Volume 191 — South Western Reporter

W. Walling, Special Judge.' Suit for injunction by Linton J. Usber and others against the Gity of Aransas Pass and others. Judgment for plaintiffs, and the City of Aransas Pass appeals.

T. Eyttleton, Judge. Action of trespass to try title by Gip Gibson and others against Jim Cochran. Judgment for plaintiffs Gibson, and defendant appeals. This was a suit of trespass to try title, brought by appellees, Gip Gibson and his wife, against appellant. The land sued for was 60 acres of the John Ferguson survey in Harrison county.

<p>Appeal from District Court, Bowie County; H. F. O’Neal, Judge.</p> <p>Action by R. G. McMichael against the St. Louis Southwestern Railway Company, of Texas. From judgment for plaintiff, defendant appeals.</p>

<p>1. Cancellation of Instp.uments <§=>37(5)— Pleading.</p> <p>One seeking judicial annulment of a contract on the ground it is not permitted by law must' allege facts which disclose its unlawful character.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent.'Dig. §§ 68, 74, 77, 79, 80: Dec. Dig. <§=>37(5).]</p> <p>2. Homestead <§=>133 — Mobtgage — Annulment — Pleadin g.</p> <p>In a suit to cancel deeds as a mortgage upon homestead, it was for plaintiff to allege facts showing the mortgage was one not permitted hy the constitutional provision on that subject (Const, art. 16, § 50).</p> <p>[Ed. Note. — For other cases, see Homestead, Dec. Dig. <§=>133.]</p> <p>3. Bills And Notes <§=>112 — Validity—In-cumbrance.-' ‘ '</p> <p>'/•’Notes -for which the consideration was the principal and interest paid by the payee on the purchase-money debt on the maker’s homestead and for moriey and material furnished to make improvements on the homestead prior to the date of the nótess were not invalid, although the effort of the parties to create a lien upon the homestead for, the entire debt" evidenced by the notes was ineffectual' because a part. of the redi 'consideration was something for which the homestead could not be incumbered; a mortgage upon a homestead not being an -immoral contract nor one which violates any penal statute.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 222; Dec. Dig. <§¿=>112.]</p> <p>4. Homestead <3=396 — Incumbrance — Rights of Mortgagees.</p> <p>' To-the extent that the consideration expressed in notes secured by mortgage on a homestead represents the original purchase-money debt due on the homestead, they express a valid lien on the homestead.</p> <p>[Ed. Noté — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. <3=396.]</p> <p>5. Subrogation @=323(6) — Payment of Debt —Lien on Homestead.</p> <p>• One paying for the vendee the purchase money due upon a homestead takes by an equitable assignment, if not by an actual transfer, the debt which he discharges, and is subrogated to the lien of the vendor.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. § 64; Dec. Dig. <§=>23 (6).]</p> <p>6. Homestead @=>96 — Liens—Renewal.</p> <p>If the debt owed to one for his payment of the purchase money on a homestead is extended by giving him- new notes, the old lien may be perpetuated without loss of validity.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. .Dig. §§ 147-153; Dec. Dig. @=>9&]</p> <p>7. Subrogation @=>41(8) — Incumbrance — Foreclosure — J ud gment.</p> <p>- Where at time of execution of notes for $3,-000 secured by mortgage on maker’s homestead there was due to payees $1,600, the balance of what they had previously paid for the maker upon his purchase-money notes for the homestead, the páyees, in suit to enforce the notes, were entitled to judgment foreclosing the vendor’s lien for $1,600, together with the interest and attorney’s fees stipulated in the original purchase-money notes.</p> <p>,[Ed, Note. — For-ot,her cases, see Subrogation, Cent. Dig. § 117; Dec. Dig. @=>41(8).]</p> <p>8. Homestead <§=>96 — Mortgage—Oonsider- -- ation — Vendor’s Lien. ' • .</p> <p>Where- the consideration for a‘mortgage on a homestead was in part the balance of the original purchase money, the validity of such mortgage to the extent that it represented such balance was not affected by change in the form of the obligation.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. <3=396.]</p> <p>9. Homestead @=>96 — Lien for Improve- • ments-. • • •</p> <p>Under Const, art. 16, § 50, providing that' no mortgage on the .homestead for improvements shall be valid" unless for work and labor contracted for in writing consented to by the wife, that part of a mortgage which represented money and material furnished for improvements put- on the premises after the homestead right Had attached and prior to the mortgage was not a valid lien for such improvements, notwithstanding the inortgagees were holders of the vendor’s lien on the homestead when such improvements were'made, since this did'not make them the real owners of the property at that time; for, although- their legal title was. superior, the real beneficial owner was the vendee.</p> <p>.[Ed. Note — For. other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. <§=>96.]</p>

<p>Appeal from Wheeler County Court; M. M. Miller, Judge.</p> <p>Action by T. N. Pike against Lewis Arnold. •Judgment for plaintiff, and defendant appeals.</p>

<p>1. CONTRACTS <&wkey;346(12) — Pleading—Proof.</p> <p>One cannot plead an express contract and recover upon proof of facts which show an implied contract, nor plead an express contract to pay a fixed sum or specified commodity and recover what the services were reasonably worth, where there has been only a breach in the stipulation of payment.</p> <p>[Ed. Note. — For other eases, see Contracts, Cent. Dig. § 1748; Dec. Dig. <&wkey;>346(12).]</p> <p>2. Wills &wkey;>68 — Contract to Devise — Pleading — Petition—Construction.</p> <p>In an action against the estate of a decedent, a petition alleging an express agreement by the decedent to devise to plaintiff 100 acres of land in consideration of personal services to be rendered by the plaintiff, and the rendering of such services by the plaintiff, with no alternative count, stated a suit upon an express contract.</p> <p>[Ed. Note. — For other cases, see Wills, Cent Dig. §§ 178-182; Dec. Dig. &wkey;68.]</p> <p>3. Wills <&wkey;63 — Contract to Make Bequest — Construction.</p> <p>Contracts to pay for services rendered by a testamentary bequest of money are subject to the same rules of construction as applicable to contracts generally.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 171; Dee. Dig. t&wkey;63.]</p> <p>4. Frauds, Statute of <&wkey;75 — Contract to Devise Land.</p> <p>The provision of the statute of frauds requiring contracts for the conveyance of real estate to be in writing includes contracts to devise land which to be enforceable must conform to all the legal requirements essential to a contract of conveyance inter vivos.</p> <p>[Ed, Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 132; Dec. Dig. t&wkey;> 75.]</p> <p>5. Frauds, Statute of <&wkey;137 — Contract to Devise Land — Part Performance — Services.</p> <p>The fact that plaintiff performed' personal services for the deceased is not such an execution or part performance as would take a contract to devise land in payment therefor out of the statute of frauds, since it amounts to no more than the payment of the purchase money.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 301-326; Dec. Dig. &wkey;137.]</p> <p>6. Wills <§=>68 — 'Contract to Devise Land —Breach—Damages.</p> <p>The measure of damages for the breach of a contract to devise land in payment for personal services is the same as for breach of contract to convey which ordinarily is the value of the land to which the contract related.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 178-182; Dec. Dig. @=68.]</p> <p>7. Wills @=68 — Contract to Devise — Pleading — Proof.</p> <p>In an action against the estate of a decedent, where the petition did not state whether an alleged contract to devise land in payment for personal services to be rendered was written or oral, plaintiff could prove a written contract.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 178-182; Dec. Dig. @=68.]</p> <p>8. Wills @=58(2) — Contracts to Devise Land — Evidence.</p> <p>In an action against the estate of a decedent, evidence held insufficient to establish an alleged express agreement on the part of decedent to devise land to plaintiff in consideration of personal services to be rendered during the lifetime of decedent.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 165; Dec. Dig. @=58(2).]</p> <p>9. Wills @=58(2) — Contracts to Devise Land — Evidence.</p> <p>Courts are disposed to require more satisfactory evidence to establish agreements to devise land in consideration of personal services than is usually accepted as sufficient proof of contracts generally.</p> <p>[Ed. Note. — For other eases, see Wills, Cent. Dig. § 165; Dec. Dig. @=58(2).]</p> <p>On Motion for Rehearing.</p> <p>10. Executors and Administrators @=221 (4) — Personal Services — Proof.</p> <p>In an action against the estate of decedent, evidence that personal services rendered by plaintiff during the lifetime of decedent were not rendered gratuitously, together with evidence of their value, would support a judgment for compensation for such services.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 903, 903½, 1872-1874, 1876; Dec. Dig. @=221(4).]</p> <p>11. Executors and Administrators @= 437(3) — Limitations—Actions Against Decedent’s Estate — Implied Contract for Personal Services.</p> <p>Where personal services are rendered during the lifetime of a decedent without express agreement of any kind, the bar of limitations would be determined by the law applicable to claims generally against the estates of deceased persons.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1744-1747, 1764; Dec. Dig. @=437(3).]</p> <p>12. Limitation of Actions @=46(5) — Accrual of Cause of Action — Contract to Pat for Services bt Will.</p> <p>Where personal services are rendered during the lifetime of a decedent under an express contract to pay for the services by will, without specifying what the compensation is to be, the bar of limitations does not begin until after the death of decedent.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 244; Dec. Dig. @= 46(5).]</p> <p>13. Witnesses @=159(9) — Transactions with a Decedent — Services.</p> <p>In an action against the estate of decedent on an alleged implied contract for personal services, plaintiff may testify as to what he did in the service of decedent when the latter was not present or a party to the transaction.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 676; Dec. Dig. @=159(9).]</p>

<p>1. Appeal and Eeeoe <@=3743(1) — Assignments of Eeeoe.</p> <p>An assignment of error, not supported by a statement from the record as required by the rules, need not be considered on appeal.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 2999; Dec. Dig. <@=>743(1).]</p> <p>2. Judgment <@=3256(2) — Conformity to Findings and Proof.</p> <p>If the special findings of the jury, when considered with the facts established by the undisputed evidence, foreclose plaintiff’s right to recover upon the case made by the pleadings, judgment is properly rendered for defendant, although the special findings do not dispose of all the issues made by the pleadings and evidence.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 447; Dec. Dig. <@=>256(2).]</p> <p>3. Caeriers <@=>355 — Passengers — Duty to Produce Ticket — Ejection.</p> <p>Failure of a passenger to produce ticket or to pay fare when called for justifies ejection from the train, although the conductor knows that the passenger has purchased and lost his ticket, since passage ticketsj being assignable in the absence of restrictive conditions, are good in the hands of any one.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1416-1422; Dec. Dig. <@=>355.]</p> <p>4. Caeriers <@=>355 — Passengers — Refusal to Pay Child’s Fare.</p> <p>Refusal to pay fare for a young child over five years old justifies ejection of the passenger with the child, since the carrier could not put the child off the train and leave him with no one to take care of him.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1416-1422; Dec. Dig. <@=>355.]</p> <p>5. Carriers <@=>358 — Passengers—Ejecting for Failure to Pay Fare — Offer to Pay Fare.</p> <p>When a passenger has failed and refused to produce a ticket or pay fare after having been given a reasonable opportunity to do so and the train is stopped to put him off, his offer to pay fare after the process of ejectment has begun will not render his ejectment unlawful.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1434^-1438; Dec. Dig. <@=>358.]</p> <p>6. Carriers <@=>358 — Passengers—Ejectment —Right to Re-enter Train.</p> <p>A passenger, who has been given opportunity to procure the money to pay his fare before ejectment, has no right to re-enter the train for the purpose of procuring money to pay his' fare.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1434-1438; Dec. Dig. <@=>358.]</p> <p>7. Appeal and Error <§=>1067 — Harmless Error.</p> <p>In action by passenger for damages in being ejected from train for nonpayment of fare, refusal to submit plaintiff’s requested question to the jury whether the conductor, after plaintiff had been ejected, refused to permit her to reenter the train for the purpose of procuring money from another with which to pay her fare was not prejudicial, where it appeared that after such ejectment she procured money from another, and took an interurban car to her destination without suffering appreciable delay.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. <§=>1067; Trial, Cent. Dig. § 475.]</p> <p>8. Trial <§=>314(1) — Coercing Agreement oe Jury.</p> <p>A court’s statement to a jury, reporting, after a day’s deliberation, without verdict, that it had taken a long time to try the case and had been expensive, and that it was their duty, if possible, to get together on the issues, was not error as calculated to cause the members of the jury to surrender their convictions and render an improper verdict.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 472, 473, 747; Dee. Dig. <§=>314(1).]</p> <p>On Motion for Rehearing.</p> <p>9. Carriers <§=>385 — Passengers — Ejecting — Special Issues.</p> <p>Where the evidence was undisputed that a train was stopped and a passenger ejected for failure to pay fare at the station where the train usually stopped, it was not error to refuse to submit to the jury for plaintiff the question whether defendant’s servants rendered the plaintiff and her children such assistance and accommodation as was required by defendant’s rules and the circumstances of the case.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1501; Dec. Dig. <§=>385.]</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Action by Clark Pease and others against J. J. Randle and others. Decree for defendants, and complainants appeal.</p>

<p>1. Bridges <&wkey;27 — Action eoe Injuries — Evidence.</p> <p>Where similar conditions are not shown to exist in two streams, evidence that a bridge spanning another stream had always withstood floods was not admissible in an action by a county for damages to its bridge caused by failure of railway company’s bridge to withstand flood.</p> <p>[Ed. Note. — For other cases, see Bridges, Cent. Dig. §§ 7, 8; Dec. Dig. &wkey;>27.]</p> <p>2. Bridges <&wkey;27 — Action for Injuries — Evidence:</p> <p>Evidence that bridges spanning the same stream below and above the one in question withstood floods, where conditions of bridge and water are not shown to be similar, is not admissible to show strength of the bridge in question.</p> <p>[Ed. Note. — For other cases, see Bridges, Cent. Dig. §§ 7, 8; Dec. Dig. <&wkey;>27.]</p> <p>3. Bridges <&wkey;27 — Action for Injuries — Instructions.</p> <p>In an action for failure to maintain substantial bridge which in a flood damaged a county bridge, an instruction limiting the railway company’s duty to constructing culverts, trestles, etc., sufficient to withstand such floods as could be reasonably foreseen from past history, was properly refused, as topography, area, and all other relevant facts should be considered.</p> <p>[Ed. Note. — For other cases, see Bridges, Cent. Dig. §§ 7, 8; Dec. Dig. <&wkey;27.]</p> <p>4. Bridges <&wkey;27 — Conflicting Special Findings.</p> <p>In an action against a railway company for failure to maintain suitable bridge which in a flood damaged county bridge, special findings that the flood was unprecedented, that it was the proximate cause of the washing away of the railway bridge, but that the railway company could have reasonably anticipated the flood, were in conflict, and no judgment could be rendered thereon.</p> <p>[Ed. Note. — For other cases, see Bridges, Cent. Dig. §§ 7, 8; Dec. Dig. 4&wkey;27.]</p>

N. Denton, Judge. Action by B. G. McKie against the Gulf, Colorado & Santa F'é Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and judgment rendered. On motion for rehearing.

<p>1. Appeal and Error <§=*767(1) — Briefs — Failure to Comply with Rules.</p> <p>Where appellant’s brief was not prepared according to Courts of Civil Appeals Rules, in that it contained and referred to no assignments of error and its propositions were too general and not followed by sufficient statement of proceedings, it will be stricken from the record.</p> <p>[Ed. Note.- — For other cases, see Appeal and Error, Dec. Dig. <⅜=767(1).]</p> <p>2. Sheriffs and Constables ⅞⅜=>170 — Release of Property on Defective Bond— Liability.</p> <p>Where a sheriff released attached goods upon the filing of a defective replevin bond and the goods were later destroyed by fire and defendant was otherwise insolvent, the sheriff and his bondsmen will be liable for the amount of the debt and 10 per cent, thereof as statutory damages.</p> <p>[Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 409-413; Dec. Dig. <®=*170.]</p>

<p>Dismissal and Nonsuit <g=wl9(l) — Dismissal in Vacation.</p> <p>Rev. St. art 1898, provides that plaintiff may dismiss his suit in vacation upon the payment of all costs if defendant has not answered. Article 1899 provides that plaintiff may be allowed to discontinue his suit as to one or more defendants when such discontinuance will not work to the injury 'of the other defendants. Article 1955 permits taking of nonsuit at trial, but it shall not prejudice the rights of the adverse party. Article 1900 provides that if the defendant has filed a counterclaim, before discontinuance by plaintiff, defendant may proceed to trial on such counterclaim. Article 7111 provides that, where a sequestration case is decided against plaintiff, defendant is entitled to judgment on the replevy bond, no answer being required. Held, that though plaintiff in sequestration, after obtaining the property, dismissed the suit during vacation, defendant was entitled to have all the issues settled and to proceed for affirmative relief in the original suit, though he filed no answer.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. § 33; Dec. Dig. <§=>19(1).]</p>

Error from Bexar County Court for Civil Cases; John H.'Clark, Judge. Suit by James T. Duffie and others against J. H. Strickland and the Stewart Title Guaranty Company. Judgment for plaintiff in the county court modifying a judgment of- the justice court for- plaintiff, and J. H. ’ Strickland brings error.

<p>1. Partition <&wkey;94(l) — Record — Nunc Pro Tunc Entry — Defense.</p> <p>Where the report of commissioners appointed by the probate court to partition and distribute land was not recorded as directed by law, the filing and recordation of the report under a nunc pro tune order secured nearly 50 years after the report was made did not add any legal force to the action theretofore had in the probate court.</p> <p>[Ed. Note. — Eor other eases, see Partition, Cent. Dig. §§ 287-293; Dec. Dig. &wkey;94(l).)</p> <p>2. Partition c&wkey;o — Irregularities—Ratification.</p> <p>In an action of trespass to try title, evidence held to show that a partition of the land by commissioners appointed by tbe probate court nearly 50 years before, irregular because the commissioner’s report was not filed and recorded as required by law, has been recognized and ratified by the interested parties by deeds and acts of ownership.</p> <p>[Ed. Note. — Eor other cases, see Partition, Cent. Dig. §§ 13-17; Dec. Dig. <&wkey;5.]</p> <p>3. Partition @=»5 — Defective Proceedings —Effect of Ratification.</p> <p>Where the interested parties for nearly 50 years recognized and ratified partition of land irregular because the report of the commissioners appointed by the probate court was not filed and recorded as required by law, such .conduct on their part established the equivalent of an oral partition of the land.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 13-17; Dec. Dig. &wkey;5.]</p> <p>4. Partition <&wkey;5 —Oral Partition — Evidence.</p> <p>In an action of trespass to try title, where it was shown that the interested parties had by recognition and ratification of a partition of the land by the probate court, irregular because of a defect in the proceedings, established tbe equivalent of an oral partition, the proceedings of tbe probate court may be examined in connection with such conduct of the parties as evidence of such oral partition.</p> <p>[Ed. Note. — Eor other cases, see Partition, Cent. Dig. §§ 13-17; Dec. Dig. &wkey;>5.]</p> <p>5. Partition <&wkey;5 — Collateral Attack. -</p> <p>Where the interested parties had by recogni-' tion and- ratification of a defective partition made by the probate court established the equivalent of an oral partition, such proceedings of the probate court and actions of the parties are not, after nearly 50 years, subject to collateral attack.</p> <p>[Ed. Note. — Eor other cases, see Partition, Cent. Dig. §§ 13-17; Dec. Dig. &wkey;5.]</p>

<p>Abatement and Revival <&wkey;16 — Pendency oe OTHER Action — Identity of Issues.</p> <p>Where one party had previously sued the other to determine title to certain lands, and judgment had been rendered which was appealed from, and pending appeal the other party entered upon the lands to cut timber therefrom, the other claimant was not entitled to injunction to restrain cutting such timber; the court having no jurisdiction in view of submission of the question of title in the prior case.</p> <p>[Ed. Note. — Por other eases, see Abatement and Revival, Cent. Dig. §§ 72, 118-122; Dec. Dig. &wkey;16.]</p>

<p>Appeal from District Court, Angelina County ; L. D. Guinn, Judge.</p> <p>Action by Mrs: W. R. Jordan against the Home Benefit Association of Angelina County. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Property <&wkey; 10 — Seisin — Constructive Possession.</p> <p>Land, not in actual possession of any one, is deemed to be in the constructive possession of the legal owner, by virtue of his title.</p> <p>[Ed. Note. — For other cases, see Property, Dec. Dig. &wkey;»10.]</p> <p>2. Adverse Possession <5&wkey; 100(1) — Extent oe Claim.</p> <p>One claiming title by adverse possession, but not holding under color of title, acquires no title to any land except that which is in actual possession, and, under the 10-year statute of limitations, providing its requisites have been met, to 160 acres.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 547; Dec. Dig. &wkey;>100(l).]</p> <p>3. Adverse Possession <&wkey;100(l) — Extent op Claim.</p> <p>Generally, where a person enters into the occupancy of premises under color of title thereto, his possession is not considered as confined to the portion in his actual occupancy, but his possession is deemed to embrace all the land covered by the instrument under which he claims, provided no other person is in the actual occupation of the part not actually occupied by him.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 547; Dec. Dig. <&wkey;100(l).]</p> <p>4. Adverse Possession <&wkey;100(l) — Extent op Claim.</p> <p>Actual possession of part of premises under color of title will not draw to it constructive possession of the balance, unless such color of title is also accompanied by claim of title coextensive with the boundaries of the conveyance.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 547; Dec. Dig. <&wkey;>100(l).]</p> <p>5. Evidence <&wkey;273(2) — Declarations—Possession — Extent of Claim.</p> <p>Constructive possession may always be restricted by the acts and declarations of the occupant, indicating that he does not make his claim coextensive with the boundaries of his color of title.</p> <p>[Ed. Note — For other cases, see Evidence, Cent. Dig. §§ 1111, 1112; Dec. Dig. &wkey;273(2).]</p> <p>6. Tenancy in Common <&wkey;14 — Disseisin-Conveyance by One Cotenant — Adverse Possession — Color of Title.</p> <p>Where one tenant in common assumes to convey the entire estate and does convey it by metes and bounds, the deed will give color of title to the whole tract, and entry by the purchaser thereunder, claiming title to the whole, will operate as an actual ouster and disseisin of the cotenant.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 30-41; Dec. Dig. <&wkey;></p> <p>7. Adverse Possession &wkey;>100(6) — Extent of Claim — Possession by Tenant.</p> <p>Within the rule that actual possession of part of a tract of land under color of title gives constructive possession to the extent of the boundaries designated in the conveyance, the possession of a part of a tract of land by a tenant of the holder of color of title, who has been put into possession under a lease which does not restrict his possession to any definite part of the tract, will give the lessor constructive possession coextensive with the boundaries of the conveyance, since the possession of the tenant inures to the benefit of the lessor.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 563-566, 568-571, 573; Dee. Dig. &wkey;J100(6).]</p> <p>8. Adverse Possession <&wkey; 100(4) — Extent of .Claim by Tenant.</p> <p>Possession by a tenant of a part of a tract under an instrument describing it specifically by metes and bounds does not establish his landlord’s constructive possession to the whole tract, but only to the tract described.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 557-559; Dec. Dig. <&wkey;> 100(4).]</p> <p>9. Adverse Possession <&wkey;71(2) — Color of Title — Defectively Acknowledged Deed —“Duly Registered Deed.”</p> <p>The five-year statute of limitations cannot be based on a defectively acknowledged married woman’s deed; it not having the character of a duly registered deed.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 417-421, 424-426, 428; Dec. Dig. &wkey;>71(2)J</p> <p>10. Tenancy in Common <&wkey;14 — Disseisin-Adverse Possession — Notice to Cotenant —Recorded Deed.</p> <p>Recorded deed to defendant of an entire tract, and instruments in defendant’s chain of title, in themselves undertaking in good faith to convey the entire tract of land to defendant’s grantor, including the interest of plaintiffs, constituted notice to such plaintiffs, who were cotenants of defendant’s grantor, that defendant was asserting adverse claim to plaintiff’s interest.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 30-41; Dee. Dig. <&wkey;> 14.]</p> <p>11. Adverse Possession <&wkey;31 — Notice of Adverse Claim.</p> <p>No real owner ought to be deprived of land under the statute of limitations unless he has actual notice of the adverse claim thereof, or constructive notice based upon the open, hostile, and notorious assertion of claim and possession by the adverse claimant.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 128-133; Dec. Dig. &wkey;> 31.]</p> <p>12. Tenancy in Common <&wkey;15(2) — Adverse Possession — Notice to C'otenant — “Watching Over.”</p> <p>Recorded deeds to a tract of land with possession by tenant of last grantee for more than 5 years under a verbal agreement, the landlord in the meantime claiming the land and paying the taxes thereon, the tenant testifying that he “watched over the entire tract,” was sufficient notice to cotenants of the immediate grantor to establish title under tbe five-year statute of limitations, since “watching over” anything is to be construed as preserving, preventing spoliation, encroachments, or trespasses, and having the right of and exercising control or dominion over anything.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 43; Dec. Dig. <&wkey;>15(2).]</p>

<p>Appeal from District Court, Newton County ; A. E. Davis, Judge.</p> <p>Action by Isabella Hughes and another against T. M. Hughes and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Adverse Possession <3=»110(2) — Statute oe Limitations — Pleading—Complaint.</p> <p>To authorize judgment for one claiming under the ten-year statute of limitations a part of a larger survey, the land recovered need not be specifically described in the pleadings by metes and bounds, but under appropriate pleadings the adverse claimants may recover an undivided part of a larger tract.</p> <p>[Ed. Note. — For other eases, see Adverse Possession. Cent. Dig. §§ 638, 639, 642; Dec. Dig. <3=110 (2).]</p> <p>2. Adverse Possession <3=^114(2) — Ten-Year Statute op Limitations — Evidence.</p> <p>To authorize judgment for one claiming under the ten-year statute of limitations a part of a larger survey, the evidence need not show possession and adverse claim to a specified tract.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 685, 686; Dec. Dig. <3= 114(2).]</p> <p>3. Trespass to Try Title <®=?47(1) — Judgment — Description oe Land.</p> <p>A judgment in trespass to try title for defendant claiming 160 acres of a larger survey under the ten-year statute of limitations should determine the boundaries of defendant’s land by metes and bounds, either by the appointment of commissioners, or upon the evidence if sufficient.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 69; Dec. Dig. <3=47(1).]</p>

<p>1.' Newspapers <©=>2 — Contract with County — Publication op Delinquent Tax List —Pleading.</p> <p>Where a county contracted to pay a publisher 25 cents per description for publishing the county delinquent tax list, payments to be made as delinquent taxes were paid into the hands of the tax collector, the amount was due and payable within a reasonable time after publication, and, in the publisher’s action, it was not necessary for him to allege that any of the delinquent taxes had been paid to the county.</p> <p>[Ed. Note. — For other cases, see Newspapers, Cent. Dig. §§ 14, 15; Dec. Dig. <©=>2.)</p> <p>2. Newspapers <©=2 — Contract with County-Publication op Delinquent Tax List —Pleading.</p> <p>The amount being due as a matter of law within a reasonable time, the county’s failure to collect the taxes was a fact not necessary to be alleged.</p> <p>[Ed. Note. — For other cases, see Newspapers, Cent. Dig. §§ 14, 15; Dec. Dig. <S=>2.)</p> <p>3. Newspapers <S=2 — Contract with County-Publication op Delinquent Tax List —Remedy op Purchaser — Mandamus.</p> <p>Where the amount due the publisher was payable out of the fund set aside for the current expenses of the county, it having failed to make collection within a reasonable time, the publisher was not required to await the collection of the delinquent taxes, penalties, and costs, nor resort to mandamus proceedings to compel the county officers to collect such taxes.</p> <p>[Ed. Note. — For other cases, see Newspapers, Cent. Dig. §§ 14, 15: Dec. Dig. <©=2.)</p> <p>4. Newspapers <S=>2 — Contract with County-Construction by Parties.</p> <p>The publisher’s act in receiving fees from the collector from time to time as taxes were collected could not be considered a practical construction of the contract with reference to the time of its maturity in his action to recover for publication of the list.</p> <p>[Ed. Note. — For other cases, see Newspapers, Cent. Dig. §§ 14, 15; Dec. Dig. <©=2.)</p> <p>5. Counties <©=>53 — ContractaReformation.</p> <p>Neither the county nor the publisher could have the contract reformed in the district court in accordance with the expressed intention of the parties when it was made, because the commissioners’ court of the county was a court of record, speaking through its minutes, and not by the mouths of its members, and the proper method to reform the contract was to reform its minutes by motion in the court, and not by allegation and proof in another tribunal.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 66-70; Dec. Dig. <©=>53.)</p> <p>6. Newspapers <S=>2 — Contract with County-Estoppel.</p> <p>The publisher of a county’s delinquent tax list of about 14,000 items, pursuant to contract, at 25 cents per description, was not es-topped from claiming the contract price because a reasonable compensation for making the publication was a sum not exceeding $1,000.</p> <p>[Ed. Note. — For other cases, see Newspapers, Cent. Dig. §§ 14, 15; Dec. Dig. <©=>2.)</p> <p>7. Counties <©=>113(4)— Delinquent Tax List — Publication—Contract por — Statutes.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7687, provides for the publication of delinquent tax lists by counties and that a fee of 25 cents shall be taxed against each tract or parcel of land advertised, which when collected shall be paid into the county treasury. Article 7691 defines the fees which shall be collected by the several county officers in event of suit, and provides that, where two or more unimproved town lots shall belong to the same person, and shall be included in the same suit, court costs shall be taxed against all such lots collectively. Held, that the commissioners’ court of a county had the right to contract to pay for publication of its delinquent tax list 25 cents per description, and that the publisher’s recovery against the county was not limited by the provision of article 7691; it having no bearing on the matter oí contract for publishing the delinquency list.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 174, 178; Dec. Dig. <©==>113(4).)</p> <p>8. Newspapers <S=>2 — Contract with County-Publication op Delinquent Tax List —Action por Price — Proop.</p> <p>In an action against a county by the publisher of its delinquent tax list whom the county had contracted to pay 25 cents per description, payment to be made as delinquent taxes were paid the tax collector, proof of the _fact that by the exercise of reasonable diligence the taxes could have been collected was not essential.</p> <p>[Ed. Note. — For other cases, see Newspapers, Cent. Dig. §§ 14, 15; Dee. Dig. <S=>2.)</p> <p>9. Contracts <©=>176(10) — Time por Performance — Question op Law and Fact.</p> <p>The general rule is that it is a mixed question of law and fact as to what constitutes a reasonable time for the performance of a contract when no time is fixed by its terms.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 956, 979; Dec. Dig. <©=176(10).}</p> <p>10. Evidence <©=>41 — Judicial Notice.</p> <p>The court judicially knows that there are four terms of the district court held in Potter county annually, and that suits for the collection of delinquent taxes have precedence upon the trial of causes, when executions could have been issued on judgments, and when sales could have been made.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 56-60; Dec. Dig. <©=>41.)</p> <p>11. Action <©=>G2 — Premature Filing — Effect op Amendment.</p> <p>Where a suit was prematurely brought, but plaintiff filed an amended petition two days after the cause of action matured, it was the duty of the trial court to tax all costs prior to the filing of the amendment to plaintiff, and to proceed to judgment, rather than to dismiss the case because originally filed prematurely.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. ■§§ 718-721, 723; Dec. Dig. <®=>62.)</p> <p>12. Counties <©=>216 — Rejection op Claim Before Maturity — Statute.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1366, providing that no county shall be sued unless thq claim upon which such suit is founded shall have first been presented to the county commissioners’ court for allowance, and such court shall have neglected or refused to audit and allow the same or any part thereof, a claim against a county for publishing its delinquent tax list could be presented to the county commissioners’ court for allowance before maturity, and could be allowed by the court as a valid claim and paid at a later date when it matured, so that its rejection entitled the claimant to file suit before maturity under the same rule.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 346; Dec. Dig. <⅞=⅛16.]</p>

W. Nicholson, Judge. Suit by J. E. Frazier against the Ft. Worth & Denver City Railway Company. Judgment for actual damages and for a penalty, and the defendant appeals from the judgment imposing a penalty.

<p>Appeal from District Court, Tarrant County; Marain H. Brown, Judge.</p> <p>Suit by C. W. Piper against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Justices of the Peace <&wkey;80(3), 91(1)— Procedure — Pleadings—Sufficiency.</p> <p>Since under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2326, justice court’s pleadings are oral, it is sufficient if the plaintiff lodges a claim or demand with the justice and the citation states the nature of the demand, as required under article 2322.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent Dig. §§ 253, 307-309, 323; Dec. Dig. <&wkey;>80(3), 91(1).]</p> <p>2. Justices of the Peace &wkey;>90 — Procedure —¿leadings—Sufficiency.</p> <p>In a justice court action, if from all that is stated orally or written the court can ascertain what rights the plaintiff asserts or what defense the defendant interposes, the pleading is sufficient.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 306; Dec. Dig. <Ss=>90.]</p> <p>3. Justices of the Peace &wkey;>91(l) — Pleading-Sufficiency.</p> <p>A demand in justice court noted on the docket “upon claim for $92.02, * * * dated May 30, 1913, * * * due now,” when taken in connection with the citation which recited that the nature of plaintiff’s demand was that two cars of ties were shipped over defendant’s line of road, in certain cars; that plaintiffs sold said ties to defendant lumber company and shipped them to a third person, and they were received for shipment by the defendant railroad; that in the shipment plaintiffs allege a loss of 214 ties, being of a total value to plaintiffs of $92.02, for which these defendants are liable to plaintiffs, and for which this suit is brought — is a sufficient pleading of the demand in a justice court.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 307-309, 323; Dec. Dig. &wkey;91(l).]</p> <p>4. Justices of the Peace &wkey;>183(l) — Appeal —Presumptions,</p> <p>Where the judgment entered stated that all matters of fact and law, the introduction of evidence, and the argument of counsel were submitted to the justice court, every presumption will be indulged to support the judgment, such recitals being' decisive.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 705-710; Dec. Dig. <&wkey;> 183(1).]</p> <p>5. Justices of the Peace <&wkey;>119(l) — Judgment — Validity.</p> <p>Where a justice of the peace has jurisdiction of the parties and the subject-matter, his judgment is not void.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 373, 376; Dec. Dig. <&wkey;>119(l).]</p> <p>On Motion for Rehearing.</p> <p>6. Justices of the Peaoe &wkey;>174(17) — Appeal-Amendment of Pleadings — Prejudice.</p> <p>Where, on appeal from a judgment of a justice, the defendant claimed that the pleadings were insufficient, and plaintiff was allowed to amend merely to make explicit the ground of recovery, there was no prejudice to the defendant by reason of irregularities in pleading in the justice court.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 682; Dec. Dig. <&wkey;> 174(17).]</p>

<p>1. Waters and Water Courses §=>179(4)— Action for Overflowing Land — Evidence.</p> <p>In action for overflowing of lands caused by reservoir construction, evidence held sufficient to show the market value of the land immediately before and immediately after the construction of the dam.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 250, 263; Dec. Dig. <§=>179(4).]</p> <p>2. Waters and Water Courses §=>179(4)— Evidence.</p> <p>Absolute certainty is not required in proving the amount of damages, in actions for injuries to land from overflow, but it is sufficient if such proof enables the jury to assess the damages with reasonable certainty.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 250, 263; Dec. Dig. <§=>179(4).]</p> <p>3. Evidence <§=>571(7) — Opinion Evidence-Experts.</p> <p>In an action for damage to property, the jury is not confined to the estimates of value of such property by experts, where facts are established from which the jury may reach a reasonable conclusion tested by common knowledge and experience.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2397; Dec. Dig. <§=>571(7).]</p> <p>4. Waters and Water Courses §=>178(2)— Overflowing Land — Damages.</p> <p>In action for damages to farm by dam causing overflow of part of it, the damages recoverable are the difference between the market value of the entire tract immediately before and immediately after the dam construction.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 255; Dec. Dig. §=>178(2); Damages, Cent. Dig. § 276½.]</p> <p>5. Evidence §=>5(2) — Judicial Knowledge-Value of Farm Lands.</p> <p>It is matter of common knowledge that a reasonable amount of pasture land when sold in connection with a farm has a higher market value than when sold otherwise.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 4; Dee. Dig. §=>5(2).]</p> <p>6. Waters and Water Courses §=>179(3)— Injury to Land — Damages.</p> <p>In determining the damages to land from construction of a dam causing its overflow, the plaintiff can have the jury consider the prior market value of his land for any purpose to which it was adapted and for which he desired to use it.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 249, 263; Dec. Dig. §=>179(3).]</p>

C, Buford, Judge. Trespass to try title by M. J. Whitfield and others against G. W. La Grone and others. From a judgment for defendants, plaintiffs appeal.

<p>1. Appeal and Error &wkey;al067 — Review — Harmless Error — Refusal of Instruction.</p> <p>In an action for personal injuries to a servant, a refusal to give defendant’s requested instruction, in which the converse of plaintiff’s contention of negligence was submitted, where other instructions did not cover the point, in view of the fact that the evidence of negligence was meager, was reversible error.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. &wkey;>1067; Trial, Cent. Dig. § 475.]</p> <p>2. Damages <&wkey;46 — Expenses Incurred — Payment.</p> <p>/ The fact that plaintiff had not paid his doctor’s bill at the time of trial will not preclude proof of reasonable value of such services as a part of his damages, if plaintiff was legally liable for such expenses. \</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 99, 251; Dee. Dig. <&wkey;>46.]</p> <p>3. Damages &wkey;j50 — Mental Suffering.</p> <p>In an action for personal injuries, plaintiff could recover damages for mental suffering, although there was no proof that his injuries resulted in permanent and continued disability.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 100, 255, 257-259; Dec. Dig. &wkey; 50.]</p> <p>4. Negligence <&wkey;119(6) — Contributory Negligence Aggravating Injury — Pleading.</p> <p>Although evidence tended to show contributory negligence of plaintiff in failing to properly care for his injury, which aggravated it, the defendant could not invoke this as a defense, where contributory negligence was not pleaded.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 202, 210; Dec. Dig. <&wkey; 119(6).]</p> <p>5. Appeal and Error &wkey;>263(l) — Necessity of Exceptions.</p> <p>Where, on the trial, defendant did not take exceptions to the court’s charge, it will not be reviewed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1516; Dec. Dig. &wkey;>263(l).]</p>

<p>Appeal from District Court, Wichita County; E. W. Nicholson, Judge.</p> <p>W. E. Vann was convicted of forgery and appeals.</p>