Carlos Bee, J. E. Elgin, and Ed. H. Wicks, | al. by defendant, the plaintiff acted as agent for appellant. Webb & Goeth, for appellee. of Peter Faust and his associates, and his compensation, if any, was to come from them, you are instructed to return a verdict for the defendant." This instruction was refused, doubtless upon the theory that it embodied an issue not raised by the testimony, and we see no testimony which can be said to create the issue. If such an issue could be inferentially said to result from the fact that defendant, by the arrangement between them, was to get $15 an acre net to him, this being the price obtained, then the charge would have been superfluous, for the reason that the jury were told to find for defendant outright, if Capt. Schramm was to have $15 per acre net. JAMES, C. J. The action was brought by appellee alleging that in December, 1906, he was a real estate agent; that in said month appellant placed in his hands for sale a certain tract of land composed of 3,018 acres, agreeing to pay him 5 per cent. commission for the sale thereof; that plaintiff secured and presented Peter. Faust, J. D. Guinn, and Geo. Chamberlain to appellant as purchasers for the consideration of $45,270, and that appellant made the sale to them. Defendant answered (stating from appellant's brief) by general denial, and alleged specially that the contract sued on herein terminated on December 15, 1906; that the terms of the contract were that plaintiff was not to receive any commission for the sale of the land, but that defendant was to receive $15 per acre for the land and the contract should exist until December 15, 1906; that plaintiff failed to make a sale for the price allowed him on or before December 15, 1906, but on December 17th, after defendant had contracted with other parties for the sale of a portion of the land, plaintiff presented this defendant with purchasers for the land; and that thereafter another agreement was entered into between the plaintiff and J. E. Elgin, representing defendant, by the terms of which plaintiff agreed to surrender all claim that he might have for 5 per cent. commission on the purchase price of the land and accordingly the land was conveyed to the purchasers. The jury found for the plaintiff. The jury were charged to find for plaintiff if they found from the evidence that defendant agreed that, if plaintiff would secure a purchaser for his ranch land of about 3,015 acres at the rate of $15 an acre, he (defendant) would pay plaintiff for his services the sum of 5 per cent. commission on the amount of such sale. If, however, they found that by the terms of the agreement between plaintiff and defendant for the sale of said land defendant Schramm was to receive $15 per acre net to him, that they would find for the defendant. Assignment 4 complains of the refusal of the following charge: "If you believe, from the evidence, that the defendant gave the plaintiff an option until Saturday December 15, 1906, for the sale of said land, and that the terms of the sale were one-half cash and the balance on time, and that the defendant did not complete the trade for said land within the time of his option, and that the land was subsequently sold for $12,000 cash and the balance on time instead of onehalf of the purchase price, then you are instructed that the plaintiff would not be entitled to a commission on the previous agreement even though it was understood that he was to receive said commission, and that thereafter, in whatever negotiations may have occurred, the plaintiff was the agent and representative of Peter Faust and his associates and not of the defendant." connection with said assignment 4 appellant presents No. 7 as follows: "The pleadings and the evidence created an issue as to whether the contract between plaintiff and defendant terminated on December 15, 1906, and prior to the sale which is the basis of the claim herein sued on; and the court erred in failing to submit such issue to the jury for its determination in its general charge to the jury." In The mere omission of such a matter from the main charge would not constitute error. Error, if any, within the scope of these two assignments, must be predicated upon the court's failure to give the special charge requested or a similar one, and appellant's proposition is as follows: "The court should have submitted to the jury the question as to whether the contract in this case terminated on Saturday, December 15, 1906.” The first assignment of error complains of the court's refusal to peremptorily instruct for the defendant, and the sixth assignment is that a new trial should have been ordered because the verdict was contrary to the overwhelming preponderance of the evidence. These assignments are overruled, as a reading of the evidence set forth in the briefs shows us that the issue which was submitted to the jury for their decision was raised and sufficiently supported, on either side, by tes-cember 15th conveyed by Schramm to these timony. The evidence shows, beyond dispute, that Wolff, prior to December 15, 1906, secured these purchasers for the land at $15 per acre, and that the land was immediately after De same persons at $15 per acre, on terms that The second assignment is that the court were satisfactory to him. Capt. Schramm committed error in refusing to give a charge admitted having seen Wolff upon the land as follows: "If you believe from the evi- with these persons a day or two before Satdence that at the time of the consummation urday, and Wolff testified that in the morn the purchasers and negotiated the sale before noon of December 15th, it was essential to his right to compensation that he should have actually reported the same to Mr. Schramm within that time. The contract of employment was not that plaintiff should effect a sale, and report same to defendant, before noon of December 15th. What is said in the main opinion about plaintiff calling at Capt. Schramm's office on the morning of the 15th is really immaterial to his right of recovery. All the testimony shows that plaintiff performed the service contemplated. He obtained the purchasers, at the required price. He did this prior to the time fixed, and appellant adopted and followed up his work, consummating the sale in his own way. The charge submitted the real issue in the case. Capt. Schramm's office to report the sale, but [ We do not understand that if Wolff found found no one in. This statement of plaintiff the jury may or may not have believed, if it depended alone on the testimony of the interested party, but Capt. Schramm himself testified, "Saturday he came to my office, but I didn't see him." He testified also: "I sent my lawyer to see Mr. Wolff on Saturday for the reason that I wanted to give Wolff notice that his term had expired." And Capt. Elgin, his lawyer, testified to going to see Wolff Saturday evening, December 15th. He testified that when he got there Wolff informed him that he had made this sale. We find that the following facts are established, viz., that Wolff found these purchasers and made the sale to them prior to Saturday, December 15th, at $15 per acre; that he went to Capt. Schramm's office on the morning of the 15th to report the transaction; and that he did report the sale to Capt. Schramm's lawyer and representative that afternoon. In view of these facts the trial judge was warranted in disregarding any such issue as is embodied in the above proposition. Assignment 3 complains of the refusal of the court to give a charge defining the word "net." The court charged the jury: "If, however, you find that by the terms of the agreement between plaintiff and defendant for the sale of said land defendant Schramm was to receive $15 per acre net to him, then you will find for the defendant." The request was: "If you believe from the evidence that the agreement between the plaintiff and the defendant was that the defendant was to receive $15 an acre, net, for his land, and that the sale was made for $15 an acre, you are instructed to return a verdict for the defendant. By the word 'net,' as used in the said agreement is meant that the defendant must realize and receive $15 an acre for his land, clear of all other amounts." The language "net to him," as used in the charge, was sufficient. No one, of any fair intelligence, could be supposed not to understand what it meant. Technical terms, or terms not in common use and having special meaning, should be explained, but to hold that the meaning of a price "net to him" required explanation, in order for a jury to comprehend it, would be pushing the rule to the extent of an absurdity. The above disposes of all the assignments of error and requires us to affirm the judgment. Affirmed. On Motion for Rehearing. In reference to the requested charge referred to by the fourth assignment of error, it will be seen that the charge was erroneous, in that its language was such that the jury would have understood from it that after noon of December 15th plaintiff was the agent and representative of the purchasers. The motion is overruled. RODRIGUEZ et al. v. PRIEST et al. † 1. TRIAL COURT-HEARING ARGUMENT-TRIAL Notwithstanding Rev. St. art. 1299, securing to the parties the right to submit a case in ing that the rules prescribed for jury trials argument to the jury, and article 1292, providshall govern in trials by the court so far as applicable, the right to be heard in argument in discretion, and judgment will not be reversed a trial by the court is largely in the trial court's for refusal to permit argument, unless the complaining party has been prejudiced thereby. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3847; Dec. Dig. § 972.*] 2. APPEAL AND ERROR (§ 1060*)-HARMLESS ERROR-CONDUCT OF TRIAL. court's refusal to read, or allow to be read to it, Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*] If evidence was properly excluded, it was immaterial whether it was excluded during trial or when the court delivered its decision. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4146; Dec. Dig. § 1047.*] 4. ADVERSE POSSESSION (§ 114*)-SUFFICIENCY OF EVIDENCE. In trespass to try title, in which one of defendants claimed by adverse possession of his remote grantor, evidence held to show the use and occupation of the land claimed by such grantor for over 50 years under an open and notorious claim to the whole tract, extending from a river to a certain road. session, Cent. Dig. §§ 682-690; Dec. Dig. § [Ed. Note.-For other cases, see Adverse Pos114.*] For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes In an action to recover land, in which an agreed judgment was entered, by which a part of the land was set aside for another and recognized as not being subject to partition between the parties, plaintiff's heirs would be thereafter estopped from claiming the part of the land set aside. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1209; Dec. Dig. § 686.*1 7. JUDGMENT (§ 743*)—PRIORITY. Where, before an agreed judgment was entered in an action to recover land, there had been a judicial determination that part of the land disposed of by such judgment was acquired by limitations by another, the latter's title to such part was superior to that acquired by plaintiff under the agreed judgment. [Ed. Note. For other cases, see Judgment, Dec. Dig. § 743.*] 8. ADVERSE POSSESSION (§ 86*)-REQUISITES PAYMENT OF TAXES - FIVE-YEAR LIMITA TIONS. Title could not be established by adverse possession under the five-year limitations, where claimant and those claiming under her paid no taxes during the period of adverse holding. [Ed. Note. For other cases, see Adverse Possession, Cent. Dig. § 504; Dec. Dig. § 86.*] 9. APPEAL AND ERROR (§ 715*)-MATTERS NOT APPEARING BY RECORD-EVIDENCE. Purported testimony, filed in the appellate court after the record was filed, upon affidavits of counsel filing it, and denied by opposing affidavits, which was not agreed to by the parties or approved by the trial judge, cannot be considered on appeal as a part of the transcript of the evidence. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2965; Dec. Dig. § 715.*] 10. APPEAL AND_ERROR (§ 714*)-MATTERS NOT APPARENT OF RECORD-STIPULATIONS. Parties cannot add to the statement of facts on appeal by agreement. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2961; Dec. Dig. § 714.*] On Motion for Rehearing. 11. ADVERSE POSSESSION (§ 100*)-SUFFICIENCY OF POSSESSION. A claimant erected a corral 100 feet square on land, and used it for 14 years in open, peaceable, and adverse possession, claiming the land to the extent shown by the description in his deed, and using timber thereon for firewood. Held, that there was possession of the whole tract sufficient to create title under the 10-year limitations. [Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. § 100.*] 12. APPEAL AND ERROR (§ 1011*)-FINDINGS -CONCLUSIVENESS. Findings upon conflicting evidence are conclusive on the Court of Civil Appeals. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3983; Dec. Dig. § 1011.*] 13. APPEAL AND ERROR (8 714*)-RECORDOMISSIONS-AMENDMENT BY TRIAL COURT. The trial court cannot, upon agreement of the parties or otherwise, add testimony to the statement of facts which was not a part of the statement when it was approved by it, and the appellate court cannot consider testimony so added. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2958-2963; Dec. Dig. § 714.*] Error from District Court, Bexar County; Arthur W. Seeligson, Judge. Action by Juan F. Rodriguez and others against Joe Priest and others, in which defendants H. B. Glover and Adele Glover filed a cross-bill. Judgment against plaintiffs and defendants Glover, and they bring error. Affirmed in part, and reversed and remanded in part. W. Y. McFarland, Don A. Bliss, and Henry E. Vernor, for plaintiffs in error. Wm. Aubrey, for defendant in error Priest. Guinn & McNeill, and Davis & Lipscomb, for other defendants in error. FLY, J. This is an action of trespass to try title to a certain lot or parcel of land described as a part of the Gavino Valdez survey, in Bexar county, instituted by Juan F. Rodriguez, Maria A. Rodriguez de Code, joined by her husband, Edward Code, and Hortense Martinez Nicklis, joined by her husband, E. E. Nicklis, against the defendants in error, Joseph Priest, Ida C. Pfeuffer, Eli Arnaud, H. E. Hildebrand, Joseph A. Burger, and Adele Glover and her husband, H. B. Glover. Joe Priest pleaded general demurrer, general denial, not guilty, and three, five, and ten years limitation, and also alleged that he had in 1907 purchased 31.9 acres of the land from Clothilde Licardies and others, and had on June 8, 1907, purchased 72.3 acres of the land from Eli Arnaud and wife, and disclaimed as to the balance of the land. That answer was adopted by Eli Arnaud. Ida Pfeuffer pleaded general denial and not guilty, and alleged that the land described in plaintiff's petition did not include the land owned by her and fully described in her answer, and pleaded three, five, and ten years limitations. She claimed to have purchased the land from H. E. Hildebrand and Joseph A. Burger, and she vouched them in on their warranty of the title. Hildebrand and Burger pleaded general denial, not guilty, and limitation of three, five, and ten years. Adele and H. B. Glover pleaded general denial, not guilty, and disclaimed any title to any of the land except 37 acres described by them, and filed a cross-bill as to Pfeuffer, Hildebrand, Burger, and Mrs. Chieusse, who they claimed had unlawfully ousted them from the land described in their answer. The cause was tried without a jury and judgment was rendered against Rodriguez, the Codes, and Nicklis on their suit, and the Glovers on their cross-bill, in favor of Pfeuffer, Hildebrand, and Burger for the land claimed by them, and in favor of Joseph Priest and Eli Arnaud for the 72.3 acres, more or less, of land claimed by them. This writ of error is prosecuted by those who were plaintiffs in the lower court and by Adele and H. B. Glover. The land in controversy is composed of two tracts, situated within the corporate limits of the city of San Antonio-one containing 37 acres decreed to be the property of Ida Pfeuffer, which is marked "P 37" on the plat inserted hereinafter; the other the strip of land immediately north of the Merrick tract and west of Arroya de la Concepcion, or Creek of the Conception, which was decreed to be the property of Joe Priest, and is marked "Joe" on the plat. The west line of the Priest tract is a continuation of the west line of the Pfeuffer tract; the line running along what is known as the "Somerset Road." Both tracts are claimed by plaintiffs in error, except the Glovers, under a grant made by the Spanish government in 1798 to Gavino Valdez, a conveyance by Valdez to Mariano Rodriguez dated September 15, 1809,, and the will of Mariano Rodriguez probated August 2, 1861, devising the land to them and their ancestors. The Glovers claimed the Pfeuffer tract as against Ida Pfeuffer and as against the other plaintiffs in error. Priest tract is claimed by Joe Priest through conveyances from Eli Arnaud, Clothilde Licardies, and others. Ida Pfeuffer claims the Pfeuffer tract through her grantors, H. E. Hildebrand and Joseph A. Burger. The following plat will give a clearer conception of the situation of the land in controversy: The The first assignment is that the court erred in refusing to allow appellants to be heard in argument of the cause after the evidence had been introduced, and article 1, § 19, of the state Constitution, is invoked to sustain the assignment. That article provides that "no citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land." It may be that courtesy demanded that counsel should have been heard in argument by the court; but a refusal to hear the argument cannot be made the ground of reversal, unless it is made to appear that the judgment of the court was improperly rendered. McHugh v. Peck, 29 Tex. 141. In other words, the deprivation of the privilege to deliver an argument must be shown to have worked to the prejudice of those complaining of the deprivation. The right to submit a case in argument to a jury is secured by article 1299, Rev. St., and in article 1292 it is provided that "rules prescribed for the trial of causes before a jury shall govern in trials by the court so far as may be applicable." Whether the right to be heard by a jury in argument is a rule applicable to a trial by the judge or not, we think the matter of listening to argument is one to be largely confided to the wise dis cretion of the court, and such discretion should not be questioned, unless the party complaining of not being heard in argument can show that he has been deprived of some substantial right or benefit. The second and third assignments of error, which assert that the court rendered his deci capsmede alper adenase. SAN JOSE DITCH PASO DE SAN JOSE of the Mission, and north the river bottom which runs from here. The land embraced by those boundaries is from east to west from said San Jose crossing to the creek called Concepcion in longitude, and in latitude from south to north from the said outer road to the inner road up to the said Concepcion creek, always inclined towards the river; said land coming to form a species of triangle, and its dimensions not being over 800 varas. This is for a ranch site. For grazing, I petition you in the direction of west and north, that is from what is called the ranch Antonio Leal, in longitude, and in latitude up to what is called the lands on Leon creek." The petition was referred by Manuel Munoz to the Spanish alcalde of the mission of San Jose, who reported favorably on it. The fourth assignment of error assails the action of the court in sustaining objections, while rendering his judgment, that were made during the trial to the use in evidence of a certified copy of the record of the original grant made by the Spanish government to Gavino Valdez. Those objections had been Munoz, who describes himself as "Colonel previously overruled. If the evidence was of the Cavalry of the Royal Forces of his properly rejected, it would not matter when Majesty, Political and Military Governor of the rejection took place, whether during the the Province of Texas, and subdelegate in course of the trial, or when delivering the the two departments of domestic affairs and decision of the court. The only question is: war," in the name of the king of Spain, upon Should the court have considered a copy of the favorable report of the alcalde, granted the grant made by the Spanish government to Gavino Valdez the land for which he petito Gavino Valdez? The grounds of objec- tioned "regulating it precisely in proportion tion to the copy of the instrument were: to the measurements which the said parish "That it had not been shown that said grant priest designates in his said petition." He had been authorized or confirmed by the in- conferred on Pedro Huizar, Spanish alcalde tendency of San Luis Potosi; that said grant of the mission of San Jose, the authority to was void for want of a sufficient description place Valdez in possession of the land he of the land covered thereby; that the de- had prayed for. In his report the alcalde and scription of the land as contained in said his assistants reported having put Gavino grant was so vague and indefinite that the Valdez in possession of land for a field and land purported to be granted therein could ranch site, described as "twelve hundred and not now be identified on the ground that the fifty varas in length and five hundred varas record offered was not the record of a duly in width, it being understood that the longiregistered instrument; that the instrument tude is from the west to the east, from the of which said record purports to be a copy far end of said ranch to the drain of the was not acknowledged for record; that the Madre ditch of the San Jose, one of the lines instrument of which said record purports to running collateral with the river bottom of be a copy was not proved for record; and the San Antonio river makes the north part, that no predicate has been laid for the intro- and for latitude from said river bank and duction of secondary evidence of the exist-ditch drain to near the junction of the inner ence and contents of the original instrument." and outer roads of the mission, the lines runAnother objection was that the field notes of ning from north to south, and the other colthe grant are different from those in the peti- lateral, from said junction westward to the tion for the grant, which it was commanded main road called the outer road, and from should be followed. here in a direction line to the back line of said ranch, said measurements being established by customary mounds." It is then recited: "And for pasture not having been able to give him the land comprised in the boundaries mentioned in his petition, because the biggest part was found belonging to the exidos of the village, in accordance with measurements which were made in view for him on the 18th day of this month, I give him possession, for said pasture, of the small piece which remains below the following places: The small creek called Concepcion, collateral to the north direct line until it reaches the Lagunillas which are in the middle of the Leon prairie, and from here towards the southeast to the crossing of the Jacalitos, and from sion without reading or allowing to be read to him the documentary evidence in the case, fall in the same category with the first assignment of error. If the cause was decided correctly by the trial judge, what does it profit appellants to complain of such action on the part of the court? In a trial by a court, if the judgment is absolutely correct, an appellate court cannot reverse for irregularities and improprieties on the part of the trial court which do not impugn the correctness of his decision. There was an affidavit made by the plaintiffs of the loss of the original grant. From the recorded instrument it appears that on August 24, 1798, Gavino Valdez, who describes himself as "Commissary of the Holy Office of Parish Priest, Vicar in Charge, Ecclesiastical Judge, and Royal Chaplain of this town of San Fernando and Royal Presidio of San Antonio de Bexar and its District," applied to the government for a grant, "in the name of his majesty,” for a piece of land, adjoining the ranch which now belongs to Jose de la Santa, boundaries of which are: "On the east of the crossing called San Jose on the main inside road of the Mission, on the west by the small creek called Della Con |