text:
    WOODS v. STATE.
    (No. 4849.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.)
    1. Criminal Law &wkey;609 —Continuance, ~ Hearing.
    Although, under Code Cr. Proe. 1911, arts. 612, 613, upon application for continuance, the state may controvert and the court determine accused’s diligence, it is not within the court’s province on such hearing to pass upon the weight of the evidence accused desires from an absent witness.
    2. Criminal Law >&wkey;959 — New Trial — Hearing.
    The probable truth of testimony of an absent witness may be looked into on motion for new trial, in connection with evidence adduced upon the trial.
    3. Criminal Law &wkey;>595(3) — Continuance-Testimony oe Absent Witness.
    In rape trial, continuance asked to secure testimony of absent witness that prosecutrix had taken a man into- her room was improperly refused.

      4. Rape <&wkey;57(l) — Questions eor Juey.
    In view of Pen. Code 1911, art. 1064, defining force, and article 1065, defining threat, as applicable to rape, evidence in rape trial fceM not to justify taking it away from the jury.
    5. Rape c&wkey;40(l) — Reputation oe Prosecu-trix.
    Accused’s defense in his trial for rape,, asserting that prosecutrix had intercourse with another person on the night in' question and not with accused, was sufficient to justify introduction by the state of evidence supporting the general reputation of prosecutrix for chastity.
    6. Witnesses <&wkey;344(2) — Impeachment — Chastity.
    In rape trial, accused’s wife, testifying for him, could not be impeached by evidence that she and accused were married after birth of one or more of their children; it being immaterial.
    Appeal from Criminal District Court, Tar-rant County; Bruce Young, Special Judge.
    Joe Woods was convicted of rapo, and appeals.
    Reversed.
    John L. Poulter, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This trial was under an indictment for rape charging its accomplishment by force, threats, and fraud upon the person of Ethel Henley. The punishment was fixed at imprisonment for life.

The injured party was a young girl who had been in the habit of working for something like a year, and did not live with her family, and at the time of the alleged offense was doing housework for the appellant, who was a barber, and whose family consisted of his wife and children. After prosecutrix was employed appellant bought 'her some clothes. The house in which they lived contained about six or seven rooms. The injured party slept in a room adjoining that occupied by appellant and his wife. Her testimony shows that appellant came into her room about 12 o’clock at night. She was awakened by his entering the room and she screamed, and he sat down upon the bed and asked if she was scared. She told him to leave her alone, that she was sleepy, and turned her back on him, and he asked her to turn over and talk to him, that he would not bother her. She did not turn over at that time, but later he took hold of her arm and she did turn over. He laid by her a few minutes and put his arm across her breast. She said:

“I tried to get away from him — and he told me if I hollered or made a racket he would kill me, and he got up and went in the other room and came back. His-wife came in directly after he came in; he got her to come in there. 1 was crying after he told me he would kill me, and I had him call her. She told me I had it all to go through with any way and I might as well go on then. He asked her if she cared and she said no she didn’t care. She sat there on the bed a few minutes and talked and then got up and left. He then pulled off all his clothes and had intercourse with me. He forced me to. I was still crying. I did not consent to it. I asked him to go and leave me alone; that I didn’t want to do wrong. I asked him to go away several times. My limbs were together and he taken his hands and forced them open.”

She complained that it was painful, and after he got through he went into the other room and came back, and she asked him for a drink of water. He said he would go and break some ice, and while he was gone she grabbed her clothes and ran, going to a restaurant, and reported the rape. She said she had a sweetheart, and that she talked to him at the gate on the evening before the incident happened. She said that her sweetheart Oarson talked to her at the gate, but did not come in the house. Cross-examined she said that she screamed before she knew who it was in the room; that she did not get' ont of bed; that sbe could see who it was by the moonlight; that she did not call any one at first; later called Mrs. Woods; that she made no effort to get out of bed; that she knew Mrs. Woods and the two children were in the adjoining room; that she did not call Mrs. Woods, hut had the appellant do so; that before Mrs. Woods came she told appellant she did not want to make any trouble between him .and his wife, and he said he would call his wife; “I went to crying and he told me if I cried any more he would kill me;” that the reason she wanted him to call Mrs. Woods was she thought maybe she would make him go out. She says she was wearing a nightgown and drawers, and that she unbuttoned the drawers because he threatened her and told her to unbutton them. He told her if she did not do it he would kill her. He was in bed some five or ten minutes before doing anything, just loving her while he lay there. “He just told me if I didn’t do what he wanted me to do he would kill me, while he was lying there loving me.” He went out of the room and came back and she saw something in his pocket that resembled a razor. She did not try to get away while he was gone; was afraid to; “didn’t make any effort to leave while he was gone; I was afraid he would try to kill me. We didn’t do any tussling or fighting there on the bed before I unbuttoned my drawers, it was after they were unfastened. The only force he used was to pull one of my legs over, and he forced me to do it. 1-Ie started to lay my leg over and I tried to keep him from opening my leg. I did not try to get out of the bed. I tried to get bim out. I took my hands and tried to push him off. My room is right next to the jail bnilding within a very few feet of it, hut I was afraid to holler or say anything. I knew there were men guarding the jail and I knew there was another house on the other side right close to ours with a number of people sleeping in it. I did not try to attract the attention of anybody. I just tried that is all. When he was talcing his clothes off I wasn’t doing anything but just laying there. When Mrs. Woods went out of the room I did not try to go out with her or stay with her for I was afraid of him.” She said she believed that appellant would carry out his threat.

Appellant’s wife testified that appellant came home about 5:30 o’clock in the evening, and went back to work, returning about 9 o’clock, his usual hour; that Ethel ate no supper, but during that meal was in the front room talking to a man whom she said was named Carson, and part of the time talked to him at the gate. Witness claims to have invited both of them to supper, and after appellant left Ethel and Carson went into Ethel’s room; that Ethel did not wash dishes, which was her duty; that she remained in her room with Carson until about 9:30 or 10 o’clock. Witness said while she was attending to her children about the house she noticed Ethel’s door closed and tried to open it and found it locked; that she looked in at the window and saw Ethel and Carson on the bed together in the act of intercourse. She further testified that she became angry and after the man had gone told Ethel she must leave the house the next morning; that Ethel began crying and was crying when appellant came home, and appeared very angry. After appellant came home she began to wash the dishes. Witness claims to have gone to bed with appellant about 10:30 or 11 o’clock; that there were two babies in the room and one of them was sick; that she was not in a good humor and did not go to sleep before the officers came in; and that she knew her husband did not leave the room before that time; that about 30 minutes before that time she heard the gate slam. She claims to have made a statement to the officers the morning after the arrest of appellant in accord with that testified to on the trial.

Several persons testified that they lived near by and heard no disturbance. The keeper of the restaurant testified that the girl came to the restaurant, first to the window, and called for help. She was crying and without shoes. She could not tell anything. “He tried to kill me,” is all she said. An officer was called. She had her dress in her hand, and said the man tried to kill her. “If I didn’t do this, he tried to kill me.” She said he had a razor. The county physician made an examination of the girl and testified that in his opinion from the appearance of the vagina she had had intercourse with some one. That she was quite nervous. That the hymen was entirely gone. “That if the hymen had been penetrated that night fragment edges of the ruptured hymen would still be showing there; I think it would, undisput-ably, but I didn’t notice anything like that in this girl. The hymen disappears from different sources. The hymen could have entirely disappeared in an entirely virtuous girl. The absence of the hymen is not of itself necessarily an indication of a lack of virtue.” That he was unable to tell how long the hymen had been gone.

Appellant made an application for a continuance on account of the absence of Mrs. Harret Bryan. This witness resided in Tar-rant county, and a subpoena was issued for her a few days after the indictment was found. The indictment was filed the 8th of August, and the trial begun the 20th of August. The absence of the witness was accounted for by the statement that she was secreting herself to avoid service, but that her absence was temporary, and her testimony could be obtained by a continuance or postponement. By her he expected to prove that she saw the injured party, Ethel Henley, go out into the street, hail a man who was passing, and take him into the room she occupied; that the witness did not know the man; that he remained for some time and did not leave until late that night. The state controverted the motion by affidavit of a witness who claimed that she (Mrs. Harret Bryan) lived near the residence of appellant, and that the affiant had several conversations with her concerning the injured party (Ethel Henley), in one of which Mrs. Bryan had said that she had seen a man standing with the girl at the gate of the house which was occupied by appellant, and later they went in the house together, and the man in a few minutes came out and went away, and some time after that had talked with Mrs. Bryan again and that Mrs. Bryan said she was mistaken about the matter.

This was the first application for a continuance. There was no contest of the diligence. The court qualifying the bill says that the affidavit mentioned above was presented and considered by him along with the application for a continuance, “and the application was thereupon overruled. We understand from the record that the court was influenced to make the order refusing to continue the case by the affidavit mentioned. The effect of the affidavit controverting the motion was to cast doubt upon the truth of the testimony of the absent witness by reason of her having made alleged contradictory statements with reference to the matter. The state was privileged under article 611 to have controverted under oath the diligence set up in the application, and the court might have inquired into the question of diligence thus raised. Articles 612 and 613, C. C. P.; Howard v. State, 8 Tex. App. 53; Hardin v. State, 40 Tex. Cr. R. 208, 49 S. W. 607; Attaway v. State, 31 Tex. App. 475, 20 S. W. 925; Lane v. State, 28 S. W. 202. The diligence being sufficient, however, it was not within the province of the court on the hearing on the application for a continuance to pass upon the weight of the evidence which appellant desired from the absent witness.

The probable truth of the testimony of the absent witness may be looked into on motion for new trial in connection with the evidence adduced upon the trial. Steel v. State, 55 Tex. Cr. R. 551, 117 S. W. 850, and cases cited. The case of Roquemore v. State, 54 Tex. Cr. R. 593, 114 S. W. 140, is on tire facts touching the application for continuance quite similar to this. From it we take the following quotation:

“The state contested said application, not on the ground of want of diligence, but on the ground that the testimony; of said witnesses. is not probably true. * * * We are of opinion that the court would not ■ be authorized, in passing upon an application for continuance, to pass upon the truth of what a witness would testify to on the trial by proving contradictory statements by witnesses. The law of Texas has wisely left the trial of all issues of fact as well as the credibility of the witnesses to a jury, and this court is of opinion that this province of a jury cannot be invaded by the court, and would be establishing a precedent that would ultimately result in confusion and a state of affairs that could not be easily remedied. The application for continuance, we think, shows proper diligence.”

If appellant could prove by Mrs. Bryan, as he claims in his motion, that she had seen a man go into the house with Ethel Henley and go into her room, it would have been a material fact. Ethel Henley denied that this occurred, and Mrs. Woods affirmed that it took place, and circumstantially that the man Carson had intercourse with the girl on the night of the alleged offense. The fact shown in the affidavit attached to the motion that Mrs. Bryan had afterwards retracted her statement, or changed it, would have gone to the weight of her evidence and to the credibility. The state used as evidence against appellant the fact that some one had had intercourse with the girl on the night in question, and counsel for appellant earnestly insists that the state’s evidence fails to meet the measure of the law in the prosecution for rape by force, threats, and fraud, in that there was no fraud practiced, and that the failure to make outcry and the extent of the resistance are not sufficient, citing several eases, as follows: Perez v. State, 50 Tex. Cr. R. 34, 94 S. W. 1036; Arnett v. State, 40 Tex. Cr. R. 617, 51 S. W. 385; Elliott v. State, 49 Tex. Cr. R. 435, 93 S. W. 742; Smith v. State, 56 Tex. Cr. R. 316, 120 S. W. 188; Mooney v. State, 29 Tex. App. 257, 15 S. W. 724; Rhea v. State, 30 Tex. App. 483, 17 S. W. 931; Price v. State, 36 Tex. Cr. R. 143, 35 S. W. 988; Cox v. State, 44 S. W. 157; Rhem v. State, 29 Tex. App. 509, 16 S. W. 338; Rice v. State, 37 Tex. Cr. R. 38, 38 S. W. 801.

Our statute (article 1064, P. G.) defines force, and article 1065, P. C. defines threat, as applicable to this offense. Hie rule seems to be that where, as in this instance, threats and force are charged in the indictment, and there is evidence of each, it is not necessary that either the force or threats alone measure up to the standard of the statutory definition. The cogency which one contributes to the other may be sufficient to constitute all that is required. That is Mr. Branch’s conclusion from the decisions. Branch’s Ann. P. C. § 1782. It is the rule recognized in some of the authorities mentioned by appellant, notably Perez v. State, 50 Tex. Cr. R. 34, 94 S. W. 1036. See, also, Cole v. State, 57 Tex. Cr. R. 51, 123 S. W. 409, 136 Am. St. Rep. 973; Sharp v. State, 15 Tex. App. 185; Sawyer v. State, 39 Tex. Cr. R. 557, 47 S. W. 650. Under the facts and this rule we do not think that the evidence was such as to justify the court in taking it away from the jury.

The appellant’s defense, asserting that the injured party had intercourse with another person on the night in question and not with appellant, was, we think, sufficient under the authorities to justify the introduction by the state of evidence supporting the general reputation of the prosecuting witness for chastity. Jacobs v. State, 66 Tex. Cr. R. 146, 146 S. W. 558.

The state undertook to lay a predicate on cross-examination of appellant’s wife to show that appellant and his wife were married after the birth of one or more of their children. We think that such impeachment of her would have been on an immaterial issue, and one which would have been inadmissible and harmful to appellant, in that it would have tended to burden his case with evidence that he and his wife had lived in adultery before their marriage, a criminal offense in no way connected with that under consideration. This matter as presented in the bill does not make it clear that the impeachment took place.

The assignments of error not discussed have been examined, and, we think, present no reversible error. The evidence adduced and the nature of the case are such that, in our opinion, the error committed by the trial court in refusing to continue or postpone the case for the purpose of permitting appellant to' obtain the testimony of Mrs. Bryan was material, and requires a reversal of the judgment; which is ordered.
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source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    SORIA v. STATE.
    (No. 5007.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.)
    1. Homicide (&wkey;100 — Assault to Murder— Principal.
    If, after accused cut prosecutor, accused’s brother shot prosecutor to defend accused from attack apparently about to be made by prosecutor, the brother not knowing of the original difficulty and coming upon accused and prosecutor and finding them in controversy, accused would be responsible as principal only for the cutting, and not for the shooting.
    2. Criminal Law &wkey;>775(2) — Alibi—Instructions.
    In trial for assault to murder, evidence held to require instruction on alibi.
    3. Criminal Law <&wkey;775(3) — Alibi—Instructions.
    In trial for assault to murder, an instruction that, if the evidence raises or leaves a reasonable doubt as to accused’s presence at the scene of the difficulty at the time it occurred, to acquit defendant and say by tire verdict not guilty, was sufficient in form.
    Appeal from District Court, Edwards County; James Cornell, Judge.
    Tomas Soria was convicted of aggravated assault and battery, and appeals.
    Reversed and remanded.
    Will A. Morriss, of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant, under an indictment charging assault to murder, was convicted of aggravated assault and battery.

The difficulty occurred at a Mexican dance in a schoolhouse. The alleged injured party, Apalonia Gloria, testified he heard a tapping or knocking on the north wall of the schoolhouse and left the dancing room to see what it meant. When he reached the place he urged the parties to cease such knocking; that appellant cut him with a knife; that he stooped to reach for a rock and as he did so appellant’s brother shot him. I-Ie testified this difficulty occurred at the northwest corner of the schoolhouse, perhaps a little east of the northwest corner, along the north wall. His wife testified that she was sitting on a bench on the west side by a window out of which was broken a pane of glass, and that the difficulty occurred near the southwest corner of the house. -She admitted, however, that she was only testifying as to what her husband told her about it. The injured party, Gloria, testified that he was not drunk, but had taken several drinks, and had a bottle of whisky in his overcoat pocket in the dancing room. The other witnesses who testified in regard to it stated that he was very drunk; especially the sheriff and doctor who attended him almost immediately after the difficulty. The doctor testified he was too drunk to make a coherent statement. Other witnesses testified that the pane of glass was not broken out of the window mentioned by the wife of the assaulted party. The defendant testified that he was in the house at the time of the difficulty, took no hand in it, and knew nothing about it, except he heard a pistol shot on the outside north of the house. He also testified that his brother was in the dancing room at the time of the trouble; that he did not own a knife or a pistol. The two brothers spent the night at another Mexican’s house after the difficulty, and the next morning the sheriff came early to arrest them and examined the room where they slept, as did the owner of the house, and found neither a pistol nor a knife upon the person of appellant, but on the brother they found a small penknife. There are no details as to how the difficulty came up except as stated. The parties were strangers to each other, never having seen each other before that night. Just what the relations and situation of the parties were at the time of the difficulty is not further described than as stated.

The court charged upon principals both from the cutting by appellant and shooting by his brother. The evidence is very meager in regard to this proposition. The knife wound was in front and the pistol shot entered from the rear. This formed the basis for a charge on principals. We are of opinion that, if upon another trial the court should charge with reference to principals, he should give the converse of the proposition. This testimony is very meager indeed, and does not show, outside of the testimony of the state’s witness, how the matter came. There were a number of people outside of the dance hall at the time of the trouble. If the assault was made as indicated, and the two were acting together for the purpose of doing what they did, or if they were aiding and encouraging each other in the assault, the question of principals would be suggested, but it is equally as true if they were not, and that the brother, if he shot the pistol, did so to defend the other brother from an apparent attack about to be made by Gloria with a rock, he not being a participant in the original difficulty and coming upon the parties and finding them in that relation, he would not be considered a principal. If he did this, then the question of self-defense would be in the case in favor of the brother who shot the pistol in defending his brother from an attack, or an apparent or contemplated attack, by Gloria. Where the testimony is so uncertain and erratic as that disclosed, we are of opinion that, if a charge on principals is given, the converse of it should also be given. As given, it made appellant responsible as a principal for the shooting by his brother. If he made the first attack without having an understanding with his brother, and it was not a joint attack of the two, tiren he would only be responsible for the use of the knife. See Guffee v. State, 8 Tex. App. 187.

Proper exceptions were reserved to the charge of the court with reference to giving the law of principals, and also to the court’s failure to charge on alibi and refusal to give requested instructions presenting this theory of the law. We are of opinion that the charge on alibi should have been given. If he was in the house at the time of the difficulty, he could not have been a participant in the difficulty, and therefore was not present. See Colbert v. State, 52 Tex. Cr. R. 486, 107 S. W. 1115; Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087; Walker v. State, 6 Tex. App. 577.

There is some suggestion that the requested instructions on alibi were not sufficient in using the following language: After-setting out the usual stereotyped form that appellant at the time of the difficulty was at a different place in tite schoolhouse from where the assaulted party was, and was not and could not have been the person who did such act or acts, it reads:

“You are therefore charged that if the evidence raises or leaves in your minds a reasonable doubt as to the presence of the defendant in the yard at the scene of the difficulty in question, at the time such difficulty, if any, occurred, then you must acquit the defendant, and say by your verdict not guilty.”

This phraseology, in giving this part of the charge on alibi, was approved in Walker v. State, 6 Tex. App. 577, and Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087, and the same proposition asserted in an opinion by Judge Ramsey in Colbert v. State, supra. We think the charge was sufficient and called for by the facts.

The judgment is reversed, and the cause remanded.
      ©ssjKor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    DUNN v. WILKERSON et al.
    (No. 6016.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 10, 1918.)
    1. Courts <&wkey;247(11) — Appellate Jurisdiction — Amount in Controversy.
    Where plaintiff, in an action for conversion of personal property, asked for $100 for mental anguish, but did not allege injury to person, and hence was not, on face of pleading, entitled to damages for mental anguish, the $100 will not be considered in determining amount in controversy, for purpose of appeal to Court of Civil Appeals.
    2. Damages <s^49 — Conversion — Mental Anguish.
    In an action for conversion of personal property, where no injury to person is alleged, plaintiff can recover no damages for mental anguish.
    3. Courts <&wkey;247(11) — Appellate Jurisdiction-Amount in Controversy — Addition of Interest.
    Where plaintiff in justice court could not have added interest without exceeding the jurisdiction of the justice court, she cannot amend in the county court by claiming interest, so as to bring the amount in controversy within the appellate jurisdiction of the Court of Civil Appeals.
    Appeal from Nueces County Court; David M. Picton, Jr., Judge.
    Action by Mrs. J. L. Dunn against A. E. Wilkerson and another. Judgment for defendants, and plaintiff appeals.
    Appeal dismissed.
    Suttle & Todd and I. A. Hunt, all of Corpus Christi, for appellant. Pope & Sutherland, of Corpus Christi, for appellees.
   FLY, C. J.

This is a suit for conversion of certain personal property, instituted by appellant against A. E. Wilkerson and Thad Wilkerson in the justice’s court, the value of the goods being placed at $38.30. She obtained judgment for $19 in the justice’s court, and appellees appealed to the county court, where appellant filed a pleading claiming $19.75 actual damages, $100 for mental anguish, and $50 exemplary damages. A jury returned a verdict in favor of appellees, upon which the judgment was rendered, and an appeal has been perfected to this court.

The evidence shows that appellant is the mother of Mrs. A. E. Wilkerson, and was invited by her and her husband to make her home with them, which she did. Dissatisfaction was caused by the conduct and conversation of this pensioner upon their bounties, which she admitted arose from what she said many times to them about their mode of living. She testified that she objected to their attendance on dances and other places, where she thought her daughter should not go. She said:

“I remonstrated quite a good deal with both of them about living unchristian lives.”

She further stated that A. E. Wilkerson became “considerably worked up about my talking to his wife about the way they lived.” 1-Ie at last told her she would have to leave. She did not leave, and an injunction was obtained by A. E. Wilkerson, as she said, “to put me off the place.” The sheriff, with his writ of injunction, failed to get her off, and at last accounts she was still holding her place in the house of A. E. Wilkerson. The latter swore that her conduct became so unbearable he tried to get her to leave, and she agreed to have her personal property put over the fence on a neighbor’s land, where, as she said, “she would fight the devil over the fence the same as she had fought him in the house.” Wilkerson did not want to have her doing her fighting so close to his house, and he took her personal property to the railroad station and shipped it to her other daughter, who lived at Comstock, Tex., and gave a railroad agent $20 to pay her fare to Comstock, but she refused to go. Wilkerson said:

“I did get out an injunction, and had the sheriff to come out; but he did not move her. She is there yet, and won’t move.”

Appellant amended her pleadings in the county court so as to sue for $100 damages for “mental anguish, mortification, and humiliation suffered by plaintiff by reason of the seizure, conversion, and wrongful withholding from plaintiff of said property by defendants.” Appellant has no right to recover in a suit of this character for damages arising from mental anguish, and, as said in Wells Fargo Co. v. Burford, 59 Tex. Civ. App. 645, 126 S. W. 927:

“Where it appears on the face of the pleadings that a portion of the items sued for could form no proper basis for suit, they should not be considered in determining the amount in controversy.”

The decision in that case is fully sustained by Texas authorities cited therein. In the case of Carswell v. Habberzettle, 99 Tex. 1, 86 S. W. 738, 122 Am. St. Rep. 597, the court, speaking on the subject, said:

“It is now the settled law in this court that, although the amount claimed in the petition may be sufficient to give the court jurisdiction of the ease, yet if the facts alleged be such as to show no cause of action, as to such part of the whole sum sued for, as to reduce it below the amount for which the court has jurisdiction, the suit should be dismissed.”

It is not claimed that appellant was injured in her person in connection with the conversion of her property, and, as said in a quotation approved by the Supreme Court in Railway v. Trott, 86 Tex. 412, 25 S. W. 419, 40 Am. St. Rep. 866:

“In no case has it ever been held that mental anguish alone, unaccompanied by an injury to the person, afforded a ground of action.”

This ruling has been approved in a number of decisions, among the number Railway v. Corley, 87 Tex. 432, 29 S. W. 231, and Railway v. Hayter, 93 Tex. 241, 54 S. W. 944, 47 L. R. A. 825, 77 Am. St. Rep. 856. The rule has been relaxed or modified in cases of failure to deliver messages by telegraph companies, and in slander and libel cases, and perhaps others; but in no case where a plaintiff has been deprived of the possession and use of property, unaccompanied by violence to the person of the owner, have actual damages been allowed for mental anguish or injury to the feelings. Williams v. Yoe, 19 Tex. Civ. App. 281, 46 S. W. 660. Damages for mental anguish can therefore form no part of the measure of damages in a case of conversion of property, and, if the $100 is deducted from the $199.75 sued for in the county court, it leaves only $99.75, of which amount this court has no jurisdiction.

Appellant did not sue for interest, because she would have gone beyond the jurisdiction of the justice’s court by her amendment in the county court, which she could not do. The amendment in the county court spoke from the date of the suit in the justice’s court, and if there had been added any interest, or if the suit carried with it interest, the amount would have been over $209, and the jurisdiction of the court would have been ousted. Railway v. Crenshaw, 51 Tex. Civ. App. 198, 112 S. W. 117. It follows that the whole amount that could be claimed by appellant was $99.75, and the cause could not legally be appealed to this court.

The appeal is dismissed for want of jurisdiction.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    SMITH v. PATILLO.
    (No. 1908.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 13, 1918.
    Rehearing Denied Feb. 28, 1918.)
    Judgment <&wkey;463 — Suit to Set Aside — Instructed Verdict.
    In suit by a wife to set aside a judgment, the court should not have instructed a verdict for defendant if the jury might have found from the evidence that defendant held title to land in trust for the wife and her husband, and by collusion with the husband secured judgment vesting absolute title in him, and that the wife was not without sufficient excuse for not being present and contesting defendant’s right to the judgment.
    Appeal from District Court, Harrison County; P. O. Bear<j, Judge.
    Suit by Millie Ann .Smith against P. W. Patillo. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Appellant was the wife of Louis Smith. Eighteen or twenty years prior to March 14. 1910, they purchased 65 acres of land of Oakes Ames on credit. Thereafterwards until about six years before said date, when they ceased to live together as husband and wife, they occupied and used the land as their homestead; and after they separated, until she was evicted therefrom as hereinafter stated, appellant continued to occupy and use the land as her homestead. March 14, 1910, judgment was rendered by the district court of Harrison county in favor of Ames against Louis Smith for $275, that being the amount unpaid of the purchase money, and foreclosing a vendor’s lien retained by Ames and ordering a sale of the land to satisfy the sum adjudged in his favor. At a sale made by the sheriff June 8, 1910, in accordance with the order, John Copeland was the purchaser for $337. He conveyed the land to appellee by a quitclaim deed dated June 17, 1910, in consideration, it seems, of $347 paid to him by appellee. Appellant and her husband claimed that Copeland by the deed from the sheriff, and appellee by the deed from Copeland, took title to the land as mere trustees for them, and that they were entitled, on paying to appellee the sum he paid Copeland,' to have the title vested in them. It was on this theory, appellee refusing to concede that he was their trustee, that by a petition filed February 12, 1915, they commenced a suit against appellee. In that petition they alleged:
    That, being unable to pay the Ames judgment, to prevent a sacrifice of the land, “they_ procured,” quoting from the record, “the said F. W. Patillo, in connection with John Copeland, to arrange for the advancement of said funds to satisfy said Ames judgment and to be present at said sale and buy the land in for the use of said Louis Smith and wife ; that it was agreed by and between said Louis Smith and wife and F. W. Patillo that John Copeland should buy in the land, and the deed executed to him by the sheriff should be a mortgage, and the deed executed to F. W. Patillo by Copeland should also be a mortgage as security for the money so advanced, and said Louis Smith and wife should have time to pay said mortgage, with same bearing interest from date at the rate of 10 per cent, per annum; that said Copeland did bid in said land for $337 on the 8th day of June, 1910, and received deed from the sheriff which Copeland did then agree should be a mortgage, and that said Copeland, in pursuance of said agreement, deeded the land to said Patillo by quitclaim deed; that said Louis Smith and wife, relying upon said agreement, did. not bid on said land at said sale, but accepted the agreement between them and said Copeland and Patillo, and allowed Copeland to bid in the land; that said Patillo actually knew that the deed to be made to Copeland by the sheriff should be a mortgage, and that said land was then the home of said Louis Smith and wife; that said Louis Smith and wife had. paid said Patillo on said indebtedness $300 in cotton, which was agreed should be a credit on said debt and mortgage; that said Patillo agreed to keep an account of the payments and advise said Smith and wife of the amount; that said Patillo refused to release said land to them, and that said Smith and wife theretofore had requested him to accept the amount due on said indebtedness which they alleged to be the sum of $113, which they tender into the registry of the court, or, if they be mistaken as to the amount due said Patillo, they tender such amount as shall be found by the court to be due; that they now bring this suit for the purpose of having a decree establishing the deeds to Copeland and Patillo mere mortgages and to redeem their said land from said debt, and for general relief.”
    That suit resulted in a judgment, rendered March 3, 1916, in appellee’s favor, and thereupon appellant was evicted from the land. The judgment contained recitals as follows:
    “The plaintiffs having failed to appear, and the court being informed that plaintiffs’ attorneys had withdrawn from the cause, and the defendant insisting upon said cause being tried, the court proceeded to the trial of said cause. And the court, after hearing the pleadings and the evidence, which consisted of the depositions of Louis Smith to the effect, in substance, that the allegations of plaintiffs’ petition were not true, and that the alleged agreement that the deeds referred to in plaintiffs’ petition were mortgages were not true,” etc.
    This suit was commenced and prosecuted by appellant alone against appellee alone. It was to set aside the judgment above referred to on the ground that it was procured by collusion between appellee and appellant’s husband and for the purpose of defrauding her. Appellant also prayed that the deeds to Copeland and appellee be held to be mortgages, and that she be permitted to redeem the land by paying to appellee the part, if any, not already paid to, him of the sum he paid to Copeland for the land. The court thought the testimony “insufficient to establish plaintiff’s cause of action,” and instructed the jury to return a verdict in ap-pellee’s favor. The appeal is from a judgment in accordance with such a verdict.
    Geo. L. Huffman, of Marshall, for appellant. Bibb & Bibb, of Marshall, for appel-lee.
   WILLSON, C. J.

(after stating the facts as above). The court should not have instructed a verdict for appellee as he did if the jury, might have found from the testimony that appellee held the title to the land in trust for appellant and her husband (Lucia v. Adams, 82 S. W. 335; Ellerd v. Ellison, 165 S. W. 876); if they might also have found that appellee, so holding the land, by collusion with appellant’s husband secured the judgment vesting an absolute title in him, thereby defrauding appellant of her right therein (Buchanan v. Bilger, 64 Tex. 589; Davis v. Jones, 149 S. W. 727; 23 Cyc. 937); and if they might also have found that appellant was not without a sufficient excuse for not being present and contesting the right of appellee to said judgment (Allen v. Land Co., 135 S. W. 682, and authorities there cited). After carefully considering the testimony, we are of the opinion the jury might have so found, and therefore that the court erred in taking the case from them. As the cause will be remanded for a new trial, the testimony will not be commented on further.

Judgment reversed, and cause remanded for a new trial.
      <gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    HARTMAN v. LOGAN.
    (No. 7929.)
    (Court of Civil Appeals of Texas. Dallas.
    April 6, 1918.
    Rehearing Denied May 4, 1918.)
    1. Assault and Batteky <&wkey;15~-1Trespasser.
    Plaintiff, in assanlt and battery, employed by defendant for service in the house, having after her discharge by him been granted a reasonable time to leave, was not a trespasser, when thereupon she telephoned for a baggage-man.
    2. Cbiminal Law &wkey;>163 — Eobmeb Jeopabdy —Punitive Damages.
    Defendant, though convicted of assault and fined, is liable to exemplary damages in a civil suit; this not being a double punishment for the same offense, in view of Const, art. 16, § 26.
    Appeal from Dallas District Court; E. B. Muse, Judge.
    Action by Mrs. Mary E. Logan against George Hartman. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Read, Lowrance & Bates, of Dallas, for appellant. McGutcheon & Church and W. D. Cardwell, of Dallas, for appellee.
   RAINEY, C. J.

Suit by appellee against appellant to recover actual and exemplary damages for an aggravated assault and battery on her. Plaintiff alleged that she entered the services of the defendant as his housekeeper and to care for his minor child; that on or about the 19th day of August, 1916, defendant, without cause or fault on the part of plaintiff, unlawfully and maliciously assaulted plaintiff by striking, beating, and kicking plaintiff, from which she suffered injuries. Plaintiff claimed $6,500 actual damages, and $5,000 exemplary damages, and the court rendered judgment in plaintiff’s favor for $250 actual damages, and $250 exemplary damages.

Defendant answered by general denial and specially that he had notified plaintiff to vacate his premises, which she refused to do; that she took possession of his telephone, and refused to allow defendant to use it when requested so to do, and when defendant attempted to take possession thereof she resisted, and if she was injured it was due to her own unlawful acts and negligence in remaining upon defendant’s premises; that plaintiff would not hare been injured if she had vacated his said premises at the time he requested her so to do, and was guilty of contributory negligence, and her injury, if any, was the direct and proximate result of her own unlawful acts and negligence. Defendant further alleged that he had already paid the fine for aggravated assault, and that this suit by plaintiff constituted an effort to put a man in jeopardy twice for the same offense to the extent of exemplary damages, and that plaintiff could not maintain a suit for exemplary damages, when the defendant had already paid a fine for the same offense in the criminal proceedings.

Appellant’s first assignment of error is:

“That the judgment of the district court rendered herein on, to wit, February 3, 1917, is contrary to the law and the evidence in that said judgment was rendered for the sum of $250 against said defendant as exemplary damages, and there was no evidence to show malice or wanton assault on the part of said defendant.
“The uncontradicted evidence showed that said defendant had notified the plaintiff to leave or vacate the premises of said defendant, and that said plaintiff had failed and refused to vacate said premises and had insisted upon remaining upon said premises contrary to the rights of said defendant; that said defendant did not use sufficient force to make plaintiff vacate his said premises, and there was no evidence of any malice or wanton assault on the part of said defendant.”

Appellant submits two propositions (A and B) under this assignment:

“A. There was no evidence to show a wanton and malicious assault by the defendant on the plaintiff, and exemplary damages cannot be recovered in the absence of wanton or malicious acts, and the intent of the defendant must determine the question of malice.”
“B. The uncontradicted evidence showed that plaintiff was a trespasser on the premises of defendant at the time of the alleged injury, and defendant had notified plaintiff to vacate said premises prior to the alleged injuries, which plaintiff had refused to do, and defendant did not use sufficient force to dispossess plaintiff, and there was no evidence of malicious intent to injure plaintiff.”

The evidence was conflicting on these issues. There was evidence showing that appellant gave to appellee permission to remain in the house until she could remove her things, and at the time of the assault she was phoning for a transfer man to remove her plunder, and was only waiting for him to get there before she could leave. Under such circumstances she was not a trespasser, having been employed by appellant for service in the house, and a reasonable time for her to leave had been granted. The evidence fails to show any excuse for the appellant making an assault and battery upon appellee, but that it was wanton and unjustifiable. The evidence fails to show that appellant was attempting to eject appellee from the house at the time, but from appellee’s testimony, and which the court evidently believed, we conclude that the assault was wanton and unprovoked, and justified the judgment for $250 exemplary damages.

Appellant’s second assignment of error is:

“The judgment of the court is contrary to the law and the evidence, in this, that the uncon-tradicted evidence showed that the plaintiff, Mrs. Mary E. Logan, was a trespasser on the premises of the defendant, George Hartman, at the time of the alleged injuries on, to wit, August 19, 1916, and the uncontradicted evidence showed that George Hartman owned said premises, and had directed and instructed the plaintiff, Mrs. Mary E. Logan, to leave and vacate said premises, which she failed and refused to do, and stated that she would not leave said premises; and the uncontradicted evidence showed further that the defendant did not use sufficient force to dispossess said plaintiff from said premises, and the pneontradicted evidence showed that the plaintiff, Mrs. Mary E. Logan, remained on said premises until after the defendant had loft his own home.”

Propositions A and B under this assignment are:

“A. A trespasser or licensee upon the property of another cannot recover damages or injuries received while so trespassing.”
“B. The owner of property owes no duty to protect a trespasser or licensee upon his private property, and is not liable for damages received by the party while so trespassing, if the trespasser was guilty of contributory negligence.”

We conclude that as propositions of law the foregoing are correct when supported by unconfradieted testimony of appellee, but the testimony, of appellee shows that the appellant made a wanton and unprovoked assault upon her, which the court evidently believed, and which warranted the judgment, and ■which we do not feel justified in disturbing. This assignment is therefore overruled.

The next assignment of error, in effect, is that the judgment for exemplary damages is contrary to the law and the evidence, because it was shown that defendant had been tried and found guilty of the assault and fined, which fine he had paid. Defendant submits the following propositions, to wit:

“A. The defendant had pleaded guilty and paid his fine for the alleged assault and battery, and the judgment of the court for exemplary damages amounted to a double punishment for the same offense, and was contrary to article 16, § 26, of the Constitution of the state of Texas.”
“B. The Constitution of the state of Texas prohibits a man’s being punished twice for the same offense, and the judgment for exemplary damages against the defendant, when he had paid his fine for said alleged assault, amounts to a double punishment.”

That one may be punished criminally for a wrongful injury is no defense to the assessing of exemplary damages in a civil action for a malicious assault; that is, in such an action a person is not put twice in jeopardy. While there is a division of opinion in the different states, we are of the opinion that under the Constitution and laws of this state, in a civil action, exemplary damages are recoverable against a party, though subject to a criminal prosecution. Only one case in this state bearing on this particular proposition has been cited, and we have been unable to find another. That case is Cole v. Tucker, 6 Tex. 266, which is one where suit was brought for maliciously killing a mule, for loss of the service of the same, and for time spent in obtaining the service and making the purchase of another. On the trial plaintiff offered to prove the expenses incident to the institution of the suit, which the court excluded. On appeal the Supreme Court reversed the action of the lower court, holding that said ruling was error, and among other things said, Chief Justice Hemphill speaking for the court:

“That in actions for malicious trespasses on personal property vindicatory or corrective damages may be awarded is a rule as old as it is firmly established. Compensation, in the legal and technical signification of the term, is not deemed a sufficient recompense for injuries of this character. Compensatory damages are given where the injury is not tainted with fraud, malice, or willful wrong; but where either of these elements intervene, another ingredient is added to the ordinary constituents of injury, viz. the sense of wrong and insult, and damages are given as well for compensation to the sufferer as for the punishment of the offender. In .the language of Judge Baldwin, where trespass is committed in a wanton, rude, or aggravated manner indicating a desire to injure, a jury ought to be liberal in compensating the party injured in all he has lost in property, in expenses for the assertion of his rights, in feeling or reputation; and even this may be exceeded by setting a public example to prevent the repetition of the act. In such cases there is no certain fixed standard, for a jury may properly take into view not only what is due to the party complaining, but to the public, by inflicting what are called in law speculative, exemplary or vindictive damages. * * * That the defendant in this case may be punished criminally lies in contingency, and this is not sufficient to relieve him from exemplary damages in a civil action should the facts justify such damages.”

The- appellant in this case having made an unwarranted assault on appellee, it makes no difference if he has been punished by fine, for said fine does not suffice for the exemplary damages to which appellee is entitled. In other words, a criminal conviction in this state is no bar to a recovery in a civil action. See volume 8, R. C. L. § 145, p. 600. In the' case of Smith v. Bagwell, 19 Fla. 117, 45 Am. Rep. 12, where Smith was sued for damages for assault and battery, a charge was asked to the effect that exemplary damages were not permissible. This charge was refused by the lower court and affirmed by the Supreme Court of Florida. The court in discussing the question of “twice in jeopardy” quotes from decisions of many states, and from the United States Supreme Court as follows:

“In Day v. Woodworth, 13 How. 363 [14 L. Ed. 181], Mr. Justice Greer, speaking for the court, says: ‘It is a well-established principle of the common law that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive or vindictive damages upon a defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned bjr some writers; hut if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument.” P. W. & B. Railroad Co. v. Quigley, 21 How. 213, 16 L. Ed. 73; Mil. & St. Paul Railroad Co. v. Arms, 91 U. S. 489, 23 L. Ed. 374; 2 Sedg. Meas. Dam. (7th Ed.) 323, and note.

The Florida court then closes its opinion with these appropriate remarks:

“This question has elicited much discussion and the books are full of it. The courts in some of the states have held to the doctrine as contended for by counsel for the appellant, that in a civil action for a tort, punishable also criminally, punitive or exemplary damages cannot be given by the jury, and we have carefully examined all these authorities. The current of the decision is in the contrary direction, and we can but hold that the court below did not err in refusing to give to the jury the instructions in this respect requested.”

We are of the opinion that there was sufficient evidence on which to base a judgment for the appellee, and the judgment is affirmed.

Affirmed.'
      cg^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYOE, J.

text:
    WERTS’ HEIRS v. VICK.

      (No. 1328.)

    (Court of Civil Appeals of Texas. Amarillo.
    April 3, 1918.
    Rehearing Denied May 1, 1918.)
    1. Taxation <&wkey;7S9(3) — Tax Deed — Validity — Burden of Proof.
    In the absence of evidence showing that prerequisites to valid tax sale were complied with, tax deed thereunder was a nullity.
    2. ’ Landlord and Tenant &wkey;j66(2) — Adverse Possession — Necessity of Notice of Repudiation.
    The possession of a tenant is the possession of the landlord, and possession acquired under tenancy cannot be said to be adverse, in support of limitations, until such time as it is shown that the landlord had notice of the repudiation of the tenancy and adverse claim of his tenant.
    3. Landlord and Tenant <&wkey;6G(2) — Adverse Possession by Tenant — Notice of Claim.
    Since a landowner need not constantly examine records to guard against instruments affecting his title, he is not to be charged with notice of registration of hostile deed to his tenant, where his possession is not disturbed.
    4. Landlord and Tenant <&wkey;64 — Adverse Possession — Estoppel — Tenant’s Assignees.
    One entering possession under the tenant or lessee occupies the same position as the original tenant and lessee, and is equally estop-ped to deny that the possession thus acquired is that of the landlord.
    5. Landlord and Tenant &wkey;>34(5) — Forfeiture-Adverse Claims.
    Repudiation by tenant by institution of action in trespass to try title to the land forfeits his right to claim further under the lease.
    Appeal from District Court, Toung County ; Wm. N. Bonner, Judge.
    Suit by D. G. Vick against the heirs of Jacob Werts, wherein defendants filed a cross-complaint. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered.

      Kay & Akin, of Wichita Falls, for appellants. Arnold & Arnold, of Graham, and Kimbrough, Underwood & Jackson, of Amarillo, for appellee.
   BOYOE, J.

This suit involves the title to 160 acres of land in Young county. The appellants own the superior record title, and the appellee claims by limitation. The land was patented to Jacob Werts, and the appellants are his heirs. On ¡September 1, 1880, by a written lease, duly recorded, Jacob Werts, in consideration of $250 paid, leased the land in controversy for the period of 50 years to J. H. Carter, through whom appel-lee claims. In 1881 the said J. H. Carter bought the land at sale for taxes, and the sheriff and tax collector executed and delivered tax deed therefor, which was duly recorded. In 1883 Carter executed quitclaim deed to the land to J. S. Timmons, who in 1911 conveyed it by general warranty deed to other parties. The land thereafter passed through several successive grantees by warranty deeds, being ultimately conveyed by such deed to appellee, D. G. Vick, in the year of 1915. The conveyances referred to were duly recorded at the time of their execution. The case was tried upon an agreed statement, and it was agreed, in addition to the facts already stated:

“That D. G. Vick has title to said land by limitation, unless such limitation title is defeated by the lease above mentioned from Werts to Carter. * * * That neither said Vick nor those under whom he claims have ever given to Jacob Werts, or his said heirs, any actual notice that the relation of landlord and tenant was repudiated; the recording of adverse deeds and open possession thereunder being the only repudiation of such relationshp.”

Appellee, Vick, brought this suit against the unknown heirs of Jacob Werts in the form of trespass to try title, and also set up title by limitation under the 5 and 10 year statute. The appellees appeared, pleaded not guilty, and by a cross-action, in form of trespass to try title, prayed for judgment for the land.

It was not shown or claimed that the tax deed taken by Carter conveyed the title; no evidence being offered to show that the prerequisites to a valid sale had been complied with. Such deed was therefore a nullity, and conveyed no more right than would have been acquired by a deed from a stranger to the title. Appellee, however, relies upon the taking and record of the deed as a repudiation, and notice thereof to the landlord, Werts, of the tenancy, and thus starting limitation to run. It is the law familiar to all that the possession of the tenant is the possession of the landlord, and possession acquired under tenancy cannot be said to be adverse in support of limitations until such time as it is shown that the landlord had notice of the repudiation of the tenancy and adverse claim of his tenant. It was held in the case of Udell v. Peak, 70 Tex. 547, 7 S. W. 788, that notice to the landlord of a deed taken by a tenant in hostility to the title of his landlord will not be imputed from the mere record thereof, if he did not in fact know of it, and that the court should have instructed the jury in that case that the recording of the deed would not be evidence of an adverse holding or the repudiation of the tenancy. The reasoning on which this conclusion was reached is sound, and the conclusion itself is conducive to the enforcement of the right and prevention of wrong.

The registration of a deed does not have the broad effect of notice contended for by appellee, and as might be inferred from the literal construction of the provisions of article 6842, R. S. it has been frequently announced that the purpose of the registration law was to protect those subsequently dealing with the land and the record of a deed is notice only to those claiming under the grantor. White v. McGregor, 92 Tex. 556, 50 S. W. 564, 71 Am. St. Rep. 875. The owner of the land is not required to constantly examine the records, to ascertain whether some one has placed of record some instrument affecting his title. If possession of the land is disturbed, he is bound by notice of such fact, and by virtue of the limitation statutes may then be said to be affected with notice of the claim evidenced by the deed under which the possession was taken. But Werts’ possession of the land was not disturbed, and on principle he is not to be charged with notice of the fact of the registration of a hostile deed to his tenant. The case of Udell v. Peak, supra, was referred to with approval in the case of Bryson v. Boyce, 41 Tex. Civ. App. 415, 92 S. W. 820, where the adverse possession of the tenant was attempted to be supported by the purchase of the land under a tax deed during the tenancy. See, also, Hintze v. Krabbenschmidt, 44 S. W. 39; Reichstetter v. Reese, 39 S. W. 596. The evidence, therefore, fails to show that limitation began to run in favor of the original lessee, Carter, by reason of Ms record of the ‘tax deed. The distinction between this case and that of Crosby v. Bonnowsky, 29 Tex. Civ. App. 455, 69 S. W. 212, is that in said case the tax sale itself conveyed a good title, and was not merely relied upon to support a title by limitations, as in this case.

It is also, we think, rightly settled that all entering possession under the tenant or lessee occupy the same position as the original tenant and lessee, and are equally es-topped to deny that the possession thus acquired is that of the landlord. Cobb v. Robertson, 99 Tex. 138, 86 S. W. 748, 87 S. W. 1148, 122 Am. St. Rep. 609; Richardson v. Houston Oil Co., 176 S. W. 628; Buford v. Wasson, 49 Tex. Civ. App. 454, 109 S. W. 275. It makes no difference that such possession is taken under a warranty deed from the tenant conveying the property absolutely. Reichstetter v. Reese, supra; Tiffany on Landlord & Tenant, vol. 1, p. 486; Underhill on Landlord & Tenant, § 564; Jones on Landlord & Tenant, § 699; Phillips v. Rothwell, 4 Bibb. (7 Ky.) 33; Emerick v. Tavener, 9 Grat. (Va.) 220, 58 Am. Dec. 217; Rose v. Davis, 11 Cal. 133; McLennan v. Grant, 8 Wash. 603, 36 Pac. 682. Appellee, Vick, therefore, is in no better position than Garter, the original lessee, would have been, and since it was agreed that no notice of the repudiation of the tenancy, other than the recording of the various deeds of conveyance above referred to, was given to the landlord, we conclude that no adverse possession sufficient to support limitations is shown.

The possession of the appellee and that of his. vendors is to be regarded as possession of the landlord until the repúdiation by the institution of this suit. This repudiation forfeits the right of appellee to claim further under the lease. Reese v. Swartz, 187 S. W. 245; Wildey Lodge v. City of Paris, 31 Tex. Civ. App. 632, 73 S. W. 69.

Under the agreed facts in this case, we think that appellants are entitled to judgment, and we therefore reverse the judgment of the court below, and here render judgment in their favor.

HALL, J., not sitting.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    SIDES v. KNOX et al.
    (No. 1932.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 13, 1918.
    Rehearing Denied March 21, 1918.)
    1. Bills and Notes i&wkey;134 — Oontbact fob Payment — Validity.
    An agreement that certain notes were to be paid only from damages recovered by the maker from his vendor of premises, and if the court should hold the maker not entitled to damages the notes should be canceled and surrendered to the maker without payment, held, valid.
    2. Bills and Notes <&wkey;516 — Actions—Evidence — Stjeeiciency.
    Where a payee sued on notes and contract with the maker that the notes should be paid only out of a special fund to be recovered by the maker as a set-off against his vendor’s mortgage, evidence that the claim was disallowed, and that through error the maker did not pay the full amount of the mortgage and costs upon foreclosure, is insufficient to entitle plaintiffs to recover.
    Appeal from District Court, Van Zandt County; B. M. Smith, Judge.
    Action by H. A. Knox and another against L. A. Sides. • Judgment for plaintiffs, and defendant appeals.
    Reversed, and judgment entered for defendant.
    On April 30, 1912, the appellant executed a note for 8750 to H. A. Knox and a note for $500 to Henry Ward. Each note was due on or before January 1,1915, and was “without interest.” Each note recited:
    “This note is given for value received, but it is not negotiable without the written consent of L. H. Sides, the maker, indorsed on the back of said note.”
    At the same time of the execution of the notes the maker of the notes and each payee therein executed a written agreement, setting forth the circumstances inducing and the consideration for the execution thereof, and containing the following stipulation:
    “We, the said Henry; Ward and H. A. Knox, recognizing and agreeing that the said L. H. Sides has a just and valid cause of action against J. V. Wiggins, which amounts to more than the notes above described, therefore by these presents agree to accept in settlement in full of the above-described notes an amount sufficient to discharge them out of the damages sustained by L. IT. Sides for the reasons' assigned above against J. V. Wiggins; the said L. H. Sides agreeing to pay said notes out of said money. But it is further understood, in the event, the court should hold that the said L. H. Sides is not entitled to recover any amount of damage or money or offset on the note owed J. V. Wiggins by him, then the said Henry Ward and H. A. Knox agree to deliver said notes to L. H. Sides and cancel all demand by reason thereof against him. The said L. PI.- Sides agrees not to pay over to the said J. V. Wiggins any part of the purchase money due on said land until the court should adjudge that he shall pay the same. It is further agreed that, if either party shall act in bad faith or breach this contract, it shall be void.”
    It appears that J. V. Wiggins conveyed to L. H. Sides a tract of land, retaining a vendor’s lien to secure payment of a part of the purchase money, amounting to $5,000. The purchase-money note of $5,000 was due February 15, 1912, and bears 10 per cent, interest per annum from maturity, and provides that all past-due interest shall bear 10 per cent, interest, and, if collected by suit, 10 per cent, of the principal and interest due shall be paid as attorney’s fees. H. A. Knox and Henry Ward were tenants on the place at the time of the sale to L. H. Sides, and they claimed to have rented it for the year 1912. L. I-I. Sides claimed that J.. V. Wiggins agreed to. give him possession of the place on January 1, 1912. L. H. Sides sued for possession of the land, but judgment was rendered for the tenants, Knox and Ward. J. V. Wiggins afterwards brought suit against L. H. Sides on the vendor’s lien note; and L. H. Sides, as testified by his attorney, “filed the defenses as set out in said contract to said suit by Wiggins, and we urged them before the court; but the court held that they were not proper defenses to said suit on the $5,000 note, and we abandoned our defense when the court so held. Mr. Sides then made settlement of the note.” L. H. Sides paid to J. V. Wiggins in settlement of the note $6,549.96, which was in fact $603.34 less than the principal, interest, and attorney’s fees due on the note at the date of settlement. The' witness Cox, acting for Sides, testified:
    “I made the settlement with Mr. Wiggins in person, after the court overruled the defenses to the note. I do not now remember the exact amount of the note, but know that we figured it and intended to pay the full amount of the note, including compound interest. We paid [giving the amounts]. If the amount thus figured and paid was not the entire amount that the notes came to, with compound interest, then it was a mistake, as we intended to pay that much.”
    Henry Ward and H. A. Knox brought suit on the notes and contract, alleging that B. H. S’ides, in the suit brought by J. V. Wiggins against him on the vendor’s lien note, recovered an offset against the vendor’s lien note of more than $1,250. The defendant answered by denial, and specially that he made claim for damages and offset in the suit of J. Y. Wiggins against him, but that the court denied the claim. The court peremptorily instructed a verdict for the plaintiffs for $603.34.
    Stanford, Sanders & Stanford, of Canton, for appellant. C. L. Hubbard, of Grand Saline, Walter Jones, of Mineóla, and Jones & Jones, of Kerrville, for appellees.
   LEVY, J.

(after stating the facts as above).

It is believed, as insisted by appellant, that the evidence does not warrant the judgment in favor of the appellees. Contemporaneous with the execution of the nonnegotiable notes in evidence was a written agreement of the parties having the .effect to make the payment of the note out of a special fund on a specified contingency, and not otherwise. The agreement of the parties to make the payment of the note subservient to the limitations and restrictions of such agreement is valid. Rogers v. Broadnax, 24 Tex. 538; National Bank v. Smith, 22 S. W. 1056. The payee was to accept and the maker to make payment of the notes “out of the damages” that might be recovered by L. H. Sides in His certain claim for damages founded on an alleged breach of agreement on the part of J. Y. Wiggins to place L. H. Sides in possession of the land on January 1, 1912. But, as further stipulated, “in the event the court should hold that the said L. H. Sides is not entitled to recover any damage or money or offset on the -note owed J. V. Wiggins by him,” then the notes were not to be paid at all, but were to be canceled and surrendered to the maker; and it is believed that the evidence does not support the plaintiffs’ allegation in the petition, in order to support the action, that B. H. Sides recovered and was allowed an offset against the vendor’s lien in the suit on said notes by J. V. Wiggins. According to the evidence of the attorney representing Sides:

“B. H. Sides filed the defenses as set out in the contract to said suit by-J. W. Wiggins, and they were urged before thij court, hut the court held they were not proper defenses to said suit on the $5,000 note, and such defenses were abandoned when the court so held. Mr. Sides then made settlement of the note.”

And in the “settlement of the note” referred to it appears that the appellant paid $603.34 less than the principal, interest, and attorney’s fees due under the terms of the vendor’s lien note at the date of settlement. But this underpayment may not, in the evidence, be said to be, within the meaning of the contract, “a recovery by B. H. Sides” of that sum as “damage or money or offset on the note owed J. V. Wiggins by him.” For, as clearly shown by the witness Cox, the underpayment of the $603.34 by U. H. Sides to J. y. Wiggins was inadvertent, and a mistake due solely to erroneous calculation by the parties of the amount then due on the note being settled. The witness Cox testified that:

“We figured and intended to pay the full amount of the note. * * * If the entire amount thus figured and paid was not the entire amount that the note came to, with compound interest, then it was a mistake, as we intended to pay that much.”

Thus it is evident that, if the mistake in calculation had not occurred, the underpayment of the amount due would not have been made; and B. H. Sides would not have the right, in view of the mutual mistake, to retain the amount of underpayment, for J. V. Wiggins has, under such proof, ground for relief to recover such unpaid amount. Hummel v. Flores, 39 S. W. 309; Emerson v. Navarro, 31 Tex. 335, 98 Am. Dec. 534; Alston v. Richardson, 51 Tex. 1. And such evidence so far fails to show an “agreed reduction” of $603.34 from the vendor’s lien note, so that it may not properly be said as a fact that B. H. Sides has received “damage or money or offset,” within the meaning of the contract, on the vendor’s lien note.

As the plaintiffs in the petition predicate a recovery upon the terms of the contract, and upon no other ground, a recovery, in the evidence, may not be allowed them. The judgment is reversed, and judgment is here entered for the appellant, with costs of the trial court and of this appeal.
      &wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    PEOPLE’S ICE CO. v. PHARISS et al.
    (No. 1342.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 24, 1918.)
    1. Appeal and Error <&wkey;193(5) — Foreclosure.
    In suit to foreclose chattel mortgage, failure to allege the value of the property mortgaged to secure the debt is fundamental error apparent of record, requiring reversal, whether or not there was an exception, plea, or other objection to the petition on that ground in the court below.
    2. Courts <&wkey;T70 — Pleading»—“Amount in Controversy.”
    Where petition seeking foreclosure of chattel mortgage alleged that a third person set up some claim to the property, the value of'the property, and not the debt due from mortgagor to mortgagee, was the “amount in controversy”; and, if such value was not alleged, the petition did not affirmatively show jurisdiction as to the third person.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Amount in Controversy.]
    Appeal from Wichita County Court; Harvey Harris, Judge.

      Action by W. N. O. Phariss and others against W. E. MeKown and the People’s Ice Company. From judgment for plaintiffs, the lee Company appeals.
    Reversed and remanded.
    Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. S. O. Jones, of Wichita Falls, for appellees.
   HUFF, C. J.

The appellees acquiesce in the statement made by appellant under its proposition, which we adopt:

“The plaintiff’s petition in this case, which was filed on August 31, 1916, sought to recover a judgment against W. F. MeKown, upon a promissory note executed by him dated the 21st day of February, 1916, by which the said Mc-Kown promised to pay to the plaintiff the sum of $200, said note being due six months after date and bearing interest at the rate of 10 per cent, per annum and providing for 10 per cent, additional as attorney’s fees if sued on or placed in the hands of an attorney for collection, * * * The plaintiff alleged that the note had been placed in the hands of an attorney for collection, and sought a judgment for the amount of the note, for interest, and .attorney’s fees. The plaintiff also alleged that in order to secure said note W. F. MeKown had executed a chattel mortgage upon the following described personal property situated in Wichita Falls, in Wichita county, Tex., to wit: One electric pump, two roller top desks, one fireproof safe, and all shelving, panelipg, and wooden partition in said building. The plaintiff alleged that the People’s Ice Company was setting up a claim to said property, and sought a foreclosure of said chattel mortgage, both as against MeKown and the People’s Ice Company. On the 5th day of December, 1916, the court rendered a judgment by default as shown by the record against W. F. MeKown for the amount of the note, including interest a,nd attorney’s fees, and also rendered adjudgment foreclosing the chattel mortgage lien' against W. F. Mc-Kown and, the People’s Ice Company. The plaintiff’s petition above referred to nowhere alleged the value of the personal property upon which a foreclosure of the chattel mortgage was sought, and nowhere alleged, as will appear from said petition, the value of any item of said personal property. In fact, the petition makes no mention whatever of the value of said property.”

The appellant’s only assignment is that the court erred in rendering judgment because it did not appear from the petition of plaintiff affirmatively that] the court had jurisdiction of the cause, in that it sought to foreclose a chattel mortgage lien upon certain property without alleging its value. The suit was instituted in the county court.

Since it is established by the Supreme Court of this state from Marshal v. Taylor, 7 Tex. 235, down, that the matter in controversy is not only the debt, but the value of the property covered by the mortgage given to secure its payment, and that the foreclosure proceedings comprehends as well the subject-matter of the mortgage as the debt, all the Courts of Civil Appeals passing upon the subject hold that it is necessary to allege the value of the property upon which foreclosure is sought. However, the holding of the Supreme Court has been questioned by Judge Williams, while on the Court of Civil Appeals, in a well-considered opinion, wherein he cites the various decisions up to that time. Lawson v. Lynch, 9 Tex. Civ. App. 582, 29 S. W. 1128. The holdings now are to the effect that a failure to allege the value of the property mortgaged to secure the debt is fundamental error apparent of record, requiring reversal, whether or not there was an exception, plea, or other objection to the petition on that ground in the court below. Stricklin v. Arrington, 141 S. W. 189; Bates v. Hill, 144 S. W. 289; Marshall v. Stowers Furniture Co., 167 S. W. 230; Wilson v. Ford, 159 S. W. 73; Randals v. Bank, 162 S. W. 1190; Walker v. Raney, 154 S. W. 317; Brown v. March, 149 S. W. 353; Style v. Lantrip, 171 S. W. 786; Richardson v. Hethcock, 173 S. W. 1006; Lusk v. Hardin, 176 S. W. 787; Reeves v. Faris, 186 S. W. 772; Bush v. Campbell, 201 S. W. 1055. The case of Mangaham v. Buffalo-Pitts Co., 131 S. W. 1196, as we read it, does not hold to the contrary, but expressly holds that good pleading requires that the value of the mortgaged property should be alleged. The court in that case declined to pass upon the question whether it could be considered upon an appeal without a demurrer or plea in the lower court, for the reason that the ease was reversed upon other grounds. The case of Walker v. Ramsey, supra, has apparently been cited as holding to the contrary. It will be found upon reading that case that it cites with approval Stricklin v. Arrington, supra, and, as pointed out in Reeves v. Faris, supra, is distinguished from Austin v. Bahn, 87 Tex. 582, 29 S. W. 646, 30 S. W. 430. In the case of Style v. Lantrip, 171 S. W. 786, in considering the necessity of alleging the value of the property for which a receiver was applied, Mr. Justice Hodges cited the Stricklin Case and others, and said:

“It is not. only essential that the petition should state grounds calling for the appointment of the receiver to take charge of the property involved in the litigation, but it should also show upon its face an independent cause of action within the jurisdiction of the court. It should show that the subject-matter or amount in controversy is within the court’s jurisdiction.”

Among other citations' that case refers to Smith v. Horton, 92 Tex. 21, 46 S. W. 627. In the latter case the Supreme Court, speaking through Judge Gaines, said, with reference to jurisdiction and the amount in controversy as to injunctions where the value was not specifically alleged:

“The value of the property not appearing by averment in the petition, it may be that it was worth between $200 and $1,000. If so, the county court would have had jurisdiction of the case, and power to grant the writ of injunction. It follows that it does not appear affirmatively from the petition that the district court had exclusive jurisdiction of the controversy. We, therefore, incline to the opinion that we have no jurisdiction to grant the writ of error.”

The only case holding to the contrary which we have been able to find is Cantrell v. Cawyer, 162 S. W. 920. That case is .in conflict with all the other cases above cited, We must therefore hold the rule to be set-tied otherwise. We may say, however, that the reasoning in the Cantrell Case by Judge Jenkins appeals to us, but no good purpose can be subserved by following it in this case. Certainly in the interest of good pleading the value of the property should be required to be alleged.

The petition also avers that appellant was setting up some claim to the property upon which it was sought to foreclose the lien. As between appellant and appellee Phariss the subject-matter of the suit was the mortgaged property, and the petition for writ of error brings up for review the judgment on that controversy. The value of the property was therefore the amount in controversy between them. The debt due Phariss by McKown was not the amount in controversy between appellant and Phariss, and for that reason, if for no other, the petition did not show affirmatively jurisdiction as to the amount in controversy between appellant and Phariss. Fisher v. Bogarth, 2 Willson, Civ. Cas. Ct. §§ 120, 121.

The judgment will be reversed, and the cause remanded.
      <g=»For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    KELVIN LUMBER & SUPPLY CO. et al. v. COPPER STATE MINING CO.
    (No. 810.)
    (Court of Civil Appeals of Texas. El Paso.
    March 14, 1918.
    On Rehearing, April 19, 1918.
    Rehearing Denied May 9, 1918.)
    1. Mines and Minerals <&wkey;51(3) — Conversion oe Obe — Pleading—Cause of Action.
    Allegations of a mining company’s petition for the conversion of ore that defendants, without its knowledge and consent, entered upon its claim and extracted ore therefrom, and delivered the ore to defendant lumber company to be shipped to the smelter, and that neither of defendants owned or had any right, title, interest, or claim to the ore, were sufficient on general demurrer to be the basis of a cause of action.
    2. Mines and Minerals <&wkey;51(3)~Conversion of Obe' — Pleading — Allegation of OWNERSHIP.
    In such action, the allegation that plaintiff mining company was the owner of a named claim in Arizona, and that defendants entered upon “the” claim and extracted ores therefrom, was meager as to the ownership of plaintiff, and, if it had been especially excepted to, the exception should have been sustained and plaintiff required to amend.
    3. Appeal and Ebbob <&wkey;80(l) — Judgment <&wkey;622(l) — Res Judicata — Set-Off.
    If a set-off is presented by defendant in his pleadings, and attempted to be supported, whether allowed or disallowed it will become res judicata, being settled by the judgment as conclusively when it does not appear to have been allowed as though there were an express finding against it; and hence judgment for plaintiff for less than claimed, though not finding as to set-off, is a final appealable judgment.
    4. Mines and Minerals <&wkey;>48 — Ore as Personalty — Exteaction.
    Ore, after its extraction from a mining claim, becomes personal property.
    5. .Estoppel &wkey;>70(l) — Estoppel in Pais —. Ownebship of Property.
    Where the owner of property, or one having a right to its possession, permits another, who has no right to it, to take it, he does not, by his mere silence, lose his right to the property.
    6. Appeal and Ebrob <&wkey;93l(3) — Review — Presumptions Favoring Court Below-Finding.
    Where there is evidence justifying such finding, it will be presumed on appeal that the trial court found the facts to be in favor of the judgment.
    7. Mines and Minerals &wkey;>26 — Location of Claim — Attempted Relocation.
    Where a mining company and its grantors are holding a claim under valid location by their vendors, and have done the annual assessment work, an attempted relocation of the claim by others is void, actual possession under such void location availing them nothing.
    8. Mines and Minerals <&wkey;51(3, 5) — Conversion of Obe — Recovery of Expenses— Absence of Pleading and Proof.
    In an action for the conversion of ore, in the absence of pleading and evidence as to the cost of shipping the ore or the charge for smelting, defendant lumber company cannot get judgment for such items, and the converters of the ore who shipped to the lumber company, being trespassers, are not entitled to recover expenses.
    9. Evidence <&wkey;186(6) — Evidence—Deed Executed After Suit Brought.
    In an action for the conversion of ore, a deed executed after suit was brought, and showing on its face that it was executed in lieu of a prior deed which had been lost, was admissible in support of the evidence that plaintiff’s purchase of the mining claim had been made prior to any attempted relocation by defendants.
    On Rehearing.
    10. Courts <&wkey;7 — Local or Transitory — Conversion of Obe.
    Action by a mining company for the value of ores from its alleged claim converted by individuals and a lumber company, if defendants were in adverse peaceable possession of the claim or property at the time of taking the ore, will not lie- in a foreign state or jurisdiction, the title to the realty being directly in issue between the parties, and it being the policy of the law that such direct issue be tried in the local court.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Action by the Copper State Mining Company against the Kelvin Dumber & Supply Company and others. From a judgment for plaintiff, defendants appeal.
    Action ordered dismissed.
    Davis, Goggin & Harrington and R. M. Reed, all of El Paso, and C. H. Studley, of Hayden, Ariz., for appellants. F. E. Hunter and McKenzie & Loomis, all of El Paso, and Jno. B. Wright, of Tucson, Ariz., for appel-lee.
   HARPER, C. J.

The Copper State Mining Company brought this suit in El Paso county¡ Tex., against the Kelvin Lumber Company, and H. E. Kidder and F. Bums, for certain ore, or the sum of $2,500, the-alleged value of said ores taken from a mining claim in the state of Arizona by said Kidder and Burns, and sued out writ of garnishment against the Consolidated Kansas City Smelting & Refining Company of El Paso, Tex., and the latter answered that it owed the appellant $1,710.

For cause of action plaintiff alleged “that it is tlie owner of tlie ‘Rougli Rider’ mining claim in Arizona; that defendants Kidder and Burns, without its knowledge or consent, entered upon the claim and extracted ores therefrom, and delivered same to the Kelvin Lumber Company to be shipped to the smelter of El Paso; that neither of the parties named owned or had any right, title, or interest in or to the claim or the ores;” prayed judgment for the ore or its value.

Kidder and Burns answered by general demurrer and general denial. The Kelvin Lumber Company, appellant, answered by general demurrer and general denial, and specially that about October 1, 1916, Kidder and Burns sold said ore to it for value; that it shipped it to the Smelter Company, by reason of which said Smelter Company became indebted to it for. the value thereof; that by reason of the garnishment it was prevented from collecting its value, to wit, $1,710, and was deprived of the use of same, to its damage in the sum of $57; that it had purchased the ore in good faith, without notice of any claim or right of plaintiff thereto; that plaintiff had no right to it; that Kidder and Burns were in peaceable possession of the ore, and in actual possession of the mining claim; and plaintiff made no objection to the ore being taken out, and being sold and delivered to it; it therefore is es-topped from making any claim thereto.

Trial before the court without jury, and judgment entered for $1,493, from which this appeal.

The trial court filed the following findings of fact and conclusions of law:

“(1) The cotirt finds that the plaintiff company. the Copper State Mining Company, and its grantors, had located in due form of law a mining claim known as the ‘Rough Rider’ mining claim, situated in the Bunker Hill mining district, Graham county, state of Arizona, and that the plaintiff company in the form of law performed the annual assessment work upon the said claim for the year 1915.
“(2) That the defendants H. E. Kidder and F. Burns attempted to relocate the said Rough Rider mining claim in August, 1916; that the ore in question was taken from the Rough. Rider claim by said Kidder and Burns after their attempted relocation of said claim.
“(3) That the defendant Kelvin Lumber & Supply Company in good faith advanced money and credits to said Kidder and Burns for pros-eeuting_ development work on their attempted relocation, and for the purpose of assisting them in the extraction of ores therefrom.
“(4) That the ore in question is of the value of fourteen hundred and ninety-three dollars ($1,493.00).
“Conclusion of Law.
“And the court finds 4s his conclusion of law:
“(1) That the attempted relocation of the said H. E. Kidder and F. Burns was void and of no effect, and that they were trespassers upon said property.
“(2) That the better right to said mining property, the Rough Rider, is in plaintiff.
“(3) That the ore in question is the property of plaintiff, and plaintiff is entitled to the- recovery of the same, or its value to the amount of fourteen hundred and ninety-three dollars ($1,493.00).’’

The first and,second assignments are that the plaintiff’s petition is subject to the general demurrer, because it is nowhere alleged therein that the appellee, or those under whom it claims, had any right or title to the mining claim from which the ore was taken, at the time it was taken, or at any time pri- or to the filing of the suit.

The allegations in the petition quoted above were sufficient, upon general demurrer, to be the basis of cause of action for conversion of personal property. Rains v. Herring, 68 Tex. 472, 5 S. W. 369; Tillman v. Fletcher, 78 Tex. 675, 15 S. W. 161; Towne’s Texas Pleading, pp. 389 and'390; Chapman v. Witherspoon, 192 S. W. 281.

The statement that plaintiff is the owner is quite meager, and, if it had been especially excepted to, it should have been'sustained, and plaintiff then required to amend, etc. Booth v. Pickett, 53 Tex. 439.

By the sixth it is asserted that because the court rendered judgment for $1,493 instead of $1,710, the total amount due from the smelter, and refused to render judgment for defendant, upon its cross-action for damages, for the difference, with interest thereon from the date the same was garnished, the judgment is not final. In Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161, the Supreme .Court holds:

“There is no doubt that if a set-off is presented by defendant in his pleadings, and attempted to be supported, * * * it will, whether allowed or disallowed, become res adjudicata. It is settled by the judgment as conclusively, when it docs not appear to have been allowed, as though there were an express finding against it.”

There are many cases in this state holding to the contrary, but this is the latest expression from the Supreme Court, and is therefore conclusive upon the question. It is suggested upon argument, not specifically by assignment in the brief, that because by plaintiff’s petition and proof it conclusively appears that its right to recover is dependent upon proof of title to the land from which the ore was taken in Arizona, that this is not a transitory cause of action which may be brought in this state, but that the state in which the land lies has exclusive jurisdiction.

The petition contains the averment that plaintiff is the owner of the mine, but the facts show that judgment was asked, not for the trespass upon the lands, but for the ore, or its value. The ore, after it was extracted, became personal property (Hodges v. Hunter Co., 61 Fla. 280, 54 South. 811, 34 L. R. A. [N. S.] 994; see, also, note 26 L. R. A. [N. S.] 940; Missouri P. Ry. Co. v. Cullers, 81 Tex. 382, 17 S. W. 19, 13 L. R. A. 542), and suit therefore may be maintained in any state where found, or for its value wherein the property may be found or the court get service upon the parties.

However, it seems that there is no question of title to land. The title is in the govern-meat. No patent has issued so far as this record discloses, so the respective right of the parties to take this ore from the claim rests upon the fact of whether a proper location has been made, and followed by annual assessments being made according to law, and the latter the trial court has found to have been done by appellees.

By the third assignment the question is raised, was appellant an innocent purchaser, and therefore entitled to recover, because it had purchased the ore in good faith, for a valuable consideration, without notice of any claim of appellee, and with his knowledge and consent; it was therefore es-topped from claiming the ore. Where a party is the owner of property, or has the right to its possession, as has' been found by the trial court in favor of appellee herein upon sufficient evidence, he does not by mere silence lose his right to it by permitting another, who has no right to«it, to take it; but, of course, if the appellee gave its consent to the taking, or if it gave its, consent to appellant lumber company to purchase the ore, or to make advancements to Kidder and Burns of cash upon the belief that the ore would not be taken away from it, then they might be estopped; but there is no finding by the trial court that appellee gave its consent to the taking, nor that appellee consented to the purchase or advance of money on the ore. None was requested, and, since we find evidence affirmatively disputing that such consent was given, it will be presumed that the trial court found the facts to be in favor of the judgment.

The fourth assignment is:

“The court erred in rendering judgment for the plaintiff, and not for this defendant, for the reason that the evidence shows that the defendants H. E. Kidder and F. Burns went upon the mining claim, and extracted said ore therefrom under a claim of title, having made a regular location of said claim in conformity with the laws of Arizona, provided for in such cases, and was in the actual and peaceable possession of said claim when they extracted and sold said ore to this defendant; and, the title to said mining claim being in the United States government, said defendants had a better right, under such circumstances, to said ore, after they had extracted the same, than the plaintiff.”

The trial court has found the fact to be that appellee and its grantors are holding under valid location by their vendors, and that the annual assessment work has been done by appellees. Therefore the attempted relocation by Kidder and Burns was void (Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735; Score v. Griffin, 9 Ariz. 295, 80 Pac. 331), and actual possession under a void location would not avail them.

The fifth assignment:

“The court erred in rendering judgment for the plaintiff for the full value of the ore extracted from said mining claim, and not rendering judgment for this defendant for the costs it had expended and furnished to the defendants H. E. Kidder and F. Burns in extracting said ore from the daim, and shipping it to the El Paso smelter, and having it smelted and refined, which amounts are shown by the evidence, and for which amounts this defendant was entitled to judgment, even though plaintiff should have been entitled to judgment for the ore.”

The answer is that there is neither pleading nor evidence as to the cost of shipping or charge for smelting; therefore appellant cannot here get judgment for such items, and Kidder and Burns, being trespassers, are not entitled to recover for expenses in taking out the ore.

The seventh assigns error to the admission of a deed in evidence executed after this suit was brought. In this there was no error. It showed upon its face that it was executed in lieu of a prior deed, which had been lost, and so was admissible in support of the evidence that the purchase of the mining claim had been made prior to any attempted relocation by Kidder and Burns.

The eighth is disposed of by the observation next above.

Finding no error in the record, the cause is affirmed.

On Rehearing.

We have concluded that we were in error in the holding in the original opinion to the effect that this is a transitory cause of action, of which the courts of Texas will take jurisdiction. The pleading, the evidence, and the findings of the trial court conclusively show that plaintiff bottoms its cause of action upon its title to, or better right to possession of, the mining claim from which the ores in question were taken, and that Kidder and Burns were in peaceable and adverse possession of the claim under location made by them, after inquiry of plaintiff’s superintendent whether his company claimed the property, and after being informed that the assessment work required by law had not been done. And it is admitted by plaintiff that its agents were expressly prohibited from trespassing upon the claim by Kidder and Burns.

The jurisdictional question here' presented is not alone title to the claim, but is, were the persons charged with conversion of the ores in adverse peaceable possession of the claim or property at the time of the taking? If so, the action for its value will not lie in a foreign state or jurisdiction, because the title to the realty is directly in issue between the parties, and it is the policy of the law that such direct issue should be tried in the local court; in other words, where the property is situated. 34 Cyc. 1364; 24 A. & E. En. of L. 486; 28 A. & E. En. of L. 654; Wells on Replevin, § 82; Cobby on Replevin, §§ 274-5; Richbourg v. Rose, 53 Fla. 173, 44 South. 69, 125 Am. St. Rep. 1061, 12 Ann. Cas. 279; Powell v. Smith, 2 Watts (Pa.) 126; Harrison v. Hoff, 102 N. C. 126, 9 S. E. 638; Yoakum v. Davis, 162 Mo. App. 253, 144 S. W. 879; Wheeler v. Clark, 69 L. R. A. 732, note; Johnston v. Fish, 105 Cal. 420, 38 Pac. 979; 45 Am. St. Rep. 53; Anderson v. Hap ler, 34 Ill. 436, 85 Am. Dec. 318; Renick v. Boyd, 99 Pa. 555, 44 Am. Rep. 124; Brown v. Caldwell, 10 Serg. & R. (Pa.) 114, 13 Am. Dec. 665; Mather v. Trinity Church, 3 Serg. & R. (Pa.) 509, 8 Am. Dec. 663; Page v. Howler, 28 Cal. 605; Pennybecker v. McDougal, 46 Cal. 661; Lehigh Zinc & Iron Co. v. New Jersey Zinc & Iron Co., 55 N. J. Law, 350, 26 Atl. 920; Id. (Err. & App.) 28 Atl. 79; Cooper v. Watson, 73 Ala. 255; Leatherwood v. Sullivan, 81 Ala. 464, 1 South. 718; Adler v. Prestwood, 122 Ala. 374, 24 South. 999; Brothers v. Hurdle, 32 N. C. 490, 51 Am. Dec. 400; Rathbone v. Boyd, 30 Kan. 485, 2 Pac. 664; Caldwell v. Custard, 7 Kan. 303; Barnhart v. Ford, 37 Kan. 520, 15 Pac. 542; Lehman v. Kellerman, 65 Pa. 489. The rule announced in the opinion applies to naked trespassers only.

Having concluded that the courts of Texas will not take Jurisdiction of this action under the facts, it must be dismissed, and it is so ordered.
      <&wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes