11.-Appeal-Conclusions of Fact.

Where a motion for additional conclusions of fact calls merely for a statement of the evidence received at the trial and of matters that were offered as evidence and rejected by the court, it should be overruled, since such matters are of record in the bills of exceptions, and it is not necessary that they appear in the conclusions of fact.

Appeal from Jasper. Tried below before Hon. Stephen P. West.

Hill & Hill and J. T. Beaty, for appellant.

H. C. Howell, for Mary E. Gwin.

Geo. C. Greer, G. B. Wood, and K. B. Seale, for intervener.

GARRETT, CHIEF JUSTICE.-This was an action of trespass to try title brought in the District Court of Jasper County, August 26, 1896, by Mary E. Gwin against the Texas Tram and Lumber Company for the recovery of an undivided one-half interest in a league of land situated in Jasper County granted to Enrique (Henry) Webb by the Mexican government as a colonist. The plaintiff claimed title as the wife of Wm. G. Logan through a deed executed by Henry Webb to John K. Allen and Wm. G. Logan, March 8, 1836, during the marriage. Logan died April 27, 1836, without issue. On September 6, 1898, the appellees B. Helm and others intervened in the suit and claimed one-half of the interest sued for by the plaintiff as collateral heirs of Logan. The defendant claimed title to the entire league under Allen, and the case was submitted to the jury upon the issue of whether or not Logan ever conveyed the land to A. C. and J. K. Allen, who were partners in the acquisition of lands, or to either of them. There was judgment in favor of the plaintiff and interveners. This is the second appeal. On the first appeal the case was transferred to the Fourth District and the judgment of the lower court was reversed and the cause remanded for another trial with an opinion appearing in 52 Southwestern Reporter, 110. Several of the questions presented and decided on the first appeal are now again presented. They are regarded as settled for this court on this appeal, and will be passed on so that they may be preserved for presentation to the Supreme Court should the appellant desire to do so.

The land in controversy was granted to Enrique (Henry) Webb, November 6, 1835. On March 8, 1836, Henry Webb executed a deed of conveyance of the entire league to John K. Allen and W. G. Logan by a notorial act under the civil law, in the Spanish language, at Nacogdoches, Texas, which recited that the parties "came and appeared present in their own proper person." The protocol was found among the archives of the office of the county clerk at Nacogdoches, and was in evidence on the trial below. W. G. Logan and the plaintiff, Mary E. Gwin, were married September 7, 1830. Logan died April 27, 1836, without issue.

His widow, the plaintiff, was married to Wm. M. Gwin,

March 23, 1837. Wm. M. Gwin, died September 3, 1885. At the time of the death of W. G. Logan the plaintiff was with her father in Kentucky and was never afterward in Texas, and never had any knowledge of the land in the controversy or of any title or claim that she or W. G. Logan had thereto until a year or two before the filing of the suit. The interveners were shown to be the heirs of W. G. Logan. None of them ever resided in Texas and had no knowledge of the land, nor that they had any right thereto, until not long before their suit was brought. The defendant deraigned title from John K. Allen. It was shown that John K. Allen died in 1838 and the land was inventoried as a part of his estate, administered upon in Harrisburg (now Harris) County; also that he and his brother A. C. Allen had been general partners under the several names of A. C. & J. K. Allen, J. K. Allen, and A. C. Allen, and were equally interested in all property possessed. On May 26, 1841, A. C. Allen conveyed the Henry Webb league of land to John Darrington in trust for the sole and separate use of Billups Gayle, his heirs or legal representatives. This deed was signed "Augustus C. Allen by his attorney in fact, James S. Holman." It purports to have been executed in White County, Alabama, but was acknowledged by A. C. Allen in person, June 23, 1843, before the chief justice of Harris County, Texas. Billups Gayle conveyed the eastern half of the league to A. B. Jones, by deed dated March 15, 1846, and recorded in Jasper County April 6, 1893. This deed in describing the land contains the following recital: "The same being the eastern half of a league of land granted by the Mexican government to Henrique Webb on the 6th day of November, 1835, and deeded by the said Henrique Webb to John K. Allen and William G. Logan on the 8th day of March, 1836, and by the said Logan and Allen deeded to this vendor in the city of Mobile, State of Alabama, on the day of A. D., 1842, and for a more perfect exhibit reference is made to said titles." The title of A. B. Jones passed by mesne conveyances to John S. Sydnor and John N. Rose, the above recital being repeated in the next subsequent deed. The defendant deraigns title to the half league from Sydnor by deed from Annie E. Sydnor to the Tram and Lumber Company, dated September 29, 1881. It does not appear how the title of Rose was ever divested. On February 1, 1857, the heirs of Billups Gayle conveyed the remaining half of the league to Francis Hoskins by a deed reciting the deed from A. C. Allen by James S. Holman as attorney in fact, to J. Darrington in trust for Billups Gayle. This title passed by mesne conveyances and vested in the Tram and Lumber Company June 28, 1882. By an amendment of its charter the Tram and Lumber Company became the Texas Tram and Lumber Company. The defendant put in evidence a contract entered into between John K. Allen and Wm. G. Logan of the first part, and A. A. Halsey, Wm. M. Gwin, and others of the second part, for the acquisition of colonists' lands in Texas, by which Halsey and his associates agreed to advance money to the Allens and Logan with which they were to pay the government dues and other expenses of obtaining the titles

of the colonists for the grants made to them for one-half of the land; the land so acquired to be equally divided between the parties of the first and second part. An agreement between John K. Allen and W. G. Logan was also shown by which for personal attention Allen was to receive two-thirds of their one-half. These contracts were dated August 24, and October 8, 1835, respectively. The estate of Wm. G. Logan was administered upon in Nacogdoches County by Henry Raguet. An inventory was made in the estate November 22, 1836, but no part of the Webb league was inventoried as property of the estate. An additional inventory was made in 1849; but the inventory did not mention the Webb land. On October 14, 1835, Wm. G. Logan made a written acknowledgment that "Henry Raguet is an equal owner with me in all interests and claims I have in lands in Texas, except my headright league on Trinity River. The various interests I have will be fully explained by reference to the contract and documents left in his, the said Raguet's, hands." A similar acknowledgment was made on October 13, 1835, as to a mercantile business conducted by them at Nacogdoches. These instruments appear in the petition in the suit thereinafter mentioned. Papers coming from the control of A. C. Allen were put in evidence to show dealings under the Halsey contract, and inferentially that the Allens claimed the land under that contract. Also letters in which this land was mentioned. Two receipts were also put in evidence by the defendant signed by John K. Allen for A. C. & J. K. Allen. One of them acknowledges full settlement July 3, 1838, from H. Raguet, administrator of W. G. Logan's estate, of all land transactions with them; and the other, dated June 30, 1838, is the statement of an account for money advanced by the Allens for the use of Logan, the principal items of which were for these land purchases, stating what they were, the Webb land not being included. One of the items is for "one-third of exchange on draft received of Gwin." Receipt of full payment is acknowledged. Also from the Allen papers a receipt dated July 18, 1838, at Zavala, by which J. M. Sharp states that he has received from John K. Allen titles to six leagues granted to persons named, among whom are Enrique Webb, all to be recorded in the county clerk's office. There is an indorsement on this receipt that the titles called for in it have been returned.

October 1, 1855, the plaintiff and her husband and heirs of Wm. G. Logan brought a suit in the District Court of Nacogdoches County against Henry Raguet and others for the cancellation of certain transfers of land made by Raguet, alleging also that he had made void conveyances of land as administrator of the estate of W. G. Logan. He was charged with fraud in seizing and converting the estate to his own use. This suit pended until July, 1861, when it was compromised and settled. Plaintiffs withdrew all charges of fraud and malfeasance, and there was a consent judgment vesting title in Raguet to certain lands and moneys and for the partition of other lands, and also declaring valid all sales of lands made by Raguet as administrator. The Henry

Webb league is not included in the decree. There were subsequently a number of suits for the portion of lands in other counties between the plaintiff and heirs of W. G. Logan, but in none of them was the Henry Webb league included. The administration of the estate was finally closed in 1866.

Neither the Webb league nor any part of it was ever inventoried as a part of the estate of Logan. Raguet rendered and paid taxes on lands belonging to said estate, but not on the Webb lands. Neither the plaintiff nor any of the interveners have ever paid any taxes thereon. The appellant has paid all the taxes thereon since 1882. The land was not shown to have been in the actual possession of anyone. The records of Jasper County were burned in the year 1849. The records and indexes of Nacogdoches County are still preserved. Fruitless search for a deed from W. G. Logan to A. C. & J. K. Allen or either was shown to have been made by the agents of the appellant. At the date of the execution of the deed from Henry Webb to John K. Allen and Wm. G. Logan, March 8, 1836, Wm. G. Logan was in the city of New Orleans, and was never afterwards in Texas. A. C. Allen was probably in New Orleans about the same time. Logan died in Natchitoches, Louisiana, on his way back to Texas.

By an appropriate assignment of error the appellant assails the verdict of the jury as contrary to the law and unsupported by the evidence. The assignment is as follows:

"The trial court erred in not granting appellant a new trial, because the verdict of the jury is contrary to the law and unsupported by the evidence. The evidence shows that for over sixty years the Texas Tram and Lumber Company, and those under whom it claims title to the Webb league of land, have openly and notoriously asserted title to the said land, both by recorded deeds and the probate records of Harris County, Texas, in the succession of John K. Allen, deceased, and other acts of open notorious claim by the Texas Tram and Lumber Company, and those in its chain of title, and from it claims, among which open claim is that of paying taxes on this land from the organization of this government, and that the records show both in Jasper County and in the Comptroller's office of Texas, that neither plaintiff Mary E. Gwin nor the interveners, or any one of them, have ever rendered or paid taxes on this league of land, or any part of it; and further, that Henry Raguet, the administrator of the estate of Wm. G. Logan, deceased, as shown by the tax rolls of the Comptroller's office of this State, rendered for taxes. the land of Wm. G. Logan in this State for 1850, 1851, 1852, 1853, 1854, and 1855, and in such renditions said administrator did not include the Henry Webb league of land, or any part of it. The entire evidence showing nonclaim of plaintiff Mary E. Gwin and interveners from the year 1836 up to the time of filing of this suit as to the Henry Webb league of land. Not only this, but plaintiff Mary E. Gwin and her husband (who was connected with A. C. & J. K. Allen and Wm. G. Logan in large land transactions in Texas) and interveners have litigated the

issues as to the land owned by them and by others with them in Texas, having in said suits in Nacogdoches County, Wood County, and Smith County partitioned by decrees of courts their lands in various counties in Texas, Henry Raguet being a party to the suit in Nacogdoches County. All this taking place since 1860 and pending the administration of the estate of Wm. G. Logan by Henry Raguet, administrator, in Nacogdoches County, prior to 1860. In all these suits no claim was made to the Henry Webb league of land or any part of it by Mary E. Gwin or her husband, Wm. M. Gwin, for her, with knowledge of the fact, or by any of the heirs of Wm. G. Logan. Plaintiff Mary E. Gwin and her said husband, by powers of attorney made in 1881 and 1882, authorized one John McDougal of New Orleans, long known to them, to recover any land to which they were entitled in Texas and in Arkansas. These powers of attorney were recorded in many counties in eastern Texas.Jefferson, Trinity, Hardin, and others. By the terms of said powers of attorney McDougal got one-half interest in the land he recovered, but he was inhibited from selling and conveying by warranty deed for Mary E. Gwin and her husband, and to bring no suits subjecting them to cost; the powers of attorney being recorded for about twenty years. Up to the institution of this suit neither Mary E. Gwin, nor interveners, nor John McDougal, have instituted suit or proceeding to recover the Webb land, though during that time same was claimed by appellant and those through whom they claim by recorded title. This showing nonclaim in the part of Mary E. Gwin and interveners."

On the other hand, there is the deed from Webb to Allen and Logan found in the proper archive, the legal effect of which is to vest title to one-half of the land to Wm. G. Logan. Although it might have come within the Halsey contract, it may have been so conveyed to vest the title where it beneficially belonged upon a settlement of the interest as part of the lands were acquired. It appears very conclusively that neither the plaintiff nor any of the interveners ever knew anything about the Webb league or of the deed or of any right that Logan had to the land or of any interest that they had therein. It is reasonably certain that Raguet, the administrator, knew nothing of the deed to Allen and Logan or of any claim that Logan had to the land, or he would have. inventoried it as an asset of the estate. Want of knowledge sufficiently explains the failure of those who had the right to assert Logan's title to claim the land. The evidence points to the fact that John K. Allen, and after him A. C. Allen, had possession of the testimonio, which, however, was not produced, and being a joint owner of the land it was properly in his possession, hence the possession of the title papers loses much of its force as evidence of claim to the entire league. It is true that the land is found upon the inventory of the estate of John K. Allen, but that fact may be due to the fact of the possession of the title papers by him and that he owned an interest in it. The most pronounced act hostile to the title of Logan was the sale of the league by A. C. Allen to Billups Gayle. This is inconsistent with any right that the plaintiff