x999-1" type="majority"> HcHEAFS, Associate Justice.

— This is an action of trespass to try title, filed February 21, 1901^ brought by Clara Chaison and others, widow and heirs of Jeff. Chaison, deceased, against W. P. H.' HcFaddin, in which they sue for title to and possession of the David Cunningham survey of one-fourth league in Jefferson County, excepting a specific tract of about 208 acres previously conveyed to W. P. H. HcFaddin. After the filing of the suit the said plaintiffs conveyed all of their claim, title and interest in the land in controversy to the American Oil & Befining Company,- and thereafter said company, and later J. D. Hartin, receiver of said company, filed an intervention, seeking not only a recovery of the land against HcFaddin, but damages also in the sum of $50,000 for rents, etc. In addition to the general allegation of title, plaintiffs and interveners above named pleaded title by the five and ten years’ statute of limitation. While this suit was pending, Harie Elizabeth Gleises and others, being the widow and heirs of Paul Joseph Gleises, intervened and sued the original plaintiffs and W. P. H. HcFaddin for title to an undivided half of said land, the petition being in the form of an action of trespass to try title.

On January 8, 1909, V. Weiss intervened in this suit and set up title to an undivided half of the land in controversy under a certain judgment rendered December 12, 1905, in Equity Fo. 21, styled Lawrence Hyde and Catherine B. Hyde, Complainants, v. W. P. H. Hc-Faddin, on the docket of the Circuit Court of the Hnited States, for the Eastern District of Texas, at Beaumont. The plaintiffs and the intervening plaintiffs, American Oil & Befining Company, and J. D. Hartin, receiver, in an amended answer to the intervention of V. Weiss admitted that he had title to an undivided half of the land in controversy under the judgment referred to.

The original plaintiffs and the Oil Company and its receiver answered the intervention of Harie Elizabeth Gleises and others by a plea of not guilty, and by plea of the statute of limitation of five years. They also filed a cross-action against Harie Elizabeth Gleises and others for the land in controversy, seeking affirmative relief.

After hearing all of the evidence the court instructed a verdict in favor of the interveners, Harie Elizabeth Gleises and others, for the land in controversy, and also in favor of HcFaddin, and against the plaintiffs and intervening plaintiffs. The verdict was accordingly returned by the jury in favor of the interveners, Harie Elizabeth Gleises and others, for an undivided half interest in the land sued for, and in favor of HcFaddin that the plaintiffs and intervening plaintiffs recover nothing against him, and judgment was entered in favor of Y. Weiss for half of the land in controversy based upon the disclaimer of plaintiffs and intervening plaintiffs, and in favor of Harie Elizabeth Gleises and others for half of the land in controversy based upon the verdict returned by the jury in obedience to the instruction of the court, and that plaintiffs and intervening plaintiffs recover nothing from the defendant HcFaddin. From this judgment the plaintiffs and interven *540 ing plaintiffs have appealed. No complaint is made of the judgment in favor of Weiss for an undivided half of the land awarded to him.

At the threshold of our investigation we are confronted by a motion presented by appellees to strike from the record the statement of facts sent up with this appeal, because of the violation in its preparation of rules 72 and 75 and of section 5 of the Act of May 25, 1907.

The statement of facts consists of 361 typewritten pages. The first four pages embody a preliminary statement made by counsel to the jury of the facts expected to be proven on the trial. This in no wise . has any place in the statement of fadts.

It also contains copies in full of numerous deeds of conveyance, and also copies in full of contracts, wills, pleadings in other suits and proceedings in bankruptcy, about which there is made no question as to validity or form. These copies cover about 125 pages of the statement of facts, when they could have been described, or their legal effect as evidence stated, in a very few pages. There are copies in the stenographer’s report of the oral evidence numerous questions and answers.

Section 5 of the Act of May 25, 1907, which controlled when this statement of facts was made up, reads, in its relevant parts, as follows:

“In case an appeal is taken from a judgment rendered in any civil cause, the stenographer shall, when requested by the party appealing, or his attorney of record, make up a duplicate statement of facts, which shall consist of the evidence introduced on the trial, both oral and by deposition, stated in narrative form, together with copies, to be made in accordance with the rules of the court, of such documents, sketches, maps and other matters as were used in evidence.”

The requirements of the Act, in so far as relate to the matter now before us, are that the oral testimony shall be reduced to narrative form, and the copies be inserted under the rules of the court. The rules here referred to are undoubtedly the rules prescribed by the Supreme Court for governing the preparation of statements of fact. Rule 72 provides:

“Where the evidence adduced upon the trial of a cause is sufficient to establish a fact or facts alleged by either party, the testimony of witnesses, and the deeds, wills, records, or other written instruments, admitted as > evidence, relating thereto, shall not be stated or copied in detail into a statement of facts, but the facts thus established should be stated as facts proved in the case, etc.”

Rule 75 provides: “Where there is no dispute about, or question

made upon, the validity or correctness in form of a deed or its record, a will or its probate, record of a court, or any written instrument adduced in evidence, it should be described (and not copied) or its legal effect as evidence stated as a fact established.”

The Act of May 25, 1907, places largely upon the court stenographer the duty and responsibility of preparing the statement of facts in the manner provided by the Act and prescribed by the rules, and thus to a certain extent relieves the party appealing from that responsibility; but nevertheless we think that the appellant should exercise some cautian and supervision to see that the statement furnished by the stenographer upon his demand is one made up in accordance with the law and the rules. We confess we have had some difficulty in determin *541 ing whether we should sustain appellee’s motion. The statement of facts in this case is not made up in strict accordance with the rules, and to strike it from the record would operate harshly upon the appellant, who, under the law, was relieved of the duty of preparing the statement when that duty was imposed upon the stenographer. But the party demanding a statement of facts is not bound to accept from the stenographer a statement not prepared in accordance with the rules; and should the statement tendered by him be not properly prepared, and should he fail to correct the same at the request of the party demanding it, unquestionably the trial judge, upon the matter being called to his attention, would require the stenographer to prepare and tender a proper statement. We can not say, we think, that the stenographer’s report so flagrantly violates the statute and rules as to deprive us of discretion in the matter and require us to strike the statement of facts ' from the record. We think, however, that the appellee should not be burdened with the cost of so much of the statement of facts as was unnecessary to be incorporated in the stenographer’s report. . We have concluded that the appellant should be taxed with one-half the cost of the statement of facts and it has been so ordered. The motion to strike out is overruled.

By their first assignment of error appellants complain of the action of the court in instructing a verdict in favor of Marie Elizabeth Gleises and others, and McFaddin. Their eleventh assignment is based on the refusal of the court to instruct a verdict in favor of the American Oil & Refining Company and J. D. Martin, receiver, based upon proof of prior possession by them and those under whom they claim, and of failure of Gleises and others and McFaddin to show title in themselves or in either of them.

We are of the opinion that the court did not err in instructing the verdict complained of provided the evidence did not require the submission of the issue of limitation, as pleaded by plaintiffs. A. P. Cunningham, in 1841, conveyed the entire Cunningham survey to Hyde & Gleises, a commercial partnership composed of Joshua B. Hyde and Paul J. Gleises, then doing business in the State of Louisiana. This firm is, or the members thereof are, the common source of title. The interveners, Marie E. Gleises et al. are the heirs of Paul J. Gleises, and as such, held the title acquired by Paul J. Gleises by said conveyance, unless he was divested of title by the conveyance made by the assignee in bankruptcy hereinafter referred to.

In 1842 the firm of Hyde & Gleises and Paul J. Gleises, a member of said firm, individually, went into voluntary bankruptcy at Hew Orleans, and Richard Brennan was appointed assignee. Under order of the District Court of the United States for the Eastern District of Louisiana, at Hew Orleans, Brennan, as such 'assignee on January 20, 1843, conveyed said Cunningham survey to Theophilus R. Hyde, which sale was confirmed. Appellants, by mesne conveyances have acquired whatever title passed by the conveyance from the assignee to Theophilus R. Hyde. One of the deeds under which appellants claim was filed for record in Jefferson County, Texas, June 28, 1882.

By the foregoing it will be seen that at the time of the conveyance *542 made by the assignee in bankruptcy the land was situated in Texas, then a republic, and that the bankruptcy proceedings were had and the sale made in the State of Louisiana. That real estate so situated did not pass to the assignee is now too well settled to require discussion. If it did not pass in this instance, then the fee remained in Paul J. Gleises, and upon his death, vested in his heirs; and the assignee’s deed, attempting to convey the same to Theophilus R. Hyde, was a mere nullity. This being true, the title was in the interveners, Marie Elizabeth Gleises et al., at the time of the trial, unless divested by limitation. Barnett v. Pool, 23 Texas, 518; Oakey v. Bennett, 11 How., 33; Hyde v. McFaddin, 140 Fed., 442.

As the interveners, Gleises, thus showed title in themselves, it was not error to refuse to give the special charge requested by appellants on the issue of prior possession. The assignments are overruled.

By their fifth assignment of error appellants complain that as the evidence was sufficient to raise the issue of title under the statute of limitation of five years, the court erred in instructing a verdict for appellees and thus taking said issue from the jury. The claim of the land under duly registered deeds and the payment of the taxes due thereon, and occupancy of the land as a pasture for cattle for a period of more than five years by appellants and those under whom they claim, was established by the undisputed proof. The only question left to be determined is whether the testimony was sufficient to establish that appellants’ enclosure, which was made partially of fences and partially of natural barriers, such as bayous, rivers and marshes, was an effective and substantial enclosure in keeping cattle in and out, and that such barriers, natural and artificial, were so related to one another as to denote to an ordinary observer that they were relied on for making an enclosure. It is not necessary to set out the testimony bearing on this point in detail, but it is sufficient to say that from a careful investigation of the record we think the testimony adduced was sufficient in this regard to raise the issue of five years’ limitation, and that the court erred in taking away that issue from the jury by instructing them to return a verdict for appellees. It follows from what we have said that the court erred in not giving appellants’ special charge Ho. 1, which submitted to the jury the issue of five years’ limitation; and the second assignment raising the point is sustained.

The plaintiffs and intervening plaintiffs having pleaded the statute of limitation of ten years, and there being evidence to raise the issue that those under whom they deraign title had peaceable and adverse possession of the land in controversy and had used and enjoyed the same, and claimed under a deed duly registered defining the boundaries of the land in suit, for a period of ten years continuously between the years 1884 and 1895, the court erred in instructing a verdict against the plaintiffs and intervening plaintiffs and thereby taking from the jury the issues of fact tending to establish title under the ten years statute of limitation.

We have examined the other assignments of error urged by appellants and, with the exceptions above noted, we find the record to be free from reversible errors.

*543 For the reasons indicated the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.

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