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"(1) I find that the deed from the plaintiff to ure of trial court to find as facts certain matthe defendant, of record in Book 140, page 562, ters, it not appearing from record that appelof Fannin County Deed Records, does not state lant requested trial court to so find. the actual consideration.

“(2) I find that the real consideration for the 3. ADVERSE POSSESSION 7(2)—UNDER TENexecution of said deed was the payment by the

YEAR STATUTE-UNPATENTED LAND. defendant to the plaintiff of $3,525, with the

The ten-year statute would begin to run in agreement between said parties that if such favor of plaintiff when he took possession of parts of such land as designated in the memoran- lands within a valid survey claiming title by dum in writing of date February 19, 1916, sign- virtue of a deed, although no patent had been ed by the plaintiff and introduced in evidence, issued to lands within the survey, since those should measure more than 35242 acres, then de- claiming adversely to plaintiff by virtue of the fendant was to pay for any excess of such land survey could, in view of Vernon's Sayles' Ann. at the rate of $10 per acre.

Civ. St. 1914, art. 7742, have maintained tres"(3) I further find that under such trade and pass to try title. agreement plaintiff was to convey to defendant all of the sand bar and untillable lands, not em

On Appellees' Motion for Rehearing. braced in such memorandum agreement, free of 4. BOUNDARIES O3(3) DISTANCE VERSUS charge.

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

Where calls of survey were for objects speci. only 21942 acres."

fied as on the ground at distances indicated, the

fact that survey may not have closed according On these facts the court entered judgment to a calculation made of distances called for in denying the plaintiff a recovery against the the field notes would not render survey void as defendant, and denying the defendant a re

distances called for would be extended to reach

the objects. covery on his cross-action against the plaintiff. The plaintiff appeals. There is evidence warranting the findings

Appeal from District Court, Marion Counof fact made by the court, and they are here ty; J. A. Ward, Judge. sustained.

Suit by Robert Spearman against Charlie B. B. Sturgeon, of Paris, for appellant.

Mims and others. The trial court rendered C. A. Wheeler and Cunningham & McMa- judgment against plaintiff for the land he hon, all of Bonham, for appellee.

sued for, but rendered judgment in his favor

for other lands, suit for which he abandonLEVY, J. (after stating the facts as above). ed when he filed amended petition, and plainThe appellant's assignments of error chal- tiff appeals. Judgment reversed, and cause lenge the findings of the trial court as being remanded for new trial. contrary to and unsupported by the evidence.

The suit was by appellant against appelAfter a careful review of the evidence in lees, Charlie Mims, R. B. Rogers, Eva Johnthe record, it may not properly be said, we son, and Will Johnson. As made by the conclude, that the court's findings of fact amended petition file December 11, 1917, are either so entirely unsupported by or con

on which the trial was had, it was to recovtrary to the evidence as to warrant setting er of appellee Mims 4942 acres of the Robert them aside. And it is further concluded that Mason survey in Marion county, and of said the judgment entered by the court was in ac-Mims and the other appellees the value of cordance with the proper legal effect attach- timber it was alleged they had cut and reing to the facts found by the trial court.

moved from the land. There being no reversible error in the rec

Appellant relied solely upon the statute of ord as complained of, the judgment is af- limitations of five and ten years for title. firmed.

The trial was by the court without a jury.
He found as facts the following: One Hoyt

by a deed dated February 23, 1874, conveySPEARMAN V. MIMS et al. (No. 2005.)

ed to appellant 10 acres of the W. C. John

son survey on which appellant then resided (Court of Civil Appeals of Texas. Texarkana.

as Hoyt's tenant, and undertook to convey July 9, 1918. On Appellees' Motion

to appellant a tract of 110 acres by a defor Rebearing, Oct. 10, 1918.)

scription not definite enough to identify 1. TRIAL 395(5)-FINDINGS OF FACT-IN- same. In buying the 110-acre tract, appelCLUDING EVIDENCE.

lant thought he was acquiring the Curtis The court's findings should be of facts, and Morris survey of about 6142 acres, a large should not include evidence which it thought part of which was then fenced and in cultiestablished, as facts, findings made.

vation. A few years (how many not stated) 2. APPEAL AND ERROR OW219(2)-FAILURE TO after Hoyt made the deed to appellant, the MAKE FINDINGS OF FACT-REVIEW.

latter moved the fence inclosing land in the Court on appeal is not authorized to con- Morris survey so as to include 5 to 10 acres sider assignments of error predicated on fail of the Robert Mason 99 acres survey lying

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

immediately south of the Morris survey. Ap- WILLSON, C. J. (after stating the facts as pellant used and cultivated the 5 to 10 acres above). [1, 2] Of the seven assignments in apfor a period of at least 20 years after the pellant's brief, five are predicated on the date of Hoyt's deed to him, but he did not failure of the trial court to find as facts cerknow that said 5 to 10 acres was a part of tain matters specified. The complaints are the Mason survey until one Brashier survey on the theory that it was the duty of that ed it and the Morris survey about five years court in making findings of fact to include before the date of the trial of the case. "every particle," quoting from the brief, "of Shortly after Brashier surveyed said surveys material testimony in aid of limitation title." as stated, appellant applied to appellee Mims It not only was not the duty of the court to for permission to allow the fence he had do that, but it was his duty not to do it. His moved so as to inclose with land on the Mor- findings should have been of facts only, and ris survey 5 to 10 acres of the Mason survey, should not have included evidence which he as stated above, to remain as it then was un- thought established as facts findings he made. til such time as he could conveniently re | Oldham v. Medearis, 90 Tex. 506, 39 S. W. move it from the Mason land. Appellant | 919; Thompson v. Mills, 45 Tex, Civ. App. rendered 4912 acres of the Mason survey for 642, 101 S. W. 560; Gordon v. McCall, 20 taxes from about the year 1904 to the date Tex. Civ. App. 283, 48 S. 1111; Lumber of the trial, and paid the taxes assessed Co. v. Hare, 61 Tex. Civ. App. 509, 130 S. W. against same during that time. Field notes 864; Barnes v. Riley, 145 S. W. 292. But, of the Mason survey made May 24, 1861, pur- if the rule were otherwise, we would not be ported to contain 99 acres, and the correct authorized to consider appellant's comfield notes made November 30, 1910, on which plaints, because it does not appear from the the survey was patented to Mason's heirs record that he requested the court to make February 23, 1911, contained 99 acres. Ap- the findings he says the court should have pellant was not in possession of any part of made. Veatch v. Gray, 41 Tex. Civ. App. 145, said Mason survey long enough after it was 91 S. W. 324; Caplen v. Cox, 42 Tex, Cir. corrected by field notes made November 30, App. 297, 92 S. W. 1048; Hatton v. Lumber 1910, as stated, to perfect title in him under Co., 57 Tex. Civ. App. 478, 123 S. W. 163; Oil the ten-year statute of limitations.

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:

[3] The other assignments are predicated (1) That the deed from Hoyt to appellant was think the conclusion reached by the court

on the trial court's conclusions of law. We void as a conveyance of the 110 acres mentioned in it, because said 110 acres were not sufti- that the deed from Hoyt to appellant was in. ciently described therein.

effective as a conveyance of the 110 acres (2) That appellant, having failed to show that mentioned therein, because it did not suffihe was claiming the land in controversy under ciently describe the land, was warranted by a deed conveying same to him, was not entitled the testimony. But we think the conclusion to recover under the five-year statute of lim- that the ten-year statute of limitations did itations. (3) "That," quoting, "since the state had not favor until the Mason survey was corrected

not in any event begin to run in appellant's parted with its title to said Robert Mason survey by patent, and since the heirs of Robert by the field notes made November 30, 1910, Mason and their assigns have been in no posi- was incorrect. And, as it appears the action tion prior to the 30th day of November. 1910, of the court in finding against appellant's to maintain an action of trespass to try title claim under that statute may have been due against the plaintiff or any other trespasser entirely to the erroneous view he took of the on said land, or mandamus against the Com-law, we think the judgment should be re missioner of the General Land Office to compel versed and the cause remanded for a new the issuance of patent, that limitations did not

trial. begin to run prio to that time, and therefore

It appears from the record that the the plaintiff cannot recover upon his plea of 4942 acres sued for were embraced in the ten-year statute of limitations."

original field notes of the Mason survey made

May 24, 1861, and in the corrected field On said findings and conclusions the trial notes made November 30, 1910 on which the court rendered judgment against appellant

patent issued. We see no reason why the for the land he sued for, as shown by the ten-year statute of limitations should not amended petition on which the trial was

have commenced to run in appellant's favor had; but at the same time rendered judg- when he took possession of the land, claim. ment in his favor for 10 acres of the Wm. ing to own it by virtue of the deed made to Johnson survey and all of the Curtis Morris him by Hoyt, nor why, if he continued there survey, suit for which he abandoned when he afterwards to occupy or use it, claiming it filed said amended petition.

as his own, for a period of ten years, he did

not acquire the title thereto. The reason T. D. Rowell, of Jefferson, for appellant. stated by the trial court was that the heirs

Schluter & Singleton, of Jefferson, for ap- of Mason and their assigns were "in no pellees.

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, 702. APPEAL AND ERROR O 1068(5)-REVIEWTex. 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 ver“Appellant contends that the statute of lim- dict, cannot be sustained, where appellant does itations could not commence to run against his not claim on appeal that verdict is excessive. 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

Appeal from District Court, Cass County; 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

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. Affirmed. less to resume control of it, and it having been

This was a suit by appellant against apappropriated by virtue of a valid certificate the equitable title was in the owner of the certifi- pellee to recover possession of a tract of cate, and the statute of limitation would run land in Cass county which appellee claimed against such title."

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 iscause remanded for a new trial.

suance of a writ of sequestration, by virtue

of which he had appellee evicted from the On Appellees' Motion for Rehearing.

land April 20, 1915. By a cross-action [4] From findings of the trial court it ap against appellant, appellee sought a recovpears that there was a notation in pencil on ery of actual damages in the sum of $1,288.83 the field notes of the Mason survey made May which he claimed he suffered by reason of 24, 1861, as follows: “Does not close-error appellant's breach of the alleged rental connorth 20 varas, error west 47 varas. October tract and his eviction from the land, and 8, 1861." It is insisted that it therefore ap- also sought a recovery of $1,000 as exemplary peared that the survey was not then a valid damages. The trial resulted in a judgment one, and hence that the conclusion of the in appellant's favor for the land, and in aptrial court that the statute of limitations of pellee's favor for $200 as actual damages he ten years did not begin to run in appellant's was entitled to recover of appellant. favor until the survey was corrected by the Appellee testified that crops he had plantfield notes made November 30, 1910, was cor- ed were growing on the land at the time he rect, because within the rule announced in was evicted therefrom. He further testified Von Rosenberg v. Cuellar, 80 Tex. 249, 16 s. that, had he not been evicted, his part of W. 58. But we think the fact that the sur- crops he would have grown on the land vey may not have closed according to a cal. would have been worth, after deducting the culation made of distances called for in its cost to him, aside from the value of his own field notes would not bave rendered it in labor and that of members of his family, valid. The calls were for objects specified about $700. He further testified that he enas on the ground at distances indicated. If | deavored, after he was evicted, to rent other the objects would not have been reached at land to cultivate during the year 1915, but the distances called for, the survey would not could not, except that he worked 17 days at for that reason have been invalid; but the the rate of $35 a month. Appellee's testimodistances called for would have been extended ny as to the crops he would have grown on so as to reach the objects and so close the the land, and their value, if he had been survey.

permitted to grow them, was not disputed by The motion is overruled.

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 DUKE v. HATCHER. (No. 1987.)

and to secure other employment seems to

have been neither affirmed nor denied by (Court of Civil Appeals of Texas. Texarkana. other testimony. Oct. 31, 1918.)

The court instructed the jury as follows: 1. APPEAL AND ERROR 1170(9)-REVIEW

"If you believe from a preponderance of the HARMLESS ERROR.

evidence that the plaintiff, C. T. Duke, entered In a suit for eviction from a farm, refusal into a contract with the defendant, W. S. Hatchof instruction that it was the tenant's duty to er, by which the plaintiff, C. T. Duke, rented to

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

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 1011; Ins. Co. v. Griffith, 185 S. W. 335. to the plaintiff one-third of the corn and one

But it does not follow that the judgment fourth of the cotton raised thereon, and you fur should therefore be reversed. To accomplish ther believe that thereafter the plaintiff in vio- that the action of the trial court must not lation of said contract (if there was one) on, to wit, the 31st day of March, 1915, wrongfully only have been erroneous, but it must appear caused a writ of sequestration to be levied on

from the record sent to this court that the said 50 acres of land, and the defendant was error was one calculated to cause, and which wrongfully dispossessed of said land, and that probably did cause, the rendition of an imby reason of the wrongful levy of such seques- proper judgment. Rule 62a for the governtration he was unable to make a crop during ment of Courts of Appeals (149 S. W. x). said year 1915 on said premises, and that by The only effect the error (if it was one) reason thereof he was damaged, then you will could have had prejudicial to appellant's find for the defendant such damages as will reasonably compensate him for his being deprived rights was to cause the jury to find in appelof the right to occupy, cultivate, and use said lee's favor for a sum in excess of that they premises for said year 1915. In considering otherwise would have found. such damages for the wrongful dispossession of [2] Keeping the testimony in mind, we do a tenant, you may take into consideration the not think it at all likely it had that effect. tenant's part of the market value of the crops And it seems that appellant took the same he would reasonably be expected to raise on the view of the matter, for he does not complain premises during the said year 1915, less the expenses necessary in planting, cultivating, har- here, as he must to be entitled to relief on vesting, and marketing the said crops."

that account, that the verdict and judgment

are excessive. Ry. Co. v. Stewart, 164 S. The court refused the request of appellant w. 1059; Ry. Co. v. Goff, 146 S. W. 573; that he instruct the jury as follows:

Ry. Co. v. Sears, 155 S. W. 1003. "If you find from a preponderance of the evi- The judgment is affirmed. dence 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 McBRIDE V. KAULBACH et al. (No. 388.) upon which to plant and make a crop during the year 1915 and thereby lessen the damages sustained, if any. You are further instructed (Court of Civil Appeals of Texas. Beaumont. that if, after having used due diligence to pro

Dec. 28, 1918. Rehearing Denied cure other land upon which to make a crop dur

Jan. 8, 1919.) ing the year 1915, if such diligence has been shown, the said defendant, W. S. Hatcher, failed 1. TRIAL 85 – OFFER OF EVIDENCE-Evito procure same, it was his further duty to dili- DENCE INADMISSIBLE IN PART. gently seek such other employment, and in esti- Offer of evidence in part consisting of hearmating damages sustained by the defendant, if say is properly rejected when offered as a any, you will take into consideration the amount whole. that he earned, or by reasonable diligence could

VACATION

2. JUDGMENT 335(3) have earned, after being ejected from the prem

EvI.

DENCE-SUFFICIENCY. ises in controversy by virtue of the writ of sequestration issued herein."

In a bill of review to set aside a judgment,

evidence that the children of defendant in the The contention on this appeal is that the judgment had no knowledge that defendant had trial court erred when he refused to give been served with citation was too remote to the requested special charge just set out show absence of such service. above.

3. PROCESS 149 – RETURN OF SERVICE

SETTING ASIDE-EVIDENCE. C. C. Hines, of Jefferson, and O'Neal &

Two witnesses are required to set aside a Allday, of Atlanta, for appellant. 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 4. JUDGMENT 335(3) VACATION AB measure of damages applicable to the case

SENCE OF SERVICE EVIDENCE SUFFI

CIENCY. made by the testimony was as appellant claimed it to be, and therefore that it was

In a bill of review to vacate a judgment, on error for the trial court to refuse the spe- the ground that citation had not been served cial charge set out in the statement above. that witnesses did not know that the citation

on defendant, in order that negative testimony, Lott v. Ballew, 198 S. W. 615; Pressler v. had been served, may be given probative force, Warren, 57 Tex. Civ. App. 635, 122 S. W. positive facts that, if service had been made, 909; Brooks v. Davis, 148 S. W. 1107; Smith witnesses would necessarily have known it, V. Milam, 143 S. W. 293; Miller v. Oil Co., must be shown.

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

1- On the contrary, it is urged that, when any

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

roborating the testimony of the parent that he

was not served in fact with citation, and the Bill of review by Stephen MoBride against testimony should be admitted as part of the H. B. Kaulbach and others to set aside a record, and the same should be submitted to the judgment. Judgment for defendants, and jury to determine this issue of service or no plaintiff appeals. Affirmed.

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

portion of testimony offered as a whole is Smith & Crawford and John Hancock, all objectionable and inadmissible, the court does of Beaumont, for appellees.

not err in sustaining objections to and in ex

cluding all of the testimony offered of which BROOKE, J. The plaintiff, appellant here, said objectionable testimony forms a part. Stephen McBride, of Newton county, Tex.,

It seems that the entire testimony offered filed a bill of review in the Sixtieth district of said witnesses, in substance, is to the effect court of Jefferson county, numbered 13193, that they lived near S. McBride, and were styled Stephen McBride v. H. B. Kaulbach et occasionally with him and read to him at al., seeking to have canceled, annulled, vacat- times, and had a general knowledge of his ed, and set aside judgment against the said business; that they never heard of his (McStephen McBride entered on the 4th day of Bride's) being served with citation issued out April, A. D. 1911, in cause No. 8277, styled H. of the Beaumont case, and were told by said B. Kaulbach v. E. F. Montgomery, W. c. McBride that he was never served. The depLenahan, and Stephen McBride, in the said osition of Susie McBride contained the folSixtieth district court of Jefferson county,

lowing: Tex. The judgment entered was for the sum "I know this was the first time he (meaning of $6,030, interest, and costs. The case was McBride) ever knew of the suit No. 8277, H. B. tried before a jury, and on January 15, 1918, Kaulbach v. E. F. Montgomery, W. C. Lenathe court instructed the jury to return a ver- han, and S. McBride, because I came directly dict for the defendant H. B. Kaulbach. Plain-on to his house and asked him about the whole tiff requested the court to submit the case to matter, and he told me then and there that this

was the first time he ever heard of or knew the jury on special issues, and the court re- anything about the suit at Beaumont. When I fused said request. Judgment was entered went to my father about the matter, he told me in favor of Kaulbach and against McBride on he never heard of the Beaumont suit." the verdict of the jury. The case is now before this court for consideration.

The deposition of Charley McBride conThe first assignment of error is that the tained the following: trial court erred in sustaining the objections "I never heard anything about the suit at of defendants to and in failing and refusing Beaumont, Tex., styled H. B. Kaulbach v. E. to permit the plaintiff to introduce in evi- F. Montgomery, W. C. Lenahan, and S. Mcdence the testimony of Charley McBride, Bride, until we, including myself, was served Penny McBride, and Susie Lewis, all on the with citation by the sheriff of Newton county, question and issue of whether or not the Tex., in about August 3, 1917. If he (meansheriff of Newton county, Tex., by his deputy, ing S. McBride) had been served, I would have

known about it. T. H. Hext, served the said Stephen McBride me, and I know he was not served.”

My father would have told with citation and copy of petition out of cause No. 8277, H. B. Kaulbach v. E. F. Mont- The tendered deposition of Penny McBride gomery et al., Sixtieth judicial district court contains the following: of Jefferson county, Tex., as shown by plain

"And was with him (meaning McBride) in tiff's bill of exception.

February, 1911, before that time, and since that The propositions under this assignment time, and never heard of any such ing as my

father being served by Mr. Hext with a cita"(1) The testimony of adult children having

tion." to do with the business and affairs of, and liv

[1, 2] S. McBride testified that in 1910 and ing near and with, an old and partially blind parent, is admissible in evidence on the issue 1911 he was traveling around generally, signas to whether or not said parent was served ing notes and deeds and attending to his own with citation in a particular suit in the dis- business. It appears that appellant offered trict court; and, with testimony of parent that all of the depositions of the witnesses Charley he was not served, raises an issue of fact to McBride, Penny McBride, and Susie Lewis togo to the jury.

gether, which contained testimony, which, in “(2) Where an old and partially blind par- our judgment, was hearsay. Upon objections ent testified that he was not served with cita- | urged by appellee, the entire deposition oftion in a particular suit, but the return of the officer shows that he was served, and the testi- fered was excluded, and appellant refused to mony of adult children having to do with the tender only the remaining portions after business and affairs of, and living near and eliminating the hearsay testimony. We are with, said parent, is to the effect that he was of opinion that this testimony was not adnot served, such testimony of said children con- | missible, and in our judgment, when testi

207 S.W.-37

are:

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