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and went with him to the same garage | knife and key, testified that they appeared where deceased had had said repairing done, to have fallen out of deceased's pocket as he and woke up the boy there, and appellant was dragged along by appellant. The deinquired for a key to the car. The boy had ceased's suit case was found in the car, but none, and refused to go with him to start open, and the witnesses described the things the car or bring it in. Appellant was very therein as if they had been pulled out in much excited when he saw and first talked search of something in it. Deceased's body, with the watchman. When he could get no the car, and surroundings were searched for key for the car, he said he was tired and money. Not one cent was found. The sleepy, and inquired for a hotel. The ground at the car and all around and about watchman directed him to one close, but he it was searched for evidence of any struggle did not go to the hotel; instead he struck or fight between appellant and deceased. No out in the country easterly afoot. About 2 evidence of such a struggle was found. The o'clock that night he stopped at a farmer's ground showed no evidence of any struggle about a mile and a half from Lancaster, but whatever. When appellant left the body, left the farmer's very early next morning returning to Lancaster as stated, he took before breakfast, declining to stay to break- the watch and pistol of deceased, and must fast. About 7 o'clock he reached a town, also have taken all of the money that deevidently on the Interurban from Dallas to ceased had. And doubtless appellant would Corsicana, caught a car, and went to Dallas. have taken the car if he could have found There he pawned deceased's watch, not in or procured a key with which to start it. his name, but in the name of Taylor, and The evidence would justify the conclusion procured $5 on it. In his flight attempting that appellant would have robbed deceased, to make his get-away he is shown to have not only of his pistol, watch, and money, gone from Dallas south, stopping for a time but the car also. When arrested the officers at different places, finally reaching Victor- found on him the pawn ticket for said ia, to which place he was traced, found, ar- watch. He swore that when he left the rested, and taken back to Dallas. farmer's that morning he threw the pistol away at a given place. After being arrested, he told the officer of this, and went with the officer to the place, found the pistol which was identified as that of deceased where he said he had thrown it.

Appellant testified that deceased drank heavily during the whole trip, and especially from the time they reached Dallas to the very time when he killed him. He was in no way corroborated in this by any witness. The proof by the state was to the effect that deceased sometimes drank some, but little at any time, and did not get drunk. Appellant also swore that, after they left Dallas, before reaching Lancaster, deceased began cursing and abusing him. The boy at the garage where they stopped just before 12 o'clock testified that deceased was then entirely sober, showed no sign of drinking, that he was right at him, smelled his breath, and that his breath was free from any odor of liquor. That appellant and deceased at that time seemed to be good friends; were sociable and nice to one another.

Just about daylight the morning after they were in the garage at Lancaster, a country boy discovered an empty automobile about a mile and a half south of Lancaster, near a stopping place on the interurban railway. This attracted his attention, and he began looking for some one, and discovered some distance off, the body of a man dead. This was shown by uncontroverted testimony to be the body of deceased. He gave the alarm. The officers and other persons soon appeared upon the scene. They discovered that the deceased had been shot somewhat in the back of the head behind and near the top of the ear. The ball ranged from the side of entry to the other side of the head, but stopped before emerging. It was extracted by the doctor. This shot killed the deceased. A pool of blood near the automobile was found where deceased's body fell when shot. Appellant picked him up by his feet and dragged the body some distance, and threw it into a ditch beyond a fence in high Johnson grass, where it was almost, if not entirely, concealed from the Appellant's claim, further, was that, just railroad and the public road crossing it. before and when they reached the point There was no key in the car, which was nec- where the car was stopped and found next essary to start it. The car was later haul-morning, and where appellant killed deceased from where it was found to Lancaster. ed, in substance, deceased was drinking It was deceased's car. The officers and other citizens searched the car and all around it. They found no whisky bottles anywhere in or about the car. They searched for that purpose. In tracking where appellant had dragged the body they found near the body the knife of deceased, closed, not open. Along the same route later in the day the key to the car was found in the dust near where the body had been dragged. The wit

very heavily

and very frequently, was drunk, was very abusive of him, cursing and denouncing him in various ways; that something got the matter with the car; they stopped, and deceased got out to fix it, and that while out deceased got his pistol and threatened and attempted to kill him; that he knocked him down with his fist, got the pistol away from him, and took it himself; that deceased got up and came at him with

cut and kill him; that the interurban car | shown her and asked whose it was, "It is one was coming along about this time, making just like his (deceased's,)" and in further anconsiderable noise, and that he struck de- swer to the question, "In your judgment is ceased on the head with the pistol in self- that your husband's watch?" she replied, defense to keep deceased from killing him "Yes, sir." This evidence was clearly admiswith the knife, and that in some way, he sible. Harris v. State, 62 Tex. Cr. R. 239, did not know how, the pistol was discharg- 137 S. W. 373. ed; that the noise of the car prevented him from hearing the shot, and he did not know at the time he had shot deceased; that in order to get deceased where he could not be discovered, he took him by the feet and dragged him and put his body where it is stated, above; that in dragging him along the deceased kicked and holloed at him. After he had killed deceased he swore that he had written to his father saying:

"I am wanted now on a murder charge; have never been caught yet, so don't think hard of me for telling the truth and pray for me. Don't let this be known, because if I am caught I will be hung sure."

It is not undertaken to give in detail the testimony nor all of the testimony of the various witnesses. However, it is amply sufficient to show without doubt that appellant killed deceased for the purpose of robbing him, and that he did not kill him in self-defense. The evidence is amply sufficient to sustain the verdict.

The court gave a full and complete charge, submitting every issue in appellant's favor which was raised by the testimony, to which charge no objection was in any way made.

[2] Appellant has three bills of exception. They were all filed, however, long after the time the court had allowed for filing them. The state makes a motion that they be struck out and not considered because filed too late. The state's motion is well taken, but because this is a death penalty case we have read each of the bills; and, if they could be con

sidered, they would present no reversible error. The first shows that he objected to the testimony of Mr. Bendel, which was to the effect that he was in the jewelry business, employed by Joseph Samuels Company, who were also conducting a jewelry pawn brokerage business in Dallas; that he had seen the

watch which had been introduced in evidence as the deceased's watch, and that he had also seen the pawn ticket therefor; that the pawn ticket was issued by said Samuels firm, and was identified by him as having been issued by said Samuels firm to some one for $5 borrowed upon said watch. He could not say who pawned it; did not know appellant, and did not know that he had pawned it. The court in allowing this bill qualified it by stating, which was a fact, that appellant while

on the stand testified:

"I pawned this watch as my property with Joe Samuels under the name of George W. Taylor."

[4] The other bill shows that the sheriff was excused from the rule by both parties when the trial began; that thereafter and after several witnesses had testified appellant objected to the sheriff further remaining in the courtroom, stating to the court that the sheriff was consulting with the district attorney, and thereupon moved the court to place the sheriff under the rule with the other witnesses in the case, which the court refused. The court allows this bill with this qualification:

the time of the trial of the case, and the court"There was a great crowd present during all room was densely crowded, and in the opinion of the court the presence and the assistance of the sheriff in keeping order and properly controlling the trial of the case absolutely demanded the that reason the court exercised its discretion in presence of the sheriff in the courtroom, and for refusing to have the sheriff of Dallas county placed under the rule."

This presented no error. Hahan v. State, 73 Tex. Cr. R. 413, 165 S. W. 218. The judgment is affirmed.

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[5] It is well settled that in order to be considered by this court, it is necessary that the statement of the evidence heard on such motion shall be filed during the term of court at which the trial occurred. Reyes v. State, 196 S. W. 533, where a large number of these

cases are collated. Hence if this statement was filed in the lower court after the adjournment for the term, it could not be considered. However, under the circumstances, this being a death penalty case, we have read this statement of facts. It is amply sufficient to show that there was no separation of the jury, as contended by appellant in his motion. The

Under the facts and record in this case this trial judge expressly states that he found bill would show no error.

[3] In another bill appellant objected to the testimony of Mrs. Morrell, the wife of the de

from this testimony that there was no separation of the jury. It is unnecessary to detail the testimony. So that, if this statement was

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 authorized 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.

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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 not aid him in acquiring adverse possession of the lot on which he meant to pay taxes. 3. ADVERSE POSSESSION 60(4) — SUBORDINATE POSSESSION CHANGE IN CHARACTER. Where an occupant of land took possession in subordination to a better title, 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 possession in him, if he sought title by limitation.

4. ADVERSE POSSESSION 79(1)-BREAKING OF SEISIN-TAX DEED.

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."

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.]

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 Park addition to Sherman, Tex., and whether 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 Morrison 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.

Suit by F. L. O'Hanlon against W. A. Morrison. From 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.

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 HUFF, C. J. This is the second appeal of summer. He placed lumber thereon, his this case, and this time from an instructed mower, wagon, and buggy; in fact, all the verdict. The former appeal is reported in evidence of the possession that he ever exer187 S. W. 692, to which reference is made cised over the lot were the same before he for a more detailed statement of the case. made any claim of title as they were aftThe record in some particulars of this appeal | erwards. 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.
(No. 7903.)

(Court of Civil Appeals of Texas. Dallas. Feb.
9, 1918. Rehearing Denied March 23, 1918.)
1. JUDGMENT 18(2)-ACTION FOR INJURIES
-SUPPORT BY PETITION.

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 42 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 joists were 1x4 timbers. There is no proof 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 2. NEGLIGENCE 2 LIABILITY GRATUI- Support the swing. Shortly after the swing TOUS SERVICE. 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 use to which the buyer intended to put it. 3. TRIAL

-

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 COMPANY-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 EVIDENCE-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

that had been screwed through the ceiling of the porch and into the joists. This hook 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.

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

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