time when plaintiff was injured by it. We cannot, therefore, resist the conclusion that the case was one for the jury, and not for the court.

The defendant further insists that the plaintiff was guilty of contributory negligence in striking his maul against that in the hands of another employé, but, as the foreman ordered plaintiff to use it in that way, we cannot discover that in obeying this order he was guilty of contributory negligence. The plaintiff had the right to rely on the defendant's superior knowledge and judgment as to the strength of the maul, and its adaptability to the use which he was directed to make of it.

The defendant's foreman having directed the plaintiff, in case he found a bent or "goose-neck" spike, to straighten it up by inserting a maul between it and the rail, and then striking it with another, this was, in effect, an assurance that it was safe to handle the mauls in that way. The plaintiff knew, to a certain extent, of the defect in the head of the maul; but he did not know of the danger to which he would be subjected by reason of the defect which the foreman knew or would have known had he discharged his duty towards plaintiff. Sullivan v. Railroad Co., 107 Mo. 66, 17 S. W. 748, 28 Am. St. Rep. 388. The plaintiff was an ignorant and illiterate man, not even able to write his name; young, being but 22 years of age; and having no experience in the use of mechanical appliances, beyond that acquired during the 25 days he had been in the defendant's employ; and we find nothing in the evidence to warrant the inference that he either knew or ought to have known that the maul furnished him was unfit or not intended to be used for straightening bent or goose-neck spikes by striking said maul against another, as ordered by defendant's foreman, or that the plaintiff knew, or ought to have known, the danger to be thereby incurred, or that he appreciated the risk incidental to such use; and therefore defendant cannot, as a matter of law, hold him guilty of contributory negligence, or that he assumed the risk. Beach, Cont. Neg. § 68; Railroad Co. v. Myers, 18 U. S. App. 569, 10 C. C. A. 485, 62 Fed. 367; Murtaugh v. Railroad Co., 49 Hun, 456, 3 N. Y. Supp. 483. And as to whether the plaintiff's injuries were occasioned by striking a spike with his maul, or by striking it against another, was a controverted issue of fact for the jury. Duerst v. Stamping Co., 163 Mo. 607, 63 S. W. 827.

The defendant's seventh instruction was by the court modified and then given. It is as follows: "The court instructs you that the plaintiff was only justified in using the maul furnished him for the purpose for which it was intended, or for such purpose as was authorized by defendunt; and if you further find from the evidence that it was not designed or intended that such mauls should be used by striking one against another, and

that such use of the mauls was liable to cause pieces of one or the other of them to break and fly into the air, thereby endangering the persons using them, and that a person of ordinary care and prudence, engaged in the business of laying railroad track, would not have so used one of such mauls, unless thereto directly authorized by defendant, then if you further find from the evidence that the plaintiff was injured by a piece breaking from one of said mauls and striking him in the eye, in consequence of his striking the maul which he was using against another maul in the hands of a co-employé working with him at the time, then the plaintiff was guilty of such negligence as precludes a recovery, and your verdict must be for the defendant." The italicized words indicate the modification just referred to. The defendant objected that the amendment shown by the italics enlarged the plaintiff's right to recover beyond anything alleged in his petition, and was to that extent erroneous. We are unable to perceive that the modification was not within the limits of the issues tendered by the petition, but, if so, still there was no error in giving it, for the reason that the evidence on which it was based was received without objection. In such case the plaintiff was entitled to have the modification included in the hypothesis of the defendant's instruction. If the plaintiff was directed to use the maul in a particular way or in doing certain work, and was injured in so doing, he was not, as we have seen, thereby guilty of contributory negligence. The defendant not having objected to such evidence at the time of its introduction, it was too late afterwards by an instruction expressly or impliedly to do Freiermuth v. McKee, 86 Mo. App. 64; Leeper v. Paschal, 70 Mo. App. 117. And it was proper for the court to instruct the jury upon the legal effect of such evidence. Railroad Co. v. Moore, 37 Mo., loc. cit. 342. The cases referred to by defendant are not analogous to this, and what is decided by them has no bearing on the question under consideration. We think the court committed no error in modifying defendant's seventh instruction.

So.

After looking at the evidence in its entirety, we cannot say the case was not one for the jury, or that the verdict is not supported by it. It results that the judgment must be affirmed. All concur.

TURNEY V. EWINS.* (Court of Appeals at Kansas City, Mo. Jan. 5, 1903.)

APPEAL-DEFECTIVE ABSTRACT-SUPPLEMENTAL ABSTRACT-MOTION FOR NEW TRIAL-RECORD.

1. Where an abstract on appeal is defective, a supplemental abstract, curing the defects, may be filed at any time before submission of the cause.

Rehearing denied February 2, 1903.

2. The filing of a motion for a new trial is a matter of record proper, and, where it does not appear that such motion was filed, except from the bill of exceptions, the appeal must be considered as though no such motion was filed.

Appeal from circuit court, Jackson county. Action by Albert Turney against Frank P. Ewins. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Ellis, Cook & Ellis, for appellant. Brown, Harding & Brown, for respondent.

ELLISON, J. Plaintiff is an architect, and brought this action to recover for services he claims to have rendered the defendant. The judgment in the trial court was for plaintiff. Plaintiff has asked in his brief that the appeal be dismissed on account of defective abstract filed by defendant, in that It did not set out or recite that a judgment was rendered, or that a bill of exceptions ! was filed, or that time was extended for filing. Afterwards defendant filed a supplemental abstract showing these things, and plaintiff thereupon asks us to strike such last abstract from the files. Under the rulings of the supreme court an appellant may so supplement his defective abstract at any time before the cause is submitted. Lane v. Railway Co., 132 Mo. 11, 33 S. W. 645, 1128; Ricketts v. Hart, 150 Mo. 67, 51 S. W. 825. But such supplemental abstract, of course, must be such that, when taken with the principal abstract, the case will be abstracted as contemplated by the statute and the rules of court. In the present instance the original abstract was not only deficient in the matters above stated, but it is also deficient in that it is not made to appear that any motion for new trial was filed. The supplemental abstract fails to remedy this. There is a statement in the bill of exceptions that such motion was filed, but the filing of a motion for new trial is a matter of record proper, and is not evidenced in the bill of exceptions. It has no place in the bill of exceptions. Hill v. Combs, 92 Mo. App. 242; Crossland v. Admire, 149 Mo. 650, 51 S. W. 463; Lawson v. Mills, 150 Mo. 428, 51 S. W. 678; Warehouse v. Glasner, 150 Mo. 426, 52 S. W. 237.

The action of the court in sustaining or overruling a motion for new trial is a matter of exception, and the bill of exceptions properly shows-indeed, must show-a motion for new trial, and that it was acted on, and exceptions saved. But the evidence of the filing of such motion, under the rulings aforesaid, must be had in the record proper. Matters of mere exception belong to the bill of exceptions, and cannot be proven by recitation in the record. Nichols v. Stevens, 123 Mo. 96, 119, 25 S. W. 578, 27 S. W. 613, 45 Am. St. Rep. 514. On the other hand, matters of the record proper cannot be proven by recitation in the bill of exceptions. Authorities supra.

We therefore have no motion for new trial,

which disposed of the matters of exception complained of, and, not finding any error in the record, we affirm the judgment. All

concur.

THOMPSON v. DUTTON.

(Supreme Court of Texas. Jan. 19, 1903.)

DEED-EVIDENCE-ADVERSE POSSESSION.

1. A conveyance of land may be established by circumstantial evidence.

2. Where, in trespass to try title to 160 acres, defendant showed deed to about 9 acres of the tract, he could hold, under his plea of limitations, only so much of the land as was actu ally occupied by him; and where the evidence showed that the dwelling house was so continuously occupied he was entitled to a judgment for it, at least, though he also showed an adverse occupancy for 10 years before action was brought, and though the evidence did not identify the exact tract claimed by him.

Error to court of civil appeals of Third supreme judicial district.

Action by M. C. Dutton against Oscar Thompson. Judgment for plaintiff was affirmed by the court of civil appeals (69 S. W. 641, 996), and defendant brings error. Re versed.

J. A. Adkins, J. E. Shropshire, and F. M. Newman, for plaintiff in error. Jenkins & McCartney, for defendant in error.

GAINES, C. J. This was an action of trespass to try title, and was originally brought by the defendant in error to recover three quarter sections of land. There were several defendants in the original petition, but the plaintiff was not there made a party. However, by an amended petition filed December 12, 1887, he was made a defendant. The plaintiff filed her fourth amended original petition December 10, 1889, in which she dismissed as to all the defendants except Oscar Thompson (the plaintiff in error) and restricted her suit to a recovery of one quarter section only. The defendant thereupon disclaimed as to all the land sued for, except a specific tract of 9.733 acres, described in his answer by metes and bounds. As to the land claimed by him he pleaded not guilty and the statutes of limitations of three, five, and ten years. The action thus resolved itself into a suit to recover this small tract of little more than nine acres.

Upon the trial, the plaintiff introduced in evidence a patent from the state to herself as assignee of one J. A. Brooke to the land described in her last amended petition. This patent was dated November 6, 1889. The patent showed by its recitals that the land had been purchased by Brooke as school land under the act of April 24, 1874, that the purchase money had been fully paid, and that Brooke had transferred his title to the patentee December 9, 1884. The plaintiff then rested. The defendant introduced in evidence Brooke's application to purchase the quar

ter section, which was dated February 26, 1877; and it was agreed that the land was sold to him by virtue of his application, and that his obligation to the state for the unpaid purchase money was dated May 30, 1877. Defendant also introduced a deed to himself from one Burks to the 9.733 acres of land clained by him, dated October 11, 1892; also a deed to the same land to Burks from one Nunn, dated February 12, 1881, together with testimony showing that one Hardee took possession of this tract in May or June, 1877, and built a house and other improvements thereon, and that he lived there until the spring of 1878, and that when he left Nunn took possession. There was also testimony tending to show that Nunn had purchased the land from Hardee. The defendant also made proof of circumstances for the purpose of showing that Hardee had bought the land from Brooke at the time he took possession of and improved it; but no writing evidencing either a conveyance or contract of sale from Brooke to Hardee or from Hardee to Nunn was introduced. There was also evidence tending to show continuous adverse possession on part of Hardee, Nunn, Burks, and defendant Thompson from the time of Hardee's first occupancy until the defendant was made a party to the suit. The court instructed a verdict for the plaintiff. On appeal, the court of civil appeals (69 S. W. 996) first reversed and remanded the cause, but upon motion for a rehearing affirmed the judgment.

We are of the opinion that the court erred in instructing a verdict for the plaintiff. Since the judgment will be reversed, and the cause remanded, we must forbear a discussion of the evidence. A conveyance of land may be established by circumstantial evidence (Bounds v. Little, 75 Tex. 316, 12 S. W. 1109); and we deem it sufficient to say that in our opinion the evidence adduced by defendant tending to show that Brooke had sold the land to Hardee was such as to require a submission of that issue to the jury. The court of civil appeals in their first opinion held in effect that the trial court did not err in refusing to submit the question of a sale, but that there was evidence tending to support the plea of the statute of limitation of ten years, which required that that issue should have been left to the determination of the jury. However, upon a rehearing they held that in no event could the defendant hold any of the land claimed by him, except so much as he actually occupied, and that, since the evidence did not show how much of the land was inclosed by Hardee and his successors in the possession, the court did not err in instruct ing a verdict. We think that the ruling of the court to the effect that the defendant, under his plea of limitation of ten years, could only hold so much of the land as was actually occupied by him and those under whom he claimed, was correct; but we are 71 S.W.-35

also of the opinion that the evidence tended to show that the dwelling house was so continuously occupied, and that therefore as to the land, at least, upon which the house stood, he was entitled to a judgment, provided the jury upon a proper submission of the issue had found that there had been adverse and continuous occupancy for ten years before defendant was brought into the suit.

The other questions in the case are not likely to arise upon another trial, and need not be discussed. For the error in the trial court in instructing a verdict for the plaintiff, the judgments of that court and of the court of civil appeals are reversed, and the cause remanded.

WILLOUGHBY et al. v. LONG. (Supreme Court of Texas. Jan. 19, 1903.) PUBLIC LANDS-AMOUNT OF PURCHASE-SALE BY ACRE-EXCESS IN SURVEY OVER ESTIMATE-REMEDY OF STATE.

*

*

1. An application to purchase land of the state described it as "the following land in section No. 23, surveyed for G. certificate No. 84, beginning at the N. W. corner of survey No. 307, in the name of S., thence north 1,900 varas; thence east 1,900 varas, to the place of beginning." The words "following land in section No." were in the printed form. The obligation for the unpaid purchase money described the land as "whole of section 23,' following which was substantially the same description as in the application. The survey purported to contain 640 acres, but contained more; the corners being given, and two of the sides being more than 1,900 varas long. that the purchase included the whole survey. 2. Where the state sells a whole survey by the acre, and it contains more than estimated, it can only demand payment for the excess, and, in default of such payment, have the surplus set apart to it by a partition.

Held,

3. Even if Act March 22, 1889, attempts to authorize the commissioner of the land office to set apart the excess, where a survey has been sold containing more than estimated, no right is obtained against the purchaser by one making application to purchase part of it; the excess not having been legally set apart, and the commissioner not having set it apart or attempted to set it apart.

Error to court of civil appeals of Third supreme judicial district.

Action by G. W. Long against E. E. Willoughby and others. From a judgment of the court of civil appeals (69 S. W. 646), affirming a judgment for plaintiff, defendants Reversed. bring error.

F. M. Newman, for plaintiffs in error. Shropshire & Hughes, for defendant in er

ror.

GAINES, C. J. This was a suit to establish title to a part of section 23, surveyed upon a certificate granted to the Galveston & Brazos Navigation Company, which section was a part of the public school lands of the state. The field notes of the original survey purported to contain 640 acres only, and called to run north 1,900 varas, thence east

1,900. thence south 1,900, and thence west 1,900 varas to the beginning; but all corners were fixed by cal's for the corners of surrounding surveys, and the first three also by calls for bearing trees. But by a resurvey, made presumably by the commissioner of the general land office under article 4275 of the Revised Statutes, the field notes of which were filed in the general land office on June 6, 1892, it was found to contain 960 acres. The error in the original field notes was in the measurement of the east and west lines of the survey; the distance called for, namely, 1,900 varas, failing to reach the well-defined corners by several hundred varas. It is the excess over 640 acres, which lies on the north end of the survey, that is the subject of controversy in this suit. The defendant in error, who was plaintiff in the trial court, claims by virtue of an application to purchase made September 16, 1901; the plaintiffs in error, defendants in the court below, claiming under a purchase, as they assert, of the entire section made by one Glenn in 1882.

The first question to be determined is: Did Glenn's purchase include the entire survey, or was it limited to the 640 acres off the south end of the tract? The plaintiffs in error claim that it embraces the whole survey, while, on the other hand, the defendant in error contends that the south 640 acres only were included in that purchase. That controversy grows out of the language, descriptive of the land, employed in Glenn's application to purchase. The description of the land applied for is as follows: "The following land in section No. 23, block No.

in McCulloch county, about 5 miles N., 63 W., from the center of said county, surveyed for G. & B. N. Company, certificate No. 84, beginning at the N. W. corner of survey No. 307, in the name of John Startz; thence north 1,900 varas; thence east 1,900 varas; thence south 1,900 varas; thence west 1,900 varas, to the place of beginning." If at the time the application was filed the resurvey had been filed and the excess had been disclosed, then this description, standing alone, would, as we think, have shown that the intention was to apply only for the 640 acres on the south end of the survey. But the resurvey had not then been made, and the applicant had the right to rely, and doubtless did rely, upon the original field notes as being correct. There being nothing on their face to disclose an error, and since the lines designated in the application embraced the entire survey as shown by the original field notes, it is not apparent to us that it was not intended to include the whole tract. But the application proper is only a part of the transaction. It amounts to nothing, unless accompanied by an obligation for the unpaid balance of the purchase money. When the application proper, with the obligation and oath required by law, have been filed, and the first install

ment of purchase money paid, the right of the applicant is fixed, and there is a contract with the state. It is a familiar rule that, in construing contracts, all the papers which evidence the agreement must be read together, in order to arrive at the intention of the parties. In the obligation given by Glenn, the land purchased is described as "whole of section 23, block, McColloch county." Then follows substantially the same description as was given in the application. This shows, we think, that the intention was to purchase the whole survey, and that the sale was a sale of the entire tract. It also appears from the evidence in the case that the language in the application, which creates the sole difliculty in construing it, was that contained in a printed form in the surveyor's office, and that the words "following land in section No." were inserted in the form so that it would meet the case, whether the purchaser desired to buy either the whole or a part of the section. We therefore conclude that the purchase by Glenn included the whole of the survey.

This brings us to the question, was the defendant in error entitled by law to purchase the land in controversy as the excess in the survey? On March 22, 1889, the governor approved an act passed by the legislature entitled "An act to provide for the ascertainment, distribution and sale of the excesses in surveys of land made for the school fund, and to validate surveys of land as herein provided." Laws 1889, c. 90. That act, so far as it bears upon the question before us, is as follows:

"Section 1. Be it enacted by the legislature of the state of Texas, that all surveys and blocks of surveys heretofore made by virtue of valid alternate scrip be and the same are hereby declared to segregate from the mass of the public domain all the land embraced in said surveys, or blocks of surveys, as evidenced by the corners and lines of same, or by calls for natural or artificial objects, or the calls for the corners and boundaries of other surveys or by the maps and other records in the general land office.

"Sec. 2. That all excess in said surveys or blocks of surveys are hereby donated and declared to belong to the public free school fund of the state; and it shall be the duty of the commissioner of the general land office to ascertain, by any and all means practicable, the existence and extent of such excesses, and to provide for and direct such surveys, or corrected surveys, as may be necessary for this purpose: provided, that where such surveys were made in blocks of two or more surveys, said respective surveys shall remain on the ground consecutively as placed therein, as shown by the maps, sketches, and field notes originally returned to the general land office: provided, that the person who has already purchased, or who may hereafter purchase from the state, the

particular section to which surplus shall by such resurvey be made contiguous, shall have the prior right for the period of six months after such resurvey shall have been made, in which to purchase such excess on the same terms on which such purchaser has already bought or may buy.

"Sec. 3. That all such surveys which under the direction of the commissioner of the general land office have been or may be hereafter corrected, so that all excess in the original surveys shall be placed in the surveys belonging to the public free schools, are hereby validated, and the action of the commissioner is hereby ratified; and he is directed and authorized to issue patents to owners thereof, and to sell such surveys belonging to the public free schools, securing to the state the benefit of such excesses."

That it was the purpose of this act to authorize the commissioner of the general land office to cause a resurvey of the lands mentioned in the title, to the end that any excess therein should be ascertained, and to declare such excesses a part of the school fund, is clear. But its provisions otherwise are obscure and difficult of construction. That it contemplated a segregation of the excess in each survey not patented, and that such excess should be sold, is also evident. But the method by which the segregation is to be accomplished is not provided, unless it is to be implied that the commissioner was empowered to determine in his own way what part should be considered as the excess. That as to the surveys which were unsold he might have been so authorized, and that his power would continue as to lands sold after the act took effect, we see no good reason to doubt. But that such authority could have been conferred upon him as to lands which had already been sold is a proposition which, it seems to us, cannot be maintained. We have ruled, in effect, that, when the state makes a sale of its land, its rights and those of its vendee, when neither restricted nor enlarged by statute, are the same as those of vendor and purchaser, both of whom are natural persons. Blum, 92 Tex. 76, 45 S. W. 998. In this case the sale was clearly by the acre, and there was a large excess in the survey over the estimated quantity. If the sale had been made by a natural person, the right of the vendor would have been to demand pay for the excess at the stipulated price per acre, and, in default of such payment, to have the surplus set apart to him by a partition. O'Connell v. Duke, 29 Tex. 299, 94 Am. Dec. 282. He might sell his claim, and thereby confer upon his assignee the right to sue for payment for the excess, or, in the alternative, to recover the excess itself by a suit therefor. He cannot carve out the surplus, without consent of the vendee, and claim it for himself. Nor can the state do 80 without impairing its contract, which is not allowed by the constitution. Whether

Fristoe v.

by the act, which we have quoted in part, the legislature has attempted to empower the commissioner of the general land office to do this as to lands sold at the time the statute took effect, we need not determine. Nor is it necessary that we should construe the statute with respect to other questions. In this case the commissioner has neither set apart nor attempted to set apart the excess in the survey; and it is quite apparent that the defendant in error had no right to treat the land in controversy as such excess. Since we have concluded that the purchase by Glenn included the entire tract of land embraced in the field notes of the survey, and since the excess has never been legally lopped off from the section, it follows, of necessity, that the defendant in error acquired no right by his application, and is not entitled to recover.

For these reasons the judgment of the district court and that of the court of civil appeals are reversed, and judgment here rendered for the plaintiffs in error.

BRACKEN et al. v. BOUNDS.

(Supreme Court of Texas. Jan. 19, 1903.) DEED OF TRUST-TRUSTEE-APPOINTMENTACCEPTANCE SUBSTITUTE TRUSTEE - AUTHORITY-TRESPASS TO TRY TITLE-ISSUES IN PROOF-PLEADING "NOT GUILTY.”

1. Where a deed of trust appointed a trustee to foreclose in case of default, and provided that if such trustee should fail or refuse to act, or become disqualified, the creditor might appoint a substitute, and after default the creditor requested the trustee not to act, to which the trustee assented, and the creditor appointed his brother as a substitute trustee, the appointment of such substitute trustee and the foreclosure of the deed by him was without authority and void.

2. That the trustee appointed in the deed never accepted the trust did not invalidate the deed, nor give the creditor the right to appoint a substitute trustee; the original trustee being entitled to accept and enforce the deed when called on to do so after default.

3. Where a grantor of a deed of trust gave the land conveyed to his son, and the deed was subsequently foreclosed and the property sold by a substituted trustee illegally appointed, the son was entitled to set up such invalid appointment, in trespass to try title by the purchaser from the trustee, under a plea of not guilty.

Error to court of civil appeals of Fifth supreme judicial district.

Action by W. R. Bounds against Vince Bracken and another. From a judgment in favor of plaintiff (70 S. W. 326), defendants bring error. Reversed.

Ivy & Scruggs and A. P. McKinnon, for plaintiffs in error. Bounds & Hart and Wear, Morrow & Smithdeal, for defendant in error.

WILLIAMS, J. Defendant in error sued Vince Bracken and Albert Bracken in trespass to try title to recover the land in controversy. Albert Bracken pleaded not guilty. Vince Bracken, in addition to his plea of

1. See Mortgages, vol. 35, Cent. Dig. § 1041.