text:
    BURNHAM et al. v. HARDY OIL CO. et al.
    (No. 2453.)
    (Supreme Court of Texas.
    June 22, 1917.)
    1. Adverse Possession <&wkey;70 — Tiiree-Year Statute — Construction—‘ ‘Title’ ’ — ¡'“Title by a Regular Chain of Transfer from or Under the Sovereignty of tiie Soil.”
    The three-year limitation statute applying where “title” has been acquired by “a regular chain of transfer from or under the sovereignty of the soil” refers to a title held by legal right and not to an equitable right or title, and does recognize as title any mere apparent right to the land granted, or any right less than the actual interest or estate created by the grant, and such title must flow unbrokenly from its source, and must maintain throughout its succession all the elements of its source; the theory of the statute being' that a right evidenced by a grant from the sovereignty, though it be not the better right, is entitled to a measure of protection. The word “title,” however, is sometimes used to denote a right in property, and as thus used is equivalent to “estate,” and is sometimes used to signify the mere legal evidence of a right as distinguished from the real right or beneficial interest, and, used in tbis latter sense, tbe term “legal tide” bas its origin.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 394-414.
    Eor other definitions, see Words and Phrases, First and Second Series, Title.]
    2. Husband and Wins <&wkey;265 — Community Property — Nature of Interest.
    Tho beneficial interests of husband and wife in community property are equal, whether the grant or deed be in the name of one of them, or both of them jointly, and the wife’s interest, although the deed be in the name of the husband alone, is as absolute as that of the husband, since she acquires an interest therein by virtue of the law governing community property.
    [Ed. Note. — For other cases, see Husband and Wife, Gent. Dig. §§ 896, 917-924.]
    3. Husband and Wipe <&wkey;273(9) — Community Property — Surviving Husband’s Right to Convey.
    After tho wife’s death, the husband may legally convey her interest in community property only for the purpose of paying community debts.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1020.]
    4. Estoppel &wkey;>74(l) — Community Property — Conveyance by Surviving Husband — Protection of Innocent Purchaser.
    Where tho legal title to community property is in the surviving husband, the deed or grant boing made in his name, his conveyance to an innocent purchaser, although not for purpose of paying community debts, will pass title as against rights of the wife’s heirs who aro the real owners of the wife’s interest, but this is not so because of any power in the husband to convey the interest, but upon the doctrine of equity which refuses to visit loss upon one who, having the real interest, has been negligent in permitting another to hold tho legal evidence of perfect right in himself.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 189-191.]
    5. Adverse Possession &wkey;>81 — Title to Support — Community Property — Husband’s Transfer — “Title by a Regular Chain or Transfer from or under the Sovereignty of the Soil.”
    Title derived through deed of a surviving husband of community property held in his name and not conveyed for the purpose of paying community debts was not title acquired “by a regular chain of transfer from or under the sovereignty of the soil” supporting limitation under the three-year statute as against the suit of the wife’s heirs for her original community interest in the land, since the husband had absolutely no power of making such conveyance.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 472 — 485.]
    C. Adverse Possession <&wkey;81 — Title to Support — Corporation.
    A cattle company was entitled to prescribe under the five-year statute by virtue of a recorded deed to K. for the company’s benefit.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 472-485.]
    7.Adverse Possession <&wkey;lib-JoiNT Use of Inolosuee.
    The fact that within the inclosure were lands controlled by other persons than defendant, did not render any tho less adverse defendant’s possession of lands which it had owned and controlled within such indosure.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 99-105.]
    8. Adverse Possession c&wkey;44 — Continuity of Possession — Temporary Break in Inclosure.
    Temporary breaks in the inclosure of property claimed by adverse possession do not arrest limitation.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 226-231.]
    9. Adverse Possession <&wkey;27 — Sufficiency of Evidence — Maintenance of Inclosure.
    Evidence held sufficient to show that the outside inclosure of lands claimed by adverse possession was sufficiently maintained for more than the netessary five continuous years.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 121, 122, 652, 664, 684.]
    10. Adverse Possession <&wkey;19 — Maintenance of Outside Inclosure.
    It is only necessary that the outside inelo-sure of lands claimed by adverse possession be sufficiently maintained for tbe required period, and tbe condition of inside fences during that time is immaterial.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 99-105.]
    Error to Court of Civil Appeals, Fourth Supreme Judicial District.
    Action by James IT. Burnham and others against the Hardy Oil Company and others. Judgment for defendants, and plaintiffs appealed to the Court of Civil Appeals, where judgment was affirmed in part, and reversed and remanded in part (147 S. W. 330), and plaintiffs bring error.
    Affirmed.
    See, also, 152 S. W. 182.
    Baldwin & Christian, of Houston, Linn, Conger & Austin, of Bay City, and Devlin & Devlin, of Sacramento, Cal., for plaintiffs in error. Gill & Jones, R. A. John, Baker, Botts, Parker & Garwood, and Harris & I-Iarris, all of Houston, Gaines & Corbett, of Bay City, G. G. Kelley, of Wharton, W. W. King, of San Antonio, and W. B. Garrett, of Austin, for defendants in error.
   PHILLIPS, C. J.

The suit was by James H. Burnham and others, representing the interest of Emily Parker, a daughter of Henry Parker and Henrietta Parker, his wife, for approximately an undivided one-fourth interest in a league of land originally granted to Henry Parker, constituting community property of himself and wife, Henrietta, conveyed by Henry Parker, after the death of his wife, to his son, Wm. E. Parker, to whom, by the will of Henry Parker, which was duly probated it was also devised.

The defendants held the title thus conveyed and devised to Wm. E. Parker. Against the suit of plaintiffs, they pleaded limitation under both the three and five years statutes. Their plea of limitation under tho five years statute was sustained by the trial court as against all the plaintiffs, and under that defense a general verdict in their favor was directed. The judgment was affirmed by the Court of Civil Appeals as to all of the plaintiffs except two. As to those two, Mrs. Emma Irene Legge and Herbert Farjeon, be cause of their minority' at the time of the death of their mother, a daughter of Emily Parker, it was held that the evidence did not conclusively establish that they were barred under the five years statute as to all of the land; and as to them, accordingly,— except as to 1008 acres awarded by the trial court to the defendant, the Northern Irrigation Company, as to which the judgment was affirmed against all of the plaintiffs, — the judgment was reversed and the cause remanded for further trial. 147 S. W. 330.

All of the plaintiffs applied for a writ of error at a time before the amendment of 1913 (Acts 33d. Leg. c. 55), relating to the jurisdiction of this court, became effective. The writ was granted, generally. It conclusively appears that the Northern Irrigation Company has a good limitation title under the five years statute to its 1008 acrqs against all the plaintiffs. The decision of the Court of Civil Appeals did not practically settle the case as between Mrs. Legge and Herbert Farjeon and the other defendants. It was not so claimed in the petition for writ of error. Nor did the petition bring the ease as between them within any of the other exceptions defined in article 941, Revised Statutes of 1S95, giving this court jurisdiction of a reversed and remanded cause. The case has been considered, therefore, only in its relation to those plaintiffs against whom the trial court judgment was affirmed.

A careful review of the record and, in particular, the testimony which it is urged in tire petition for writ of error presented an issue as to title in the defendants under the five years statute of limitation, convinces us that the ruling of the Court of Civil Appeals upon that question was correct. The affirmance of its judgment accordingly results. This would ordinarily render unnecessary any discussion of another defense in the case. But since it is asserted that some confusion exists in the decisions of the court upon the question of the application of the three years statute of limitation to a case of this character, we deem it best, in view of the importance of the question and its general interest, to give it some attention, particularly since a branch of the case is to be retried, where it is doubtless intended to again urge this defense. We will therefore, discuss this question before turning to the features of the case which in our opinion entitle to affirmance the holding of the Court of Civil Appeals as to the defendants’ title by limitation of five years.

The grant of the league was in the name of Henry Parker. It showed upon its face that the land was the community property of himself and his wife, Henrietta, then living. It was owned by the community at the time of Henrietta Parker’s death, in 1835. There was no partition of the community property between Henry Parker and-the children of himself and his: wife, Henrietta, of whom, as stated, Emily Parker, through whom the plaintiffs claim, and who married James G. Burnham, was one. The conveyance of the league by Henry Parker, after his wife’s death, to Wm. E. Parker was not for the purpose of paying debts of community, but for a stated consideration of $509.00.

Holding by regular conveyances the title to the league acquired by Wm. E. Parker through Henry Parker’s deed and will, the defendants contend that they have “title” by a regular chain of transfer from the sovereignty of the soil, and are therefore entitled to invoke the three years statute of limitation. Under a similar contention the contrary was, at an early time, expressly held in Veramendi v. Hutchins, 48 Tex. 531, and in other cases. This ruling has never been departed from or varied by any express decision. It was reaffirmed as late as Cole v. Grigsby, 89 Tex. 223, 35 S. W. 792.

But it is urged by the defendants that at the time of such decisions as Veramendi v. Hutchins it had not been firmly established in the decisions of the court that a grant of community lands in the name of the husband vested in him the legal title, and under such a grant that the wife’s title was only an equitable one. On the contrary, it is said, the holding of the court at that time was that the husband and wife each took a legal title to community lands so granted. And this is made the foundation for the argument that when in Patty v. Middleton, 82 Tex. 586, 17 S. W. 909, it was declared that the husband’s title under such a grant or deed is the legal title, and the right of the wife is an equitable interest, changing, it is claimed, the former rule of the court upon that question, there was also changed, in effect, the holding of Veramendi v. Hutchins and like cases as to the character of title acquired under a deed from the husband to community lands so originally granted or conveyed, enabling one, now, who holds such title deraigned from the husband, to prescribe under the three years limitation statute. It is further urged, as we understand the contention, that such is the effect of the later ease of Grigsby v. May, 84 Tex. 240, 19 S. W. 343; and that Cole v. Grigsby, 89 Tex. 223, 35 S. W. 792, is in conflict with that decision.

Without an accurate understanding of what is meant by “title,” as that term is used in the three years limitation statute, any discussion of this question is futile. It is altogether determined by the legal interpretation of the term as there used. The meaning of the term, as thus used, is well established in the decisions of this court. Their correctness is not open to controversy. To clear this question of all apparent confusion, it is only necessary to apply that interpretation to the character of title conveyed by the deed of Henry Parker in this case.

The word “title,” in its ordinary accept-anee, may be correctly employed, and often is employed, in entirely distinct senses. It is sometimes used to denote a right in property. As thus used, it is equivalent to “estate.” It is sometimes used to signify the mere legal evidence of a right, as distinguished from the real right or beneficial interest. It is in this latter sense that the term, “legal title,” has its origin. Ratty v. Middleton.

As the term is used in this statute, it necessarily means something less than the paramount right to the land. The holder of such a right stands in no need of limitation for the establishment of the superiority of his claim. A statute of limitation of itself implies the existence of a better right than that possessed by the limitation claimant. Likewise, the term as used in the statute, necessarily means something more than the right conferred by naked deed, adverse possession under which, though it conveys no title, will, with other requirements met, perfect a limitation title under the five years statute. Otherwise, there could be no justification for permitting the title to ripen under a shorter period of possession than is required by the five years statute.

The necessity, as the Legislature viewed it, of quieting by limitation the rights to land of persons who stood in neither of these situations, but who occupied, it might bo said, a ground between them, was the cause of the enactment of this statute. In an enactment of such design, this would lead, naturally, to the employment of the term “title,” if employed at all, in some strictly technical sense. Hence, its definition in the statute as, “a regular chain of transfer from or under the sovereignty of the soil.”

This means, in a word, that the claimant, by a regular chain of transfer of itself effectual for that purpose, must possess the purported title originally conferred by the sovereign’s grant, the source of the claimant’s right. It is not necessary that he hold whatever better right may lie back of the grant. Nor is it essential that any conveyance in the chain subsequent to the grant bestow a higher right than does the grant. The title must simply flow unbrokenly from, its source. It is not required at any stage to rise above its source, but it must maintain throughout its succession all of the elements of its source. To have this character and effect, the chain of transfer must therefore be such as, in itself, will invest the claimant with the right originally acquired in virtue of the grant. League v. Rogan, 59 Tex. 427; Grigsby v. May, 84 Tex. 240, 19 S. W. 343.

The force of the grant as the source of the right in all cases arising under the statute, lies merely in the power of the State as a sovereignty, whether rightfully or wrongfully exercised, to make the grant. The whole theory of the statute is that a right evidenced by a grant from the sovereignty, though it be not the better right, is entitled to a measure of protection; that the State ought not to leave helpless against even the superior right those whom it has encouraged to acquire a title on the faith of its own .sovereign adt in granting it. But while such a title, where held by a regular chain of transfer connecting with the grant, is, through this statute, given the protection of limitation perfected by, relatively, only a short period of possession, the reason that in its origin it is so protected is simply because of the State’s power to create it. If there be a want of power to issue the grant, it does not amount to a grant, and will not constitute the basis of a transfer of title from the sovereign. Smith v. Rower, 23 Tex. 33; League v. Rogan.

With the right, in its inception, afforded the protection of the statute only because of the power of the sovereign to confer it, there must continue in those whose successive transfers constitute the chain of title, the power to convey it. Such power is necessary to effectually transfer the title; unless it exists, the title does not connect by unbroken chain with the grant.

The statute does not recognize as “title” any mere apparent right to the land granted. While it has reference only to the title' originally evidenced by the grant, and disregards all other title, at no stage does it deal with any apparent right under that title, or with any right less than the actual “interest” or “estate” created by the grant. The claimant’s title must connect with the grant. It does not connect with the grant, unless he holds the right vested by the grant. He does not hold such right, unless he has acquired, to the extent that the grant conferred it, the real and beneficial interest in the land. He acquires that interest, if the chain of transfer is sufficient in itself to invest him with it. But the chain of transfer is not sufficient in itself for that purpose, if any grantor in the chain is without the legal power to convey what his deed purports to convey.

. These propositions are in our opinion self-evident. They are established in the decisions of the court, and are not open to challenge.

For instance, it has been many times declared that one holding by conveyance from another who had formerly parted with his title, does not hold “title or color of title,” as those terms are used in the three years limitation.statute. Wright v. Daily, 26 Tex. 730; Harris v. Hardeman, 27 Tex. 249; Long v. Brenneman, 59 Tex. 210. “This is so held,” it was said in League v. Rogan, “upon the ground of want of power in the grantor, resulting from his prior sale and consequant want of. title, eithen legal or equitable, to pass any title whatever to another.”

A person bolding under tbe junior conveyance from such a grantor, and paying value in good faith, without actual or constructive notice of the prior conveyance, would acquire the title under the doctrine which protects an innocent purchaser. He would so obtain it because of the apparent right in the grantor to convey it, and his purchase in reliance thereon. He would have the title, by what the law in such a case esteems the better right. But with his grantor having, in fact, parted with his interest by prior conveyance, would it be contended that he had “title,” as that term is used in the limitation statute? If so, there may be two regular chains of transfer from the sovereignty of the soil for the same land. Such, however, is not the law. A conveyance by an original grantee or any succeeding grantor in the chain of title who had previously transferred his interest, is necessarily collateral, and not a part of the regular chain of transfer which the statute •requires. It is impossible for the title un•der it to connect with the grant. Grigsby v. May.

In this State, the beneficial interests of the husband and wife in community property are equal, whether the grant or deed to tlie property be in the name of only on© of them or to them jointly. Though the grant ■or deed be in the name of the husband, alone, the “interest” or “estate” of the wife in the property is as absolute as that of the husband. She acquires her interest in virtue of our law governing community property, and the force which that law imparts to a conveyance of the property to the husband during the marriage. She takes under a grant or deed in his name to the same extent that he does; and it is as fully through the grant as is true of his interest, that she is invested with her right.

After her death, the husband may legally convey her interest only for the purpose of paying community debts. He is wholly without power, after her death, to convey it for any other purpose. This is so because of his want of ownership of her interest and the refusal of the law to recognize any authority in one person to dispose of another's property unless duly empowered.

Where the grant or deed to community lands is in the name of the husband, the legal title to the lands is in him. The title he has is the legal title because it is the evidence of ownership required by law. With the evidence of title afforded by the grant or deed—the mode of acquiring title as provided by law—thus proving ownership in him, one purchasing in good faith from him, after the wife’s death, without notice of the community character of the property or of some fact sufficient to require ■inquiry, will acquire title to the wife’s interest against her heirs, the real owners of it. But this is not so because of any power in the husband to convey the interest. Having no authority whatever to convey it after her death except in the payment of community debts, he has no more real power to convey it to an innocent purchaser than to any one else. The innocent purchaser, under the conditions named, acquires the title to the interest through the force alone, of the doctrine of equity which refuses to visit loss upon one in his situation, but imposes it rather upon those who, having the real interest, have been negligent in permitting another toi hold the legal evidence of perfect right in himself.

Such is the holding of Patty v. Middleton and of decisions even prior to it, notably, Hill v. Moore, 62 Tex. 610, and Edwards v. Brown, 68 Tex. 329, 4 S. W. 380, 5 S. W. 87. But that holding has no relation to what is meant by “title” under the three years limitation statute. A limitation claimant is not entitled to the protection which is accorded to an innocent purchaser. He derives no aid from equity, nor is he dependent upon any of its doctrines. The statute, alone, is the measure of his right, and meeting its requirements alone entitles him to its protection. “Title,” as used in this statute, does not mean the title which equity may in a proper case bestow. It refers to a title held by legal right as evidenced by a regular chain of transfer from the sovereignty of the soil. For illustration, the claimant’s rights are not prejudiced by actual knowledge of the existence of the su perior right. By the same rule, they are no bettered by his want of knowledge of its existence. No equitable considerations can make them superior to what they would be without the presence of such considerations. 1-Iis title is simply such as the chain of transfer, tested by itself, unaided by any equity and unimpaired by any equity, confers. It is not defeated by the rights of others which lie outside of it. Neither is it supported by any rights in favor of the claimant which lie equally without it. Its strength, as well as its weakness, is only that of the chain of transfer which constitutes it.

In this case, the community interest of Henrietta Parker in the league of land did not lie outside of the grant to Henry Parker. It vested in her in virtue of the grant, just as effectually as did the other half interest in Henry Parker.' The grant was as much the source of her right as his, and evidenced her right no less strongly. His attempted conveyance of her interest, after her death, to Wm. B. Parker not being for a purpose authorized by law, it was of no effect because of his want of power to make the conveyance. This is equally true of the devise to Wm. E. Parker under Henry Parker’s will. Wm. E. Parker did not acquire “title'’ to her interest under either the deed or will. He did not obtain “the interest” of the wife which vested under the grant, and as to such interest, therefore, his title, — the grant and the deed, -or the grant and the will, in itself and tested by itself, did not connect with the grant.

Grigsby v. May was decided after Patty v. Middleton. The opinions in both cases were written by Chief Justice Stay ton. Each is an enduring monument to Ms ability and learning. In Grigsby v. May, the holding of Veramendi v. Hutchins, where the same contention was made, as is here urged, in reference to the effect of a husband’s attempted conveyance of the wife’s community interest in lands after her death, was recognized as correct. It was there said:

“That the ‘title’ of the original grantee, using the word ‘title’ in the sense of right, interest, or estate, must pass by conveyances subsequent to the patent in order to constitute ‘title’ or ‘color of title,’ is too'clear for controversy; but it does not .follow from this that the conveyance must pass the superior right to the land; and for this reason the conveyance made by Oolonel Bowie, referred to in Veramendi v. Hutchins, did give title to one-half of the league of land, but not to the other half, simply because he had no power after the death of his wife, in the absence of circumstances conferring it, to convey the interest vested in his wife wider the grant itself.”

Further, in that opinion, in speaking of the requirement of this statute that the claimant show a regular chain of transfer from or under the sovereignty of the soil “conveying what the sovereign’s grant purports to convey,” this is said:

“The conveyances in the chain must be sufficient to do that (convey what the grant purports to convey), assuming that they are sufficient if they be executed by the proper persons, as conveyances of land aro required to be, and on their faces purport to convey the land described in the original grant, and be not collateral.”

The statement in this quotation as to the conveyances in the chain being sufficient if executed by the proper persons, could only mean the persons having the legal power to execute them.

The correctness of the ruling in Veramendi v. Hutchins, and the reason therefor, was again expressly recognized in League v. Rogan, in which Judge Gaines, while Associate Justice, wrote the opinion, in the following language:

“In the ease, first named (Veramendi v. Hutchins) it was held that a person claiming title to land, community property, sold by a husband after the grant and after the death of the wife, could not,.in a suit by the heirs of the wife for one-half of the land, successfully defend under the" statute of limitation of three years; for the reason that, as to one-half, the purchaser had neither title nor color of title. This resulted solely from the want of power in the grantor to convey, and the chain of transfer between the patent and the claimant, under such conveyance, is broken.”

Pearson v. Burditt, 26 Tex. 172, 80 Am. Dec. 649, is another decision which illustrates that while the conveyances in the chain need not, under this statute, pass the superior right to the land, yet, to be effectual as conveyances of “what the sovereign’s grant purports to convey,” they must be executed by persons having the power to do so. There the suit was by an administrator de bonis non to set aside a deed of a former administrator, made under an order of the probate court, to Burditt, the defendant, the ground of the action being fraudulent collusion between the former administrator and Burditt. Burditt, among other defenses, pfieaded the statute of limitation of three years. It was held that although the deed was subject to be set aside on account of the fraud, it was capable of supporting the defense of limitation under this statute because of the power of the administrator, through the probate court order, to make it. See also League v. Rogan for a review of this decision.

In Grigsby v. May, the survey, 290 acres of .which were in controversy, was the community property of John Grigsby and his second wife. She and two children of that marriage survived him. Seven children of his former marriage likewise survived him. While John Grigsby had acquired the certificate which formed the basis of the survey in his lifetime, no written transfer of the certificate was made until after his death. A written transfer of it was made to his administrator* Thereafter and subsequent to the death of the second wife, the survey was patented “to-the heirs of John Grigsby, deceased, as-signee of James A. Sylvester.” The estate-of John Grigsby was partitioned in the probate court between his nine children. Nothing was given to the children of the second marriage, or to a third child of the second wife by a later marriage, on account of the-mother’s community interest in the survey. In the partition, James Grigsby, a son of the-first- marriage, received the 290 acres of' land in controversy, .which were duly conveyed to him by the administrator under the-order of the court, like conveyances' being made to each of the other children of the-lands allotted to them. The suit was by heirs-of the second wife for her community interest. The defendant Hughes had acquired the title of James Grigsby. The question in. the case was as to the capacity of that title to support limitation under the three years-statute.

Distinguishing the case of Veramendi v. Hutchins upon the ground that there, the wife of Oolonel Bowie, in virtué of the grant in his name, acquired a community interest in the land granted,- just as, here, the wife-of Henry Parker, in virtue of the grant to-him, was invested with a similar interest in this league, it was held that the patent “to-the heirs of John Grigsby” was necessarily hostile to the wife; that it ignored the right of every other person save “the heirs of John Grigsby,” and no one except such heirs took any title under it; that the possession by the heirs of the second wife through her of a superior right to one-half of the land in nowise-altered the fact that the title given by the-sovereign under the grant was only to “the heirs of John Grigsby”; that one holding that title, as did Hughes, through the proceedings in probate, the administrator’s deed to James Grigsby, and subsequent regular conveyances, had the interest of every one recognized by the grant as having any right in the land; that Hughes’ title, accordingly, connected with the grant, and entitled him to prescribe under the three years statute. In other words, the interest of the wife was superior to and outside of the grant with which the court was dealing in that case. It was not made to her husband, and created no interest in her favor. It was to “the heirs” of her husband. One holding their title had “all the right which the grant purported to convey,” and therefore had “title”, within the meaning of the statute.

Cole v. Grigsby, 89 Tex. 223, 35 S. W. 792, involved a grant of an entirely different nature. It was of community lands, as was that in Grigsby v. May. But the grant was “to John Grigsby,” the husband. This makes obvious the distinction between the two cas-' es. The wife of John Grigsby took under the grant, and in virtue of it, to the same extent as did Grigsby. The title held by the de-, fendant, Oole, and upon which his plea of limitation of three years was based, was merely such as was deraigned from “the heirs of John Grigsby.” This, necessarily, did not embrace the community interest of the wife. He had no title to that interest. As to that interest he did not connect with the grant, and hence had no basis for a plea of limitation of three years against the heirs of the wife. There is no conflict between the two decisions.

In Baldwin v. Root, 90 Tex. 546, 40 S. W. 3, the patent, which was based upon an unloeat-ed balance certificate, was to “the heirs of Jonas Harrison, deceased.” The land was community property of Jonas Harrison and his wife, Eleanor, who, with eight children of the marriage, survived him. Prior to the location of the certificate, which was also issued to “the heirs of Jonas Harrison, deceased,” and the issuance of the patent, the surviving wife and four of the eight children had conveyed their entire interest in the certificate to Charles Turner, warranting the title to the land to be surveyed thereunder to Turner, his heirs and assigns. Root, the plaintiff, held Turner’s title. Pie sued for three-fourths of the land described in the patent. The patent “to the heirs of Jonas Harrison, deceased,” placed the legal title to the land in the eight children. Root had both legal and equitable title to one-half of the land under the general warranty conveyance of the wife and four of the eight children to Turner. As to the remaining one-fourth claimed by him, he asserted an equitable title, derived through the wife’s conveyance to Turner, held in trust for Turner by the other four children having the legal title under the patent, and representing one-half of the half to which they held such title and claimed by Root in the right of the wife from whom Turner had purchased it. The defendant Baldwin had the title of these other four children who had not conveyed to Turner. The court held that that title was capable of supporting his plea of limitation of three years against the equitable interest asserted by Root. This was clearly correct, since one holding! the title of these four children connected directly with the patent to the full extent of the right conferred upon them by patent. As to such right, the case was similar to Grigsby v. May. It was plainly distinct in its nature from cases life Veramendi v. Hutchins and Cole v. Grigsby, as it is from this one. As in Grigsby v. May, the wife’s interest lay outside of the State’s grant. In the present case, as in Veramendi v. Hutchins and Cole v. Grigsby, the wife’s interest vested under the State’s grant.

The discussion of this question has been pursued simply in an effort to make plain the holding of the court upon it. The court’s decisions upon it are involved in no confusion, and clearly demonstrate that the title de-raigned through Henry Parker in this case was incapable of supporting limitation of three years against the suit of the heirs of Plenry Parker’s wife for her original community interest in the land.

The directed verdict in favor of the defendants under their pleas of five years limitation, except as to the defendant, the Northern Irrigation Company, rests upon the possession of the land by the Texas Land and Cattle Company, under which they claimed.

The suit was filed October 15, 1908. Wm. E. Parker conveyed the league to Joe and A. Vanham on July 1, 1879. They conveyed it to August Kountze on November 24, 1884. Kountze conveyed it to the-Texas Land and Cattle Company on June 21, 1890.

The deed to Kountze was filed for record on January 11, 1886. There was no issue as to the fact that' Kountze acquired the title for the Texas Land and Cattle Company, so there was nothing to submit to the jury in that relation. The Texas Land and Cattle Company was entitled to prescribe under the five years statute in virtue of the deed to Kountze and its registration. Thomson v. Baker, 90 Tex. 170, 38 S. W. 21.

In the spring of 1886, the Texas Land and Cattle Company completed the building of a fence, which, with an artificial barrier, enclosed a very large body of land, estimated as being twenty miles square. This league lay within that enclosure. It took possession at that time of the body of land so enclosed, and held continuous possession, using it as a pasture for cattle until 1897.

Limitation began to run against the plaintiffs as to whom the Court of Civil Appeals affirmed the judgment of the trial court, at the time the Land and Cattle Company’s possession commenced under this enclosure. The taxes upon the league were regularly paid. Within the enclosure were' lands controlled by persons other than the Land and Cattle Company, but the joint use of the enclosure did not, under the five years statute, render amy the less adverse the Land and Cattle Company’s possession of the lands within it which it owned and controlled. Taliaferro v. Butler, 77 Tex. 578, 14 S. W. 191; Church v. Waggoner, 78 Tex. 203, 14 S. W. 581; Parker v. Newberry, 83 Tex. 428, 18 S. W. 815; Dunn v. Taylor, 102 Tex. 80, 113 S. W. 265.

The Land and Cattle Company having maintained continuous occupancy and use of the land, under a registered deed, with the taxes regularly paid, for more than five years before the filing of the suit, the only question left in the case as related to limitation of five years against the plaintiffs referred to, is the sufficiency of the fences of the enclosure within which the land lay. Temporary breaks in the enclosure do not arrest limitation. Gunter v. Meade, 78 Tex. 634, 14 S. W. 562; Moore v. McCown, 20 S. W. 1112; Williams v. Rand, 9 Tex. Civ. App. 631, 30 S. W. 511. We have carefully examined the evidence as to the maintenance of the fences. We do not think it presents ainy doubt as to the outside enclosure being sufficiently maintained for more than five continuous years after its completion in 1S86. There was in our opinion no issue on that question for the jury’s determination. For instance, it is asserted in the petition for writ of error that the witnesses Dowdy and Gainor testified that certain fences inside the larger enclosure, which cut off certain tracts set apart for different colonists, were not kept up and remained from only one to two years; and that the witness Hardy testified “that the outside fences were all down when these fences (the inside fences referred to) were constructed.” If it be granted that this is a proper construction of the testimony of these witnesses, the condition of the inside fences is immaterial upon the question. It was only necessary that the outside enclosure be sufficiently maintained. As to the contention that Hardy’s testimony was “that the outside fences were all down when these feinces (the inside fences) were constructed,” as snown by the petition for writ of error itself the building of the inside fences was not commenced until 1S92. The bar of five years, beginning against the plaintiffs referred to, as it did, during 1886, was then complete as to them.

As to the testimony of the witness Gainor at another place, that “from the summer of 1888 up to 1908 this pasture was open from the south line thereof to El Campo,” we agree with the Court of Civil Appeals that this does not indicate that the south line was not fenced. It indicates, on the contrary, that it was fenced, and that the pasture was merely open country inside from its south to its north line. If the fence he refers to as having been taken down was any part of the outside fence, it is not shown by his testimony or that of others how long it remained down. From aught that appears from his testimony it may have been down only temporarily. At another place he speaks of a fence only remaining for two years, but -it was a fence built in 1895. The witness Cornelius testified to a part of the s&uth fence of the larger enclosure being down in 1901 or 1902, but that, too, was after the completion of the five years bar against the plaintiffs referred to. It is unnecessary to further extend this opinion by additional detailed reference to the testimony upon this feature. A painstaking examination of it has been made. In our opinion it presents no issue in respect to the sufficient maintenance of the fence of the larger enclosure for more than five years following the year 1886.

The case was in our view correctly determined by the Court of Civil Appeals, and its judgment is cnerefore affirmed.
      ©r^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    SODERS v. STATE.
    (No. 4479.)
    (Court of Criminal Appeals of Texas.
    May 23, 1917.
    Rehearing Denied June 20, 1917.)
    1. Burglary <&wkey;36 — Evidence—Admissibility.
    In prosecution for burglarizing a saloon, testimony that whisky was found outside of the saloon after it was broken open was admissible, when the whisky was found while defendant was present.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 90.]
    2. Criminal Law <&wkey;814(17) — Instructions— Circumstantial Evidence.
    Evidence held, to bring one accused of burglary in such juxtaposition to the offense as to render unnecessary instruction upon circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883, 1979.]
    3. Burglary &wkey;>2 — Elements oe Offense.
    One who by force in the nighttime breaks and enters the house of another with intent to commit a theft therein is guilty of burglary.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 1-3.
    For other definitions, see Words and Phrases, First and Second Series, Burglary.]
    Appeal from Criminal District Court, Williamson County; George Calhoun, Judge.
    John Soders was convicted of burglary, and appeals.
    Affirmed.
    Melasky & Moody, of Taylor, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant, John Soders, Henry Soders, his brother, George Langston, and another, called “Army,” were charged in the same indictment with the offense of burglary. Henry Soders and “Army” were acquitted, George Langston was convicted and his sentence suspended, and John Soders was convicted and his punishment assessed at two years’ confinement in the penitentiary, from which this appeal is prosecuted by him.

The theory of the state was that appellant broke into the saloon of August Young, which was situated in the village of Sandoval. The facts show that Young closed his saloon, fastening all the doors, and went to his home about 9:30 at night; that about midnight a deputy sheriff living near the saloon saw two men pass his residence going in the direction of the saloon, and shortly after saw two others going in the same direction, and in a little while heard a disturbance—noise —at the saloon, whereupon he picked up his pistol and ran to the saloon, and as he turned the corner of the house he met the defendant Langston coming towards him, and on his refusal to stop the officer knocked him down with his pistol and dragged him with him to the door of the saloon. Looking in, he saw and recognized appellant, ■with whom he was well acquainted, stooping down in the saloon, apparently undertaking to pick something up, as the officer thought, to strike him with. At that moment his prisoner made a demonstration, which caused the officer to turn his head, and as he turned it back a man ran out of the door of the saloon and through the fence and away. It was found that the house had been broken open, and that there were bottles of whisky out in a road and near the door of the saloon, outside thereof, and some near the fence, where the man who ran away went through it.

Appellant claimed that he and the other parties named in the indictment had been in the saloon before it closed, and that they went down on the creek near the village, and that a gambling game was indulged in by the others, though he did not participate, that when they left the creek he and the defendant “Army” went home together in a buggy, and that he did not go to the saloon nor have any part in the burglary. His brother, Henry Soders, who had been acquitted of the offense, corroborated him in part, testifying that John Soders and “Army” got in the buggy together and drove off.

Appellant complains of the fact that over his objection proof was made that whis-ky was found outside of the saloon, claiming that this testimony was not admissible; the whisky not being identified as having been taken out of the saloon. This was essentially a part of the transaction at which appellant was present and in which he participated as indicated by the evidence. Kubacak v. State, 59 Tex. Cr. R. 166, 127 S. W. 836; Moray v. State, 65 Tex. Cr. R. 504, 145 S. W. 927.

Complaint is made of the failure to charge the jury on the law of circumstantial evidence. The facts bring the appellant in such close juxtaposition to the breaking and entering as to render a charge on circumstantial evidence unnecessary. Montgomery v. State, 55 Tex. Cr. R. 504, 116 S. W. 1160; Smith v. State, 51 Tex. Cr. R. 427, 102 S. W. 406; Smith v. State, 90 S. W. 638; Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763; Branch’s Ann. P. C. p. 1295.

Appellant criticizes the seventh paragraph of the court’s charge as follows:

_ “Now, bearing in mind the foregoing definitions and instructions, if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant John Soders, at any time within five years next before the filing of the indictment herein, in the county of Williamson and state of Texas, by force in the nighttime did break and enter the house of one August Young as charged in the indictment, with intent to commit the crime of theft, you will find the defendant guilty of the crime of burglary, and assess his punishment at imprisonment in the penitentiary not less than two nor more than twelve years. But, unless you- do so find the facts to be beyond a reasonable doubt, you will acquit the defendant and say by your verdict not guilty.”

He requested a special instruction covering the same subject. We do not think that the paragraph quoted is incorrect, nor materially different from the special charge requested.

We have reviewed all the various assignments, and in our judgment they do not show any legal reason for reversal; and it is therefore ordered that the judgment of the lower court be affirmed.
      (S=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TAYLOR v. STATE.
    (No. 4389.)
    (Court of Criminal Appeals of Texas.
    May 23, 1917.
    State’s Rehearing Denied June 20, 1917.)
    1. Homicide @=>178(1) — Admissibility of Evidence.
    In a murder prosecution based upon circumstantial evidence, testimony that the family of deceased’s wife was hostile to him is admissible on the theory that a member thereof may have committed the crime, where such family lived near the scene of the murder and a man was seen walking toward their house soon after the crime.
    [Ed. Note.—Por other cases, see Homicide, Cent. Dig. § 307.]
    2. Homicide <&wkey;178(l) — Admissibility of Evidence.
    In a murder prosecution based upon circumstantial evidence, testimony creating a reasonable doubt as to the slayer’s identity; or presenting a theory consistent with accused’s innocence, should not be excluded, because the circumstances incriminating accused are more cogent.
    [Ed. Note.—Por other cases, see Homicide, Cent. Dig. § 307.]
    3. Judges &wkey;>56 — Disqualification — Setting Case.
    A judge disqualified to sit in a criminal case may nevertheless set it on the docket.
    [Ed. Note.—Por other cases, see Judges, Cent. Dig. §§ 235-245.]
    4. Judges t&wkey;56 — Disqualification — Special Yeniee.
    A judge disqualified to sit in a criminal caso cannot decide how many special veniremen shall be drawn under Code Cr. Proc. 1911, art. 658, nor preside when the list from which the jury is to be selected are drawn as provided by article 661.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 235-245.3
    Appeal from District Court', Caldwell County; Geo. Calhoun, Judge.
    Elbert Taylor was convicted of murder, and appeals.
    Reversed and remanded.
    Jeffrey & Fielder, of Lockhart, and Will G. Barber, of San Marcos, for appellant. E. B. Coopwood, J. B. Hatchitt, and Nye H. Clark, all of Lockhart, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a judgment condemning appellant to 25 years’ confinement in the state penitentiary for the murder of Rex, Chamberlain.

The deceased was killed by a discharge of buckshot from a shotgun shortly before dark on December 24, 1915. The homicide took place in the vicinity of Taylor’s store, which was owned by appellant’s uncle, and along a road running in an eastern 'direction from the store there' was situated on the south side the premises of Ivan Taylor, a brother of appellant, about 250 yards from the store, appellant’s premises, approximately two-thirds of a mile from the store, deceased’s barn, about a mile from the store, and on the north or left-hand side, were deceased’s residence, just across the road from his barn and a pasture, known as Fischer’s pasture, and deceased’s field, in which he was killed, at a point about 500 or 600 yards from the store. Appellant’s father lived between 500 and 600 yards south of the point at which the homicide took place. All the parties mentioned had lived in the neighborhood for several years, and there was evidence that for one or two years prior to the homicide appellant and deceased were not on speaking terms, and that other members of appellant’s family, including his father and brother, were not on friendly terms with the deceased. There was evidence that it was customary to have a turkey shoot at the store on Christmas Eve, and on the morning of the day of the homicide appellant went to the store, taking his shotgun with him and leaving it in the custody of his uncle at the store. Appellant’s cousin Hugh Taylor and a witness named Arthur Gabriel claimed to have found some bottles of whisky at a culvert near the store mentioned, and it was shown that they and appellant started on horseback for this culvert, and on their way met deceased. As they approached, appellant suggested that they should not stop, and appellant did not stop, though the others did so, and invited deceased to drink. The bottle of whisky which was offered him was labeled “Old Taylor,” observing which deceased made a remark about the Taylor name, which offended Hugh Taylor, and some words followed, and deceased assaulted Hugh Taylor, who ran away on horseback; the deceased following him. Appellant had no part in this controversy, but when it took place he rode to Hugh Taylor’s house, which was near by, and told Hugh 'Taylor’s wife that the deceased ha'd Hugh cut off from his home and that the appellant wanted a gun to assist him. She objected to his having the gun and said that she would 'go after her husband, and she claimed that as she was about to do so deceased, in company with a Mr. Oast, passed along the road. Appellant remarked that he woul'd not need the gun. It appears that appellant then rode back to the store and obtained his gun from his uncle, had some conversation about immaterial matters with the parties at the store, and then, taking the gun with him, got on his horse and rode away. Before going, however, his brother Ivan handed himi some cartridges; the testimony being conflicting as to whether they were loaded with buckshot or birdshot, and one witness testifying that Ivan said at the time: “Shoot low.” This was contradicted partly by cross-examination of the witness and partly by other testimony. A witness testified that, approaching the store from the east, he passed along the road mentioned late in the evening of the day of the homicide, and, when he reached a point near the barn of the deceased, he heard a report sounding like a gun or firecracker.; that he noticed deceased’s wife in the barn lot milking; that when he reached the point opposite the Chamberlain field 'he noticed the deceased’s horse saddled and looking somewhat excitéd and standing near the southeast corner of the field and at the same time saw a man about 140 yards away going off through the brush; that he merely glanced at him and could give no accurate description of him further than he had on what he took to be a regular brown hunting coat. He took.the man to be Chamberlain, and said that he was not going in the direction of the appellant’s house, but was going down through the Fischer pasture. The appellant testified and introduced the testimony of several witnesses as to his whereabouts at and about the time of the homi-; cide, and their testimony, if believed, was sufficient to establish an alibi. There was evidence that near the point where the deceased was killed were some bushes cut away and -knee prints on the ground, presumably indicating the locality of the party who fired. There was evidence introduced of tracks found in the Chamberlain field,' and that these tracks fitted the shoes belonging to appellant and which a witness testified appellant claimed to have been wearing at the time. The tracks, however, were not discovered until several days after the homicide. They were not characterized by any peculiarity, and there was evidence that a number of persons were in the field during the night on which; the homicide occurred. There was evidence that appellant was not wearing the shoes mentioned, hut was wearing boots' of a different shape, and that he did not claim to have been wearing the shoes on the day of the homicide. This is a partial statement of the evidence; the record is so long as to preclude a complete statement.

The court charged the jury on the law of mufider, alibi, and circumstantial evidence.

In one of his bills-of exception appellant complains of the exclusion of evidence to the effect that a short time before the homicide deceased drove his wife away from home and back to her mother, and that his father-in-law Fischer and the members of his family were not on speaking terms with deceased at the time of the homicide.

Appellant sought to draw out this proof on cross-examination of the witness McMa-han, who testified in part as follows: That he went to the Chamberlain field in search of Rex Chamberlain on the night of the evening when he was killed and foun'd his body in the field about 7 or 8 o’clock and after dark. He stated that he thought he was the first one who found the body; that his wife and Rex Chamberlain’s wife were sisters, both being daughters of old man Gus Fischer ; that said Fischer was in attendance upon the court; that said Fischer at the time Chamberlain was killed had three so-ns-in-law living right there close in the section of where Chamberlain was killed, arid two a little further off; that said Fischer had grown sons; that said Gus Fischer is about 60 years old; that this witness McMahan was at said Fischer’s house that night when he heard about the body of Chamberlain; that two other sons-in-law of Fischer were at his house then, they being Wallis Star and Fred Williams; that the occasion of their being at Fischer’s house was that one of Fischer’s sons had been away and had not been in for a good while and came in that day, and they ha'd gathered at Fischer’s house on account of the return of this son; that from the place where he found Chamberlain’s body in the field straight through the pasture to Gus Fischer’s house is a mile or a little further; that the Fischer boys lived there with their father, Gus Fischer; that from the place where Charnberlain’s body lay through the Fischer pasture across to where the witness McMahan lived would have been something over a mile, and to where Edgar Petty then lived something like three-quarters of a mile.

The court, explaining the bill, says that the evidence was excluded because the parties inquired about were not in such proximity to the offense as would make it reasonably probable that they slew the deceased. The bill shows that the father and some of the brothers and brothers-in-law of deceased’s wife lived in the vicinity, and, though it was not shown any of them were present at the time of the homicide, it was shown that they were not out of the country, but that they were in the immediate locality about' the time; that the premises upon which they lived adjoined those on which the deceased was killed. There were more or less brush and trees on these premises favoring concealment. A few moments after the homicide, an unidentified man was seen in the pasture of the relatives of the deceased’s wife traveling in the direction of their home and not going towards the home of appellant. Just what proximity to the offense is required to render testimony of motive on the part of a third person admissible is not defined, and we presume that it cannot be defined, but that it would be necessary to interpret it with reference to the facts of each individual case. In Burkhalter’s Case, 184 S. W. 222, such testimony was held material where the defendant’s evidence tended to show that the third party was in the neighborhood less than a mile of the killing and where the state failed to account for his presence at the immediate time 'of the killing. We think it may be fairly stated that, under the decisions of this court, the state relying upon circumstantial evidence alone to show appellant’s guilt, and as one of the circumstances has proved that he and members of his family were not on speaking terms with the deceased, it was competent for him to show that others in proximity to the homicide had a motive to slay deceased. In cases depending upon circumstantial evidence, “the mind having nothing to rest upon seeks knowledge and light from every .source.” Dubose v. State, 10 Tex. App. 230. Every reasonable hypothesis should be explored, and evidence which tends to show that another and not the accused committed the offense, or which may create in the minds of tire jury a reasonable doubt as to the identity of the slayer, or which presents a hypothesis which is inconsistent with the guilt of the accused or consistent with his innocence, should not be rejected by the court because the circumstances pointing to the accused on trial are more numerous or more cogent than those pointing to others. In our opinion, the facts set out in the bill bring the testimony offered within this rule. Murphy v. State, 36 Tex. Cr. R. 24, 35 S. W. 174; Burkhalter v. State, 184 S. W. 221; Pace v. State, 61 Tex. Cr. R. 436, 135 S. W. 379; Kirby v. State, 49 Tex. Cr. R. 517, 93 S. W. 1031; Kunde v. State, 22 Tex. App. 65, 3 S. W. 325; Hart v. State, 15 Tex. App. 204, 49 Am. Rep. 188; Dubose v. State, 10 Tex. App. 230; Sawyer v. State, 15 Lea (Tenn.) 694; 1 Wigmore on Ev., §§ 139-141.

By other bills appellant complains that the trial court rejected evidence that several other parties named entertained unfriendly feeling towards deceased, and insists that this .proof should have been admitted. We do not regard this testimony admissible under the rule touching such evidence prevailing in this state. It does not come within such proximity to the offense to- bring it within the nule. Wallace v. State, 46 Tex. Cr. R. 349, 81 S. W. 966; McCorquodale v. State, 54 Tex. Cr. R. 344, 98 S. W. 881; Ogden v. State, 58 S. W. 1018; Brown v. State, 74 Tex. Cr. R. 356, 169 S. W. 437.

The regular judge of the district court trying this cause was disqualified to sit in the case under article 5, § 11, of the Constitution, and under article 617 of the Code of Criminal Procedure. He did not try the case, but set it on the docket for a day and ordered a special venire of 70 men. The judge trying the case overruled appellant’s motion to quash this special venire, based upon .the contention that the disqualification of the,regular judge to sit in the case rendered void the orders mentioned. Article 055 defines a •“special venire” as a writ issued by order of the district judge in a capital case, and article 658 defines the terms of the order, directing that it specify the number of persons to be summoned and the time they are to attend, the time the writs are to be returnable; and article 661 prescribes the manner -of drawing the special venire, and directs that the names .selected by the jury commissioners for special venire service shall be placed on tickets of the same size and color and placed in a box and shaken up, and from this box the clerk, in the presence of the judge, in open court, shall draw the number of names required for further venire service. Appellant contends that there was error in failing to sustain his motion to quash the venire. On this question both the appellant’s and the state’s counsel have filed very interesting and very able briefs and arguments; the appellant contending that the acts done by the -disqualified judge involved the exercise of judicial discretion, and were consequently inhibited; the state insisting that, while the acts may have required the exercise of some discretion, they were nevertheless ministerial in their nature, and such as might be legally done.

The briefs and arguments evidence great research and ability, but disclose but few cases directly touching the point involved. It is very forcibly and plausibly argued that the fact that it has been held that the defendant’s presence was not necessary at the drawing of the special venir,e indicates that that .act would not be within the inhibition of the 'Constitution. In Cock v. State, 8 Tex. App. 666, the question was whether the disqualified judge might réceive the indictment. This question was answered in the affirmative, .and, discussing the matter, the court says that the phrase “sit in any case” means to try the case, and that the disqualified judge would not be incompetent to preside in taking incidental orders. In Reed’s Case, 11 Tex. App. 606, 40 Am. Rep. 795, the court says: “The judge shall not ‘sit,’ which evidently means make any orders in or try any case.” The appellant refers to the case of Salm v. State, 89 Ala. 56, 8 South. 67, where the Supreme Court of Alabama, under a statute somewhat similar to ours, held that setting the case and drawing the venire were among the things which a disqualified judge could not legally do.

The setting of the case, we think, is one of the incidental orders which the disqualified judge might make. A. & E. Enc. of Raw, vol. 17, p. 732; Cyc. vol. 27, p. 793.

The act of deciding how many special veniremen shall be drawn and the act of presiding in court when the list of men from whom the trial jury is to be selected is drawn, as provided by article 661, supra, are so intimately associated with the trial of the case, and capable of so potent an influence thereon, that we believe they are among the things which the Constitution forbids a disqualified judge to do when it says he shall not “sit in the case.”

We have considered the other assignments and are of the opinion that no reversible error is presented by any of them.

For the errors pointed out, the judgment of the lower court will be reversed, and the cause remanded.
      d£=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    FLORES v. STATE.
    (No. 4522.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.)
    Criminal Law <&wkey;1099(5) — Appeal—RecoRD —Time to File.
    A statement of facts filed long after the adjournment of court cannot be considered on appeal.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Jose Flores was convicted of theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of theft, his punishment being assessed at two years’ confinement in the penitentiary.

One of the grounds of the motion for new trial is the alleged misconduct of the jury in discussing the failure of the defendant to testify. There is a statement of facts in regard to the matter, but it was filed long after the adjournment of court, and for that reason cannot be considered. The other matters are of no serious import, and need not be discussed.

The judgment is affirmed.


text:
    VACIO v. STATE.
    (No. 4521.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.)
    Appeal from District Court, El Paso County; W. D. Howe, Judge.

      Carlos Yació was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Charged by indictment with assault with intent to murder, appellant, upon conviction, was condemned to two years’ confinement in the state penitentiary.

We find no motion for a new trial nor bills of exception in the record, and there are consequently no errors assigned.

We have examined the indictment and the evidence set out in the statement of facts, and, finding both sufficient, it is ordered that the judgment of the lower court be affirmed.
      ®=»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    SOTO v. STATE.
    (No. 4520.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.)
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    F. A. Soto was convicted of burglary, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant has appealed from a conviction of burglary, with the lowest penalty assessed. There is no bill of exceptions, nor a statement of facts, nor any question which can be reviewed in the absence of them.

The judgment is therefore affirmed.


author: BROOKE, J.

text:
    PATE v. GALLUP.
    (No. 153.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 14, 1917.)
    1. Appeal and Error <&wkey;736 — Assignments op Error— Sufficiency.
    Under Rules of Court of Civil Appeals 24-20 and 29 (142 S. W. xii), relating to assignments of error, assignments presenting several distinct propositions will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 302S, 3029.]
    2. Evidence @=3186(6) — Secondary Evidence —Copy op Lost Lease. ' '
    Where the execution and loss of a lease are proved, an identified copy thereof is admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 667.]
    3. Evidence <&wkey;18C(C) — Copy op Lost Lease —Preliminary Proof.
    After loss or destruction of the original lease has been proved, testimony that original lease was duly executéd and that instrument shown witness is a true copy thereof is admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 667.]
    4. Trespass to Try Title <&wkey;>39(l) — Admissibility op Evidence.
    In trespass to try title, where plaintiff claimed by adverse possession, a lease from the -defendant record owner to a party occupying part of the land is admissible.
    [Ed. Note. — For other -cases, see Trespass to Try Title, Cent. Dig: § 54.]
    5. Trial &wkey;141 — Instructions — Necessity —Undisputed Issues.
    Refusing requested instructions on proposi-' tions established by the uncontradicted testimony-of disinterested witnesses is not erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 336.]
    6. Landlord and Tenant <&wkey;5G(l) — Possession op Tenant as Constructive Possession op Landlord.
    The record owner’s possession, through tenants, of portions of a survey, constitutes constructive possession of the entire survey except portions actually adversely occupied.
    [Ed. Note. — For other cases, seo Landlord and Tenant, Cent. Dig. § 124.]
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    Trespass to try title by T. J. Pate against David L. Gallup. From an adverse judgment, plaintiff appeals.
    Affirmed.
    W. T. Davis, of San Augustine, for appellant. Terry, Cavin & Mills, of Galveston, for appellee.
   BROOKE, J.

This is an action of trespass to try title, brought by T. J. Pate, as plaintiff, against David L. Gallup, as defendant, to recover 106 acres of land, a part of the H. I-I. Hall survey in San Augustine county. The case was tried upon the issues made by the first amended original petition of appellant, filed January 21, 1916, and the first amended original answer of appellee, also" filed on said date. Appellant asserts title to the land in controversy under the ten years’’ statute of limitation, and appellee asserts title to said land under a record title thereto, admitted by the appellant to be sufficient to entitle appellee to a judgment for the land, unless his title had been divested by appellant’s occupancy under the ten years’ statute. The case was-tried before a jury upon special issues submitted to them by the court, and, upon the findings of the jury, appellant duly filed .and presented his motion for judgment for all the land described in plaintiff’s petition, and appellee filed and presented his motion for judgment for all of the land except 26 acres shown by the proof to have been actually inclosed during the period in which appellant claimed his occupancy ripened into title. The court, after considering, appellant’s motion for judgment, overruled it in part and granted it in part, and rendered judgment for appellee for all of said land except the 26 acres above mentioned, awarding said 26 acres to appellant; to which action of 'the court appellant, in open court, excepted, and duly filed and presented his motion for new trial, in which he assigned various errors to the action and rulings of the court. The court, after hearing and considering said motion, in all things overruled it, to which action of the court aiipellant, in open court, excepted, and gave notice of appeal to this court.

We are confronted, at the outset of this case, with an objection filed by the appellee to a consideration of appellant’s first, second, third, fourth, fifth, fourteenth, and fifteenth assignments of error, for the reason that all of the above-named assignments violate the rule against multifarious assignments, and should not be considered by this court. It is clear that tbe assignments mentioned are not in compliance with tbe rules, and, under the uniform decisions of the appellate courts of this state, they are not entitled to consideration. Rules of Courts of Civil Appeals, Nos. 24, 25, 26, and 29 [142 S. W. xii]. The assignments referred to consist of a number of separate and distinct subdivisions, each of which presents a separate and distinct proposition from tbe others relating to other matters, and raising other points of law. The objection, in our opinion, is well taken, and we will not consider appellant’s said assignments.

Appellant’s sixth assignment of error is as follows:

“The court erred in admitting in evidence over the objections of the plaintiff the purported copies of purported leases from Charles Holloway, J. M. Holloway, and W. B. Butler to East Texas Land & Improvement Company, dated September 29, 1894, because: (a) Said purported copies were not evidence of any fact and had no support in the record to authorize their admission in proof of any fact in any manner in this cause, the objections to the admission of which, together with the reasons in support of said objections, fully appear in plaintiff’s bill of exceptions No. 6 filed as a part of the record herein.”

The proposition under this assignment is:

“The proof showing that the copies offered in evidence were copies of purported instruments not recorded and in the control of the defendants, and failing to show that said copies were correct copies of the originals, and the proof further failing to otherwise lay a sufficient predicate for the admission of said copies as secondary evidence, it was the duty of the court to sustain appellant’s objections to the admission of said copies in evidence.”

The counter proposition by appellee is:

“There being no provision in the law requiring the recording of leases or acknowledgments of tenancy before they are introduced in evidenco in behalf of the owner of the record title to the land, and the loss of the originals having been properly proved, and the copies which were introduced having been identified as true copies of the originals by the witnesses Wilson and Dunkin, who saw them executed, they were properly admitted in evidence.”

We are of opinion that there is no merit in this assignment. Tbe witnesses Wilson and Dunkin, as shown by this record, testified that they saw these instruments executed, and the copies which were introduced were identified as true copies of the originals. Tbe loss of the originals was properly proven. We see no error in the action of the court in this matter, and therefore tbe assignment is overruled.

The seventh assignment of error is as follows:

“The court erred in admitting in evidence, over the objections of the plaintiff, the testimony of the witness A. L. Duncan, in connection with tbe purported copies of the purported leases of J. L. Quinn, W. B. Butler, Charles Holloway, and J. M. Holloway, because said copies were not evidence of any fact, and were not supported by any facts in the record authorizing their use as evidence for any purpose, and the use of said copies in connection with the testimony of the said witness, and as a part thereof, was equivalent to establishing the facts by said illegal testimony alone, the objections to which 'testimony, together with the reasons urged in support of said objections, fully appear in plaintiff’s bill of exceptions No. 7 filed as a part of this record.”

The witness Dunkin, as shown by tbe record, testified to tbe fact that the original leases were executed by J. L. Quinn, W. B. Butler, Charles Holloway, and J. M. Holloway, and that tbe copies inspected by him and introduced in evidence were true copies of the originals, as executed by these persons, and, the loss of the originals having been proven by tbe testimony of their custodian at tbe time of the loss, Dunkin’s testimony was admissible, in our opinion. To our minds, the rule of evidence has long been settled that when original instruments, which would be admissible if tbe originals were produced in court and properly proven, are shown, by tbe testimony of tbe custodian thereof, to have been destroyed, the proper manner to prove its loss is: (1) To prove tbe loss or destruction of the original by the custodian thereof at the time of its loss, or destruction; (2) to prove its execution by some one who can testify of this own knowledge to tbe fact that it was executed by the person by whom, it purported to be executed; and (3) if a witness can be produced who can testify that a copy of tbe instrument is a true copy, this should be done. The record shows that all of these requirements were complied with, and therefore this court can find no merit in this assignment, and it is overruled.

Tbe eighth assignment of error complains that the court erred in admitting in evidence, over the objection of plaintiff, tbe purported copies of purported instruments, as follows:

“J. Y. Holloway to A. E. and B. W. Kountze, dated April 13, 1901; James W. Bird to A. E. and B. W. Kountze, dated March 28, 1901; Calvin Quinn to A. E. and B. W. Kountze, dated March 28, 1901; Wade B. Butler to A. E. and B. W. Kountze, dated March 28, 1901; John D. Donahoe to A. F. and B. W. Kountze, dated March 28, 1901; Joe D. Pate to A. F. and B. W. Kountze, dated June 25> 1901; Ive O. Holloway to A. F. and B. W. Kountze, dated March 29, 1901; John T. Evett to A. E. and B. W. Kountze, dated June 25, 1901”

—because said purported copies were not evidence of any fact, and have no support in tbe record to authorize its admission in proof of any fact in any manner in this cause; the objections to the admission of which, together with the reasons in support of said objections, fully appearing in plaintiff’s bill of exception No. 8.

The proposition under this assignment is the same as under tbe sixth assignment here-inbefore quoted. What we have said in disposing of the sixth assignment applies to this assignment, and the same is overruled.

The ninth assignment of error complains of tbe action of tbe trial court in admitting in evidence, over tbe objection of tbe plaintiff, tbe testimony of John N. Wilson, in connection with the purported copies of purported leases of J. V. Holloway, James W. Bird, Calvin Quinn, Wade B. Butler, John Donalioe, Ive O: Holloway, Joe Evett, and Joe I). Pate, because said copies were not evidence of any fact, and bad no support in tbe record authorizing tbeir use for any purpose, and tbe use of said copies in connection witb tbe testimony of tbe said witness, and as a part thereof, was equivalent to establishing tbe facts by said illegal testimony alone, tbe objections to which testimony, together witb tbe reasons urged in support of said objections, fully appear in plaintiff’s bill of exceptions No. 9, filed as a part of tbe record in tbis cause.

Tbe disposition of tbe seventh assignment of error disposes, also, of tbis assignment. It is therefore overruled.

Tbe tenth assignment of error complains that tbe trial court erred in admitting, over tbe objections of tbe plaintiff, tbe purported lease of Joe D. Pate, in connection witb tbe testimony of W. D. Sheffield, because said Joe D. Pate was not shown to be in possession of tbe land, or that be bad ever asserted any claim thereto, or that be ever exercised any act of ownership thereover; but on tbe contrary, it is shown by tbe evidence, without contradiction, that tbe plaintiff alone used and cultivated tbe land in controversy, asserting ownership thereover and claim thereto, to tbe exclusion of all other persons, and therefore bis rights could not be affected by any act or declaration of tbe said Joe D. Pate, which objections to tbe admission of said copy and tbe testimony of W. D. Sheffield with reference thereto, together witb the reasons in support of said objections, fully appear in plaintiff’s bill of exceptions No. 10, filed as a part of tbe record in tbis cause.

It was shown by tbe testimony of tbe witness Sheffield that J. D. Pate was occupying a portion of tbe land on tbe Hall survey, of which appellee was tbe owner of the record title; bis testimony as to tbe execution of tbe lease by J. D. Pate, thus making tbe latter appellee’s tenant, in our opinion, clearly admissible. And therefore tbis assignment is overruled.

By tbe twelfth assignment of error it is urged:

“The court erred in refusing to submit to the jury, as a part of tho law of the case, special charge No. 1, requested by the plaintiff, filed as a part of the record in this cause, exceptions to which action of the court was duly preserved at the time, as fully appears from plaintiff’s bill of exceptions No. 12 filed as a part of the record in this cause.
“Plaintiff, in support of this assignment of error, urges the following reasons: (a) The proof showed by tbe witness G. W. Pate that no such man as ‘J. L. Quinn’ ever lived on the H. H. Hall survey; that he knew a man by the name of I. L. Quinn who lived on the H. H. Hall survey, and he died in the spring of 1894. (b) It was shown by the testimony of the witness William Pate that J. M. Holloway was not living on the H. H. Hall survey at or about the time of the supposed execution of the leases by W. B. Butler, J. L. Quinn, Charles Holloway, and J. M. Holloway; that J. M. Holloway’s occupancy of the land was not continuous, and the proof further showed that Charles Holloway occupied that portion of the H. H. Hall survey embraced in the claim of W. H. Freeman, (c) The record reflects by no competent and legitimate testimony of any kind the fact of the execution of any tenancy leases by W. B. Butler, J. L. Quinn, Charles Holloway, and J. M. Holloway to the land in controversy with such certainty as to justify the court in withholding the execution of said tenancy leases as a fact issue from the jury, and the refusal to submit the execution of such tenancy leases as an issue of fact for the determination of the jury deprived the plaintiff of a valuable right.”

We have carefully examined, tbe record, and tbe record shows that tbe testimony as to tbe execution of tbe leases or acknowledgments of tenancy mentioned in tbis assignment of error, and as to tbe occupancy by tbe said tenants under tbe leases of a portion of tbe Hall survey owned by appellee and those under whom be claims title, being undisputed, and coming from disinterested witnesses, there was no issue on this point for the court to submit to tbe jury, and tbe court therefore properly refused to give tbe special charge requested, as set out in tbis assignment. Tbe assignment is overruled.

Tbe thirteenth assignment of error is as follows:

“Tho court erred in failing and refusing to deliver to the jury, as a part of the law of the case, special charge No. 2 requested by the plaintiff, exceptions to which action of the court was duly preserved at the time, as fully appears from plaintiff’s bill of exceptions No. 13.
“In support of this assignment of error, the plaintiff urges the following reasons: (a) The record in the cause reflects no testimony, legitimate and competent as evidence in tho case, of such certainty, and of that conclusive character in its nature to the fact that J. Y. Holloway executed a tenancy lease to A. F. and B. W. Kountze on the 13th day of April, 1901, that would authorize tho court in withholding this fact from the jury to be determined by them as an issue in the case, and the failure and refusal of the court to submit to the jury special charge No. 2 as a part of the law of the case deprived the plaintiff of a valuable right.”

Tbe witnesses Wilson, Dunkin, Sheffield, and Kountze, as shown by tbe record, were not agents of appellee, and they testified positively to tbe fact of the execution of tbe leases or acknowledgments of tenancy, and as to tbe occupancy of tbe said tenants under the leases of a portion of tbe whole survey owned by appellee, and those under whom be bolds title. We have examined tbis record carefully, and find no merit in tbis assignment, and it is therefore overruled.

Tbe sixteenth assignment of error is as follows:

“Tbe court erred, as set out in paragraph 3 of its findings of fact, in finding that the defendant, David L. Gallup, and those under whom he claimed, have been in the actual possession of tho H. H. Hall survey of 1,280 acres by and through his tenants since September 28, 1894, except the tract of 8 acres and the tract of 18 acres found by the jury to have been held and inclosed by the plaintiff, T. J. Pate, and that no period of ton consecutive years prior to the filing of this suit has elapsed since the plaintiff, T. J. Pate, began to assert a claim to the land described in his petition, which time the defendant, David L. Gallup, was not in the actual possession of the H. H. Hall survey by and through his tenants except the tract of 8 acres and the tract of 18 acres: (a) Because the said findings of fact are not supported by the record, in that the record shows no legitimate and competent testimony to support said findings of fact.”

We have examined the record with reference to the above assignment, and the overwhelming testimony shows that appellee and those under whom he deraigns his title have been in possession of the whole survey by tenants during all the time in which plaintiff’s limitation title accrued, and we are therefore of the opinion that the court properly found these facts, and that any other finding on the part of the court would have been error. The testimony shows that appellee and those under whom he held the record title had been in actual possession of portions of the Hall survey under unrestricted leases to their tenants during all the time in which appellant’s limitation title was accruing; and, the law being that such possession by the record owners draws to it the constructive possession of all of the survey except such as is in actual adverse occupancy, appellant was necessarily limited in his rights to the land actually held by him in actual possession for more than ten years prior to the institution of the suit, and the facts appearing from undisputed evidence and from the' testimony of disinterested witnesses, the issue became purely one of law, and it being so treated by the court was not error, but, in our judgment, was in all things correct. We have made a careful examination of this record, and we are impressed with the‘idea that no error in the action of the lower court has been made of such importance as would justify a reversal of the case.

Being therefore of the opinion that the appellant has received a fair and impartial trial, and that his rights have been duly protected, and no error appearing in the action of the trial court, the cause is in all things affirmed.

       — .Ti"nr other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes