that said rupture would not produce any symptoms detailed by said witness (the plaintiff) or his physician. To the above action of the court the defendant excepted, and tenders this bill of exceptions." The question involves an issue upon which it was the peculiar province of the jury to pass, and not a question for expert testimony. The jury are the judges of the credibility of the testimony of the witnesses, and whether or not that testimony is affected by the prospect of recovering a larger sum by a suit against a railroad company is not an issue properly to be determined by expert testimony. The court offered to permit counsel to ask the question if they would eliminate the part referring to a lawsuit pending, but this was declined. The exclusion of this testimony did not prevent the asking of the questions that counsel claims would have followed had the testimony excluded been admitted. We think there was no error in the court excluding the testimony.

Appellant complains of certain remarks by appellee's counsel to the jury in his closing argument, as shown by the following bill of exceptions, to wit: "Be it remembered that, upon the trial of the above entitled and numbered cause, counsel for the plaintiff, in his open argument to the jury, stated that it was evident from the character of questions propounded to the plaintiff by defendant's counsel that the defendant railroad company had made a very thorough investigation as to the extent and character of plaintiff's injuries, as well as his earning capacity and the amount of property owned by him; that the defendant, without objection on the part of plaintiff, had caused him to be examined five times by different physicians, and yet they had not brought a single witness from Mt. Vernon or elsewhere to contradict the plaintiff on any of these points. Subsequently, in his argument to the jury, Mr. N. B. Morris, one of the attorneys for the defendant, stated to the jury that he believed plaintiff just as capable as he ever was; wanted to know how come all these witnesses down here from Mr. Vernon for Goswick; that plaintiff's doctor (referring to Dr. Fleming, who had testified in the case) was onto his job, and that perhaps he was to get some of the chicken pie; that they say plaintiff has had epileptic fits, but that he will never have another after he gets his dough; that railway companies always make thorough investigation of cases, because there are so many fraudulent and fake suits; further, 'that if you, gentlemen of the jury, knew of as many fake and fraudulent cases against railroad companies as I do, you would be astonished. The greenback plaster is the kind that Mr. Goswick needs for his epilepsy. It will be sure to cure him. It is the most efficacious remedy known for such cases as his. I have seen people who have sued rallroad companies for personal injuries, and, after the juries have given them verdicts

and they got their money, throw away their crutches, and were as well as they ever were. If you had seen the stacks of crutches thrown away that I have, you would be astonished. I have seen them on the way

to the graveyard with them, and, when they get a judgment and get their money, they would revive and be restored to complete health.' Counsel for defendant further said in this connection that this was no fake case, and that he only mentioned fake cases to show the necessity of a thorough investigation. In his closing argument to the jury, plaintiff's counsel, stating that he was replying to the above part of Mr. Morris' speech, stated that he was satisfied that there was no more fraudulent and fake cases on the part of plaintiffs against railroad companies than there was in proportion in suits between individuals; that he was satisfied that there were more fake settlements by railroad companies with people who had been injured, where they owe a man thousands, and have given him less than hundreds, than there are fake suits against railroad companies; that he had always held to the doctrine that, whenever railroad companies treat people right, people will treat them right.' These statements on the part of plaintiff's counsel were objected to by the defendant on the ground that there was no evidence that railroad companies did not treat people right. Plaintiff's counsel then again stated that what he had said was in direct reply to the above remarks by Mr. Morris to the jury. 'Now you can except if you want to.' The court overruled defendant's objection, and stated to counsel that he would give him a bill of exceptions. The court was not asked to instruct the jury in this connection by special charge, or to withdraw the remarks of either side from the consideration of the jury. Defendant's counsel then and there excepted, and tenders this, its bill of exception, and asked that same be approved and ordered filed." The remarks complained of were not proper, but appellant is in no attitude to complain, as appellant's counsel, by his argument, provoked the reply made, and is not entitled to relief by reason thereof.

We have considered the other assignments of error, but think they are without merit. The evidence supports the judgment, and it is affirmed.

in controversy for plaintiff's benefit, and thereafter placed W. in possession, to hold as plaintiff's agent, an instruction in trespass to try title, in which plaintiff claimed title by adverse possession, which excluded plaintiff's right to tack the possession of W. to that of the brother, if any, was erroneous.

2. Where, in trespass to try title, plaintiff's brother testified that he held possession for plaintiff, and that he placed W. in possession as plaintiff's tenant, and there was also evidence that W.'s house and fences were not on the premises, though he cultivated the same, but in the street, an instruction that if W., as agent of plaintiff's brother, did not live on or have possession of the land in controversy, or if he lived on and had possession outside the lines of the land sued for, and in a street or elsewhere, the jury should find for defendant on plaintiff's issue of adverse possession, was erroneous, as depriving plaintiff of W.'s possession of the land, as it might be found from the facts, though he actually lived in the street.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Trespass to try title by Sarah A. Travis against Frank Hall and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Roberts & Crawford, for appellant. Fisher, Sears & Sherwood, for appellees.

GILL, J. This was an action of trespass to try title, brought by Sarah A. Travis to recover of Frank Hall and his codefendants the north half of the south half of 10acre lot No. 34 of the Holman survey. By amended petition, on which the case was tried, she rested her title on 10 years' adverse possession. Defendants answered by plea of not guilty, limitation of 10 years, and suggestion of improvements in good faith. On a general verdict in favor of Frank Hall, judgment was rendered in favor of all the defendants, and plaintiff has appealed.

Neither party introduced any written evidence of title, but each adduced proof tending to establish limitation of 10 years. A. J. Travis, the brother of plaintiff, testified that his mother claimed the south half of the 10-acre lot, No. 34; that upon her death, in 1870, he took possession of the land thus claimed, fenced it, sold a part of it as his own, and retained the part in controversy for his sister, Sarah A. Travis; that before he left Houston, in 1875, he placed Abram Williams on it as tenant, to hold it for plaintiff; that Williams lived on it for more than 10 years, fenced it, and had a garden on it, claiming it for plaintiff. Plaintiff's evidence tends to show that Williams so lived on the premises until his death, which occurred in 1890. Other evidence tended to prove that he did not go on the land as early as 1875, and that he died in 1885, or earlier. According to the testimony of some of the witnesses, his house and fence were not on the premises, but in the street. Whether, if his house was in the street, he did nevertheless cultivate and use a part of the premises, claiming the entire south half for plain

tiff, was an issue in the case. The evidence also presented the issue whether defendant Hall had so used and occupied the premises as to give him title by limitation of 10 years.

All the assignments save one are addressed to one charge of the court, the last one complaining that the judgment is not supported by the verdict.

Paragraph 6 of the court's charge is as follows:

"If you find from a preponderance of the evidence that Abram Williams lived upon and had possession of the property in adverse and peaceable possession, occupying and using the same by permission of and as tenant of A. J. Travis, for ten years, consecutively, prior to the death of him, the said Williams. then, under the law and facts, such living upon and possession of the property by Williams had the legal effect to perfect title thereto in Sarah A. Travis, the plaintiff. If you so find the facts to have been, you will return your verdict for plaintiff, unless you find for defendant under instructions hereinafter given."

Paragraph 7 is as follows:

"If you do not find from a preponderance of the evidence that Williams, as agent of Travis, so lived upon or had possession of the land in controversy, or if you find that Williams lived upon or had possession of land outside the lines of the land sued for. and in a street or elsewhere, then you will find for defendant, and inquire no further."

By appropriate assignments of error, each of these paragraphs is assailed as erroneous. The two together because they confine plaintiff's right to recover to a showing of ad verse possession by Williams for a period of 10 years; thus excluding the right of plaintiff to tack the possession of Williams to that of A. J. Travis, if any is shown. The seventh because the jury were affirmatively instructed therein that, if Williams lived outside the lines, plaintiff could not recover; thus excluding such possession as might have been found from the facts, even if it appeared that Williams actually lived in the street. We are of opinion the charges are erroneous in the respects complained of The contention of appellees that it was mere negative error, imposing on appellant the duty to request a special charge covering the issue, cannot be allowed. They were af firmative instructions restricting the right of recovery. As has been shown in our findings of fact, supra, both the question of A. J. Travis' possession, and whether Williams occupied and used the property, or merely used a part of it, his house being situated without the boundaries, were issues presented by the evidence. That 10 years' use of or enjoyment of the property or a part of it, claiming the whole for his landlord, would sustain plaintiff's plea, though Williams' house may have been situated in the street, is not questioned by appellees. It follows that for these errors alone the judg

ment must be reversed, and the cause remanded.

The other questions presented are not likely to arise upon another trial; hence we do not discuss them.

Reversed and remanded.

35

CONRAD et al. v. HERRING et al.* (Court of Civil Appeals of Texas. Oct. 27, 1904.)

ADOPTION -EVIDENCE-SUFFICIENCY-RECITAL

IN DEED.

1. On an issue as to whether a certain person had adopted his natural child as his legal heir under the Spanish law, evidence considered, and held to warrant a finding that no such adoption occurred.

2. Where a special act of the Legislature authorized a man to adopt a certain girl as his legal heir, a deed executed by him thereafter in which the girl was described as his adopted daughter could not be regarded as an adoption under the law; the language being merely intended as descriptio persona.

Appeal from District Court, Ft. Bend County; Wells Thompson, Judge.

Action by J. C. Conrad and others against George Herring and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Peareson & Peareson, for appellants. J. C. Mitchell, T. E. Mitchell, and Spencer C. Russell, for appellees.

PLEASANTS, J. This is an action of trespass to try title brought by the appellants against the appellees to recover a tract of 177 acres of land, a part of the A. Kuykendall league, in Ft. Bend county. The defendants answered by plea of not guilty and special pleas of limitation of five and ten years. The land in controversy was owned by James Knight at the time of his death. Appellants claim by inheritance through Lucinda Knight, the natural daughter of said James Knight. It is agreed that, as to the one-sixth interest in the land claimed by appellant J. C. Conrad, the appellees have title by limitation. The title of appellants to the remainder of the land depends upon whether James Knight ever adopted Lucinda Knight as his legal heir. This issue was submitted to a jury, and the trial resulted in a verdict and judgment in favor of defendants. The evidence shows that in 1843 or 1844 Lucinda was placed by James Knight with relatives of his in Ft. Bend county, and sent to school. She was known as Lucinda Knight. James Knight supported her and paid her tuition. In 1845 he sent her to a convent in Galveston. After she left the convent he brought her back to Ft. Bend county, and boarded her with friends of his there until she married. After her marriage, Knight lived with her until his death. She always called him "fa

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

ther," and he treated her as his daughter, and held her out to the public as such, and she was so regarded by every one. He was never married to Lucinda's mother. There is on record in Ft. Bend county a written contract executed by and between one Huff and James Knight in 1849, which contract refers to Lucinda Knight as the daughter of James Knight, and she is made a beneficiary therein. On March 7, 1850, James Knight conveyed to said Lucinda, who was then Lucinda Nibbs, a tract of land in Ft. Bend county. This deed, which was recorded on March 14, 1850, contains the following language: "Do bargain, release, alien, and deliver for the consideration of love and natural affection and one dollar to me paid by Lucinda Nibbs, my adopted daughter." Two witnesses testified that they were well acquainted with James Knight and Lucinda Knight, in 1853, and for a number of years subsequent thereto, and she was generally regarded in the community as his adopted daughter. No record of an adoption by James Knight of Lucinda as his legal heir was shown. In 1850 the Legislature passed a special act authorizing James Knight to adopt Lucinda Nibbs as his legal heir. This act was approved January 8, 1850 (Sp. Laws 1849-50, p. 14, c. 21).

Appellants' first assignment of error complains of the verdict of the jury as being contrary to the evidence. This assignment cannot be sustained. If we concede, for the sake of argument, that the evidence is sufficient to raise the issue of the adoption by James Knight of Lucinda as his legal heir, it is certainly not of such probative force as to authorize us to set aside the verdict of the jury. None of the acts and declarations of James Knight shown by the evidence is in itself an adoption of Lucinda as his heir. The most that can be claimed from such acts and declarations is that they tend to show that some time prior to 1843 he had legally adopted her as his heir. The common law, which became the law of Texas in 1840, did not authorize the adoption of heirs; and, if James Knight ever adopted Lucinda, it must have been prior to 1840, under the Spanish law, which then prevailed in this state. If some of his acts and declarations subsequent to 1843 tend to show that he had adopted her prior to 1840 in accordance with the provisions of the Spanish law, his act in obtaining from the Legislature of Texas in 1850 a special law authorizing him to adopt her tends strongly to show that he had not adopted her under the Spanish law. The fact that he supported her and sent her to school from 1843, when she was 10 or 12 years old, until she married, and that he always recognized her as his daughter and treated her as such, has very little weight on the issue of adoption, in view of the fact that she was his natural child. His designation of her as his adopted daughter can. be readily explained on the theory that he

desired to keep from her, and as far as possible from the public, the knowledge of her illegitimacy. We think it clear that the jury were authorized to find, under this evidence, that James Knight did not adopt Lucinda as his legal heir under the Spanish law. There was no law in this state under which he could have adopted her between 1840 and the passage of the special act in 1850 authorizing her adoption. Consequently she could not have been legally adopted between these dates. There is no evidence tending to show an adoption under the special law, or under the general statute of adoption passed subsequently. The deed executed by James Knight in March, 1850, in which Mrs. Nibbs is described as his adopted daughter, cannot be regarded as an adoption under the special law before referred to. The evident sole purpose of the deed was the conveyance of land, and the language referring to Mrs. Nibbs as his adopted daughter is clearly intended as descriptio personæ, and was not used for the purpose of making Mrs. Nibbs his adopted heir.

The portion of the charge complained of in the second assignment of error, when read in connection with the whole charge, could not have misled the jury. The charge as a whole was most favorable to appellants.

We are of opinion that the judgment of the court below should be affirmed, and it is so ordered. Affirmed.

MASTERSON v. HARRIS.*

(Court of Civil Appeals of Texas. Nov. 10,

1904.)

TRESPASS TO TRY TITLE-CONVEYANCES-COMMON SOURCE-CONSTRUCTION-RECITALS-NO

TICE-MARRIED WOMEN-ACKNOWLEDGMENTAMENDMENT LOST DEEDS-PROOF-SECOND

ARY EVIDENCE.

1. Where, when plaintiff purchased certain land, he had an abstract of title which contained two deeds that recited all the conveyances down to defendant, but failed to show any conveyance by the common source of title, and he also knew that the records of the county where such deed would have been recorded if executed had been twice destroyed by fire, he was charged with notice of such conveyance, the existence of which would have been disclosed by inquiry.

2. Where an acknowledgment by a married woman recited that she executed the deed voluntarily, for the uses therein set forth, and consented that the same be recorded, such consent was equivalent to a statement "that she did not wish to retract it."

3. Where the acknowledgment of a deed by a married woman did not contain a statement "that she did not wish to retract it," it was properly amended by the subsequent attachment of another acknowledgment in due form.

4. Where a deed of trust, through which defendant claimed title, was proved to have been lost, it was not necessary that it should be proved by subscribing witnesses, but a copy thereof was properly admissible therefor.

Rehearing denied.

2. See Acknowledgment, vol. 1, Cent. Dig. 183, 212-214.

5. Where plaintiff had actual notice of the recitals in certain deeds under which defendant claimed, showing the execution of a deed from the common source of title, which was not shown by the records of the county in which the land lay, plaintiff was not entitled to rely on such records, and assume that no such deed existed.

6. Where a deed, of which plaintiff had actual notice at the time he purchased land from the heirs of S., recited that the land had been conveyed from A. to S. and then to G., plaintiff was thereby put on inquiry to ascertain whether the land had not been conveyed by S. to G.. and was not entitled to rely on a construction of such recital that the land had been conveyed by A. to S., and then again by A. to G.

Error from District Court, Chambers County; L. B. Hightower, Judge.

Trespass to try title by H. Masterson against Loyd G. Harris. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

Masterson, Morris & Masterson and Bullitt & Louis, for plaintiff in error. H. E. Marshall, H. H. Jackson, and J. R. Davis, for defendant in error.

GARRETT, C. J. This was an action of trespass to try title, brought by H. Masterson against Loyd G. Harris for the recovery of 640 acres of land situated in Chambers, formerly Liberty, county, and patented to M. B. Menard, assignee of Jane Barry. The defendant pleaded not guilty. Title was deraigned by both parties to Meyer M. Simp son, the plaintiff holding the junior title through a conveyance from the heirs of Simpson dated July 19, 1900, and the defendant the senior under a lost deed from Meyer M. Simpson to Phineas D. Gurley, in trust for Susan W. Armstrong, wife of Arnold Harris, dated May 14, 1859; a deed from the Gurley heirs to Susan W. Harris, dated June 30, 1869; a deed of gift from Susan W. Harris to Susan W. Fleming, dated October 26, 1870; and a deed from Susan W. Fleming and her husband to the defendant, Loyd G. Harris. The case was submitted to a jury upon the issue of notice of the defendant's title to the plaintiff when he bought the land from Simpson's heirs, and resulted in a verdict and judgment in favor of the defendant. The facts support the verdict. When Masterson bought the land he had before him an abstract of the title, which contained two deeds that recited all the conveyances down to the defendant, but it showed no deed from Meyer M. Simpson to any one. Masterson made no inquiry about the conveyance from Simpson to Gurley further than the abstract of title disclosed, and did not prosecute any inquiries of the defendant or his grantor, although their residences were recited in the deed set out in the abstracts. The purchase of the land was negotiated for the plaintiff from the heirs of Simpson by one J. O. Davis at $1 an acre, of which Davis received one-baif, and had also an arrangement with the plaintiff by which he was to receive one-third of

the profits. At the time plaintiff bought it, the land was worth $10 an acre, and it was generally known in the community where it was situated that Loyd G. Harris was the owner of it. The defendant had paid the taxes on the land for more than 20 years, and the Simpson heirs, from whom the plaintiff purchased, did not know where the land lay. made no claim to it, and had paid no taxes thereon. Chambers county was formerly a part of Liberty county, and the deed records of Liberty county had been twice destroyed by fire. These facts the plaintiff knew.

The plaintiff objected to the admission of the deed from Susan W. Fleming to Loyd G. Harris and the recitals contained in it, because, as contended by him, it was not acknowledged as required of married women, and was a nullity. It is claimed that the certificate of acknowledgment does not show "that she did not wish to retract it." The language of the certificate is that she "declared that she did freely and voluntarily execute and deliver the same to be her act and deed for the uses and purpose therein set forth and consented that the same be recorded." Consent that the instrument might be recorded was substantially equivalent to a statement that she did not wish to retract it. Norton v. Davis, 83 Tex. 36, 18 S. W. 430; Belcher v. Weaver, 46 Tex. 298, 26 Am. Rep. 267; 1 Devlin on Deeds, §§ 510, 522, 524. Another acknowledgment was taken in 1903. about which no complaint is made, and the deed was properly admitted on that, if not on the first, to show title in the defendant; but, the first acknowledgment being valid, the deed was admissible as bearing on the question of notice.

There was no error in admitting in evidence the transcript from the records of the Supreme Court of the District of Columbia, to which was attached a copy of the deed of trust from Meyer M. Simpson to Phineas D. Gurley. It was admissible as secondary evidence to aid in establishing the deed of trust which had been lost. The evidence established the loss, and proper and legal search for the original deed of trust, and Loyd G. Harris testified as to existence and contents of the original, and attached a copy of the original to his testimony. It was not necessary, as in the case of an existing instrument, to prove it up by subscribing witnesses, but secondary evidence was admissible for that purpose. This is not the proof of an original deed as at common law, as the plaintiff's proposition under his assignment of error seems to indicate.

The court admitted in evidence a deed from Wm. B. Fleming and Susan W. Fleming to Loyd G. Harris containing the following recitals: "That Loyd G. Harris resided in St. Louis, Mo." "Also 640 acres of land patented to said M B. Menard as assignee of J. Barry on the 21st day of November, 1851, recorded in Vol. third class

of headrights, and all of which land was conveyed to Alfred F. James by said M. B. Menard on 1st of August, 1854, and afterwards by said James to Mordecai Abrams, on 12th day of September, 1854, which deed is recorded in the clerk's office for said county of Chambers, late Liberty, Book M, pages 18 and 19, on the 13th day of September, 1854, and then conveyed by said Abrams to Meyer M. Simpson on the 16th of May, 1855, on pages 198-199, Book M, and then conveyed to Phineas D. Gurley by deed dated 14th day of May, 1859, and also being a portion of the lands transferred from the heirs of said Phineas D. Gurley, then deceased, by order of the Supreme Court of the United States at a special term thereof, held within the city of Washington, D. C., on or about 19th of November, 1869, which said proceedings with accompanying deed have been duly admitted to record in clerk's office for county of Chambers aforesaid, containing 1747 acres, more or less." It is contended that the recitals contained in the deed from Wm. B. Fleming to Loyd G. Harris were not admissible to affect the plaintiff with notice of the deed from Meyer M. Simpson to Phineas D. Gurley, although it had been proven that said deed and its recitals contained in the abstract had been examined by the plaintiff before his purchase, because the plaintiff was not required to go further in his inquiry than the deed records of Chambers county, and, having found no such deed of record there, the recitals were no longer operative to put him upon further inquiry. The plaintiff had actual notice of the recitals in the deeds from Wm. B. Fleming and Susan W. Fleming to Loyd G. Harris and from Susan Harris to Susan W. Fleming that Meyer M. Simpson had conveyed the land to Phineas D. Gurley, as trustee for Susan W. Harris, and of the decree of the court and the deed of Gurley's heirs. It was not a question of constructive notice by a grantee of recitals in deeds not in his chain. It was actual notice of facts that put the plaintiff upon reasonable inquiry to find the truth-such as. in view of the facts, could not be discharged by an examination only of the deed records of Chambers county to see if the deed was of record there. The cases cited by the plaintiff himself support this view. The recitals show that the land was conveyed by Mordecai Abrams to Meyer M. Simpson, and then to Phineas D. Gurley, and the plaintiff claims that this was a recital of two conveyances by Abrams-first to Simpson and afterwards to Gurley-and not notice that Simpson had conveyed the land. This is not the necessary construction, but, to the contrary, the reasonable construction would be that the last grantee had conveyed to the next. At least it suggested an inquiry that was not sufficiently followed up. The testimony of the plaintiff shows that the abstract showed conveyance "by the said Simp