sum of the county's funds for postage | anticipates that the commissioners' court stamps. (c) There was no allegation that may at some indefinite time in the future the action was brought by the appellant for the benefit of himself and other taxpaying citizens of the county. Upon a hearing, after overruling a plea to its jurisdiction, the court sustained both the general and special demurrers, and entered its judgment refusing any injunction, from which this appeal is prosecuted. commit an illegal act by approving an unstated account for postage stamps, which may be presented to it by some unnamed county officer; while it is plain, we think, under the quoted rule of pleading, that no court of equity would ever be authorized to grant an injunction upon any such nebulous and blanketlike application, in such circumstances, it would especially lack that power over the ordinary exercise of its jurisdiction by such another court as the commissioners' court of Austin county was, for not only has it been held that such a court has well defined judicial functions, but further, that its action in allowing and ordering a claim against the county paid is a judicial act, which can neither be revoked at a subsequent term nor collaterally attacked, but must be revised, if at all, by appeal or other appropriate proceedings instituted for that purpose. Busch & Co. v. Caufield, 135 S. W. 244. [1, 2] Under the two assignments presented, appellant insists that his petition stated a cause of action, but we have found ourselves unable to agree with him; it seems to be his position, in answer to the first objection pointing out the failure to show authority for attempting to bring the suit in behalf of Austin county, that it was sufficient for him to allege himself to be the duly elected, qualified, and acting county attorney. This, however, was neither a quo warranto proceeding, nor one against any officer intrusted with the collection or safekeeping of any public funds, which might be filed by the county or district attorney, under articles 366 and 368, Vernon's Sayles' Statutes, nor yet one which any other statute conferred the concurrent or exclusive right upon the county attorney to bring; that being so, the commissioners' court alone had the right to determine whether such a suit should be brought in the name and for the benefit of the county. Looscan v. Harris MOORE et al. v. AMERICAN LUMBER CO. County, 58 Tex. 511, [3] In the second place, there was no such particularity of pleading as is required in applications for injunction. In this respect it has been often laid down: ""The rule of pleading' * that the statements of a party are to be taken most strongly against him, is reinforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief." City of Paris v. Sturgeon, 50 Tex. Civ. App. 519, 110 S. W. 459; Land & Cattle Co. v. Board, 80 Tex. 489, 16 S. W. 312; Schlinke v. De Witt County, 145 S. W. 660; Shannon v. Hay, 153 S. W. 360; Weaver v. Emison, 153 S. W. 923. [4] Measured by the tests given in the cases cited, we think the petition here fell far short of meeting the essential requirements. As our preceding statement has shown, there was no such definite and specific allegation made as that the commissioners' court was then threatening to approve and allow for payment out of the county's funds some particular account in a fixed sum of money, presented to it by a certain named county official for postage stamps used by him in his official and private business, and asking injunctive relief against such impending action; in other words, the petitioner merely It is apparent that, in our opinion, the trial court did not err in sustaining the demurrers, and its judgment is affirmed. Affirmed. TOOLE et al. v. MOORE et al. (Court of Civil (No. 265.) Appeals of Texas. Beaumont. 1918. Rehearing Denied May 15, 1918.) 1. TRIAL 139(1)—INSTRUCTION OF VERDICT. The court cannot peremptorily instruct a verdict on any issue as against a party to a suit, where there is some evidence in his favor on the issue involved. 2. TRESPASS TO TRY TITLE 41(4)-IDENTITY OF GRANTEE-SUFFICIENCY OF EVIDENCE. In trespass to try title to and to recover possession of a league of land granted by the dence held insufficient to warrant finding that Mexican government to one John Moore, evithe John Moore under whom plaintiffs claimed was the original grantee of the land. 3. APPEAL AND ERROR 1003 REVIEWFINDING ON CONFLICTING EVIDENCE. REVIEW The Courts of Civil Appeals are not au thorized to disturb a jury's verdict or finding on an issue of fact which has reasonable support in the evidence, though apparently against a preponderance of the evidence. 4. APPEAL AND ERROR 1003 VERDICT-SETTING ASIDE. dict on a question of fact so clearly and overWhere the evidence relating to a jury's verwhelmingly preponderates against the verdict as to make it clear to the appellate court that such verdict was wrong, it should be disregard5. APPEAL AND ERROR 212 ed and set aside.. TO PEREMPTORY INSTRUCTION. OBJECTION Where defendant in error presented in writing a request to the trial court for a peremptory instruction, which was given without objection from plaintiffs in error, plaintiffs in error cannot complain of the court's action in giving the instruction. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Error from District Court, Sabine County; all the land sued for, save and except as to A. E. Davis, Judge. the American Lumber Company, in whose favor judgment was entered for 1,107 acres of the league specifically described. All the defendants, with the exception of American Lumber Company, in due time filed motions for a new trial, which were overruled, and the action of the trial court in that connection duly excepted to. The plaintiffs, Moore and Ratliff, also excepted to the court's judgment in denying them a recovery against the American Lumber Company, and plaintiffs filed a motion to set aside the di Suit by M. G. Moore and W. H. Ratliff against the American Lumber Company, J. O. Toole, W. F. Goodrich, and others. To review judgment for plaintiffs as against all the defendants, except as against the American Lumber Company, for which judgment was entered, and to review the judgment for the company, defendants, except the American Lumber Company, and plaintiffs bring error. Reversed and remanded in part, and affirmed in part. W. H. Ratliff and K. R. Craig, both of Dal-rected verdict in favor of American Lumber las, Carter & Walker, of Center, and W. R. Company and render judgment in their favor Cousins, of Hemphill, for plaintiffs in error. against that defendant on the verdict of the J. W. Minton and W. F. Goodrich, both of jury on the special issues submitted, or, failHemphill, D. M. Short & Son, of Center, W.ing in that, for a new trial as to the AmeriD. Gordon and F. J. & C. T. Duff, all of BeauD. Gordon and F. J. & C. T. Duff, all of Beaumont, Hamilton & Hamilton, of Hemphill, and Terry, Cavin & Mills, of Galveston, for defendants in error. HIGHTOWER, C. J. This was a suit in trespass to try title to and recover possession of a league of land granted by the Mexican government to John Moore on September 30, 1835, and situated on the waters of the Sabine river in Sabine county, Tex. The plaintiffs in the suit were M. G. Moore and W. H. Ratliff, and the defendants were American Lumber Company, J. O. Toole, W. F. Goodrich, H. B. Arnold, Harry Youngblood and his wife, Willie Youngblood, and R. L. Weathersby and his wife, Sidney Ann Weathersby. All defendants were duly served and answered. The defendant Toole disclaimed as to 500 acres in the northeast corner of the league, and also as to 1,107 acres in the south portion, and as to the remainder pleaded "not guilty." Defendants Weathersby disclaimed as to all the league except a tract of 500 acres in the northeast corner, and as to this pleaded "not guilty," and also interposed the several statutes of limitation. Defendants Goodrich and Arnold disclaimed as to all except a one-twentieth interest in the 500 acres claimed by the Weathersbys, and pleaded "not guilty" as to the remainder. Defendant American Lumber Company answered by plea of not guilty, and also claimed the entire league under the statutes. of limitation of three, five, and ten years. The case was submitted to the jury upon special issues, as between all the parties except American Lumber Company, in whose favor the trial court peremptorily instructed the jury to return a verdict for 1,107 acres of the league, described by specific metes and bounds. The jury returned its verdict on the special issues submitted, and also its verdict in favor of the American Lumber Company, as peremptorily instructed by the court, and upon this verdict judgment final was entered in favor of the plaintiffs, M. G. Moore and W. can Lumber Company. This motion by the plaintiffs was also overruled, to which action they excepted and the case has been brought here on two separate writs of error; J. O. Toole and the other defendants, with the exception of American Lumber Company, being plaintiffs in error in one writ, as against M. G. Moore and W. H. Ratliff, defendants in error, and M. G. Moore and W. H. Ratliff being plaintiffs in error in the other writ, as against American Lumber Company, the defendant in error. We shall first dispose of the writ of error prosecuted by J. O. Toole and others against M. G. Moore and others. It appears from the record in this case that the league of land here sued for was granted by the Mexican government to John Moore on the 30th day of September, 1835, and it also appears from the record that on the 3d day of October, 1835, "John More," claiming to be the owner of this league of land and the original grantee thereof, executed a deed conveying the same to John James Porter and J. S. Lane. Upon this deed appear the names of the following persons as witnesses to its execution: William Richardson, Wm. J. Logan, S. J. Peck, John M. Dorye, and Thos. J. Rusk. This deed was proven for record at Nacogdoches before Chas. S. Taylor, chief clerk and ex officio notary public, by Thos. J. Rusk, one of the witnesses to said deed, on July 30, 1838, and was recorded in Sabine county on May 8, 1838. All the defendants in this case claim and deraign title by regular chain under this deed. It was the contention, however, of the plaintiffs below that this deed to Porter and Lane from the purported original grantee was a forgery, and this contention was one of the two main issues submitted for the consideration of the jury on the trial, and the jury found, in effect, that this deed under which the defendants claimed title to this league of land was a forgery, and this finding is made the basis of one of the main assignments of error found in the brief of plaintiffs in error J. O. Toole et al. The record in this case is quite voluminous, and has been long and carefully considered sents most remarkable features. The plain- | material facts to which he purported to testiffs in this case M. G. Moore and W. H. Rat- tify. According to this witness John Moore, liff, claimed to have been connected with the title to this league of land for the first time on the 7th day of July, 1913, in this way: It appears from the record in this case that on said last-named date a man by the name of John Moore, residing in Hardeman county, Tex., executed to the plaintiffs, Moore and Ratliff, two deeds, by which he conveyed to them this league of land, and it is claimed by said plaintiffs, M. G. Moore and W. H. Ratliff, that this Hardeman county John Moore, their vendor, was the same man to whom this league of land was originally granted by the Mexican government in 1835, and that he had never theretofore conveyed the same, and that they acquired title thereto by these deeds of July 7, 1913. This man, John Moore, of Hardeman county, under whom these defendants in error, Moore and Ratliff, claim title, was present at the trial of this case, and testified as a witness, and the first main issue submitted by the court to the jury in this case was as follows: "Is John Moore, the witness who testified in this case, the same John Moore to whom a league of land on the Sabine river, in Sabine county, Tex., was granted on September 30, A. D. 1835? You will answer this question 'Yes' or 'No,' as you may determine the fact to be." To this question the jury answered "Yes." The other material question submitted for the jury's consideration was as follows: He he was born in Hawkins county, Tenn., and was one of a family of nine children. He said that in 1834 he, in company with his brother William, who he said was two years older than himself, and also in company with Forg Mann and Jack Carmack and perhaps several others, came from Tennessee to Texas for the purpose of acquiring land here as colonists under the Mexican government, and that their objective point in Texas, on leaving Tennessee, was Nacogdoches, and that he and his companions made their way as directly as they could to Nacogdoches upon reaching Texas. He said that after being in Texas a little while Jack Carmack began to be dissatisfied, and wanted to go back to Tennessee, and that he was persuaded by Jack Carmack to return with him to Tennessee some time during the same year. further stated that shortly after returning to Tennessee with Jack Carmack the latter received a letter from some of their companions at Nacogdoches, telling him to come back to Texas at once, and to bring the witness John Moore with him. He stated that acting upon this letter he and Jack Carmack, some time during the spring of 1835, returned to Texas and back to Nacogdoches, and that he (the witness) made application to the Mexican government shortly after his return, as a colonist, for land. He further stated that his brother William and Forg Mann, who was a cousin of his mother, and who had remained at Nacogdoches since first arriving there, were his advisors, and as such attended to the matter of ac quiring the land for which he was an applicant; that he, himself, had so little knowledge pertaining to matters of that kind, he depended upon his brother William and Forg Mann entirely to secure for him the land he He further stated that after rewanted. turning to Nacogdoches in 1835 he met and became acquainted with Arthur Henrie and David Brown, who were surveyors at Nacogdoches at that time, and who appeared to have a great deal of business to attend to in the way of surveying lands for colonists, etc.; and he stated that after formal application by him for land the same was granted, and that his title papers were delivered to and taken charge of by his brother William, but We shall now refer to the facts found in that he himself never saw the title papers, the record which are claimed by these de- and did not know of his own knowledge fendants in error to be sufficient to support what they contained, but that his brother the jury's findings on these two issues. As William told him that his title papers were stated above, the Hardeman county John all right, and that he had secured his land. Moore whom we will hereinafter refer to as He further testified that on one occasion, John Moore, was present at the trial and when he and others of his companions, pertestified in this case. His testimony is haps his brother William and Forg Mann, found in the record to cover nearly 50 were riding along on the Sabine river in pages, and, of course, it would be imprac- Sabine county, David Brown, who was one ticable for this court to here detail all he of the main surveyors in the vicinity of said, but we shall make what we conceive to Nacogdoches, made a remark to this effect, be a fair statement, in substance, of the "There's John's land," and at the same time "If you answer question No. 1 'Yes,' then you will answer the following question, but if you answer question No. 1 'No,' then you need not answer any other questions submitted to you. Did John Moore, the witness who testified in this case, convey the land sued for to James J. Porter and John S. Lane on the 3d day of October, A. D. 1835? question 'Yes' or 'No,' You will answer this as you may determine the fact to be." David Brown looked toward the witness, Milam, and Williamson counties from 1850, meaning John Moore. or 1851, until very recent years, and that This witness further further testified that he during all of this long period of time he thereafter (though the record is indefinite as lived within a distance of 30 or 35 miles of to time, but not later than some time in Austin, where the land office of this state 1837), again returned to Tennessee, and that has been continuously situated and kept, and he never again returned to Texas until 1850. according to his own testimony the only efHe further testified that his brother William fort even amounting to as much as the writafterwards went to the war between the ing of a letter to make any inquiry or lay United States and Mexico, and remained in any claim to the land here in controversy, the war about one year, and returned to Ten- or any other land in Texas, was in 1853, at nessee, and that he and his brother again which time he says he took a notion to go to made preparations to return to Texas, and Austin, and see what he could find in the had about completed all arrangements to do land office there relative to his land. He so when his brother William was again pre- stated that when he got to Austin on that vailed upon to rejoin the army and return to occasion he found the town infested with Mexico. He stated that while packing their rangers, many of whom seemed to be drunk trunks, etc., to return to Texas, his brother and carousing, but that he made inquiry for William showed him a bundle of papers, and the land office, and finally went to the buildat the same time remarked, "Here are our ing to which he was directed, and at the Texas land papers," and that this bundle of front door met a "big man," who was armed papers was placed in a trunk but that the and seemed to be drunk, and to whom he witness did not examine them, and did not made some inquiry about the land office, and know just what papers were in the bundle, stated that he wanted to see something about but only knew what his brother stated about his "land papers." He said that this big them. He further stated that his brother man spoke to him very abruptly, and told William, on deciding to return to the army, him that the land office had been burned, persuaded him also to join the army, and and that he did not have any land papers that he, in fact, joined the army, and in there, and that seeing that the man was company with his brother William left Ten- drunk and that he might have trouble with nessee, and entered the war between the him, which he did not want, he immediately United States and Mexico. He further stat- left Austin and returned to Lockhart. From ed that his brother William was killed in that day on until 1909, the record in this the war, and that he himself returned from case shows, without contradiction, that this the war to Tennessee, and was discharged at man John Moore, of Hardeman county, unMemphis in 1848. He further stated that der whom these defendants in error claim soon thereafter other acquaintances other acquaintances and this league of land, never made a single efcompanions of his in Tennessee became anx- fort of any character whatever to ascertain ious to come to Texas, and that he, along any fact concerning this league of land, not with them, about 1850, started back to Tex- even so much as to write a letter, notwithas, traveling by boat, and that he had with standing the fact that he resided such great him on the boat two trunks, a grip, etc., and length of time within a few miles of the that one of these trunks contained his title capital of the state, where the land office is papers to his Texas lands. He further stat-situated, in the archives of which was to be ed that when his boat was within about 40 seen, upon mere request, perfect and undismiles of New Orleans on the Mississippi riv-putable evidence of his title to this league of er, it came in contact with another boat, and that the boat on which he was traveling was thereby caused to sink so rapidly that he did not have time to save all of his baggage, and that the trunk containing his title papers to his Texas lands was lost and sunk in the Mississippi river, and that he never thereafter saw or heard of his title papers. He further testified that, notwithstanding this calamity, he continued his voyage on to Texas, and finally reached Lockhart, Tex., some time in the latter part of 1850, or first part of 1851. He further testified that in 1854 he was married to a Miss Elliott at Lockhart, Tex., and that this wife lived a number of years, and that there was born to this union in all nine children; that this wife died some time after the Civil War, about 1868 perhaps, and that shortly thereafter he married the second time. According to the record, as shown by this land, if, in fact, such title was ever in him. But he attempts to account for this absolute and long-continued nonclaim because of the fact, as he says, that he had lost his title papers in the Mississippi river, as the principal reason, and also because he understood that the land was of very little value. As a matter of fact, as disclosed by the record in this case, without contradiction, the first time that this Hardeman county John Moore conceived the idea of asserting any claim of title to the land in controversy was in 1909, and his claim arose in this way: He was on a visit to a granddaughter in Runnels county, Tex., and while there met some old soldier, and together they were discussing the hardships, etc., which they had undergone as soldiers and prisoners of war, and this granddaughter overheard this conversation and became interested, and told this John Moore that she wanted to write This Hardeman county John Moore stated, while a witness on the stand, that he did not know his exact age, and could not even tell the year in which he was born, but says that he was a very young man when he came to Texas, and that this league of land was granted to him as a colonist, and that he never conveyed the same to Porter and Lane, or to any one else. proceeded to do this, and published her piece was several years older than himself, and in the Dallas News. John Moore testified, if that one day while this sister and brotherwe mistake not, that on the very next day in-law were visiting at his mother's house after this history was published in the Dal- his brother-in-law told his mother that Betsy las News he began to receive letters from had told her husband her age, and he (the persons in different portions of the state husband) wanted to know of the mother if who were desirous of taking up with him Betsy had given her correct age; that Jim land matters, and from such inquiries he Marion stated to the mother the age that Betwas led soon thereafter to make a visit to sy had given him, which witness could not Sabine county, and it appears from the rec- remember, and again asked the mother if that ord that upon reaching Sabine county and was correct, to which the mother replied, subconsulting with certain persons there with stantially, "I reckon so," or something like reference to abstracts, etc., he first laid claim that, and thereupon Jim Marion asked his to a league of land that was granted by the mother the difference in the ages of her chilMexican government in 1835 to a man named dren, and the mother replied that the differJohn Moore, but this league of land was out ence was between 18 months and 2 years, in the piney woods on what is known as and that thereupon Jim Marion commenced to Bear creek, and was nowhere near the vi- figure with a pencil and piece of paper, and cinity of the league of land in controversy accepting Betsy's age to be as stated to him situated on the Sabine river, and which, he by her, and figuring that there was 2 years' says, in effect, was pointed out as his land difference between the ages of the children, by David Brown in 1835. The record is not he reached the conclusion that the witness definite as to how long he continued to lay John Moore was born in January, 1830, and claim to this piney woods league of land, so just stated on the memorandum that witbut it does appear that he sold his claim ness was born January 1, 1830. He stated thereto, or rather quitclaimed title thereto, that the "record" as made by his brother-inand then actively prosecuted his claim for law was the only record that he ever had or the league in controversy. knew of as to his age, or that of any of the other children, and that having no better record, and being in doubt of his correct age, and being desirous of obtaining a pension, and being informed by the authorities to whom his application pertained that it was necessary to state his age in the application, he just decided that he would accept the record as made by his brother-in-law, and say that he was born on January 1, 1830. On the trial of this case below, the defend- stated, however, on the stand, that he was ants introduced in evidence an application satisfied that Betsy had deceived his brotherfor a pension made to the Pension Depart-in-law, and had caused all this trouble to ment of the United States by this John Moore of Hardeman county, by which he claimed to As bearing upon the age of the said John be entitled to a pension for services as a sol- Moore, of Hardeman county, plaintiffs introdier in the Mexican War. This application duced the evidence by deposition of J. M. was made in 1884, and in such application Baldwin, a nephew by marriage of this John this John Moore swore that he was born on Moore, and this witness testified that accordJanuary 1, 1830, in Hawkins county, Tenn., ing to family history and tradition, as he reand went on to detail many other matters membered it, this John Moore was, at the connected with showing his antecedents, etc. time of the taking of the deposition in 1915, This application for pension was duly grant- 100 years old, or maybe more, but we find uped, and in 1908 this same John Moore again on close examination of the record that the made application to the Pension Department testimony of this witness as to John Moore's for an increase in his pension, and in this family history contradicts, in material resecond application he again stated, and swore spects, that of John Moore himself. Also the to the statement, that he was born on the 1st plaintiffs below introduced the deposition of day of January, 1830. Upon being confronted Mrs. Betty Thompson, who testified that she with these sworn statements, which he admit- had lived in the same community with the ted making, as to the date of his birth, the Hardeman county John Moore for about 20 witness undertook to explain the same by years while he lived in Milam county, and it saying that as a matter of fact he did not know is her opinion that said Moore was about 95 his exact age, and that this statement to the years old in 1915. Also the plaintiffs introPension Department as to the date of his duced the deposition of G. W. Radford, a birth was based upon a "record" that was physician, who testified in 1915 that he had made by a brother-in-law of his, back in Ten- known this John Moore for about 20 years, nessee, under the following circumstances: and had treated him professionally, and that He said that he had a sister named Betsy, he would think that John Moore is someand that she married a man named Jim Ma- where between 90 and 100 years old. Also rion; that Betsy was his oldest sister, and the plaintiffs introduced the deposition of 203 S.W.-28 himself in doing so. He |