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(222 S.W.) that as conferred it subsist not impaired. ( name, retaining possession until note should Full recognition of this ought to be attributed be paid, apportioning dividends to subscriber to the makers of the law which comprised the from date of making certificate, recognizing charter. Laws are to be interpreted in the subscriber's proxy as valid, and sending him light of the purposes they are intended to notices as a stockholder, the transaction was

violative of Const. art. 12, § 6, and Rev. St. accomplish.

1911, art. 1146. The taxing power conferred by the charter for general purposes of $1.75 on the $100 val.

Error to Court of Civil Appeals of Eighth uation was, in the exact language of the pros Supreme Judicial District. vision, to be inclusive of "the school tax that may be levied by the board of trustees of pub- Suit by C. E. Pruett against the Cattlelic schools, as provided in this Act.” It was men's Trust Company and another. From not to be inclusive, in addition to the school judgment for plaintiff, defendants appealed tax authorized by the Act, of all possible to the Court of Civil Appeals, which reversed school taxes, then unknown and hence wholly and rendered judgment for the named deuncertain, which might be authorized by fu- fendant (184 S. W. 716), and plaintiff brings ture changes in the Constitution and laws. error. Judgment of the Court of Civil ApThe only school tax authorized "as provided peals reversed, and judgment of the trial in the Act” was a maximum tax of 50 cents court affirmed on recommendation of the on the $100 valuation. The taxing power for Commission of Appeals. general purposes of $1.75 on the $100 valuation was therefore to be subject to diminution C. Belcher, of Del Rio, and C. R. Sutton, of

Lea, MeGrady & Thomason, of El Paso, C. to the extent of the then authorized 50 cent

Marfa, for plaintiff in error. school tax, but no further. This is plainly the

A. H. Kirby, of Abilene, for defendants in meaning of the charter provision. The construction urged by the Attorney General would leave the City's general taxing power undetermined by definite law, and in the pre- the questions involved in this case, see the

SADLER, J. For a full statement showing carious position of being measured wholly by decision of the Court of Civil Appeals. 184 future authorized school taxes. In our view, it is measured by the charter, as it ought to

S. W. 716. be. Its limits are defined by the declaration

In the trial court, Pruett sought a canthat its maximum amount shall be $1.75 on cellation of the notes in question on two thethe $100 valuation, less the authorized school

ories: (a) Fraud in the inception of the tax of 50 cents, or, in other words, $1.25 on

transaction; and (b) the invalidity of the the $100 valuation.

notes under the provisions of article 1146 of [2] The objection made to the $400,000 wa

the Revised Statutes, and of article 12, secter works bonds is that they, with their ne- tion 6 of the Constitution.

On the trial, cessary special tax, were voted at an election the issue of fraud and its waiver was submitwhere only qualified property tax paying vot- ted to the jury by special issues. The issue ers, instead of simply qualified voters, were al- as to the validity of the notes under the stat. lowed to participate. We do not regard the ute and Constitution was determined by the objection as tenable. It was necessary that court.

The jury verdict was favorable to the special tax for these bonds have the ap

the contention of Pruett. The court conproval of the qualified voters of the City at strued the transaction as being lawful under an election ordered according to the refer- the statute and Constitution; in other words, endum provisions of the charter. Under the that plaintiff could not avail himself of that referendum provision of the charter govern

defense. Judgment was rendered, on the ing bond elections, as this one was, only findings of the jury, for the plaintiff, cancelqualified voters paying taxes on property in ing the notes. The defendants appealed, atthe city may vote in such an election. Neces- tacking the findings of the jury on the quessarily, at a bond election ordered according to tion of fraud and its waiver, and the judg. that provision, only such voters were entitled ment of the court thereon. Plaintiff filed a to vote,

cross-assignment to the conclusion of the The mandamus is granted.

court in depriving him of his defense, under the view that the notes were given by him and accepted by the Cattlemen's Trust

Company, in payment for the stock issued. PRUETT V. CATTLEMEN'S TRUST CO. et al.

On appeal, the Court of Civil Appeals held (No. 115–2975.)

against the findings of the jury on the ques. (Commission of Appeals of Texas, Section B. I tion of the waiver of fraud in the inception June 16, 1920.)

of the subscription contract, but on the crossCorporations Ema 99(1)-Issuance of stock for assignment of Pruett denied relief, and renote violative of Constitution and statutes. versed and rendered judgment for the de

Where a bank took a note for a subscription fendants in the court below. We think the to its stock, which it issued in the subscriber's judgment of the trial court, although pro

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

ceeding upon an incorrect theory of the law, 12. Adverse possession 106(4)—Possessor, correctly determined the rights of the par

though technically a trespasser at first, may ties and should be affirmed. The Court of

secure title by limitation. Civil Appeals, in discussing this question,

Owner under a grant which conflicted with

and extended over on an earlier grant from says:

the state was technically a trespasser, but “The question presented by appellee in his when he opened a field thereon and continuously cross-assignment has recently been very fully cultivated it and used it for the purpose for considered and passed upon by the Ft. Worth which it was adapted for the period prescribed Court of Appeals, and we think correctly so. by the statute of limitations, he lost the charin the case of the Cattlemen's Trust Company acter of trespasser and became owner. of Ft. Worth v. Turner, 182 S. W. 438, not yet 3. Appeal and error 1094 (2)—Finding apofficially published. In that case the facts

proved by Court of Civil Appeals conclusivo are the same as in this, and we think we need

on Supreme Court. not restate them here. In that case the court holds that the transaction had between the where the facts necessary to constitute limita

On a claim of title by adverse possession, trust company and Turner does not contravene tion were found by the trial court and approved the provisions in our Constitution and laws."

by the Court of Civil Appeals, the Supreme

Court was precluded from passing upon the On writ of error, the judgment of the question ; it being purely one of fact. Court of Civil Appeals for the Second Dis

4. Vendor and purchaser w 239(6)-Limita. trict in Cattlemen's Trust Co. v. Turner was

tion title prevails over paper title secured reversed, and it was there held that the stock

when land was vacant. was issued in consideration of the notes, and

Where a person has in fact held land long that the transaction was violative of the enough to give him title by limitation, it is Constitution and statutes of this state. Tur- good against a claimant under a paper title, alner v. Cattlemen's Trust Co., 215 S. W. 831, though at the time of the purchase the land is not yet [officially) reported.

vacant and there is no trace of the prior adWe think the decision there decisive of the

verse possession. question involved here, and that the judg- 5. Adverse possession Om 103—Owner of subment of the Court of Civil Appeals, on the

sequent conflicting state grant held to acquire

title by limitation as against holders of prior authority of that case, should be reversed,

grant not in actual possession, and the judgment of the trial court affirmed,

Where there was a conflict between sur. and so recommend,

veys of two grants by the state and holders of

junior grant were in actual possession of the MONTGOMERY, P. J., did not sit in this part of the land in conflict, cultivating and using

it, claiming to the extent of the boundaries of

their recorded deed, and there was not shown PHILLIPS, C. J. We approve the judg- prior grant by the owners of that title and the

any actual possession or use of any part of the ment recommended in this case, The ques- | possession by the owners of the subsequent tion of Pruett's not being entitled to relief grant was exclusive, open, adverse, and noto. against the transaction as prohibited by the rious, it matured into a legal title by the limiConstitution because of his equal participa- tations statute. tion in it, is not made in this case.

6. Adverse possession 84—Good faith pos. session vests possessor with title.

Every owner of land is presumed to know its boundaries, take notice when they are invaded, and when such invasion arises by reason of

field notes and muniment of title, issued to HOUSTON OIL CO. OF TEXAS V. OLIVE the adverse claimant's grantor and not from STERNENBERG & CO. (No. 169–3178.) the intent of such claimant to acquire lands

belonging to another by limitation, 10 years' (Commission of Appeals of Texas, Section B. possession and use vests such claimant with June 9, 1920.)

complete legal title. 1. Adverse possession 103– Possession of Error to Court of Civil Appeals of Eighth

part of overlap held sufficient to give con- Supreme Judicial District. structive possession of whole.

Action by Olive Sternenberg & Co. against Where there was an overlap of 48 acres and a field of 50 or 60 acres, cultivated and oc

the Houston Oil Company of Texas. A judg. cupied by the junior patentee, who resided on

ment for plaintiff was afirmed by the Court the junior patent, occupied about 15 acres of of Civil Appeals (200 S. W. 232), and the dethe overlap, the remainder being on the junior fendant brings error. Judgment of Court of patent, such possession of part of the overlap Civil Appeals affirmed. being in good faith, was sufficient to give constructive title to all the overlap, notwithstand. Williams, Lee & Hill, and Fred L. Williams,

H. 0. Head, of Sherman, and Kennerly, ing the claim that such possession did not extend beyond actual possession, because merely all of Houston, for plaintiff in error. incidental to possession of the residence of the Blount & Strong, of Nacogdoches, for de junior patentee on the junior patent.

fendant in error.


(222 S.W.) KITTRELL, J. On December 20, 1847, the and also conveyed by the same deed a part of state issued patent No. 406 to Lewis Bouillet the Bouillet described as follows: to 320 acres of land located in Hardin coun

"Beginning at the northwest corner of the ty, being a body of land 1,344 varas square. Bouillet; thence south along the west line of

At an earlier date-but exactly when the the same and the east line of the Landis, to
record does not reveal the state had issued the branch south of the homestead place of
a patent to F. P. Elliott to a league survey Mathias Bracken, deceased; thence down said
lying east of where the Bouillet 320-acre sur-branch to Beaumont creek, and down Beau-
vey was located, and it was evidently in- mont creek to the east line of said Bouillet sur-
tended that the east line of the Bouillet and vey; thence north to the northeast corner of
the west line of the Elliott should be coin the said Bouillet survey; thence west to the
cident, but the former as located, or at least beginning, the quantity of land not being ex-

actly known."
as patented, lapped over on the Elliott about
600 varas. On December 14, 1859, Bouillet,

Although upon the trial there was a surfor a recited consideration of $1,500, sold veyor on the stand, it was not shown how the 320 acres to M. Bracken, who at once far it is from the junction of the branch and moved on the same.

creek to the east line of the Bouillet, nor It appears that at that time no person how far the creek is from the south line, knew of any conflict between the Bouillet nor what the area of land is between the and the Elliott. J. D. Bracken, son of W. G. branch and creek, nor what the area be Bracken, and grandson of M. Bracken, testi-tween the creek and the south line is, and fied upon the trial that the first time he even plaintiff in the court below (defendant knew or heard of any Elliott line in conflict in error here) does not allege the area, the with the Bouillet was in 1905. It is shown description in the petition being substantialFor at least suggested-by the testimony ly as follows: that a survey, made by one Doncetti within

"Beginning at the southwest corner of the the comparatively recent past, first revealed the conflict. One Monk appears to have liv- line of the Elliott league, at 1,344 varas cor

Bouillet, at 703 varas cross the supposed west ed on the land before Bracken bought it, ner, being the southeast corner of said Bouillet and there was testimony that the place ap- survey; thence north with the east line of said peared to have been cultivated for some Bouillet survey to Beaumont creek and corner; years before Bracken moved on it. After a thence up said creek to mouth of branch which lapse of more than 50 years the memory of runs south of the old Bracken homestead place, witnesses as to lines and locations, and the and corner; thence up said branch crossing Elsize of the fields and lots of cleared and used | liott west line to the west line of said Bouillet land and the exact location, is very indis- survey and corner; thence south with the west tinct, but it is evident that Bracken's house line of said Bouillet survey which is also the

east line of said Landis survey, to the place was on the Bouillet land proper, while some of beginning.” where between 5 and 15 acres was east of the true west line of the Elliott. Defendant

The defendant, plaintiff in error here, disin error by regular chain of title owns the claimed as to all the land sued for except Bouillet or Bracken land, while plaintiff in that part which is in conflict with the Elliott error holds the Elliott by regular chain of ti- and Hampton leagues. None of it appears to tle. The map which was part of the state have been in conflict with the latter league. ment of facts makes clear the relative loca- It pleads also that if any adverse possession tion of the Bouillet and Elliott surveys, as it

was held by plaintiff as alleged, it was indoes also the description of the land claimed effective by reason of limitation and pleaded by plaintiff in the action.

the 3, 5, and 10 year statute of limitation, M. Bracken died in March, 1872, leaving but as to that defense concededly failed to surviving him his widow, Mary L. Bracken, make necessary proof. The record reveals and one child, a son, W. G. Bracken, and on no evidence of actual possession of any part April 24, 1872, Mrs. Bracken made to her of its Elliott by defendant below. said son a deed to the south half of the Jo

Defendant recalled J. D. Bracken, son of seph Landis survey lying west of, and adjoin- w. G. Bracken, and proved by him that in ing, the Bouillet, and also to that part of the 1878 his father conveyed to him and his Bouillet described as follows:

sister each a tract of land out of the east • which lies south of end of the Bouillet, beginning at the southBeaumont creek and the branch thereof in front east corner, running north for the tract conand south of the homestead place of the late veyed to the witness, and basing that conMathias Bracken, deceased, the quantity of land veyed to his sister on the north end of the south of said branch and creek being as yet unascertained."

tract conveyed to witness, and the witness

testified that there were no improvements on On the same day the son executed to his either tract at that time. It was in evidence mother a deed to the north half of the also that the fences had disappeared, but the Landis--to the south half of which she had old rows and furrows could be seen in the executed to him a deed, as above stated-fields east and south of the house.

"All that part

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It may serve a useful purpose to say in ( cited to W. G. Bracken, her son, he immedithis connection that the field notes in the ately went into possession of the land condeed just above referred to as having been veyed. He also found that prior to the made in 1878 by W. G. Bracken to his son, death of M. Bracken he had cleared a feld J. D. Bracken, were as follows:

south of the branch which is the present di. "Beginning at the southeast corner of said viding line between the plaintiff and M. L. Bouillet survey; thence west along the south Patterson (formerly Bracken), and that said boundaries of said survey 225 varas; thence field had been continuously cultivated from north 600 varas; thence east 225 varas; thence said time during the war up to the death of south 600 varas to the beginning."

M. Bracken, and that immediately after the Within those limits are included practical death of M. Bracken, W. G. Bracken

, his ly 24 acres.

It evidently includes a body of son, went into possession of said field south land 225 varas wide and 600 varas long, the of the branch and east of the Elliott west southeast corner of which is the southeast and enjoy the land situated on said conflict

line, and continued to use, cultivate, possess, corner of the Bouillet survey and its east

until 1879. These findings are amply supboundary is the east boundary of the Bouil

ported by the evidence. let. All the interests of the heirs of W. G. Bracken, grandchildren of Mathias Bracken, Bracken had matured title under the 3-year

The court's conclusion of law was that M. are owned by defendant in error, and when

statute of limitation to all of the Bouillet the action out of which this appeal a rose was brought in January, 1914, the deed survey, and that W. G. Bracken had maturabove recited to J. D. Bracken from his fa- ed title to the part south of the branch under ther had been executed nearly 36 years.

the 10-year statute of limitation. The judg. The field notes of the deed made on the ment of the district court was affirmed by

the Court of Civil Appeals. same day by W. G. Bracken to his daughter, Mrs. Herrington, were evidently incorrectly

Opinion. copied into the statement of facts, in that one or more calls are missing. It was evi. Plaintiff in error bases its whole case on dently intended to put that survey, so to the following assignment of error: speak, on the top of the survey deeded to J. "The court erred in not rendering judgment D. Bracken, as in the statement of facts it for the defendant as the owner of the record tiappears that both the deeds were offered at tle to the senior survey, because, as shown by the same time, and it was stated by counsel the undisputed evidence and findings of fact, that they conveyed two tracts 225 by 600 the possession of the owners of the Bouillet survaras, the east boundary of both being the vey of that part of same in conflict with the El

liott league consisted entirely of the possession, east boundary of the Bouillet survey. Not

cultivation, and use of a field which lay partly withstanding the incorrect copying of the

on the Elliott and partly off of same, and was field notes of the second deed, it is made evi- adjoining and was incidental to the residence, dent that the two deeds contain a body of houses, and all other improvements which were land 1,200 varas north and south by 225 va- situated entirely without the Elliott league, and ras east and west, or about 48 acres, all of such possession as was held on the Elliott league which is in that part of the Bouillet survey was merely subsidiary, and incidental to, and which overlaps and conflicts with the Elliott. therefore referable to, the home and place From the deed made to W. G. Bracken by tinct to afford a basis for the acquisition under

residence, and was therefor insufficiently dishis mother and the deed made by her to him the statute of limitations of more of the adit is evident that it is the land she conveyed joining survey than was actually so possessed to him out of the Bouillet that is sued for, and used throughout the statutory period." and it is through his heirs, the grandchildren of Mathias Bracken, that defendant The authorities cited in support of the in error claims title.

above contention are the following: Hill v. The case was tried without a jury, and the Harris, 26 Tex. Civ. App. 408, 61 S. W. 820: court found that M. Bracken went into pos. Holland v. Nance, 102 Tex. 177, 114 S. W. session of the Bouillet about January 1, 316; Bailey v. Kirby (Civ. App.) 195 S. W. 1860, and immediately commenced the culti- 221. vation of the field on said survey, consisting The holding in the first case cited was, unof 50 or 60 acres, and that within said field der the facts manifestly correct, and the Suwas about 15 acres of land on the conflict preme Court by refusing writ of error so adbetween the Bouillet and the Elliott surveys, judged, but it is not controlling, and is inand that said field was continuously held deed but to a small, if to any, extent applicaand possessed and cultivated from January, ble to the case in hand. 1860, until some time in 1872, when Mathias In Holland v, Nance the appellee got bis Bracken died, and that his widow continued fence by accident of error a few feet over to cultivate, possess, and enjoy the 15 acres on the adjoining survey, and when he discoruntil 1881.

ered that fact, he got a deed (from some He found also that when Mrs. Bracken, party who had no title) to a large part of the

His pos

(222 S.W.) and paid taxes according to its boundaries and exercised dominion over it. for 5 years, but never moved his fence or session was open and notorious, and was gave any other notice of his intention to hostile, because the patent under which he claim title to any part of the adjoining sur-claimed and his deed were of record, and rey. The writer of this opinion was judge be built and improved within the boundaries of the district court in which the case was by which he had bought. tried, and he held that Nance did not ac- [2] He was of course as to the land lying quire title by his deed and payment of taxes, beyond the line which conflicted with the which conclusion, though disapproved by the Elliott, technically a trespasser; but when Court of Civil Appeals, was later upheld by he opened a field thereon and continuously the Supreme Court.

cultivated it and used it for such purposes In Bailey v. Kirby, Bailey (to use the lan- as it was adapted to, for the period prescribguage of counsel for appellee, which is quoted by the statute, he lost the character of a ed by the Court of Civil Appeals) “purposely | trespasser and became the owner. Charle v. straddled the line between the Irion (for Saffold, 13 Tex. 111; Craig v. Cartwright, 65 part of which survey he sued) and the Tex. 422. Thompson, subjecting an insignificant por- (3) While the test of J. D. Bracken tion of the Irion to a purely incidental use concerning the conveyances made to him and under such circumstances as to avoid the ap- his sister in 1878 and the field notes of the pearance of an adverse claim upon his part deeds as revealed in the record was persuato the entire Irion survey.” The court cor- sive testimony against the claim of improverectly held that Bailey could not by such ments and use, as alleged by plaintiffs, yet method and in such way perfect title to 160 it is not conclusive, and the facts necessary acres of the Irion by limitation.

to constitute limitation having been found The case of Fielder v. Houston Oil Co. by the trial court, and that finding having (plaintiff in error in this action), 208 S. W. been approved by the Court of Civil Appeals, 158, is not cited by counsel, but it is a case we are precluded from passing on the quesmost apposite to the instant case. In a tion, as it is purely one of fact. very clear and able opinion by Justice Mont- [4] Furthermore, such a situation is congomery be held in that case that the actual trolled by the holding that where a person possession of a few acres of a tract of land has in fact held land long enough to give by inclosure with other land owned by the him title by limitation, it is good against a claimant is insufficient to put the owner (of claimant under a paper title, although at the other land) upon notice that any claim the time of the purchase the land is vacant of adverse possession is asserted beyond that and there is no trace of the prior adverse actually fenced. Such holding is in strict possession. McGregor v. Thompson, 7 Tex. accordance with that in Bracken v. Jones, 63 Civ. App. 32, 26 S. W. 619. Tex, 184, a case which has been consistently {5} Regardless of the question of conflict adhered to, because it is in harmony both between the two surveys, the Brackens, unwith sound law and sound morals.

der and through whom defendant in error [1] To our minds there is an obvious dis- claims, were in actual possession of parts of tinction between all the cases cited and the the land in conflict, cultivating, using it, and instant case. The Brackens never conscious- claiming to the extent of the boundaries of ly put any improvements on any land which their recorded deed, and there not being they did not believe belonged to them, be shown any actual possession or use of any cause it was included, as they believed, in part of the Elliott by the owners of that the boundaries by which they bought from title, the Bracken possession was exclusive, the original grantee of the land. It was de- and was open, adverse, and notorious, and scribed by metes and bounds in the patent, by lapse of time matured into a legal title. and by said metes and bounds was conveyed

We are of opinion that the case in hand is by onerous title to Mathias Bracken, who did not within the rule as laid down in the cases not know that it in any extent conflicted cited, and in other cases decided by this with the Elliott.

court. He evidently was not seeking, as was the

If the east line of the Bouillet and the claimant in most, if not all of the cases cited west line of the Elliott had been in fact coabove, by devious and insidious methods to incident and there had been in consequence acquire by limitation land that he knew was no conflict, and Bracken had then built his not included in the boundaries of that which house on the Bouillet, but had extended his

field a few acres over on the Elliott, a differIt is true bis land overlapped on the Elli-ent case would be presented; but so far as ott, and that while his house was on the he was concerned he manifestly had no intenBouillet west of the conflict, 15 acres of his tion of putting his improvements anywhere field was east of the conflict, yet he knew of except within the boundaries by which he no couflict but supposed his field was in fact had bought, and he was only claiming title on the Bouillet survey (which was the case), to land which he was justified by the state's and, so believing, cleared it, cultivated it, patent in believing belonged to him,

he had bought.

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