston County Court; Geo. E. Mann, Judge.
    Action between B. P. Pye and others against Margaret Cardwell. There was a judgment for the latter, and the former appeal. On appellee’s motion for rehearing.
    Motions stricken, with leave to file a second motion.
    Lipscomb & Lipscomb and B. P. Pye, all of Beaumont, and Lewis Pisher, of Galveston, for appellants. Geo. G. Clough and Aubrey Puller, both of Galveston, for appellee.
   PLEASANTS, C. J.

Upon reading the motion for rehearing filed by appellee, we find that, along with propositions and arguments of clearness and force which are entitled to a careful consideration, it contains much abusive and vituperative language referring to appellants. This abuse and vilification of appellants is several times repeated in the motion, and we feel constrained to express our condemnation of such language in a paper addressed to and filed in this court.

Whether or not appellants have acted in a way to justify the reflections cast upon them by counsel for appellees is immaterial. We cannot permit the records of this court to be made a channel through which attorneys or parties may cast abuse and vilification upon each other, and our files cannot be used to preserve documents containing violent and abusive language of the kind contained in this motion. It evidences a lack of proper respect for this court for counsel to present to it a motion of this character, and such action might properly be treated and punished as contempt.

We will not do more, however, than to order the motion stricken from the files and returned to its author. Appellee will be granted ten days in which to file a proper motion, and when such motion is filed it will have, our careful consideration.
      <§=>For other cases see same topic and KEY-NUMBER'in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    FIRST NAT. BANK OF KNOX CITY et al. v. LESTER et al.
    (No. 7124.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 15, 1915.
    Rehearing Denied Oct. 28, 1915.)
    1. Appeal and Error i&wkey;>424 — Writ op Error — Citation—Statute.
    Under Rev. St. 1911, art. 2095, providing that if a party is a nonresident, or if it appears from the return that he cannot be found in the county of his residence; the citation in error shall direct service on his attorney of record, service upon a party’s attorney of record, instead of upon the party who resided in the county where the case was tried, was invalid and did not confer jurisdiction upon the Court of Civil Appeals to pass upon the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2152-2154; Dec. Dig. <&wkey;> 424.]
    2. Appeal and Error &wkey;>627 — Writ op Error-Citation — Service.
    Where judgment was rendered in the county court January 15, 1914, and an original citation in error was attempted to be served January 8, 1915, by delivering a copy to the defendant in error’s attorney, and where defendant in error’s motion for affirmance of the judgment below, made on June 17, 1915, was refused on the ground that service of the citation in error was invalid, and an alias citation' in error was duly served, plaintiff in error’s failure to file the record in the Court of Civil Appeals within three months after the original service which he believed to be regular was such laches as to require a dismissal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2744r-2749, 3126; Dec. Dig. <@=^627.]
    Error from Harris County Court at Daw; Clark C. Wren, Judge.
    Action between the First National Bank of Knox City and others, and J. E. Lester and others. Judgment for Lester and others, and the bank and others bring error.
    Dismissed.
   McMEANS, J.

Defendants in error have filed a motion to dismiss the writ of error in this case on account of laches of the plaintiffs in error in filing the record in this court, and we are of the opinion that the motion should be sustained.

The judgment from which the writ of error was prosecuted was rendered in the county court on the 15th day of January, 1914. The petition and bond for writ of error were filed in the trial court by plaintiffs in error on January 7, 1915, and citation in error was issued on the same day; and on the next day it was attempted to be served on the defendants in error, who were residents of Harris county, by delivering a copy of the citation to one of their attorneys of record. The defendants in error being residents of the county in which the case was tried, the service of citation upon their attorneys of record, instead of upon the defendants in error in person, was invalid, and did not confer jurisdiction upon this court to pass upon the appeal. Article 2095, Revised Statutes 1911; National Cereal Co. v. Earnest, 84 S. W. 1101; Oge v. Froboese, 63 S. W. 654; McCloskey v. McCoy, 89 S. W. 450.

The records of the court show that on June 1, 1915, the defendants in error filed a motion for affirmance of the judgment of the court below, accompanied by a certificate for affirmance; but the motion, on June 17, 1915, was refused for the reason that the service of citation in error was invalid and that therefore this court had not acquired jurisdiction. Afterwards, on June 9, 1915, the plaintiffs in error procured the issuance of an alias citation in error, which was duly served, and thereafter, on the 22d day of June, 1915, filed the record in this court.

The attorney representing the plaintiffs in error, in his affidavit in opposition to the motion to dismiss, says that he did not know of the defective service of citation until June 17th, and that he then procured the issuance of the alias citation on June 19th, and had the same promptly and properly served, and urges his want of knowledge of the defective service as an excuse for the delay in filing the record. It seems to us that his want of knowledge accentuates the laches rather than excuses it.

The original citation was served on January 8, 1915. If it had been properly served, it would have been the duty of the plaintiff in error to file the record on appeal in this court not later than three months thereafter. Plaintiffs in error’s counsel believed the citation had been properly served, but notwithstanding this he made no effort to file, and did not file, the record in this court within the time provided by law, but permitted the time to lapse; so that, had the citation been properly served, he would have lost his right of appeal by the delay. On June 1st the motion to affirm on certificate was filed by defendants in error in this court and a copy thereof was promptly served on plaintiffs in error’s counsel, but counsel urged no opposition thereto; and it was not until this court refused to affirm on certificate on June 17th that counsel became aware of the defective service and the consequent want of jurisdiction in this court to pass upon the motion.

Had the counsel, believing that the service had been properly made, filed the record on appeal in this court within the time prescribed by law, and the appeal had then been dismissed for want of jurisdiction on account of the defective service, and had he then promptly sued out and caused to be properly served an alias citation, and brought the record to this court within the prescribed time, we think that a sufficient showing of diligence could'have been made; but to allow' the time to elapse within which the record could be filed in this court, believing, as he did, that the service was regular, and,not knowing that it was not regular until more than two months after the time of filing had elapsed, seems to us to evidence such a want of diligence in prosecuting the writ of error as to require a dismissal of the appeal on motion of the parties adversely interested.

Dismissed.
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MOSSOP v. ZAPP.
    (No. 7159.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 4, 1915.)
    Appeal and Error <&wkey;767 — Briefs — Striking Out — Abuse of Lower Court and Opposing Counsel.
    A brief of appellant, alleging that the decree took his property and gave it to plaintiff as a matter of charity, unauthorized by any evidence, or by any principle of law or equity, that it amounted to nothing more or less than judicial robbery, that appellant, who was willing to let appellee rescind the contract, was prevented from doing so by the advice of her counsel contrary to her own interest induced by having the trial court give him a verdict for his foolish advice, and a motion by appellee referring to opposing counsel in abusive and vituperative language, would be stricken from the files on the court’s own motion, and appellant allowed 20 days to file a brief from which the objectionable language was expunged.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3102; Dec. Dig. &wkey;>767.]
    Error to District Court, Fayette County; Frank S. Roberts, Judge.
    Action by Mrs. Isolda Zapp against Y. F. Mossop. Judgment for plaintiff, and defendant brings error.
    Brief of appellant and motion of appellee to strike it from the files both stricken on the court’s own motion, and appellant allowed 20 days within which to file another brief.
    John T. Duncan, of La Grange, for plaintiff in error. C. D. Krause, of La Grange, for defendant in error.
   PLEASANTS, C. J.

Appellee has filed a motion asking that the brief of appellant be stricken from the files of this court because of the abuse and vilification therein contained of the trial judge and of counsel for ap-pellee.

The following excerpts from appellant’s brief copied in the motion are, upon examination, found .to be correct copies:

“Because the decree of the court * * * was an indirect attempt on the part of the court to take the property of the defendant and give it to plaintiff as a matter of charity.”
“The plaintiff in error, Mossop, does not feel that the trial court had the right to run his hands into his pockets and take his money and give it to the defendant in error for her to compensate her counsel for giving the advice that she received. * * *
“The judgment of the court in taking the property of plaintiff in error and giving it to the defendant in error was an act of charity to say the least of it, on the part of the court, which was unauthorized .by any evidence in the case and by any principle of law or of equity known to our jurisprudence. If the court had wanted to have done an act of kindness for the plaintiff, he would have denied to the plaintiff in the court below any relief whatever, but would have referred her to her contract which she had made and would have advised her that she was fully protected under that, and that none of her rights had been invaded, and no wrong had been done to her directly or indirectly, either legal or equitable, of which she could complain and she would have been dismissed out of court and adjudged to pay the costs of the proceedings. But inasmuch as the defendant was willing to let her rescind the contract, however beneficial it was to her and however burdensome it was to him, then the court should have stopped there; but for the court to have gone further and put its hands in the plaintiff in error’s pocket and take $150.00 of plaintiff in error’s money and give it to the defendant in error, this was a little more than ordinary humanity could stand. We say that this act of taking plaintiff in error’s money and giving it to the defendant in error without any just cause or without ahy legal or equitable ground is nothing more nor less than judicial robbery. * * *
“This he (plaintiff in error) was prevented from doing by advice of counsel (referring to counsel for defendant in error) who, according to the undisputed evidence in this case, had advised his client contrary to her own interest, and it appears that the inducement that he had in doing this is to have the trial court to give him $300 for the foolish advice which he had given his client.”
“Then an able counselor (referring to counsel for defendant in error) appears upon the scene, and by advice not based upon an investigation she is induced to rescind or recede from this agreement.”
“We are willing to concede that the advice which Mrs. Zapp’s lawyer gave her was far more beneficial to Mr. Mossop than it was to Mrs. Zapp. It certainly saved Mr. Mossop over $2,000.00. It certainly cost Mrs. Zapp over $2,000.00.
“The plaintiff in error alleged that Mrs. Zapp’s attorney was willing to recommend to Mrs. Zapp the purchase of the bonds if plaintiff ■in error would pay him a fee of $250.00, which plaintiff in error alleged that he refused to do. * * *
“On special exceptions of defendant in error this allegation was expunged under the order of the court. The record does not show this order of the court, but the defendant’s answer shows that the allegation was erased. For this reason the court refused to hear any evidence on this issue, and hence no evidence was introduced in support of it.”

That this language is improper and could serve no useful purpose in fairly presenting to this court the issues raised by this appeal must be fully recognized by the distinguished lawyer who signs appellant’s brief. The greatest latitude should be allowed counsel in presenting their arguments in an appellate court; but whenever they allow their personal animosities to control them, and indulge in abuse or vilification of opposing counsel, or speak disrespectfully of the trial court, they exceed their rights and evidence a want of proper respect for the court in which such argument is presented. In a recent case in which we, upon our own motion, struck from the files of this court a motion for rehearing because it contained abusive and vituperative language in regard to opposing counsel, we said:

“We cannot permit the records of this court to be made a channel through which attorneys .or parties mgy cast abuse and vilification upon each other, and our files cannot be used to preserve documents containing violent and abusive language - of the kind contained in this motion. It evidences a lack of proper respect for this court for counsel to present to it_ a motion of this character, and such action might properly be treated and punished as contempt.”

The motion filed by appellee in its abusive and vituperative language in reference to opposing counsel is on .a par with the foregoing excerpts from appellant’s -brief, and we will permit neither of them to remain on file in this court. Attorneys who practice in this court must understand that we will never permit an argument to be made .or filed in this court which, by its abuse- of the trial court or of opposing counsel, shows a want of proper respect for the dignity of our courts, the agency created and commissioned by the people of the state to interpret and enforce their sovereign" will as expressed in their laws, and all the power of this court will be exercised to secure a proper recognition and observance by attorneys of the rules of decorum necessary to an orderly and dignified administration of law by the courts.

The brief of appellant and the motion of appellee will both be. stricken from the files of this court and returned to their respective authors, on the court’s own motion. Appellant will be allowed 20 days in which to file a brief from which the objectionable language before quoted has been expunged.
      cS^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. MUDD.
    (No. 5517.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 27, 1915.)
    Trial <&wkey;403 — Delay in Filing Findings— Effect.
    Where the .trial court, upon timely request, failed to file findings of fact within the 10 days .after expiration of the term allowed by Vernon’s .Sayles’ Ann. Civ. St. 1914, art. 2075, his subsequently filed findings of fact and conclusions of law were a nullity, and could not be considered by the Court of Civil Appeals.
    (Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 913, 954-956; Dec. Dig. &wkey;403.]
    Appeal from Frio County Court; S. T. Dowe, Judge.
    ■ Action by G. H. Mudd against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded for trial.
    Cobbs, Eskridge & Cobbs, of San Antonio, and Wilson, Dabney & King, of Houston, for appellant. Magus Smith, of Pearsall, for ap-pellee.
   CARL, J.

Appellee recovered the judgment against appellant for damages to a shipment of stock from Dilley to Ft. Worth.

The first assignment of error complains'that the court erred in failing to file findings of fact and conclusions of law, after timely request, within the time prescribed by law. The judgment was on December 9, 1914, and the transcript shows that the term of court expired on the 12th day of December, 1914. The court filed findings of fact on January 5, 1915, or more than 10 days after the adjournment of said term. Article 2075, Vernon’s Sayles’ Statutes, provides that such findings of fact and conclusions of law shall be filed within 10 days after the adjournment of court. A bill of exceptions was duly reserved to the failure of the court so to file such findings of fact and conclusions of law as prescribed by statute, and there is no statement of facts in the record. This assignment must be sustained, because it has often been held in this state that such findings of fact and conclusions of law, filed more than 10 days after the expiration of the term of court, are a nullity and cannot be considered by the Court of Appeals. Wandry v. Williams, 103 Tex. 91, 124 S. W. 85; Emery, v. Barfield, 156 S. W. 313; Bradford v. Knowles, 11 Tex. Civ. App. 572, 33 S. W. 149; State ex rel. Sutherland v. Pease, 147 S. W. 649; Guadalupe County v. Poth, 153 S. W. 919; M., K. & T. Ry. v. Cameron & Co., 136 S. W. 74; Bliss v. San Antonio School Board, 173 S. W. 1176.

Having sustained this assignment, we would not be justified in attempting to pass upon the other assignments of error; and, for that matter, the things therein complained of will doubtless not arise upon another trial.

The judgment of the trial court is reversed, and the cause remanded for trial.