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ceedings and sale. From the statement of facts before us, it

appears undisputed that C. K. Reese entered into a contract with R. J. Townes, by the terms of which the latter was to procure a duplicate certificate in lieu of certificate No. 743, and for his services the former agreed to give him (Townes) one-fourth of the duplicate certificate.

C. K. Reese died in 1858, leaving a will by which he bequeathed to his executors, A. G. McCormick and E. Stevens, all his property, to be held by them in trust for the benefit of his children, and to be conveyed by his executors to his children, share and share alike, as they became of age. His executors were not required to give bond, and they were made, by the will, guardians of the children, and clothed with full power to manage his estate independent of the probate court. The will was duly probated, and McCormick only qualified as executor. He inventoried three-fourths of the certificate as belonging to the estate of his testator. The agreement made between C. K. Reese and R. J. Townes, by which the latter was to procure a duplicate certificate of certificate No. 743 and receive for his services one-fourth of such certificate, was recognized by McCormick as executor of the estate of C. K. Reese. Townes procured a duplicate of certificate No. 743, the duplicate being No. 167, and placed it in the hands of H. E. Taylor, of Fannin County, for location. In 1860 a part of the duplicate certificate was located on the land in controversy in Grayson County, and patent issued May 17, 1872, to Joseph Reese, his heirs and assigns. R. J. Towns died in 1875, leaving a will by which he appointed Chas. S. West independent executor. A. G. McCormick as independent executor of Chas. K. Reese, and Chas. S. West as independent executor of R. J. Townes, made a verbal agreement by which they agreed that West, as independent executor of R. J. Townes, was to have the survey in controversy and another tract of 160 acres of land in Grayson County located by the same certificate, and that A. G. McCormick, as executor of the estate of Chas. K. Reese, was to have the unlocated balance of said certificate. C. S. West, as executor of Townes, in 1875 executed a deed to H. E. Taylor conveying the undivided 160 acres of the land in controversy and also 160 acres in Grayson County, located by virtue of the same certificate. On September 28, 1898, H. E. Taylor, by his deed of that date, conveyed to appellee, H. L. Hall, the undivided 160 acres of the lands in controversy. The deed recited that it was the land conveyed to H. E. Taylor by C. S. West as executor of R. J. Townes, who died in 1865. He left surviving him as his only heirs five children, whose names are Allen R. Townes (one of the appellants), N. Cobb Townes, Mrs. Mila T. Morris, Mrs. Pattie E. Rector, and Mrs. Pollie T. Carlton. Mrs. Carlton, as one of the heirs of Townes, joined by her husband, Fred Carlton, on the 7th day of August, 1898, by deed of that date, conveyed to appellee, H. L. Hall, her undivided one-fifth interest in all the lands involved in this suit, the deed reciting that the interest conveyed was that to which she was entitled as an heir at law of Robt. J. Townes. In October, 1900, prior to the institution of this suit, N. Cobb Townes, Mila T. Morris, and

Pattie E. Rector, conveyed all their undivided interest in the land in controversy to the appellant, W. D. Gordon.

In the abstract of title filed in this case by the appellee, R. L. Hall, the deeds from H. E. Taylor and the one from Pollie T. Carlton and her husband, above described, appear; and there is also set out in his abstract of title a judgment rendered in March, 1900, by the Court of Civil Appeals of the Fifth Supreme Judicial District of Texas, in the case of H. L. Hall v. Unknown Heirs of Joseph Reese, No. 2768, quieting Hall's title and possession of the land in controversy. The opinion of the court recites the facts upon which the judgment was rendered, and it appears therefrom that it was based upon the findings that R. J. Townes acquired title thereto by virtue of his agreement, hereinbefore stated, with C. K. Reese, and the partition made by their executors above referred to, and that Hall was in possession of the premises, claiming the same through Townes, as his source of title, by virtue of the deeds made to him (Hall) by Taylor and Pollie T. Carlton. The opinion is reported under the style of Hall v. Reese's Heirs, in 58 Southwestern Reporter, 974, and is here referred to for the purpose of verifying our holding that it is based upon the findings stated.

The other appellees claim through Hall on contracts made subsequent to his purchase from Taylor and Mrs. Carlton.

These undisputed facts, standing alone, in our opinion conclusively show that appellants and appellees claim title to the land in controversy through R. J. Townes as a common source, and that under such source appellants have title to four-fifths and appellees one-fifth of the premises.

“Evidence that the defendant claims title under the common grantor is prima facie proof that such grantor had the title at the time he undertook to convey the right which the defendant claims; and this necessarily involves the assumption that he had acquired the title of all previous owners. The true rule as to proof of common source means this, if it means anything. The rule is statutory in this State; and to permit a defendant to defeat its operation by showing the naked fact that previous to the time the grantor undertook to convey, some third party had title, would render it nugatory.

Since plaintiff must prove his title in order to recover, it would seem that when he has shown title under the common source, that proof by defendant, however made, that the common grantor had no title ought to be a defense. But

evidence merely of title in some one anterior to the conveyance of the common grantor does not make such proof.” Rice v. Railway, 87 Texas, 91.

“The effect of proof of common source by the plaintiff can not be met and overcome by the defendant merely by showing that he claims the land under another source of title which is defective and legally insufficient as evidence of title. He can prove any title which he possesses, but he can not escape from the rule of common source by showing a different claim of title under muniments which do not invest title in him.” Smith v. Davis, 47 S. W. Rep., 104.



The appellants having proved the common source and a superior title to four-fifths interest in the land under such source, it devolved upon appellees to meet the prima facie case thus made against them by proving they held title to the premises by virtue of a title superior to the common source. This was not done by proof of the judgment recovered by Hall against the Reese heirs in the Court of Civil Appeals above referred to. This judgment, in our opinion, emphasizes and strengthens appellant's proof of common source. In other words, it demonstrates conclusively to our mind that Hall could not have recorered in that case without showing that the title of the Reese heirs had been divested and passed from them to R. J. Townes, and that he (Hall) held title under Townes. Though his interest acquired through Townes was only one-fifth, yet it entitled him to recover possession of the entire tract. But his recovery inured to the benefit of Townes' other heirs or their grantors, who were his tenants in common. If, as Hall contends, his purchase from Taylor and Mrs. Carlton was merely for the purpose of "buying his peace,” it still devolved upon him to show that he held possession of the land by title superior to the one he had acquired for that purpose. The burden of proving this was upon him, a prima facie case having been made out by appellants showing common source, and this burden was not met by proof of the naked fact of possession at the time he obtained the deeds from Taylor and Mrs. Carlton. He offered no other proof of title than possession. This possession must, to have constituted title, have been of such a nature and character and continued for such length of time as would constitute it under the statute of limitations. As to whether the evidence shows he had acquired title by limitations prior to the time of his purchase from Mrs. Carlton, was a question of fact to be considered by the jury. We will not discuss the evidence upon this question, but will say that it is certainly not of such conclusive character as would warrant the court in holding as a matter of law that it constituted title, and in instructing a peremptory verdict in favor of appellees. The evidence upon this question is not materially different from that in Hall v. Clountz, 63 Southwestern Reporter, 941, decided in this court, in which the question of Hall's title by limitation to a part of the land in controversy was directly in issue, in which it was held that the evidence was insufficient to show such title. Yet in our opinion, under the undisputed evidence, the appellants in this case were entitled to recover the interest claimed by them in the land sued for, if it were not for appellee's claim of title under the statute of limitations and the evidence introduced by them upon it. This, in our judgment, is the only issue in the case, and were it not that there is some evidence upon it entitling it to be determined by a jury, we would, without hesitation reverse the judgment of the court below and render judgment here for appellants.

Under this view of the case, it is unnecessary for us to consider any of the assignments of error made by appellants upon the exclusion of evidence offered by them.

The judgment of the District Court is reversed and the cause remanded.

Reversed and remanded.


As the undisputed evidence shows that appellants and appellees deraign title from a common source, and the evidence excluded was for the purpose of showing title in such source, we deem it unnecessary to pass upon the assignments of error which complain of the rejection of such evidence. If appellants' title under the common source is superior to appellees', the latter can not recover without showing the existence of a title independent of and superior to the one emanating from such source, and that they hold under such independent and superior title. Therefore it is immaterial whether the common grantor of both parties had title or not, and there could be no such issue between them for the admission of the evidence.

As the evidence shows that appellees contended throughout the trial that the judgment in the case of H. L. Hall v. Unknown Heirs of Joseph Reese did not inure to appellants' benefit; that they could claim nothing by virtue of it; that it inured to appellees' benefit alone; and that appellees claimed title independent of such judgment, we deemed it unnecessary to pass upon the questions raised by the assignments which complain of the court's overruling appellants' exceptions to that part of appellees' first supplemental petition which alleges certain expenses, including attorney's fees, traveling, etc., incurred in the prosecution of such suit, and asks, in the event of appellants' recovery of the land, they be charged with such expenses and that they be decreed a lien upon the premises in appellees' favor. This we denied for the reason that no court, in the face of such contentions, would permit a recovery by appellees for such expenses. However we are of the opinion that the exceptions to the supplemental petition should have been sustained.


Decided May 28, 1902.


Ownership of the fee is not essential to the existence of the homestead, which may even be of such nature as to be a mere chattel, or a leasehold interest. 2.-Same-Ungathered Crops.

Ungathered crops growing upon a homestead are exempt from execution, since a levy thereon and gathering them would involve an invasion of the homestead right. 3.-Same Measure of Damages-Conversion.

Where ungathered crops on a homestead are unlawfully levied on and appropriated, the value of the crops affords the measure of damages, so far as the mere conversion is concerned.

4.-Same-Evidence-Crop Not Matured.

Evidence that a crop of cotton was thrice picked over after a levy on it, sufficiently shows that the crop was not matured at the date of the levy, and warranted the court in refusing to charge upon the theory that the crop was matured and therefore subject to levy. 5.—Homestead-Leased Tracts Not Contiguous Designation.

A homestead may consist of several separate parcels of leased land, and it is not necessary that they should be contiguous, or be acquired at the same time, or from the same landlord; and there need not be such use of the subsequently leased tract as would amount to an original designation of a homestead. 6.-Same-Damages-Consent to Subletting.

Where the defendant claimed damages for a levy on his crops, on the ground that they were a part of his homestead, which was on leased premises, the plaintiff could not, in defense, raise the issue of whether defendant, who was a sublessee of the land, was occupying with the consent of the owner. 7.—Lease Subletting--Ratification.

Where a sublessee enters and cultivates a crop and the owner thereafter claims a part of the gathered crop as rent, there is a sufficient ratification of the subletting. 8.-SameHomestead-Rents.

Where crops levied upon by attachment and converted by the plaintiff were exempt from execution, and the defendant recovered in reconvention therefor no more than his actual damages, the amount so recovered by him could not be offset by the judgment for plaintiff on his debt, since if this could be done, the exemption would be rendered ineffective.

Appeal from the County Court of Collin. Tried below before Hon. J. H. Faulkner.

Abernethy & Beverly, for appellants.

NEILL, ASSOCIATE JUSTICE.— This suit was brought by appellants on a promissory note to recover a balance of $552.53. At the time the suit was instituted an attachment was sued out and levied upon twentyfive acres of cotton growing upon premises leased by appellee.

The appellee, defendant below, plead general denial; payment of the note; that the cotton levied on was growing on his homestead, and exempt from execution; that it had been converted by appellants to appellee's damage in the sum of $600; and that the writ of attachment was wrongfully and maliciously sued out, for which he asked in reconvention exemplary damages.

The case was tried by a jury, who returned a verdict in favor of appellants for $486.71, the amount due on the note, and also in favor of appellee for $586.17, actual damages, and $51.61 exemplary damages. Upon this verdict judgment was rendered for the respective parties. After its rendition the appellee remitted $100 of the actual and all of the exemplary damages, the aggregate amount of the remittitur being $151.66. The judgment provides that the amount recovered by appellee can not be offset by the sum recovered by appellants, for the reason that appellee's judgment is for damages arising from the attachment of his exempt property. From this judgment Moore & Rollow have appealed.

The facts show that at the time the suit was instituted and the writ

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