888 "It does not appear from the record that the trial court has abused his discretion in overruling this ground of the motion." And the defendant in error insists here that it is a question of fact determined, and that, the trial court and Court of Civil Appeals having determined the matter of fact adversely to plaintiff in error's contention, the Supreme Court is thereby concluded from revising such action. [1] To this we cannot assent. The question as to whether or not there has been abuse of judicial discretion is a question of law. In Watts v. Holland, 56 Tex. 61, the Supreme Court, speaking on the question of authority to review such questions, say: "The Court of Civil Appeals did not pass on the assignment of error seeking a reversal of the trial court's judgment for misconduct of the jury further than to hold that improper conduct was shown. It is probably necessary to make fact findings in disposing of the assignment, and we have concluded that defendant in error is entitled to have same determined by the Court of Civil Appeals." While the above decision calls for findings of fact by the Court of Civil Appeals and recognizes the rule that upon questions that are purely questions of fact the decision of the Court of Civil Appeals is binding on the Supreme Court, yet it does not hold that a ruling of law made by the Court of Civil Appeals upon the ascertained facts is not subject to revision by the Supreme Court, and hence is in no wise in conflict with the decisions quoted above. As to whether or not the communication made was such as would render it "reason "Whilst an appellate court will very properly refuse ordinarily to revise the action of an inferior court as to matters which are confided to the discretion of the judge below in the administration of that class of rules which in their nature are not susceptible of being revised so as to determine whether the discre-ably doubtful" as to its having affected the The jury tion has been abused or not, yet where that jury verdict, we can only say: discretion thus confided involves the duty of a stood five for plaintiff and seven for defendcourt to accord to a party a right necessary ant. After this communication was made to to the attainment of justice in determining his them, the seven came over to the side of the right to life, liberty, or property, and, as a plaintiff, and, where they had before that matter of law, in the given case, it is apparent refused to find anything in his favor, they that the party was entitled to have that dis- agree on a verdict for $2,500 in plaintiff's cretion exercised in his favor, the reason of favor. In their testimony the five jurors the ordinary rule of not revising the action of who do testify can give no satisfactory reathe court below ceases, and it ought to be reson for the change of position. Nor is any vised just the same as any other alleged ereffort made to show that the seven who did ror." not testify were not influenced in their verdict by this unlawful communication. our minds, the circumstances surrounding this jury's ultimate findings do not appear to us to be free from unwarranted influence. It is true that the members of the jury who are questioned strenuously deny that their minds were affected by the statements made to them. But this is only natural. Men are slow to admit such influence in their deliberations. They may not have realized that they were being influenced. Chief Justice Brown, in the case of H. & T. C. Ry. Co. v. Gray, 105 Tex. 43, 143 S. W. 606, also passing on the authority of the Supreme Court to review the action of the trial court, says: To "We had doubt as to the authority of this court to review the ruling of the trial court upon the motion, so far as based upon the evidence of the jurors, and requested counsel for each party to furnish arguments, to which they responded by able and helpful discussions of the question. After proper consideration [2] Feeling that the communication made given to the briefs furnished, we conclude that the 'discretion' expressed in the act above was such as leaves it doubtful as to whethcopied is upon the same level with the discre- er or not the verdict of the jury, in part at tion vested in the trial judge in many instanc- least, was not influenced against the defendes, and that we may review its exercise where- ant, we recommend that the judgments of in it clearly appears that the rights of parties have been disregarded. If the evidence taken the trial court and Court of Civil Appeals by the trial judge left it reasonably doubtful be reversed, and remanded for a new trial. as to the effect the statement had upon the amount of the verdict of the jury, we would feel inclined to exercise our authority and set it aside. Our attention is called to the decision of the Supreme Court in the case of Wilson v. Southern Traction Co., 234 S. W. 663. In that case Justice Greenwood says: CURETON, C. J. The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission of Appeals on the question discussed in its opinion. (238 S.W.) BALL v. NORTON. (No. 296-3580.) (Commission of Appeals of Texas, Section A. March 22, 1922.) tered thereon. Norton appealed. The Court of Civil Appeals reversed the judgment and remanded the cause. 225 S. W. 581. Ball applied for writ of error and his application was granted by the Supreme Court. 1. Judgment 766 Entry of judgment by Defendant in error deraigned title to the federal court not recorded in office of clerk of land sued for by him under William and Salcounty in which land was situated not con-lie Reader, who acquired title by limitation structive notice. The rendition and entry of judgment affecting title to land was not constructive notice of its existence or contents, where judgment was not recorded in the clerk's office of the county in which the land was situated, under Rev. St. art. 6835, though judgment was rendered by federal court for the district and division in which the land was situated. 2. Vendor and purchaser 232(2)—Essentials of "possession" operating as notice of adverse ownership stated. prior to the death of the survivor, Sallie Reader, which occurred January 8, 1908. On September 12, 1910, Bose Reader, who held this limitation title, executed a deed of trust on the land to secure an indebtedness due to A. D. England. The lien given by this deed of trust was foreclosed in 1912 and the land sold under the foreclosure proceedings and purchased by said England. Some time thereafter, plaintiff in error brought suit in the United States District Court at Tyler in the Eastern District of Texas against Bose Reader and A. D. England and others, to recover various tracts of land, among which was the identical 792acre tract sued for by him in his cross-action in this case. Judgment in that suit was rendered in favor of plaintiff in error against 3. Vendor and purchaser 245-Whether de-all the defendants therein for the lands sued fendant's possession was sufficient to give plaintiff notice of adverse ownership held for "Possession" to operate as implied notice of adverse ownership must be visible, open, notorious, and exclusive, and not merely a constructive possession. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Possession.] jury. Whether defendant had such possession of land as to give plaintiff, who claimed title as innocent purchaser, notice of defendant's adverse ownership, held for the jury. for, including said 792 acres, and describing the same as in the cross-action in this case. This judgment was filed for record in Anderson county, October 25, 1916. Bose Reader, on October 16, 1915, executed to defendant in error a power of attorney and conveyance authorizing him in the name Error to Court of Civil Appeals of First of said Reader to recover from A. D. Eng. Supreme Judicial District. land and any other claimants, and to perAction by L. E. Norton against P. D. C. fect the record title to said 867 acres by Ball. Judgment for defendant was reversed, suit, or otherwise, and in consideration of and the cause was remanded by the Court the services to be performed by him and exof Civil Appeals (225 S. W. 581), and defend-penses to be incurred by him, including ant brings error. Judgment of Court of Civil Appeals affirmed. N. B. Morris, of Houston, and Brooks, Worsham & Rollins, of Dallas, for plaintiff GALLAGHER, J. This is an action of trespass to try title brought by L. E. Norton against P. D. C. Ball to recover 867 acres of land out of the Palacious grant in Anderson county. Ball disclaimed as to all the land sued for except such as was included within a certain 792-acre tract described by metes and bounds in his pleadings, and which land he sought to recover by cross-action. counsel fees, conveyed to him an undivided one-half interest in said premises. Acting in pursuance of the authority and in accordance with the provisions of this instrument, defendant in error, on April 3, 1916, in consideration of $875 paid by him, procured from England a deed to the land sued for herein. Defendant in error subsequently made an agreement by which he was to retain title to the entire tract of land and pay Reader a cash consideration for the other half, but it is not shown that any such consideration has been paid, or that Bose Reader has executed or delivered to him any conveyance of such equitable interest as he may have in said land growing out of the pro-. visions of such power of attorney and conveyance. Defendant in error testified that on March 20, 1916, he made an inspection of the land involved in this suit, and that at that date the land was not fenced, and that there was He denied no one in possession thereof. There was a trial by jury. The court instructed a verdict for Norton for all the land sued for except such as was described in Ball's cross-action and, as to such land, instructed a verdict for Ball. Verdict was knowledge of any claim by plaintiff in error rendered as instructed and judgment en- to such land and the existence of said judg For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ment of the federal court, or of the suit in | right claimed by virtue thereof. R. S. art. which it was rendered. The Court of Civil Appeals held upon the above facts that as to an undivided one-half interest, at least, the evidence raised an issue of innocent purchaser for value, without notice, in favor of defendant in error, and that the trial court erred in instructing the verdict against him and made such holding the basis of its action in reversing the judgment and remanding the cause. [1] Plaintiff in error seeks to justify the peremptory instruction in his favor on the ground that he was claiming under a judgment of the United States District Court for the Eastern District of Texas, and that defendant in error was charged with notice of such judgment without reference to whether it was recorded in the deed records of Anderson county. 6835. Our Supreme Court has held that this statute is for the protection of purchasers in good faith. Haines v. West, 101 Tex. 226, 231, 105 S. W. 1118, 130 Am. St. Rep. 839; Russell v. Farquhar, 55 Tex. 355, 360, 361; Thorton v. Murray, 50 Tex. 161, 167. We are aware of a line of decisions holding that state statutes similar to articles 6837 to 6840 of our Revised Statutes, inclusive, requiring the filing of notice of the pendency of a suit involving title to real estate before the doctrine of lis pendens shall become effective, do not apply to suits in federal courts. However, the Circuit Court of Appeals of the United States for the Fifth Circuit, in the case of United States v. Calcasieu Timber Co., 236 Fed. 196, 149 C. C. A. 386, held the statute of Louisiana on that subject valid. Having held that notice by reason of the pendency of the suit at Tyler had been terminated before defendant in error purchased the land, it is not necessary to pass upon this question, notwithstanding the record is silent as to any attempt on the part of plaintiff in error to comply with such articles of our statutes. Anderson county is situated in the Tyler division of the Eastern district of Texas. The judgment under consideration was rendered more than a year before plaintiff in error purchased the land. There is no contention that proceedings of any kind were ever instituted to revise said judgment, or that such proceedings were ever contemplated. After such judgment was entered on the minutes, nothing remained to be done to make it immediately effective as a muniment of title in favor of plaintiff in error.ing the recording of judgments recovered in Such being the case, the doctrine of lis pendens could not be, at the time of such purchase, invoked to support a claim of notice of such judgment to any one dealing with the land. The fact that such judg The language used by the court in the case of United States v. Calcasieu Timber Co., supra, applies, we think, with even greater force to the validity of our statute requir the federal courts, and we therefore quote from the opinion in that case as follows: "It is well settled that the acquisition and ownership of real estate and all the means by which the title to it is transferred from one ment had been theretofore recovered and person to another, whether by deed, by will or had been entered on the minutes of said descent, or by judicial proceedings, and the concourt was not, at that time, constructive struction and effect of all instruments intended notice of either its existence or contents. to convey it, are governed exclusively by the Russell v. Farquhar, 55 Tex. 355, 361; Mc- laws of the country or state in which the propLean v. Stith, 50 Tex. Civ. App. 323, 112 S. erty is situated, and that such laws of the several states, being rules of property, are bindW. 355, 362, on rehearing (writ refused); 21 ing upon and are to be applied by the federal Am. & Eng. Ency. Law (2d Ed.) pp. 618, 619; courts. Brine v. Hartford Fire Ins. Co., 96 2 Pom. Eq. Jur. (4th Ed.) §§ 634 to 641, in- U. S. 627, 24 L. Ed. 858; McGoon v. Scales, clusive; Worsley v. Scarborough, 3 Atk. 392.9 Wall. 23, 19 L. Ed. 545; Bucher v. Cheshire Our system of registration was unknown R. Co., 125 U. S. 555, 8 Sup. Ct. 974, 31 L. to the common law. It is purely statutory. Sup. Ct. 873, 44 L. Ed. 1028; Suydam v. WilEd. 795; Clarke v. Clarke, 178 U. S. 186, 20 With reference to judgments affecting the ti-liamson, 24 How. 427, 15 L. Ed. 978; 1 Bates, tle to real estate, it begins where the doc- Federal Equity Procedure, § 70." trine of netice by lis pendens ends and provides an easy and effective method of giving We may concede that Congress, by approconstructive notice of the right or title estab-priate legislation, could provide that the lished by such judgment. Russell v. Farqu-record of judgments in the minutes of the har, 55 Tex. 259-361;- 27 R. C. L. p. 705, § 470; 2 Pom. Eq. Jur. (4th Ed.) §§ 641, 642; 15 R. C. L. p. 587, § 23; Boynton v. Haggart, 120 Fed. 819, 823, 57 C. C. A. 301. The statutes of this state provide that every judgment or decree by which the title of any tract of land is recovered shall be duly recorded in the clerk's office of the county in which such tract of land may lie, and that until so recorded such decree shall not be received in evidence in support of any District Courts of the United States should be constructive notice of the existence and contents of such judgments, and that such legislation would be superior to and supersede any state law on the subject. Still, the fact remains that no such legislation has been passed by Congress. Our statute requiring the registration of judgments affecting the title to land in the county in which such land may lie, and the construction given the same by the courts of this state, are (238 S.W.) rules of property and, we think, come with- | for by Norton on the line between the tracts in the rule of law declared by the court in claimed by them and the Ball tract for more United States v. Calcasieu Timber Co., su- than a mile. These fences were built about pra. U. S. Compiled Stats. art. 1538. the middle of March. There was no testiWe do not think the fact that the judg-mony that there was any part of the tract ment in question was rendered in the fed-claimed by Ball either fenced to itself, in culeral court for the district and division in which the land was situated prevents the application of article 6835 of our Revised Statutes above cited. Plaintiff in error seeks to justify the peremptory instruction in his favor on the ground that he was in possession of a part of the land sued for in his cross-action and had the same inclosed by a fence, and that this constituted notice of his title. The evidence discloses that the land described in plaintiff in error's cross-action is in conflict with the land sued for by defendant in error to the extent of 300 or 400 acres. tivation, or otherwise improved. It was not shown that either Hall, Barrett, or Cook were claiming under the same title as Ball. Neither of them was a party to the suit. The statement of facts discloses that three separate maps were used by the witnesses in testifying and that they were introduced in evidence. These maps are not in the record. In their absence, it is very difficult to apply the evidence to the subject-matter of this suit. Defendant in error testified that he did not find any of the lands included in the 867acre tract, purchased by him, inclosed, or in cultivation, when he visited the premises on March 20, 1916. He denied all knowledge and notice of any kind of plaintiff in error's claim. Kennedy, a witness for Ball, testified to doing some fencing for him. He crossed the river from Freestone county and struck the Palacious grant in Anderson county. He [2] Possession, to operate as implied noran a line of fence 15 or 18 miles long from tice of adverse ownership, must be visible, the river to Campbell's Lake. This line of open, notorious, and exclusive, and not merefence passed along or across the land sued ly a constructive possession. 2 Pom. Eq. for by Norton. Some of the fence was built | Juris. §§ 619 and 620, and notes; 39 Cyc. p. by March 15, and it was completed several 1748, par. (d); Blankenship v. Douglas, 26 miles beyond these lands by April 1. The Tex. 225, 230, 82 Am. Dec. 608; Paris GroHall-Barrett lands lie north or northwest of cer Co. v. Burks, 101 Tex. 106, 111, 112, 105 this line of fence, and the Ball lands lie S. W. 174; League v. Buena Ventura Stock south of it. The fence probably followed Co., 2 Tex. Civ. App. 448, 21 S. W. 307. the line between these tracts. The fencing he built inclosed the Ball lands with other lands, but he did not close up the fence he built until the latter part of June. He did not know that it would be called an inclosure. He did not cut out any particular tract and did not fence the east or south lines of the Ball tract in issue in this suit. [3] The evidence fails to show such possession of the premises at the time defendant purchased the same as would justify the giving of a peremptory charge. So far as the other contentions urged by plaintiff in error assert correct propositions of law, such propositions of law are inapplicable in this case, and such contentions are overruled. Hall, a witness for Ball, testified that he was agent for Ball, who lived in St. Louis and had not been to the land since 1916 or The issues presented by defendant in er1917. He was familiar with the lands claim-ror are controlled by the rules of law hereed by each of the parties to this suit. He, in announced and the authorities herein citBarrett, and Cook, each had lands inclosed ed, or are such as may not arise on another trial. on the tract sued for by Norton. There were houses and other improvements on these lands, and 150 acres or more of the same were in cultivation and had been for several years. None of the lands inclosed and cultivated by them, or any of them, were on the tract claimed by Ball in his cross-action. They adjoined the Ball tract, and the fence built by Kennedy ran across the tract sued We recommend that the judgment of the Court of Civil Appeals reversing and remanding this cause be affirmed. CURETON, C. J. The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. prohibited by the city ordinance of the city of PEVETO et al. v. TEXAS & N. O. RY. CO. Orange, which ordinance prohibited the running of trains at more than six miles an hour. (No. 290-3548.) * (Commission of Appeals of Texas. Section B. March 22, 1922.) Trial 215-Requested charge as to elements of contributory negligence is improper in case submitted on special issues. In an action for death at a railroad crossing which was submitted on special interrogatories, a special charge, requested by defendant, that if the jury believed decedent approached the crossing without looking or listening, and that if he had looked or listened he could have seen or heard the train, and that a man of ordinary prudence would have looked and listened, they should answer the interrogatories as to contributory negligence in the affirmative, was properly refused. S. H. Peveto and Azalie Peveto, surviving father and mother, respectively, of the de ceased, also joined as parties plaintiff in the court below. Plaintiffs laid their damages in the sum of $40,000. The railroad company answered by general demurrer, several special exceptions, general denial and plea of contributory negligence upon the part of deceased. A trial was had before a jury, and the court submitted the case upon special isThe issues submitted by the court, sues. with the jury's answers thereto, were as follows: "Question No. 1: Do you believe from the evidence that the train that struck the de Error to Court of Civil Appeals of Ninth ceased, Herbert Peveto, in approaching the Supreme Judicial District. Action by Pearl Peveto and others against the Texas & New Orleans Railway Company. Judgment for the plaintiffs was reversed by the Court of Civil Appeals (224 S. W. 552), and plaintiffs bring error. Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed. Holland & Holland, of Orange, for plain tiffs in error. Orgain, Butler & Bolinger and F. J. & C. T. Duff, all of Beaumont, for defendant in er ror. POWELL, J. About 8 o'clock on the morning of October 1, 1917, Herbert Peveto and Claude Harrington were leaving Orange, Tex., in a Ford car. They drove out Park street, and, when crossing the main line track of the Texas & New Orleans Railroad Company intersecting said street, their automobile was struck by the locomotive of a west-bound passenger train of the railroad company aforesaid, and both men killed almost instantly. Shortly thereafter the widow of Peveto, for herself and as next friend for her minor son, brought this action for damages in the district court of Orange county, alleging that the death of her husband was due to the negligence of the railroad company in the following particulars, to wit: (1) The failure of the train to blow any whistle or ring any bell of the locomotive in approaching said crossing. (2) The failure of the agents, servants, and employees of said defendant in the operation of said train to keep a proper lookout for persons traveling said street, or about to cross said railroad crossing. (3) The failure to provide any means of warning to travelers using said street, such as gates, bells, or flagman. (4) That the train was running at an excessive rate of speed and at a rate of speed crossing at the time he was struck, gave any "Yes." "Question No. 3: What was the rate of speed the train that struck Herbert Peveto was traveling at the time it struck him? Answer this question by stating in writing the number of miles per hour." The jury answered, "Thirty miles per hour." "Question No. 4: Do you believe from the evidence that the defendant, Texas & New Orleans Railroad Company, at the time of the injury causing the death of Herbert Peveto, maintained at its crossing on Park street any gates, bells, or flagmen to warn travelers of Answer this question approaching trains? Yes or No." The jury answered, "No." "Question No. 6: Do you believe from the evidence that the deceased, Herbert Peveto, did any act, or failed to do any act, that contributed to the injury causing his death? You will answer this question Yes or No." The jury answered, "No." "Question No. 7: Did any act or omission of the deceased, Herbert Peveto, which preceded the injury that resulted in his death, amount to negligence on his part, as that term has been defined to you in this charge? Answer this question Yes or No." The jury answered, "Question No. 8: Do you believe from the evidence that such act or omission on the part of the said Herbert Peveto was the proximate For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied May 17, 1922. |