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spect. See Dees v. Thompson, supra, and was located and patented. When and where other cases above cited. this administration was had the record does not disclose.

Prior to the promulgation of the rule relied upon and Courts of Civil Appeals rules Nos. 23 and 24 (142 S. W. xii) the Supreme Court of this state and the Courts of Civil Appeals uniformly held that a party appealing from a judgment by the court without a jury had the right to appeal without filing a motion for a new trial. Bell County v. Alexander, 22 Tex. 357, 73 Am. Dec. 268, Luther v. Western Union Tel. Co., 25 Tex. Civ. App. 31, 60 S. W. 1029, and Greer v. Featherston, 95 Tex. 654, 69 S. W. 69.

Mr. Justice Brown, in the case of M., K. & T. Ry. Co. v. Beasley, 155 S. W. 183 et seq., in passing upon a somewhat similar question to the one here involved, held that the Supreme Court could not by rule set aside a statute, and that the rules of court must be so construed as to harmonize with the articles of the Revised Statutes, and with the former decisions of that court. We therefore have no hesitation in holding that the rules relied upon by appellees will not warrant us in sustaining their contention; but, on the contrary, we hold that, where the case has been tried before the court without a jury, and conclusions of fact and law have been filed by the trial court, and the judgment duly excepted to, as in the instant case, that the appellant has the right to appeal and file assignments of error without a motion for a new trial, and therefore we overrule appellees' motion to strike out appellants' assignments of error. Motion overruled.

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III. On August 13, 1859, M. M. Bonham, acting for himself and the other heirs of James B. Bonham, through his attorney, James C. Walker, petitioned the Court of Claims to issue to said heirs the donation certificate to which they were entitled as such heirs.

IV. On October 15, 1859, said certificate No. 37 was issued to said heirs.

V. M. M. Bonham filed his petition to the probate court of Freestone county to the September term, 1859, of said court, to be appointed administrator of the estate of James This petition was signed by B. Bonham. "Walker & Bradley, Attys., per L. D. Bradley."

VI. At the October term, 1859, of said court, letters of administration were issued to said M. M. Bonham.

VII. September term, 1860, M. M. Bonham filed a petition for the sale of said certificate, alleging claims against said estate, aggregating $453.76, of which $198.56 was alleged to This petition be due said M. M. Bonham. was signed by Walker & Bradley, Attorneys. VIII. On September 24, 1860, said probate court ordered M. M. Bonham to sell said certificate to the highest bidder for cash. ministrator reported that he had sold said certificate, as ordered by the court, to L. D. Bradley at 41 cents per acre.

IX. At the November term, 1860, said ad

X. On November 6, 1860, M. M. Bonham, administrator, deeded said certificate to L. D. Bradley. This deed was recorded May 5, 1882.

XI. At the December term, 1860, of said court, said sale was approved.

XII. On September 9, 1861, S. C. Simmons, E. Steele, and L. D. Bradley entered into a Freestone written agreement with each other, which recited among other things:

On motion for additional findings of fact. Findings made.

For opinion, see 178 S. W. 1020.

Anderson & Moses, of Fairfield, for appellant. M. L. Bonham, of Anderson, S. C., W. W. Ballew, of Corsicana, and T. H. Bonner and Boyd, Bell & Fryer, all of Fairfield, for appellees.

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This agreement further states that said Additional Findings of Fact on Motion for Bonham certificate had been paid for by L. D.

Same.

JENKINS, J. The appellant having complained that our findings of fact herein are not sufficiently full, we make the following additional findings of fact:

Bradley, and that other certificates therein mentioned had been paid for by the other parties, but that they were to pay the same amount and be equal partners in said lands. XIII. On May 30, 1862, the land in con

I. James B. Bonham was killed at the troversy was patented to the heirs of James Alamo in 1836. B. Bonham by virtue of said donation certificate.

II. The record in this case indicates that his estate was administered upon and his land was partitioned among his heirs, from

XIV. The parties hereto filed a written agreement, as shown by our original findings

NATIONAL LIVE STOCK INS. CO. v.

GOMILLION. (No. 5482.)

(Court of Civil Appeals of Texas. Austin. Oct. 13, 1915.)

-

COURTS247 - APPELLATE JURISDICTION CERTIFICATION-WRIT OF ERROR GRANTABLE. The Court of Civil Appeals will not certify a case to the Supreme Court, where that court has jurisdiction to grant a writ of error.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762764; Dec. Dig. 247.]

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The court quotes with approval from Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357, as follows:

Appeal from Caldwell County Court; J. other states, but depending for such recognition "Having no absolute right of recognition in T. Ellis, Judge.

On motion for rehearing. Overruled.

For former opinion, see 178 S. W. 1050. E. B. Coopwood and Nye H. Clark, both of Lockhart, for appellant. O. Ellis, Jr., S. R. Graves, and T. B. Monroe, all of Lockhart, for appellee.

JENKINS, J. In our original opinion herein we held that article 4951, R. S. (article 3096eee, c. 69, Acts 28th Leg.), was constitutional. A careful examination of the able brief and argument of appellant herein on its motion for a rehearing has not changed our views as to this.

Appellant vigorously assails our opinion herein, wherein we held that appellant was not in a position to attack the constitutionality of the enactments of the Legislature regulating the admission of foreign corporations to do business in this state for the reason that in accepting such permit it agreed to be bound by such enactments. Article 4972 makes the provisions of title 71, R. S., conditions precedent upon which foreign insurance companies shall be permitted to do business in this state, and provides that such companies by doing business in this state "shall be held to have assented there

The law is a part of every contract. Under the law of this state when a foreign insurance corporation obtains a permit to do business in this state, every provision of title 71 of the Revised Statutes, in so far as applicable to its line of business, becomes a part of its contract to do business in this state. Having accepted said provisions and agreed to be bound thereby, it will not, after doing business under such permit (and without which it could not have any business in this state), be heard to question the validity of such provisions.

and the enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those states may see proper to impose. They may exclude the foreign corporation entirely. * in their discretion." * * The whole matter rests

As a conclusion of this whole matter the court said:

"The statute of 1889 (which was assailed as being unconstitutional), therefore, was a condition upon the plaintiff in error within the limitations were upon the power of contracting, power of the state to impose, and whatever its whatever its discriminations were, they became conditions of the permit and were accepted with it." (Italics ours.)

It will be observed that article 4951, R. S., does not discriminate between foreign and domestic insurance companies. This is a suit to recover on an insurance contract, and the appellant seeks to read into that contract questions and answers in the application for the policy, when under the provisions of title 71, R. S., hereinbefore referred to, such questions and answers did not become a part of such policy, for the reason that a copy thereof did not accompany said policy.

For the reasons stated in our original opinion herein, we overrule appellant's contention that appellee was not entitled to a judgment for the penalty and attorney's fees recovered.

For the reasons stated herein, appellant's motion for a rehearing is overruled.

The Supreme Court has jurisdiction to grant a writ of error in this case, for which reason the motion to certify is also overruled. Jones v. Lopez, 172 S. W. 992, 993; Day v. Mercer, 175 S. W. 766.

Motion overruled.

WICHITA VALLEY RY. CO. v. SOMERVILLE et al. (No. 808.) Amarillo. Civil Appeals of Texas. 16. 1915. On Motion for Rehearing, Nov. 6, 1915.)

(Court of

Oct.

1. WILLS JURY.

792-ELECTION-QUESTIONS FOR

Such we understand to be the effect of the decision of the Supreme Court of the United States in Waters-Pierce Oil Co. v. State of Texas, 177 U. S. 28, 20 Sup. Ct. 518, 44 L. Ed. 657. In that case it was contended by appellant that the statute of Texas was unconsti- A husband at the time of his death owned tutional, in that it took away "the property two lots with a hotel thereon, constituting comand liberty assured by the fourteenth amend- munity property, on which he and his wife had and liberty assured by the fourteenth amend- been living. His will gave the property to a ment of the Constitution of the United son, subject to the payment of rent to the States," and made "many discriminations be- widow for life, and also gave the widow all of

she had not paid city and school taxes, could not be held immaterial, unless she was entitled to a peremptory instruction under the ten-year statute, as it was probable that the jury did not investigate the question of adverse possession for longer than five years, and it therefore probably caused the rendition of an improper verdict within rule 62a (149 S. W. x), providing that no judgment shall be reversed for an error of law in the course of the trial, unless the appellate court shall be of opinion that the error amounted to such a denial of appellant's rights as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.

the furniture. The son had been living with [tation, an erroneous instruction allowing her his father and mother as one of the family, to prevail under the five-year statute, though and continued to live there and manage the hotel without any change being made in the management of the property. He had the will probated, but, though named as executor, never qualified, and never exercised any authority as such, nor attempted to carry out the provisions of the will, further than to pay certain sums to the other children as provided in the will. The hotel was subsequently sold, the widow and son both signing the deed, and part of the furniture being turned over to the purchaser apparently passing with the sale of the hotel, and not being sold for any fixed price or as the property of the widow. The widow claimed that she did not know the contents of her husband's will, and never accepted the provisions thereof, but continued to occupy the premises, claiming her community and homestead rights. Held, that the facts did not conclusively show an election by her to accept the provisions of the will, and whether there was such an election was a question for the jury.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 2049-2052, 2061-2063; Dec. Dig. 792.]

2. WILLS 792-ELECTION ACTS CONSTI

TUTING.

An election by a widow to take under her husband's will in lieu of her community and homestead rights must be unequivocal and with the intention to make an election.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 2049-2052, 2061-2063; Dec. Dig. 792.]

3. ADVERSE POSSESSION

RIGHTS ACQUIRED.

103—EXTENT OF

Where a husband at the time of his death was in possession of two lots constituting community property, but the record title to a small part of one of the lots was in a third party, and he had not acquired title thereto by limitation, if the wife remained in peaceable adverse possession, cultivating, using, and enjoying the land in question under a claim of title for the required period, she acquired title to the whole thereof, and not merely to an undivided one-half interest.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 590-594; Dec. Dig. 103.]

4. ADVERSE POSSESSION 86-PAYMENT OF

TAXES-STATUTORY PROVISIONS.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. 1064.]

7. ADVERSE POSSESSION
ISSUES.

115-EVIDENCE

A husband at the time of his death was residing with his wife and son on two lots on which was a hotel and which constituted community property. He gave the property to the son, subject to the payment of rent to the widow during her life. The son had been living with his father and mother as one of the family and working for them as during his minority, and after his father's death he continued to manage the hotel; no change being made in the management of the property. The widow also continued to occupy the lots, and, though the son was named as executor of the will, he never qualified or exercised any authority as executor. Title to a portion of one of the lots was in plaintiff. There was evidence tending to show an election by the widow to take under the will, but she denied this and claimed to have been in possession, claiming tiff's suit against the widow and son in tresher community and homestead rights. In plainpass to try title there was no testimony that the son was his mother's tenant, and it was shown that after the expiration of five years, but within ten years from the commencement of the adverse possession, he leased the disputed land from plaintiff, and there was testhat the widow knew of this lease and actimony, though contradicted, tending to show quiesced therein. Held, that the widow was not entitled to a peremptory instruction under the ten-year statute of limitations, and an erroneous instruction allowing her to prevail under the five-year statute, notwithstanding nonpayment of taxes, was not immaterial, as the facts raised an issue as to whether the son was not in possession, and the widow merely living with him, and also raised the issue of a mixed or joint possession or occupancy, and, if this was the case, she was not in peaceable adverse possession during the time the son was also in possession under the lease from plaintiff.

Under Vernon's Sayles' Ann. Civ. St. 1914, art. 5674, providing that every suit to recover real estate as against any person having peaceable and adverse possession, cultivating, using, or enjoying it, and paying taxes thereon, if any, and claiming under a deed duly registered, shall be instituted within five years, the party in adverse possession must pay all of the taxes, and where defendant claimed title by limitation under such article, she was bound to show the payment of city taxes, as well as a special school tax levied by an independent school dis-115.] trict.

[E. Note.-For other cases, see Adverse Possession. Cent. Dig. §§ 314, 691-701; Dec. Dig.

[Ed. Note.-For other cases, see Adverse Pos- 8. ADVERSE POSSESSION SESSION-EFFECT. session, Cent. Dig. § 504; Dec. Dig. 86.] 5. APPEAL AND ERROR 1064-HARMLESS ERROR-BURDEN OF NEGATIVING PREJUDICE. It must appear that an erroneous charge calculated to mislead the jury did not have that effect, or the judgment will be reversed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224, Dec. Dig. 1064.]

68-MIXED POS

When two persons are in mixed possession of the same land, one by title, and the other by wrong, the law considers the one who has title as in possession to the extent of his rights, so as to preclude the other from taking advantage of the statute of limitations.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 387-393; Dec. Dig. 68.]

6. APPEAL AND ERROR 1064- HARMLESS 9. ADVERSE POSSESSION ERROR-INSTRUCTIONS.

In trespass to try title, where defendant pleaded the five and ten year statutes of limi

BURDEN OF PROOF.

112-EVIDENCE

In trespass to try title against a mother and son, where it appeared that both had been

living on the property, and that the son, with- | In discussing this case we shall refer to in the period of limitation, had taken a lease Mrs. Sarah Somerville, who was the interfrom plaintiff, the burden was on the mother to show that she, and not the son, had possession under a claim of exclusive ownership.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. $$ 651, 653, 654, 657-659, 661-663, 665, 666; Dec. Dig. 112.] 10. TRIAL 255-INSTRUCTIONS-NECESSITY

OF REQUESTS. In trespass to try title against the widow of a former owner of lots, embracing the tract in controversy, if plaintiff desired the submission of the question as to the wife's election to take under her husband's will in lieu of her community and homestead rights, or if it desired its theory of the case presented, it should have requested proper charges.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. 255.] 11. ADVERSE POSSESSION

STRUCTIONS.

116-TRIAL-IN

vener in this case, as appellee, and her son, C. F. Somerville, either by name or as the son.

On the 4th day of November, 1911, appellant, Wichita Valley Railway Company, brought suit in trespass to try title against appellee C. F. Somerville for a small triangular piece of land out of lot 2, block 211, in the town of Wichita Falls, Tex. Thereafter, on the 16th day of August, 1912, Mrs. Sarah Somerville filed her petition for intervention in this suit, setting up her right to the land in controversy. Both C. F. Somerville and Mrs. Sarah Somerville pleaded that they were each the owners of the land by deed, and also pleaded the five and ten In trespass to try title against a mother year statutes of limitation, seeking separate and son, both of whom had been living on the recoveries. We will not set out the pleadland, and each of whom pleaded title by limi-ings of appellant and appellees more at length tation and claimed to have had possession, where it appeared that the son, after his fa- at this time, as we believe that the statether's death, continued to live as theretofore ment of the facts will sufficiently present the as a member of the family and to manage the issue. property, and that within the period of limitation he accepted a lease to the property from plaintiff, the refusal of an instruction that, if he had actual control and management of the property, and was authorized by his mother to control and manage her property, and that in leasing it he was acting within the scope of the authority granted to him, the jury should find for plaintiff as against both defendants, was not

error.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. § 66; Dec. Dig. 116.] 12. APPEAL AND ERROR 1068 HARMLESS ERROR ERRORS RENDERED HARMLESS BY VERDICT.

In trespass to try title against a mother and son, each of whom claimed title, the refusal of an instruction to find against the son under certain facts was immaterial where the jury found for the mother, as it thereby, in effect, found against the son.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4225-4228, 4230; Dec. Dig. 1068.]

Appeal from District Court, Wichita County; E. W. Nicholson, Special Judge.

Trespass to try title by the Wichita Valley Railway Company against C. F. Somerville, in which Mrs. Sarah Somerville intervened. From a judgment in favor of the intervener, plaintiff appeals. Reversed and remanded.

Thompson & Barwise, of Ft. Worth, and Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. A. A. Hughes and T. R. Boone, both of Wichita Falls, for appellees.

The Wichita Valley Railway Company alone is appealing. C. F. Somerville does not appeal, but he is made an appellee in this case. The court submitted the case to the jury on general charges, instructing the jury substantially that appellant had title to the land sued for, unless defeated by the statutes of limitation pleaded by the respective parties, and submitted the case on that theory alone. The jury returned a verdict in favor of the intervener, Mrs. Sarah Somerville, upon which judgment was rendered for her, decreeing her the land as against both appellant and C. F. Somerville, For the purposes of this opinion we do not believe it will be necessary to set out the title of the respective parties, but we find the record title is shown to be in appellant, and it should recover, unless defeated by the statutes of limitations. For convenience, and for the purpose of getting generally the issues in this case, we will adopt the statement made by appellee, but will, as we consider the several assignments, refer to such facts as may be deemed necessary in considering the same:

"On the 14th day of March, 1901, A. D. Anderson, Frank Kell, and J. J. Lory conveyed to A. J. Somerville, by their deed of that date, lots 1 and 2 in block 211 of the town of Wichita Falls, which deed embraces the land in controversy. Said deed was duly recorded in the deed records of Wichita county, Tex., on the HUFF, C. J. This case was reversed and 25th day of March, 1901; said deed was duly acknowledged. Immediately after said land was remanded upon a written opinion by the conveyed to A. J. Somerville, he and his wife, court. In its rendition we overlooked an Sarah Somerville, moved into the hotel building, agreement by the parties, filed in addition which was situated on both the said lots, and to the record, in which it was agreed that had a fence built around the entire lots, inclosing the same by said fence. This fence was the filing of appellee's (Mrs. Somerville's) in- built the last of March or about the first of tervention was on the 16th day of August, April, 1901. The intervener was at that time 1912. This will necessitate a reconsidera- the wife of A. J. Somerville, and they lived in the said house and ran a hotel business theretion of the entire case. The former opinion in until some time in November, 1903, when by this court will therefore be withdrawn. A. J. Somerville died. During the lifetime of

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

A. J. Somerville the appellee C. F. Somerville,, These lots were deeded to her husband in who was the son of A. J. Somerville and Sarah March, 1901, and were fenced in April of Somerville, lived in said hotel with them, and that year, and remained so until after the in a large part managed said hotel for them. C. F. Somerville had lived with his father and mother all of his life; had never left them, had never worked for wages, but had lived with them and worked for them just as he did when he was a minor, without making any account against him for the money that he received or making any account for his clothing, and he charged nothing for his services; in other words, he lived with them just as one of the family, as he did before he grew to manhood. He managed the hotel for them during the life of A. J. Somerville and under his direction. A. J. Somerville died in 1903, and left a will, which was duly probated in the county court of Wichita county, Tex. The will provided that C. F. Somerville should be the executor. It further provided that small sums of money should be paid to each of his other children, and that the widow, Sarah Somerville, should receive the rent from said hotel during her life, and should have all of the furniture, but devised the fee to Chas. Somerville, subject to the payment of said rent. C. F. Somerville had the will probated and filed an inventory, but never qualified as executor, and, so far as the records show, never exercised any authority as executor or attempted to carry out the provisions of the will, further than to pay the said sums of money to the other children as provided in the

will.

"Lots 1 and 2 in block 211 was the community property of A. J. Somerville and intervener, and they resided on said lots up to the time of his death, and after his death intervener, Sarah Somerville, continued to occupy the same as her homestead just the same as she did before his death, and C. F. Somerville continued to manage the hotel for her just as he did for A. J. Somerville during his lifetime; in other words, the business continued after the death of A. J. Somerville just as it did before his death, no changes being made whatever in the management of the property.

suit was instituted against her son, C. F. Somerville, November 4, 1911. She lived in the hotel on the lots and made it her home during all those years. Under the will, she was to have all the hotel furniture and the rents from the property during her life. She testified she did not accept such property or rents in lieu of the community interest or of her homestead rights. It appears after this suit was brought the hotel was sold to one Perkins, and that she and her son signed the deed. Part of the furniture was turned over to Perkins. The testimony does not show that it was sold as her property or that any fixed price was placed on it, but it rather suggests that the property passed simply with the sale of the hotel. The mere fact that the furniture was used in the hotel, or that it was transferred with the hotel, does not conclusively show she accepted the personal property in lieu of her interest in the land. It is just as conclusive that the son claimed it as that she did, and the deed is just as conclusive that she claimed the land as that she claimed the personal property. Its use by her was not inconsistent with her undivided interest and right to exemption therein, and not conclusive that she accepted it in consideration for the relinquishment of her rights in the lots. Under the will, the son would take the father's interest, even if the wife did not accept, and the sale of the property and the manner of it indicates it was so treated by both mother and son. The husband had no right to dispose of her interest without her consent. There is no express election shown, and we think the evidence must show such election, and that she received property of value under the will to which she was not entitled otherwise. She had the right to retain the personal property until it was divided, since she had an undivided interest therein, all of which was furniture for the hotel and household and kitchen purposes. She was not called upon to divide the same by any of the heirs, and no reason is shown why she should relinquish her right of possession [1, 2] The first assignment is urged to the thereto. In the sale the son is shown to have action of the court in refusing to instruct participated therein as much as did the peremptorily a verdict to find for appellant. mother. The action of election must be unThe proposition under this assignment, and equivocal and with the intention to make an the only one, is there was no evidence suffi- election. 40 Cyc. 1976, 1977; McClary v. cient to authorize the jury to find either for Duckworth, 57 S. W. 317; Mayo v. Tudor the defendant or the intervener, under the Heirs, 74 Tex. 471, 12 S. W. 117; Gilroy v. pleading setting up the statutes of limitation. Richards, 26 Tex. Civ. App. 355, 63 S. W. We take it from the statement that the ap-664; Chace v. Gregg, 88 Tex. 552, 32 S. W. pellant's main reliance under this assign- 520; Cobb v. MacFarland, 87 Neb. 408, 127 ment is that the evidence is conclusive that N. W. 377; Archer v. Barnes, 149 Iowa, 518, Mrs. Sarah Somerville elected to accept un- 128 N. W. 967. der the will made by her husband. In this we do not agree with appellant. She testified that she did not do so, but at all times claimed her community interest in the prop

"C. F. Somerville testified on the stand that he considered he had an interest in the property after his father's death, but explained what he meant by stating that it would come to him

after his mother's death.

"Sarah Somerville continued to occupy said lots and building inclosed by a fence up to the time she intervened in this suit and for some time thereafter. She testified she did not know the contents of A. J. Somerville's will, and did not accept the provisions thereof, and did not accept the rent and furniture in lieu of her legal rights, but that she continued to occupy the house and premises, claiming her legal rights to the property and claiming her homestead rights therein until after she filed her plea of intervention in this suit."

We think the evidence raised the question of election, which was for the jury to determine under a proper charge by the court. At this time we will not notice the questions

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