It is insisted that the certificate of the officer who took the deposition does not sufficiently identify the answers of the witness which he certifies were made, signed, and sworn to before him, or show that the deposition offered in evidence was the deposition made before him. This contention seems to be based upon the apparent conflict between the answer to the eighth cross-interrogatory, in which the witness answers that he wrote his answers himself and no one was present, and the statement in the certificate to the effect that the notary reduced the answers to writing. The certificate and caption should be read together. The caption preceding the answers to the direct interrogatories correctly gives the style and number of the case, the court, county, and State in which the suit is pending is named, and the answers are declared to be those of Dr. A. Slack to the cross-interrogatories. The certificate itself says that the answers were taken by virtue of a commission issued out of the District Court of Grayson County, Texas, in the case in which J. C. Denton was plaintiff and the Missouri, Kansas & Texas Railroad Company was defendant, cause being numbered 13353; that the answers are those of Dr. A. Slack to the direct and cross-interrogatories, and that the same "were signed and sworn to by said witness before me." There is no contention that any other commission was ever issued to take the deposition of said witness. There is no contention that the answers read in evidence were not those taken on the interrogatories upon which commission was issued June 19, 1901. The answers themselves show that they are responsive to the questions. There is no contention that these answers were not returned by the officer with the commission and interrogatories by virtue of which he says the deposition was taken. conclude that the deposition clearly identifies the answers therein as the answers of the witness made before the officer. Nor do we think the fact that the answers were reduced to writing by the witness not in the presence of the officer ground for quashing the deposition. When the witness went before the officer and swore to his answers he assented to the answers as there given. Newton v. Emerson, supra; Carlisle v. Plenner, 11 Wis., 99.

We

3. There was no error in refusing the special charges the refusal of which is made the ground of complaint in the second and third assignments, for the reason they were embraced in charges already given.

4. There was evidence sufficient to support the verdict of the jury, and hence the court did not err in overruling the motion for a new trial.

Finding no error in the record, the judgment is affirmed.

Writ of error refused.

Affirmed.

F. M. HENRY ET AL. V. H. L. McNEW ET AL.

1.-Assignments of Error.

Decided April 5, 1902.

An assignment that "the court erred in overruling defendant's general exceptions and special exceptions one, two, three, four, and five to plaintiff's petition," is too general to be considered where the exceptions relate to different matters and are not such as should be embraced in one assignment.

2. Same Statement.

A statement under an assignment that "the petition contains no sufficient description of the land by metes and bounds or by any certain matter of description or identity and is manifestly void for uncertainty," does not point out the particular defect, and the description appearing to be sufficient on its face, the court is not called upon to search for the supposed defect.

3.—Jury Trial—Constitutional Law—Instructing Verdict.

It is not a violation of the constitutional right of trial by jury for the court to instruct a verdict where the evidence is so conclusive one way as to prohibit a finding to the contrary.

4.-Trespass to Try Title-Evidence Held Sufficient.

Evidence held sufficient to authorize the court to instruct a verdict for plaintiff in an action of trespass to try title.

5.-Deed-Description of Land-Calls.

Where a river is the north boundary line of a grant of land, and in a muniment of title the call for that line is "with the meanderings of the river," this is equivalent to the numerous calls for such meanders in the original survey, and is sufficiently definite to define the north line.

6. Same-Description by Patent Number, etc.

Where the entire original grant is in litigation, a description of it in plaintiff's petition by giving the county where situated, name of patentee, number and date of the certificate and by whom issued, and the number and volume of the patents is sufficient to call to its aid the original survey, patent, etc., in fixing the true location of the land.

7.-Trespass to Try Title-Parties-Administrators.

Where three persons owned a tract of land subject to a vendor's lien, and one of them having died, the other two purchased the interest of his heirs, it was not necessary in an action against such two owners to foreclose the lien, brought after all the decedent's debts had been paid, that his administration should be made a party, though he had never been formally discharged.

8.-Community Property-Foreclosure of Lien-Heirs of Wife-Parties.

Where a husband acquired in his own name but as community property land which was incumbered by a lien, a foreclosure of the lien and sale thereunder after the death of the wife, in an action against the husband alone, was conclusive against the children of the wife, especially where the lien holders had no notice of the children's rights, and the land had also passed into the hands of purchasers for value without notice of such rights.

9.-Limitations-Possession Not Adverse.

Where parties hold land through and under a deed reserving a vendor's lien, they are concluded by a foreclosure of the lien in a suit against them, and can not plead the time they held the land prior to the foreclosure as a bar by limitations in an action by one claiming under the foreclosure.

Appeal from Bowie. Tried below before Hon. J. M. Talbot.

Henry & Henry, for appellants.

A. L. Beaty, for appellee.

RAINEY, CHIEF JUSTICE.-This is an action of trespass to try title and for damages brought by H. L. McNew and R. J. Thomas, appellees, against F. M. Henry, Jane B. Henry, P. G. Henry, Geo. R. Summerhill, Dudley Starks, Geo. W. Summerhill, and Pattie P. Summerhill, appellants, and W. T. Elkins, Del Hudson, Joe Green, Philip Davis, S. J. Anderson, W. N. Anderson, Rebecca E. Amis, Mary E. Carson, and G. B. Elkins.

The plaintiffs deraign title from the State. Also claimed title by ten years limitation through those under whom they claim, and further for rents, etc. George R. Summerhill was cited individually and as administrator of the estate of Wm. H. Summerhill, deceased, though plaintiff did not admit that he was then exercising the office of administrator of said estate.

Defendants F. M. Henry, Jane B. Henry, P. G. Henry, George R. Summerhill individually and as administrator of the estate of Wm. H. Summerhill, Geo. W. Summerhill, and Pattie P. Summerhill answered by general and special exception, plea of not guilty, limitation of five and ten years and also in reconvention for the land and for damages for being forcibly ejected from the land.

Dudley Starks answered by general demurrer, not guilty, and adopted the answer of F. M. Henry and others. All the other defendants failed to answer. A trial was had and under peremptory instructions a verdict was returned in favor of plaintiffs against all the defendants and judgment rendered accordingly, from which judgment F. M. Henry, Jane B. Henry, P. C. Henry, Geo. R. Summerhill in his own right and as administrator aforesaid, Dudley Starks, Geo. W. Summerhill, and Pattie P. Summerhill have appealed.

The first assignment is: "The court erred in overruling the said defendants' general exceptions, and special exceptions 1, 2, 3, 4, and 5 to plaintiffs' petition." This assignment is too general to be considered. The exceptions relate to different matters and are not such as should be embraced in one assignment. A statement under said assignment states, that "the petition contains no sufficient description of the land conveyed by the sheriff's deed; it is not described by metes and bounds and by any certain matter of description or identity, and is manifestly void for uncertainty in the description of the premises." This fails to point out the particular defect, if any, in the description of the land, and if the assignment itself was sufficient we do not feel called upon to make search for the supposed defect. The description appears to be sufficient on its face.

The second assignment of error complains of the action of the trial court in directing the jury to return a verdict for the plaintiffs. The first contention is "That under and by virtue of the Constitution of the United States and the amendments thereto, the said defendants were entitled to a trial by jury. That no person shall be deprived of their property except by due process of law." The defendants called for a

Vol. 29 Civil-19.

jury and paid the jury fee. The contention is not sound. It is so well settled by the decisions of our Supreme Court that where the evidence is so conclusive one way as to prohibit a finding to the contrary the trial court is authorized to instruct a verdict that the citation of cases is unnecessary.

Was the evidence of such nature as to require a submission of the case to the jury for their consideration? We think not. The plaintiffs proved title by a regular chain of mesne conveyances from the State down to themselves. Also by the ten years statute of limitation through those under whom they claim. Both plaintiffs and defendants hold under Horace Summerhill. On January 29, 1858, James Park, the then owner of the land, conveyed it to Horace Summerhill in consideration of $10,000, for which Horace Summerhill executed his three certain promissory notes for $3333.33 each, payable in twelve, fourteen, and thirty-six months respectively, and to secure the payment of the same a lien on the land was reserved in said conveyance. Horace Summerhill conveyed the land in controversy by separate deeds and separate tracts to three of his children, to wit, Geo. R. and Wm. H. Summerhill and Mrs. Amis. Beside these he had two other children, Mrs. Wilkinson and Mrs. Carson. He died in 1886. All of said children, except Wm. H., survived him. Wm. H. died in 1881 without having married. George R. Summerhill administered on his estate the same year. All the debts of said estate were paid prior to the year 1889, though no order of court was ever made discharging him as administrator. Mrs. Amis, Mrs. Wilkinson, and Mrs. Carson conveyed their interest in the land inherited from Wm. H. to Geo. R. Summerhill and F. M. Henry, which placed the entire survey in Geo. R. Summerhill, Mrs. Amis, and F. M. Henry. Geo. R. had prior to that time sold to said Henry a part of his land. In 1862 James Park sued Horace Summerhill on the purchase money notes above mentioned in Alabama. Litigation in one form or another relating to this debt continued until 1894, when Tempe Darrow compromised and settled the matter by paying $6110.19, the property inherited by her being bound therefor by reason of her father being surety for Horace Summerhill on an injunction bond given in connection with said litigation. In 1896 Fannie Caudle, the only surviving heir of W. A. Park, instituted suit against F. M. Henry, Geo. R. Summerhill, and Rebecca E. Amis to foreclose a lien on the land in controversy for a balance alleged to be due on a judgment recovered by Jas. Park against Horace Summerhill on said purchase money notes. Tempe Darrow and husband intervened, claiming that she was entitled to be subrogated to said lien having been compelled to pay the debt. The lower court gave judgment for defendants and Tempe Darrow appealed to this court, where judgment was rendered in her favor subjecting the land to her claim. See Darrow v. Summerhill, 58 S. W. Rep., 158. On error to the Supreme Court the judgment of this court was affirmed. See Summerhill v. Darrow, 57 S. W. Rep., 942. A mandate was issued from the Supreme Court to the District Court requiring an order of sale to issue,

and in case of sale to put the purchaser in possession. An order of sale was issued as required by saíd mandate, the land sold, Geo. M. Darrow and A. L. Beaty becoming the purchasers thereof, the sheriff executing his deed to them, and said Darrow and Beaty conveyed to appellees.

Horace Summerhill and his children had possession of the land from 1859 to 1901, cultivating, using and enjoying same and paying taxes thereon except as to the part sold to F. M. Henry, who held possession, etc., of that part from the date of his deeds, all holding possession under the deed from Parks to Horace Summerhill. Defendants introduced no evidence which in our opinion raised an issue requiring its submission

to the jury. They made many objections to the introduction of plaintiffs' evidence on which assignments are predicated and which will be hereafter noticed.

The third contention of appellants under the second assignment of error is in effect that the description of the land given in plaintiffs' petition is so uncertain and indefinite that the land can not be identified. The above map shows the boundaries of the original survey in 1841.

The north boundary line of the survey is Red River. The field notes