author: McMEANS, J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. ASHE.
    (Court of Civil Appeals of Texas. Galveston.
    May 2, 1913.
    Rehearing Denied June 5, 1913.)
    1. Limitation ox Actions (§ 55) — Accrual ox Right.
    Where defendant’s lessor laid its track m the street in front of plaintiff’s residence, but plaintiff was not damaged, until the track was leased by defendant, the statute of limitations did not begin to run until the beginning of the damage; and hence plaintiff’s action is not barred because of the long continued use by defendant’s lessor.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. § 55.*]
    2. Railroads (§ 114) — Injuries from Maintenance — Findings—Conflicts.
    In an action for damages for the maintenance of tracks in a street in front of plaintiff’s property, which caused a depreciation in its value, the jury answered special issues 1 and 2, which were whether the permanent operation by defendant caused greater damage than the operation by defendant’s lessor, and whether the increased use caused greater depreciation, in the affirmative, and fixed the amount of the depreciation, and also answered special issue 5, whether, leaving out of consideration any previous use of the tracks, defendant’s use of the tracks caused a depreciation, in the affirmative, fixing the same amount of damage. Special question 4, whether the method of the operation since the defendant began to use the tracks would cause an increased damage, was answered in the negative, and question 4½, which was as to the amount of the future damage, was not answered. Held, that the answers to the special questions and issues were not conflicting, and supported a judgment for plaintiff; question 4 referring to the manner of the operation of the trains, and not to the increased operation.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §,§ 365-371; Dec. Dig. § 114.*]
    Appeal from District Court, Harris County ; Norman G. Kittrell, Judge.
    Action by S. S. Ashe against the Houston Belt & Terminal Railway Company and others. From a judgment for plaintiff, the named defendant appeals.
    Affirmed.
    Andrews, Ball & Streetman, of Houston, for appellant. S. H. Brashear and Ellis P. Collins, both of Houston, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   McMEANS, J.

S; S. Ashe, plaintiff, brought this suit against the Houston Belt & Terminal Railway Company, the Trinity & Brazos Valley Railway Company, the Gulf, Colorado & Santa Fé Railway Company, the Beaumont, Sour Lake & Western Railway Company, the St. Louis, Brownsville & Mexico Railway Company, and the Chicago, Rock Island & Gulf Railway Company, defendants, to recover damages for depreciation in value of certain property owned by him abutting upon Mary street, in the city of Houston, alleged to have been caused by the operation of trains, engines, and cars over a railway track laid in said street. The case was submitted to a jury upon special issues, and upon a return of the verdict a judgment was on motion of the plaintiff entered in his favor against the Houston Belt & Terminal Railway Company for $1,041, and in favor of the other defendants. From the judgment so rendered against it, the defendant Houston Belt & Terminal Railway Company has appealed.

The plaintiff alleged, in substance, that he was the owner of lots Nos. 3, 4, 5, and 6, in block No. 7, in the D. Gregg addition to the city of Houston, fronting 150 feet on Mary street, and having a depth of 150 feet, whereon were situated several residence houses and appurtenances; that in the year 1907 the defendant Gulf, Colorado & Santa Fé Railway Company, which had for some years maintained a line of railway upon said Mary street in front of plaintiff’s premises, using same as a “transfer” track, abandoned its use, control, possession, and management of said railroad, arid sold, conveyed, and delivered possession thereof to the defendant Houston Belt & Terminal Railway Company; that in said year 1907 the defendant Houston Belt & Terminal Railway Company established a terminal and belt railway system in and around the city of Houston for the purpose of furnishing terminal facilities to a large number of railroad companies, and established also a large depot grounds and switchyards in said city, and connected and completed the various parts of its system by using as a part thereof the said Santa Fé line of railway on Mary street; that the use made of said railway on Mary street during the time when it was under the control of the Gulf, Colorado & Santa Fé Railway Company was very light and worked but very little, if any, harm or damage to plaintiff’s premises, and that at no time prior to tile acquisition and use of said railway by said Terminal Company was any notice given or use made of said line of railway which would reasonably or did in any wise indicate that any greater or additional burden would be placed upon said street by said Gulf, Colorado & Santa Eé Railway Company, its successors or assigns, than the ordinary use of said line of railway for the purposes of said company alone, nor was there anything to suggest any contemplation of a belt or terminal railway for the bringing of trains of other railroads over said track; that in said year 1907 the said Houston Belt & Terminal Railway Company by an arrangement with the other defendants named furnished and provided the said track on Mary street as a part of the facilities for the trains of said other companies, it, the said Houston Belt & Terminal Railway Company, exclusively controlling, possessing, managing, and using said line of railway on Mary street for the uses of said other railway companies and itself; that the use of and operation of said track by each of said defendant railway companies, and the damage resulting therefrom, was equal to, if not greater than, the use of and operations on said track by the Gulf, Colorado & Santa Fé Railway Company before the changed conditions and operations arose under the control and ownership of the Houston Belt & Terminal Railway Company, and that such aggravated and additional use and servitude would, and could, never have been compensated by any assessment of damages based upon the use and operation by the Gulf, Colorado & Santa Fé Railway Company, and that as a direct and proximate result of the operations and uses of said track as a part of said terminal system, and of such changed conditions and circumstances, the plaintiff’s property became and was worth the sum of |10,000 less immediately after such changed conditions, operations, and uses began than the same was worth immediately theretofore.

The defendant, after pleading the general denial, further pleaded that since about the year 1883 the • Gulf, Colorado & Santa Fé Railway Company had operated trains, engines, and cars over said Mary street track, and had pursued thereupon and thereover its business of carrying freight and passengers, and that to the extent that it may not have done so it nevertheless possessed the right to do so under the ordinance of the city council of the city of Houston by virtue of which the said track was constructed; that said use of said track by the Gulf, Colorado & Santa Fé Railway Company had been continuous and extensive, and great numbers of trains, engines, and cars had been constantly operated over said track, and that the operations carried on thereupon and thereover by the defendants were not different in kind from the operations theretofore carried on by the Gulf, Colorado & Santa Fé Railway Company, and that if different in degree were less in degree and by no means as extensive as the operations theretofore carried on by the Gulf, Colorado & Santa Fé Railway Company, and that said track and street were in fact subjected to a less and decreased servitude than the same were subjected to during the time when the defendant the Gulf, Colorado & Santa Fé Railway Company operated its trains, engines, and cars thereover, and that by the construction of said East line of railway by the defendant Houston Belt & Terminal Company and the use thereof by all of the defendants, including the Gulf, Colorado & Santa Fé Railway Company over said track had been practically eliminated, and at all events greatly lessened and decreased, and that plaintiff’s property, if affected at all by said operations, was increased instead of being decreased in value. The defendant further pleaded the statute of limitations of two and four years in bar of any recovery by plaintiff on account of depreciation.

Special issues 1 and 2, submitted to the jury, and the answers thereto, are as follows:

“(1) Was such part as was permanent of the operation of the Houston Belt & Terminal Railway Company and its sublessees on Mary street, just after they began their operations, greater as to the effect on plaintiff’s property by vibration, noises, smoke, odor from burning fuel, and interference with ingress to and egress from the premises, than the effect, if any, on said property from the operation on Mary street under the management of the Gulf, Colorado & Santa Fé Railway Company immediately before the operations on said street by the Houston Belt & Terminal Railway Company and its sublessees?”

To this question the jury responded: “It was greater under the Houston Belt & Terminal Company’s management.”

“(2) If you have answered the' first question in the affirmative, you will then state whether or not you find that such greater use caused the plaintiff’s premises to depreciate in their market value just after such operations began, as compared with the value under the Gulf, Colorado & Santa Fé Railway Company’s operation and management just before that time, and, if so, you will state the amount of such depreciation.”

To this question the jury answered: “Xes; $1,041.00.”

Appellant complains by its first assignment of error that “the court erred, to the prejudice of this defendant, in entering judgment herein in favor of the plaintiff against this defendant, and in refusing to enter judgment in this defendant’s favor, for that under the undisputed evidence in the case and the findings of the jury in response to the special issues submitted to them, and under the undisputed evidence, regardless of said ■findings, the operations of the Houston Belt & Terminal Railway Company over the track in question were not such as to impose, and did not in fact impose, a greater burden thereupon, or upon said street or the abutting property, and there was no different use of said track by the Houston Belt & Terminal Company from the use to which same was theretofore and then subjected by the Gulf, Colorado & Santa Fé Railway Company, and plaintiff’s cause of action, if any he ever had, arose many years before the institution of this suit, and was barred by the two-year statute and four-year statute of limitations of this state, which were pleaded by the defendant herein in bar of plaintiff’s action, and plaintiff was entitled to no recovery against this defendant, but, on the contrary, judgment should have been rendered in this defendant’s favor.”

By its several propositions under this assignment appellant contends that, under the undisputed evidence and under the findings of the jury in response to the special issues submitted to them, the operations of the Houston Belt & Terminal Railway Company over the track on Mary street did not amount to an imposition of an additional servitude upon said street or the property abutting thereon, and that, therefore, plaintiff’s cause of action for damages was barred by the statute of limitations of two and four years. It was shown by the testimony that about the year 1883 the Gulf, Colorado & Santa Fé Railway Company, pursuant to authority granted to it by the city council of the city of Houston, constructed a railway track along and upon Mary street and in front of plaintiff’s property, over which it operated engines, cars, and trains, and so continued until about July 1, 1907, when it leased said track, together with tracks upon other streets, to the Houston Belt & Terminal Railway Company, which thereafter assumed control thereof and itself operated engines, cars, and trains thereover. The evidence justifies the finding, and in deference to the verdict of the jury we find, that after the Houston Belt & Terminal Railway Company assumed control of and began operations over the track in question a greater number of engines and cars and trains were run over said track, and that the noise, vibration, and odor from burning fuel caused by such operations were greatly intensified, and as the direct and proximate result thereof plaintiff’s property was depreciated in its market value to the extent of $1,041 as found by the jury.

It may be conceded for the purpose of this opinion that the Gulf, Colorado & Santa Fé Railway Company in leasing the track in question to the Houston Belt & Terminal Railway Company did not thereby surrender its right to the use thereof, but that it continued to use the same conforma-bly to the terms of the lease contract as its necessities required. But it is indisputably shown by the evidence, we think, that the control of operations thereover was placed by the lease contract in the Houston Belt & Terminal Railway Company, and that such use of the track as was made by the Gulf, Colorado & Santa Fg Railway Company was only permissive under its terms. The contention of appellant, as we understand it, is simply this: That as the track in question was constructed by the Gulf, Colorado & Santa Fé Railway Company in 1883, and that as that company then began and continued the operation of trains, cars, and engines thereon, and as such operations were productive of such noises, vibrations, and interference with ingress and egress as the plaintiff now claims is the cause of the depreciation of his property due to the operations of the Houston Belt & Terminal Railway Company, limitation began to run at the time the track was constructed, and the operations begun, and that plaintiff’s cause of action is now barred by the statute of limitations of two and four years, notwithstanding the depreciation was caused by the operations of the Houston Belt & Terminal Railway Company and not by the operations of the Gulf, Colorado & Santa Fé Railway Company. This contention is based on the theory that the lease of the track to, and the operations thereover conducted by, the Houston Belt & Terminal Railway Company, did not impose any additional servitude upon the street or upon plaintiff’s property abutting thereon.

The testimony failed to show, we think, that plaintiff’s property suffered depreciation in its market value by reason of the operations by the Gulf, Colorado & Santa Fé Railway Company over the track in question, but does affirmatively show that such depreciation was caused solely by the operations of the Houston Belt & Terminal Railway Company. If we are mistaken in saying that the evidence failed to show any depreciation prior to the beginning of operations by the last named company, and if there was evidence to raise such an issue, the issue was resolved by the jury in favor of the contention that the damage sustained by plaintiff was due to the operations of the defendant company alone, as will be seen by the answer to the fifth question propounded, which, with the answer thereto, is as follows: “(5) Leaving out of consideration any operation at all on Mary street just prior to the beginning of the Houston Belt & Terminal Company’s operation, and considering the plaintiff’s property as without any railroad operation on Mary street in front of it, did the value of the property become less immediately after the said terminal company began its operations, as a result of such operations, than it was immediately theretofore, and, if so, how much less?” To which the jury responded: “Yes; $1,041.” As then no damage had been sustained by plaintiff until the latter company began operations, it is clear that plaintiff’s cause of action did not arise until then; and, as this suit was brought within two years from that time, plaintiff’s cause of action was not barred. We think this view is fully sustained by the following cases: Grossman v. Railway, 99 Tex. 641, 92 S. W. 836; Hutcheson v. Railway, 102 Tex. 475, 119 S. W. 85; Railway v. Edrington, 100 Tex. 496, 101 S. W. 441, 9 L. R. A. (N. S.) 988; Schueller v. Railway, 46 Tex. Civ. App. 444, 102 S. W. 922; Railway v. Necco (Sup.) 15 S. W. 1102. Appellant’s first assignment is overruled, as is also its second and third which raise substantially the same point.

By its sixth assignment appellant complains of the refusal of the court to grant its motion for a new trial on the ground thereof which asserts that the findings of the jury in response to questions 1, 2, 4, 4½, and 5 are ambiguous, uncertain, conflicting, contradictory, and inconsistent to the extent that it is impossible to determine what the jury’s finding in fact was, and that no judgment should have been entered on the verdict in favor of plaintiff and against the defendant. We have set out in this opinion the first, second, and fifth questions. We think it cannot be successfully contended that the answers to these are either conflicting' or contradictory. The fourth question is as follows. “(4) Has or has not the character and method of operation of trains along the track by the property since the terminal company began to use the same been such, and will such operation in future likely be such, as to cause an increased damage to the property; that is, has such operation caused, or will it likely cause in future, damages additional to or greater than was caused by the operation of the Santa Eé Railway Company’s trains?” To which the jury answered: “It has not and will not.” Question 4½ is as follows: “If you have answered the preceding question in the affirmative, what do you find, expressed in money value, to have been the extent of such damage and such future damage?” To this question the jury made no response. It will be seen that by the first and second questions- it was sought to be elicited whether the permanent operation of the Houston Belt & Terminal Railway Company was greater as to its effect on plaintiff’s property than it was theretofore, and whether this caused a depreciation in its market value, and, if so, the extent of such depreciation, and the jury answered that the effect was greater and caused a depreciation in the market value to the extent of $1,041. The fourth question was propounded to elicit whether the character and method of operation, rather than the increase in the volume of operations had caused or would likely cause damage in the future, and the jury answered that the character and method of operation “had not and will not.” We think that the answer was warranted by the evidence, for it was shown that the character of operation — that is, the running of ears, engines, and trains over the track — was the same under both managements, and the method — that is, propelling ears and trains over the track by engines propelled by steam — was the same. We think that, when thus viewed, the answers to the several questions quoted were not conflicting jor contradictory, or at least not so flagrantly so as to authorize this court to set aside the judgment rendered on the verdict. The assignment is overruled.

We have carefully examined all of appellant’s assignments of error, and do not find reversible error in any of them. The judgment of the court below is affirmed.

Affirmed.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    CHAMBERS v. RAWLS.
    (Court of Civil Appeals of Texas. El Paso.
    June 12, 1913.
    Rehearing Denied June 26, 1913.)
    1. Public Lands (§ 178) — Lands of State —Transfer.
    Where school land was awarded by the Commissioner of the General Land Office to J. as an actual settler on December 8, 1906, and on December 30, 1907, he conveyed to G., and both complied with the law relative to occupancy, the Commissioner by refusing to file the affidavit, of transfer and obligations of C. in the General Land Office could not impair C.’s rights in the property nor lawfully forfeit the same and award the land to another.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. § 178.*]
    2. Public Lands (§ -178) — School Lands— Settler’s Rights — Transfer.
    Where the State Land Commissioner refused to file an affidavit of transfer of a purchaser’s interest in school land together with the transferee’s obligations, the latter was not required to institute proceedings to compel the filing of the papers, since the validity of the transfer did not depend on the retention and filing of the transfer documents by the Land Commissioner.
    [Ed. Note. — For . other cases, see Public Lands, Cent. Dig. §§ 579-5S2; Dec. Dig. § 178.*]
    3. Public Lands (§ 178) — Lands of State-School Land — Occupancy—Termination.
    The death of a trañsferee of school land entry dispensed with further occupancy.
    [Ed. Note. — For other cases, see Public Lands, Cent Dig. §§ 579-582; Dec. Dig. § 178.*]
    4. Public Lands (§ 178) — Lands of State —Transfer—Occupancy—Maturity.
    It is not necessary to the validity of a transfer of a purchaser’s interest in school land that it be effected, after the maturity of occupation.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. § 178.*]

      5. Public Lands (§ 179) — Lands of State— Besidence — Evidence.
    Where, in trespass to try title to a boundary of school land, the controlling issue was the place of residence of an entryman and his transferee, evidence as to “where they resided” during the time they were owners of the premises was incompetent as a conclusion.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 583; Dec. Dig. § 179.]
    6. Appeal and Error (§ 934) — Findings — Presumption — Review.
    Bev. Civ. St. 1911, art. 1985, provides that, on appeal or writ of error, an issue not submitted or requested by a party to the cause shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such finding. Held, that where it appeared that in 1884 a transferee of certain school land married A., and they lived together as man and wife until the transferee’s death in 1908, and he recognized as his own children bom to A., it would be presumed that his prior marriage to another woman had been dissolved by divorce, and that the second marriage was valid and the children begotten their lawful heirs, in order to support a judgment sustaining a title derived from them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3777; Dec. Dig. § 934.] •
    7. Judgment (§ 250) — Conformity to Pleading — Trespass to Try Title.
    ■ Where, in trespass to try title, plaintiff pleaded his title specially, and averred that he claimed under the heirs of C., and it appeared that the premises belonged to the community estate of C. and his wife, she taking half of the property in her own right, and not as heir of her husband, plaintiff was restricted to the title pleaded, and was therefore only entitled to recover a half interest in the title, together with exclusive possession of the whole.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. § 250.]
    Appeal from District Court, Presidio County; W. C. Douglas, Judge.
    Trespass to try title by T. H. Bawls against B. L. Chambers. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. D. Martin, of Alpine, and T. A. Falvey, of El Paso, for appellant. J. A. Gillett, Hud-speth, Dale & McDonald, and P. H. Clarke, all of El Paso, for appellee.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

This is an action of trespass to try title by the appellee for recovery of four sections of free school land in Pre-sidio county, filed May 28, 1912. The premises were sold and awarded by the Commissioner of the General Land Office to Moses Jiner, as an actual settler, on December 8, 1906. By deed dated December 30, 1907, Jiner conveyed the same to Salvador Chavira. The conveyance was duly recorded and forwarded by the vendee to the Commissioner of the General Land Office, together with his affidavit and purchase-money obligations, for filing and substitution as purchaser direct from the state, as provided by article 5436, Bevised Statutes of 1911, and article 4218k, Bevised Statutes of 1895. These documents were received by the Commissioner on January 4, 1908, and he thereupon filed in his office the conveyance but refused to file the other papers, and on February 18, 1908, returned the affidavit and substitute obligations to Chavira. On February 17, 1908, the Commissioner canceled the sale and award of the land to Jiner for alleged failure to settle upon, occupy, and improve same, as by law required, and indorsed such act of forfeiture upon Jiner’s obligations, as provided by articles 5423-5425, Bevised Statutes of 1911. Chavira died November 19, 1908, and on August 9, 1911, an affidavit to that effect, in due form, was filed in the General Land Office. No legal action was ever taken by Chavira to compel the Land Commissioner to reinstate the sale to Jiner or to compel him to retain and file the affidavit and substitute obligations aforesaid. In the year 1910 An-iseta Chavira, surviving wife, and the children and heirs of Salvador conveyed the premises to B. B. Smith, who, in turn, conveyed same to appellee by deed dated May 10, 1911. After the forfeiture of the sale to Jiner, the lands were reappraised and placed upon the market by the Land Commissioner, and on March 29, 1912, same were awarded by him to appellant upon his applications to purchase filed February 8, 1912. The cause was submitted upon special issues, and the Jury found that Jiner had settled and lived upon the land, as required by law, until his conveyance to Chavira, and that Chavira settled and lived upon the same, as by law required, from the date of his purchase from Jiner until his death, and upon these findings judgment was rendered in appellee’s favor for an undivided one-half interest in the premises; the same being the interest which had been conveyed by the children and heirs of Salvador.

Appellant submits that under the provision of article 5436 a vendee of the original purchaser of free school land, in order to acquire title thereto, must be substituted as a purchaser direct from the state by the Commissioner of the General Land Office, and that since Chavira’s affidavit and obligations were not accepted and filed by the Land Commissioner he was therefore never substituted for Jiner, and had no title. In Payne v. Cox, 143 S. W. 336, it was held that the vendee of the original purchaser who bought prior to the expiration, of the three years’ occupancy need not file his transfer, affidavit, and substitute obligations in the General Land Office; that, if he in fact complied with the law relative to occupancy and improvements, he acquired title, notwithstanding his failure to have himself substituted. Under the view which we have of the law, it is unnecessary for us to pass upon the question decided in that ease, and for the purpose of this case it may be conceded that the statute does require substitution when the required occupancy has not been completed, and that third persons as distinguished from the state may properly raise the question and avail themselves of the consequences of such failure. In the instant case the jury by its finding has affirmatively established that Jiner and Chavira both complied with the law relative to occupancy. Unless there had, in fact, been a failure to so occupy, the Commissioner was without authority to forfeit upon that ground; and, the jury having found that there was no such failure, the attempted act of forfeiture had no force or effect whatever. Johnson v. Bibb, 32 Tex. Civ. App. 471, 75 S. W. 71. This being true, Jiner had all of the rights granted him by law as the lawful original purchaser of the land, and Chavira as a lawful venaee had all of the rights and privileges granted by law to such vendee. Jiner, under article 5436, had the right to sell, and Chavira, as its purchaser, had the right, and it was his duty, to file his transfer in the General Land Office, together with his affidavit and purchase-money obligations, and thereby become the substituted purchaser direct from the state, and it was the duty of the Commissioner (article 5449, Revised Statutes of 1911) to retain the same as a record of his office. It was the' law that gave Jiner and Chavira these rights, and the Land Commissioner was wholly without authority to destroy or impair the same, and their rights were in no wise dependent upon the Land Commissioner performing the duty of filing the instruments as a record of his office. The transfer, affidavit, and obligations were forwarded by Chavira to the Land Commissioner and by him received. The transfer was retained and filed, but the affidavit and obligations, as stated, returned, with advice that same were returned because they could serve no useful purpose in the Land Office since the sale to Jiner had been forfeited. The right of substitution being one given and granted by the law, and the parties having performed all of the acts prescribed by law necessary to effect the substitution, it must be held that the same was effected. Metzler v. Johnson, 1 Tex. Civ. App. 137, 20 S. W. 1116; Watts v. Wheeler, 10 Tex. Civ. App. 117, 30 S. W. 297. The Land Commissioner was vested with no discretion in the matter, and the only effect of his wrongful refusal to retain and file the affidavit and obligations is that theré is not now in the Land Office the proper evidence which should be there of the substitution which had, in fact, been effected. By his failure to' retain and file these instruments, proper records and archives of his department are- missing, but this cannot and does not alter the fact that a substitution was made, and the rights of the parties are in no wise affected by the fact that the proper evidence thereof is not in the proper department.

It is suggested that Chavira should have taken steps to compel the Commissioner to retain and file the papers. Waiving the question of whether any adequate remedy exists by which the Commissioner could,have been compelled so to do, it is a sufficient answer to the suggestion to merely repeat that the right of substitution was not dependent upon his retaining and filing the documents, and hence no necessity for Chavira to take any steps to compel him to do so. It is further suggested that Rawls cannot recover and has no title to the land because he has never been substituted as a purchaser from the state, and as a matter of fact could not become a substitute purchaser because he has recovered only an undivided one-half interest in the land and the right of substitution as to such one-half interest does not exist.

The death of Chavira dispensed with further occupancy, and, as intimated above, it is not necessary that a substitution be effected after the maturity of the oecupancy. Taylor v. Burke, 66 Tex. 643, 1 S. W. 910. Prior to the completion of the three years’ occupancy, it may with some degree of plausibility be urged that not only are occupancy and improvement required, but the filing of the statutory affidavit of the substitute purchaser as well, guarding against collusion and fraud, but these considerations do not apply where the occupancy has been completed and improvements made, since the inchoate right of the purchaser prior to the completion of the three years then ripens into a full and complete equitable title.

What has been said disposes of all the various contentions predicated upon the theory thaijthere was no privity between the state and Chavira, and that there is none between the state and Rawls. We are referred to the Acts of 1905 (articles 5458-5459, Revised Statutes of 1911), and various decisions of our Supreme Court construing the same, but we are unable to perceive the applicability in any respect of the statute and authorities cited, under the facts disclosed by this record.

Upon the trial certain witnesses by depositions testified where Jiner and Chavira resided during the time they were the owners of the premises in controversy; their answers to the interrogatories propounded being that they lived in the town of Marfa. To the answers of the witnesles it was objected that the same was a conclusion, and the objection was sustained. Ordinarily there would be no objection to a witness being permitted to state where a party’s residence was; but, where the controlling and decisive issue in the case is the place of residence, then necessarily to permit a witness to so testify would be 'to permit him to state his own conclusion as to the very issue which it was the duty of the jury to decide, and the court properly excluded the answers.

It appears from the evidence, and in response to a special issue submitted, the jury found that prior to his marriage with Aniseta the- said Salvador had married one Petra Mata, who, it also appears, was living 'at the time of trial. The question of whether or not there, had been a dissolution of this prior marriage, therefore, became a material inquiry, but no issue in this respect was submitted to the jury, and no such submission was requested. No evidence was offered to show that there had been no divorce.

Upon special verdict an issue not submitted and not requested to be submitted is governed by article 19S5, Revised Statutes of 1911, which provides that: “Upon appeal or writ of error, an issue not submitted and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment; provided, there be evidence to sustain such a finding.” It appears that about 1884, which was some years after the separation of Salvador and Petra, Aniseta and Salvador were married in due form by a Catholic priest, and that they lived together as man and wife until Salvador’s death in 1908, and that he recognized as his own the children born of Aniseta. Under such circumstances, the presumption is that the prior marriage of Salvador and Petra had been dissolved by divorce, and that the second marriage was valid and the children begotten by the parties their lawful heirs. If there had been no divorce, the burden of proving this negative fact was upon appellant. Carroll v. Carroll, 20 Tex. 732; Nixon v. Wichita Land & Cattle Co., 84 Tex. 408, 19 S. W. 560; Railway Co. v. Beardsley, 30 South. (Miss.) 660; United States v. Green (C. C.) 98 Fed. 63; Maier v. Brock, 222 Mo. 74, 120 S. W. 1167, 133 Am. St. Rep. 513, 17 Ann. Cas. 673; Jackson v. Phalen, 237 Mo. 142, 140 S. W. 879; Gamble v. Rucker, 124 Tenn. 415, 137 S. W. 499. It will therefore be presumed that the trial court resolved this material issue in appellee’s favor. At the request of appellant’s counsel, the learned trial court filed his conclusions of law upon the facts found by the jury, and from his third conclusion it is affirmatively apparent that he did so resolve this issue.

Appellee pleaded his title specially, and averred that he claimed under the heirs of Salvador Chavira. The premises belonged to the community estate of Salvador and Aniseta and the interest of Aniseta was in her own right, and not as an heir. Deed from Aniseta, however, was offered in evidence. Judgment was rendered in appellee’s favor for an undivided one-half interest, the same being the interest acquired from the children and heirs of Salvador, and it was further ordered that he recover possession of the entire premises. By cross-assignment ap-pellee contends that he should have recovered the entire title as well as exclusive possession. As we understand the correct rule, the owner of an undivided interest in lands as against a trespasser is entitled to the exclusive possession, and upon recovery of his undivided interest he is entitled to judgment further for such possession. We can conceive of no theory upon which • judgment could properly be rendered in his favor for the complete title when, in fact, he is not the owner thereof. In certain cases cited by ap-pellee there are expressions broad enough to support such a view, but they are regarded as being somewhat loose and inaccurate, and it is not believed that it was intended to hold that more should be permitted than recovery of the interest owned together with exclusive possession of the whole. Whatever may be the proper construction of these authorities, they are inapplicable here. Appellee having pleaded his title specially, he was by a well-defined rule confined and restricted to the title pleaded, and in the judgment he was therefore properly limited in his recovery to the one-half interest in the title acquired from the children and heirs, together with exclusive possession of the whole. In the cases cited no such question of pleading was involved, and they are therefore not in point, even if it be conceded that they are authority for the broad proposition that the owner of an undivided interest as against a trespasser can recover the entire title as well as exclusive possession.

The principle here recognized would not be applicable if the land had been patented. In such case the entire legal title would have been vested in Salvador, subject to the wife’s equitable title to an undivided one-half interest, and the children and heirs of Salvador would have inherited the entire legal title. Patty v. Middleton, 82 Tex. 586, 17 S. W. 909; Woodburn v. Texas, etc., 153 S. W. 365. By their conveyance to Smith the legal title would have passed, and Rawls, as the vendee of Smith and holder of the complete legal title, should have recovered the entire title and possession of the whole, notwithstanding the state of his pleadings. But the legal title was still in the state, and under the deed from the heirs of Salvador the equitable title to an undivided one-half interest only, passed.

The cross-assignment of error is therefore overruled, and the judgment is in all respects affirmed.


author: MOURSUND, J.

text:
    HIDALGO COUNTY DRAINAGE DIST. NO. 1 v. SWEARINGEN.
    (Court of Civil Appeals of Texas. San Antonio.
    May 21, 1913.
    Rehearing Denied June 18, 1913.)
    1. Drain's (§ 18) — Drainage District — Employment of Counsel — Statutes.
    The Drainage Act of 1907 (Acts 30th Leg, c. 40) §§ 43, 44, requiring- all contracts by drainage commissioners to be reduced to writing, signed by the contractors and the drainage commissioners, and approved in writing by the county judge, do not apply to contracts employing an attorney for the district under section 51 of the act, authorizing the commissioners to. employ counsel on terms approved by the county judge.
    [Ed. Note. — Por other cases, see Drains, Cent. Dig. §§ 11, 13; Dec. Dig. § 18.*]

      2. Drains (§ 18) — Drainage Districts — Employment of Counsel — Approval op County Judge.
    Where the county judge was present at a conversation between an attorney and drainage commissioners, at which an oral contract was made for the employment of the attorney on behalf of the district, and was then and there approved by the judge, it was not necessary for him thereafter to make a formal approval thereof.
    [Ed. Note. — For other cases, see Drains, Cent. Dig. §§ 11, 18; Dec. Dig. §. 18.*]
    3. Attorney and Client (§ 166) — Duty to Client — Contract.
    Evidence showing that an attorney for a drainage district performed without complaint or cause for complaint all services required of him under the contract is sufficient to support a finding that he has complied with the terms of his contract, regardless of the quality or value of the services rendered.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 368-372; Dec. Dig. § 166.*]
    4. Drains (§ 20) — Actions—Attorney Fees —Evidence.
    In an action by an attorney to recover compensation for services under a contract entered into between him and a drainage district with the approval of the county judge, evidence held sufficient to sustain a finding that the attorney made the contract solely for himself, and not jointly with or as a partner of the county judge.
    [Ed. Note. — For other cases, see Drains, Dec. Dig. § 20.*]
    5. Drains (§ 20) — Actions por Compensation — Evidence—Oral Contract.
    In an action upon an oral contract for attorney fees against an irrigation district, evidence held sufficient to show an intent of the parties that the contract should be binding without being reduced to writing.
    [Ed. Note. — For other cases, see Drains, Dec. Dig. § 20.*]
    6. Judgment (§ 251) — Conformity to Pleadings — Pleadings Stricken by Court.
    In an action to recover for professional services rendered by an attorney for a drainage district, the court erroneously sustained an exception to the claim in the complaint for services rendered more than two years prior to the commencement of the action, thereby excluding compensation for services rendered during 28 days prior to that time, but which was not yet due. This judgment was in no manner set aside, but at the trial the court rendered a judgment which included the compensation for the 28 days. Meld, that the pleadings did not support the recovery, and the judgment should be reduced by eliminating that item.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.*]
    Appeal from District Court, Hidalgo County; W. B. Hopkins, Judge.
    Action by R. J. Swearingen against the Hidalgo County Drainage District No. 1. Judgment for the plaintiff, and defendant appeals.
    Modified and affirmed.
    See, also, 142 S. W. 1006.
    Jno. C. Scott, of Corpus Christi, for appellant. R. B. Creager, of Brownsville, for ap-pellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

Appellee sued appellant on June 18, 1910, to recover attorney’s fees, claiming that he was entitled to $3,000 for legal services under an express oral contract, approved orally by the county judge, by virtue of which contract he was to receive such amount for one year’s services, payment to be made in installments of $250 at the end of each month, and further claiming $2,250 on a quantum meruit for legal services rendered for nine months prior to the making of the contract sued upon. It was alleged that the contract began April 20, 1908, and expired April 19, 1909. Recovery of interest was sought upon each installment from the time when same became due. Appellant’s plea of the two-year statute of limitation was sustained as to all of appellee’s claim for services rendered more than two years prior to June 18, 1910, so the only claim entertained by the court was for that portion of the year’s salary under the oral contract not barred by limitation. Appellant urged a plea in abatement alleging that D. B. Chapin should be made a party to the suit because appellee in making such agreement acted as the agent of Chapin or as a partner with him, wherefore Chapin is jointly interested in the recovery sought, and should be made a party. A general demurrer was filed, and the petition was specially excepted to on the ground that it failed to show that the contract sued upon was in writing, or that the county judge in writing approved such agreement, and that same was approved in writing by the county judge of Hidalgo county after it had been properly executed by appellee and appellant. Appellant, after interposing a general denial, also pleaded specially that in the making of the contract appellee acted as the agent or partner of D. B. Chapin, or jointly with him, and at that time Chapin was, and for a long time thereafter continued to be, county judge of Hidalgo county, and the contract therefore was against public policy, illegal and void, and could not be made the basis of a recovery in the suit. The court overruled the general demurrer and the special exceptions above described, and upon the trial rendered judgment for appellee for $3,322.50, with interest at the rate of 6 per cent, from date of judgment.

The first three assignments of error are based upon the overruling of the three special exceptions above described. The proposition submitted thereunder is as follows: “Under section 51 of the Drainage Act of 1907 the contract authorized for the employment of an attorney by the drainage commissioners must be in writing and the approval thereof by the county judge must be in writing, and a recovery cannot be had on the contract, when that alone is relied, on as the basis of recovery, unless it is shown that the contract is in writing, and is approved in writing by the county judge.”

Upon a former appeal of this case, the First Court of Civil Appeals (see opinion 142 S. W. 1006) held that these exceptions were not well taken. This court in the case of Matagorda County Drainage District No. 1 v. Gaines & Corbett, 140 S. W. 372, held that section 51 of the drainage act relating to the employment of attorneys was complete in itself, and not qualified by sections 43 and 44, because it is evident that said sections were not intended to apply to contracts for services of attorneys. It was not necessary to allege that the contract was in writing, nor that it was approved by the county judge in writing, and the allegation that the approval of the county judge was given at the time of making the contract was sufficient.

By the fourth assignment it is contended that the court’s fourth finding of fact is unsupported by the evidence. Said finding reads as follows: “Fourth. That on April 20, 1908, acting by and through its said drainage commissioners, employed plaintiff for the period of one year from April 20, 1908, in his professional capacity as attorney at law and counsel to represent said drainage district, and act as its legal adviser, whenever requested so to do, in all matters pertaining to the legal business of said drainage district, to attend all meetings of the drainage commissioners whenever requested so to do, and generally to perform any and all legal services that might be required of him by said drainage district and its commissioners.” The proposition is as follows: “The contract of employment, such as it was, was not for the definite period of one year from April 20, 1908, or for any other definite period of time; but, on the contrary, the evidence shows that the time for which appellee was employed was an indefinite time, and not for any fixed period.” The testimony regarding this matter was conflicting, but we find ample testimony upon which the court could base his finding.

The fifth assignment attacks the sixth paragraph of the court’s findings of fact, which reads as follows: “Sixth. That D. B. Chapin, who was county judge of Hidalgo county, Tex., on April 20, 1908, acting as such county judge, in all things approved said contract or agreement between plaintiff and defendant, and the amount of the fee or compensation agreed upon.” The following proposition is submitted: “The evidence does not show that the county judge approved the agreement, as contemplated by law, in that it does not show that after the appellee and the drainage commissioners had made the agreement it was approved by the county judge, though the evidence does show that the county judge participated in the actual making of the agreement.” We see no merit in the contention that after the making of the contract it became necessary for the county judge to make a formal approval thereof. If he was present, as the evidence shows he was, during all the conversation, and then and there approved the contract made, such approval constituted a compliance with the law.

The sixth assignment attacks the seventh paragraph of the court’s findings of fact, which reads as follows: “Seventh. That plaintiff complied with the terms of said agreement binding upon him, and that defendant accepted and made use of plaintiff’s services during the whole of the period of the contract as aforesaid. That plaintiff rendered valuable services to defendant during the term of his employment, including the making of three separate trips to Austin, Tex., for the purpose of consulting with the Attorney General of Texas over bond issues,” etc. The proposition is as follows: “The great preponderance of the testimony in this case shows that appellee did no real legal services for the drainage district, and what services he performed for the district, if any, were largely clerical, and were not ‘valuable’ in any sense of the word as legal services.” There is sufficient evidence to support the finding of the court. Appellee appears to have performed, without complaint or cause for complaint, all services required of him under his contract.

The seventh assignment attacks the following finding of fact: “Tenth. That plaintiff in the making of said agreement or contract with defendant was not acting as the employé or agent of D. B. Chapin. That he did not enter into the same as a partner of said D. B. Chapin, nor jointly with said D. B. Chapin. That the said D. B. Chapin was not jointly, or in any manner, interested with plaintiff in the proceeds or moneys sought to be recovered by plaintiff under said contract. That plaintiff did not make said contract or agreement for the exclusive use and benefit of said Chapin, but for his own exclusive use and benefit.” The proposition is as follows: “The facts in evidence show that appellee was either the agent or partner of D. B. Chapin, the county judge of Hidalgo county, at the time the agreement was made, or he was jointly interested with Chapin in the making of that agreement, and therefore the agreement is against public policy and void.” The testimony of appellee directly supports the finding, though in saying he was not employed by Chapin under an agreement to devote his whole time to Chap-in’s business he contradicted a statement made by him in a deposition taken in another case. In this case he contended that he was only to receive compensation from Chap-in in those cases in which he was called upon to assist, and that Chapin had no character of interest in his contract with the appellant. One of the witnesses testified it was understood that Chapin and appellee were partners, while. another testified that his understanding was that appellee was working for Chapin at the time the contract was made. We conclude that the court’s finding is supported by evidence.

The eighth assignment attacks the trial court’s conclusion of law, that appellee was entitled to the relief given by the judgment, while the ninth assignment complains of the judgment itself. In addition to matters heretofore passed upon, two other questions are raised under these assignments. One is stated in the following proposition: “The evidence in this case showing that it was contemplated by all the parties to the contract, including the county judge, that the verbal understanding of April 20. 1908, would be thereafter reduced to writing and signed by the contracting parties, and that never having been done, the contract or agreement was never consummated between the contracting parties, and same cannot be made the basis of a recovery in this suit.” The drainage commissioners testified to an agreement or understanding that the contract should be reduced to writing. Appellee testified he had no recollection of any mention of reducing the contract to writing. The chairman of the drainage commissioners testified that he would not care to say that it was understood the contract would not be effective unless in writing and signed. He also testified: “It was understood that the plaintiff’s compensation would begin on the date of his verbal appointment, and that the contract was binding from the date of our meeting.” The witness Freeman, one of the commissioners, denied that it was understood the contract should not take effect unless or until it was reduced to writing. No witness testified that the contract was not to take effect unless or until reduced to writing, and it appears to have been the understanding among all parties that a binding contract had been made, and no question of its validity appears to have been urged during the year for which it was made, nor any effort made to abrogate the same. We think the contract testified to was a sufficient basis for the recovery. The other objection requiring consideration is that the verdict is excessive.

It appears that by sustaining exception No. 6 the court excluded, as barred by limitation, all recovery for services rendered prior to June 18, 1908. This was error because the claim for 28 days services rendered prior to June 18, 1908, did not accrue and become payable until two days after June 18, 1908, and was therefore not barred by limitation. The trial court evidently did not construe the exception as we think it must be construed, and therefore in rendering judgment allowed a recovery for said 28 days. Such claim being excluded on exception, and the judgment sustaining the exception being in no manner set aside, we feel constrained to hold that the pleadings do not support a recovery for such time, and therefore reform, the judgment so that the same shall be for $3,123.80, instead of $3,-322.50.

The judgment is reformed and affirmed.


author: HARPER, C. J.

text:
    RIO GRANDE & E. P. R. CO. v. KINKED et ux.
    (Court of Civil Appeals of Texas. El Paso.
    May 15, 1913.
    On Rehearing, June 26, 1913.)
    1.Appeal and Eeeoe (§ 743) — Assignments op Eeeoe — Requisites and Sufficiency. Assignments of error making no reference to the motion for a new trial, as required by rule 25 for Courts of Civil Appeals (142 S. W. xii), will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dee. Dig. § 743.]
    On Rehearing.
    2. Appeal and Eeeoe (§ 719) — Assignments op Eeeoe — Necessity.
    The giving of a peremptory instruction will be treated as raising a question of fundamental error, and will be reviewed without any assignment of error.
    [Ed. Note. — For other cases, see Appeal and Erro, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    3. Trespass to Tet Title (§ 9) — Sufficiency of Title to Support Action.
    Where a canal company which had no right of title to land over which it constructed a canal gave a railway company verbal commission to construct a switch thereon, the railway company was a naked trespasser within the rule that prior possession, coupled with some sort of written title, is sufficient in trespass to try title as against a naked trespasser.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 12; Dec. Dig. § 9.]
    4. Appeal and Eeeoe (§ 909) — Presumptions in Support of Judgment.
    In trespass to try title, where the trial court decided against defendant’s claim of title by limitation in a third party under whom it claimed, and the record did not show when the suit was filed, it would be presumed that it was filed in time to stop the running of limitations.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3675; Dec. Dig. § 909.]
    5. Trespass to Try Title (§ 38) — Presumptions and Burden of Proof.
    In trespass to try title by a party relying on prior possession coupled with some sort of a written title against an oral licensee of a party who took possession without any right or title, the burden was on defendant to prove that its licensor acquired title by limitation.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.]
    6. Waters and Water Courses (§ 242) — Irrigation Company — Right of Way — Extent of Interest Acquired.
    Where the document under which an irrigation company took possession of land recited that the width of its projected canal was 40 feet and the depth 3 feet, with the right under an act of the Legislature to claim, purchase, and condemn 100 feet in width, it acquired no more than an easement in the land.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 147, 307; Dec. Dig. § 242.]

      7. Teespass to Tex Title (§ 18)—Defenses —Rights op Third Persons.
    That a third party had an easement in land did not prevent the recovery of title and possession as against an oral licensee of such third person.
    [Ed. Note.—For other cases, see Trespass to Try Title, Cent. Dig. § 21; Dee. Dig. § 18.]
    8. Trespass to Try Title (§ 9)—Sueeicien-cy op Title to Support Action.
    In trespass to try title against a naked trespasser, where plaintiffs relied on prior possession under a deed, it was immaterial that the deed to their grantor did not cover the land in question where the grantor’s deed to them did cover such land.
    [Ed. Note.—For other cases, see Trespass to Try Title, Cent. Dig. § 12; Dec. Dig. § 9.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by C. A. Kinkel and wife against the Rio Grande & El Paso Railroad Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Turney & Burges and Bates McFarland, all of El Paso, and Terry, Cavin & Mills, A. H. Culwell, and Jno. G. Gregg, all of Galveston, for appellant. Chas. A. Kinkel, F. G. Morris, and S. B. Gillett, all of El Paso, for appellees.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, C. J.

Appellees instituted this suit February 26, 1908, in trespass to try title to parts of the Mundy Heights addition to the city of El Paso, Tex., claiming same by three, five, and ten years statute of limitation. Defendant Rio Grande & El Paso Railroad Company answered by plea of not guilty, and specially that title to said land was in the El Paso Canal Company. Plaintiffs recovered judgment, from which this appeal is taken.

Because the assignments of error as filed in the trial court do not make any reference to the motion for new trial, as required by rule 25 of this court (142 S. W. xii), they will not be considered by this court. Davidson v. Patton, 149 S. W. 757; Murphy v. Earl, 150 S. W. 486; Railway Co. v. Ledbetter, 153 S. W. 646; Railway Co. v. Gray, 154 S. W. 229.

No fundamental error appearing, the judgment of the lower court is affirmed.

On Rehearing.

In this case a peremptory instruction to the jury was given in favor of appellees. This court in its original opinion declined to consider the various assignments because they did not refer to that portion of the motion for a new trial in which the error was complained of, as required by amended rule 25. In Hough v. Fink, 141 S. W. 147, Southern Pine Lbr. Co. v. Arnold, 139 S. W. 917, and Olivarri v. Tel. Co., 116 S. W. 392, it was held that a peremptory instruction improperly given raised a question of fundamental error which it was the duty of the court to review without an assignment. We do not concur in the view that it is a matter of fundamental error, nor do we think it such an error apparent upon the face of the record as would authorize the court to review the action of the trial court in this respect except upon proper assignment. Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242; Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85; Adams v. Faircloth, 97 S. W. 507; Hahl v. Kellogg, 42 Tex. Civ. App. 636, 94 S. W. 389. This difference of opinion, however, affects merely a question of appellate procedure in a comparatively limited number of cases, and we do not regard it as of sufficient importance to warrant a dissent. In deference to the decisions in the cases cited, we therefore treat the action of the court in giving a peremptory instruction herein as raising a question of fundamental error which should be disposed of upon its merits. In opinion upon rehearing rendered by this court in El Paso Electric Railway Co. v. Lee, 157 S. W. 748, not yet officially reported, we state at length our reasons for declining to follow Railway Co. v. Beasley, 155 S. W. 187.

In 1878 or 1879 the property sued for was fenced and a house built on it, or in close proximity thereto, and hogs were kept in said inclosure for some time. The evidence is conflicting as to how long the lots in controversy were inclosed, but undisputed for two or three years; and the tenants of H. M. Mundy lived in the house and looked after the hogs. H. M. Mundy thereafter conveyed by deed duly executed and acknowledged the property so inclosed to the appellees herein. For many years intervening the property was vacant. The Franklin Irrigation Company some time after 1897 constructed its canal over a portion of some of the lots sued for, and in 1904 or 1905 C. O. Coffin, as manager of the said company, gave the Rio Grande & El Paso Railway Company verbal permission to put the switch where it is now maintained. No evidence in the record that he was authorized to do so by the directors. No evidence in the record that the said Canal Company had any right, title, or interest in the fee of the lots sued for, unless it was acquired by limitation; no evidence that the Canal Company acquired title by purchase or condemnation.

The assignments all complain of the action of the trial court in giving a peremptory instruction for the appellees, urged under various propositions; the first charges that the court erred because the charge was based or prior possession of appellees, coupled with some sort of written title, as against the assumed bare possession of appellant as a naked trespasser upon the land sued for, because the record shows that the Franklin Irrigation Company, through its manager, C. O. Coffin, gave permission for appellant to put its railroad switch on and over the portion of the lots used by appellant; therefore appellant was not a naked trespasser. The evidence discloses that the said Canal Company, incorporated under the laws of Texas, took possession of a portion of the lots sued for and constructed its canal thereon, but there is no evidence in the record that the Canal Company had any right or title to the land so taken, so it follows that the appellant could acquire, by verbal permission, no more right to occupy the land than the Canal Company had. The evidence further shows undisputed possession, and the testimony is that the appellees’ grantor had possession for from two to ten years, and prior to that of the Canal Company. In Watkins v. Smith, 91 Tex. 590, 45 S. W. 560, the Supreme Court held that such prior possession entitles ap-pellees to judgment against appellant, unless the latter shows a prima facie title. He does this when he deraigns title from the sovereignty of the soil down to himself, etc., citing many cases. Thus we see that appellant, under the undisputed facts, is a naked trespasser, and as such appellees were entitled to recover judgment against him.

But appellant urges that the Irrigation Company had acquired title by limitation of 10 years, and that it thereby was empowered to give the appellant lawful authority to enter. There is nothing in the record to show when that suit was filed, so it will be presumed that it was filed in time to stop the running of the statute, the burden being upon appellant to prove title by limitation (Texas & N. O. Railway Co. v. Speights, 94 Tex. 350, 60 S. W. 659); besides, the document under which the Irrigation Company took possession contains the following: “The undersigned appropriators further state that the width of the said projected canal is forty feet and the depth is three feet, with the right under said act of the Legislature to claim, purchase and condemn one hundred feet in width.”

The Canal Company’s possession, therefore, amounts to no more than an easement over appellees’ land; and, if it be conceded that the Canal Company acquired rights thereby, it could be no obstacle to their recovery of title and possession against appellant. Hays v. T. & P. Ry. Co., 62 Tex. 397; Cooper v. Smith, 9 Serg. & R. (Pa.) 33, 11 Am. Dec. 658.

The appellant further insists that the witness Owen, for appellees, testified that the property sued for is not covered by the field notes of appellees’ petition. We do not so find the facts to be. He testifies that the deed from Hart’s estate to H. M. Mundy does not cover the land sued for, but he does testify that the deed from H. M. Mundy to L. Kinkel covers the lots sued for. The deed from the Hart estate to Mundy is not in the statement of facts, but, if it were, the only deed that is material to this inquiry is that from Mundy to appellee, and that is only evidence of the fact that any right acquired by said Mundy to the property in question by occupancy inures to the benefit of appellees by virtue of the fact that the latter has acquired such right by deed from Mundy.

This disposes of all the assignments of error suggested by appellant, and we find no fundamental error; therefore the judgment of the lower court is affirmed.


author: PLEASANTS, C. J.

text:
    BLACKSTAD MERCANTILE CO. v. J. W. PORTER & CO.
    (Court of Civil Appeals of Texas. Galveston.
    June 5, 1913.
    Rehearing Denied June 19, 1913.)
    1. Principal and Agent (§ 148) — Contract —Separate Oral Agreement.
    A provision of a written contract of sale that no statement by the seller’s agent should be considered a' part of the agreement unless written into the contract bound the buyer so that promises by the seller’s agent, not made a part of the contract, did not bind the seller.
    [Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 534^552; Dec. Dig. § 148.*]
    2. Sales (§ 52) — 'Validity—Evidence—Misrepresentations.
    Evidence, in an action for the purchase price of jewelry sold to defendant, held not to show that the plaintiff’s agent made any false representations as to .warranties contained in the contract or as to the character of the jewelry sold.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 118-144, 1045; Dec. Dig. § 52.*]
    3. Sales (§ 177) — Refusal to Accept Goods.
    Where a contract of sale was completed before acceptances for the price were sent to the purchaser or any claim made by the seller that the payments should have been made at times different from those specified in the contract, whether made intentionally or by mistake, it would not affect the rights of the parties ; the buyer having refused to take the goods before the acceptances were sent to him and would have refused to sign them if they had been in accordance with the terms of the contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 445-450; Dec. Dig. § 177.*]
    Appeal from Burleson County Court; R. J. Alexander, Judge.
    Action by the Blackstad Mercantile Company against J. W. Porter & Co. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    W. M. Hilliard, of Caldwell, for appellant

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PLEASANTS, C. J.

This suit was brought by the appellant against the appellee to recover the sum of $144, the purchase price of goods sold and shipped by appellant on the written order of appellee. The trial in the justice court, in which the suit originated, resulted in a judgment in favor of the defendant, and upon appeal and trial de novo in tlie county court a like judgment was rendered.

In answer to plaintiff’s suit, wkicli was pleaded orally in the justice court, the defendant pleaded: “That the defendant was induced by fraud and the misrepresentations of the plaintiff and its agent to sign what he understood to be an order for certain jewelry, the terms of which were to be first accepted by the plaintiff, after which the defendant was to sign certain acceptances described in said order to be due and payable in 4, 6, 8, 10, and 12 months, respectively. That the defendant understood when he signed said order for said goods, and it was so represented to the defendant by the plaintiff’s salesman, H. H. Hancock, that said jewelry was good, merchantable goods and was guaranteed to wear for five years, and that he was to have 12 months in which to pay for the same, when in truth and in fact said jewelry was not even plated ware, but was the cheapest kind of brass and was worthless, and only 10 months were given defendant to pay for same. That the defendant was induced to sign said order for said goods by the false and fraudulent representations of the plaintiff’s agent and salesman, H. H. Hancock, being busy at the time and relying upon the said H. H. Hancock’s representations that said jewelry was guaranteed for five years. That shortly after the plaintiff’s agent, H. H. Hancock, had gone, and as soon as the defendant had time to do so, he carefully read over the duplicate of said order contract and discovered that said jewelry was not warranted at all, but that the -plaintiff only agreed to exchange such articles- as failed to give satisfaction, provided they were returned within five years from date of purchase. That as soon as he made this discovery he wrote a letter to the plaintiffs canceling said order. That notwithstanding this the plaintiff shipped said goods and sent the defendant what purported to be five acceptances, but which were in fact five sight drafts, payable, respectively, 2, 4, 6, 8, and 10 months, instead of in 4, 6, 8, 10, 11, and 12 months, as agreed in said contract. That the defendant refused to sign said acceptances or drafts and refused to take said goods, and notified the plaintiff that said goods were at Gause subject to their order. The defendant says that the five acceptances sent the defendant by the plaintiff were not in accordance with the original contract and order signed by the defendant, and that he is not bound thereby. The defendant further says that said order or contract which he signed was without consideration and that he is not liable thereon.”

By supplemental petition plaintiff replied to this answer as follows: “Plaintiff says that some time after the jewelry called for in the contract had been sent the defendant J. W. Porter, and after the 10 days allowed the defendant J. W. Porter had expired in which to pay for the jewelry in cash, the said defendant having failed to send the cash or the acceptances called for in the contract, the plaintiff’s agent prepared some acceptances and sent the defendant J. W. Porter, and in so doing made a clerical error and sent five acceptances in place of six, as called for in the contract. That shortly afterwards, and without, hearing from the defendant J. W. Porter, the plaintiff had six acceptances prepared and sent for the said J. W. Porter to sign. That the said six acceptances were identical with the ones called for in the contract in every respect, and that plaintiff’s attorney, W. H. Hilliard, talked with said defendant J. W. Porter and told him that he had the said six acceptances called for in the contract, and that while the time had expired, if the defendant J. W. Porter, would sign same, plaintiff would accept said acceptances in settlement of said claim, or that if the defendant wanted to pay cash plaintiff would yet allow him the 6 per cent, called for in the contract. That the defendant J. W. Porter then and there refused to sign said six acceptances called for in the contract, and refused to pay cash at a discount of 6 per cent, as called for in the contract for cash within 10 days. The record discloses the following facts: The goods, which consist of a showcase and a number of pieces of jewelry, were shipped by appellant, on a written order or contract signed by appellee and a sales agent of appellant, on August 18, 1911. This order in addition to a list of the goods ordered and the price to be paid therefor, which aggregates the sum of $144, contains the following stipulations:

“Warranty. Any of the above articles failing to give purchaser reasonable satisfaction must be promptly returned to the Blackstad Mercantile Co., who will replace same free of charge if returned within five years from date of purchase.
“Exchange Privilege. Any of the above goods may be returned to the Blackstad Mercantile Co. to be exchanged for any jewelry in their stocks at any time within one year from date of invoice. * * * ”
“Terms of Settlement. A discount of 6 per cent, will be allowed for cash in ten days, or settlement of this account may be made in 6 equal installments, due in 4, 6, 8, 10, 11 and 12 months from date of invoice, providing purchaser sends us promptly on arrival of jewelry at destination his 6 acceptances covering above payments, payable to our order at St. Louis, Mó. If settlement is not made as above provided this account is due and payable in cash.
“Date, Aug. 18. Blackstad Mercantile Co., St. Louis, Mo. — Gentlemen: On your approval of the terms and conditions of the above order, please deliver to us, at your earliest convenience, f. o. b. factory or distributing point, ttie goods above listed on the above terms. We agree that no statement made by ourselves or the salesman will be a part of this agreement unless written in the original order received and accepted by you. H. H. Hancock, Salesman. [Signed] J. W. Porter & Go., Customer. Post Office, Gause, Route 1.
“Ship jewelry to Gause case by express. To Gause. Jewelry by express.”

The defendant, J. W. Porter, testified that on the day he executed the contract he was very busy waiting on customers, and that plaintiff’s agent Hancock got him to sign the contract; that said agent kept on talking and telling him what a good contract it was and how much money other country merchants had made out of it, and that “plaintiff would take up and make good any of the jewelry that would tarnish or be in any way unsatisfactory within five years”; that he was too busy to talk to the agent, and that when the contract was read to him by the agent he understood it to guarantee the jewelry for five years (that is that he could return any article that did not give satisfaction and get credit for invoice price therefor). After the contract had been executed and the agent had left, the defendant read over the contract and found that the only guaranty was to replace any jewelry that did not give satisfaction if returned in five years. When he made this discovery he decided to countermand the order and on the same evening wrote plaintiff the following letter canceling the order: “Gause, Texas, Aug. 18th, 1911. Blackstad Mercantile Company, Chicago, Ill. — Gentlemen: Please cancel order to-day given your Mr. Hancock. After duly considering the matter I do not believe these goods will move in a satisfactory manner. Yours truly, J. W. Porter & Company.” This letter was by mistake addressed to plaintiff at Chicago and was not received until after the goods were shipped. The goods were shipped on August 19th and reached Gause a few days thereafter. Defendant refused to receive them and notified plaintiff on August 26th that he would not take them from the express office, and that they were subject to plaintiff’s order.

The terms of payment as originally written or printed in the order provided that, if defendant desired to pay for the goods in installments rather than pay cash at 6 per cent, discount, he should send his five acceptances covering five equal installments of the purchase money and due in 2, 4, 6, 8, and 10 months, respectively. At defendant’s request this was changed so as to provide for six installments evidenced by acceptances due in 4, 6, 8, 10, 11, and 12 months.

Some time after the goods had reached Gause, defendant not having paid for the goods or sent the acceptances as provided in the order, plaintiff had prepared and sent him five acceptances as originally provided in the order and requested him to execute and return them. These acceptances were not returned by the defendant, and in a short time plaintiff prepared and sent him six acceptances in accordance with the terms of the contract and asked that defendant either pay the cash price for the goods or send his six acceptances as provided in the contract. This the defendant refused to do, and thereupon plaintiff brought this suit to recover the contract price of the goods.

In regard to the alleged fraud and misrepresentations of the' plaintiff’s agent, Hancock, the defendant testified as follows: “The agent, H. H. Hancock, was false in this: First. He said that the goods were guaranteed to be first-class as carried in all stores. Second. He was false also in that he said that the last payment was 12 months off and that if the jewelry was not good not for me to pay for it. * * * The agent read the guaranty to me that the Blackstad Mercantile Company would take up and make good any part of the jewelry that would tarnish or be in any manner unsatisfactory in 6 years. I told him that the company was in St. Louis, and possibly would not recognize what he said when the time came, and he replied not for me to pay for it if the jewelry was not good. I don’t know as the agent, H. H. Hancock, lied at all about the acceptances, but how am I going to avoid paying these acceptances if I sign them. I don’t know if the company Blackstad Mercantile Company made a mistake in sending me the five acceptances or if they did it purposely. Yes, I see that the printed form of the contract that I signed called for five acceptances and I had the agent, H. H. Hancock, to scratch it out and write six. I do not know if it was a clerical error but I know that it changed the contract and gave me a right to refuse the goods. No, I never did write the Blackstad Mercantile that they had made a mistake and sent only five acceptances when the contract called for six. I did not write them anything about it I don’t know- if they found the mistake and corrected it themselves. Yes, I had refused the jewelry before they sent the five acceptances to me. Yes, I refuse now to sign the six acceptances called for in the contract and I refuse to pay in cash at a discount of 6 per cent, and you pay all the cost of this suit. * * * I am a young man and can read and write and my eyes are good. I directed the changes that were made in the regular printed form of the contract and I was present and the agent, H. H. Hancock, made the changes. There was nothing to keep me from seeing the contract and reading it at the time I signed it. The contract was right before my eyes and was not covered up at the time I signed it.” We think this evidence wholly fails to establish defendant’s plea that he was induced to sign the order by the fraud and misrepresentations of plaintiff’s agent.

The contract expressly provides that no statement made by plaintiff’s agent, unless it was written in the contract, should he considered as a part of the agreement. Defendant is bound by this provision of the contract, and, if plaintiff’s agent had made promises or agreements other than those in the written contract, plaintiff would not be bound thereby.

But the evidence fails to show that the agent made any false statements or representations in regard to warranties contained in the contract or the character of the jewelry. His statement as to the five years’ guaranty, according to the defendant’s testimony, was the same, in effect, as that written in the contract, and it is immaterial that defendant understood from the reading of the guaranty by the agent that he could return any unsatisfactory article in five years and get credit for its' invoice price. There is no evidence as to the character of the goods shipped. They had not been seen by the defendant, and there is no claim that they were not the exact kind of goods described in the contract.

In the letter written by the defendant countermanding the order, there is no intimation of any fraud or misrepresentation on the part of the agent, Hancock; the only reason given in this letter for canceling the order being that after duly considering the matter defendant had concluded that “the goods would not move in a satisfactory manner.” It is clear that the fact that the first acceptances sent by plaintiff to the defendant were not in accordance with the terms of the order is no evidence of fraud in the procurement of the contract and furnishes no ground for its repudiation. We think it is fairly inferable from the evidence that the sending of five instead of six acceptances was purely .a mistake due to the fact that the printed orders used by plaintiff provided for five instead of six, and in preparing these acceptances the change in the usual form of such orders was overlooked. But, be this as it may, it is clear that the sending of the five acceptances instead of six in no way affected the obligations of either party to the contract.

The contract of sale was executed and completed before the acceptances were sent, and any claim by plaintiff that the payments for the goods should be made at times different from those specified in the contract, whether made by mistake or intentionally, could not affect the rights of either party to the contract. Plaintiff was not required by the contract to prepare the acceptances, but defendant was under obligation either to pay cash for the goods or send plaintiff his acceptances for the purchase price as provided in the contract. Before the five acceptances were sent by plaintiff, defendant had refused to take the goods, and his own testimony is that he would not have signed the acceptances if they had been in accordance with the terms of the contract.

There being no evidence sustaining appel-lee’s plea of fraud, and the execution of the contract being admitted, and appellant, having fully complied with its obligations under said contract, is entitled to recover of appel-lee the purchase price of the goods as stipulated in the contract.

It follows that the judgment of the court below should be reversed and judgment here rendered in favor of appellant for the amount of the purchase price of said goods, with interest as claimed in the petition, and it has been so ordered.

Reversed and rendered.


author: LEVY, J.

text:
    McCULLOUGH v. RANDALL et al.
    (Court of Civil Appeals of Texas. Texarkana.
    May 29, 1913.
    Rehearing Denied June 12,-1913.)
    1. Teespass to Try Title (§ 38) — Burden of Proof.
    Where, in trespass to try title, plaintiff specially pleaded that the grantee of a head-right certificate sold the certificate or the land, and that the grantee before his death transferred the certificate to M., the burden was on plaintiff to prove such facts.
    {Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.*]
    2. Property (§ 4) — Land Certificate — Location — Chattel Real.
    After its location, a land certificate becomes a chattel real, and title thereto cannot pass by parol.
    [Ed. Note. — For other cases, see Property, Cent. Dig. §§ 4-6; Dec. Dig. § 4.*]
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Trespass to try title by J. !W. McCullough against S. S. Randall and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Glass, Estes, King & Buxford, of Texar-kana, for appellant. Thos. P. Steger and Mart McMahon, both of Bonham, Jacob C. Baldwin, of Houston, and J. G. McGrady, of Ft. Worth, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig:' Key-No. Series & Rep’r Indexes

   LEVY, J.

The appellant brought the suit against appellees in trespass to try title to the east one-third of the J. H. Knapp head-right survey in Fannin county. The plaintiff specially pleaded his title. The several appellees, who were defendants, answered by denial, not guilty, statutes of limitation of three, five, and ten years, purchasers for value, and improvements in good faith. Judgment was entered on the special verdict in favor of appellees. The case has been on appeal twice before, and fuller statements may be obtained by reference thereto. See 120 S. W. 1093, and 146 S. W. 203. The testimony establishes that on March 1, 1838, there was issued by the board of land eom-missioners of Harrisburg county (now Harris county) to J. H. Knapp, a single man, a headright land certificate for one-third of a league of land. This certificate was located in Fannin county, and survey of the land was made October 17, 1845, and field notes returned to the land office May 2, 1853. The survey was patented to J. H. Knapp on July 7, 1855. It is the contention of appellant that prior to its location J. H. Knapp conveyed the certificate to W. H. McCullough, who, before his death in 1840, conveyed the certificate to John McCullough. John McCullough died in 1870, leaving a widow and children, under whom appellant now claims. J. H. Knapp died in 1855 or 1856, leaving William Knapp, his son, under whom appellees claim. There is no direct evidence of a conveyance or transfer by J. H. Knapp of his title to the original certificate, and there was no transfer of the certificate from J. H. Knapp to any one recorded in the clerk’s office of Fannin county. Appellant relied on circumstances to prove the fact. Appellees offered circumstances showing there was no transfer of the certificate. The jury made the express finding that there was no transfer of the certificate by J. H. Knapp. It is also the contention of appellant that though J. H. Knapp had previously conveyed the certificate to W. H. McCullough, he again conveyed it to W. M. Cook, and that it was Cook who located the certificate in 1845, and that in 1859 Cook and John McCullough, both claiming the entire tract of land under transfer of the certificate by Knapp, made mutual deeds to each other, McCullough conveying to Cook a two-thirds undivided interest, and Cook conveying to McCullough a one-third undivided interest thereof. Appellant relied on circumstantial evidence to prove a transfer of the certificate by J. H. Knapp to W. M. Cook. Ap-pellees offered circumstances showing to the contrary. The jury made a finding in favor of appellees’ contention. Appellant’s connection with the Knapp title depended entirely upon a transfer of the certificate from Knapp to W. H. McCullough prior to the death of McCullough in 1840, or to W. M. Cook, and otherwise appellees were entitled to recover in superior right by legal title.

As the case was submitted to the jury on special isues, the instructions, questions, and answers follow:

“The proof shows that the board of land commissioners of Harrisburg county, Tex., on March 1, 1838, issued to J. H. Knapp a land certificate for one-third of a league of land, a certified copy of which has been read in evidence. Now you are asked:
“Q. 1. Was William Knapp the son of the J. H. Knapp to whom said land certificate was granted?” Answer of jury: “He was.”
“Q. 2. Did said William Knapp execute a deed purporting to convey to Robert H. Hanna the east one-third of the'J. II. Knapp survey of land in Fannin county?” Jury answer: “He did.”
“Q. 3. If you should answer that William Knapp did execute such deed to Hanna, then you are asked: What, if anything, did Hanna pay Knapp therefor?” Jury answer: “8600.00.”
“Q. 4. Did J. H. Knapp transfer to W. M. Cook the land certificate upon which the premises sued for were located and patented prior to its location?” Jury answer: “He did not.”
“Q. 5. Did John McCullough acquire title to said land certificate through W. H. McCullough from J. H. Knapp, as alleged by the plaintiff in his petition in this case?” Jury answer: “He did not.”
“In connection with said last two questions I charge you that a land certificate prior to its location is personal property, and may be transferred without a written conveyance. The transfer of a land certificate may be shown by circumstances.
“Q. 6. If you should answer that J. H. Knapp sold the land certificate to W. M. Cook, then you will answer whether or not such sale was verbal or by written transfer, and whether the same was before or after October 17, 1845. If you are unable to find from the evidence whether said transfer (if same wag made) was verbal or written, then you will so state. The burden of proof is upon the plaintiff to show, by a preponderance of the evidence, that J. H. Knapp sold or transferred the land or the land certificate.”

The court further submitted, at appellees’ request, the following:

“Did W. H. McCullough ever convey the J. H. Knapp land certificate or the J. H. Knapp survey of land to John McCullough?” Jury answer: “He did not.”
I-Ie also submitted at appellees’ request the following:
“The burden of proof is upon the plaintiff to show, by a preponderance of the evidence, that W. H. McCullough sold the J. H. Knapp land certificate located on the land in controversy to John McCullough.”

The court entered judgment for appellees on the verdict of the jury. The verdict of the jury has support in the evidence, and is sustained.

The first and second assignments of error object to the instructions as to burden of proof as being prejudicial error. As seen, the court charged the jury that the burden was on appellant to show: (1) That J. H. Knapp sold the certificate or the land; and (2) that W. H. McCullough sold the Knapp certificate to John McCullough. These two facts were' specially pleaded by appellant and relied on for title. It is quite elementary that the burden is on the party specially alleging a necessary fact to prove it. And there could be predicated no reversible error on giving the charges here, for the case was submitted on special issues, and did not admit of a general verdict for or against appellant. Each of the charges on burden of proof had relation to separate questions. Telling the jury that the burden was on plaintiff to prove that W. H. McCullough sold the certificate to John McCullough related only to the question asked the jury as to whether there was such a sale by the former to the latter, and could not reasonably have been understood by the jury as bearing upon the other two questions of whether Knapp sold the certificate to W. M. Cook or to W. H. McCullough. The assignments should be, we think, overruled.

The sixth assignment predicates error upon propounding at all questions 4 and 6 to the jury. The fourth question asked the jury to say whether or not J. H. Knapp transferred to W. M. Cook the certificate pri- or to its location. The jury answered that he did not. It was only in the event of the finding that a sale of the certificate was made that the sixth question was to be considered and answered. As the questions asked were upon issues of fact, it was proper in this ease to ask the jury these questions, for after its location a land certificate becomes a chattel real, title to which cannot pass by parol. Hearne v. Gillett, 62 Tex. 23; Adams v. Ry. Co., 70 Tex. 252, 7 S. W. 729.

The fourth and fifth assignments complain of the refusal to grant a new trial upon the ground that the finding by the jury that J. H. Knapp did not transfer the land certificate before its location to W. M. Cook, and the further finding that John McCullough did not acquire the certificate through W. H. McCullough from J. H. Knapp, are both against the weight of the evidence. We would not be authorized in the record to hold that appellant was entitled to recover as a matter of law, or that the evidence was not sufficient as a matter of law to support the findings of the jury. We conclude that the evidence amply supports the findings of the jury, and should be sustained.

The assignments are overruled.