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actually made, and made by the same surveyor by whose testimony appellant wished to show that the survey was erroneous. Johnson v. Archibald, 78 Tex. 96, 14 S. W. 266. When the field notes in a survey call for the corners and lines of surrounding surveys, and contain no inconsistent calls, it is not admissible to show by parol evidence that a different survey was made, for the purpose of controlling the calls in the patent. Anderson v. Stamps, 19 Tex. 460; Converse v. Langshaw, 81 Tex. 275, 16 S. W. 1031.

Appellant did not file a plea of not guilty, but filed a special plea admitting the correctness of appellees' field notes, and under his plea it was not error to exclude the testimony of the surveyor Hector, showing an error in the calls in the survey. There was no evidence offered to show that the survey was not actually made, but the whole tenor of the testimony excluded was to show that a certain rock that is called for is not on the line of an adjoining survey as set out in the field notes. Had there been any pleading to sustain the evidence offered as to the surveyor making the west line at a certain locality, and that he called for the east line of survey 34 by mistake, when in deed and in truth he had not reached the said line, it might have been error to have excluded it, but appellant had sworn that the field notes of appellees' survey were correct, and there was no allegation supporting his proof. None of the meritorious. assignments are ment is affirmed.

On Rehearing. (June 20, 1894.)

The judg

"It has, at least ever since the decision in the case of Rivers v. Foote, 11 Tex. 662, been, we believe, the recognized rule of pleading and practice in actions of trespass to try title, that when the defendant pleads 'not guilty,' and also pleads specially, the effect of the plea of 'not guilty' is merely to impose on the plaintiff the necessity of establishing his title; and, as a consequence, the defendant is limited in his defense to his special defenses, upon which by his pleas he has notified the plaintiff he intends to rely." Shields v. Hunt, 45 Tex. 425. Appellant's plea of "not guilty" did not remove the admission that appellees' field notes were correct, as set out in the petition, and he is bound by his admissions.

Were this propo

sition incorrect, appellant could not have been injured by the rejection of Hector's testimony, as the same facts to which he would have sworn were testified to by the commissioner of the general land office. McGaughey says: "A certificate by County Surveyor Hector places the southwest or beginning corner of survey No. 8 about 700 varas north and about 400 varas east of the beginning calls in field notes of said survey. He explains that a stone placed by the United States government survey was mistaken for

the east corner of survey 321⁄2 in name of Dangerfield, and No. 34 in name of J. M. Munoz." The two sets of field notes, and the map from the land office, showing the conflict that Hector's testimony would have shown, were also admitted in evidence. The motion for rehearing is overruled.

FRENCH v. GROESBECK et al. (Court of Civil Appeals of Texas. May 30, 1894.) REFUSAL OF CONTINUANCE-DISCRETION OF COURT -CERTIFIED COPY OF Deed-AdmisSIBILITY.

1. In trespass to try title, plaintiff offered a certified copy of a deed under which she claimed, which was excluded because it was not recorded in the same county where the land lay. She then asked a continuance, alleging surprise at the court's ruling, in order to get evidence to prove that the land was in that county. She further asked that, in case she was unable to make such proof, she be allowed to prove the execution of the deed by competent witnesses. Held that, as the application showed that she was not certain that she could prove that the land was located in the county where the deed was recorded, or that she could prove its execution, it was properly refused.

2. The refusal of such an application for a continuance, being within the discretion of the court, would not be disturbed, unless a clear abuse of discretion were shown.

3. A certified copy of the record of a deed which was recorded in another county than that in which the land in suit lies is not admissible under Rev. St. art. 2257, making certified copies of deeds admissible in case the original is lost.

4. Rev. St. art. 1301, provides that, at any time before the jury retires, the plaintiff may take a nonsuit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. Held, in trespass to try title, where defendants asked that their title be quieted, the court may hear and grant their plea, though plaintiff was nonsuited.

Appeal from district court, Mason county; W. M. Allison, Judge.

Trespass to try title by Sarah R. French against P. H. Groesbeck and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Ogden & Harwood, for appellant. A. W. Moursund and John T. Wolters, for appellees.

NEILL, J. This is a suit in trespass to try title brought in the district court of Mason county by appellant against the appellees to recover 320 acres of land situated in Mason county. The defendants answered by general demurrer, plea of not guilty, and plead in reconvention, setting out that they were the owners of the land, that plaintiff's claim was a cloud on their title, and asked judgment for the land and for the removal of the cloud on their title to the same. The case was tried by the court without a jury, and a judgment rendered for the defendants upon their plea of reconvention, from which this appeal is prosecuted.

Conclusions of Fact.

The appellant is the sole heir and legatee of John C. French, deceased. The appellees, P. H., J. N., H. S., and Mollie W. Groesbeck, are the sole heirs and legatees of John D. Groesbeck, deceased, and both appellant and appellees claim the land in controversy under John D. Groesbeck as a common source, and waive proof of title down to said Groesbeck. The appellant's claim of title was through an instrument purporting to be a deed from John D. Groesbeck to John C. French, a copy of which from the county clerk's office of Bexar county was offered in evidence by appellant, and excluded for reasons which will appear in our conclusions of law.

Conclusions of Law.

Both parties having announced ready for trial, the plaintiff offered in evidence a certified copy of a deed from John D. Groesbeck to John C. French, an affidavit of the loss of the original having been duly filed as is required by statute for the introduction of copies of instruments required or permitted by law to be recorded in the office of the county clerk, and which have been recorded there, which purports to convey, among other lands, the premises in controversy, and to have been duly acknowledged by the grantor on the 18th day of July, 1856, and filed for registration on the 23d, and recorded on the 26th day of April, 1859, in the office of the county clerk of Bexar county, Texas. The defendants' counsel objected to its introduction, for the reason it had not been recorded in any county where the land, or any part thereof, lay. Upon the objection being sustained, the plaintiff asked and obtained leave of the court to withdraw her announcement of ready, and prepared and presented to the court a motion for continuance, upon the ground that she was surprised by the objection of defendants and the ruling of the court thereupon in excluding said copy, and was not prepared with proof to meet the objection; alleging in her motion "that she believes a portion of the land embraced in the deed was, at the date it was filed for record, embraced within the true limits of Bexar county or land district; but that she is not prepared to make proof of such fact from proper and indisputable source, to wit, the records and archives of the general land office of Texas; that it is impossible for her to procure said testimony in less than four days, as the place where the court is in session is about 40 miles from the nearest railroad station accessible for the purpose of going to procure said testimony; and, in the event of such proof failing, she have an opportunity to prove the execution of said deed by proper testimony of competent witnesses; that she had no notice or intimation that such objection would be made to said deed, or that such testimony would be needed; that her counsel does not know of

any witnesses at hand by whose testimony the facts averred herein can be established." This motion was overruled, to which ruling plaintiff saved a bill of exceptions, which was signed by the court, with the explanation that evidence had already been introduced, and other evidence was accessible, showing, at the time of filing the deed for record in Bexar county, none of the lands were situated in Bexar county or Bexar land district, but were situated in the then organized counties of Mason, San Saba, and Llano. Upon the court's overruling this application is based appellant's first assignment of error. Conceding, for the purpose of considering this assignment, that the copy of the deed was properly excluded, we do not think there was any error in overruling the motion.

It was not a statutory application entitling the plaintiff to a continuance as a matter of right, but was such an application as is addressed to the sound discretion of the court, and will not be revised unless a very clear abuse of such discretion be shown. Railway Co. v. Hall, 83 Tex. 679, 19 S. W. 121; Wiggins v. Fleishel, 50 Tex. 64; Railway Co. v. Hardin, 62 Tex. 369; Allyn v. Willis, 65 Tex. 70. The appellant should have been prepared to prove her title by competent testimony, and her surprise at a correct ruling of the court should furnish no ground for continuing the cause. The application does not show by what facts or records in the land office she expects to prove that the land embraced in the deed, or any part of it, was in Bexar county or land district at the time the deed, a copy of which was offered in evidence, was filed for record in the county clerk's office of Bexar county. In fact, the application on its face shows that she did not know she could make such proof. Nor does it appear, in the event she should fail to make such proof from the land office, that she could have "proved the execution of said deed by proper testimony of competent witnesses," if the cause had been continued to give her the "opportunity." After the application for a continuance was overruled the plaintiff again offered in evidence the certified copy of the deed referred to in our consideration of the first assignment of error. The same objection to its admission was interposed by defendant, which was sustained by the court as before; to which ruling of the court the plaintiff reserved a bill of exceptions, to which the court appended the explanation that evidence was adduced showing that the deed in question conveyed lands situated in Mason, Llano, and San Saba counties only.

Appellant's second assignment complains of the court's exclusion of the copy of the deed. It is contended by appellant under this assignment that a deed, being an instrument in writing permitted or required to be recorded in the office of the county clerk, after having been proved or acknowledged in the manner provided by law in force at

the time of its registration, when recorded in the office of a county clerk, is admissible in evidence without further proof of execution, proper notice having been given of its filing, and that a certified copy thereof from such record is likewise admissible when the proper affidavit of the loss of the original has been filed. Article 2257, Rev. St., does not say recorded in the office of a clerk of the county court, but "in the office of the clerk of the county court." Under the laws in force when the deed in question was recorded, the clerks of the county courts of the several counties of this state were the recorders for their respective counties, and it was made the duty of each recorder to record in the books provided for his office all deeds or other instruments of writing concerning any lands in his county which were proved or acknowledged according to law, and delivered to him to be recorded in his office. Oldham & White, Dig. arts. 1700, 1706. The clerk was only authorized, under the law, to record in his office deeds concerning lands in his county; and, as the record in his office of a deed to lands situated in some other county was neither authorized (permitted) nor required, a copy of it was not admissible in evidence under the statute. Cattle Co. v. Chisholm, 71 Tex. 525, 9 S. W. 479; League v. Thorp, 3 Tex. Civ. App. 573, 22 S. W. 179, and 24 S. W. 685; Tomlinson v. League (Tex. Civ. App.) 25 S. W. 313. Therefore it was properly excluded.

The appellees, by their plea in reconvention having pleaded matters entitling them to affirmative relief, could not be prejudiced in their right to be heard on their plea oy a nonsuit on the part of appellant;. and it was not error in the court to hear said plea, and grant the appellees the relief to which the evidence showed them entitled. Rev. St. art. 1301. There is no error assigned requiring a reversal of the judgment, and it is affirmed.

On Rehearing. (June 27, 1894.)

It is contended in appellant's motion that this court erred in not holding that the court below erred in refusing to allow her to take a nonsuit, because it appears that appellees were in possession of the land, and that it further appears that they introduced no evidence to support their plea in reconvention. After appellees had pleaded in reconvention, they had the right to have the matters put in issue by their pleadings determined, and have their title to the premises quieted against the claim of appellant, notwithstanding they were in possession of the property, and could not be deprived of such right by appellant's taking a nonsuit. It does not appear from the statement of facts by whom the evidence was introduced, but it does appear therefrom that both parties claimed the land in controversy through John D. Groesbeck, as a common source, and that the appellees are his sole heirs. In the ab

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1. Certain land was patented to "Jacob de Cordova, trustee of the German Emigration Company and J. J. Giddings, assignee of Frederick Stoppelberg." Held that, assuming that Cordova appears, on the face of the patent, to have been trustee for both the German Emigration Company and J. J. Giddings, he could not, prima facie, convey the interest of Giddings, in the absence of any evidence of authority from him.

2. The effect of such patent is to create simply a naked trust for the benefit of the beneficiary.

Appeal from district court, Mason county; W. M. Allison, Judge.

Action between J. N. Brown and Sidon Harris and others. From the judgment, Brown appeals. Reversed.

H. M. Holmes, for appellant.

JAMES, C. J. The facts upon which the appeal is submitted are as follows: (1) The tract of land in respect to which this action was brought was patented to "Jacob de Cordova, trustee of the German Emigration Company and J. J. Giddings, assignee of Frederick Stoppelberg;" the patent calling for 320 acres (describing the same by field notes) in Mason county, and reciting that it was, by virtue of certificate No. 251, issued to said Stoppelberg by the commissioner of Fisher & Miller's colony, June 6, 1850, and transferred to John L. Darragh January 9, 1854, and by said Darragh transferred to Jacob de Cordova, trustee of the German Emigration Company and J. J. Giddings, February 20, 1855. The patent was dated December 2, 1880. The patent concludes with the words, “hereby relinquishing to them, the said Jacob de Cordova, trustee of the German Emigration Company and J. J. Giddings, assignees, and their heirs and assigns," etc. (2) A deed dated April 3, 1861, executed by "Jacob de Cordova, acting as trustee of the German Emigration Company and J. J. Giddings," for the consideration of one dollar, to Henry F. Fisher, purporting to convey said tract of 320 acres. (3) The following agreement is stated in the record: "It is agreed that, if the patent and deed adduced in evidence vests title prima facie in Henry F. Fisher in and to said survey, then the judgment of the district court shall be in

all things affirmed; but, if the same should be held by the appellate court insufficient to vest in said Henry F. Fisher prima facie title to the whole thereof, then the judgment shall be reformed so that appellees, Sidon Harris and Carrie Chew, shall recover an undivided 14 of said land, and that G. W. Bird have judgment over against J. N. Brown for eighty dollars, with legal interest thereon from May 12, 1883, and costs."

A

It is evident that our revision of the judgment is confined by said agreement to the prima facie effect of said patent and deed. Assuming that Jacob de Cordova appears, upon the face of the patent to have been trustee for both the German Emigration Company and J. J. Giddings, we still are without any means, from the instrument itself, of determining the nature and terms of his trust. He would thus appear to have been merely the depository of the legal title, which constitutes simply a dry or naked trust for the benefit of those named in the patent. Moore v. City of Waco, 85 Tex. 211, 20 S. W. 61. person thus holding title for others has no power to convey the property, unless by consent or direction of the beneficiary. 2 Perry, Trusts, 764. If he should, without such consent or authority, execute a deed to a third person, while the legal title would pass to his grantee, it would not convey the title of the beneficiaries; and the grantee would hold as trustee for them, as did his grantor. 1 Warv. Vend. p. 86. Upon this state of the case, we are of opinion that the equitable title to one-half of the survey remained in J. J. Giddings.

Appellant may be correct in the position taken by him, that the proper construction of the patent, and the transfer recited in it, would be to regard Cordova as trustee only for the German Emigration Company, in which case his deed could not possibly be held to affect the interest of Giddings, but we do not deem it necessary to make this ruling. If the other construction is placed on the patent, which would make him trustee for both, the case, as presented to us, does not show power in him to deprive Giddings of his interest by the deed to Fisher. We are not unmindful of the fact that the consent or direction by Giddings to authorize the deed to Fisher may have been by parol (Rogers v. Tyley [Ill. Sup.] 32 N. E. 393), and that, after the great lapse of time that has intervened, very slight circumstances would suffice to establish such authority. But nothing whatever on this subject appears, and, if there were anything of this nature outside of the patent and deed, the agreement of the parties, upon which the issue is submitted here, we think, would exclude us from giving it any effect. At the time of the trial the deed to Fisher was over 30 years of age, but there is nothing in the deed by which it purports to have been executed by direction or authority of Giddings, and we therefore cannot be warranted in presuming that there

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1. Where the district judge enters his disqualification, and a special judge, agreed upon by the parties, qualifies, and makes certain orders, and afterwards the disqualified judge is regularly succeeded by another judge, the latter has power to try the cause, since the powers of the special judge end when the occasion for his existence ceases.

2. Where a libelous letter stated that the addressee might read it to all he wished, the writer cannot claim that the letter was a privileged communication.

3. A letter stating that an established minister of the gospel is devoid of moral principles is actionable where actual damages result. 4. In an action for libel, where the complaint avers that the damaging effects of the libel are existing and continuing, the fact that evidence was admitted, without objection, of damages accruing after the suit was begun, is not ground for reversal.

5. In an action for libel, the falsehood of alleged defamatory matter is presumed, and the onus of proving it true lies on the defendant.

6. In an action for libel, where the actual damages are assessed at $60, exemplary damages of $440 are not so disproportionate as to indicate passion or prejudice.

Appeal from district court, Bee county; S. F. Grimes, Judge.

Action by M. Thompson against S. M. Coles for libel. From a judgment for plaintiff, defendant appeals. Affirmed.

G. R. Scott & Bro. and Dugat & Mims, for appellant.

JAMES, C. J. Appellee brought this suit in Karnes county to recover damages of appellant for libel. Plaintiff was the pastor of a colored Congregational church at Helena. and he had charge of the Congregational church at Goliad, where he preached once a month. Jack Lott was a member of the Goliad church, but contributed to said pastor's salary at the Helena church. It seems that a scandal had occurred and become the subject of investigation in the colored Congregational church at Corpus Christi, involving one Strong in a charge of seduction and murder. The defendant was an intimate friend of Strong, who was pastor of the church at Corpus Christi, and supported him in his trial. The defendant, Coles, acted as moderator at the trial, and afterwards wrote to Jack Lott a lengthy letter, giving a detailed account of what developed there against Strong, which letter we may say was, and was intended to be, argument that had a decided tendency to convince one that Strong was guilty of said offenses, and that Strong's statements and explanations upon that trial

were untruthful. The letter concludes with the following paragraph: "Now, these are some of the main facts. You can judge for yourself. I understand your pastor has been misrepresenting our church. He made himself ridiculous here. Put him and Strong in a sack together, which would tumble out first? Both are void of judgment, reason, or moral principles. You may read this letter to all you wish." The letter was read by and to others to a considerable extent, in the neighborhood of plaintiff's churches; and plaintiff, being the person referred to by said paragraph, sues for damages by reason of its derogatory references to him.

The record shows that the district judge presiding in Bee county, when the cause was removed there, entered his disqualification, and the Honorable G. W. L. Fly was regularly agreed on by the parties as special judge, and qualified as such, and had, previous to the trial term, made orders in the cause. At this term the disqualified judge had been regularly succeeded in office by another judge, before whom the trial was had. The defendant objected to the trial taking place before the district judge, on the ground, as assigned, that the appointment of the special judge was in force, never having been revoked, altered, or changed by the parties to the cause. We are referred to no authorities, and we find none, of the court in this state, relative to the duration of the special judge's powers when the judge by reason of whose disqualification the special judge came to be appointed has gone out of office, and another elected, who is not disqualified. We are of opinion that, on principle, the powers of a special judge terminate when the occasion for his existence has ceased. There can be no substantial reason why the district judge should not proceed to hear and determine any cause on the docket of his court where no cause exists disqualifying him from so doing. If the special judge had proceeded and tried this cause, there is authority for holding, under certain circumstances, that his judgment would not be reversed on appeal; and it seems well established that his judgment would not be held void in any case on collateral attack. In such cases the act of the special judge has been given effect as done colore officii. The case before us, however, was tried by the regular judge of the court in which the cause was pending, who was free from any disqualification, and our opinion is that it was within his constitutional power to proceed and try the cause.

The second assignment of error insists that the letter upon which the action is founded was a privileged communication. The feature of the letter prompting the reading of it to all the addressee desired would remove it from any privilege that may have pertained to it, if the suggestion was observed and the contents of the letter disseminated, which the evidence shows was done.

The fourth assignment complains of the

finding by the court that defendant was pas tor of the church in Nueces county, when the evidence showed him to have been only moderator on one occasion, and urges that this erroneous finding was calculated to influence the court in the matter of punitory damages, because of the standing of defendant. This assignment affects only the exemplary damages allowed, and, if these are excessive on the facts as they are, we can remedy it by reforming the judgment.

The district judge concluded that the letter was libelous as to plaintiff, and adjudged him $60 actual, and $440 exemplary, damages. Defamatory words, applied to an established minister of the gospel, calculated to directly affect his professional standing and occupation, would seem, according to the authorities, to be libelous per se. But it is not necessary for us in this case to so hold. Cooley, Torts, p. 196. The paragraph of the letter referring to plaintiff may not necessarily be construed as charging him with being as capable of committing the crime of seduction and murder as Strong, but similarity of the persons was clearly and directly charged to be in respect to the want of judgment, reason, or moral principles. To say of a person of plaintiff's calling that he is devoid of moral principles is defamatory. The words were undoubtedly actionable if actual damages, as a proximate result of their publication, resulted to plaintiff. The evidence shows that pecuniary loss was sustained by him in the matter of support and contributions to him from members of his denomination, from this cause, between the time it was published and the date of the trial, in an amount at least equal to what was allowed as actual damages. Odgers, Sland. & L. (Bigelow's Ed.) p. 308.

In

Appellant claims it was error for the court to consider any items of damages that occurred after the suit was filed, citing Zapp v. Michaelis, 58 Tex. 270. In that case the pleadings of the plaintiff expressly excluded any claim for damage except what had accrued at the time his petition was filed. this case plaintiff pleads the effects of the publication as existing and continuing. Proper pleading may have required more specific allegations as to the special damages sustained, but no exceptions were made to the petition. Evidence of damages accruing after the suit was filed was introduced without objection, and was properly considered. The judgment for actual damages will be sustained.

There was no attempt on the part of the defendant to prove the truth of the imputations contained in the letter. The onus of proving that the words are true lies on the defendant. The falsehood of the defamatory words is presumed in plaintiff's favor, and he need give no evidence to show they are false. Odgers, Sland. & L. p. 169. The court doubtless concluded they were malicious, because of their falsity, and because defendant, in the

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