the appellants and the remaining appellee, King. The latter filed a plea of not guilty. He further specially answered that the plaintiffs deraigned their title by a conveyance from one A. L. Hill, who had secured the issuance of a patent to land embracing that in suit. By way of reconvention, the defendant King prayed for the cancellation of this patent, for reasons which will hereafter appear. He, also, by way of reconvention, alleged that he was the owner of the land through R. H. Lackey, by virtue of the latter's settlement and occupancy of the land for three years; and he prayed for a recov

TION.

1. Where the court finds that one settled on public land under Act Feb. 1, 1860, which contemplates settlement accompanied or succeeded by purchase at 50 cents an acre, but there is no finding that he paid the taxes from date of settlement or the purchase price within three years from filing, as provided by the act, and such omission to find is not complained of by assignment of error, it will, in the absence of a statement of facts, and in support of its judgment that he had a good, equitable title, be presumed that he complied with the provisions of the act.

2. Under Act Feb. 1, 1860, §§ 8, 9, declaring that the head of a family who may settle on vacant public land may purchase 160 acres, to include his improvements in preference to others, at 50 cents an acre, providing that one desiring the benefits of the act shall within three months after settlement file with the district surveyor an affidavit that he is bona fide settled and making improvements, and that he has not previously taken a pre-emption under the act, and shall at the same time file a designation of the land sought to be secured, and shall within 12 months have the land surveyed, and the field notes recorded, and returned to the general land office, and shall pay taxes on it from date of settlement, and pay the purchase money within 3 years from filing, or his preference shall cease, it is not necessary to perfecting the settler's equitable title that he file in the land office an affidavit of occupancy and improvements.

3. While the assertion by defendant in trespass to try title of a superior equitable title is an action to recover real estate, his claim to have plaintiff's patent canceled is not such an action, within Rev. St. art. 3207, declaring that "every action other than for recovery of real estate, for which no other limitation is provided, shall be brought within four years" after accrual of cause of action.

Appeal from district court, Tarrant county; S. P. Greene, Judge.

acquired. To this answer the appellants replied, setting up their title under the survey and location made for A. L. Hill on March 8, 1878, covering the land in question, by virtue of a patent issuing upon the survey July 10, 1883, and by virtue of a subsequent conveyance from Hill to the appellants. They alleged that more than 10 years had elapsed after the survey for Hill before the institution of this suit or the filing of the defendants' answer, so pleading the bar of 10 years to the claim of defendants, founded upon the Lackey location. They alleged that defendants' claim was a stale demand, and further urged the statute of four years' limitation against the cross action. against the cross action. The court, trying the case without a jury, rendered judgment that the plaintiffs take nothing; that the defendant King, under his plea in reconvention, recover of the plaintiffs the land in controversy; that he take nothing by his plea in reconvention, in so far as he seeks the cancellation of the patent (this specific relief being barred under the four years' statute invoked by the plaintiffs). From this judgment the appellants prosecute the present appeal.

The record contains no statement of facts, and we adopt the conclusions of fact found by his honor, as follows: "(1) In the year 1858, R. H. Lackey was a married man, with a wife and children, and in that year he settled upon and improved a tract of 160 acres of land in Tarrant county, Texas, in which is embraced the land in controversy in this suit. On the 9th day of April, 1860, R. H. Lackey, by his own oath and by the oaths of Joseph Frank and Henry Ruphoff, proved that he was bona fide settled and making im

Wynne, McCart & Booty, for appellants. Oliver S. Kennedy, for appellees.

TARLTON, C. J. The appellants, R. M. Wynne, Robert McCart, and A. J. Booty, brought this action of trespass to try title to recover from O. S. Kennedy and John P. King, the appellees, 60 acres of land out of the R. H. Lackey survey, in Tarrant county, Tex. The defendant Kennedy entered a disclaimer, and the controversy here concerns

affidavit of the parties named, made before G. Nance, clerk of the county court of Tarrant county, Texas, on April 9, 1860, which affidavit was filed in the general land office on the 25th day of May, 1861. On the 16th day of March, 1861, R. H. Lackey had the 160 acres of land surveyed; and had the field notes filed and recorded in the office of the surveyor of Tarrant county, Texas, on the 20th day of March, 1861, and had the same filed in the general land office on the 25th day of March, 1861. R. H. Lackey and his family lived upon the land, improved,

used, cultivated, and enjoyed it, up to the time of the death of R. H. Lackey, in the year 1864, continuously from the time of his settlement of the same; and his family so lived upon the land, and used, improved, and cultivated it, continuously from the date of the death of Lackey up to the year 1868. (2) Lackey did not make any proof of his occupancy of the land, as aforesaid, and have the same filed in the office of the commissioner of the general land office. (3) The 60 acres of land in contest in this suit is a part of the 160 acres of land so settled upon, improved, and occupied by Lackey and family. (4) On January 5, 1882, A. L. Hill caused to be filed in the general land office the affidavit of W. R. Woodall and J. F. Bedwell, stating, in substance, that in the matter of the A. L. Hill 160-acre J. Armandaris survey, covering the R. H. Lackey pre-emption survey, they know that R. H. Lackey abandoned that survey on or before 1868; that Lackey left the survey with the intention to give up and fully abandon it; and that he never returned to it at any time thereafter, or assumed any charge or control thereof; and they further swear that they nor either of them have any interest whatever in the land herein mentioned. (5) Lackey settled upon the land as a part of the public domain, under the act approved February 1, 1860. (6) On the 19th day of March, 1878, A. L. Hill filed upon the 160 acres of land, which embrace the land in contest, with a land certificate for 640 acres of land, No. 34, issued to Juan Armandaris, and transferred to Hill, and upon the same day caused the land to be surveyed by the surveyor of Tarrant county, Texas, and duly returned field notes of the survey, and had them duly recorded in the general land office, in accordance with law; and on the 10th day of July, 1883, the land was patented to A. L. Hill, under and by virtue of the location and survey under the Armandaris certificate, and that patent was duly recorded in the office of the county clerk of Tarrant county on the 15th day of September, 1883. (7) The plaintiffs own whatever title A. L. Hill had in the land by virtue of his location thereon of the Armandaris certificate, and the patent issued to him thereon; and the defendant John P. King owns whatever title the Lackeys have to the land by virtue of the location thereon as a pre-emptor of R. H. Lackey, and his residence thereon for more than three years, which appears from a written agreement of the parties hereto."

The appellants first question the correctness of the court's conclusion of law to the effect that R. H. Lackey, by virtue of the findings of fact herein, became. the equitable owner of the land in controversy; that his equitable title was complete without making proof of occupancy and improvements, which was only necessary to procure the issuance of a patent. It is contended by the appellants that, to become the owner, Lackey

must not only have occupied the land for three years, but must have filed an affidavit in the land office to the effect that he has occupied and improved the land in good faith for three years, which affidavit must have been corroborated by the affidavits of two disinterested citizens in the county in which the land is situated. The rights of Lackey must be tested by the provisions of the law on which his claim is founded.

The court's unchallenged finding is that he settled upon the land as a part of the public domain, under the act approved February 1, 1860. Referring to this statute (Acts 8th Leg. 1859-60, p. 30; 2 Sayles' Early Laws, art. 2830), we find that sections 8 and 9 refer to the subject before us. These sections are as follows:

"Sec. 8. All heads of families, who are settled upon, or who may hereafter settle upon any vacant public domain, except those lands, the sale of which is provided for in the second section of this act, shall have the privilege of purchasing one hundred and sixty acres of land, or less, where it is entirely surrounded by previous surveys, to include his or her improvement, in preference to all others, at fifty cents per acre.

"Sec. 9. Any one desiring to obtain the benefits of the preceding section of this act, shall, within six months after the passage of this act, or within three months after his or her settlement, file, with the district surveyor, his or her affidavit and that of two creditable witnesses, made before any officer authorized to administer oaths, in the land district in which the land is situated, that he or she is bona fide settled and making improvements upon vacant public domain, the sale of which is contemplated in the first section of this act; and that he or she has not previously taken or filed a pre-emption under this act, on vacant land, and shall at the same time file, with said surveyor, a designation of the land sought to be secured, and said settler shall, within twelve months, have said land surveyed, and his or her field notes recorded and returned to the general land office, and shall be required to pay taxes on the same, from the date of his or her settlement, and the money paid within three years from the date of his or her file, or the preference herein provided shall cease, and said land become vacant and subject to location or purchase; and that no claim under this act shall be transferable or assignable, until the rights to the land shall be perfected." This act of 1860 was itself an amendment of an act of 1858 (Sayles' Early Laws, art. 2757), the first section of which is referred to in the ninth section above quoted. The latter section must therefore be read in the light of the provisions of section 1 of the act of 1858, reading as follows: "The commissioner of the general land office is authorized to issue land scrip in certificates of not less than one hundred and sixty acres (except in the cases hereinafter provided), which certificates

It will be thus seen that the act under which Lackey the vendor of the appellee King, settled upon this land, was one which contemplated settlement, accompanied or succeeded by purchase, at the price of 50 cents per acre. In this case, while finding that Lackey settled upon the land in controversy under the provisions of the foregoing act, the court does not affirmatively find that he complied with all of its provisions, as that he paid taxes from the date of his settlement, or that he paid the money or purchase price within three years from the date of filing. This omission in the findings is not complained of by any assignment of error; and, in the absence of a statement of facts, we deem it our duty to impute to the court, in support of its judgment, a finding that the settler had complied with the provisions of the law under which he entered. In any event, we are of opinion that the provisions of this law did not require, as necessary to the perfecting of his equitable title, that the settler should file in the land office an affidavit of occupancy and improvements, in accordance with the contention of the appellants. Subsequent enactments, prescribing the manner in which the equitable title thus acquired should be perfected into a legal title, by the securing of patent (Pasch. Dig. arts. 7045, 7046; Acts May 27, 1873, p. 110, cited by appellants), cannot impair the efficacy of the equitable title vested in the settler and purchaser by compliance with the prior law.

It thus follows, we think, that the land in controversy comes within the language of article 14, § 2, of the constitution, "as land equitably owned under color of title from the sovereignty of the state, evidence of the appropriation of which is on the county records or in the general land office"; and that, as such, it was withheld from the location of the certificate of Hill, appellants' vendor. Adams v. Railway Co., 70 Tex. 260, 7 S. W. 729. It does not follow, however, that the patent issued by virtue of that location was absolutely void. That instrument would seem to have passed to the appellants' vendor the naked legal title of the state. Gullett v. O'Connor, 54 Tex. 416. Hence the question is presented by appellants' brief whether the bar of four years' limitation (Rev. St. art. 3207) can be invoked against the assertion of appellees' demand in reconvention. In this connection, his honor concluded "that the defendants' plea in reconvention, so far as the same seeks to cancel the patent of the state to A. L. Hill, is a personal action, and in effect a claim that plaintiffs hold said land in trust for defendants, and that the four years' statute of limitation causes defendants' action for cancellation of

of limitation of ten years has no application to the case." He further finds "that the defendant King is the equitable owner of the land, and is entitled to recover it; but, not having brought his action in four years from the date of the patent to Hill, he is not entitled to have said patent canceled, but must hold his land clouded by said patent." We approve these conclusions. Article 3207, Rev. St., reads as follows: "Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued, and not afterward." We think, with the trial court, that the suit of the defendant King to have the patent canceled comes within the purview of this statute, but that the assertion by him of his superior equitabletitle to the land, in this action of trespass to try title, is a suit for the recovery of real estate, and is beyond the terms of the article. The provisions of article 3209, prescribing that "any action for the specific performance of a contract for the conveyance of real estate shall be commenced within ten years next after the cause of action shall have accrued, and not afterward," cannot avail the appellants. appellants. If otherwise applicable (which we certainly do not hold), the requisite period of 10 years had not elapsed after the appellants' vendor acquired the legal title through the issuance of the patent, July 10, 1883, and the filing of the defendant's plea in reconvention in assertion of his equitable title, on November 18, 1892.

The contention that Lackey should deemed to have abandoned the land after he had acquired the equitable title thereto cannot be sustained by us. The record fails to indicate (further than as shown by the defendant's plea of not guilty) who is in possession of the land, or whether the direct vendee of Lackey took possession. The findings of the court indicate a conclusion against the appellants on this question of abandonment, which is to a great extent a question of fact, with reference to which the appellants have failed to enlighten this court by embodying a statement of facts in the record.. We order that the judgment be affirmed.

MARTIN V. LAPOWSKI et al. (Court of Civil Appeals of Texas. Dec. 7, 1895.)

APPEAL-BOND-OBLIGEES.

One of several joint judgment defendants. in an action of debt in justice court, may, when such defendants are not adversely interested, appeal without making his codefendants obligees in his appeal bond.

Appeal from Taylor county court; D. G. Hill, Judge.

Action of debt by S. Lapowski & Bro. against Alice O. Martin and another, in jus

tice court. Judgment for plaintiffs. Alice O. Martin appealed to the county court, and from a judgment of that court dismissing her appeal she appeals. Reversed.

Kirby & Kirby, for appellant. John Bowyer, for appellees.

STEPHENS, J. It has been twice decided by this court that from a joint recovery against two or more defendants in an action of debt in the justice court either of them may appeal the case to the county court, and that, too, where they are not adversely interested, without making the appeal bond payable to the defendant or defendants not so appealing. Railway Co. v. Mosty (Tex. Civ. App.) 27 S. W. 1057; Ayers v. Smith (Tex. Civ. App.) 28 S. W. 835. A contrary ruling by the court of civil appeals at Dallas is relied on. Baldwin v. White (Tex. Civ. App.) 26 S. W. 455. That decision, however, seems to us to be in conflict with the very case cited in the opinion of Justice Rainey to support it,-that of Moore v. Jordan, 65 Tex. 395,-especially when the latter case, and the cognate case therein referred to of Jordan v. Moore, reported in the same volume, page 363, are considered together. It also seems to us to be in conflict with the statute, which gives to "any party to a final judgment" the right of appeal, upon his executing the prescribed bond, payable to the appellee,-which term properly includes only parties adversely interested. Rev. St. arts. 1638, 1639. If there were other objections to the appeal in this case from the justice to the county court, they were not made the ground of the motion to dismiss, and, after the case had been continued by agreement at the term of the county court preceding the dismissal, were probably waived.

Cason v. Laney, 82 Tex. 318, 18 S. W. 667; Cason v. Connor, 83 Tex. 28, 18 S. W. 668. Because the county court erred in dismissing the appeal from the justice court of Alice O. Martin on the ground that it was prosecuted by her alone without including her codefendant, W. G. Martin, in the appeal bond (his signature, however, appearing as one of the three sureties), the judgment is reversed, and the cause remanded for trial.

RED RIVER CATTLE CO. OF TEXAS et al. v. WALLACE et al.

(Court of Civil Appeals of Texas. Dec. 7, 1895.)

EVIDENCE-PROOF OF PEDigree.

1. To establish the identity of a soldier of a certain name, killed during the Mexican war, while a sergeant in a state company, a letter written by a person to his sister before the soldier was killed, stating that he had met his cousin, who was of the same name as the soldier, and that such cousin was a member of the

same company the soldier belonged to, is admissible in evidence.

2. Evidence that the brother of a widow administered on the estate of a deceased person of the same name as that of the husband of the widow is admissible to prove that such person Iwas the husband of the widow.

Error from district court, Montague county; D. E. Barrett, Judge.

Trespass to try title by W. B. Wallace and others against the Red River Cattle Company of Texas and others to recover land patented to the heirs of one William Wallace. There was a judgment for plaintiffs, and defendants bring error. Reversed.

Sparks & Smith and B. L. Aycock, for plaintiffs in error. W. S. Simkins and Templeton & Patton, for defendants in error.

STEPHENS, J. The elaborate opinion of Justice Brown in the cognate case of Byers v. Wallace (decided by our supreme court since this case was tried) 87 Tex. 503, 28 S. W. 1056, and 29 S. W. 760, is directly in point on the rulings of the court now complained of in the exclusion of evidence upon said trial. According to that opinion, overruling in part Smith v. Shinn, 58 Tex. 1, the district court erred in excluding from the jury the testimony of J. B. Wallace as to the contents of the lost letter written from Goliad in 1836 by Samuel Wallace to his sister, Rebecca, in Virginia, just prior to the massacre, to the effect that his cousin William was there as a member of the company from Huntsville, Ala.; and also the proof that William Woolwine, the brother of the widow of the Virginia William Wallace, had administered on the estate of said William Wallace in Rusk county, Tex., in 1849. It is contended, however, that, if admitted, the evidence offered would not have changed the result; and also that plaintiffs in error had substantially the benefit thereof from other sources. The witness Haughanant testified that he thought the Virginia William Wallace went to Texas, and was massacred at Goliad, as he had always understood from the family, and thought that William's cousin Sam had so written to his sister, Rebecca, as he remembered having heard the letter read by Andrew Wallace. The evidence excluded as to the contents of this letter was, however, more positive and definite, and a little fuller, giving the company to which the Virginia Wallace belonged, etc. Upon the difference between meager and full testimony upon a given issue a verdict might depend. Upon the other point we find nothing in the record that supplies in any measure the proof of administration sought to be made. We are unable to determine what effect the excluded evidence would have had had it been admitted. The judgment is therefore reversed, and the cause remanded for a new trial.

REYNOLDS, Sheriff, et al. v. WEINMAN et al.

(Court of Civil Appeals of Texas. Dec. 11, 1895.)

INSTRUCTIONS-ON WEIGHT OF EVIDENCE-WRONGFUL ATTACHMENT - EVIDENCE-DAMAGES

-INTEREST FROM DATE OF Seizure.

1. Where the evidence on an issue of the legality of a sale is conflicting, an instruction that if a sale is shown it is presumed to be a lawful sale is on the weight of the evidence.

2. Where, in an action by a vendee against a sheriff for wrongful attachment of the goods as property of the vendor, the defendant claims that the sale was in fraud of creditors, he should be allowed, when shown qualified, to testify as to the value of the goods.

3. In an action for wrongful attachment plaintiff is not entitled as a matter of law to interest on the value of the property converted from the date of seizure.

Appeal from district court, Burnet county; W. A. Blackburn, Judge.

Action by J. Weinman and others against N. O. Reynolds, sheriff, and his sureties, for wrongful attachment. From a judgment for From a judgment for plaintiffs, defendants appeal. Reversed.

The tenth assignment of error was as follows: "(10) The court erred, as shown by defendants' bill of exceptions number one, in excluding that part of the deposition of N. O. Reynolds offered for the purpose of proving the value of the stock of goods transferred by Frizel & Bro. to plaintiffs, wherein said Reynolds testifies that the value of the goods left in the house after he had completed the levy was from $4,000 to $6,000."

C. L. Lauderdale and W. H. Browning, for appellants. Fiset & Miller, for appellees.

FISHER, C. J. Action by appellees against appellants for damages for the value of certain goods, arising from the alleged wrongful levy upon and seizure under attachment. The goods were originally the property of Frizel & Bro., merchants, in business at Lampasas, who, by an alleged bill of sale, transferred them to appellees, to whom they were indebted at the time, and the goods were sold to satisfy that debt. Afterwards Hamilton-Brown Shoe Company, a creditor of Frizel & Bro., sued on their claim and attached the goods. This suit is against apperlant, as sheriff, and his sureties, for the damages arising from the levy of this attachment. Appellants justified on the grounds that the sale of the goods was made to appellees with the intent to defraud the creditors of Frizel & Bro., and that the sale was void because the value of the goods sold to appellee was largely in excess of the debt due them by Frizel & Bro., and which constituted the sole consideration for the sale. The jury awarded appellees $3,100 as damages, and from the judgment rendered for that sum this appeal results. Strong evidence was offered and introduced by appellants tending to prove the alleged defense. The court, among other charges, gave the

following: "If a sale from Frizel to plaintiff is shown by testimony, then it is presumed to be a lawful sale." The principal controversy in the case is, was the sale a lawful one? and upon this issue there was a conflict of evidence, with a strong array of facts against its legality. The charge of the court in the abstract, as announcing a rule of law, is possibly correct; but under the circumstances that exist in the case before us, where the vital issue is the legality or illegality of the sale, a charge that informs the jury that it is presumed to be legal is on the weight of evidence, as it is based not alone upon the law, but on facts that arise from the evidence that may show that it is or is not legal. Whether a sale is lawful is not ascertained solely as a matter of law, but its validity or invalidity is determined from the circumstances existing at the time of its execution. The charge is based on an element issue is raised the duty of the court is to of mixed law and fact, and when such an present it as in submitting any other issue that arises from the facts. The statement of the court that the sale is presumed to be lawful was calculated on the debated issue to turn the scale in favor of its validity, and doubtless did influence the jury in its finding. If the question was solely one of determining the legal effect of a written instrument unambiguous in terms, the court could so declare it, and it should give to the jury the construction that the law places upon the instrument; but in ascertaining whether such an instrument was executed under circumstances that would render it invalid or illegal resort must be had to the facts existing at that time, and such a question is entirely distinct from that of the duty of the court to declare the legal effect of a written transfer. transfer. This subject is fully discussed in Stooksbury v. Swan, 85 Tex. 565, 22 S. W. 963, and cases there cited.

The evidence of witness Reynolds, which was rejected, as shown by the tenth assignment of error, should have been admitted. His answer to the question was, in effect, his opinion as to the value of the goods. The facts show that he was qualified to express his opinion as to their value. The objections that may be urged to his statement are not on account of its admissibility, but may af fect its weight as evidence. For the errors discussed, the judgment will be reversed, and the cause remanded. The charge of the court in other respects was correct, and covered the questions raised by the evidence.

There was no error in refusing the charges requested. The question raised by the cross assignment may not again arise, but, in view of its possibility, we express the opinion that where the verdict of the jury is general, and finds for plaintiff in a given sum, although the law may allow interest as damages, we are not able to say that they did not include interest in the sum so found as a part of the damages. In actions of this character the