not be considered, and therefore no error differs from the former; however, the only would be shown by the court's refusing to grant the new trial on that ground. On the other hand, if it was filed in the lower court in time, then from the testimony heard by the court on the subject he was clearly author- | Park addition to Sherman, Tex., and whether ized to find that appellant's claimed separation of the jury was untrue. So that in either event we must hold no reversible error was shown on this ground. question remaining is whether Morrison at the institution of the suit by O'Hanlon had title by limitation, either by the three or ten year statute, to lot 3, in block 41, College A claim of ownership of land, to give rise to a title by limitation, must be open and a distinct claim of ownership, and the mere assertion by an occupant that he might as well have the land as another is not the assertion of an exclusive hostile right or title. 2. ADVERSE POSSESSION 94 - PAYMENT OF TAXES-MISTAKE. A party is charged with what his deed calls for, and where he makes a mistake in paying taxes on one lot instead of another this will 4. ADVERSE POSSESSION 79(1)—BREAKING A tax deed covering land of which an occupant held possession in subordination to the title of the true owner conveyed the title and interest which the occupant possessed, and in effect broke the seisin which he had up to that time, so that, to establish title in himself, he must do so under 10 years' adverse possession after the tax deed. 5. PROPERTY 10-"SEISIN IN LAW." there is any evidence that would have supported a verdict to this effect. In part, to support the claim of limitation, the appellant relied upon a tax deed from the city of Sherman to J. W. Hollingsworth, who, it may be stated, bought the property and took the deed in his own name for the use and benefit of Morrison, and thereafter made a deed to Morrison for the lot, which deed, however, was never recorded and the evidence in this case shows was lost and a substitute deed executed therefor in 1914. The tax sale was for the taxes for the year 1903 on March 1, 1904. After this year, the year 1905, the land was again sold for the taxes of 1904, and at that sale appellee, O'Hanlon, became the purchaser, but thereafter deeded the land to one of his vendors, which shows in the chain of title, whose interest and that of others he subsequently purchased, placing the feesimple title to the land in O'Hanlon as shown by the record at the time of his suit. It was practically admitted upon the trial that the tax sale to Hollingsworth in 1904 was made in accordance with law, and that the necessary precedent requirements authorizing such sale had been complied with; and it was also admitted that the sale in 1905, at which O'Hanlon became a purchaser, was likewise valid. It is manifest under the agreement, if the tax sale in 1904 put the title in Morrison, subject to be redeemed, that the sale for the taxes of 1904, which was made in 1905, conveyed whatever title or color of title Morri son had out of him into O'Hanlon. He was therefore remitted to his claim of title by limitation. On the former appeal Morrison testified he asserted no claim of title until 1904 under his tax deed. On the last trial he testified he claimed title to the lot in 1900 and 1901, and one or two witnesses testified he so claimed to them and asserted that it was his lot. One of the witnesses testified Appeal from District Court, Grayson Coun- that Morrison told him he could not find the ty; C. T. Freeman, Judge. Seisin in law is constituted by the formal making and recording of a deed, and the seisin of the land is effected without a formal entry. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Seisin in Law.] rison. Suit by F. L. O'Hanlon against W. A. MorFrom a judgment for plaintiff, defendant appeals. Affirmed. Cox & Cox and Wood, Jones & Hassell, all of Sherman, for appellant. J. W. Finley, of Sherman, for appellee. HUFF, C. J. This is the second appeal of this case, and this time from an instructed verdict. The former appeal is reported in 187 S. W. 692, to which reference is made for a more detailed statement of the case. The record in some particulars of this appeal owner of the lot and that he might as well have it as anybody. It is admitted by Morrison that he was trying to find the owner to the lot for some time, from 1898 up until 1901; the testimony not being very definite as to the time. During the time he was looking for the owner he was staking his cow and horse on the lot to graze through the summer. He placed lumber thereon, his mower, wagon, and buggy; in fact, all the evidence of the possession that he ever exercised over the lot were the same before he made any claim of title as they were afterwards. The evidence shows that other For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes people used the lot for grazing purposes as he did, but he says without his permission. He does not appear to have objected unless at one time, and that was through his brother-in-law. The lot was open to the commons, unfenced, and with no improvements on it until about two years before this suit was filed, when he fenced it. Until that time there had been no open, visible assertion of ownership, or such that would give notice that he was asserting title hostile to the true owner, or that he had changed his attitude to the true owner from that which existed when he first began to use the lot. His acts afterwards were as they had been previous thereto, while admitting ownership in another. [1] The mere fact that he asserted that he might as well have it as another does not show that he asserted any exclusive hostile right or title. If he asserted ownership in himself to one or two he also admits that he during that time was trying to find the owner; he could not blow both hot and cold. His claim of ownership must be open and a distinct claim of ownership. He did not pay taxes on this lot. He says he paid on lot 4 by mistake in the redition. He certainly knew the number of the lot he purchased at tax sale. Lot 4 was immediately back of him and across the alley. The extension of his north and south lines form the north and south lines of lot 4. Lot 3 was north of lot 4. The evidence indicates that he was claiming 4 instead of 3. [2] A party is charged with what his deed calls for, and we can see no reason why he should have made the mistake in paying on lot 4 instead of lot 3. He permitted lot 3 to sell for the taxes due for the year in which he says he purchased it. He never tried to redeem it or pay the taxes for that year. We can find no evidence or fact which would have justified a jury in finding that he asserted or had hostile possession of the lot, such as can be said to have been exclusive, adverse, visible, and such as would notify the owner that it was so held until he put his fence around the lot about two years before the suit was instituted. The appellee herein has a regular chain of transfers from and under the sovereignty of the soil, as well as a conveyance of any title or claim which appellant had by virtue of his tax deed or previous occupancy. This interest was purchased in 1905, less than 10 years before the filing of the suit, August 27, 1914; therefore there could have been no 10 years' possession from such purchase. The possession, if in fact it was such, when Morrison began using the lot, was in subordination to the better title, as he himself admits. [3] Having so entered he was required thereafter to change the character of his possession and make it of such character as to indicate unmistakably an assertion of claim of exclusive ownership in him. The character of possession was not changed from what it was when holding admittedly in subordination to the true Owner. The only change in this record from what it was on the former appeal is that he now says he claimed title before the tax deed and told others that he did so. His brother-in-law testified that he said he might as well have it as another, and this did not assert a claim of title in himself; on the contrary, it recognized the right of others. In our judgment, he has only shown that he was a mere casual trespasser on the lot, without objection from the owner or by permission of the owner. We believe that the view as expressed by this court on the former appeal is supported by the authorities cited therein. Mhoon v. Cain, 77 Tex. 316, 14 S. W. 24; Satterwhite v. Rosser, 61 Tex. 166; Buford v. Wasson, 49 Tex. Civ. App. 454, 109 S. W. 275, and the other cases therein cited. [4, 5] If our former opinion was correct, the trial court correctly instructed a verdict; and, in addition to the former appeal and record, we think the tax deed of 1905 to appellee conveyed the title and interest which appellant then possessed, and in effect broke the seisin of appellant which he had up to that time, and in order to recover he must do so under 10 years' adverse possession after that date, which period had not been filled when this suit was filed. As a general proposition, seisin in law, by the holdings in this country, is constituted by the formal making and recording of a deed, and the seisin of the land is effected without a formal entry. See Seisin, Rawls' 3d Revision, Bouvier's Law Dict. vol. 3, p. 3036; Collier v. Couts, 92 Tex. 234, 47 S. W. 525. We think the tax collector's deed, when executed, conveyed for appellant all his title and interest, as well as his seisin of the land to appellee. We believe the judgment should be af firmed. RICK FURNITURE CO. v. SMITH. (Court of Civil Appeals of Texas. Dallas. Feb. In an action against the seller of a porch swing for injuries to the buyer when a supporting hook gave way, where the buyer did not rest his case alone on the allegation that the seller had breached its warranty safely to hang the swing, but alleged independently that the seller, having agreed to hang and having hung the swing, was guilty of negligence in hanging it, and that such negligence proximately caused the injury, the petition supported judgment for the buyer, though the evidence showed the hanging of the swing was free of charge, and a gratuity by the seller. ries received through the negligence of appellant. The appellant is a private corporation engaged in the sale of furniture and porch swings. In due course of business it sold to appellee such a swing, and hung the same on the porch of appellee's residence in his absence. The swing was rather heavy, about 4% feet long, with arms and high back, and made to hang from a ceiling by chains and hooks. The porch where the swing was hung was ceiled, and the ceiling There is no proof joists were 1x4 timbers. that these timbers were defective. On the contrary, it appears that they were sound and suitable for the purpose intended, and were such as are often used in small cottages, such as appellee's was, and ample to GRATUI- Support the swing. Shortly after the swing was hung, and while being used in the orWhere the seller of a porch swing undertook to hang the same for the buyer, and did so neg- dinary way by appellee it fell, resulting in ligently so that a support gave way, and the the breaking of appellee's leg. The fall of buyer was injured, the seller was liable to the the swing did not result from the breaking buyer, though the hanging of the swing was purely gratuitous, for, by undertaking to hang or giving way of the joist. It resulted from the swing, the seller bound itself to exercise the pulling out of one of the supporting hooks ordinary care to make it reasonably safe for the that had been screwed through the ceiling use to which the buyer intended to put it. of the porch and into the joists. This hook 3. TRIAL had not been put straight in the center of the joist and solid wood, but was put in by appellant's agent crooked, and too near the edge of the joist, and evidently by guess. The other hook, which was put in the same joist, went practically straight into the solid wood, and did not pull out, but remained firm. 2. NEGLIGENCE 2 LIABILITY TOUS SERVICE. 234(7)-INSTRUCTIONS-BURDEN OF PROOF. In an action for injuries, where the case was submitted on special issues, and the court instructed that the burden of proof was on plaintiff to make out his case by a preponder: ance of the evidence, that was sufficient, and it was not error to refuse defendant's special charge that the burden was on plaintiff to show want of contributory negligence. 4. APPEAL AND ERROR 1067 HARMLESS ERROR-REFUSAL OF CHARGE. -- If the special charge should have been given, the error, if any, in refusing it, was not calculated to cause the jury to render improper verdict. 5. CORPORATIONS 491-FURNITURE COMPA NY-ULTRA VIRES. The undertaking of a furniture company, which sold porch swings, to hang a swing sold a customer, was not beyond the scope of its charter powers and ultra vires, so that no liability could attach to the company for damages resulting to the customer from a negligent hanging. 6. EVIDENCE 178(7) SECONDARY EVI DENCE-PREDICATE FOR ADMISSION. In an action for personal injuries, where plaintiff proved that he had a permit or license from the state to act as insurance agent for a life insurance company, and that the license had been lost or destroyed, parol testimony of plaintiff and his wife that plaintiff had the license, etc., was admissible; proper predicate having been laid, and there being no degrees of secondary evidence. Appeal from District Court, Dallas County; E. B. Muse. Judge. Suit by J. A. Smith against the Rick Furniture Company. From a judgment for plaintiff, defendant appeals. Affirmed. Muse & Muse, of Dallas, for appellant. Geo. Clifton Edwards, of Dallas, for appellee. TALBOT, J. The appellee sued the appellant to recover damages for personal inju Appellee alleged that he bought the swing in response to the offer of appellant to deliver and hang same safely at his residence for the purchase price, namely, $4.50; that said offer was made in express terms at appellant's place of business, and likewise in implied terms by appellant by advertisements widely circulated; that appellant expressly and also impliedly, by said advertisement and by said sale at its regular place of business, warranted to appellee that it would hang said swing safely at appellee's residence; that by and through its authorized agent, acting within the scope of his employment, appellant did hang the swing, alone selecting the place on the front porch of appellee's residence. The appellee in a separate count of his petition further alleged that appellant was guilty of negligence, in that it did not employ careful and competent employés to put up the swing, that its employés who put up the swing did not use that degree of care that ordinarily prudent, cautious, and competent persons would use under the same or similar circumstances in hanging the swing, but did hang said swing in a careless, negligent, and unsafe manner, and that said negligence directly and proximately caused and contributed to cause the fall of the swing and appellee's injuries; that said swing as so erected by appellant did not constitute a safe appliance such as appellee contracted for, but did | The jury found that the appellant failed to constitute an unsafe and dangerous appli- use ordinary care in hanging the swing, that ance that was a real and veritable trap for appellee, when he endeavored to use it in a proper and careful manner, which he was doing at the time it fell. Appellant answered by general denial, and specially that it advertised the swings for sale, and advertised to hang them free of charge to the purchaser, but said advertisement formed no part of any contract of sale with purchasers of such swings, and that the free hooks and free hanging of swings for each purchaser when desired, as advertised, was but a gratuity or contribution to purchaser, and wholly without consideration, and that the hanging of the swing and furnishing of the hooks therefor was a gratuity by the appellant to the appellee in his said purchase of the swing; that the swing was hung by it with ordinary care on appellee's porch; that the rafters in the porch were concealed by the ceiling timbers, and that the rafters of the porch were defective and insufficient to sustain the swing, and which defects were concealed from it by the porch ceiling; that the appellee was charged with notice of all of such defects, and assumed all risks under the gratuity aforesaid. It denied liability, and alleged that the negligent use of the swing by the appellee contributed to the accident. the appellee did use ordinary care to ascertain whether or not the swing had been safely hung, that appellee's leg was broken as a result of the falling of the swing, that appellee was not guilty of contributory negligence, and that he suffered damages in the sum of $950. These were material issues raised by the pleadings and the evidence, and the jury's findings upon them clearly authorized the judgment rendered. This is true, even though it should be conceded that the hanging of the swing was a pure gratuity. Having undertaken to hang the swing, appellant thereby bound itself to exercise ordinary care to make it reasonably safe for the use to which appellee intended to put it. This view is supported by authorities cited by appellee. The rule is thus stated in 9 Cyc. 310: "The promise of a gratuitous service, although not enforceable as a promise, involves liability to use ordinary care and skill in performance." In Bailey v. Walker, 29 Mo. 407, the court, after announcing the well-established rule that a promise, to support an action, must be founded on a sufficient consideration, said: "If a man without any consideration promises to do a thing, and fails to do it, he cannot be sued for such failure; but if he does undertake it, and by negligence does it in a manner to cause loss to him for whom he is acting, he will be bound to make good that loss." [1, 2] Twenty-one assignments of error are Likewise the Supreme Court of New York found in the brief, but many of them present in Thorne v. Deas, 4 Johns. (N. Y.) 84, held in different form the same question. They that an action will not lie for nonfeaswill not, therefore, be taken up and discuss-ance of a gratuitous act, but stated the prined in detail. Appellant first complains of ciple we think applicable here thus: the court's action in refusing to give a special charge directing the jury to return a verdict in its favor. The proposition is: That "the petition basing the right of recovery upon breach of warranty to safely hang the swing as a part of the consideration of the sale of the swing and the evidence showing the hanging of the swing to be free of charge and a gratuity by the appellant, the petition does not support the judgment; that the averment of the cause of action based upon breach of contract and warranty is not supported by a liability arising upon a gratuitous service." The peremptory instruction requested was correctly refused. The appellee did not rest his case alone upon the allegation that appellant had breached its warranty to safely hang the swing. He alleged, independently of that claim, that appellant, having agreed to hang and having hung the swing, was guilty of negligence in hanging it; that such negligence proximately caused his injury, and for that reason he was entitled to recover. The case was submitted to the jury, upon ample testimony to authorize it, upon this issue of negligence; the claim based on the alleged warranty not being submitted in any form whatever. This had the effect to withdraw from the consideration of the jury any question of the appellant's liability by reason of the alleged warranty. "If the party who makes this engagement, enamiss, through the want of due care, by which ters upon the execution of" it "and does it damage ensues to the other party, an action will lie for this misfeasance." The witness Hal Howard testified that he had been vice president of the appellant, and that he had also acted as salesman; that he made the sale of the swing in question to appellee, and that he told appellee that the swing would be hung free; that they were hanging the swings at that time without any extra charge. He further said: ience of our customers; that was one of our "We hung these swings free for the convenways of advertising, securing business. In making this sale we intended it to be just as that advertisement said, the swing to be hung free of cost; that was the inducement that the house used toward inviting or securing the volume of trade." That he appreciated the duty imposed upon appellant by such an undertaking is plainly shown by this further statement: "We meant that that swing should be hung with reasonable safety; that reasonable care should be exercised by our men hanging it, to hang it reasonably safe." We do not wish to be understood as holding that the evidence fails to show that the undertaking of appellant to hang the swing was without any consideration to support it. The judgment of the trial court, for the reasons stated, being supported, whether there was or was not any such consideration, it is useless to decide that question. [3, 4] There was no material error in refusing to give appellant's special charge, to the effect that the burden of proof was on the appellee to show want of negligence on his part under special issue No. 2 in the main charge. The case, as hereinbefore stat ed, was submitted on special issues, and the court instructed the jury that: "The burden of proof is on the plaintiff to make out his case by a preponderance of the evidence; this the law requires him to do, to entitle him to recover." This was sufficient. If for any reason the special charge should have been given, the error, if any, in refusing it, was not at all calculated to cause the jury to render an improper verdict. As said by this court in Phoenix Land Co. v. Exall, 159 S. W. 486, the doctrine of ultra vires, "when invoked for or against a corporation, should not be allowed to prevail when it would defeat the ends of justice or work a legal wrong." The hanging of swings, as disclosed by the record, was regarded by appellant, and evidently was, a natural and profitable incident to its authorized business, and it cannot here avail itself of the plea of ultra vires. [6] The admission of the evidence referred to in the eighteenth assignment of error furnishes no sufficient ground for a reversal of the case. The assignment, however, relates to different and unrelated matters, is multifarious, and really not entitled to consideration. Among other things complained of in the assignment is the admission of testimony of the appellee and his wife to the ef[5] The next contention is that the trial fect that at and before the accident the apcourt erred in refusing to give the follow- pellee had a permit or license from the state ing special charge requested by appellant: to act as insurance agent for the American "You are instructed that the undertaking by Life Insurance Company, and that he had the defendant corporation to hang the swing al- suffered pecuniary loss by reason of inability leged was beyond the scope of its charter pow-to work for a considerable period of time ers, and was an ultra vires act, and that no liability can legally attach to said corporation for any damages that may have resulted therefrom." We think there is no merit in this contention. The appellant was engaged in selling furniture and swings, and the hanging of the swing in question was an act reasonably necessary and usually incident to the prosecution of its business. That appellant so regarded it is clearly manifested by the tesfimony of Mr. Howard, appellant's vice president, to the effect: as a result of his injury; the objection to the testimony being that such fact was not provable by oral testimony, since the original license, or certified copy thereof, from the insurance commissioner, was the best evidence. The objection was not well taken in this case. As pointed out by counsel, the appellee proved, as a predicate for the admission of the parol evidence objected to, that appellee had such license from the state and that the same had been lost or destroyed. There are no degrees of secondary evidence, and under the showing made the parol evidence was admissible. We have carefully examined all the assignments. We think none of them disclose re That a great many of appellant's customers were women; that their husbands would come home late, tired and that appellant hoped to put up these swings and relieve them of that extra trouble; that "we thought in doing so we would gain their appreciation, which would be evidenced later in buying goods there. The Rick Fur-versible error, and the judgment of the disniture Company wanted them to buy goods there. These advertisements were business transactions of ours." trict court is therefore affirmed. Affirmed. |