receive and transport said cattle." Rev. St. 1895, art. 4535, made it the duty of the Frisco to receive from the Rock Island the cattle tendered to it for the purpose of further transportation. And article 4496, Rev. St. 1895, expressly declares that, in case of a refusal to so take and transport property, the refusing corporation shall pay to the party aggrieved all damages which shall be sustained thereby. As before stated, no excuse for failure to receive the cattle was shown by the Frisco. The evidence tended to show that the detention in the pens was reasonably necessary, and the charge in question required the jury to "believe that by reason of such failure the cattle had to be kept in the muddy pens," etc. In such event, we think the damage done the cattle by reason of their necessary detention in the pens was damage for which the Frisco was liable. In such case it cannot escape liability on the ground, as insisted, that it could assume that the cattle would be reasonably well cared for during the enforced detention in Ft. Worth. Under the state of facts submitted by the charge, the Frisco was liable for all damages that naturally and proximately resulted from its failure, whether it had notice of the condition of the pens or not, as in such case the law will impute notice to it of such proximate and natural results. Besides, if the pens were thus used by the Frisco, as there was evidence tending to show, knowledge and responsibility for the condition of the pens should also be imputed to it.

Complaint is made of the action of the court in overruling the motion for a new trial on numerous grounds. One is that there is no evidence of a sufficient tender of the cattle and tariff rate at Ft. Worth. This objection, however, it seems to us, is completely answered by the statement that no such objection was urged at the time, and that the Frisco at first agreed to receive the cattle; thereby waiving any informality or supposed insufficiency in the tender. Again it is insisted that the evidence tends to show that the cattle received some damage at Oklahoma City while on the Choctaw, Oklahoma & Gulf Railway Company. There is some evidence of damages as presented in this contention, but we think the evidence in this particular will not require a reversal. There is neither pleading nor proof that appellees were responsible therefor, or that the injuries, if any, mentioned, were the result of negligence on the part of any one; and the court, in its charge, expressly limited the jury in their finding of damages to such as resulted from negligence on the part of the Frisco. The jury, under the charge, were not authorized to find damages against the Frisco, except such as resulted from the detention of the cattle in the pens at Ft. Worth, and such as resulted from its negligence after having received the cattle at Oklahoma City; thus, as stated, excluding from the con

sideration of the jury the damages, if any, occurring on other lines.

What we have said, we think, substantially disposes of all assignments, and all are accordingly overruled, and the judgment affirmed.

DUNN et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al. (Court of Civil Appeals of Texas. July 1, 1905.)

1. COURTS OF CIVIL APPEALS JURISDICTION -ISSUANCE OF WRIT OF PROHIBITION.

Under Const. art. 5, § 6, providing that the Courts of Civil Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts, which shall extend to all civil cases of which the district courts or county courts have original or appellate jurisdiction under such restrictions and regulations as may be prescribed by law, and that they shall have such other jurisdiction, original and appellate, as may be prescribed by law and Sayles' Ann. Civ. St. 1897, art. 997, providing that the Courts of Civil Appeals shall have power to issue writs of mandamus and all other writs necessary to enforce their jurisdiction, a court of civil appeals has no power to issue a writ of prohibition when the writ is not sought in aid of the appellate jurisdiction of the court. 2. SAME-MANDAMUS TO JUDGE OF INFERIOR COURT.

Under Const. art. 5, § 6, and Sayles' Ann. Civ. St. 1897, art. 1000, providing that the Courts of Civil Appeals may issue a writ of mandamus to compel a judge of the district court to proceed to trial and judgment in a cause agreeably to the principles and usages of law, those courts have no jurisdiction to issue a writ of mandamus to compel a judge of the district court to proceed to the trial of a cause which is pending before the court on a motion for new trial, in the absence of a showing that the judge had refused to hear or determine the motion or formally dispose of the case.

Original application by Bascom H. Dunn and others against the St. Louis Southwestern Railway Company of Texas and others for writs of prohibition and mandamus. Dismissed.

Jas. S. Davis, for applicants.

SPEER, J. This is an original application to this.court for a writ of prohibition restraining the St. Louis Southwestern and a number of other railroad companies from claiming and asserting any right or rights under a certain restraining order issued by the Honorable Irby Dunklin, judge of the FortyEighth Judicial District, in a certain cause pending in his court wherein the said railway companies sought to restrain these applicants from buying and selling certain railroad tickets issued by the railroad companies; and for a writ of mandamus against the district judge to compel him "to proceed to trial upon the pleadings and answer of the defendants therein and upon the agreed and undisputed facts in said case, and to render such judgment therein as the law would warrant." The status of the case, as shown by the application to this court, is that the rail

way companies mentioned instituted their suit seeking the restraining order as aforesaid, to which an answer consisting of demurrers and pleas was duly filed. The cause came on regularly to be heard, and the restraining order prayed for was regularly issued by the district court. In due time these applicants filed their motion for a new trial, which has never been disposed of, and the cause is still pending in the district court of Tarrant county. There is no pretense that the honorable district judge refuses to hear or determine the said motion or finally to dispose of the case.

* *

The first question with which we are confronted is whether or not we have jurisdiction to entertain this application. Necessarily, the jurisdiction of any court is limited by the terms of the Constitution and statutes creating it, and the powers which it may lawfully exercise are those only which are expressly conferred upon it, or those which are reasonably incident to the powers expressly conferred. Section 6 of artícle 5 of the Constitution, creating the Courts of Civil Appeals, provides: "Said Courts of Civil Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts which shall extend to all civil cases of which the district courts or county courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law." In pursuance of the authority thus conferred, the Legislature, in articles 996, 997, 998, 999, and 1000, of Sayles' Ann. Civ. St. 1897, has defined the powers of this court. The only articles necessary to quote are article 997, which provides: "The said courts and the judges thereof shall have power to issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts," and article 1000, which is: "The said courts or any judge thereof, in vacation, may issue the writ of mandamus to compel a judge of the district court to proceed to trial and judgment in a cause, agreeably to the principles and usages of law, returnable on or before the first day of the next term or during the session of the same, or before any judges of said court, as the nature of the case may require." Since the writs herein prayed for are not sought in aid of the jurisdiction of this court over this controversy, the article first quoted evidently confers no power upon us. So that any authority for entertaining this petition must be found in the last. The only authority conferred by this article is the power to compel a judge of the district court to proceed to trial and judgment in a cause where he improperly refuses. No such case is shown by the application, for, indeed, it appears that this controversy is still pending before the

district court upon applicants' motion for a new trial, upon which they are not shown ever to have requested a ruling, and, for aught that appears, the court is ready and willing to act upon it at any time.

Applicants insist that the district court has not determined the cause "agreeably to the principles and usages of law," and for that reason we are authorized by the terms of the article last quoted to issue the writ of mandamus therein provided for. While the expression, "agreeably to the principles and usages of law," has apparently been held to refer to the trial in the district court (Schintz v. Morris, 35 S. W. 516 and 825), the Supreme Court has shown clearly that the clause has reference only to the procedure in the appellate court (Kleiber v. McManus, 17 S. W. 249). With the question of whether or not the judgment actually rendered by the district court is erroneous, or even void, as applicants contend, we have nothing to do, since "mandamus will not lie to control the exercise of the discretion of inferior courts; and where such courts have acted judicially upon a matter properly presented to them, their decisions cannot be altered or controlled by mandamus from the superior court." State v. Morris, 86 Tex. 226, 24 S. W. 393, and authorities there cited.

As to our lack of jurisdiction to entertain the application, in so far as the main relief sought is concerned, we have no doubt. No other original jurisdiction than that immediately above discussed has ever been conferred upon this court by the Legislature, and in the absence of such legislation we clearly cannot exercise the jurisdiction. In some of the states appellate courts are by law invested with the general power of supervision and control over inferior courts. In these states it is generally held that the appellate court may, in the exercise of such control, issue the writ of prohibition, but in those states where no such general supervision is given or express power conferred, the rule is that such extraordinary writs will not issue except in aid of appellate jurisdiction. See Seele v. State (Tex. Civ. App.) 20 S. W. 946; Fannin County v. Hightower (Tex. Civ. App.) 29 S. W. 187; Ex parte Hamilton, 51 Ala. 62; Ex parte Russell, 29 Ala. 717; Singer Mfg. Co. v. Spratt, 20 Fla. 122; Standard Oil Co. v. Linn (Ky.) 32 S. W. 932; State v. Judge, etc., 26 La. Ann. 750; State v. Falls, 32 La. Ann. 553; State v. Judge, etc., 39 La. Ann. 97, 1 South. 281; Harriman v. Commissioners, 53 Me. 83; State v. Rombauer, 99 Mo. 216, 12 S. W. 661; State v. City of Columbia, 16 S. C. 412; City v. Halsey, 12 Heisk. 210; Gresham v. Ewell, 84 Va. 784, 6 S. E. 134.

Since we have no jurisdiction to issue the writ of prohibition prayed for, and since applicants' petition shows no ground for the issuance of mandamus against the district judge, the petition is dismissed.

A description in a deed is not insufficient where one of the corners called for can be determined by a simple mathematical computation.

[Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Deeds, § 65.]

2. ADVERSE POSSESSION-PAYMENT OF TAXES. Under Rev. St. 1895, art. 3342, providing that an action to recover real estate against one having adverse possession and paying taxes must be instituted within five years, the payment of taxes and possession must concur.

SPEER, J. Plaintiff in error filed this suit of trespass to try title against defendants in error to recover 119 acres of land in Archer county. Defendants in error pleaded not guilty, the statutes of three, five, and ten years' limitations, and especially the existence of a vendor's lien against the land, which they sought to have plaintiff in error to discharge before a recovery should be awarded to him. The trial court ignored all questions save that of the issue of limitations of five years, which was submitted to the

In trespass to try title, plaintiff claiming under the sole heir of a former vendee could not recover without discharging the vendor's lien to secure the purchase money, which had never been paid.

On Rehearing.

4. ADVERSE POSSESSION-LIMITATIONS-PAYMENT OF TAXES-SUFFICIENCY.

Rev. St. 1895, art. 3342, declares that actions to recover real estate as against one having adverse possession and paying taxes and claiming under a duly registered deed shall be instituted within five years. Held, that where a deed under which a party claimed purported to convey an entire interest, and the claim under the statute of limitations was the same, nothing less than the payment of all the taxes for all of the years would satisfy the statute. 5. SAME TIME FOR PAYMENT.

Sayles' Ann. Civ. St. 1897, art. 5164, declares that the collector of taxes of each county shall begin the collection of taxes on the 1st day of October, and he is required to post notices requiring taxpayers to meet him for the payment of their taxes. Held, that a taxpayer who had failed to pay his taxes after October 1st, the fifth year of his possession under the fiveyears statute of limitations having expired after October 1st, could not take advantage of the statute.

6. VENDOR'S LIEN-FORECLOSURE-TITLE ACQUIRED.

When a vendor forecloses his lien he loses his superior title, and is confined to such rights as the judgment gives him.

[Ed. Note. For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, § 831.] 7. DECEASE OF VENDEE

COLLECTION OF DEBTS.

VENDOR'S LIEN

Sayles' Ann. Civ. St. 1897, art. 2121, relative to estates of decedents, provides for a sale of real estate for the payment of debts, and declares that on the filing of an application a citation shall be issued to all persons interested, requiring them to appear and show cause, etc. Held, that a vendor's lien when established in the district court as against the estate of a decedent must be collected through the probate court, and a failure to pursue such remedy results in a loss of the debt.

Error from District Court, Archer County; A. H. Carrigan, Judge.

Action by J. W. Wall against the Club Land & Cattle Company and others. Judgment in favor of defendants, and plaintiff brings error. Reversed, and on rehearing judgment rendered in favor of plaintiff in

error.

ment entered in favor of defendants in error.

Three objections are urged by plaintiff in error to the submission of this issue to the jury:

First. It is contended that the deed under which the defendants in error claimed such limitation contained no such description of the land as could form the basis of limitations under the five-years statute. That part of the deed pertinent to this contention is as follows: "2nd tract, 100 acres being a part of the J. Ostane survey No. 83 and described as follows: Beginning at S. E. cor. of the 280 acre tract deeded by Harrold and East to J. S. Scott in the southwest corner of said survey; thence north 1340 varas to northeast corner of said 280 acre tract; thence east 42 varas; thence south 1340 varas; thence west on south line of said survey 420 varas to the beginning. 3rd tract [the one in controversy]. A part of said Ostane survey containing 119 acres, beginning at the S. E. corner of said 100 acre tract on the south line of said survey; thence north 1,340 varas to N. E. corner of said tract; thence 500 varas east; thence south 1,340 varas to the south line of said survey; thence west 420 varas to the beginning." The deed of Harrold & East to J. S. Scott for the 280acre tract was not shown to be of record. We overrule this contention because the beginning corner of the 100-acre tract is placed at the southeast corner of the 280-acre tract, which corner is easily determined by a simple division of the number of square varas in the 280-acre tract by 1,340, the number of varas from the southeast to the northeast corner of said tract. This makes definite the location of the 119 acres in controversy. The second contention is also overruled, because the deed purports to be more than a conveyance of the mere chance of title. It conveys the superior title held by the former grantor of those under whom plaintiff in error claims.

The third and last objection is sustained. It appears that the deed under which defendants in error claimed was filed for record on December 14, 1898, and this suit was filed April 11, 1904. The taxes were

paid by defendants in error for the years 1898, 1899, 1900, 1901, 1902, and on an undivided one-half of the land for 1903, as they accrued, before the suit was filed. This, we think, does not show such compliance with the statute as would support the plea of title by limitation. That statute provides: "Every suit to be instituted to recover real estate as against any person having peaceable and adverse possession thereof cultivating, using or enjoying the same and paying taxes thereon, if any, and claiming under a deed or deeds duly registered, shall be instituted within five years next after the cause of action shall have accrued and not afterward," etc. Rev. St. 1895, art. 3342. It is well settled that the payment of taxes and possession must concur. Snowden v. Rush, 76 Tex. 197, 13 S. W. 189. This we understand to mean, as applied to the facts of this case, that all taxes due on the land in controversy, if any, during the period of five years beginning on December 14, 1898, must have been paid by defendants in error prior to the institution of plaintiff in error's suit. It will be observed that, in order to complete the five years the possession, etc., must have continued to December 15, 1903. From and after October 1, 1903, the taxes for that year were due and payable. It follows from this that defendants in error had not paid the taxes due for the five years of their possession prior to the institution of plaintiff in error's suit. For this reason we reverse the judgment of the district court.

In view of defendants in error's crossassignments, we will remand, rather than to render the judgment here. We are inclined to think the court erred in ignoring the issue of the vendor's lien sought to be established by defendants in error. The plaintiff in error has not favored us with a reply to these assignments, and no reason occurs to us why plaintiff in error, claiming, as he does, under the sole heir of a former vendee, to the extent at least of an undivided one-half interest, should be allowed to recover this part of the land without discharging the lien to secure the purchase money, which it is alleged has never been paid. Reversed and remanded.

On Rehearing.

Both parties have filed motions for rehearing in this case, and in view of the questions raised we deem it proper to make this further statement: E. B. Harrold and E. H. East are the common source of title. They conveyed the land to Squires and Hurley, retaining a vendor's lien to secure the price. In 1896, East, being insolvent, made a deed of assignment of M. Harrold as assignee, who subsequently recovered a judgment against Mrs. Fredericka Hurley and W. A. Squires for the sum of $679.54, which judgment declared the existence of a vendor's lien on said land, and directed a sale of the

interest of Squires, and that the remainder of the judgment for the purchase money be certified to the county court of Dallas county for payment. An order of sale was issued on this judgment, under which the interest of Squires was sold, and bought in by Mary A. King for $21, on the first Tuesday in January, 1897, and a deed executed to her on January 5, 1897, for such interest. Mrs. Fredericka Hurley was the surviving wife and sole heir of T. F. Hurley, one of the makers of said note. T. F. Hurley died, and his will was probated in the county court of Dallas county on March 9, 1895, which will devised all his estate to said Fredericka Hurley, and made her sole executrix, but provided that she should manage and dispose of the estate under the authority and direction of the probate court. On December 24, 1896, Mrs. Hurley made a quitclaim deed to the land to Mary A. King. This deed was executed in her individual capacity, and not as executrix or devisee. On December 5, 1898, M. Harrold, as assignee of E. H. East, conveyed the land in controversy to E. B. Carver, and the deed was filed for record and recorded in Archer county on December 14, 1898. The Club Land & Cattle Company took possession of the land under a lease from Carver on the same day, and held possession of the same up to the time of filing this suit in April, 1904. On November 23, 1899, E. B. Carver conveyed to defendant in error F. E. Dycus an undivided half of said land, which deed was recorded in Archer county November 30, 1899, and on January 2, 1902, the other half interest in said land was conveyed by said Carver to said F. E. Dycus for the benefit of the grantee and his codefendants A. L. Matlock and George E. Miller. This latter deed was recorded on January 17, 1902.

From these facts it is apparent that, in order to complete the necessary five years' adverse possession, the period must begin, as stated in the original opinion, with the registration of the deed from the assignee, M. Harrold, to E. B. Carver, on December 14, 1898. This deed being to all the land in controversy, and the claim under the statute of limitations being also for all the land in controversy, we think anything less than a payment of all the taxes for all of the five years necessary to complete title would fall short of satisfying the requirements of the statute. This disposes of the first contention of defendants in error, to the effect that we should at least have affirmed the judgment of the district court in their favor for an undivided one-half interest in the land, in view of our finding that the taxes for the year 1903 on one-half of the land had been paid prior to the institution of this suit.

It is next insisted by defendants in error that they were not in default in the payment of taxes for the year 1903 until the time when, according to the law, the pay

ment of taxes for that year could have been enforced by the tax collector. No authority is cited to support this contention save a dictum in the case of Mariposa Land & Cattle Co. v. Silliman (Tex. Civ. App.) 27 S. W. 773. In that case the period of prescription expired on June 28, 1890, and, say the court: "The taxes for 1890 were not due before January 1, 1891, and under the law could not be forcibly collected until after January 1, 1891. On June 28, 1890, no taxes were due for 1890, and could not have been paid, as collections could not begin prior to October 1, 1890." So that it is apparent that whether taxes are due on October 1st or not until January 1st following was an immaterial question in that case, since, in either event, they were not due at the date of the expiration of the period of prescription. On the other hand, in the case of Snowden v. Rush, 76 Tex. 197, 13 S. W. 189, cited in the original opinion, the Supreme Court treated the payment of taxes for the fifth year, where that year expired between October 1st and January 1st, as being necessary to a compliance with the statute. This, at least, is as strongly persuasive that taxes for any year are due on October 1st of that year, as is the case first cited that they are not due until January 1st following. But, in the absence of authority, we think it should be held, in view of our statute that "the collector of taxes of each county shall begin the collection of taxes annually on the first day of October, or so soon thereafter as he may be able to obtain the proper assessment roll, books or data upon which to proceed with the business," that it is contemplated by the law that taxes are due and payable on October 1st for that year. This view is strengthened by the further provisions of the same article, requiring the tax collector to post up notices at public places in the various precincts in his county requiring the taxpayers to meet him at such places for the payment of their taxes. Sayles' Ann. Civ. St. 1897, art. 5164. The fact that the statute does not authorize a seizure of property for the satisfaction of taxes prior to January 1st indicates a mere indulgence of the taxpayer, and not necessarily that the taxes are not sooner due and payable. Such a construction would be entirely too liberal in favor of one seeking to prescribe under a statute of limitations.

We therefore overrule defendants in error's motion for rehearing, and consider next the question of whether or not we erred in remanding the cause for another trial upon the issue of a vendor's lien in favor of defendants in error. Upon a fuller inquiry into the facts bearing upon this issue, we have concluded that such disposition of defendants in error's cross-assignment was erroneous. From the facts already stated it will be seen that at the date of the institution of the foreclosure suit by the assignee of East, Hurley, one of the makers of the note, was

dead, and there was an administration pending upon his estate in Dallas county, and that after the foreclosure and sale of the interest of Squires the judgment of the district court was directed to be certified to the probate court of Dallas county for payment. Whatever became of this claim, further than that defendants in error offered to show in the trial court that it had never been paid, we are not apprised. We take it to be settled in this state that when a vendor forecloses his lien on land he loses his superior title, and by this election is confined to such rights only as the judgment gives him. Gardener v. Griffith, 93 Tex. 358, 55 S. W. 314, and authorities there cited. No reason is apparent why the election by the assignee, Harrold, in this particular, would not be as binding as though it were exercised by the original vendor, East. It is also well settled that such a lien, when established in the district court as against the estate of a deceased person, must be collected through the probate court. Sayles' Ann. Civ. St. 1897, art. 2121; Meyers v. Evans, 68 Tex. 466, 5 S. W. 66; Bradford v. Knowles, 86 Tex. 505, 25 S. W. 1117; Wilson v. Harris, 91 Tex. 427, 44 S. W. 65; Whitmire v. May (Tex. Sup.) 72 S. W. 375; Texas Loan Agency v. Dingee (Tex. Civ. App.) 75 S. W. 866. The lands in controversy, at least to the extent of T. F. Hurley's interest, upon his death constituted a part of his estate, subject to the control of his executrix under the direction of the probate court, charged, of course, with defendants in error's lien, and by their failure to pursue the methods provided by law for the enforcement of such lien we think they have lost their debt. That the debt was for the purchase money of the land cannot alter the rule. Whitmire v. May and Texas Loan Agency v. Dingee, supra. The distinction between the cases of Rogers v. Watson, 81 Tex. 400, 17 S. W. 29, Swearingen v. Williams (Tex. Civ. App.) 67 S. W. 1061, and the line of cases cited above, is pointed out in the case of Texas Loan Agency v. Dingee supra.

The plaintiff in error's motion for rehearing is therefore granted, and our former order remanding the case for another trial is set aside, and judgment here rendered in favor of plaintiff in error for the land in controversy.