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landlord, and appellee, Roberts, thereafter | to prejudice the jury. We believe the assignwent into possession and finished planting ment should be sustained.

the crop; that on August 9, 1917, appellant, The fourth assignment will be overruled. Smith, unlawfully and without consent of We think a sufficient predicate was estabappellee entered said premises and took pos-lished to authorize the reproduction of the session thereof, ejecting appellee therefrom, letter introduced by the official stenographer and proceeded to plough up and destroy ap- from his notes taken at a former triál. pellee's crop, and replant it to his own use; The fifth assignment asserts error in a rethat the crop would have been worth at the quested charge and issues given by the court time of gathering $1,500, after deducting at the request of the appellee. It will be the necessary expenses in gathering and perceived from the statement of the pleadings marketing, etc.; that, if he was mistaken as appellee recovered upon an alleged unlawful to its actual value, it was reasonably worth entry and destruction of the growing crop on $375 to prepare the ground for cultivation and a leasehold. The 160 acres alleged to have to plant it, giving the items of work neces- been rented by Bailey is not described, nor sary and seed for planting; also seeking is the quarter described upon which the crop punitory damages. The appellant answered was growing further than 160 acres "on some by general denial and specially that in dis-part of said section 100." The uncontroverted regard of the rental contract, Bailey and evidence is that appellant rented to Bailey Roberts ploughed and planted land not rented 160 acres out of the northwest quarter of to them and without appellant's knowledge the section and that the crop growing was or consent, and alleged other matters not on the northeast quarter of the section. Apnecessary to set out. Upon special findings pellee Roberts testifies that Bailey told him by a jury, judgment was entered for $875. that he had rented the northwest quarter of the section and at that time he did not know whether appellant knew the crop was on the northeast quarter and until he sent a plat of the land. It appears that Smith wrote a letter in reference to a request by Roberts to give his (Smith's) consent to Roberts to buy Bailey out. After this, Roberts wrote, wanting the land fenced, or something of that kind, and in response to this appellant requested a plat of the land. Upon receipt of this, he says for the first time he learned that Bailey and Roberts were occupying the northeast quarter of the section. He there

The first assignment of error complains of the action of the court in overruling appellant's motion for a continuance. We find no such error on the part of the court as will require a reversal of the case, and, as the matter will not likely occur upon another trial, we will not further discuss the question. [1, 2] The third assignment complains of the admission of evidence to the effect that appellant recorded a chattel mortgage, which appellee had executed in Knox county, before removing to Terry county, and which he had paid off, and as a result thereof appellee was unable to borrow money in Terry county up-upon went to Terry county, and after aron certain property covered by the mortgage; that appellant refused to release the mortgage because the appellee refused to settle an amount claimed by appellant as due him as rent on what is termed the Warren bale of cotton, grown upon appellant's land in Knox county. This evidence was evidently admitted to show the animus of appellant towards appellee in trespassing on the land in Terry

county. The two transactions are not related. As we understand the rule, when the intent with which an act is done is an issue, resort to other acts of the party to ascertain his real purpose may be introduced; but such acts must be those of a similar nature and

so connected with the transaction under con

sideration in point of time, etc., as that they may all be regarded as part of the system.

Blum v. Gaines, 57 Tex. 135. If the release of the mortgage had been made an issue and the facts relative thereto been gone into, it might have developed that appellant was entirely justified in not releasing the chattel mortgage. Appellant could not have been expected to meet a charge of bad motive in that case on the trial of this. The effect of the evidence admitted in this case would be

riving there negotiations were entered into to adjust the matter, appellant claiming he would much rather leave the northeast quarter in grass than to have had Bailey plough it up, and denies that he ever agreed to permit appellant to retain the crop, but says that he permitted him to take 180 acres out of another tract; appellee, however, contending differently. It does not appear to be the contention of either, after appellant went to Terry county, that he ever recognized the right of, appellee to the land, but stated he would take it and plough it up and put in a feed crop himself, which he did. Appellee and testifies that he told appellant if he claims that he never relinquished his claim,

suit. At the request of appellee, the plaintiff below, the trial court submitted the following

did as he threatened there would be a law

charge and issues:

"Gentlemen of the jury, at the request of the plaintiff, I give you in charge the following special charge, and special issue No. 1, to wit:

1, given to you in the court's main charge, you "In arriving at an answer to special issue No. are instructed that if the defendant, J. R. Smith, rented the northwest quarter of survey 100 to J. H. Bailey, and that said Bailey with or with

(218 S.W.)

out the consent of the said J. R. Smith put said | ceeds is active or constructive fraud on the farm in northeast quarter of said section, the part of the person sought to be estopped. said Bailey being in possession of the land, pre- Burleson v. Burleson, 28 Tex. 383. The apparing the land for cultivation, and the said de-pellant states he did not know that Bailey fendant could have ascertained such fact with had entered upon other land than that rented. reasonable diligence, then you are instructed that in law the said defendant would be estopped from setting up that plaintiff was on the wrong land. So bearing in mind the foregoing instruction, I submit to you the following special issues, to wit:

"Special Issue No. 1 (requested by the plaintiff): Did the defendant, J. R. Smith, use reasonable diligence in ascertaining the fact that J. H. Bailey had not broke up the farm in the northwest part of said section and had broke it out in the northeast part of said section? Answer yes or no.

"Special Issue No. 2: Did the defendant, J. R. Smith, give the plaintiff his consent to purchase the lease and crop from J. H. Bailey? Answer yes or no."

The jury answered the first issue in the negative and the second in the affirmative. It is asserted by propositions under this assignment: (1) That estoppel must be pleaded and proven; (2) the landlord has the right to presume the tenant will enter upon the land rented and not violate the contract and is not charged with notice of the breach of the contract until he has actual knowledge thereof; (3) a subtenant is charged with the knowledge of the terms of the lease, and the lessor is not required to use reasonable diligence to see that the lessee and subtenant are charged with the knowledge of the terms of the lease, and the lessor is not required to use reasonable diligence to see that the lessee and subtenant comply with the rental contract.

[3, 4] The relation of landlord and tenant ordinarily grows out of the contract between the parties. Gulledge v. White, 73 Tex. 498, 11 S. W. 527; Victory v. Stroud, 15 Tex. 373. Under the facts of this case it is manifest appellant never rented the northeast quarter to Bailey, but a different quarter. Roberts knew when he bought Bailey out that he had not rented from appellant the quarter bought by appellee. As to that quarter, the relation of landlord and tenant did not grow out of the contract and could not be established merely by an assignment or a subletting. There are cases in which there is no contract creating the relation of landlord and tenant, and in which the landlord or tenant would be estopped by their acts or declarations or conduct from denying the relationship. Towery v. Henderson, 60 Tex. 291. The pleadings in this case, however, set up no such estoppel. We do not think it true, because Bailey was in possession of the land preparing it for cultivation, and that Smith could have known such fact with reasonable diligence, that he would be estopped.

If that is true, he should not be held to have waived the contract which had been made or be estopped from asserting that he did not rent the land in question. We think there was nothing calling on him to exercise diligence. It would seem he had the right to rely on his contract with Bailey. Johnston V. Kleinsmith, 33 Tex. Civ. App. 236, 77 S. W. 36. "No assignee of a lease or subtenant can be heard to say that he was ignorant of the terms on which the lessee held possession." Forrest v. Durnell, 86 Tex. 647, 26 S. W. 481. In this case Roberts admits he knew when he purchased from Bailey that Smith had not rented that quarter to Bailey. He was not, therefore, induced to buy because of a rental contract or any act on the part of Smith inducing him thereto. It would seem to us, knowing that fact, he should have notified Smith of the land he was negotiating to buy from Bailey. He evidently knew Smith was at a distance and in another county. To constitute an estoppel by conduct, there must be a false representation to, or a concealment of material facts from, a party ignorant of the matter and with the intention he should act thereon, and he must have been induced thereby to act. Blum v. Merchant, 58 Tex. 400. The pleadings in this case simply set up the relation of landlord and tenant and the right of possession in plaintiff by virtue of rent contract and not a right by virtue of acts, conduct, or representations constituting a contract by estoppel. The particular acts, etc., relied on as constituting estoppel, should be pleaded with reasonable certainty. Insurance Co. v. Hutchins, 53 Tex. 61, 37 Am. Rep. 750; El Paso Railway Co. v. Eichel, 130 S. W. 939; Murphy v. Lewis, 198 S. W. 1059.

[9] The sixth and seventh assignments, to the effect that the answer of the jury to issue No. 1 is not supported by the evidence, we believe should be sustained. There is nothing to show negligence on appellant's part in failing to ascertain Bailey had taken possession of the wrong quarter and the one he did not rent. The law may charge the owner of land with notice of its occupancy by a stranger, but not by one who enters as his tenant; but we know of no rule that will charge him constructively with negligence in failing to know that his tenant had violated the rental contract by taking charge of land he never rented.

[10] The eighth and ninth assignments and the findings of the jury to issue No. 2, to the effect that appellant gave his consent to

[5-8] The ground on which estoppel pro-appellee to purchase the lease or crop from

Brooks v. Davis, 148 S. W. 1107; and Bost v. McCrea, 172 S. .W. 561. These cases follow the cases by the Supreme Court. Crews v. Cortez, 102 Tex. 111, 113 S. W. 523, 38 L. R. A. (N. S.) 713; Rogers v. McGuffey, 96 Tex. 565, 74 S. W. 753-where the principles of law are fully discussed.

[11] The cause set up in the instant case is a tort-the wrongful destruction of a growing crop. The proper measure of damages under such circumstances is the value of the crop just as it stood upon the ground at the time and place of its destruction. Sabine Ry. Co. v. Smith, 73 Tex. 1, 11 S. W. 123; Ry. Co. v. Schofield, 72 Tex. 496, 10 S. W. 575; Ry. Co. v. Carter, 25 S. W. 1023; Ry. Co. v. Nicholson, 25 S. W. 54; Ry. Co. v. Wright, 195 S. W. 605. In the case of Ry. Co. v. Pape, 73 Tex. 501, 11 S. W. 526, the Supreme Court, speaking through Judge Gaines, rec

Bailey, it is asserted, are not supported by [pellant. Springer v. Riley, 136 S. W. 577; the evidence. The charges on the two issues were submitted together and are dependent upon each other. If appellant did not know Bailey was on the land which he sold appellee and when appellant answered by letter giving his consent to the sale of the quarter he had rented, if he did not then know the trade was being made for a different quarter, he should not be held to have ratified the trade so made. In order to charge appellant with estoppel or ratification, he must have been apprised of his rights or have known that the quarter appellee was trading for from Bailey was not the one included in the original rental contract. Burleson v. Burleson, 28 Tex. 415; Wright v. Bonta, 19 Tex. 385. It is insisted by appellee that there is some evidence that appellant knew Bailey had put in crops on some other portion of the section than that rented after the contract was made, and al-ognizes the general rule as above stated, but so that appellant would have rented the land to Roberts if he had paid money rent, for which reason it is contended the charge and the issues were properly submitted and the evidence sufficient to support the findings. There is no pleading setting up a rental contract by estoppel. The fact that appellant would have rented for money rent does not prove that he ratified a rental contract on the shares of land which he had not agreed to rent. We think the assignments should be sustained, under the issues as made by the pleadings in this case.

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The second assignment is based upon the admission of the evidence of appellee, to the effect that cotton in the fall at Tahoka was 25 cents per pound, because this was not the proper measure of damages.

The tenth assignment is that the findings of the jury, in answer to issue No. 5, are not supported by the evidence and disregard the charge of the court, and that it is apparent they base their findings for actual damages on what appellee paid Bailey for the crop. The appellee testified it was his opinion that the crop was worth $500 at the time it was ploughed up. His evidence indicates this opinion is based on what it would take to break the land, the amount of seed required, and the price thereof, and other items of expense in putting in the land. We believe these assignments should be sustained. However, the tenth is sustained, not exactly for the reason asserted in the assignments and propositions. This is not a suit for breach of contract of tenancy on shares, and hence the rule for the recovery of damages is not exactly the same as for tort. In breach of such contracts, it is held profits are in contemplation of the parties as well as employment for the tenant or cropper, and therefore a tenant may recover such profits and the like. Such are cases cited by ap

where there is no market value the difficulty in proving the damages to a growing crop at the time of its destruction is discussed, and the following method was suggested:

"It seems to us that, as a general rule, the of a growing crop is to prove its probable yield most satisfactory means of arriving at the value under proper cultivation, the value of such yield when matured and ready for sale, and also the expense of such cultivation, as well as the cost of its preparation and transportation to market. The difference between the value of the probable crop in the market, and the expense of maturing, preparing, and placing it thereupon, will in most cases give the value of the growing by any other method." crop with as much certainty as can be attained

This rule is followed in Railway Co. v. Wright, supra, Freeman v. Fields, 135 S. W. 1073, and in other cases.

[12] The testimony, of which complaint is made under the second assignment, should have been excluded in the absence of the other necessary evidence of probable yield, expense in maturing, and the like. This evidence would not support a verdict in the absence of the other necessary evidence. See the Wright Case, supra. There is no evidence pointed out by the briefs, and we have found none, showing the probable yield of the crop, the cost of gathering or marketing it. We do not think the amount paid by appellee to Bailey for the lease, or the value of the work done up to the date of its destruction, or of the seed planted, would be recoverable and will not support a verdict therefor. Whether this suit be treated as an action for damages for a breach of a rental contract on shares or one in tort, in neither event would the evidence support a verdict for actual damages. It is not deemed necessary by us at this time to discuss the punitory damages

(218 S.W.)

The judgment will be reversed and remanded.

RUTHERFORD et al. v. DEAVER.
(No. 2202.)

(Court of Civil Appeals of Texas. Texarkana.
Jan. 27, 1920. Rehearing Denied
Feb. 5, 1920.)

1. DESCENT AND DISTRIBUTION 95-CON-
VEYANCE BY FATHER OF SEPARATE PROPERTY
TO CHILDREN OF FIRST MARRIAGE CONSTI-
TUTES ADVANCEMENT.

Where a parent who had married a second time conveyed to children of the first marriage 175 acres of a parcel of land which he owned as his separate property, held that such conveyance will be deemed an advancement, and hence the grantees must account for the advancement in settlement of the parent's estate.

awarded. What has been said heretofore will | daughter Mrs. Rutherford, and his son, Henrender it unnecessary to discuss such dam-ry E., he conveyed to them 175 of said 375 ages. acres of land. Pete Fulbright, Sr., died intestate in May, 1881, owning the remainder of said 375 acres and an interest in the community estate between him and his second wife, consisting, it seems, of personal property and two tracts of land. November 29, 1882, the 200 acres of the Laud survey owned by said Pete Fulbright, Sr., when he died, was set apart to his widow and their daughter, Pete, then a minor, for their use as a homestead. At the same time certain personal property was set apart to them. The proceeds of certain other personal property sold by Pete Fulbright, Sr.'s, administrator was used to pay debts of the estate and allowances made by the probate court to said widow and her minor daughter. A partition of the property remaining (except the 200 acres in controversy here) in which Pete Fulbright, Sr., owned an interest was had between his heirs, including Mrs. Rutherford and H. E. Fulbright, in 1889. In that partition no account was taken of the fact that Pete Fulbright, Sr., during his lifetime had given 175 acres of the Laud survey to Mrs. Rutherford and H. E. Fulbright. The widow of Pete Fulbright, Sr.'s, second marriage took possession of the 200 acres of the Laud survey at the time it was set apart to her and her minor daughter in 1882, and thereafter until her death in July, 1916, used it as her homestead. Mrs. Rutherford and the children of H. E. Fulbright claimed that the 200 One-third by acres was owned as follows: Mrs. Rutherford, one-third by the children of H. E. Fulbright, deceased, and one-third by Mrs. Pete Deaver; and the object of their suit against Mrs. Deaver was to have it partitioned accordingly. Defending the suit, Mrs. Deaver, claimed that the 175 acres, conveyed to Mrs. Rutherford and H. E. Ful

2. DESCENT AND DISTRIBUTION

112-ADVANCEMENT TO CHILDREN OF FIRST MARRIAGE HELD OF SUCH VALUE AS TO FULLY SATISFY

THEIR CLAIMS AS HEIRS.

Where a father conveyed to children of his first marriage 175 acres of a parcel which was his separate estate, retaining 200 acres therein, and the jury found that the 175 acres conveyed was of the value of the parcel retained which was subject to the second wife's life estate, held that, as the two children of the first marriage were bound to account for the advancement under Vernon's Ann. Civ. St. 1914, art. 2467, the child of the second marriage, who took the land at the death of her mother, was entitled to it free from claims of the other children; the value of the mother's estate being computed at more than one-half of the value of the

land.

Appeal from District Court, Red River bright in 1881 was an advancement to them County; Ben H. Denton, Judge.

Action by Mrs. M. F. (Birdie) Rutherford and others against Mrs. Pete Deaver. From a judgment for defendant, plaintiffs appeal.

Affirmed.

By his first wife Pete Fulbright, Sr., had two children, a daughter named Birdie, who married one Rutherford, and a son named Henry E., who died, leaving as his sole heirs a daughter and two sons, who with Mrs. Rutherford were plaintiffs in the court below and are appellants here. By his second wife Pete Fulbright, Sr., had one child, a daughter, also named Pete, who married one Deaver. She was the defendant in the court below and is the appellee here. Pete Fulbright, Sr., owned as a part of his separate estate 375 acres of the John Laud survey in Red River county. By a deed dated February 2, 1880, for love and affection he had for his

by Pete Fulbright, Sr., out of his estate; that said Mrs. Rutherford and H. E. Ful

bright at once took possession of, and ever afterwards used, the 175 acres free of any charge or claim thereto in favor of any other persons that the widow of the second marriage owned a life estate of one-third in the 200 acres remaining of the Laud survey, and that the same was, besides, charged with the right of said widow to use it as a homestead while she lived; that said widow did so use same; that the value of the 175 acres advanced to said Mrs. Rutherford and H. E. Fulbright, as compared with the value of the 200 acres remaining of the 375 acres, charged as it was with the life estate and homestead right in the widow of the second marriage, exceeded the value of the interests owned by Mrs. Rutherford and H. E. Fulbright in the estate of their father; that said Mrs. Rutherford and H. E. Fulbright therefore

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

were not entitled to any part of said 200 acres; and that she, Mrs. Deaver, was entitled, as against them, to all of said 200 acres. The appeal is from a judgment in Mrs. Deaver's favor in accordance with her contention.

T. T. Thompson, of Clarksville, and Wilkinson & Davidson, of Mt. Vernon, for appellants.

E. S. Chambers, of Clarksville, and Mahaffey, Keeney & Dalby, of Texarkana, for appellee.

WILLSON, C. J. (after stating the facts as above). [1] That it appeared as a matter of law that the conveyance to H. E. Fulbright and Mrs. Birdie Rutherford of 175 acres of the John Laud survey, evidenced by the deed dated October 7, 1881, was a gift to them by their father Pete Fulbright, Sr., is affirmed by all the parties to the appeal. They disagree, however, as to whether the trial court has a right to say it also appeared as a matter of law that the gift was an advancement by said Pete Fulbright, Sr., to his said children. Appellee insists that the gift was within a well-established rule (18 C. J. 933, § 258, and the numerous authorities there cited; 1 R. C. L. 668, § 21, and authorities there cited) that in the absence, as was the case, of pleading and proof to the contrary "the law presumes," quoting from Landrum v. Landrum, 62 Tex. Civ. App. 43, 130 S. W. 910, citing Lott v. Kaiser, 61 Tex. 665, "property conveyed by a deed from a parent to child for an expressed consideration of natural love and affection, to take effect in presenti, to be a gift by way of advancement."

Appellants concede the case would be within the rule if it appeared that the land given to H. E. Fulbright and Mrs. Rutherford belonged to the community estate between the donor, Pete Fulbright, Sr., and his first wife. They insist the rule was not applicable because it appeared, instead, that the land belonged to the separate estate of said Pete Fulbright, Sr., and cite Sparks v. Spence, 40 Tex. 693, as supporting their contention. The land in controversy in that case belonged to the community estate of the first marriage. The suit was hy children of that marriage against the widow and children of the second marriage (to whom the father had devised more than one-half of the land), to recover the one-half interest which their mother owned in the land. It appeared that the father in his lifetime, by deeds purporting to be gifts, had conveyed a part of the land to certain of the children of the first marriage, and to others of them land belonging to his separate estate. The Supreme Court held, it seems, that a presumption should have been indulged, until rebutted, that the conveyances, so far as they were

of the community property of the first marriage, were "intended to be," quoting, "in discharge pro tanto of the child's interest," but that such a presumption should not have been indulged so far as the conveyances were of other property. Exactly what the court meant by its ruling is not clear to the writer. It seems that the contention in that case by the widow and children of the second marriage was that the conveyances by the father to children of the first marriage should be treated "as advancements, intended and accepted in satisfaction of their interest in their mother's community estate"; in other words, as a satisfaction, in effect, by the father of a claim the children of the first marriage had against him as the trustee of their interest in their mother's community half of the land. It may be that the distinction the Supreme Court made was based on the fact that a conveyance by a father to his children of community property not in excess of the interest the mother owned when she died is not a gift at all, but is a conveyance of a thing the children already right fully owned, while the conveyance to a child by a father of property belonging to his separate estate is not a conveyance of a thing the child owned. But whatever may have been the basis of the conclusion reached by the court in that case, if it was that, notwithstanding the absence of testimony to the contrary, a presumption should not be indulged that a substantial gift, by an intestate parent of property belonging to his separate estate, to one of his children, was intended as an advancement to that child, we think it was wrong and against the overwhelming weight of the authorities. 1 R. C. L. 668; 18 C. J. 912, 933. Therefore we hold that the trial court in the instant case did not err when he treated the conveyance to Mrs. Rutherford and H. E. Fulbright as an advancement to them by their father out of his estate, and refused to submit to the jury an issue as to whether it was such an advancement or not.

[2] Appellants insist that if the trial court did not err when he treated the conveyance of the 175 acres as an advancement to Mrs. Rutherford and H. E. Fulbright for the value of which they had to account in the partition they sought of the 200 acres, he did err when he determined that the value of the 175 acres advanced to them was equal to the value of the interest they were entitled to in the estate of their father, and that they therefore did not own an interest in the 200 acres, and were not entitled to have it partitioned between themselves and Mrs. Deaver. On special issues submitted to them the jury found that the 175-acre tract was worth $2,000 at the time Pete Fulbright, Sr., gave it to Mrs. Rutherford and H. E. Fulbright and at the time said Pete Fulbright, Sr., died. They further found that the 200-acre tract was

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