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"(1) I find that the deed from the plaintiff to the defendant, of record in Book 140, page 562, of Fannin County Deed Records, does not state the actual consideration.

“(2) I find that the real consideration for the execution of said deed was the payment by the defendant to the plaintiff of $3,525, with the agreement between said parties that if such parts of such land as designated in the memorandum in writing of date February 19, 1916, signed by the plaintiff and introduced in evidence, should measure more than 3521⁄2 acres, then defendant was to pay for any excess of such land at the rate of $10 per acre.

"(3) I further find that under such trade and agreement plaintiff was to convey to defendant all of the sand bar and untillable lands, not embraced in such memorandum agreement, free of charge.

"(4) I find that of the tillable land, as specified in said memorandum agreement, there are only 219 acres."

On these facts the court entered judgment denying the plaintiff a recovery against the defendant, and denying the defendant a recovery on his cross-action against the plaintiff. The plaintiff appeals.

There is evidence warranting the findings of fact made by the court, and they are here

sustained.

B. B. Sturgeon, of Paris, for appellant. C. A. Wheeler and Cunningham & McMahon, all of Bonham, for appellee.

LEVY, J. (after stating the facts as above). The appellant's assignments of error challenge the findings of the trial court as being contrary to and unsupported by the evidence. After a careful review of the evidence in the record, it may not properly be said, we conclude, that the court's findings of fact are either so entirely unsupported by or contrary to the evidence as to warrant setting them aside. And it is further concluded that the judgment entered by the court was in accordance with the proper legal effect attaching to the facts found by the trial court.

ure of trial court to find as facts certain matters, it not appearing from record that appellant requested trial court to so find. 3. ADVERSE POSSESSION 7(2)—UNDER TENYEAR STATUTE-UNPATENTED LAND.

The ten-year statute would begin to run in favor of plaintiff when he took possession of lands within a valid survey claiming title by virtue of a deed, although no patent had been issued to lands within the survey, since those claiming adversely to plaintiff by virtue of the survey could, in view of Vernon's Sayles' Ann. Civ. St. 1914, art. 7742, have maintained trespass to try title.

On Appellees' Motion for Rehearing. 4. BOUNDARIES 3(3) OBJECTS.

DISTANCE VERSUS

Where calls of survey were for objects specified as on the ground at distances indicated, the fact that survey may not have closed according to a calculation made of distances called for in the field notes would not render survey void as

distances called for would be extended to reach the objects.

Appeal from District Court, Marion County; J. A. Ward, Judge.

Suit by Robert Spearman against Charlie Mims and others. The trial court rendered

judgment against plaintiff for the land he sued for, but rendered judgment in his favor for other lands, suit for which he abandoned when he filed amended petition, and plaintiff appeals. Judgment reversed, and cause remanded for new trial.

The suit was by appellant against appellees, Charlie Mims, R. B. Rogers, Eva Johnson, and Will Johnson. As made by the amended petition filed December 11, 1917, on which the trial was had, it was to recover of appellee Mims 492 acres of the Robert Mason survey in Marion county, and of said Mims and the other appellees the value of timber it was alleged they had cut and removed from the land.

There being no reversible error in the recAppellant relied solely upon the statute of ord as complained of, the judgment is af-limitations of five and ten years for title. firmed.

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The trial was by the court without a jury. He found as facts the following: One Hoyt by a deed dated February 23, 1874, conveyed to appellant 10 acres of the W. C. Johnson survey on which appellant then resided as Hoyt's tenant, and undertook to convey to appellant a tract of 110 acres by a description not definite enough to identify same. In buying the 110-acre tract, appellant thought he was acquiring the Curtis Morris survey of about 612 acres, a large part of which was then fenced and in cultivation. A few years (how many not stated)

2. APPEAL AND ERROR 219(2)-FAILURE TO after Hoyt made the deed to appellant, the MAKE FINDINGS OF FACT-REVIEW.

Court on appeal is not authorized to consider assignments of error predicated on fail

latter moved the fence inclosing land in the Morris survey so as to include 5 to 10 acres of the Robert Mason 99 acres survey lying

For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes

immediately south of the Morris survey. Ap-| pellant used and cultivated the 5 to 10 acres for a period of at least 20 years after the date of Hoyt's deed to him, but he did not know that said 5 to 10 acres was a part of the Mason survey until one Brashier surveyed it and the Morris survey about five years before the date of the trial of the case. Shortly after Brashier surveyed said surveys as stated, appellant applied to appellee Mims for permission to allow the fence he had moved so as to inclose with land on the Morris survey 5 to 10 acres of the Mason survey, as stated above, to remain as it then was until such time as he could conveniently remove it from the Mason land. Appellant rendered 492 acres of the Mason survey for taxes from about the year 1904 to the date of the trial, and paid the taxes assessed against same during that time. Field notes of the Mason survey made May 24, 1861, purported to contain 99 acres, and the correct field notes made November 30, 1910, on which the survey was patented to Mason's heirs February 23, 1911, contained 99 acres. Appellant was not in possession of any part of said Mason survey long enough after it was corrected by field notes made November 30, 1910, as stated, to perfect title in him under the ten-year statute of limitations.

WILLSON, C. J. (after stating the facts as above). [1, 2] Of the seven assignments in ap pellant's brief, five are predicated on the failure of the trial court to find as facts certain matters specified. The complaints are on the theory that it was the duty of that court in making findings of fact to include "every particle," quoting from the brief, “of material testimony in aid of limitation title." It not only was not the duty of the court to do that, but it was his duty not to do it. His findings should have been of facts only, and should not have included evidence which he thought established as facts findings he made. Oldham v. Medearis, 90 Tex. 506, 39 S. W. 919; Thompson v. Mills, 45 Tex. Civ. App. 642, 101 S. W. 560; Gordon v. McCall, 20 Tex. Civ. App. 283, 48 S. W. 1111; Lumber Co. v. Hare, 61 Tex. Civ. App. 509, 130 S. W. 864; Barnes v. Riley, 145 S. W. 292. But, if the rule were otherwise, we would not be authorized to consider appellant's complaints, because it does not appear from the record that he requested the court to make the findings he says the court should have made. Veatch v. Gray, 41 Tex. Civ. App. 145, 91 S. W. 324; Caplen v. Cox, 42 Tex. Civ. App. 297, 92 S. W. 1048; Hatton v. Lumber Co., 57 Tex. Civ. App. 478, 123 S. W. 163; Oil Co. v. Oil Co., 137 S. W. 171; Merriman v.

The trial court's conclusions of law on the Blalack, 57 Tex. Civ. App. 270, 122 S. W. 403. facts he found were:

(1) That the deed from Hoyt to appellant was void as a conveyance of the 110 acres mentioned in it, because said 110 acres were not sufficiently described therein.

(2) That appellant, having failed to show that he was claiming the land in controversy under a deed conveying same to him, was not entitled to recover under the five-year statute of limitations.

(3) "That," quoting, "since the state had not parted with its title to said Robert Mason survey by patent, and since the heirs of Robert Mason and their assigns have been in no position prior to the 30th day of November, 1910, to maintain an action of trespass to try title against the plaintiff or any other trespasser on said land, or mandamus against the Commissioner of the General Land Office to compel the issuance of patent, that limitations did not begin to run prior to that time, and therefore the plaintiff cannot recover upon his plea of ten-year statute of limitations."

On said findings and conclusions the trial court rendered judgment against appellant for the land he sued for, as shown by the amended petition on which the trial was

had; but at the same time rendered judgment in his favor for 10 acres of the Wm. Johnson survey and all of the Curtis Morris survey, suit for which he abandoned when he filed said amended petition.

T. D. Rowell, of Jefferson, for appellant. Schluter & Singleton, of Jefferson, for appellees.

[3] The other assignments are predicated on the trial court's conclusions of law. We think the conclusion reached by the court that the deed from Hoyt to appellant was ineffective as a conveyance of the 110 acres mentioned therein, because it did not sufficiently describe the land, was warranted by the testimony. But we think the conclusion that the ten-year statute of limitations did not in any event begin to run in appellant's favor until the Mason survey was corrected by the field notes made November 30, 1910, was incorrect. And, as it appears the action of the court in finding against appellant's claim under that statute may have been due entirely to the erroneous view he took of the law, we think the judgment should be reversed and the cause remanded for a new trial. It appears from the record that the 49% acres sued for were embraced in the original field notes of the Mason survey made May 24, 1861, and in the corrected field notes made November 30, 1910 on which the patent issued. We see no reason why the ten-year statute of limitations should not have commenced to run in appellant's favor

when he took possession of the land, claiming to own it by virtue of the deed made to him by Hoyt, nor why, if he continued thereafterwards to occupy or use it, claiming it as his own, for a period of ten years, he did not acquire the title thereto. The reason stated by the trial court was that the heirs of Mason and their assigns were "in no position prior to the 30th day of November,

1910 (the date when the corrected field notes | procure other land to lessen the damages, or aftwere made), to maintain an action of trespass er having failed to procure such land to seek to try title against the plaintiff or any other other employment, if error, held harmless, where trespasser on the land." The contrary of the no complaint is made of excessive verdict in trial court's view seems to be the law. Arti- view of Court of Appeals rule 62a (149 S. W. x). cle 7742, Vernon's Statutes; Udell v. Peak, 70 2. APPEAL AND ERROR 1068(5)-REVIEW-Tex. 547, 7 S. W. 786. In the case cited the OBJECTIONS WAIVED. court said:

Objection that refusal of instruction was prejudicial, thereby increasing amount of verdict, cannot be sustained, where appellant does not claim on appeal that verdict is excessive.

"Appellant contends that the statute of limitations could not commence to run against his title until the patent issued in September, 1882, on the ground that the title remained in the state until that time. The land was surveyed by virtue of the Squire Mays headright certifi- | H. F. O'Neal, Judge. cate in 1841, and the patent finally issued for the land embraced in this survey. The original

Appeal from District Court, Cass County;

Affirmed.

Suit by C. T. Duke against H. S. Hatcher. survey segregated the land from the public do- Judgment for defendant, and plaintiff apmain, and the state was ever afterwards power-peals. less to resume control of it, and it having been appropriated by virtue of a valid certificate the equitable title was in the owner of the certificate, and the statute of limitation would run against such title."

This was a suit by appellant against appellee to recover possession of a tract of land in Cass county which appellee claimed he had rented of appellant for the year 1915. At the time he commenced his suit, to wit,

The judgment will be reversed, and the March 30, 1915, appellant procured the is

cause remanded for a new trial.

On Appellees' Motion for Rehearing. [4] From findings of the trial court it appears that there was a notation in pencil on the field notes of the Mason survey made May 24, 1861, as follows: "Does not close-error north 20 varas, error west 47 varas. October 8. 1861." It is insisted that it therefore appeared that the survey was not then a valid one, and hence that the conclusion of the trial court that the statute of limitations of ten years did not begin to run in appellant's favor until the survey was corrected by the field notes made November 30, 1910, was correct, because within the rule announced in Von Rosenberg v. Cuellar, 80 Tex. 249, 16 S. W. 58. But we think the fact that the survey may not have closed according to a calculation made of distances called for in its field notes would not have rendered it in valid. The calls were for objects specified as on the ground at distances indicated. If the objects would not have been reached at the distances called for, the survey would not for that reason have been invalid; but the distances called for would have been extended so as to reach the objects and so close the survey.

The motion is overruled.

DUKE v. HATCHER. (No. 1987.) (Court of Civil Appeals of Texas. Texarkana. Oct. 31, 1918.)

1. APPEAL AND ERROR 1170(9)-REVIEWHARMLESS ERROR.

suance of a writ of sequestration, by virtue of which he had appellee evicted from the land April 20, 1915. By a cross-action against appellant, appellee sought a recovery of actual damages in the sum of $1,288.83 which he claimed he suffered by reason of appellant's breach of the alleged rental contract and his eviction from the land, and also sought a recovery of $1,000 as exemplary damages. The trial resulted in a judgment in appellant's favor for the land, and in appellee's favor for $200 as actual damages he was entitled to recover of appellant.

Appellee testified that crops he had planted were growing on the land at the time he was evicted therefrom. He further testified that, had he not been evicted, his part of crops he would have grown on the land would have been worth, after deducting the cost to him, aside from the value of his own labor and that of members of his family, about $700. He further testified that he endeavored, after he was evicted, to rent other land to cultivate during the year 1915, but could not, except that he worked 17 days at the rate of $35 a month. Appellee's testimony as to the crops he would have grown on the land, and their value, if he had been permitted to grow them, was not disputed by any other testimony, but to some extent was corroborated by testimony admitted. His testimony as to efforts he made to secure other land to cultivate after he was evicted and to secure other employment seems to have been neither affirmed nor denied by other testimony.

The court instructed the jury as follows:

"If you believe from a preponderance of the evidence that the plaintiff, C. T. Duke, entered

In a suit for eviction from a farm, refusal of instruction that it was the tenant's duty to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

into a contract with the defendant, W. S. Hatcher, by which the plaintiff, C. T. Duke, rented to

1011; Ins. Co. v. Griffith, 185 S. W. 335. But it does not follow that the judgment should therefore be reversed. To accomplish that the action of the trial court must not only have been erroneous, but it must appear

from the record sent to this court that the error was one calculated to cause, and which probably did cause, the rendition of an improper judgment. Rule 62a for the government of Courts of Appeals (149 S. W. x). The only effect the error (if it was one) could have had prejudicial to appellant's rights was to cause the jury to find in appellee's favor for a sum in excess of that they otherwise would have found.

the defendant about 50 acres of land for the [ 166 S. W. 1182; Ry. Co. v. Norton, 188 S. W. year 1915, for which the defendant was to pay to the plaintiff one-third of the corn and onefourth of the cotton raised thereon, and you further believe that thereafter the plaintiff in violation of said contract (if there was one) on, to wit, the 31st day of March, 1915, wrongfully caused a writ of sequestration to be levied on said 50 acres of land, and the defendant was wrongfully dispossessed of said land, and that by reason of the wrongful levy of such sequestration he was unable to make a crop during said year 1915 on said premises, and that by reason thereof he was damaged, then you will find for the defendant such damages as will reasonably compensate him for his being deprived of the right to occupy, cultivate, and use said premises for said year 1915. In considering such damages for the wrongful dispossession of a tenant, you may take into consideration the tenant's part of the market value of the crops he would reasonably be expected to raise on the premises during the said year 1915, less the expenses necessary in planting, cultivating, harvesting, and marketing the said crops."

The court refused the request of appellant that he instruct the jury as follows:

"If you find from a preponderance of the evidence that the defendant, W. S. Hatcher, was wrongfully ejected from the premises in controversy, by the plaintiff, and he was damaged thereby, then you are further charged that it was the duty of the defendant, W. S. Hatcher, to use reasonable diligence to procure other land upon which to plant and make a crop during the year 1915 and thereby lessen the damages sustained, if any. You are further instructed that if, after having used due diligence to procure other land upon which to make a crop during the year 1915, if such diligence has been shown, the said defendant, W. S. Hatcher, failed to procure same, it was his further duty to diligently seek such other employment, and in estimating damages sustained by the defendant, if any, you will take into consideration the amount that he earned, or by reasonable diligence could have earned, after being ejected from the premises in controversy by virtue of the writ of sequestration issued herein."

The contention on this appeal is that the trial court erred when he refused to give the requested special charge just set out above.

C. C. Hines, of Jefferson, and O'Neal & Allday, of Atlanta, for appellant.

[2] Keeping the testimony in mind, we do not think it at all likely it had that effect. And it seems that appellant took the same view of the matter, for he does not complain here, as he must to be entitled to relief on that account, that the verdict and judgment are excessive. Ry. Co. v. Stewart, 164 S. W. 1059; Ry. Co. v. Goff, 146 S. W. 573; Ry. Co. v. Sears, 155 S. W. 1003. The judgment is affirmed.

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3. PROCESS 149 RETURN OF SERVICESETTING ASIDE EVIDENCE.

Two witnesses are required to set aside a

Bartlett & Lincoln, of Linden, for appellee. deputy sheriff's return on a service of citation, or one witness corroborated by strong, clear, and satisfactory circumstances.

WILLSON, C. J. (after stating the facts as above). [1] It may be conceded that the measure of damages applicable to the case made by the testimony was as appellant claimed it to be, and therefore that it was error for the trial court to refuse the special charge set out in the statement above. Lott v. Ballew, 198 S. W. 645; Pressler v. Warren, 57 Tex. Civ. App. 635, 122 S. W. 909; Brooks v. Davis, 148 S. W. 1107; Smith v. Milam, 143 S. W. 293; Miller v. Oil Co.,

4. JUDGMENT 335(3)
SENCE OF SERVICE

CIENCY.

VACATION
EVIDENCE

ABSUFFI

In a bill of review to vacate a judgment, on the ground that citation had not been served on defendant, in order that negative testimony, that witnesses did not know that the citation had been served, may be given probative force, positive facts that, if service had been made, witnesses would necessarily have known it, must be shown.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from District Court, Jefferson stitutes strong corroborative circumstances, corCounty; E. A. McDowell, Judge.

Bill of review by Stephen McBride against H. B. Kaulbach and others to set aside a judgment. Judgment for defendants, and plaintiff appeals. Affirmed.

Davis, Johnson, Golden & Handley, of Dallas, for appellant.

roborating the testimony of the parent that he was not served in fact with citation, and the testimony should be admitted as part of the record, and the same should be submitted to the jury to determine this issue of service or no service."

On the contrary, it is urged that, when any portion of testimony offered as a whole is

Smith & Crawford and John Hancock, all objectionable and inadmissible, the court does of Beaumont, for appellees.

BROOKE, J. The plaintiff, appellant here, Stephen McBride, of Newton county, Tex., filed a bill of review in the Sixtieth district court of Jefferson county, numbered 13193, styled Stephen McBride v. H. B. Kaulbach et al., seeking to have canceled, annulled, vacated, and set aside judgment against the said Stephen McBride entered on the 4th day of April, A. D. 1911, in cause No. 8277, styled H. B. Kaulbach v. E. F. Montgomery, W. C. Lenahan, and Stephen McBride, in the said Sixtieth district court of Jefferson county, Tex. The judgment entered was for the sum of $6,030, interest, and costs. The case was tried before a jury, and on January 15, 1918, the court instructed the jury to return a verdict for the defendant H. B. Kaulbach. Plaintiff requested the court to submit the case to the jury on special issues, and the court refused said request. Judgment was entered in favor of Kaulbach and against McBride on the verdict of the jury. The case is now before this court for consideration.

The first assignment of error is that the trial court erred in sustaining the objections of defendants to and in failing and refusing to permit the plaintiff to introduce in evidence the testimony of Charley McBride, Penny McBride, and Susie Lewis, all on the question and issue of whether or not the sheriff of Newton county, Tex., by his deputy, T. H. Hext, served the said Stephen McBride with citation and copy of petition out of cause No. 8277, H. B. Kaulbach v. E. F. Montgomery et al., Sixtieth judicial district court of Jefferson county, Tex., as shown by plaintiff's bill of exception.

not err in sustaining objections to and in excluding all of the testimony offered of which said objectionable testimony forms a part.

It seems that the entire testimony offered of said witnesses, in substance, is to the effect that they lived near S. McBride, and were occasionally with him and read to him at times, and had a general knowledge of his business; that they never heard of his (McBride's) being served with citation issued out of the Beaumont case, and were told by said McBride that he was never served. The deposition of Susie McBride contained the following:

"I know this was the first time he (meaning McBride) ever knew of the suit No. 8277, H. B. Kaulbach v. E. F. Montgomery, W. C. Lenahan, and S. McBride, because I came directly on to his house and asked him about the whole matter, and he told me then and there that this was the first time he ever heard of or knew anything about the suit at Beaumont. When I went to my father about the matter, he told me he never heard of the Beaumont suit."

The deposition of Charley McBride contained the following:

"I never heard anything about the suit at Beaumont, Tex., styled H. B. Kaulbach v. E. F. Montgomery, W. C. Lenahan, and S. McBride, until we, including myself, was served with citation by the sheriff of Newton county, Tex., in about August 3, 1917. If he (meaning S. McBride) had been served, I would have known about it. My father would have told me, and I know he was not served."

The tendered deposition of Penny McBride contains the following:

"And was with him (meaning McBride) in February, 1911, before that time, and since that The propositions under this assignment time, and never heard of any such thing as my father being served by Mr. Hext with a citation."

are:

"(1) The testimony of adult children having to do with the business and affairs of, and living near and with, an old and partially blind parent, is admissible in evidence on the issue as to whether or not said parent was served with citation in a particular suit in the district court; and, with testimony of parent that he was not served, raises an issue of fact to go to the jury.

"(2) Where an old and partially blind parent testified that he was not served with citation in a particular suit, but the return of the officer shows that he was served, and the testimony of adult children having to do with the business and affairs of, and living near and with, said parent, is to the effect that he was not served, such testimony of said children con207 S.W.-37

[1, 2] S. McBride testified that in 1910 and 1911 he was traveling around generally, signing notes and deeds and attending to his own business. It appears that appellant offered all of the depositions of the witnesses Charley McBride, Penny McBride, and Susie Lewis together, which contained testimony, which, in our judgment, was hearsay. Upon objections urged by appellee, the entire deposition offered was excluded, and appellant refused to tender only the remaining portions after eliminating the hearsay testimony. We are of opinion that this testimony was not admissible, and in our judgment, when testi

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