location, to another. Held, that said plaintiffs cannot complain on appeal that no sufficient authority was shown in the guardian to execute said deed. Appeal from district court, Victoria county; S. F. Grimes, Judge. Trespass to try title by W. S. Brown and others against John O'Brien. Defendant had judgment, and plaintiffs appeal. Affirmed. A. B. & W. M. Peticolas and W. Y. McFarland, for appellants. Glass, Callender & Carsner, for appellee. WILLIAMS, J. Appellants, some of whom are heirs, and others vendees of heirs, of A. B. Williams, sued in trespass to try title to recover of defendant 1,280 acres of land granted to said Williams. Defendant claimed through a sale of the Williams certificate made in an administration on his estate, which was confessedly void, and under the statute of limitation of five years. Two of appellants, Mrs. Wilhite and Mrs. Davore, in reply to the plea of limitation, pleaded coverture. Trial before the court without a jury, and judgment for defendant. Plaintiffs showed a title to the land, and were entitled to recover, unless the defense of limitation was sustained. The evidence shows that defendant and those under whom he claims have since 1880 had inclosed a pasture, which contains 5,000 acres or more, in which they have kept and pastured their stock. The fence runs diagonally across the tract in controversy, including within the pasture all of it except about 256 acres which lay outside of the fence. Each of the successive possessors held under a deed for this tract which was duly registered, and paid all taxes due thereon, and there was a connected chain of transfer connecting the different possessions. The pasture gates were kept and the pasture was controlled all of this time by those having such possession. It included some land which belonged to others, some of whom lived in the pasture; but those of the several owners who used the land used it in conjunction, and claimed the land to which they severally asserted title against all others, and the Williams grant was thus held and claimed by defendant and those under whom he claims. There were some strips of vacant public land lying between the different surveys included in the pasture, but this fact was not known to the defendant or his predecessors in the possession under which he claims. The evidence of plaintiffs developed the fact that an interest in the certificate was inherited from Williams by minors, children of a sister who survived him, residing in Indiana, and whose guardian in that state was John R. Hobbs. Among such minors were Mrs. Wilhite and Mrs. Davore, who married their present husbands before the commencement of the possession under which defendant sought to establish title by limitation. In developing their case, plaintiffs offered a deed executed in Indiana by the guardian of the minors, undertaking to convey to Horace Brown, from whom others of plaintiffs deraign title, the certificate, before its location, and thereupon the following occurred: "This deed, when offered, was objected to by defendant upon the ground that there was no authority shown for the guardian to execute the same, which objection was by the court sustained. The plaintiffs' counsel suggested to the court that, as this deed conveyed personal property, that it did not require strict proof of the authority for its execution, whereupon the counsel for the defendant asked the counsel for the plaintiffs the following question: 'For what purpose is this deed offered in evidence? Is it for the purpose of showing title to this interest in Horace Brown? To which the counsel for plaintiffs responded, in the presence and hearing of the court, "That is the only purpose and object for which it could be offered, and that is the effect of the deed." Thereupon the counsel for defendant announced to the court that they withdrew their objections, and the deed was then read in evidence, the counsel for plaintiffs asking the court to note the fact that the deed was read in evidence by consent." 1. It was not necessary for defendant, in order to sustain his plea of five years' limitation, to show payment of taxes on or deed for any other of the tracts inclosed in the pasture. 2. The possession of the Williamses shown by the evidence was adverse to the plaintiffs, and was of a character sufficient to sustain defendant's plea. 3. The possession extended to the whole of the tract, notwithstanding part of it was outside the inclosure. Deeds were on record showing the extent of the claim asserted, and actual possession of a part, extended by construction to the limits defined in such deeds. 4. The fact that in. the defendant's chain of title, back of the deeds under which the possession was held, there was a void administrator's sale, cannot defeat the plea. Such deed was not a "forged deed." 5. If the interests inherited by Mrs. Wilhite and Mrs. Davore were still owned by them, they would be entitled to recover, as their coverture would have prevented the statute of limitations from running against them. The deed by their guardian would not of itself be sufficient to pass title. But. as the certificate was personal property, it is believed that the law of the domicile of the minors could have authorized its conveyance by guardian. And, if proper authority from the law or from the courts of Indiana were shown for the deed which was offered in evidence, it would have been effectual to pass the title. The deed was offered for that purpose by plaintiffs, and they asked the court to give it that effect. But for their attitude, the defendant might have adduced evidence to supply the facts essential to give effect to the conveyance. The defendant admitted the deed to have the effect claimed for it by plaintiffs, and this, we think, dispensed with the necessity of proving facts showing authority for the conveyance. A ratification of it by the two plaintiffs concerned might have been shown, and, at any rate, their position in court was such as to estop them from disputing the correctness of the action of. the court in acceding to it. Big. Estop. 601-604; 3 Eng. Ruling Cas. 310. There is no error in the record, and the judgment is affirmed. Affirmed. CITY OF HOUSTON v. HUTCHINS. (No. 950.) 1 (Court of Civil Appeals of Texas. Nov. 7, 1895.) EMINENT DOMAIN-COMPENSATION. A property owner may recover damages for injuries to his property from a change in the established grade of the street on which his property faces, and from the digging of ditches therein to drain other streets. Appeal from district court, Harris county; S. H. Brashear, Judge. Action by Spencer Hutchins against the city of Houston. From a judgment for plaintiff, defendant appeals. Affirmed. John S. Stewart, for appellant. E. P. Hamblen, for appellee. WILLIAMS, J. This suit was brought by appellee to recover compensation for damage done to his property, abutting upon the streets of appellant, by its action in changing the established grade and digging ditches for the purpose of draining other streets. The petition alleged the taking and damaging of his property without compensation, and, under the decisions in this state, showed a good cause of action. Judgment was rendered for plaintiff, and appellant appeals, without a statement of facts, and without an exception reserved to any ruling. The only assignment of error asserts, in substance, that a recovery upon the facts alleged and submitted by the charge was contrary to law. As a good cause of action was shown in the petition, and no error in the proceedings is pointed out, the judgment must be affirmed. Affirmed. CITY OF HOUSTON v. HUTCHINS. (Court of Civil Appeals of Texas. Nov. 7, 1895.) Appeal from district court, Harris county; S. H. Brashear, Judge. Action by Elvira Hutchins against the city of Houston. From a judgment for plaintiff, defendant appeals. Affirmed. 1 Rehearing denied. John S. Stewart, for appellant. E. P. Hamblen, for appellee. WILLIAMS, J. This suit was brought by appellee to recover compensation for damage done to her property, abutting upon the streets of appellant, by its action in changing the established grade and digging ditches for the purpose of draining other streets. The petition alleged the taking and damaging of her property without compensation, and, under the decisions in this state, showed a good cause of action. Judgment was rendered for plaintiff, and appellant appeals, without a statement of facts, and without an exception reserved to any ruling. The only assignment of error asserts, in substance, that a recovery upon the facts alleged and submitted by the charge was contrary to law. As a good cause of action was shown in the petition, and no error in the proceedings is pointed out, the judgment must be affirmed. Affirmed. WALKER et al. v. PETERSON et al. (Court of Civil Appeals of Texas. Dec. 18, 1895.) TRESPASS TO TRY TITLE-EVIDENCE-ANCIENT INSTRUMENTS. 1. In trespass to try title, plaintiffs claimed under a certain lost transfer of land certificate No. 350, issued to a certain railroad company, and to which it was alleged to have been originally attached. Held, that it was error to admit evidence that another certificate, issued to the same railroad company on the same day as No. 350, had a transfer pasted on it. 2. Plaintiffs claimed under an alleged lost transfer attached to a land certificate. It appeared that the certificate was in the land office, but no transfer was attached to it; that plaintiffs left the certificate, for location, with a firm, which located it on the land in dispute, and caused it to be returned to the land office; that, before the trial, two members of such firm died; that a person employed to settle the estate of one of them had no recollection of such transfer among his papers; and that the surviving member of the firm located the certificate, and had no recollection of any transfer. It was not shown that any search for the transfer was made among the papers of such firm. Held, that there was no predicate laid for the introduction of secondary evidence of the contents of the transfer. 3. Where a right is claimed under a lost instrument, the contents of which are shown by secondary evidence, if it appear that the instrument was executed more than 30 years before the trial, the rule admitting ancient instruments without proof of their execution applies. Appeal from district court, San Saba county; W. M. Allison, Judge. Trespass to try title by Richard Peterson and George S. Thebo against H. S. Walker and others. From a judgment for defendants, plaintiffs appeal. Reversed. Salon Stewart and E. L. Rector, for appellants. John T. Walters, for appellees. KEY, J. This is an action of trespass to try title, in which appellees, Richard Peterson and George S. Thebo, sued for and recovered from appellants 640 acres of land in San Saba county. The land was located and surveyed in November, 1874, by virtue of certificate No. 350, issued to the Buffalo Bayou, Brazos & Colorado Railroad Company, and the field notes were returned to the general land office the same month, but no patent has been issued. Appellees claim the land through an alleged lost transfer from said railroad company, conveying said certificate No. 350, in blank; that is to say, a blank was left for the transferee's name to be inserted. We think the court erred, as charged in appellants' first assignment of error, in permitting appellees to prove by the witness Sedberry that another certificate, issued to the same railroad company, and on the same day as No. 350, had a transfer pasted on it. The fact that the railroad company may have transferred other certificates issued the same day does not tend to prove that it transferred No. 350. legal representative. It is true that the lost transfer was last seen in Moore's possession; but, as he received and held it as a member of the firm of Moore, Mabry & Alford, under a contract between said firm and one of the appellees, it did not pertain to his individual business; and, such being the case, there is certainly as much probability of it remaining in the custody of his surviving partners as going into the hands of his heirs. Besides, if Moore had not received it as partnership business, appellees failed to show that a sufficient search had been made among his papers. In fact, it was not shown that any search had ever been made among his papers for the missing transfer. It is true that an unlocated certificate may be transferred by parol, and that such a transfer may be proved by circumstantial evidence, as was done in Jones v. Reus (Tex. Civ. App.) 24 S. W. 676; but when an attempt is made to prove title to such a certificate, or any other property, by a written conveyance alleged to be lost, a proper predicate must be laid before the contents of the lost instrument can be proved. It is also true that the contents, and even the execution, of a lost instrument may be proved by circumstances; but, no matter what character of evidence is offered to prove those facts, the proper predicate must first be laid by showing that search has been made for the missing paper in the place where, if in existence, it would probably be found. Bounds v. Little, 75 Tex. 320, 12 S. W. 1109. Appellants' fifth assignment of error is also well taken. No sufficient predicate had been laid for the introduction of secondary evidence of the contents of the alleged lost transfer. Both the appellees testified that they had seen a transfer, with blank for the name of vendee, attached to the certificate. The certificate was shown to be in the general land office at the time of trial; and to have no transfer attached to it. Appellees proved that in August, 1874, they placed it in the hands of Moore, Mabry & Alford, land agents, for location; that said firm located it on the land in controversy, and caused it, with the field notes of the survey, to be returned to the land office; that in 1878 or 1879 appellees discovered that the transfer was not then with the certificate in the land office, and complained to Moore about it; that Moore said it had become detached and misplaced, but that he would find it among his papers, and have the land patented immediately; that Moore died in 1883, and one Denton was employed by his heirs to close up his business; that there was no administration on Moore's estate, and Denton testified that his heirs delivered to him what they claimed to be all the papers Moore had in his possession at the time of his death, among which were old deeds, contracts, patents, agreements, etc.; that he had no recollection whatever of land certificate No. 350, nor of any transfer of the same among the papers turned over to him by Moore's heirs, and he felt sure there was no such certificate among those papers; that he had never seen any transfer to said certificate No. 350; that he had not searched for it, because about three years before he testified he had returned all the remaining papers to Moore's heirs.tody, etc. J. P. Alford, of the firm of Moore, Mabry & Alford, testified that he located the certificate himself; that he had no recollection of ever seeing any transfer of same. It was not shown that he had ever made any search among his own papers, or among such, if any, of the dissolved firm of Moore, Mabry & Alford as remained in his hands. shown that Mabry was dead, but no inquiry appears to have been made of his heirs or It is further contended by appellants that evidence to prove the contents of the lost transfer was not admissible, because its execution had not been proven. Unless the missing instrument would, if produced and made profert, be admissible without proof of its execution, such proof will be necessary. But according to the testimony of appellee Peterson, who says that he saw the lost transfer in 1862, it was over 30 years old, and would therefore be admissible as an ancient document, without proof of its execution. If it cannot be produced, and the evidence as to its antiquity is the same, we think the rule admitting ancient instruments without proof of their execution will apply. Ammons v. Dwyer, 78 Tex. 640, 15 S. W. 1049. Of course, to make the rule applicable, its spirit and substance must be complied with, and to do so will require proof that the instrument existed over 30 years ago, and, when last seen, was in a proper cus The question as to the right of the plaintiffs, under the facts proved by them, to maintain a joint action to recover the land, is not free from difficulty: and as it can be easily eliminated by an amended petition, making Peterson the sole plaintiff, or by a deed from him, reciting the mistake made in executing two deeds to him, and conveying a half interest back to Thebo, and as there is still an accumulation of undecided cases on our docket, we think we can, with propriety, leave this question undecided. The judgment is reversed, and the cause remanded. Reversed and remanded. DAVIS v. AMERICAN FREEHOLD LAND MORTGAGE CO. (Court of Civil Appeals of Texas. Dec. 18, 1895.) APPEAL TO DISTRICT COURT-FILING TRANSCRIPT -INEXCUSABLE DELAY. An appeal to the district court from a judgment of the county court is properly dismissed where the county clerk, instead of transmitting the transcript to the first, or, in any event, to the second, succeeding term of the district court, as required by Rev. St. arts. 2204, 2205, allows four terms of said court to intervene, and the only excuse appellant shows for failing to compel the clerk by mandamus to perform his duty therein is that the latter repeatedly promised that he would do so. Appeal from district court, Bell county; W. A. Blackburn, Judge. Application to the probate court by the American Freehold Land Mortgage Company to compel Amanda Davis, administratrix of the estate of L. H. Davis, deceased, to sell certain land of the estate to pay petitioner's claim. There was a judgment for petitioner, and defendant appealed to the district court, where a motion to dismiss the appeal was sustained, and defendant appeals. Affirmed. Harris & Sanders, for appellant. COLLARD, J. The appellee, the American Freehold Land Mortgage Company, filed in the county probate court of Bell county, in which the administration of the estate of L. H. Davis, deceased, was pending (the appellant, Amanda Davis, being the administratrix), an application to require her to sell certain land of the estate, to pay a claim of the company which had been duly authenticated, allowed by the administrator, approved by the court, filed, and entered on the claim docket. The ap plication showed that the claim so probated was secured by deed of trust of the deceased upon the land sought to be sold, the deed of trust being valid, and subsisting at the time of the application. The claim was a note of deceased for $1,000, and certain interest coupon notes; the note providing that in case of suit thereon, and collection by suit, the maker would pay all costs of collection, including 10 per cent. of the principal and interest on attorney's fees. The application to sell the lands shows that a resort to suit to collect the claim has become necessary, whereby the estate has become bound to the 10 per cent. on interest and principal as attorney's fees. Mrs. Davis, the administratrix, resisted the demand for attorney's fees by exception, because the contract did not call for the same, and because the claim has never been presented to the administrator, nor approved by the court. She also resisted the application to sell, upon the ground that, owing to financial depression a forced sale of the land would be attended with great loss to the estate. The county court for probate business, on the 20th day of April, 1892, rendered judgment for the company, finding that the estate was indebted to applicant on the claim which had been duly presented to the administrator May 1, 1889, and allowed and approved by the court October 15, 1889, and which, when allowed, on May 1, 1889, amounted to, principal and interest, $1,113.33, and $111.33 attorney's fees, aggregating $1,224.66, and allowed interest thereon from May 1, 1889, the date of the approval; and also finding the mortgage on the land as alleged to secure the claim, and so ordered the sale of the land as prayed for in the application, fixing the time of sale on the first Tuesday in June, 1892. The administratrix gave notice of appeal in the district court on the same day, the 20th day of April, 1892. The clerk of the county court made out transcript of the record not until the 28th day of June, 1894, at which time his certificate is dated, and the transcript was filed in the district court of Bell county, September 19, 1894. The appellee, in the district court, filed a motion to dismiss the appeal, because of the delay in prosecuting it, as shown, from the 20th day of April, 1892, to September 19, 1894, the day of filing the transcript; claiming that there was such laches in the prosecution of the appeal as was not warranted by law, and that the transcript was unlawfully filed, and conferred no jurisdiction upon the district court. The administratrix filed answer to the motion, which was true, as the court below so found, there being no statement of facts in the record. The answer set up that upon the rendition of the decree in the county probate court, April 20, 1892, the administratrix gave notice of appeal to the district court, "and asked the clerk of said county court to make out and deliver to the clerk of this court a transcript of the decree of said county court, and the papers and proceedings in relation thereto, as required by law; that said clerk promised her, through her attorney, A. J. Harris, to make out and deliver said transcript to the clerk of this court, but failed to do so at the July term of this court, 1892; that said Amanda Davis, by her said attorney, again called for said transcript, and demanded of said clerk that he make out and return the same to this court, and he promised to do so, but again failed to do so. And said administratrix says that she repeatedly called on and requested said county clerk to make out and deliver said transcript to the clerk of this court, and whenever said request was so made, and it was made during each term, and between every term of this court from and including the July term, 1892, and the January term, 1894, and afterwards, said clerk would promise that he would at once go to work on said transcript, and complete and deliver it to the clerk of this court; that but for the aforesaid promises of said county clerk, so repeatedly made, said administratrix would have applied to this court for a mandamus to compel said clerk to make out and file in this court said transcript; that said county clerk did make out and deliver the same to the clerk of this court on or about the 28th day of June, 1894, but the clerk of this court neglected to docket the same, and it was not filed and docketed in this court until September 19, 1894, as she is informed, because the clerk of this court had neglected to indorse said transcript. And this administratrix says she is not in default, and said estate ought not to be deprived of a hearing in this court in this cause, on account of the neglect of said county clerk; and she prays that said motion be overruled." The lower district court, having taken this matter under advisement, on the 16th day of February, 1895, decided that the motion to dismiss should be sustained, and the appeal was dismissed, to which judgment the appellant administratrix gave at the time notice of appeal to this court. It is contended by appellant, by appropriate assignments of error, that the court erred in its findings of law that appellant had lost her right of appeal by her failure to file the transcript in the district court, because it was the clerk's duty to file the transcript in the district court, and his failure to do so in the time required by law does not defeat the jurisdiction of the district court; and that the court erred in finding as law that the district court loses its jurisdiction of the cause unless the transcript be filed as required by law, as the jurisdiction is not affected by the time of filing the transcript in the district court; and the court erred in dismissing the appeal after finding that the failure to file the transcript in time was the fault of the county clerk, and not the fault of the appellant. We cannot agree with appellant that the court erred as stated. It is true, the statute makes it the duty of the county clerk "to immediately make out a certified transcript of the papers and proceedings relating to the decision, order, judgment, or decree appealed from, together with such decision, order, judgment, or decree, and transmit the same to the clerk of the district court on or before the first day of the next term of such court." Rev. St. art. 2204. This becomes the duty of the county clerk immediately after the expiration of 15 days from the date of the judgment or decree and the notice of appeal, as no bond is required of an administrator in appealing in such case. Id. art. 2201. But if there should not be time in which the clerk could make out the transcript before the next day of the next term of the district court of the county after such appeal is taken there, it is made the duty of the clerk to transmit the transcript to the next succeeding term of such district court. Id. art. 2205. The question before us is not one of jurisdiction in the district court of the appeal, but one whether the district court erred in dismissing the appeal for failure to prosecute the appeal with diligence required by statute. Now, we think that, while it was the duty of the clerk to make out and transmit the transcript to the district court, it was the duty of the appellant to see that he performed this duty in the time required by law, at least in a reasonable time after the appeal was taken. It was the duty of appellant to use reasonable diligence to have her case prepared for appeal, and filed in the district court; that the clerk of the county court having failed in his duty to transmit the transcript to the first term of the district court after the appeal was taken, it became the duty of appellant to compel him to do so by mandamus. There was failure in this for over two years after it might have been done, and such failure might have been properly held, as it was by the lower court, as good ground for dismissing the appeal for failure to prosecute in time required by law. Four terms of the district court intervened before the transcript was filed in the district court; the law requiring it to be done to the first term after appeal, or to the second term. We look to the analogies in cases appealed to the supreme court for the rule to govern the district court in dismissing an appeal from another court, and we find that a failure to comply with the law and rules prescribed for appealing a case is ground for dismissing the appeal, unless good cause be shown why it was not done. Shanks v. Carroll, 50 Tex. 18; Brock v. Jarman, 1 Tex. 201; Muller v. Boone, 63 Tex. 94. The court below was not in error, in our opinion, in considering the excuse offered by appellant for not requiring the clerk by mandamus to make out and transmit the transcript insufficient. He had failed to do so, and it is apparent appellant could not have safely relied upon his promises. In the case of Ball v. Lowell, 56 Tex. 582, it was held that there was no error in refusing to dismiss an appeal to the district court from the county probate court where the transcript was filed within a day or two after the time fixed for the meeting of the first term of the court after appeal; the statute (the same as that under consideration) providing that if the clerk could not, for want of time, transmit the transcript to the first term, he could do so to the next succeeding term of the district court, after appeal. The court held that, though the excuse offered by the clerk may not have been altogether satisfactory, yet, under the circumstances, it should be deem |