Volume 226 — South Western Reporter

<p>Venue &wkey;>22( I) — Though action as to nonresident could he brought in county of plaintiff’s residence, privilege of resident codefendants is not destroyed.</p> <p>Where plaintiff, who purchased an automobile from defendants residing in Texas, surrendered possession to a nonresident searching for the car, and then brought sequestration proceedings against such nonresident and the resident sellers, plaintiff cannot, because Rev. St. art. 1830, exceptions 2 and 3, allowed the action as to the nonresident to bo brought in the county of his residence, maintain the action as to the resident defendants in such county; the county of plaintiff’s residence not being their residence, for there is no exception destroying the privilege of codefendants in case one of them is not a resident, as in case of residents.</p>

<p>Appeal from District Court, Robertson County; W. C. Davis, Judge.</p> <p>Irvin Hood was convicted of assault to murder, and lie appeals.</p>

<p>Criminal law <&wkey;i 122(4) — In absence of showing refusal of charge was erroneous, court must hold no error presented.</p> <p>Where the special charge which was refused defendant prosecuted for murder related to a matter of testimony, and the Court of Criminal Appeals is not informed of facts to show it was error to refuse such charge, the court is compelled to hold that the refusal presents nothing justifying reversal.</p>

<p>Appeal from District Court, Johnson County; O. L. Lockett, Judge.</p> <p>J. C. Pior, alias A. H. Richardson, was convicted of forgery, and he appeals.</p>

<p>1. Criminal law &wkey;>l097(4) — Exclusion of evidence not shown to be erroneous in absence of statement of facts.</p> <p>In the absence of a statement of facts, a bill of exceptions taken to the refusal of the court to permit accused to prove by his own testimony that his reputation for truth and veracity was good or permit him to give like testimony with reference to general reputation for honesty and fair dealing and with reference to being a peaceable and law-abiding man did not show error, even upon the issue of suspended sentence.</p> <p>2. Criminal law <&wkey;>982 — That accused has not previously been convicted of felony essential element of suspended statute.</p> <p>An essential element in the suspended sentence statute is that which requires that there be proof that the accused has not previously been convicted of a felony.</p> <p>3. Criminal law &wkey;>982 — Honorable army discharge admissible on issue of suspended sentence.</p> <p>An honorable discharge from service in the war with Germany signed by United States officers under whose command accused served is admissible in a proper case upon the issue of suspended sentence.</p> <p>4. Criminal law 1177 — 'Exclusion of evidence on issue of suspended sentence not prejudicial where verdict assessed more than five years.</p> <p>Refusal of court to permit evidence on the issue of suspended sentence could not have harmed an accused, where the verdict assessed imprisonment exceeding five years, a penalty above the term that -would permit the suspended sentence law to operate, under Vernon’s Ann. Code Cr,;Proe. 1916, art. 865C.</p> <p>5.Criminal law <&wkey;l 144(13) — Verdict assumed supported by sufficient evidence in absence of statement of facts.</p> <p>In the absence of a statement of facts in a criminal case, the appellate court is bound to assume that the verdict is supported by sufficient and competent evidence to justify its rendition.</p>

Denton, Judge. Scire facias proceedings upon a forfeited bail bond by the State against Clemmie Kennedy and others. Judgment for recovery on the bond, and defendants appeal.

E. L. Roy, Judge. Action by W. R. Parsons against the United States Fidelity & Guaranty Company, of Baltimore, Md., and others. From a judgment against the nam'ed defendant, it appeals, and plaintiff brings cross-appeal.

<p>Appeal from District Court, Martin County ; Chas. Gibbs, Judge.</p> <p>Action by the Pioneer Land & Loan Company of Martin County, Tex., against Charles Ebersol. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Highways &wkey;>9l — County commissioners held proper members of a district board.</p> <p>All the county commissioners of Navarro county were proper members of road board of district No. 1, it appearing that the road district embraced a portion of all the commissioners’ precincts, and as such members were entitled to participate in all of the deliberations and actions of such board.</p> <p>2. Highways c&wkey;95(2)— Handling of funds by road districts lodged exclusively in road boards of such districts.</p> <p>Under the special road law of Navarro county, the discretion with reference to the handling of funds from road bonds of road district No. 1 and road district No. 12 is lodged solely in the road board of such districts, and the road boards of such districts are given exclusive care and management of the expenditure of such funds.</p> <p>3. Highways &wkey;»l05(2)-~District boards held to have right to act with commissioners’ court in construction of state highway.</p> <p>The road boards of district No. 1 and of district No. 12 in Navarro county have the lawful right to act and work in connection with the commissioners’ court of such county and advise with such court looking to the construction of state highway No. 14, federal project No. 58, extending through both of such districts as a unit or a continuous highway, just so long as the road boards of districts Nos. 1 and 12 do not surrender their judgment and discretion to that of the commissioners’ court.</p> <p>4. Highways &wkey;jl05(2)— District boards held to have right to request commissioners’ court jo make application to highway department for federal aid.</p> <p>Road boards of districts Nos. 1 and 12 of Navarro county had the lawful right to request the commissioners’ court of the county to make application to the state highway department for federal aid in the construction of state highway No. 14, federal project No. 58; it appearing that the state highway department required this method of procedure, and such road boards had the right to pledge use of the funds of each of such boards to be utilized in the building of the road in( question in their respective districts.</p> <p>5. Highways <&wkey;l05(2) — Funds of district boards must be expended in own district, but commissioners’ court may supplement funds appropriated.</p> <p>The funds appropriated respectively by road districts No. 1 and road district No. 12 in Navarro county must be expended by the road board of each district within the confines of its own district, but the commissioners’ court can-supplement- such funds to whatever amount is necessary by its resolution to finish the construction of state highway No. 14, federal project No. 58, with the consent of such boards, and such supplemental funds may be expended on any part of the proposed highway in either of such road districts, in the discretion of the commissioners’ court.</p> <p>6. Highways <&wkey;!05(2) — Commissioners’ court cannot pay engineer for construction of state highway out of road district funds.</p> <p>Commissioners’ court of Navarro county cannot contract with or pay the county engineer working on state highway No. 14, federal project No., 58, any of the funds' belonging to road district No. 1 or road district No. 12; but such compensation must be contracted by the road boards respectively as to their own funds.</p> <p>7. Evidence <&wkey;83(4)— Compensation contracted for engineer held not to be anticipated as violating road law.</p> <p>Under orders of road boards in Navarro county under which they are to pay county engineer employed on state highway No. 14, federal project No. 58, 3 per cent, of the amounts apportioned by the boards respectively, totaling §120,000, the court cannot anticipate that in the payment of such per cent, the boards will attempt to violate the provisions of the special road law, wherein the compensation of the county engineer is limited to $3,000 per year for his services in each of such districts respectively.</p> <p>8. Highways &wkey;>l05(2) — County commissioners’ court held to have authority to pledge good faith of county as to maintenance of state highway out of tax funds.</p> <p>The commissioners’ court of Navarro county had legal authority to pledge to the state highway department the good faith of the county to see that state highway No. 14, federal project No. 58, after' being constructed, shall be properly maintained, and such court has the legal right to pledge such maintenance out of the general road tax and the maintenance tax of road district No. 1 and the funds obtained from the automobile tax for this purpose.</p> <p>9. Highways <&wkey;105(2) — County commissioners’ court and district boards held to have right to rescind action and adopt new resolutions to make their prior action clear.</p> <p>The commissioners’ court of Navarro county had the lawful right to rescind its action or resolution theretofore passed concerning state highway No. 14, federal project No. 58, and such court and the road boards of districts Nos. 1 and 12 had each the right and authority to pass and adopt new resolutions necessary to make their action entirely clear as to the orders theretofore passed by such court and such boards.</p> <p>10. Highways &wkey;>!05(2) — County commissioners’ court held to have right to appoint road engineer of state road.</p> <p>Commissioners’ court of Navarro county had the right to appoint a road engineer for the supervision and construction of state highway No. 14, federal project No. 58, it being necessary to do so in order to secure federal aid from the state highway department, although the compensation of such engineer as to the funds of road districts Nos. 1 and 12 must be paid by the road boards of such districts and out of their respective funds.</p>

) , Chas. Gibbs, Judge. Suit by C. G. McCall against J. G. McCas-key. Judgment for plaintiff, defendant’s motion to set aside, the judgment' and to grant a new trial was denied, and defendánt appeals.,,

E. O’Neal, Judge. Suit by James Hubbard against Mrs. Irene Parsons. Judgment for plaintiff, and defendant appeals. This was a suit by appellee as the owner of an undivided one-half thereof against appellant as the owner of the other undivided one-half thereof, to partition 97% acres of the L. M. Rice survey in Bowie county, in which judgment was renderéd for appellee.

<p>Appeal from Guadalupe County Court; J. B. Williams, Judge.</p> <p>Action by L. Fennell against Hugo Troell. Prom judgment entered on verdict for defendant, plaintiff appeals.</p>

<p>Appeal from El Paso County Court at Law; J. M. Deaver, Judge.</p> <p>Suit by E. C. Wade, Jr., against J. P. Slieelian to recover an attorney’s fee. Judgment for defendant, and plaintiff appeals.</p>

O. Beard, Judge. Suit by J. N. George and wife against the Jonesville Oil & Gas Company and others. Erom an order denying temporary injunction, the plaintiffs appeal.

Clark, Judge. Action by I. L. Dingman against Alfred J. Pahl in which defendant filed a cross-action.Judgment for defendant on his cross-action, and plaintiff appeals.

<p>1. Evidence <5&wkey;231 (3) — Admissions of mortgagor as to having stolen the property inad- ' missible against mortgagee.</p> <p>Testimony as to an admission by mortgagor of automobile, subsequent to execution of mortgage and in absence of bona fide mortgagee, that mortgagor had stolen the automobile, held inadmissible against the mortgagee.</p> <p>2. Appeal and error <&wkey;1050(1) — Declaration of mortgagor not binding on bona fide mortgagee held prejudicial to him.</p> <p>In action by bona fide mortgagee to foreclose mortgage on automobile, involving validity of mortgage, admission of testimony as to a declaration by mortgagor, not made in mortgagee’s presence, that he had stolen the automobile, held reversible error.</p>

<p>Appeal from District Court, Lubbock County ; W. R. Spencer, Judge.</p> <p>Suit by E. C. Fain, administrator of the estate of B. P. Hopkins, deceased, against the Security State Bank & Trust Company. Judgment for defendant, and plaintiff appeals.</p>

Proceedings under the Workmen’s Compensation Act by G. T. Hendley against the Midland Bridge Company, the employer, and the Southern Surety Company, insurance carrier. Compensation was awarded by the Industrial Accident Board, and from a judgment re-yersing a denial of an application for payment in a lump sum on claimant’s appeal to the district court the insurance company appeals.

<p>Appeal from Bexar County Court; John H. Clark, Judge.</p> <p>Action by G. Harry Hartwell against C. H. Hodgkinson. Judgment for plaintiff, and defendant appeals.</p>

P. Dohoney, Judge. Trespass to try title by Solomon Liddell and others against J. A. Gordon. Prom a judgment for defendant, plaintiffs appeal. The appellants brought the suit against the appellee in trespass to try title to and for partition of 66 acres of land of the J. K. Howard survey. The plaintiffs alleged that they owned one half and the defendants owned one half undivided interest in the land.

M. Bramlette, Judge. Suit by J. L. Smith and others against J. L. Lancaster and others, as receivers of the Texas & Pacific Railway Company, and the Missouri Pacific Railway Company. Judgment for the plaintiffs against the receivers, and.judgment over in favor of the receivers against the defendant railway company, and the receivers appeal. Appellee Smith was the plaintiff in the court below..

<p>Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.</p> <p>Suit by C. A. Cunningham against Hiram Knox. Erom a judgment overruling defendant’s plea of privilege, he appeals.</p>

F. Singleton, Judge. Suit to try title between Mrs. V. B. Black and others, and C. E. Goolsbee, and others, trustees. Judgment for the latter, and the former appeal.

<p>1. Brokers &wkey;j40 — Express or implied contract for commission necessary to recovery.</p> <p>To recover a commission, a broker must have a contract, express or implied, by' which the seller is obliged to make such payment, and otherwise he cannot recover even if he is the procuring cause of sale.</p> <p>2. Brokers <&wkey;>86(l) — Evidence held to show no express or implied contract to pay commission.</p> <p>In a broker’s action, evidence held to show no express contract to pay commission and not to make a situation where the law would imply a promise to pay.</p> <p>3. Brokers <&wkey;40 — Vendor need not take notice that transactions are conducted for his benefit so as to imply contract to pay.</p> <p>A real estate agent may represent the purchaser as well as vendor, and the latter is not required to take notice that the transaction is being conducted by the agent for his benefit so as to imply a contract to pay commission.</p>

<p>I.Gas <&wkey;l3(6)— Evidence held to show reserved right to shut off supply to industrial consumers not placed on others.</p> <p>In an action to recover from a gas company for discrimination as to rates, facts held to support a contention that industrial consumers were subjected to a contract restriction permitting the shutting off of gas in event of law pressure, not placed upon domestic consumers.</p> <p>2. Gas <&wkey;I4(l) — Plaintiff alleging unlawful discrimination has burden of proof.</p> <p>In an action against a gas company for unlawful discrimination in rates, it devolves upon plaintiffs to produce affirmative proof to support their averments, and they must show a difference in rate, that the conditions under which gas was supplied were substantially the same, or such as to present no good reason for the rate difference.</p> <p>3. Gas &wkey;>l4(l) — Proof of unlawful discrimination insufficient for recovery in absence of proof of overcharge.</p> <p>In an action against a gas company, unlawful discrimination, even if proved, would not justify a judgment for damages for plaintiff in the absence of allegation and proof of an overcharge.</p>

<p>I. Alteration of instruments <&wkey;5(l) — Inclusion of provision in contract for interest made it unenforceable.</p> <p>Where a duplicate contract for purchase of land reciting the purchase price to be “one thousand one hundred dollars, payable fifteen dollars cash in hand and monthly payments of. ten dollars each, until the total amount of $1,100 has been paid,” was altered by placing the words “including interest eight per cent.,” after the words “ten dollars each,” of which alteration the holder had notice, the instrument was in its legal effect a forgery and unenforceable in law.</p> <p>2. Alteration of instruments &wkey;>23 — Recovery may be had on original contract where change is innocent and not material.</p> <p>Recovery may be had on an original contract, where a change is not fraudulently made and hot material, made in good faith in carrying out the intent of the parties.</p>

L. Brachfield, Judge. Suit between the Texas & Pacific Railway Company and J. E. Belcher and others to determine the title and possession of a tract of land. Prom a judgment awarding possession to Belcher, the railway company appeals.

<p>1. Eminent domain <&wkey;!24 — Subsequent increase in value of property does not defeat right to recover for damage thereto.</p> <p>Where the evidence was undisputed that the construction of a switch track and the operation of trains thereon adjacent to plaintiff’s property depreciated its market value at the-time of construction, it is no defense to recovery of such damages that the value of the property had since then increased, along with other property, so that at the time of the trial it was-worth as much as before the construction of the switch.</p> <p>2. Eminent domain &wkey;>l04 — Railroad liable for injuries caused by construction necessary to operation, though not negligent.</p> <p>A railway company is liable to the owner-of adjoining property for injuries to the property caused by discharging water thereon and by the noise and smoke from the trains resulting from the construction of a switch track and-the operation of trains thereon, though such construction was necessary to the operation of the railway as a federal corporation engaged in interstate commerce, and was directed by the federal court, which had appointed a receiver of the railway, and though there was no-evidence that the construction was negligent.</p>

L. Brachfield, Judge. Action hy Oliver Daniels against Pearl Wight, as receiver of the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. The appellee owns a lot with a two-story residence on it in Longview. The lot and house are on the east side of Second street, and the premises adjoin the right of way of the Texas & Pacific Railway Company on the south side.

T. Sluder, Judge. Suit by the Mutual Benefit Department of the Order of Railway Conductors of America to interplead C. S. Phillips and others and Vivian Phillips and others, to determine the ownership of an insurance certificate issued to Charles M. Phillips. Judgment in favor of Vivian Phillips and others, and C. S. Phillips and others appeal.

<p>Appeal from Hopkins County Court; T. J. Tucker, Judge.</p> <p>Suit by James Corley against J. M. Watson, begun in the justice court. Judgment for plaintiff for part of the claim, and plaintiff appealed to the county court, where there was a judgment for plaintiff for a larger sum, and defendant appeals.</p> <p>Appellee’s suit against appellant was commenced in a justice court. It was to recover $96.25 which he claimed appellant owed him as rent for certain land. At the time he commenced the suitj appellee procured the issuance of a distress warrant, which was levied on property belonging to appellant. The trial in the justice court resulted in a judgment for appellee for certain corn grown on the rented premises, worth about $40. Appellee was not satisfied with the judgment and prosecuted an appeal to the county court, where he sought a recovery of the $96.25, and where for the first time he also sought a recovery of $5.10 as the value, he claimed, of certain seed cane he averred he was entitled to as rent.</p> <p>In his answer in the county court appellant denied that he owed appellee anything, and by’ way of a cross-action sought, as he did in' the justice court, to recover $6 which he allied appellee owed him for work and $100 as damages he alleged he suffered as a result of the levy of the distress warrant on his property. The trial in the county court resulted in a judgment in appellee’s favor for $86.35 and foreclosing the lien he claimed on the property levied on by virtue of the distress warrant.</p>

<p>1. Judgment <&wkey;949(5) — Petition not insufficient, where it alleged that prior judgment referred to did not cover the same land.</p> <p>A petition in trespass to try title, alleging the recovery by defendant of a default judgment against plaintiffs in a suit to try title to land having the same lot and block numbers but in a different town, was not insufficient, where it was expressly alleged that the property involved was not the same as that involved "in the prior suit.</p> <p>2. Judgment <&wkey;460(3) — -Count attacking de- , fault judgment, but not alleging facts excusing default, was insufficient.</p> <p>A count in trespass to try title attacking a default judgment rendered- in a prior suit by defendant against plaintiffs was insufficient, where, assuming that it showed a meritorious defense, it alleged no facts excusing plaintiffs from presenting the defense in the prior suit.</p>

Ci Miller, Judge. Suit by John T. Hamic and others against George S. Allison and others. Prom an order overruling defendants’ plea of privilege, de¿ fendants appeal.

<p>Appeal and error &wkey;M002 — Question of existence of contract, whereon evidence conflicting, for jury.</p> <p>A question as to the existence of the contract sued on, whereon the evidence was sharply in conflict, was for the jury to determine according to their estimate of the evidence, and to answer by saying on whose side lay the facts and truth.</p>

<p>1. Homestead &wkey;>l43 — On death of husband his interest descends to children subject to rights of widow and minor children.</p> <p>Under Const, art. 16, §§ 50 and 52, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2469, where the homestead was community property, the husband’s undivided one-half interest passed on his death to his children subject only to the homestead right of the widow and minor children; there being no indebtedness of the character specified in Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3427.</p> <p>2. Executors and administrators <&wkey;39, 329(2) —Homestead not subject to administration and cannot be sold to pay allowance to widow and minor children.</p> <p>The homestead was not subject to administration as assets of the husband’s estate, nor could it he sold to pay an allowance under the statute to the widow and minor children.</p> <p>3. Homestead <S=>142(I), 145 — Title of children vests on death of father and is not dependent on continued occupancy by widow and minor children.</p> <p>Where the homestead was community property, the title of the children vested at once on the death of the husband and was not dependent on the continued use of the property as a homestead by the widow and minor children, and their abandonment of it was not a defense to a suit to recover their undivided interest therein after an unauthorized sale for the purpose of paying an allowance to the widow and minor children.</p> <p>4. Homestead i&wkey;>209'/2 — Payment from estate on account of indebtedness does not defeat recovery of interest in homestead.</p> <p>If payments to plaintiffs by the temporary administrator of their father were in satisfaction of an indebtedness of the father to them, it could not be urged as a defense to plaintiffs’ suit to recover their undivided interest in the homestead.</p> <p>5. Homestead <©=>2091/2 — 1 n suit to recover interest in homestead, money paid plaintiffs cannot be recovered back.</p> <p>If money paid plaintiffs by their father’s temporary administrator might be recovered back in a proper suit against them or against the temporary administrator and his bondsman, it could not be recovered in a suit by plaintiffs to recover their undivided interest in the homestead.</p> <p>'6. Executors and administrators <©=> 194(6)— Orders setting apart homestead to widow and ordering sale to satisfy allowance could be attacked collaterally.</p> <p>Orders of the probate court setting apart the husband’s interest in the homestead, which was community property, to the widow and children for their support, and directing a sale of such interest to satisfy the allowance, were not merely erroneous, but void for lack of power to make them, and might be attacked collaterally.</p>

. Appeal from District Court, Gregg County; Chas. L. Brachfield, Judge. Action by J. E. Belcher against Ed Schmidt and others. Judgment for defendants, and plaintiff appeals. Ed Schmidt died testate January 13, 1902. He left his wife, Anna Schmidt, and several children surviving him.

<p>1. Gifts &wkey;>25 — -Break in continuity of possession will not destroy parol gift, where there was no noncompiiance or abandonment.</p> <p>In order for a break in the continuity of possession to destroy a parol gift of land, it must appear, either that there was noncompliance with the conditions, of the gift or an' abandonment of the property, and hence in an action by a son against his motner, for title to land upon which he enteren and constructed improvements relying on a parol gift, a requested instruction that there could be no recovery unless possession was continuous was properly refused, where it appeared that the son left the land temporarily with the consent of his mother, and that thereafter he returned and resumed possession without objection.</p> <p>2. Gifts <&wkey;25 — Parol gift of land will be sustained when clearly proven and possession taken.</p> <p>A parol gift of land will be sustained and enforced when clearly proven, and when possession has been taken ana valuable improvements made on the faith of it, therefore, when a son relying on his mother’s promise to give him land entered thereon ana constructed improvements, he was entitled to a conveyance on termination of litigation which the mother fixed as the time for conveyance, notwithstanding his temporary absence; it appearing there was no abandonment.</p>

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge.</p> <p>Action by the City of Mart and others against the Texas Telephone Company and another. Prom a judgment for plaintiffs, defendants appeal.</p>

Error from District Court, Wharton County; M. S. Munson, Judge. Action for slander by Douis Trojack against Joe Vacicek and his wife. Judgment for plaintiff, and defendants bring error.

<p>Error from District Court, Webb County; J. F. Mullally, Judge.</p> <p>Action by Swift & Co. against J. H. Web-ber and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Hale County; R. C. Joiner, Judge.</p> <p>Suit by L. H. Rosser against G. F. Cole. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from District Court, Bexar County ; W. S. Anderson, Judge.</p> <p>Habeas corpus proceeding by John Steen. From a judgment remanding him to custody, he appeals.</p>

<p>1. Carders &wkey;>228 (5) — Finding of negligence in failing to bed car and to drench hogs with water sustained.</p> <p>In an action against a carrier for damages to a shipment of hogs, evidence held sufficient to warrant a finding of negligence in failure to properly bed the car and to drench the hogs with water, whereby some of the hogs died' as against a contention that the cause of the death was cholera.</p> <p>2. Carriers <&wkey;230(9) — Submission of negligence in failing to water shipment of hogs held error.</p> <p>In a shipper’s action against a carrier for damages to a shipment of hogs, submission of negligence on the carrier’s part in failing to water the hogs held erroneous in view of the shipping contract which required the caretaker to look after that matter.</p>

<p>Appeal from District Court, Webb County; J. F. Mullally, Judge.</p> <p>Action by Geo. A. Moore & Co., against Armour. & Company and others. Judgment for defendants, and plaintiff! appeals.</p>

<p>1. Counties &wkey;>l70(3)— Answer in suit against county on road warrants setting up violation of Constitution by commissioners held good against general demurrer.</p> <p>In an action on county road warrants, an answer that the materials for which the warrants were issued were purchased with the intention on the part of the commissioners’ court to create debts against the county to be paid out of funds which might come into the hands of the county treasurer for future years in contravention of Const, art. 11, § 7, providing that no debt shall be incurred by a county unless provisions are made at the time of creating the same for levying a sufficient tax held to set up a good defense as against plaintiff’s general demurrer.</p> <p>2. Counties <&wkey;I70(3) — Answer in suit on county road warrants held to set up good defense.</p> <p>In an action on county road warrants issued from materials, an answer setting up that the materials were sold to the county in view of a special road law and subject to its provisions, and that plaintiff knew that such materials were to be used in certain designated road districts which were not districts from the funds for which plaintiff attempted to recover, held to set up a good defense.</p> <p>3. Counties <&wkey;>!52 — When county may create valid debt without complying with constitutional requirements as to mode of payment stated.</p> <p>A valid debt may be created by a county without complying with Const, art. 11, § 7, requiring that it provide for payment at the time it is created where it has a fund on hand under its control from which it contemplates the debt shall be paid, though it was not in fact paid therefrom.</p> <p>4. Counties <&wkey;l70(4) — Burden of proving that county road warrants were issued in contravention of Constitution held upon defendants.</p> <p>In an action on county road warrants, defendants, in order to take advantage of a defense that the warrants were issued in contravention of Const, art. 11, § 7, requiring provision for payment to be made at the time the warrants were issued, must prove such defense.</p> <p>5. Highways <&wkey;99!4, New, vol. 14 Key-No. Series — Payment of road district funds by county will not be enjoined where plaintiffs’ warrants not applicable to such funds.</p> <p>Where plaintiff liad sold certain materials to a county to bé used on roads under a special road law and had accepted warrants in payment thereof, it was proper to refuse -to enjoin the county from paying out funds belonging to road precincts other than those for which the materials were furnished; plaintiffs being limited in their recovery to the districts covered by the funds on which the warrants were drawn.</p>

<p>I.Insurance c&wkey;42l — Insurer liable for damage by fire caused by explosion notwithstanding clause terminating policy on fall of building.</p> <p>Where fall of building was caused by an explosion upon which fire immediately ensued, the insurer was liable for the damage inflicted by 1 the fire under provision of policy making insurer liable for damage caused by fire on an explosion, notwithstanding other provision providing for termination of the policy on the building or any part thereof falling, except as the result of fire, since the two clauses must be construed together.</p> <p>2. Insurance <&wkey;42l — Insurer held not liable for damage from explosion in adjoining building caused by antecedent fire therein.</p> <p>Under fire policy providing that insurer should not be liable directly or indirectly for damages caused by explosion, unless fire ensued, and in such case for fire damage only, insurer was not liable for explosion damages as distinguished from damages from fire following the explosion damage, where both resulted from an explosion in an adjoining building, which wrecked insured’s building, which thereupon took five; it being immaterial that the explosion in the adjoining building was caused by antecedent fire therein.</p> <p>3. Insurance <&wkey;646(6) — Plaintiff must prove loss not within excepted clause of policy.</p> <p>In action on fire policy following destruction of insured’s house by explosion in adjoining building and ensuing fire, plaintiff was required to plead and prove that her loss did not fall within an excepted explosion clause in policy providing that insurer should not be liable for damage caused by an explosion.</p> <p>4. Insurance <&wkey;42l — Insurer liable for damage from explosion in adjoining building caused by fire originating in insured building.</p> <p>If fire originated in insured building and spread to and caused explosion in adjoining building, insurer would have been liable for damage to insured building resulting from such explosion, notwithstanding clause in policy providing against liability for damage caused by explosion.</p> <p>5. Insurance <&wkey;G68(!3) — Verdict should have been directed for insurer in absence of evidence as to amount of damages.</p> <p>Where damage to insured building was caused partly by an explosion and partly by fire, and where policy provided against liability for damage by explosion, verdict should have been directed for insurer in action on policy in which there was no evidence on which jury could base a finding as to amount of damage caused by the fire.</p>

<p>Appeal from District Court, Webb County; J. F. Mullally, Judge.</p> <p>Action by Dario Garcia against Alcala Flores. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Henderson County; John S. Prince, Judge.</p> <p>Suit by W. R. Caldwell and wife against the Illinois Bankers’ Life Association. .Judgment for defendant, and plaintiffs appeal.</p>

Error from District Court, Rains County; AYilliam Pierson, Judge. Consolidated action® by the Occidental Life Insurance Company against D. W. Ryan and wife, in which P. R. Montgomery intervened, and by P. R. Montgomery against the Occidental Life Insurance Company. To review judgment rendered, the Occidental Life Insurance ■ Company brings error.

L. Thornton, Judge. Action in justice court by Mrs. Wrenda Weaver against the National Life & Accident Insurance Company. From a judgment for plaintiff, defendant appealed to the county court, where plaintiff had judgment, and defendant appealed.

O. Beard, Judge. Action by J. M. Black and others against W- II- Strength, County Judge, and the County Commissioners of Harrison County. Erom a judgment for plaintiffs, defendants appeal.

<p>1. Insurance <&wkey;365(I) — Application for reinstatement and note executed contemporaneously constituted contract.</p> <p>An application for reinstatement after lapse of policy and a note executed contemporaneously together constituted the contract of reinstatement.</p> <p>2. Insurance &wkey;> 146(3) — Ambiguities In reinstatement contract resolved against insurer.</p> <p>Where an application for reinstatement and a note executed contemporaneously constituted a contract for reinstatement, and both instruments were prepared by insurer, inconsistent clauses, ,as well as all doubts or ambiguities arising upon the face of the contract, must be resolved against the insurer.</p> <p>3. Insurance <&wkey;365(l) — Agreement in reinstatement contract concerning suicide held restricted by clause therein.</p> <p>A clause in a note given upon reinstatement, that upon payment of the note “all rights under said policy shall thereupon be the same as if said premium had been paid when due,” will not give way to a clause in the application for reinstatement providing that, in case of insured’s death by suicide within one year, the company would be liable only for the reserve on the policy; the two clauses being inconsistent, and both instruments being prepared by the insurer.</p> <p>4. Insurance <&wkey;!46(3)— Interpretation sustaining claim of insured adopted.</p> <p>The language of a policy of insurance being the language of the underwriters, if susceptible of two interpretations that must be adopted which will sustain the elaiin of the insured and give him the indemnity l!it was his object to secure.</p> <p>5. Insurance &wkey;>365(2) — Healthy insured held entitled to reinstatement as matter of right; “insurability.”</p> <p>Under a life policy providing that, if premium is not paid on date when due, insurer will reinstate the policy as of said due date at any time thereafter upon “evidence of insurability satisfactory to the company, and payment of all arrears,” etc., an insured who was admittedly in excellent health was entitled to reinstatement as a matter of right; the word “in-surability,” when used in life policies, being no more comprehensive than that of good health and an insurable interest, such being its ordinary and plain meaning and the popular sense in which it is understood.</p> <p>6. Contracts &wkey;>75(2) — Suicide clause in reinstatement contract held without consideration.</p> <p>A clause reinstating insured, who was in good health, to the effect that insurer would not be liable for more than the reserve of the policy if the insured should commit suicide within a year, was void for want of consideration, where the policy provided that the company would reinstate the policy at any time upon evidence of “insurability satisfactory to the company and payment of all arrears”; such reinstatement being no more than the performance of insurer’s legal obligation.</p>

<p>Appeal from District Court, B'exar County; R. B. Minor, Judge.</p> <p>Action by W. E. Reliar against G. C. Walker and others. Judgment for plaintiff, and defendants appeal.</p>

Suit by Heid Bros., Incorporated, against the Pierson-Lathrop Grain Company of Hutchinson, Kan., in which the Security National Bank of Dallas, Tex., was garnished, and in which the Commercial National Bank of Hutchinson, Kan., was made a party on application of the garnishee. From judgment rendered for plaintiff adjudging funds in the hands of the garnishee subject to garnishment, the Commercial National Bank of Hutchinson, Kan., appeals.

<p>Error from District Court, El Paso County; P. R. Price, Judge.</p> <p>'Suit by C. K. Book and others against Nina Turbeville and others. To review judgment for plaintiffs, the named defendant brings error.</p>

<p>1. Trespass to try title <&wkey;4l (3) — Statement held not to show plaintiff’s title to land.</p> <p>A statement of facts reciting the introduction of abstracts to establish plaintiff’s title is insufficient to show plaintiff’s title, where it did not state that three of the instruments referred to purported to convey the land involved nor that the title was recorded in the county where the land was situated, even if an abstract could be used as proof of title.</p> <p>2. Pleading &wkey;>378 — General denial requires plaintiff to prove deed under which he claims.</p> <p>Where the petition alleged that plaintiff held under a certain deed attached thereto, a general denial requires plaintiff to prove the deed under which he claimed ownership of the land, regardless of a subsequent statement that the deed referred to in the petition was procured by fraud.</p> <p>3. Appeal and error &wkey;>938(4) — Party using diligence can have judgment reversed where court’s statement is insufficient to sustain it.</p> <p>Where the record shows that appellant has exercised proper diligence to obtain a complete statement of facts, but the. parties were unable to agree on the statement, and the statement presented by the court was- incomplete and did not contain facts justifying the direction of a verdict, it will not be presumed that a complete statement would have justified. the judgment, but appellant is entitled to a reversal.</p>

<p>1. Pleading &wkey;>I 11 — Plaintiff, to sue in county on ground that fraud was perpetrated therein, need not prove the fraud.</p> <p>On plea of privilege to be sued in a county in which one of the defendants lived, plaintiff to sustain the right to sue defendants in county in which the action was brought on the ground'that it was an action for fraud, and that the fraud was perpetrated in such county, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. .1830, subd. 7, was not required to prove -the fraud, but merely that a transaction which might constitute an actionable fraud occurred in the county where the suit was filed; the question of whether plaintiff sustained an injury from the perpetration of fraud and the extent of such injury being the matters to be determined in a trial on the merits after the issue of venue had been settled.</p> <p>2. Pleading <&wkey;l 11 — Evidence held to prove right to bring action in county on ground that fraud was perpetrated therein.</p> <p>In action for fraud, evidence on plea of privilege held sufficient to sustain plaintiff’s right t.o bring action in county in which it was filed, on the ground that the fraud was perpetrated therein.</p> <p>Willson, C. J., dissenting.</p>

O. Beard, Judge. Action by W. Y. Allen, as administrator, against the American National Insurance Company. Judgment for'the plaintiff, and defendant appeals. The suit is by appellee against the appellant on a policy of insurance on the life of Will C. Allen.

T. Burns, Judge. Suit for trial of the right of property by J. A. Hill & Son against the McLendon Hardware Company, begun in justice court and appealed to the county court. From a judgment for plaintiff in the county court, defendant appeals.

<p>1. Railroads <&wkey;4ll(4) — Liability for killing live stock lessened by fencing.</p> <p>A railroad company may gain a certain immunity from liability for killing live stock on its right of way by fencing the same, although not required by law to fence it.</p> <p>2. Railroads <&wkey;4l3(7) — Private opening through fence with acquiescence of landowner, defense against tenant owning animal killed.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6486, providing that all railway corporations may be required to make openings or crossings through their fence where the roadbed divides an inclosure, is mandatory; and, where a railway left an opening, without gates, but with cattle guards, that was not inappropriate to the needs of the owner and the situation of the property, it had the right to set up the defense that the right of way was fenced, in an action by landowner’s tenant to recover the value of a mule killed on the right of way; the opening having been made with the aequiesc-cence, if not the express consent, of the landowner.</p>

<p>Appeal from District Court, Lamar County ; A. P. Dohoney, Judge.</p> <p>Suit by Jim Mason against E. P. Green, in which defendant filed a cross-bill. Judgment for defendant on his cross-bill, and plaintiff appeals.</p> <p>The appellant sued the appellee for damages for the alleged conversion of certain personal property consisting of 3 beds, 2 springs, 1 chiffonier, sewing machine, cookstove, rocking-chair, trunk, kitchen safe, 4 chairs, 2 tables, wash pots, tubs and hoard, 20 quilts, 3 mattresses, 10 sheets, feather bed, pillows, flat irons, 75 jars of fruit, piano, kitchen cabinet, wearing apparel, and 5 hogs. The defendant answered by general denial, and in a cross-bill alleged that the plaintiff had executed a promissory note payable to the appellee and had secured same by a chattel mortgage covering, am'ong other things, all the articles mentioned in the original petition of the plaintiff, and had placed the» appellee in possession of the same, and prayed for judgment for the debt and for a foreclosure of the chattel mortgage lien on the property. The appellant by a supplemental petition demurred and excepted to the cross-bill, and answered that at the time of the execution of the chattel mortgage he was a married man living with his wife, and the head of a household. The case was tried before the court without a jury.</p> <p>The evidence shows'that in the year 1919 . appellant with his wife and five children moved onto the appellee’s farm to make a crop. In order to obtain supplies and advances for the year the appellant executed a note for $600 payable to appellee on October 1, 1919, and at the same time executed a chattel mortgage to secure the payment of the note on the following:</p> <p>“All my crop consisting of 30 acres of cotton and 8 acres of corn, 3 horses, 1 wagon, harness, 1 stalk cutter, 2 cultivators, 1 better, 12 sweeps, 1 planter, 1 piano (subject to another note), 1 sow and increase, all household furniture.”</p> <p>Appellant’s wife did not sign her name to the mortgage, and did not ¿cknowledge the same. In September the appellant and his family left the farm, as he says, to go elsewhere to pick cotton, intending to be away only temporarily. And the testimony of appellant goes to show that while he was away the appellee took and appropriated the personal property sued for, claiming it as payment on the note. The testimony of the ap-pellee, though, goes to show that the appellant when he left the place left the property in suit in the possession of appellee, and that he has merely held the same for him during that time. The cotton, corn, horses, implements, and hogs mentioned in the mortgage are not involved in the suit, having before suit been by the parties applied on the mortgage debt. It is shown by the evidence that part of the property in suit is “household furniture,” and under the terms of the chattel mortgage, and the remaining part, in point of fact, is not household furniture and is not embraced in the terms of the mortgage, but is property exempt under the law. '</p> <p>The court made a finding that the following property was under the terms of and subject to the chattel mortgage, viz., sewing machine, three beds, two bedsprings, four chairs, a rocking-chair, chiffonier, two tables, and a piano, and that the mortgage lien should be foreclosed thereon, and that the appellee had converted the property not under mortgage of the value of $184. The evidence supports the findings of the court.</p> <p>Judgment was entered in favor of the ap-pellee on his cross-bill for the balance due on the note less the credit of $184 damages allowed the plaintiff, and a foreclosure of the thattel mortgage lien on the sewing machine, three beds, two bedsprings, four chairs, rocking-chair, chiffonier, two tables, and piano.</p>

<p>Appeal from District Court, Smith County; J. R. Warren, Judge.</p> <p>J. T. Nicholson was convicted of aggravated assault, and he appeals.</p>

<p>Appeal from District Court, Potter County; Henry S. Bishop, Judge.</p> <p>Action by J. B. Zumwalt against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, McLennan County; E. J. Clark, Judge.</p> <p>Suit by C. H. Higginson against the City of Waco and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Reeves- County; Chas. Gibbs, Judge.</p> <p>Suit by Ben Randals against the Sunshine Oil Corporation. Judgment for plaintiff, and' defendant appeals.</p>

<p>I.Nuisance &wkey;>8 — Cotton gin in industrial district held not restrainable.</p> <p>Special findings on sufficient evidence that the operation of defendant’s cotton gin materially interfered with plaintiffs in tbe use and enjoyment of tbeir homes, and that no equipment could be provided to eliminate suclj injury, did not require a judgment enjoining tbe gin as a nuisance, where tbe jury also found that the gin was within the part of the town set aside to gins and similar industries; that when plaintiffs acquired tbeir respective properties they knew or by reasonable diligence could have known that a gin would be erected and operated there; that defendant acted reasonably in erecting, maintaining, and operating the gin in that location; that plaintiffs’ properties were not impaired in market value or destroyed for the purposes of homes; that the gin did not jeopardize or seriously threaten their health or that of their families; that they could be reasonably compensated in money; that, though they knew of the purpose to construct the gins, they did not complain until it was practically completed, and that, if they had, it would not 'have been placed in that location; that defendant acquired property for gin purposes, and had used it for no other purpose; and that the plant was worth $20,000, and, if dismantled and removed, would not be worth over $12,000.</p> <p>2. Nuisance <®=>23(l) — Injunction matter of discretion when conflicting rights are involved.</p> <p>In a suit to enjoin the maintenance and operation of a cotton gin, the conflicting rights of the parties in the respective uses of their properties being involved, the right to an injunction is not absolute, but rests in the sound' discretion of the trial court.</p> <p>3. Nuisance <&wkey;3(5) — Cotton gin held not re-strainahle at instance of inconvenienced home owners.</p> <p>The reasonable, careful, and justly warranted use of property for a cotton gin held not to be enjoined because there was necessarily incident to such use discomfort and inconvenience to nearby home owners.</p> <p>4. Nuisance &wkey;>32 — Exceptions to answer held properly overruled.</p> <p>In a suit to enjoin a cotton gin, exceptions to the answer alleging that the gin was a public necessity, that the agricultural interests of the community demanded it, that a prescriptive right had been acquired to erect it, that, though plaintiffs knew of the purpose to build it and that it was being built, they did not complain until it was nearly finished, and that since they had stood by while defendant spent $20,000, it would be inequitable to enjoin its operation, were properly _overruled, though none of the. allegations, standing alone, was sufficient to constitute a defense, as the case was one calling for a consideration of all facts, circumstances, and conditions.</p> <p>5. Appeal and error <&wkey;1068(1)— Error in instruction- harmless where jury made special foldings and court applied law thereto.</p> <p>Where in a suit to enjoin a cotton gin as a nuisance the jury found the facts specially, and the court applied the law thereto and determined the question of nuisance, and an incorrect definition of nuisance could not have misled the jury in answering the special questions, an instruction erroneously defining a nuisance was harmless.</p> <p>6. Trial <&wkey;!94(l4) — Instruction that cotton gin was not nuisance as matter of law not on weight of testimony.</p> <p>In a suit for an.injunction, an instruction that the operation and maintenance of a cotton gin was not a nuisance as a matter of law was not a comment on the weight of the testimony.</p> <p>7. Nuisance <&wkey;3 (5) — Cotton gin not nuisance as matter of law.</p> <p>The operation and maintenance of a cotton gin is not a nuisance as a matter of law.</p> <p>8. Trial <&wkey;352 (I)— Special issue as to whether cotton gin was in close proximity to part of town containing such industries not on weight of evidence.</p> <p>In a suit for an injunction, a special issue as to whether a cotton gin was within that part of the town set aside to gins and like industries “or in unreasonable proximity thereto” was not a comment on the weight of the evidence.</p> <p>9. Trial <&wkey;256( 12) — Objection to instruction for failure to define terms without requesting explanatory charge is insufiicient. -</p> <p>While under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, it is sufficient to call the court’s attention to a positive error in the charge as therein provided, and it then stands as excepted to, a party thinking an expression in the charge requires explanation must request a special instruction defining it, and a mere objection is not sufficient.</p> <p>10. Trial <s&wkey;219 — “Reasonable proximity” did not require- definition.</p> <p>Where a special issue required the jury to find whether a cotton gin was within the part of the town set aside to gins and like industries, or in “reasonable proximity thereto,” the quoted words did not need to be defined, as they are words of ordinary use and without technical meaning and presumed to be as accurately understood by the jury as by the court.</p> <p>11. Trial <&wkey;349(3) — Submission of case on special issues without request held not error.</p> <p>Under Vernon’s Sayles’ Ann. CiV. St. 1914, art. 1984a, expressly authorizing the trial court to submit cases on special issues, without request of either party, it was not error to so submit a suit to enjoin a cotton gin as a nuisance.</p>

H. Strength, Judge. Suit by the Eirst State Bank of Harleton against R. W. Taylor, doing business as R. W. Taylor & Co., and O. R. Ferguson, wherein defendant Taylor asked for judgment in his favor against defendant Ferguson. From judgment for defendant Ferguson, the defendant Taylor appeals.

<p>1. Mines and minerals &wkey;>l09 — Drilling contractor held not entitled to recover expenses outside his contract.</p> <p>Contractor who agreed to drill to specified depth unless owner instructed him to discontinue the drilling at a lesser depth, and who temporarily discontinued drilling and undertook to ream the well for casing, could not recover expenses of reclaiming the well after it was-wrecked in the process of reaming, though the contract did not call for reaming well.</p> <p>2. Mines and minerals <&wkey; 109 — Contractor has burden of excusing failure to dig well specified number of feet.</p> <p>Contractor, having agreed to drill to specified number of feet unless owner instructed him to discontinue at a lesser depth, was required, in order to recover for digging a fewer number of feet, to justify his failure to dig the specified number of feet by establishing facts that the owner instructed him to cease drilling operations and assumed control of the well.</p>

<p>1. Appeal and error <&wkey;467, 470 — Supersedeas bond complying in form and substance with the statute sufficient.</p> <p>Supersedeas bond complying in form and substance with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2101, was sufficient to give the Court of Appeals jurisdiction, and should have been approved by the clerk of the district court if the sureties were sufficient; the clerk having nothing to say about the form or substance.</p> <p>2. Mandamus <&wkey;168(2) — Burden held on relator in mandamus to require approval of supersedeas bond.</p> <p>In mandamus to compel clerk of district court to approve supersedeas bond, the burden is on relator to show that the sureties are sufficient.</p> <p>3. Mandamus t&wkey;57(2) — District clerk not compelled by mandamus to approve super-sedeas bond.</p> <p>The district clerk, being clothed with discretion in passing upon the financial worth of the sureties upon a supersedeas bond and in entering his approval thereon, will not be required by writ of mandamus to approve the bond unless the relator shows that the clerk had arbitrarily and without exercising discretion refused to approve the bond.</p>

<p>1. Contracts <&wkey;335(2) — Petition held to allege performance of consideration.</p> <p>In a suit on a note given in consideration of the establishment and maintenance by the payees of a permanent shipyard within the town and the construction of four wooden ocean going ships under the direction of the United States government, an allegation that the shipyard had ■ been established and continuously maintained, and that the construction of the ocean going hulls or 'ships had been completed under the direction of the government, sufficiently alleges performance of the consideration.</p> <p>2. Contracts <&wkey; 198(1) — Construction of ocean going barges held performance of agreement to construct ocean going “ships.”</p> <p>An agreement to construct four ocean going ships under the direction of the United States government is performed by the construction of four ocean going barges, as required by the government, which were suitable for cargo carrying steamers, since the hull and spars constitute the ship.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Ship.]</p> <p>3.Appeal and error <&wkey;882(8) — Appellant cannot complain of testimony showing facts to which he testified.</p> <p>Appellant cannot complain of the admission of testimony where, he testified to practically the same facts.</p>

<p>Appeal from District Court, Hidalgo County; Hood Boone, Judge.</p> <p>Suit by C. F. Roberts and wife against the Stewart Farm Mortgage Company. Plea to jurisdiction, sustained, and plaintiffs appeal.</p>

<p>Error from District Court, Dallas County; Marshall Thomas, Special Judge.</p> <p>Suit by Susie McCuistion and another against the Lakewood Heights Company and another. Judgment for plaintiffs against tile named defendant and the named defendant brings error.</p>

<p>Appeal from Harrison County Court; W. H. Strength, Judge. •</p> <p>Action by the E. B. Hayes Machinery Company against A. S. Cuthbertson. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and error &wkey;>742(2) — Improperly grouped assignments not considered.</p> <p>Assignment attacking finding as against the evidence and assignments complaining of refusal to give requested instructions, where grouped together, in violation of Court of Civil Appeals rule No. 29 (142 S. W. xii) will not be considered.</p> <p>2. Partition <&wkey;46(l) — Court erred in granting to plaintiffs the interest of a cotenant not a party to the proceeding.</p> <p>In action for partition by some of the co-owners of land against purchasers from a co-tenant who claimed to have acquired title by adverse possession, it was error' for court, in holding that adverse title had not been acquired as to some of the plaintiff cotenants, to give to such cotenants the interest in the land of a cotenant not made a party to the proceeding.</p> <p>3. Partition t&wkey;46(l) — Cotenant must be a party to the proceeding.</p> <p>A valid partition cannot be had where a cotenant is not party to the proceeding.</p> <p>On Motion of Appellees for Rehearing.</p> <p>4. Tenancy in common <&wkey;>I5(IO) — Permitting cotenants to remain on land admissible on issue of adverse possession.</p> <p>In partition against purchasers from plaintiffs’ cotenants claiming to have acquired title by adverse possession, question as to whether plaintiffs permitted cotenant to remain on the land held proper.</p> <p>5. Trial t&wkey;85 — Overruling of objection to evidence competent in part not error.</p> <p>Overruling of objection to evidence a part of which is competent is not error.</p> <p>6. Tenancy in common t&wkey;l5(l) — Title may be acquired against some cotenants and not as against other cotenants.</p> <p>Defendants may have acquired title by adverse possession as against some of the co-tenants without having acquired adverse title as against other cotenants, where the former did not become parties to the partition action until six years after the action was commenced by the latter.</p>

<p>Appeal from District Court, Runnels County; J. O. Woodward, Judge.</p> <p>Action by C. W. Clayton against A. L. Kerbey and wife. Judgment for the defendants, and plaintiff appeals.</p>