rehearing">

On Rehearing.

Jackson & Nunn, for appellants.

Hancock, West & North, for appellee.

Devine Associate Justice.

Thomas P. Collins, a purchaser under a judgment against Stilwell Box, brought suit in the District Court of Houston county, at the Pall term, 1868, in an action’for the recovery of seven hundred and twenty-five acres of land, less two hundred acres admitted to be the homestead of defendant, Stilwell Box,— said tract being part of “ the Stilwell Box league,” in Houston county. Petitioner prayed for the appointment of commissioners to set off the two hundred acres (the homestead exemption), and for general relief, etc. There was service by the sheriff on Stilwell Box. At the same term the appellee, Marion C. Box, obtained leave to intervene and set up claim to the land by deed of conveyance for a valuable consideration from his father, Stilwell Box, and he aver*195red that plaintiffs’ claim is a cloud upon his title, and prayed judgment in his favor, etc.

At the Fall term, 1871, the appellants, as the surviving wife and daughter, suggest the death of plaintiff, pray to be permitted to prosecute the suit and amend the petition, and aver that the deed under which intervenor, Marion C. Box, claims the land in controversy was the result of a fraudulent combination between intervenor and his father, the defendant; that defendant was largely indebted at the time of making the pretended deed; that no consideration passed from intervenor to defendant; that the same was made to hinder, delay, and defraud creditors; that the deed is a cloud upon their title, and they pray for the cancellation of the same.

The intervenor, Marion C. Box, amended his pleadings, and, with other matters, alleged that the land in suit was a portion of the community property of his father, Stilwell, and his mother, Eunice, Box ; that his mother’s estate had never been administered, or any action had relative to her estate; claimed pay for valuable improvements, and denied all fraud or collusion between himself 'and father.

To this the appellants replied by an amended petition, alleging that the intervenor is but one of several heirs of Eunice, the first wife of Stilwell Box; that the children of said marriage have long since received more than a fair portion of the community estate, and that the intervenor has received since his mother’s death property worth more in value than any possible interest he could have in her estate.

There were several exceptions by plaintiff which it is ’ not necessary, to notice. A verdict and judgment in favor of the intervenor were rendered for half the land claimed; a motion by plaintiff for a new trial, which was overruled, and an appeal to this court.

In response to the special issues presented to the jury *196by the charge of the court, the verdict was as follows: “We, the jury, find, first, that the land in question is community property, and that the heirs of Eunice Box have never been satisfied. We believe that the conveyance of the lands by Stilwell Box to his son Marion was made with intent to defraud, hinder and delay creditors. We believe that plaintiff is entitled to half of the land in controversy, and find accordingly.”

The verdict ascertains and states the fact that the intervenor was entitled to one-half of the land as the heir of his deceased mother’s community interest in that tract; and it settles the fraudulent character of the conveyance from Stilwell to Marion C. Box.

It remains to be seen, however, whether the verdict and .judgment are supported by the pleadings, the law, and the evidence in the case.

The first assignment of error, that the court erred in •overruling appellants’ exception to amendment of intervenor, and in refusing special charge asked by plaintiff, unless coupled with a qualification, is not supported by the record. The intervenor could claim, or seek to defend, under a claim of inheritance from his deceased mother, and his former claim under a deed from his father did not estop him from asserting title to the same land by inheritance from his mother. Consequently, there was no error in giving the special instruction or charge, that defendant was estopped from claiming as the heir of his mother, because he had formerly accepted and claimed under a deed from his father, Stilwell Box, with the qualification, “ that if intervenor accepted the land in controversy in lieu of his interest in his mother’s estate, and the same is void for fraud, and he was not a party'to the fraud, it amounts to no satisfaction,” etc.

Of the other assignments of error, it is only necessary to notice the following, which are set forth in the motion for a new trial, or in the bills of exceptions : That “the *197court erred in excluding evidence of the conveyance of real estate by Stilwell Box, in 1859, to his several children.” The plaintiffs in their amended pleadings had averred that the intervenor, Marion C. Box, and all the heirs of Eunice Box (their deceased mother), had received after her death by gift or settlement from their father (the defendant) more than their distributive share in their mother’s estate. There was error in the refusal of the judge to permit this evidence to go to the jury.

The assignment of error, that “the court erred in permitting the intervenor to amend his pleadings after both parties had announced ready for trial,” worked no damage to appellants. It was certainly an irregularity not warranted by law, but it evidently did not operate to the prejudice of appellants’ rights; if it operated as a surprise, and was complained of on that ground, the court undoubtedly would have given the plaintiffs time to meet the new issue- presented by the amendment, or have granted a continuance to the next term. Neither were asked for by plaintiffs, and ample time seems to have intervened between the announcement of ready for trial, on the fourth of December, the filing of exceptions and amendments by plaintiffs, and the trial, which did not commence until the fifth.

The tenth assignment, that “the court erred in refusing to allow the jury to carry the evidence read to them to their room in retirement,” is vague and so indefinite as to leave it uncertain what evidence is meant. The meaning of the assignment is, however, ascertained by an examination of the bill of exceptions, on page 35 of transcript, from which it appears that the evidence which the jury were not permitted to carry to their room in retirement was £ 1 the records containing the deeds read in evidence— the records having been read in lieu of the originals.” In this there was no error of the court. The public records of the county should not be permitted to pass out of the *198supervision and control of the district clerk or his deputies ; no reason existed, or is attempted to be shown, why they should be carried*, at the request of counsel, by the jury to their room, and,' in our opinion, it is more than doubtful whether the court, if so inclined, had the legal right, in a proceeding of this kind, to remove the record books of the county beyond the control of the clerk or his deputies. The clerk, and not the judge, has the legal custody of the records-.

The error assigned, that “the. court erred-in charge to jury,” is sustained by an examination of the charge of the judge, wherein he states, “a settlement on such heirs (speaking of children), by either partner, in lieu of their interest in the community, and the same is accepted by them, when of age, in full ratification of such interest, and the same is shown by proof, such settlement will be •enforced and respected between the parties.” In a subsequent part of the charge reference is made to the paragraph just quoted as the standard to ascertain whether the intervenor, as heir of Eunice Box, had been satisfied or compensated for his interest in her community estate.

The judgment of the District Court, by reason of the errors in excluding evidence of advancements by the father, Stilwell Box, to his son, the intervenor, and the charge of the court, will be reversed. As- the cause will go back for a new trial, we deem it proper to call attention to the irregular and confused character of the proceedings from the commencement of the suit to the close of the- final judgment. Collins sues Stilwell Box, who is regularly served with citation, etc. He files no answer, but at the same term the intervenor asks leave to intervene, and claims the land in suit by virtue of a deed from Ms father. From the date of service on Stilwell Box by the sheriff, he glides out of the case, without the slightest notice. He files no answer ; he is not dismissed from the *199cause; there is no suggestion on the record o£ his death, no motion or suggestion to make his heirs or legal representatives parties, and his name is only mentioned incidentally in the pleadings or judgment of the court. The court, in .its fourth special issue, charged the jury with reference to the heirs of Eunice Box having any interest in the land; and the jury find in favor of the intervenor, Marion C. Box, upon which the court directs commissioners to divide the land in controversy into two equal portions, allotting one-half to the plaintiffs, and dividing the remaining half into three equal portions — one-third to E. J. Goodman, another portion to Samantha Goodman, and the remaining third to the intervenor, Marion C. Box— the persons first named not being known or in any way connected with the suits.

On the trial it was shown by the intervenor, on his cross-examination, that there were five children living after the death of their mother, Eunice Box, in 1846 ; that of these, two died intestate ; that intervenor had received from his father, and after his mother’s death, five hundred and forty acres of land and some stock; that each of his two sisters received about the same.

Even admitting that the intervenor was entitled to recover, the. party claiming through his father would be entitled to more than one-half of the existing community property, as, by “the law of descent and distribution,” the father inherited, as the surviving parent, at least one-lialf of the two children’s estate, who died intestate after their mother, which would, added to his community right, have given him more than one-half. The court, however, ignored this fact, and allotted the plaintiffs, who were the owners of his interest, but one-half of the tract. There was nothing in the finding of the jury or the facts in the case to support the judgment adjudging only one-half of the tract to plaintiffs.

*200For the errors indicated in this opinion, the judgment of the District Court is reversed and the cause remanded for a new trial.

Reversed and remanded.

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