of the sufficiency of the evidence to sustain the court's findings of fact on the issues stated.

We have carefully considered the evidence, and do not see our way clear to overrule the finding that appellee was an actual settler at the time he filed his applications to purchase, and hence approve such finding. On the other issue, however, our conclusion is in appellant's favor. The following are the pertinent material facts: It was generally known that the sections of school land in controversy, together with some 35 or 40 other sections, would be upon the market, subject to sale, on August 1, 1902, and the appellant, appellee, and numerous other persons had assembled and stationed themselves at the south or main entrance of the courthouse in which the county clerk kept his office. It is undisputed that appellant was prior to appellee in position, appellant having stationed himself in the door or on the step of said entrańce, appellee being among those immediately behind him. Appellee's evidence and the court's findings are to the effect that appellant was standing with several others just inside of the door when the sheriff of the county, several hours before the opening of August 1st, closed the door, stating to parties present that it would not be opened until 8 o'clock the following morning; that in closing the door appellant was pushed upon and straddled the neck of appellee, who thereupon rose up from his sitting position upon the doorstep, and threw appellant outward and forward into the crowd, and appellant thereupon entirely lost his position. Appellant requested the sheriff to replace him in the prior position he formerly occupied at the doorstep, but the sheriff declined to do so. Appellant thereafter, and after 1 o'clock p. m. of July 31st, met one L. E. Crutcher, a deputy county clerk, in the courthouse yard, and swore to his applications for the purchase of the lands in controversy, and said deputy, acting as appellant's agent, carried said applications into the clerk's office through a rear door, and the same were by the county clerk filed between 12 and 1 o'clock, as hereinbefore stated. Another purchaser did the same thing, and a number of others gained entrance into the clerk's office through said rear door, and caused their applications to be filed. In this manner all of the sections of land coming upon the market on August 1st were applied for prior to the opening of the south door, which was done by the sheriff about 2 o'clock a. m. of August 1st, upon the opening of which appellee entered and filed his applications as stated. The county clerk denied acting preferentially or collusively for or with any one, and stated that his custom was to receive applications whenever and wherever presented for filing, and that the closing of the south door and opening thereof was at the instance of the sheriff alone, who had control of said entrance.

There was some evidence tending to show that the rear door had been kept locked, though the evidence indicated that it had not been so kept after 12 p. m., July 31st. Appellant also denied collusion with the clerk or any one else, testifying that he simply met Mr. Crutcher, the deputy clerk, accidentally, not knowing that he was going to be at the place where he met him; that his applications had already been prepared, and that he swore to them before said deputy, and induced him to act as his agent in taking the applications in and causing them to be filed. The trial court's findings on the issue under consideration are as follows: "(c) I find that the acts of William Hanson, county clerk of Glasscock county, Texas, in filing the applications of E. T. Cobb, brought in by his deputy, acting as agent of defendant Cobb, and the acts of defendant Cobb in procuring same to be done, and defeating the rights of plaintiff, were of such character as to constitute fraud against plaintiff, whose rights were thus affected. (d) I find that such fraud on the part of defendant William Hanson, clerk, and his deputy, L. E. Crutcher, acting with E. T. Cobb, invalidated and rendered void the files of E. T. Cobb made after twelve o'clock midnight, July 31st, on sections in controversy. (e) I find that such files being so rendered void and invalidated, that the plaintiff, A. H. Gooch, by virtue of his applications and a full compliance of the law, is entitled to recover the lands in controversy from the defendant E. T. Cobb, and it is accordingly so adjudged." If it be admitted-though we do not decide that appellant's action and that of the clerks' under ordinary circumstances was fraudulent as against public policy, appellee nevertheless, in the case before us, is not in position to take advantage thereof. As before stated, it is undisputed that appellant occupied position prior to that of appellee, and that, had he been permitted to retain this position, his application would, in the regular course of events, as insisted upon by appellee, have been first filed. It is also undisputed that by force exerted by appellee appellant was deprived of this advantageous position. The contention in appellee's behalf here is that appellee so did in protection of his own position, and without design of obtaining any undue advantage over appellant. The court, in his findings, has not so found, and it is significant that appellee did not so testify on the trial. He, indeed, is silent on the subject. There is also evidence in the record tending to show that appellee and some others, prior to the night of July 31st, had a meeting suggestive of a purpose to forcibly obtain advantageous positions at the opening of the door of the courthouse. Appellee's brother testified, among other things: That he witnessed appellee at the time he threw appellant out of position. That the purpose of his presence in the crowd was to see "that anybody didn't jump on" his brother.

well as I remember, my brother threw him out on his head. I was out in the crowd. Mr. Cobb fell headlong when my brother threw him, and I saw him go over on his head and shoulders on the ground. It is not a fact that I cursed Mr. Cobb when he was making his apology. I did not say he ought to be stamped, and that I would stamp him. *** He [appellant] first apologized to my brother; then talked rough. He did not explain that that was his position, and try to get it back. I did not hear him call the sheriff to replace him at his position. I was there to see the thing go on, and to see if anybody jumped on my brother.

My brother and others had not got together and had an understanding the night before to get charge of the door and throw the others out. A few of them got together and sorter talked the matter over, agreeing that, if they wanted to file on the land, they would go to the door before filing on it. The meeting was at my mother's, and Earl Chaney, Tom Chaney, Mr. Wysong, and Seth Pike were all that I know of being there. I was there at that time, and talked with them, but never told them what I would do. I did not go in the room where they were, as it was none of my business. I did not file on any land. They were talking about the matter when they went out to go home. We did not agree to get our forces together and throw Mr. Cobb out of his position.

I was not in the meeting held here in town that day, in which we had an understanding to take charge of the door. It is not a fact that we had an understanding with the sheriff and deputy, and that Mr. Cobb was to be thrown out of his place by reason of shutting the door. Never said much to Mr. Cobb when he was thrown out on his head. I told brother that if anybody jumped on him I would see that they did not interfere. I told brother that if anybody sought to interfere with him that I would take care of him-anybody outside of Mr. Cobb. I would not help him against Mr. Cobb. If he beat him to death, would not say a word."

From the evidence as a whole we have concluded that appellee's force in depriving appellant of his advantageous position neutralizes whatever of irregularity there may have been in the filing of appellant's applications. Appellee, as the plaintiff below, is claiming under rejected applications, and before he should be heard to complain and to receive the aid of the court in setting aside the award actually made to appellant by the Commissioner of the General Land Office we think he should show clearly that he comes with clean hands. This, in our judgment, he has not done, and the judgment will accordingly be reversed, and here rendered for appellant.

Reversed and rendered.

JONES v. HUMPHREYS.* (Court of Civil Appeals of Texas. June 3, 1905.)

1. APPEAL-QUESTIONS FOR REVIEW.

Where neither the briefs nor bill of exceptions taken at the time of excluding evidence discloses what the objection was which the trial court sustained to the evidence offered, the ruling is not reviewable on appeal.

2. WIFE'S SEPARATE ESTATE-CONVEYANCE BY HUSBAND TO WIFE.

A conveyance of real estate by a husband to his wife makes the land conveyed her separate estate, irrespective of whether the deed specifically so declares.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Husband and Wife, § 426.]

3. MISTAKE-MUTUALITY WHEN IMMATE

RIAL.

Whether the vendor in a deed shared in a mistake as to the person to whom the deed should have been made is immaterial, after a conveyance has been made by the vendee to correct the alleged mistake.

Appeal from District Court, Hardeman County; S. P. Huff, Judge.

Action by Thomas Jones against Minnie Humphreys. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

E. E. Diggs, for appellant. Kearby & Kearby, for appellee.

SPEER, J. Appellant instituted this suit against appellee to foreclose a judgment lien upon a tract of land situated in Hardeman county, known as section No. 240, certificate No. 1-120, in block H of the Waco & Northwestern Railway Company lands. The lien was alleged to have arisen by reason of the recording of an abstract of judgment in appellant's favor against one H. C. Davis, the alleged owner of the land, on July 3, 1901; said judgment having been recovered against Davis in the county court of Childress county on the preceding day. The appellee answered, setting up that the land was purchased by her and paid for out of her individual means, and that through mistake the deed to the same was taken in the name of H. C. Davis, her brother-in-law. She further alleged that on discovering this mistake, on March 30, 1901-the first deed having been made March 5, 1901-said Davis duly conveyed the property to herself and her sister Mary B. Davis. By way of replication, appellant attacked this last conveyance as being in fraud of his rights as creditor of Davis. Upon a trial before a jury there was a verdict and judgment in favor of appellee.

Under the charge given to the jury, they were required to find, before they could return a verdict for the appellee, that she in fact bought the land in the first place, and that Davis had no interest whatever therein, but that the deed from the vendor to him was made through mistake or inadvertence, instead of being made to appellee. And there being sufficient evidence to raise this issue,

*Rehearing denied July 1, 1905, and writ of error denied by Supreme Court.

and to support a verdict for appellee based on such charge, we are not at liberty to disturb the judgment. At the time of the acquisition of the property one-half of the purchase money, $1,750, was paid in cash, admittedly out of funds belonging to Miss Humphreys, and the balance was evidenced by the notes of H. C. Davis. There was some evidence indicating that at the time it was the intention of all parties that the land should belong equally to Miss Humphreys and her sister Mrs. Davis, and that the latter should pay the purchase-money notes, which she expected to do out of an estate coming to her in Virginia. Upon the issues thus raised the court instructed the jury that if the property was bought by Davis and appellee jointly, even though appellee herself subsequently paid off the notes, or if they found the agreement to be that Mary B. Davis and appellee should purchase said land jointly, in either event one-half of the land in controversy would be subject to the appellant's judgment lien. In the face of these charges the jury returned a verdict for Miss Humphreys, as before stated.

The first and second assignments of error, to the effect that the undisputed evidence shows conclusively that the land in controversy at the date of the filing of appellant's abstract was the community property of H. C. Davis and wife, are obviously not well taken, in view of what we have previously said.

The third assignment attacks the ruling of the court in excluding the order of continuance in the county court of Childress county in the cause of this appellant versus H. C. Davis, upon the issue of fraud in the execution of the deed from H. C. Davis to his wife and appellee, of date March 30, 1901. What the objection was which the court sustained to this evidence when offered is not disclosed either in the briefs or the bill of exceptions taken at the time. This is fatal to the question. But looking to the contents of the proffered order, we find that it merely shows that on April 2, 1901, Davis made an application for a continuance, and the court, having heard and considered the same, was of the opinion that the cause should be continued, and it was so ordered. This, we think, does not throw any light upon the question of fraud, tending to impeach the conveyance in question. There was no evidence before the court which could be considered as constituting an attack upon the conveyance from Davis to his wife and sister; and, indeed, appellant does not complain that such issue was not submitted to the jury. This being true, the deed itself would constitute an insuperable barrier to appellant's recovery in this case, because at the date of the filing and recording of his abstract against Davis, the land did not stand in Davis' name, but in the names of appellee and her sister Mrs. Davis; the deed to them having been recorded on July 1, 1901. In so far as Mrs. Davis' interest in the land is concerned, the deed from

Davis to her would necessarily make it her separate estate, whether that instrument specifically so declared or not. It could have no other effect. Lewis v. Simon, 72 Tex. 470, 10 S. W. 554; Callahan v. Houston, 78 Tex. 494, 14 S. W. 1027; Swearingen v. Reed (Tex. Civ. App.) 21 S. W. 383.

On the issue of mistake in taking the deed in the name of Davis, we take it to be immaterial that it was not shown that Scarbrough, the vendor, shared the mistake, and therefore overrule the assignment making this point.

We find no error in any of the assignments, but believe the court's charge was a proper exposition of the law as applied to the facts of this case, and find that the evidence was sufficient to support the verdict and judgment.

Judgment affirmed.

FREEMAN v. SLAY.*

(Court of Civil Appeals of Texas. May 27, 1905.)

1. APPEAL-REVIEW-VERDICT ON CONFLICTING EVIDENCE.

Where there is conflicting evidence on an issue of fact, the verdict is conclusive, in the absence of material error in the proceedings. 2. TRESPASS TO TRY TITLE BURDEN OF PROOF-PLEA IN RECONVENTION-INSTRUCTIONS-ERROR.

In trespass to try title, defendant alleged that he had leased the land from plaintiff, and claimed damages for eviction under a writ of sequestration in the action. Held, that a charge that the burden of proof was on defendant to establish the allegations of his plea in reconvention by a preponderance of evidence, and that on failure so to do the finding should be for plaintiff, was properly refused, as plaintiff was not entitled to recover possession without proving his right thereto by a preponderance of evidence.

3. SAME-EVIDENCE-HARMLESS ERROR.

The material controversy, on which the evidence was conflicting, not being as to the description of the land rented, but as to whether plaintiff had rented any land to defendant for the year 1904, testimony of a witness (shown by the agreed statement of facts to have given positive testimony as to the fact of plaintiff's renting land in 1903 to defendant for the year 1904) that, in a conversation with plaintiff in 1903 in regard to renting land to defendant for 1904, his "understanding" was that defendant was to have certain land, and that he "understood" defendant was to have 140 acres, while objectionable, in no way affected the result.

4. TRIAL-FAILURE TO REQUEST CHARGE.

Where an instruction was correct as far as it went, plaintiff could not avail himself of a mere omission, without having requested a charge to supply it.

5. LANDLORD AND TENANT-EVICTION-MEASURE OF DAMAGES.

In trespass to try title, where defendant alleged that he leased the land from plaintiff, and reconvened for wrongful eviction under the writ of sequestration in the action, a charge that defendant's measure of damages was the reasonable market value of the corn and cotton he would have reasonably been expected to raise on the premises during the year, less the rents due plaintiff therefrom, and less the amount

*Rehearing denied July 1, 1905.

defendant would have expended for hired hands to assist in making the crop, and less the amount he earned by engaging in a similar or different employment after breach of the contract, was correct, though not instructing, except inferentially, to credit the damages, if any, with the market value of corn and cotton shown to have been raised by defendant during the year on other premises.

[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, §§ 723-727.]

Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.

Trespass to try title by T. F. Freeman against J. P. Slay. Judgment for defendant, and plaintiff appeals. Affirmed.

The charge on the measure of damages referred to in the opinion was as follows: "Then you will find for defendant on his cross-action, and assess his damages at the reasonable market value of the corn and cotton which defendant and his family would have been reasonably expected to raise on said premises during the year 1904, less the rents due to the plaintiff therefrom, and less the amount of money defendant would have expended for hired hands to assist him and his family in making said crop, and less such an amount as defendant and his family are shown to have earned by engaging in a similar or different employment after the breach of the contract." Plaintiff's objection was that nowhere in the charge were the jury told to credit the damages, if any, on account of the breach of contract by plaintiff, except inferentially, with the market value of the corn and cotton raised by defendant, under the proofs, on other premises during the year.

Crudgington & Penix, for appellant. H. E. Bradford, for appellee.

STEPHENS, J. Appellant, suing in trespass to try title, and causing appellee to be ejected under writ of sequestration, was admitted in the answer of appellee to be the owner of the 'land in dispute, but his right to recover possession was denied on the ground that he had rented the land to appellee for the year 1904; the writ of sequestration having been sued out and executed during January of that year. On the same ground appellee sought to recover damages against appellant for the wrongful eviction; claiming the reasonable value of the crops he would have made on the land during that year if he had been permitted to cultivate it, and other special damage incident to the execution of the writ of sequestration. Whether or not appellant had rented the land to appellee for the year 1904 was the controlling issue of fact in the case, and on it the testimony was decidedly conflicting. The verdict, which was in appellee's favor, is therefore conclusive, unless there was material error in the proceedings.

Appellant assigns error to the court's refusal to instruct the jury as follows: "You

are charged that the burden of proof is upon the defendant to establish the allegations in his plea in reconvention, and, if he does not so establish said allegation in said plea by a preponderance of the evidence, you will find for the plaintiff, and so say by your verdict." He also assigns error because the following charge was given: "The burden is on the plaintiff to establish his right to possession of the premises sued for at the time of the filing of this suit, by a preponderance of evidence, and the burden is on the defendant to establish his injury by reason of the levy of the writ of sequestration by a preponderance of the evidence." Both charges were objectionable, but the one refused more so than the one given. True, the burden was on appellee to establish by a preponderance of the evidence the material facts alleged in his plea in reconvention, and, failing to discharge this burden, he was not entitled to recover damages; but the requested charge, instead of so declaring, in that event directed a finding "for the plaintiff." It thus went a little too far, and was consequently properly refused. The plaintiff was not entitled to recover possession without proving by a preponderance of the evidence his right to possession, which depended on whether or not he had rented the land to appellee, although the defendant may have failed to establish by a preponderance of the evidence his right to recover damages. The last clause of the charge given seems rather too restrictive, and possibly had a tendency to mislead the jury as to the extent to which the burden of proof was on appellee, but this is not the precise objection made to the charge. It was correct as far as it went, and appellant cannot avail himself of such error of omission without having requested a charge to supply it which might have been given.

The following deposition of M. T. Hatley was read in evidence: "I had a coversation with T. F. Freeman in the fall of 1903 in regard to renting land to Mr. Slay for the year 1904. I don't know the name of the survey. My understanding was that he was to have the land that Slay and Mitchell had tended for the year 1903, and it was on the south and west of the branch known as the 'East Branch.' I understood Slay was to have 140 acres. The number of acres was mentioned in the first conversation." The testimony was objected to because of the use of the words "understanding" and "understood." But in the agreed statement of facts we find that this witness gave positive testimony as to the fact of appellant's renting land to appellee in the fall of 1903 for the year 1904. The material controversy, on which the evidence was conflicting, was not as to the description of the land rented, but as to whether appellant had rented any land at all to the appellee for the year 1904. It is evident, therefore, from an examination of the agreed statement of facts, that the

objectionable feature of this particular answer in the deposition in no manner affected the result.

The charge on the measure of damages seems to have been warranted by the authorities cited in the briefs. Raywood Rice Canal & Milling Co. v. Langford Bros. (Tex. Civ. App.) 74 S. W. 927, and cases there cited; writ refused, 77 S. W. 253; Rogers v. McGuffey (Tex. Sup.) 74 S. W. 753. At all events, the charge given seems more in conformity to the authorities cited than those requested by appellant.

All the assignments have been carefully examined and found to be without merit, those discussed being the ones principally relied on.

Judginent affirmed.

MISSOURI, K. & T. RY. CO. OF TEXAS v. JACKSON et ux.

(Court of Civil Appeals of Texas. June 7, 1905.)

RAILROADS-CROSSING ACCIDENT-INSTRUC

TIONS.

Where, in an action for injuries to plaintiff in a railroad crossing accident, one of the grounds of negligence alleged was that the engine bell was not rung as required by ordinance, and some facts tended to show that the accident might have happened whether the bell was rung or not, it was error to refuse an instruction that, if the failure to ring the bell was not the proximate cause, the jury should find for defendant on such issue.

Appeal from District Court, Hill County; Nelson Phillips, Judge.

Action by J. R. Jackson and wife against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

T. S. Miller and Ramsey & Odell, for appellant. Wear, Morrow & Smithdeal, for appellees.

FISHER, C. J. This is a suit by J. R. Jackson and his wife, Mrs. Mary L. Jackson, to recover the sum of $10,000 as damages for personal injuries sustained to Mrs. Jackson in attempting to cross one of the public streets of the city of Hillsboro. It is alleged that in attempting to cross she was struck by one of appellant's engines, and sustained the injuries described in the petition. Verdict and judgment were in appellees' favor for $1,500.

We have carefully considered every assignment of error presented in the brief, and find that no reversible error is pointed out, except as presented by the eighteenth assignment of error. That assignment is to the effect that the court erred in refusing to give the following charge requested by the appellant: "You are instructed that if you should believe from the evidence in this case that the plaintiff Mrs. Mary L. Jackson was struck

or fell or was frightened by an engine of defendant, as claimed by her, and that she was thereby injured as alleged by her in her petition, and should you further believe that at said time the bell on said engine was not rung when said engine was started to move and while it was in motion, but should further believe that the failure to ring the bell was not the proximate cause of such injury, or that, by reason of the time, place, and manner in which plaintiff undertook to cross said track, she would have received such injury whether said beli had been rung or not, then and in such event you will find for the defendant on the issue as to its alleged negligence in failing to ring the bell on said engine." This particular question was not covered by the main charge of the court, and the defense presented by the special instruction arises from the evidence. One of the grounds of negligence alleged by the plaintiff is that those operating the engine failed to ring the bell when approaching the public crossing, and that that was a duty required of the appellant by virtue of an ordinance of the city of Hillsboro. There are some facts testified to which had a tendency to show that the accident might have followed, whether the bell was rung or not, and there is some evidence which has a tendency to show that the failure to ring the bell was not the proximate cause of the alleged accident. This charge should have been given, and for the error in this respect the judgment will be reversed and the cause remanded.

The objections raised to the insufficiency of the averments of the petition in attempting to allege some of the grounds of negligence relied upon are possibly well taken, and which objections will be obviated, doubtless, by an amendment.

Judgment reversed and cause remanded.

An application for a continuance made by plaintiffs through their attorney, containing an admission contradicting plaintiffs' testimony, is admissible for that purpose.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 730.]

2. APPEAL-Verdict-CONFLICTING EVIDENCE. Where a verdict is clearly supported by the testimony of a credible witness, it will not be set aside because of a conflict between his testimony and that of other witnesses.

Appeal from District Court, County; Jas. L. Shepherd, Judge.

Howard

Action by W. Scott & Co. against E. T. Woodard. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

*Rehearing denied June 24, 1905, and writ of error denied by Supreme Court.