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the amount of the judgment of the court below, less the sum of $139. As it is apparent that appellee, in good faith, attempted in the court below to remit the full amount of said surgeon's and hospital fees, and as said sum of $9 accidentally omitted in his remittitur, so far as the necessity of an appeal in this case is concerned, may properly be treated as coming within the maxim, "De minimis non curat lex," we will not tax any of the costs of this appeal against the appellee.

|liance thereon, placed movable improvements the lease, plaintiff bought the land of the state, thereon. Afterwards, and during the term of and in trespass to try title recovered judgment, which was affirmed by the Court of Civil Appeals; the lease being held void. Writ of error was denied by the Supreme Court, which afterwards overruled a motion for rehearing. Held that though there be no law permitting a rehear ing in the Supreme Court when an application for writ of error is denied by it, and the judg denied, which was more than 60 days prior to ment became final when such application was issuance of mandate by the Court of Civil Appeals which was delayed because of the pendency of such motion for rehearing, and defendant the right to remove such improvements, he may did not within such 60 days demand of plaintiff recover their value, defendant having denied such subsequent demand by him; Sayles' Ann. Civ. St. 1897, art. 4218s, providing that a judg-right for 60 days from termination of his lease lessee of public school lands shall have the to remove all improvements placed by him on the premises, not prohibiting the removal after such period, and claims for improvements in good faith being allowed on principles of equity, so that defendant, having brought himself within that rule, and shown a reasonable excuse for not sooner demanding right to remove, did not forfeit his claim.

6. Appellant complains that the verdict is excessive. It may be, but under the evidence we cannot so hold as a matter of law. If appellee's evidence as to the extent and permanency of injuries be true, taking into consideration his age and previous earning capacity, it is sufficient to sustain the

ment.

Finding no error in the record, except as to medical and hospital fees, we affirm the judgment of the lower court as herein reformed.

Reformed and affirmed.

BUCHANAN v. WILBURN. (Court of Civil Appeals of Texas. April 2, 1910.)

1. PUBLIC LANDS (§ 173*)-VOID LEASE OF SCHOOL LANDS-PERMANENT IMPROVEMENTS

-COMPENSATION.

One who took a void lease of public school lands from the land commissioner, who advised him he had authority to issue it, and, believing the lease was valid, and relying on that belief, erected permanent improvements on the land, may recover on account thereof of the person who afterwards bought it of the state and recovered it of him in trespass to try title the amount that the value of the land was enhanced by the use of the improvements during the unexpired portion of the lease.

[Ed. Note. For other cases, see Public Lands, Dec. Dig. § 173.*]

2. PUBLIC LANDS (§ 173*) VOID LEASERIGHT OF SUBSEQUENT PURCHASER TO RENT. For the period from the time plaintiff bought the land of the state, when he was entitled to possession subject to the equitable claim of defendant for permanent improvements he had erected on the land in reliance on a void lease from the land commissioner, till plaintiff was placed in possession on termination of his litigation with defendant over title to the land, he was entitled to recover of defendant the rental value of the land.

[Ed. Note. For other cases, see Public Lands, Dec. Dig. § 173.*] 3. EVIDENCE (8 144*)-ADMISSIBILITY-CER

TAINTY.

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DUNKLIN, J. In the year 1900 M. G. Buchanan purchased from E. D. Harrington a lease on four sections of public school land in Crane county. On the 31st of October, 1900, Buchanan surrendered that lease, and obtained from the Commissioner of the General Land Office of the state another lease on the same land for a period of 10 years. On the 22d of July, 1907, the land was purchased from the state by J. A. Wilburn. On the same date Buchanan instituted suit against the land. That suit was decided in Wilburn's Wilburn in trespass to try title to recover favor, both in the trial court and in this court, and a writ of error was denied by the Supreme Court on October 14, 1908. Pending that suit Buchanan procured the issuance of a writ of sequestration which was levied on the land, and, Wilburn having replevied it, an injunction was granted to Buchanan by the judge of the trial court restraining Wilburn from interfering with Buchanan's possession of the land during the pendency of the suit. By virtue of a mandate issued from this court December 21, 1908, Wilburn was placed in possession of the land. The suit

now before us was instituted by Wilburn to than 60 days prior to the issuance of the manrecover the rental value of the land pending date of this court. Sayles' Ann. Civ. St. art. the aforesaid litigation. By plea in recon- 4218s, provides that a lessee of public school vention, Buchanan sought to recover of Wil- land shall have the right for 60 days from burn the value of certain improvements placed the date of termination of his lease to reupon the land by the former and taken by move all improvements he shall have placed the latter when he was placed in possession upon the leased premises. The issuance of of the land, some of which improvements the mandate from this court was delayed were permanent and some movable improve- by reason of the pendency of a motion for ments. The suit was tried by the court with-rehearing in the Supreme Court. Appellee out a jury, and findings of fact and conclusions of law were filed. Judgment was rendered allowing Wilburn $336.85 as the rental value of the land during the time he was wrongfully deprived of its use, and also allowing Buchanan $247 for the movable improvements which he placed on the land and which were appropriated by Wilburn.

An exception was sustained to Buchanan's claim for the value of the permanent improvements which he alleged he placed upon the land during the lease issued to him by the land commissioner October 31, 1900. In the former suit between the parties and above noted this court held that lease void. In his plea in reconvention Buchanan alleged that he was advised by the land commissioner that he had lawful authority to issue the lease; that, in good faith, he believed the same to be a valid lease, and, relying upon that belief, he erected on the land the permanent improvements for which he sought a recovery. We think the court erred in sustaining Wilburn's exception to the plea. However, the extent of Buchanan's recovery for the permanent improvements would be the amount the value of the land was enhanced by the use of those improvements during the unexpired period of the lease. Williams v. Finley, 99 Tex. 468, 90 S. W. 1089; House v. Stone, 64 Tex. 677; Sellman v. Lee, 55 Tex. 322; French v. Grenet, 57 Tex. 274.

insists that there is no law permitting a motion for rehearing in the Supreme Court when an application for writ of error is denied by that court-citing Hines v. Morse, 92 Tex. 194, 47 S. W. 516-that the judgment became final on the 14th day of October,' 1908, and that, as the land was the property of the state at the time the improvements were placed thereon and appellant did not demand of appellee the right to remove them within 60 days from and after October 14, 1908, he should not recover their value. The statute does not prohibit the removal of the improvements after the 60-day period above mentioned. Claims for improvements in good faith are allowed on principles of equity, and, if appellant brought himself within that rule and has shown a reasonable excuse for not sooner demanding the right to remove the improvements which he placed upon the land, we can perceive no valid reason for holding that he has forfeited his claim, and that appellee should thus enjoy the fruits of appellant's labors without paying any consideration therefor. Accordingly appellee's cross-assignments are overruled. Williams v. Finley, supra.

For the error in sustaining appellee's exception to appellant's claim for permanent improvements placed on the land under the lease of date October 31, 1900, the judgment of the trial court is reversed, and the cause remanded for another trial.

There was no error in allowing Wilburn the rental value of the land from the date of his purchase until the date he was placed in possession thereof upon the termination of the litigation over the title to the property. CITY OF SAN ANTONIO v. E. H. ROLLINS Subject to Buchanan's equitable claim for permanent improvements, Wilburn was enti

& SONS.

1910.)

On appellant's second motion for rehearing. Denied.

For former opinion, see 127 S. W. 1166.

tled to possession of the land as soon as he (Court of Civil Appeals of Texas. May 25, bought it from the state, and the undisputed evidence showed that in that condition it had a definite rental value. George Hogg, witness for plaintiff, testified over defendant's objec tion that the rental value of the land was 25 cents per head for all the cattle it would pasture. There was no error in the admission of this testimony as other witnesses testified to the number of cattle for which the land would furnish pasture.

JAMES, C. J. In this motion we are asked to find that there was testimony tending to contradict the attorney, Wood, sufficient to warrant the jury in finding that his opinion in regard to the bonds in question was not The rulings of the court in allowing Buch- in good faith. Two facts in the record are anan the value of the movable improvements stated as supporting the above: First. A letwhich he had placed on the land, and in ad-ter written by the city clerk to Rollins & mitting testimony over appellee's objection to Sons, before the bonds were bought, as folprove their value, are challenged by cross-lows: "In answer to your favor of the 16th assignments of error presented by Wilburn. Buchanan's application for writ of error from the decision of this court in the former

inst. I take pleasure in giving you the information requested. May 31, 1906, the sinking fund amounted to $284,261.72; July 14, 1906,

off the $300,000 issue, was defensible, and it was reasonable for an attorney to pass over such an objection, if any he had, to the reissue. Mr. Wood says he entertained such an objection, but waived it and approved the bonds.

the difference representing interest coupons in 1906 was for $300,000. There was then in paid. The treasurer also holds, in addition the sinking fund a total of about that amount. to the above amount, $26,000 in bonds of the It is manifest that to have used the sinking city of San Antonio purchased at various fund for the redemption of the $300,000 bonds, times for account of sinking fund. The sink- then proposed to be refunded, would have deing fund received annually from advalorem pleted the fund entirely. There were older collections 2 per cent. of the total bond issue issues outstanding, to wit, those named in and sufficient to meet the annual interest on the mayor's letter, which, being older, had all outstanding bonds. The interest coupons more than equal claim on the fund. The city are charged to the sinking fund as same are had then no idea, and justly so, of exhausting presented for payment. The fund is also the fund to retire the $300,000 issue. Its eviavailable for the redemption of bonds as they dent intention, as manifested by the letter, mature. It is therefore a general sinking was to conserve this fund for other and older fund for the total indebtedness of the city, issues. Under such circumstances, the presnot including, however, the district improve-ervation of the fund, and not using it to pay ment bonds, which have their separate funds. The bonds next to mature are one for $50,000, bearing interest at 6 per cent., and one for $150,000, bearing interest at 5 per cent., both due in 1917. The city may, however, avail itself of its option in 1907, and refund the same at a lower rate of interest," etc. Second. The fact that in 1907, when the bonds in question were to be issued, the condition of the sinking fund was the same, except that it was about $40,000 less in amount. These facts are relied on as showing that there was no claim or contention by the city, such as Mr. Wood states, in 1906, when he approved the $300,000 issue to Rollins & Sons, that the sinking fund on hand was required for older issues. The letter was in reply to one from Rollins & Sons to the mayor, which, among other things, asked the condition of the sinking fund, and what bonds it was to retire. Taking the two letters together, the answer conveyed the idea that the fund was intended to retire the $50,000 and $150,000 issues due in 1917, with the statement that the city might avail itself of its option in 1907 and refund them at a lower rate. The option was to redeem any time after August 1, 1907. While it may not appear in terms from the letter, that the city was contending that the sinking fund was required for the older issues, the letter does make it appear that the city intended to hold the fund for these issues, which were in fact older issues, and so represented the matter before Rollins & Sons took the $300,000 issue. The letter, we think, is not contradictory of the existence of the reasons stated by Mr. Wood as inducing his opinion approving the purchase of the $300,000 issue, nor contradictory of his good faith in disapproving of the bonds intained. question. The issue that was being refunded

In 1907, however, the city proposed to refund the $150,000 issue, which would mature in 1917, but could be paid in 1907. This was the $150,000 of bonds mentioned in the mayor's letter. The validity of these refunding bonds was also presented to Mr. Wood. The condition of the city's sinking fund was practically the same, about $40,000 less. He had before him a different condition of things from what was the year before. Then the city appeared to have a reason for holding the sinking fund to protect certain other issues outstanding; but now one of those very issues was being refunded in its entirety, and without any regard to the sinking fund that had been accumulated for its retirement. It therefore seems to us that there was no evidence of inconsistency of opinion on the part of Mr. Wood. The letter of the mayor and the fact that the condition of the sinking fund was substantially the same on both occasions is all of the evidence pointed out by appellant as going to show that the later opinion of Mr. Wood was in bad faith. This is based upon the idea that he had the same conditions before him; but this, we find, is not so. It was consistent with good faith that he gave his approval to the $300,000 issue in 1906 and disapproved of the issue in question, and there was, in our opinion, no testimony before the jury which would have permitted them to find that his opinion in question was not fairly and honestly enter

The motion is overruled.

END OF CASES IN VOL. 127.

INDEX-DIGEST

ABANDONMENT.

Of action see Action, § 70.

Of building contract, see Contracts, § 306.
Of husband or wife ground for divorce, see Di-
vorce § 37.

ABATEMENT AND REVIVAL.

Election of remedy, see Election of Remedies.
Pleas in abatement, see Pleading, § 111.

II. ANOTHER ACTION PENDING.
Splitting cause of action, see Action, § 53.

§ 4. Where two suits are brought at different times between the same parties and for the same thing, the suit subsequently brought will be abated.-Michelin Tire Co. v. Webb (Mo. App.)

948.

5. Under Rev. St. 1899, § 987 (Ann. St. 1906, p. 873), an action against a stockholder for debts of a corporation after the corporation is dissolved held not abated by an action against the corporation.-Michelin Tire Co. v. Webb (Mo. App.) 948.

§ 17. A petition which does not show on its face that another action is pending cannot be attacked by a motion to dismiss because of the pendency of another action.-Michelin Tire Co. v. Webb (Mo. App.) 948.

See Seduction.

ABDUCTION.

II. PROSECUTION AND PUNISHMENT. 5. In a prosecution under the statute for taking and detaining a woman against her will with intent to have carnal knowledge of her, the indictment need not allege that accused did not succeed in doing so.-Smith v. Commonwealth (Ky.) 790.

§ 16. In a prosecution for taking a woman against her will with intent to know her carnally, a charge held to sufficiently instruct that if the woman consented to accused's cohabiting with her, the jury should acquit.Smith v. Commonwealth (Ky.) 790.

ABETTORS.

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Accounting by partners, see Partnership, § 327.

Criminal responsibility see Criminal Law, §§ Settlement of balance of mutual accounts, see 59, 69.

ABSENCE.

Of husband or wife, ground for divorce, see Di-
vorce, § 37.
Of witness or evidence, ground for continuance,
see Continuance § 24; Criminal Law, §§ 595-
597.

ABSTRACTS.

Compromise and Settlement.

ACCOUNT, ACTION ON.

§ 14. A verified account held not admissible in evidence, notwithstanding the statute, in the absence of other evidence showing its correctness, where the opposing party filed an affidavit denying its correctness.-Stephenville, N. & S. T. Ry. Co. v. Western Coal & Mining Co. (Tex.

Of record on appeal, see Appeal and Error, §§| Civ. App.) 245. 586-592; Criminal Law, § 1103.

ABUSIVE LANGUAGE.

To passengers by carrier's employés, fellow passengers, and other persons, see Carriers, 283.

ACCOUNT STATED.

Actions on accounts as such, see Account, Ac-
tion on.

Pleading in justices' courts, see Justices of the
Peace, § 91.

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER

ACCUSATION.

Of crime, ground for impeachment of witness, see Witnesses, §§ 345, 359.

Of crime, indictment or information, see Indictment and Information.

ACKNOWLEDGMENT.

Of contract for sale of homestead, see Homestead, § 112.

Operation and effect of admissions as evidence, see Evidence, §§ 208-263.

ACQUIESCENCE.

Ground of estoppel to appeal or take other proceeding for review, see Appeal and Error, § 154.

In location of boundary lines, see Boundaries, § 48.

ACQUITTAL.

As evidence of malice, see Malicious Prosecution, § 33.

As evidence of want of probable cause, see Malicious Prosecution, § 24.

ACTION.

Abatement, see Abatement and Revival.

Bar by former adjudication, see Judgment, $$ 570-617.

Constitutional guaranties of remedies, see Constitutional Law, § 321.

Damages recoverable, see Damages.
Election of remedy, see Election of Remedies.
Ignorance of cause of action as affecting limi-
tation, see Limitation of Actions, § 95.
Judicial admission, see Evidence, § 208.
Jurisdiction of courts, see Courts.
Limitation by statutes, see Limitation of Ac-
tions.

Malicious actions, see Malicious Prosecution. Pendency of action as affecting limitation of other action, see Limitation of Actions, § 105. Pendency of other action ground for abatement, see Abatement and Revival, §§ 4-17. Presumptions as to judicial proceedings, see Evidence, § 82.

Retroactive operation of statutes relating to remedies and procedure, construction, Statutes, § 267.

see

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See Carriers. §§ 105, 227-230, 276, 277, 314321, 347, 382, 408; Corporations, §§ 503, 672, 673; Executors and Administrators, § 451; Husband and Wife, § 205; Infants, §§ 78, 80; Landlord and Tenant, §§ 217, 291; Master and Servant, §§ 252-296, 330, 332; Partnership, 200; Railroads, §§ 282, 347-351, 397, 400, 443-447, 478-482; Schools and School Districts, § 121; Street Railroads, § 114; Warehousemen, § 34. Assignees, see Assignments, § 121. Creditors of estate of decedent, see Executors and Administrators, §§ 246–256. Electric light or power companies, see Electricity, 8 19.

Foreign corporations, see Corporations, §§ 672, 673.

Guarantors, see Guaranty, § 94.

Insurance companies, see Insurance, §§ 802$26.

Married women, see Husband and Wife, § 205. Seller of goods on condition, see Sales, § 479. Stockholders on behalf of corporation, see Corporations, §§ 202-209.

Telegraph or telephone companies, see Telegraphs and Telephones, §§ 28, 66–73.

Actions relating to particular species of property or estates.

See Trade-Marks and Trade-Names, § 99; Waters and Water Courses, §§ 125, 179. Demised premises, see Landlord and Tenant, §§ 217, 291.

Particular causes or grounds of action. See Bailment, § 31; Bills and Notes, §§ 476-538; Death, $$ 7-104; Forcible Entry and Detainer, §§ 4-36; Fraud, §§ 49-65; Fraudulent Conveyances, §§ 269-310; Guaranty, § 94; Insurance, §§ 622-668, 802-826; Libel and Slander, §§ 75-126; Malicious Prosecution, §§ 47, 48; Trespass, §§ 30-69.

Breach of contract, see Contracts, §§ 330-346. Breach of contract for carriage of passenger, see Carriers, §§ 276, 277.

Breach of contract of sale, see Sales, §§ 384, 417, 418.

Breach of covenant, see Covenants, § 134.
Cloud on title, see Quieting Title.
Collection of levee taxes, see Levees, § 27.
Compensation of brokers, see Brokers, § 82.
Conditional contract of sale, see Sales, § 479.
Deceit, see Fraud, §§ 49-65.

Delay in transportation or delivery of goods, see Carriers, § 105.

Drainage or discharge of surface waters, see Waters and Water Courses, § 125.

Ejection of passenger or intruder from train, see Carriers, § 382.

Failure or refusal to furnish telegraph or telephone service, see Telegraphs and Telephones, § 28.

Infringement of trade-mark or trade-name, see
Trade-Marks and Trade-Names, § 99.
Injuries at railroad crossings, see Railroads, §§
347-351.

Injuries by servants, see Master and Servant, §§ 330, 332.

Injuries from fires caused by operation of rail-
road, see Railroads, §§ 478–482.
Injuries from flowage, see Waters and Water
Courses, § 179.

Injuries to animals on or near railroad tracks,
see Railroads, §§ 443-447.
Injuries to licensees or trespassers on railroad
property in general, see Railroads, § 282.
Injuries to passengers, see Carriers, §§ 314–321,
347.

Injuries to persons on or near railroad tracks, see Railroads, §§ 397, 400.

Injuries to persons on or near street railroad tracks, see Street Railroads, § 114.

Injuries to servants, see Master and Servant, §§ 252-296.

Loss of or injury to live stock in course of
tranportation, see Carriers, §§ 227-230.
Loss of or injury to passenger's baggage, see
Carriers, § 408.

Negligence in general, see Negligence, §§ 108

136.

Negligence in operation of railroad, see Railroads, §§ 282, 347-351, 397, 400, 443-447, 478-482.

Negligence in operation of street railroad, see Street Railroads, § 114.

Negligence in production or use of electricity, see Electricity, § 19.

Negligence of master, see Master and Servant, $$ 252-296.

Negligence or default in transmission or delivery of telegraph or telephone message, see Telegraphs and Telephones, $$ 66-73. Negligence or misconduct of servant, see Master and Servant, $$ 330, 332.

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