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of the sufficiency of the evidence to sustain There was some evidence tending to show the court's findings of fact on the issues that the rear door had been kept locked, stated.

though the evidence indicated that it had not We have carefully considered the evidence, been so kept after 12 p. m., July 31st. Apand do not see our way clear to overrule the pellant also denied coilusion with the clerk finding that appellee was an actual settler or any one else, testifying that he simply at the time he filed his applications to pur- met Mr. Crutcher, the deputy clerk, accichase, and hence approve such finding. On dentally, not knowing that he was going to the other issue, however, our conclusion is be at the place where he met him; that his in appellant's favor. The following are the applications had already been prepared, and pertinent material facts: It was generally that he swore to them before said deputy, known that the sections of school land in con- and induced him to act as his agent in taking troversy, together with some 35 or 40 other the applications in and causing them to be sections, would be upon the market, subject filed. The trial court's findings on the issue to sale, on August 1, 1902, and the appellant, under consideration are as follows: "(c) I appellee, and numerous other persons had find that the acts of William Hanson, county assembled and stationed themselves at the clerk of Glasscock county, Texas, in filing the south or main entrance of the courthouse in applications of E. T. Cobb, brought in by his which the county clerk kept his office. It is deputy, acting as agent of defendant Cobb, undisputed that appellant was prior to ap- and the acts of defendant Cobb in procuring pellee in position, appellant having stationed same to be done, and defeating the rights of himself in the door or on the step of said en- plaintiff, were of such character as to contrance, appellee being among those immedi- stitute fraud against plaintiff, whose rights ately behind him. Appellee's evidence and were thus affected. (d) I find that such the court's findings are to the effect that ap- fraud on the part of defendant William Hanpellant was standing with several others just son, clerk, and his deputy, L. E. Crutcher, inside of the door when the sheriff of the acting with E. T. Cobb, invalidated and rencounty, several hours before the opening of dered void the files of E. T. Cobb made after August 1st, closed the door, stating to par- twelve o'clock midnight, July 31st, on secties present that it would not be opened tions in controversy. (e) I find that such until 8 o'clock the following morning; that files being so rendered void and invalidated, in closing the door appellant was pushed that the plaintiff, A. H. Gooch, by virtue of upon and straddled the neck of appellee, who his applications and a full compliance of the thereupon rose up from his sitting position law, is entitled to recover the lands in conupon the doorstep, and threw appellant out- troversy from the defendant E. T. Cobb, and ward and forward into the crowd, and ap- it is accordingly so adjudged." If it be adpellant thereupon entirely lost his position. mitted—though we do not decide—that apAppellant requested the sheriff to replace pellant's action and that of the clerks' under him in the prior position he formerly occu- ordinary circumstances was fraudulent as pied at the doorstep, but the sheriff de- against public policy, appellee nevertheless, clined to do so. Appellant thereafter, and in the case before us, is not in position to after 1 o'clock p. m. of July 31st, met one take advantage thereof. As before stated, it L. E. Crutcher, a deputy county clerk, in is undisputed that appellant occupied posithe courthouse yard, and swore to his ap- tion prior to that of appellee, and that, had plications for the purchase of the lands he been permitted to retain this position, his in controversy, and said deputy, acting as application would, in the regular course of appellant's agent, carried said applications events, as insisted upon by appellee, have into the clerk's office through a rear door, been first filed. It is also undisputed that and the same were by the county clerk filed by force exerted by appellee appellant was between 12 and 1 o'clock, as hereinbefore deprived of this advantageous position. The stated. Another purchaser did the same contention in appellee's behalf here is that thing, and a number of others gained en- appellee so did in protection of his own positrance into the clerk's office through said rear tion, and without design of obtaining any undoor, and caused their applications to be due advantage over appellant. The court, filed. In this manner all of the sections of in his findings, has not so found, and it is land coming upon the market on August 1st significant that appellee did not so testify were applied for prior to the opening of the on the trial. He, indeed, is silent on the subsouth door, which was done by the sheriff ject. There is also evidence in the record about 2 o'clock a. m. of August 1st, upon the tending to show that appellee and some othopening of which appellee entered and fileders, prior to the night of July 31st, had a his applications as stated. The county clerk meeting suggestive of a purpose to forcibly denied acting preferentially or collusively obtain advantageous positions at the opening for or with any one, and stated that his cus- of the door of the courthouse. Appellee's tom was to receive applications whenever brother testified, among other things: That and wherever presented for filing, and that he witnessed appellee at the time he threw the closing of the south door and opening appellant out of position. That the purpose thereof was at the instance of the sheriff of his presence in the crowd was to see alone, who had control of said entrance, "that anybody didn't jump on" his brother.

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That "he (appellee] fired him (appellant) out because he was trying to sit down on him.

JONES V. HUMPHREYS. Sure, brother did it a purpose.

As

(Court of Civil Appeals of Texas. June 3, well as I remember, my brother threw him

1905.) out on his head. I was out in the crowd. Mr. Cobb fell headlong when my brother

1. APPEAL-QUESTIONS FOR REVIEW.

Where neither the briefs nor bill of exthrew him, and I saw him go over on his

ceptions taken at the time of excluding evidence head and shoulders on the ground. It is not discloses what the objection was which the trial a fact that I cursed Mr. Cobb when he was court sustained to the evidence offered, the rul

ing is not reviewable on appeal. making his apology. I did not say he ought

2. WIFE's SEPARATE ESTATE-CONVEYANCE BY to be stamped, and that I would stamp him.

HUSBAND TO WIFE. * * * He [appellant] first apologized to A conveyance of real estate by a husband my brother; then talked rough. He did not to his wife makes the land conveyed her sepexplain that that was his position, and try

arate estate, irrespective of whether the deed

specifically so declares. to get it back. I did not hear him call the

[Ed. Note.-For cases in point, see vol. 26, sheriff to replace him at his position. I was Cent. Dig. Husband and Wife, 8 426.) there to see the thing go on, and to see if 3. MISTAKE-MUTUALITY WHEN IMMATEanybody jumped on my brother.

RIAL, My brother and others had not got together Whether the vendor in a deed shared in a

mistake as and had an understanding the night before

to the person to whom the deed

should have been made is immaterial, after a to get charge of the door and throw the oth

conveyance has been made by the vendee to corers out. A few of them got together and rect the alleged mistake. sorter talked the matter over, agreeing that, if they wanted to file on the land, they would

Appeal from District Court, Hardeman go to the door before filing on it. The meet

County ; S. P. Huff, Judge.

Action by Thomas Jones against Minnie ing was at my mother's, and Earl Chaney, Tom Chaney, Mr. Wysong, and Seth Pike

Humphreys. From a judgment in favor of were all that I know of being there. I was

defendant, plaintiff appeals. Affirmed. there at that time, and talked with them, E. E. Diggs, for appellant. Kearby & but never told them what I would do. I did Kearby, for appellee. not go in the room where they were, as it was none of my business. I did not file on SPEER, J. Appellant instituted this suit any land. They were talking about the mat

against appellee to foreclose a judgment lien ter when they went out to go home. We did upon a tract of land situated in Hardeman not agree to get our forces together and county, known as section No. 240, certificate throw Mr. Cobb out of his position.

No. 1–120, in block H of the Waco & NorthI was not in the meeting held here in

western Railway Company lands. The lien town that day, in which we had an under- was alleged to have arisen by reason of the standing to take charge of the door. It is recording of an abstract of judgment in apnot a fact that we had an understanding pellant's favor against one H. C. Davis, the with the sheriff and deputy, and that Mr.

alleged owner of the land, on July 3, 1901 ; Cobb was to be thrown out of his place by

said judgment having been recovered against reason of shutting the door. Never said

Davis in the county court of Childress counmuch to Mr. Cobb when he was thrown out

ty on the preceding day. The appellee anon his head. I told brother that if anybody swered, setting up that the land was purjumped on him I would see that they did not

chased by her and paid for out of her indiinterfere. I told brother that if anybody

vidual means, and that through mistake the sought to interfere with him that I would

deed to the same was taken in the name of take care of him—anybody outside of Mr.

H. C. Davis, her brother-in-law. She further Cobb. I would not help him against Mr. alleged that on discovering this mistake, on Cobb. If he beat him to death, would not

March 30, 1901—the first deed having been say a word.”

made March 5, 1901—said Davis duly conFrom the evidence as a whole we have veyed the property to herself and her sister concluded that appellee's force in depriving

Mary B. Davis. By way of replication, apappellant of his advantageous position neu

pellant attacked this last conveyance as betralizes whatever of irregularity there may

ing in fraud of his rights as creditor of Dahave been in the filing of appellant's appli

vis. Upon a trial before a jury there was a cations. Appellee, as the plaintiff below, is

verdict and judgment in favor of appellee. claiming under rejected applications, and

Under the charge given to the jury, they before he should be heard to complain and

were required to find, before they could reto receive the aid of the court in setting

turn a verdict for the appellee, that she in aside the award actually made to appellant

fact bought the land in the first place, and by the Commissioner of the General Land

that Davis had no interest whatever therein, Office we think he should show clearly that

but that the deed from the vendor to him was he comes with clean hands. This, in our

made through mistake or inadvertence, inJudgment, he has not done, and the judg

stead of being made to appellee. And there ment will accordingly be reversed, and here

being sufficient evidence to raise this issue, rendered for appellant. Reversed and rendered.

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

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 judg. ment.

Judgment affirmed.

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 ques. tion. 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

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

PROOFPLEA 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 ERROB.

The material controversy, on which the evidence was conflicting, not being as to the description of the land rented, but as to whether plaintiff bad 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 are charged that the burden of proof is upon to assist in making the crop, and less the amount the defendant to establish the allegations he earned by engaging in a similar or different employment after breach of the contract, was

in his plea in reconvention, and, if he does correct, though not instructing, except inferen

not so establish said allegation in said plea tially, to credit the damages, if any, with the by a preponderance of the evidence, you will market value of corn and cotton shown to have

find for the plaintiff, and so say by your verbeen raised by defendant during the year on other premises.

dict." He also assigns error because the fol[Ed. Note.- For cases in point, see vol. 32, lowing charge was given: “The burden is Cent. Dig. Landlord and Tenant, $8 723–727.) on the plaintiff to establish his right to pos

session of the premises sued for at the time Appeal from District Court, Palo Pinto

of the filing of this suit, by a preponderance County; W. J. Oxford, Judge.

of evidence, and the burden is on the defendTrespass to try title by T. F. Freeman

ant to establish his injury by reason of the against J. P. Slay. Judgment for defendant,

levy of the writ of sequestration by a preand plaintiff appeals. Affirmed.

ponderance of the evidence." Both charges The charge on the measure of damages were objectionable, but the one refused more referred to in the opinion was as follows: so than the one given. True, the burden was "Then you will find for defendant on his on appellee to establish by a preponderance cross-action, and assess his damages at the of the evidence the material facts alleged reasonable market value of the corn and cot- in his plea in reconvention, and, failing to ton which defendant and his family would discharge this burden, he was not entitled have been reasonably expected to raise on to recover damages; but the requested said premises during the year 1904, less the charge, instead of so declaring, in that event rents due to the plaintiff therefrom, and less directed a finding "for the plaintiff.” It the amount of money defendant would have thus went a little too far, and was conseexpended for hired bands to assist him and quently properly refused. The plaintiff was bis family in making said crop, and less not entitled to recover possession without such an amount as defendant and his family proving by a preponderance of the evidence are shown to have earned by engaging in a his right to possession, which depended on similar or different employment after the whether or not he had rented the land to apbreach of the contract.” Plaintiff's objec- pellee, although the defendant may have tion was that nowhere in the charge were failed to establish by a preponderance of the jury told to credit the damages, if any.

the evidence his right to recover damages. on account of the breach of contract by The last clause of the charge given seems plaintiff, except inferentially, with the mark- rather too restrictive, and possibly had a et value of the corn and cotton raised by tendency to mislead the jury as to the exdefendant, under the proofs, on other prem- tent to which the burden of proof was on ises during the year.

appellee, but this is not the precise objection

made to the charge. It was correct as far Crudgington & Penix, for appellant. H. E.

as it went, and appellant cannot avail himBradford, for appellee.

self of such error of omission without hav.

ing requested a charge to supply it which STEPHENS, J. Appellant, suing in tres- might have been given. pass to try title, and causing appellee to be The following deposition of M. T. Hatley ejected under writ of sequestration, was ad- was read in evidence: “I had a coversamitted in the answer of appellee to be the tion with T. F. Freeman in the fall of 1903 owner of the 'land in dispute, but his right in regard to renting land to Mr. Slay for to recover possession was denied on the the year 1904. I don't know the name of the ground that he had rented the land to ap- survey. My understanding was that he was pellee for the year 1904; the writ of seques- to have the land that Slay and Mitchell had tration having been sued out and executed tended for the year 1903, and it was on the during January of that year. On the same south and west of the branch known as the ground appellee sought to recover damages 'East Branch.' I understood Slay was to against appellant for the wrongful eviction; have 140 acres. The number of acres was claiming the reasonable value of the crops mentioned in the first conversation." The he would have made on the land during that testimony was objected to because of the use year if he had been permitted to cultivate of the words "understanding” and “underit, and other special damage incident to stood.” But in the agreed statement of facts the execution of the writ of sequestration. we find that this witness gave positive testiWhether or not appellant had rented the mony as to the fact of appellant's renting land to appellee for the year 1904 was the land to appellee in the fall of 1903 for the controlling issue of fact in the case, and on year 1904. The material controversy, on it the testimony was decidedly .conflicting. which the evidence was conflicting, was not The verdict, which was in appellee's favor, as to the description of the land rented, but is therefore conclusive, unless there was ma- as to whether appellant had rented any land terial error in the proceedings.

at all to the appellee for the year 1904. It Appellant assigns error to the court's re- is evident, therefore, from an examination fusal to instruct the jury as follows: You 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 – INSTRUCTIONS,

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.

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 neg. ligence 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 judg. ment 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, doubt. less, by an amendment.

Judgment reversed and cause remanded.

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

W. SCOTT & CO. V. WOODARD. (Court of Civil Appeals of Texas. May 27,

1905.) 1. EVIDENCE-ADMISSIONS-APPLICATION FOR CONTINUANCE.

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, Howard County; Jas. L. Shepherd, Judge.

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

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

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