LIGHTFOOT, C. J. I respectfully dissent from the views expressed in the foregoing opinion, for the following reasons:

1. Because the landlord's lien is valid, and can be enforced without regard to the distress warrant.

2. Under the facts of this case, as disclosed in the record, it does not appear that the tenant had ever terminated his tenancy, or given notice to his landlord of such intention, before the filing of plaintiffs' petition to foreclose the landlord's lien.

3. The hotel furniture upon which the lien was claimed remained upon the rented premi ses, was in the hotel, was never removed therefrom, nor does it appear to have been in any way disturbed by the officer who levied the distress warrant, up to the time the petition to foreclose the lien was filed; and although the tenant, under such circumstanees, might not have been personally present in the hotel, yet, under the authority of Meyer v. Oliver, 61 Tex. 584, I do not believe that the tenant had ceased to occupy the rented premises for more than one month before the petition to foreclose the lien was filed. In that case it was held that the possession of the officer with the goods of the tenant was the possession of the tenant.

4. In this case there was a serious question as to whether the citation had not, in fact, been issued by the justice of the peace at the time the distress warrant was sued out; but, whether it had or had not been issued, there was certainly no lack of diligence on the part of the landlord in filing the petition and pressing the suit to foreclose the lien. I regard the right of the landlord to such lien a substantial legal right, and not dependent upon any technical or strained construction of the statute. See Bateman v. Maddox, 86 Tex. 552, 26 S. W. 51. Such rights should not be denied where the landlord has been guilty of no laches, but has pressed his claim with the utmost diligence.

I respectfully dissent from the opinion and judgment of the majority of the court.

LARY V. YOUNG et al.

(Court of Civil Appeals of Texas. Sept. 19, 1894.)

APPLICATION OF CREDITS-INSTRUCTION-NECESSITY FOR REQUEST.

1. Where a person indebted on an open account also owes a debt which constitutes a lien on his land, the creditor, in the absence of any specific appropriation of money due the debtor by him, may apply it on the open account; and the debtor cannot subsequently claim a different appropriation, to the detriment of a pur chaser under the lien debt.

2. When a written contract is unambiguous, its construction is for the court.

3. The failure of the court to submit a certain issue to the jury cannot, in the absence of a request for such charge, be complained of for the first time on motion for a new trial.

Action by H. M. Lary, administrator, against H. W. Young & Son. There was a judgment for defendants, and plaintiff brings error. Reversed.

Tarlton & Morrow, for plaintiff in error. McKinnon & Carlton, for defendants in error.

LIGHTFOOT, C. J. This was an action of trespass to try title brought by W. H. McDonald in the district court of Hill county, to recover a lot in the town of Hillsboro, and was prosecuted in the name of H. M. Lary, administrator of W. H. McDonald, deceased. There was a judgment below for defendants, H. M. Young & Son, from which this writ of error is prosecuted. About February 2, 1885, Emerson, Talcott & Co. and H. W. Young & Son entered into the following written con-. tract:

"Articles of agreement made and entered into this 2d day of February, 1885, by and between Emerson, Talcott & Co., of Rockford, Ill., of the first part, and H. W. Young & Son, of Hillsboro, county of Hill, state of Texas, of the second part, witnesseth: That, for and in consideration of the promises made by said second party to faithfully carry out the provisions contained in this agreement, the party of the first part hereby appoint said second party their agent for the sale of the wagons ordered herein, or which may hereafter be ordered during the season ending January 1st, next, to be sold in the following territory, and no other, without special permission, and that said first party agrees to make no other agency in the same territory during the said season. Hillsboro.

"Newton's wagons, with double box, spring seat, brake, feed box, and bows complete. F. O. B. at Batavia, Ill.

"In consideration whereof the said second party accepts such agency for the sale of the above-described wagons, and agrees not to sell, or be interested in the sale of, any other wagons used for like purposes while this agreement is in force. The said second party agrees to deliver no wagon to purchaser without first securing payment in cash, or a well-secured and collectible note, payable to the first party, and further agrees to remit to first party, at Dallas, Texas, the wholesale cash price for each wagon sold for cash within ten days from the first day of the month succeeding date of such sale, and, when called on for settlement of account for the season, to turn over to the first party the whole number of notes taken for time sales, said notes to bear 10% interest from date; to account for wagons sold on time; and notes

said first party, and to become due not later

than November 1st, 1885. Payment of such notes to be guarantied by indorsement of said second party, who hereby promise to take up promptly, 60 days after maturity of same, any and all notes not paid by the makers. It is further agreed that each wagon sold on time shall be represented by a note at the usual retail price for such wagon, and that any wagon not so represented shall be considered as having been sold for cash, and money for same due and payable to said first party on demand; and, if any are sold for part cash and part notes, the cash, except the freight part on wagon, to be remitted to first party at same time as if the whole payment had been in cash. The wagons named herein are now delivered at Hillsboro, and all freight and other charges paid by said second party. Second party agrees also to protect the wagons from the weather, and to insure them in name of, and loss, if any, payable to, first party, and send insurance policy to first party. It is also agreed that the wagons may be shipped by the first party between 188- and 188-, or, not being able to do so between the dates named, to ship as soon thereafter as practicable, and, further, that any wagons ordered in addition to above shall be settled for as per price, terms, and conditions of this contract. Said second party further agrees that the said first party may at any time revoke this contract for nonfulfillment or violation of any of its provisions on the part of the second party, and that all wagons remaining unsold, and all the notes and the money taken for wagons sold, shall be deemed the property of said first party, with undisputed right to take possession of same at any time, and without any claim thereon by said second party or by any other persons, by reason of any act done or promise made by said second party, until a sufficient amount in cash has been paid to said first party to cover the amount then due for wagons furnished to and sold by said second party for account of said first party. It is further agreed that the commission earned by the sale of the goods furnished under this contract shall be that sum received for sales in excess of the wholesale price charged for same by first party. When the full amount due first party has been paid them in cash from the cash sales and from collections made by first party on the notes, the balance shall be turned over to second party in full of their commission, except that the interest on the notes shall go to first party. In testimony whereof the said party of the first part and the party of the second part have hereunto set their hands the day and year first above written. Emerson, Talcott & Co. Per Shive. H. W. Young & Son."

About January 10, 1885, H. W. Young & Son purchased the lot in controversy, and in part payment for the same exchanged two wagons furnished to them by Emerson, Talcott & Co., and gave to them for the price of

said two wagons the note of said H. W. Young & Son for $110, due November 1, 1885, with a deed of trust to secure the same on said town lot. The note not having been paid at maturity, the lot was sold under the deed of trust, and bought at the sale by Emerson, Talcott & Co., who sold the same for $250 to W. H. McDonald, intestate of plaintiff in error. The record does not show that McDonald knew. anything about the transaction between Emerson, Talcott & Co. and Young & Son. It was claimed by defendents in error that at the time of the sale of the lot under the deed of trust they had sufficient commissions in the hands of Emerson, Talcott & Co. to pay off the $110 note and release the deed of trust. It was shown by the testimony, and not controverted, that, at the time of the sale under the deed of trust, Emerson, Talcott & Co., or their agent, had in their hands some notes which had been placed there by Young & Son, as the purchase price for wagons sold under said contract; said notes being against various parties, and indorsed by Young & Son, and said notes embracing the amounts going to the company, and also the commissions: of Young & Son.

1. The following charge was given by the court to the jury, which was objected to by plaintiff in error, and the objection properly presented by his first assignment of error: "If you believe fom the evidence that under the contract between Emerson, Talcott & Co. and H. W. Young & Son, said Emerson, Talcott & Co. were to furnish said H. W. Young & Son with wagons at a certain stipulated price, and that said Young & Son were to sell the same for cash or on a credit, and take notes for them, if any sold upon time, and were to indorse said notes, and send same to said Emerson, Talcott & Co. or to their agent, J. M. Wendelkin, and said Young & Son were to receive a certain per cent. upon the payment of each of said notes as commissions for their services in making sale of said wagons, and shall believe that said Young & Son had sold wagons so provided them, and had remitted to said Emerson, Talcott & Co. or their said agent the notes, indorsed by them, said Young & Son received for the sale of wagons, and shall further believe from the evidence that said notes, or any one of them, or more than one of them, had been paid to said Emerson, Talcott & Co. or their said agent at the time of the sale of the land sold by said plaintiff acting as a trustee as aforesaid, so that at the time of said sale there was due said Young & Son, as commissions upon the notes so paid, if any, an amount sufficient to pay off and discharge the note executed by Young & Son for the sum therein named; that by agreement between the parties the said company or its agent had the right to pay off said note with amount of such sum as commissions then in the hands of said company or its agent; and that the amount of said commissions, if any,

was at said time in the hands of Emerson, Talcott & Co. or their agent, then, if you so believe from the evidence, you will find for the defendants." This charge was erroneous, and calculated to mislead the jury. The contract between the parties was in writing, and its terms easily understood; and, from the testimony of the parties themselves, it is evident that upon the material points they all understood it alike: (1) The goods were billed to Young & Son at the wholesale prices, and they were to make, as their profits, the difference between such wholesale prices and the prices at which they might sell. (2) In cash sales, Young & Son were allowed to deduct their profits out of each sale, and were to remit only the wholesale price directly to Emerson, Talcott & Co. (3) In sales on credit, or for part cash and part on credit, they were to send the whole amount of both cash and notes to Emerson, Talcott & Co. (4) All notes were to be indorsed by Young & Son, were to be payable not later than November 1, 1885, and if not paid in sixty days after maturity they were then to be taken up and paid promptly by Young & Son. (5) When the full amount due to Emerson, Talcott & Co., at the wholesale prices for the wagons, was paid, the balance, whether money or notes, or both, was the property of Young & Son. There was no evidence of any contract by which Young & Son were to get any fixed per cent. upon sales, nor did they have any right to deduct from each separate sale their profits, except in sales made entirely for cash. There is no testimony in the record showing or tending to show that at the time of the sale of the lot in controversy there had been any settlement between Emerson, Talcott & Co. and Young & Son upon this contract, or that all the notes turned in by the latter and guarantied by them have been settled, or that under such a settlement there would have been an amount due to them sufficient to pay off and discharge the $110 note. The charge, as given, seems to construe the contract to mean that, upon the collection of each separate note, Young & Son could immediately claim their profits or commissions upon that particular sale, and if, by agreement of the parties, the company had the right to pay off said note out of such commissions, that, whenever a sufficient amount should be realized upon such notes to thus give Young & Son a credit large enough to liquidate the $110 note, it was the duty of the company to so apply it, even though there might remain on hand a large amount still due Emerson, Talcott & Co. for notes unpaid or for wagons unaccounted for under the terms of the contract. We do not thus construe the contract made by the parties. But even if Young & Son at the time of the sale had a credit in the hands of Emerson, Talcott & Co., which they had directed paid on their indebtedness, if Young & Son were indebted for wagons on general account and also for the $110 lien debt, in

the absence of any specific appropriation of such credit to the $110 lien debt, the creditor would have the right to appropriate it to either debt, and Young & Son could not subsequently be heard to claim a different appropriation, to the detriment of a purchaser under the lien debt, if he bought upon a clear record, without notice of the arrangements between the debtor and creditor. Willis v. McIntyre, 70 Tex. 34, 7 S. W. 594.

2. Plaintiff in error, under his third assignment, complains of the following charge: "But, on the other hand, if you believe from the evidence that by the terms of the contract between Emerson, Talcott & Co. and said Young & Son, said Young & Son were to sell wagons furnished them by said company, and to receive notes for such wagons as were sold on a credit, and that said notes, after having been indorsed by said Young & Son, were to be sent to said Emerson, Talcott & Co., or their said agent, and that by the terms of said contract no commission arising from the sales was due and payable to said Young & Son until all the notes sent by them to said company or its said agent had been paid off, and shall further believe from the evidence that said company or its said agent had in possession, at the time of the sale by said sheriff under authority of said deed of trust, notes which had not been paid off, then you cannot find for defendants under their plea of payment." This charge is objectionable upon the ground that, in attempting to present the view of plaintiff in error of the case, it presents the written contract, which is plain in its terms, for the construction of the jury, and in doing so places upon plaintiff in error the burden of showing therefrom that no commissions were due to Young & Son "until all the notes sent by them to said company or its said agent had been paid off," when, by the plain terms of the written contract, which should have been construed by the court, "when the full amount due first party [Emerson, Talcott & Co.] has been paid them in cash from the cash sales and from collections made by first party on the notes, the balance shall be turned over to second party [Young & Son]," etc. Young & Son were not to wait until all the notes were collected by Emerson, Talcott & Co. before they should get their profits from the notes, but they were to wait until the full amount due to Emerson, Talcott & Co. had been paid them in cash from such sales and collections, and the balance should then be turned over to Young & Son.

3. Under the fourth assignment, which is upon the court's overruling the motion for new trial, plaintiff in error attempts to raise the question of error in the court's refusal to submit to the jury the issue as to whether McDonald was an innocent purchaser. It does not appear from the record that plaintiff in error requested any charge submitting that issue. In the absence of any attempt to procure the court to submit the

4. The counsel for defendants in error, in their able brief, contend that the questions presented by plaintiff in error are not material, for the reason that, certain deeds in plaintiff's chain of title being void for want of sufficient description of the lot, it was the duty of the court below to have charged the jury to find a verdict for defendants, and that this court should affirm the judgment below, as the result could not have been otherwise. We cannot agree with this position. It is conceded that the lot is properly described in the petition. After describing it by metes and bounds, giving the number of lot and block and street, it says, "Being the same property conveyed to Young, Martin & Co. by G. V. Rawls, by deed recorded in book 12, page 541, Hill County Deed Records." The description in the deed of trust, while not so full and clear, yet describes the lot as situated on South Waco street (which is admitted to be South Main street), in the town of Hillsboro, in said county and state, being the same house and lot deeded to Young, Martin & Co. by G. V. Rawls and wife. This deed to Young, Martin & Co. by Rawls and wife was introduced in evidence, and described the land as set out in the petition. This testimony was certainly sufficient to allow the case to go to the jury, and the court would not have been justified in instructing a verdict for defendants in error upon that point. For the errors indicated above the judgment is reversed, and the cause remanded for a new trial.

TAYLOR et al. v. BROWN. (Court of Civil Appeals of Texas. Sept. 13, 1894.)

TRESPASS TO TRY TITLE-EVIDENCE-LIMITATIONS -INTERRUPTION OF STATUTE.

1. In trespass to try title the parties stipulated that the sole issue was the location of the boundary line between two leagues in which their lands were respectively located, but reserved the right to plead and prove the statute of limitations as far as applicable. Held, that evidence of title by limitation to the land in dispute was admissible.

2. In trespass to try title, where an amended petition is filed, including land not included in the original petition, the running of the stat ute of limitations as to such additional lands was not interrupted by the filing of the original petition.

3. In trespass to try title, where defendant shows possession under a deed from some of the heirs to the land, and a subsequent partition, in which the identical land was allotted him, there is privity of title between the deed and the partition, which will support a plea of the five years' limitation.

Appeal from district court, Wharton county; T. S. Reese, Judge.

Trespass to try title by J.W. Brown against W. T. & S. T. Taylor. There was judgment

G. G. Kelley, W. S. Brooks, and Hume & Kleberg, for appellants. A. B. Peticolas, E. Hawes, and Willie, Campbell & Ballinger, for appellee.

GARRETT, C. J. J. W. Brown filed his original petition of trespass to try title in the district court of Wharton county on March 17, 1885, to recover of the appellants a certain tract of land, described in the petition as one-fourth league No. 12, known as the "Seth Ingram League," on the San Bernard river, as well as by metes and bounds, which embraced only land wholly within the Seth Ingram league. Plaintiff also averred that he and those persons under whom he claimed, claiming to have good and perfect right and title to the land, had held peaceable, continuous, exclusive, and adverse possession thereof for a period of more than 25 years before the entry of defendants, and prayed that a surveyor be appointed, and ordered to make a survey marking the lines, and showing what part of plaintiff's land the defendants had fenced, etc. The defendants were claiming a tract of land adjoining plaintiff's land, situated in the Edwards league. On October 22, 1885, plaintiff and defendants, by their attorneys, entered into a written agreement, which, in addition to stipulations for a survey of the land, as to the surveyor's report, and as to record evidence, contained the following: "It is hereby agreed that there is no conflict of title in this case, but merely a question of boundary; that plaintiff owns his land in the Ingram league, No. 12, by valid title, and defendants own their land in the Edwards league by valid title, and the subject of the dispute is to fix the true dividing line between said two leagues, which is the boundary between plaintiff and defendants." Also: "Either party may plead and prove the laws of limitation, good faith, and valuable improvements, so far as applicable or relevant, and also value of use and occupation and damages." April 24, 1891, plaintiff filed a second amended original petition, in which he claimed title to the land by the statute of limitation of five and ten years, but in describing the same the calls for distance to the southwest and to the northwest were extended beyond the original calls, and were not limited by the southwest boundary of the league as in the original petition. The de fendants answered that there was no conflict of title, but of boundary only, between the parties, the issue being the location of the dividing line between the Ingram and Edwards leagues,-plaintiff's land lying in the Ingram and defendants' land in the Edwards. They also pleaded facts with reference to the fixing of the line claimed by defendants, by which they averred plaintiff was estopped to claim a different line; the statute of five years' limitation; and improvements in good faith.

It is shown by the evidence that on December 4, 1866, plaintiff and one Williams bought from E. D. Galbraith the one-quarter of a league allotted to Nancy Thompson in the partition of the Seth Ingram league, which was described in the deed as in plaintiff's original petition. Galbraith bought from Nancy Thompson in 1857. After Galbraith bought, he cleared a field on the southwest end of the tract, and put it in cultivation, and the fence on the southwest side of this field is the line to which plaintiff claims. Defendants, claiming land on the Edwards league, in 1883, procured a surveyor to run out the league line, and in accordance with this survey moved up their fence, and took in their inclosure about 97 acres of the old Galbraith field, which had been in the possession of plaintiff and his vendor for more than 20 years. Defendants have remained in possession of that portion of the old Galbraith field fenced in by them ever since 1883 under a deed duly recorded, having paid all taxes. The case was tried below without a jury. The court rendered judgment for the land in controversy, up to the old field fence, in favor of plaintiff, upon his title by limitation, holding that the filing of plaintiff's original petition interrupted the statute of limitations running in favor of the defendants. Upon the question of boundary the trial judge found that he was unable to ascertain the boundary, but that it was not nearer the old Galbraith field fence, to which plaintiff recovered, than 450 varas.

Complaint is made here of the admission of evidence by the court below to prove title in plaintiff by limitation, it being claimed that he is precluded from doing so by the agreement between the parties above mentioned, it being contended that the agreement restricts the issues to one of boundary. It is true that the first part of the agreement appears to make the restriction as contended, but when construed with the latter part, with respect to limitation, its force is only to rehieve the parties from the necessity of prov

g up title to the lands claimed by them within the respective leagues. The language of the reservation as to limitation is

"prove the laws of limitations" as far as applicable. While proof of lapse of time in connection with possession to a boundary, and acquiescence therein, is admissible to prove boundary, still there is no fixed period of limitation that would do so, and the laws of limitation are not applicable to a question of boundary. So there was no error in receiving the evidence to show that the plaintiff had title by limitation. It was authorized by the pleading, and was not in contravention of the agreement.

But the court erred in holding that the statute of limitation already in operation in favor of the defendants was interrupted by the filing of the original petition. The description contained in the second amended -original petition, upon which the recovery

was had, includes land clearly not included in the original petition. It includes, in addition to the land described therein, all of the land recovered to the southwest of the Ingram southwest boundary, the latter de scription extending the lines running southwest several hundred varas, and ignoring the call for the Ingram southwest boundary, and extending several hundred varas beyond it. As to so much of the land described in the second amended original petition as lay beyond the boundary, the cause of action was a new one. The evidence showed that Brown claimed the old field fence as the boundary in claiming to the boundary; hence his claim was such as would be requisite to support the statute of limitations. There was not sufficient evidence to support the plea of estoppel.

For the error of the court in holding that the statute of five-years limitation, which had commenced to run in favor of the defendants, was interrupted by plaintiff's original petition, the judgment of the court below will be reversed, because the full term of five years ran before the filing of the second amended original petition. This view of the case makes it at last one of boundary, as far as presented by the record, for the limitation running in favor of defendants was interrupted by the original petition as to all the land included in the Ingram league. But as the court failed to ascertain the boundary the cause must be remanded for another trial. Reversed and remanded.

On Rehearing.

In giving our reasons for reversing the judgment of the court below in this case, we did not deem it necessary to discuss the two questions presented in the motion for rehearing as having been passed over by this court in the opinion.

1. The evidence with regard to the depositing with the clerk of the pleading styled "First Amended Original Petition" utterly fails to show that it was done within five years from the time defendants took possession of the land under their deed from J. H. Shapard, and the finding of the court below that there was no satisfactory evidence to justify its being considered as a paper filed in the case could not have been otherwise. 2. Defendants claimed the land under a deed from J. H. Shapard executed September 2, 1883. The defendant W. T. Taylor testified: "I went into possession of this portion under my deed from Shapard, and have held possession under this deed ever since, having always claimed the identical land conveyed to me by Shapard. I bought onethird of the Edwards league from the heirs, and also the one hundred acres from Mr. Shapard; but afterwards it was found that in the first partition of the league, made before my purchase from Shapard and from this heir,-that one heir was left out,—and since this suit was brought there has been