50 Tex. Civ. App. 369 | Tex. App. | 1908
Lead Opinion
The suit was to try the title to the Patsey Lewis survey of 17,639,400 square varas, situated in San Augustine County, on Ayish Bayou, and about twenty-one miles south of the town of San Augustine. Appellants, except as to a portion of the land for which they obtained judgment, claimed title through mesne conveyances from parties claiming as devisees under Patsey Lewis’ will, and appellees claimed through mesne conveyances from parties claiming
The trial court’s conclusions of fact are a part of the record. So far as they do not conflict with the findings below, we think they are supported by the record. In one or two particulars we think they are not so supported; and in one or two other particulars where findings should have been made, none were made. These omissions have been supplied in the findings below.
Patsey Lewis, a widow with several children, emigrated to Texas from Missouri about 1818 and settled in San Augustine County. September 23, 1834, as the head of a family, she made application to the proper authority for a grant as a colonist to one league of land; and September 26, 1834, the proper commissioner directed that a survey be made for her of the quantity of land she had applied for. October 13, 1834, a survey—of twenty labors, it seems—was made for Mrs. Lewis by surveyor David Brown. The field notes of this survey were shown to be in the vault in the General Land Office where the Spanish archives are kept, and a copy thereof seems to have formed a part of the deposition of the witness Robison, but for some unaccountable reason same were not made a part of the record on this appeal. Therefore, we have been unable directly to determine whether the survey then made was of the land in controversy or not. Circumstantially, it perhaps sufficiently appears that it was. The circumstances connected with the filing of the field notes and the date of the filing thereof in the Land Office are not shown in the record. On a map compiled by David 0. Warren, County Surveyor of San Augustine County, certified by Warren on November 10, 1839, as being correct, and forming a part of the archives of the General Land Office, the land in controversy was represented as the “Lewis” survey, as fronting west on Ayish Bayou, and as lying south of and adjoining the Leakey survey. On another map forming a part of said archives compiled in 1841 by Ira Ellis, then County Surveyor of San Augustine County, the land was represented about as it was on the Warren map.
July 23, 1835, a final title was extended to Patsey Lewis to a survey of 4,289,587 square varas, surveyed for her by authority of the order of the commissioner made on her application referred to. This land was shown to have been situated in said San Augustine County, about seven miles east of the town of San Augustine, and to have been the land on which she resided before and at the time of her death.
Patsey Lewis died in San Augustine County in 1843, leaving a will dated February 13, 1843, and probated June 19, 1843, by which she devised to her daughter Matilda C. Thompson 200 acres of the land in controversy, and to her sons Burrell J., George, and A. A. Lewis, the remainder thereof. November 12, 1849, Burrell J. Thompson, who had been appointed administrator with the will annexed of her estate,
“Patsey Lewis, deed., during her life time and in and about the year 1834 or 5 obtained an order of survey for one league of land from the Commissioner of Lorenzo de Zavala grant or colony as a colonist, viz.: from George A. Nixon, and by virtue of said order of survey had a portion of said land surveyed near San Augustine where she then lived and afterwards died, and a title extended to the same by the aforesaid commissioner, George Antonio Nixon, in the year 1838—and your petitioner also finds that she had the residue surveyed in the spring of 1835 about 20 miles south of San Augustine on the Ayish Bayou by David Brown, one of the regular commissioned surveyors of said colony, which is evidenced by and from the copy of the field notes herewith appended to this petition, as also from the certificate of the County Surveyor of San Augustine County that said survey for Patsey Lewis, deed., has always appeared upon the map of said county, recognized and acknowledged as her lands and has also been returned and appears on the map sent to the General Land Office from this county.”
February 1, 1850, "an Act for the relief of the heirs of Patsey Lewis, deceased,” became a law. It was as follows:
“Section 1. Be it enacted by the Legislature of the State of Texas, That the Commissioner of the General Land Office be, and he is hereby authorized and required to issue to the heirs of Patsey Lewis, deceased, upon their paying the usual fees and Government dues, a patent for thirty-five hundred and sixty-two acres of land, that being the residue of a league to which said Patsey Lewis in her life time was entitled, and that this Act take effect from its passage.”
In accordance with said Act, on field notes of a survey of the land made October 5, 1852, the land was patented to the heirs of Patsey Lewis, deceased, August 3, 1853.
The inventory returned July 24, 1844, in the administration had on Patsey Lewis’ estate included as a part of the property belonging to the estate “three-fourths of a league of land on Ayish bayou surveyed and not titled.”
At her death Patsey Lewis left as her heirs, Matilda Thompson, her daughter; Ephraim Tally, child of her daughter Sarah Tally; Margaret Johnson, her daughter; Mary Jones, her daughter; Precious Blankenship, her daughter; Melinda Stovall, her daughter; and George W. Lewis, Allison A. Lewis and Burrell J. Lewis, her sons. During her life time, at dates ranging from 1835 to 1841, she had executed deeds of gifts whereby she had conveyed to each of her daughters, except Matilda Thompson, to whom she devised 200 acres of the land in controversy, 200 acres of the land she resided upon. She had also during her life time conveyed to her son Burrell J. Lewis a negro boy named Willis, and to her daughter Sarah Tally a negro girl named Jane. By her will, on conditions named therein, she gave to her daughter Matilda Thompson a negro woman named Polly, to B. J. Lewis a negro woman named Sophia, and to Mary Jones a negro named Jane; and to
The inventory of her estate, before referred to, showed as belonging to same, in addition to the land in controversy, the following property only: negro slaves name “Polly,” “Sofy,” “Jane” and "Ellen;” forty acres of land; one old mare; and one cow and calf.
It was shown by a statement from the Comptroller’s office, that in 1847 the taxes on 3321 acres of the Patsey Lewis survey were assessed against B. J. Lewis; that in 1848 the taxes on 3368 acres thereof were assessed against him “by B. J. Thompson, agent;” that in 1849 the taxes on 2241 acres thereof were assessed against him “by B. J. Thompson, agent;” and that in 1850 2214 acres thereof were assessed against him. It was also shown by the same statement that in 1849 the taxes on 1107 acres were assessed against Geo. W. Lewis, and that in 1850 the taxes on 1407 acres were assessed against him. It further appeared from said statement that in 1849, 1850 and other years, the taxes on a tract of 40 acres of the Patsey Lewis land were assessed against B. J. Lewis.
It appeared that during the life time of Patsey Lewis, at her instance, ten or fifteen acres of the land in controversy had been cleared. The clearing was referred to by a witness as “an old field.” There is in the record no evidence of any further actual possession by any one of the land or of any part of it.
On facts found by him the learned trial court concluded as follows:
“At the time of the death of Patsey Lewis in 1843, she had no title whatsoever to the land in controversy in this suit, and it was not the subject of testamentary disposition by her.
“I conclude as a matter of law that the Special Act of the Legislature granting the land in controversy to the heirs of Patsey Lewis was an act of sovereign grace and bounty on the part of the State and that its benefits enured to all of the heirs of Patsey Lewis alike. And that therefore the title thus granted vested in all of the heirs of Patsey Lewis and their assigns.”
In so concluding we think the trial court erred. As the head of a family, under the laws in force in 1834, Patsey Lewis was entitled, to one league of land. As a part of the league to which she was entitled, by virtue of an order issued by the proper commissioner, the land in controversy was surveyed for her prior to the closing of the Land Office in 1835. The order for a survey then obtained was declared by the Constitution of the Republic to be valid. General Provisions, Sec. 10. The authority for the. survey so made being valid, the survey made by virtue of that authority should be held to have been a valid survey, and to have operated as a segregation of the land in controversy from the public domain." To and in the land so segregated, Patsey Lewis had acquired a right—an equity—capable of being so perfected as to vest in her an absolute title to the land. Because of her failure to comply with requirements of laws then in force, such'an absolute title did not vest in her, and she died dwning only an equity
In disposing of the contention made in Lyne v. Sanford, supra, that a certificate issued to heirs was a donation to them and not assets of the decedent’s estate, the court said: “By reference to the special Act, it will be seen that the Legislature, in granting this certificate, recognized that Willis A. Farris had before his death earned the right to a headright certificate of a league and labor, and in recognition of this right they granted to his heirs or legal representatives the certificate, if he had not theretofore received his headriglit. The terms of this Act clearly imply that the consideration that moved the Legislature to grant the certificate was the right existing in Farris by reason of his having complied with the laws under which the certificate was earned. If this was the purpose of the Legislature the grant can not be regarded as a gratuity or donation to the heirs.” Keeping in mind the declaration of the court in Fishback v. Young, supra, that the grant, however issued, if it were to “persons representing, in form or in fact, the deceased, must inure to the benefit of all interested in the estate,” we are unable to see why what was said in the Lyne-Sanford case is not as applicable to the facts of this one. In the Act directing the issuance of a patent in this case as in the Act directing the issuance of a certificate in that one, the Legislature recognized as a fact that the decedent before her death had earned the right to the grant. Here, as there, the grant was in recognition of that right. As truly here as there, the consideration that moved the Legislature to make the grant was the right existing in the decedent by reason of her having complied with the laws under which the land was earned. There the certificate was held to have been assets of the decedent’s estate, and as such subject to his debts. Here, for similar reasons, we think it must be said that the land was assets of Patsey Lewis’ estate and as such subject to be devised by her. The conclusion reached,
“The land sued for was located, survej^ed, and patented by virtue of a certificate issued by the Commissioner of the General Land Office to Isaac D. Hamilton for one league of land by authority of the Act of February 13, 1858, above quoted. If Isaac D. Hamilton’s right was derived primarily from that Act, then the deed to Dupree did not embrace it, because it purported to convey a right in existence at the time of its execution. If the Act of 1858 stood alone, the grant of the land to Isaac Hamilton could be derived from it by implication- only, based upon the authority given to the Land Commissioner to issue the certificate, because there are no words in the law appropriate to express the grant of a right. The language, ‘be and he is hereby required to issue to Isaac D. Hamilton a certificate,’ etc., is apt for directing the Commissioner to perform a duty in discharge of an existing obligation of the State; and when we look to the further language, ‘for one league of land on account of wounds received in the service of the late Republic of Texas in 1836, which have disabled him,’ we see that the consideration of the grant is the same as that expressed in the law of 1837. Looking to the Act of 1837, we find that the grant of one league of land was made to five persons, by name, ‘and all others who have been permanently disabled by loss of eye, arm or limb, or other bodily injury, as by certificate of the board of land commissioners, shows his incapacity for bodily labor, by wounds received in the service of Texas, be and they are hereby declared to be entitled to one league of land each.’ The Act of 1858 specifies Isaac D. Hamilton as being one of those who had been wounded in the service of the Republic in 1836, and whose wounds disabled him. The law creating the land board having been repealed, Hamilton could not secure his certificate from the Commissioner of the General Land Office, because he could not get the certificate from the board of land commissioners therefor. The Legislature ascertained the facts which the board of land commissioners were required to find and certify, and then directed the Commissioner of
If, while at the time he made the conveyance, because of his failure to take advantage of the laws which would have enabled him to have secured a certificate from a board of land commissioners, Hamilton, as must be conceded to be true, did not have a right which the courts could recognize, yet had such a right as through his deed operated to pass to his grantee the title to the land when perfected by the Act of the Legislature, we see no reason why it should be held that the will of Patsey Lewis, made at a time when she had at least as good a right, should not operate to pass to her devisees the title, when perfected, to the land in controversy. We think it must be held that her will did so operate, and that the title to the land in controversy when perfected vested in her devisees. Massey v. Papin, 65 U. S., 362, 16 Law Ed., 734.
Except in so far as' it adjudges a recovery of 1280 3-7 acres of the land in favor of appellee W. D. Gordon as against appellant, the Houston Oil Co. of Texas and its receivers, and a recovery of 95 acres of the land in favor of Geo. J. Hassell and others, intervenors, and except in so far as it adjudges costs and a recovery of the sum of $1427.40 in favor of appellee D. L. Gallup as against appellant S. W. Blount, the judgment will be affirmed. In other respects it will be reversed, and judgment will be here rendered that, as against appellant S. W. Blount, appellee D. L. Gallup take nothing, and that appellant the Houston Oil Co. and its receivers recover as against said Gordon and said intervenors said 1280 3-7 and said 95 acres of land. The costs of this appeal will be adjudged against said Gordon and said intervenors, and appellants will have judgment for the costs incurred by them in the court below.
Rehearing
ON MOTION FOB A EEHEABING.
The facts as found by the trial court were: 1. That Patsey Lewis left a will dated February 13, 1843, filed in San Augustine County, June 19, 1843, and duly probated, by which she directed that her land on Bear Creek be divided between Burrell J. Lewis, Geo. W. Lewis and A. A. Lewis, except 200 acres, “which shall be first run off for Matilda C. Thompson;” that M. C. Thompson take and raise the testatrix’ grandson, Ephraim Talley, and for her trouble in doing so should have
Among other things, the trial court refused to find as requested by appellants: 1. That a survey of the land in controversy was made and field notes thereof returned to the General Land Office prior to November 13, 1835. 2. That Patsey Lewis took possession of the land, had a small field cleared on the land and claimed it during her lifetime, and that same after her death was inventoried by her administrator as a part of her estate. 3. That Patsey Lewis by her deeds to certain of her children and by the bequests in her will disposed of all the property of which she was possessed and distributed and partitioned same among her children. 4. That the intention of the Legislature as shown by the Act which authorized and required the Commissioner of the General Land Office to issue a patent to the heirs of Patsey Lewis and other facts and circumstances in evidence was to recognize the right of Patsey Lewis to said land and to confirm her right to the particular tract which she had caused to be surveyed un
Appellants excepted to the court’s findings of fact, to the judgment based on same, and to the refusal of the court to find certain facts as requested by them, among such facts so requested to be found being those just specified. By proper assignments of error the action of the court in connection with the matters covered by the exceptions were brought to this court for review. On an examination of the record, we concluded that the findings of the trial court, except in one or two particulars, were supported by the record, and further concluded that in one or two other particulars, findings which should have been made had not been made. The 'findings which we did not think were supported by the record were: 1. That the evidence did not show that field notes of the land in controversy were returned to the land office. 2. That the land had never been in the possession of any of the parties to the suit or their privies. The findings which we concluded should have been but were not made were: 1. That the land in controversy had been surveyed in 1834 and 1835 for Mrs. Lewis by David Brown, and that field notes thereof had been returned to the land office. 2. That during her lifetime she had taken possession of and claimed the land, and that same was inventoried as a part of her estate after her death. 3. That the intention of the Legislature as shown by the evidence was not to make a gift of the land to Mrs. Lewis’ heirs but was to recognize and confirm in Patsey Lewis a right to same.
In motions for a rehearing appellees complain of the failure to specify in the opinion disposing of the appeal the particulars in which we found that the trial judge’s conclusions of fact were not supported by the record and the particulars wherein he should have made and did not make findings. It is out of respect to this complaint of counsel that the foregoing statement has been extended to such length as it possesses.
The correctness of the conclusion reached by us that the land in controversy had been surveyed for Mrs. Lewis by David Brown on October 13, 1834, and that field notes thereof had been returned to the land office, is challenged in the motions for a rehearing. The evidence which we thought required such a finding was: 1. The affidavit of David Brown found among the papers relating to the land in the General Land Office, to the effect that he had made a survey of twenty labors previous to May 1, 1835, and previous to the closing of the land office in that year. This affidavit, being found among papers relating to it, we think should be held to have reference to the land in controversy. 2. The recital in the petition to the Legislature for the relief Act that Patsey Lewis had had the land in controversy surveyed by David Brown in the spring of 1835. 3. The testimony of J. T. Robison, chief clerk in the General Land Office, in answer to interroga
“Int. 9.
“Q. Please attach to your "answer to this interrogatory a certified copy of the field notes of a survey of twenty labors of land made by David Brown for Mrs. Patsey Lewis in 1834 by virtue of an order issued by Geo. Antonio Nixon, Commissioner for Zavalla’s Colony.
“A. I hereto attach a certified copy of the field notes of a survey made by David Brown for Mrs. Patsey Lewis October 13, 1834, in San Augustine, County, and have marked the same Exhibit “C” for identification. These are the only field notes in the General Land Office made by David Brown for Mrs. Patsey Lewis in the year 1834.
“Int. 10.
“Q. Have you attached the certified copy of said field notes called for and described in the preceding interrogatory, and if you have not, why not?
“A. Answered in my answer to interrogatory No. 9 to which I refer.
“Int. 11.
“Q. If you have stated that the field notes called for and described in the 9th Inty. are not on file in the General Land Office, please make a careful and thorough search in your office for the said field notes.
“A. I have not stated" that the field notes called for and described in the 9th interrogatory are not on file in the General Land Office. Exhibit “C” hereto attached, is a certified copy of the only field notes that can be found in the General Land Office made by David Brown for Mrs. Patsey Lewis in the year 1834. The records show that a Spanish title was issued to Patsey Lewis July 23, 1835, for 4,889,857 square varas by Arthur Henrie, surveyor, situated in San Augustine County and the field notes of said land are embraced in said title. Diligent search has been made but no other field notes can be found.
“Int. 12.
“Q. Have you made the search for the field notes as requested in the 11th interrogatory, and if so, what is the result of your search? Please give the character and extent of the search made by you for the said field notes?
“A. I have made the search requested in the 11th interrogatory but can find no other field notes made by David Brown except those heretofore referred to, a certified copy of which has been attached marked Exhibit “C.” All of the records where such papers could be kept have been examined as well as the vaults where the Spanish archives are kept.”"
The field notes referred to as attached and made a part of the witness’ answers were not made a part of the record on this appeal. The answers of the witness Eobison to the 9th, 10th, 11th and 12th interrogatories, in the absence of the copy of the field notes made a part thereof, fairly could be referred only to the larger survey—the one
“Cross Int. 2.
“Q. In what part of the Archives do you find the ex parte affidavits of D. Brown? and the other instruments you have copied?
“A. The affidavit and order of survey, certified copies of which are hereto attached, marked Exhibit A and B, are on fila in the General Land Office with File Ho. 55, San Augustine 1st class, which contains the field notes of a survey made by H. Bates surveyor of San Augustine County, October 5, 1852, for Patsey Lewis of one sitio of land in Zavala’s colony, pursuant to an order of survey George Antonio Hixon dated San Augustine, September 25, 1834. The originals of these papers were not found in the vaults where the Spanish archives are kept, but there is nothing on the affidavit of David Brown to indicate that it was regularly filed with File Ho. 55 San Augustine 1st class except a pencil notation of the file number, district and class. The order of survey is endorsed Tile Ho. 55 San Augustine 1st class 20 labors Patsey Lewis,’ thus indicating that field notes must have been at one time on file attached to said order of survey, but they are not now with said file, or attached to said document and nothing to show what became of them. They are not in the General Land Office as far as I am able to find. The field notes a certified copy of which has already been attached and marked Exhibit C were found in the vault where the Spanish archives are kept in the book of English field notes, labelled DP3, page 14%.”
The latter part of the answer seems to be inconsistent with the answers to direct interrogatories quoted, and to indicate that the witness may have had reference to field notes of some other survey. Appellee insists that the witness referred to field notes of the small survey titled to Mrs. .Lewis, and calls our attention to the fact that in' their brief appellants concede that the “exhibit 0” the witness referred to was a copy of field notes of the small survey. The field notes the witness had reference to evidently were of a survey made October 13, 1834, by surveyor Brown. The field notes of the small survey as copied into and forming a part of the final title appear to have been made July 23, 1835, by surveyor Henrie. But conceding that the witness had reference to field notes of the smaller survey when he testified they were in the Land Office, while" the correctness of the conclusion reached by us that the land in controversy was surveyed by Brown Oct. IS, 18Sk and that the field notes of the survey so made are on file in the Land Office, might for that reason well be questioned, yet the material part of that conclusion—to wit, that
The conclusion reached by us that the record showed that a portion of the land during her lifetime at the instance of Patsey Lewis had been cleared, is vigorously attacked. The conclusion was based on the testimony, undisputed, of the witness B. J. Lewis, a son of Geo. W. Lewis, deceased, and a grandson of Patsey Lewis, deceased. The witness was born, in 1852. He testified—we copy from the stenographic report—as follows:
“Q. Can you state from family tradition or from your own knowledge, what you heard, whether said land was ever actually occupied or possessed by Patsey Lewis or whether she had anyone in actual possession ?
“A. I heard papa say that his mother sent him some negroes down there at a little place, I think it was a place down there where widow Baines is; a few settlements of land cleared.
“Q. Do you know of your own knowledge whether it was an old clearing down there?
“A. There was an old field there as far back as I can remember— small field, 10 or 15 acres.”
This testimony, it seems to us, in connection with the fact that in her will Patsey Lewis referred to it as her land, and to the fact that at her death it was inventoried as a part of her estate, justified and made proper the conclusion reached that during her lifetime Patsey Lewis had taken possession of the land.
The other finding made by us, to wit, that the intention of the Legislature as shown by the evidence was to recognize and confirm in Patsey Lewis a right to the land, and not to donate same to her heirs, is also vigorously assailed. According to the view taken by us this intent was the controlling question in the case. It received our careful consideration in connection with the authorities relied upon by appellees as support for their contention that the Act of the Legislature should be construed as a donation to the heirs. In the consideration of the motions for a rehearing we have again carefully examined those of the cases relied upon as conclusively establishing their contention. McKinney v. Brown, 51 Texas, 96, seems to be the one most confidently urged as directly in point. There, on February 1, 1838, a board of land commissioners had issued to Brown as a colonist a certificate numbered 238 for one league and labor of land. On February 27, 1838, by an endorsement thereon Brown transferred the certificate to one Bell. The certificate was never recommended by the commissioners appointed under the laws of the Bepublic to detect fraudulent land certificates, nor was suit ever brought to establish same as permitted by the Constitution of 1845. By a Special Act of the Legislature passed September 1, 1856, the Commissioner of the General Land Office was ordered to issue to the heirs of Brown a certificate for one league and labor in lieu of his headright certificate Ho. 238. The certificate authorized by the Special Act was located and the land so located was patented to Brown’s heirs September 7, 1860. The suit was by the heirs of Bell to prove up as against the heirs of Brown the assign
Leonard v. Rives, 33 S. W., 292, a case relied upon as most in point next to the McKinney-Brown case, we think is clearly distinguishable from the case before us. So far as the report of the case shows, there was nothing in the record suggesting that the certificate directed by the Legislature to be issued to the heirs and wife of Walter H. Gilbert was in recognition and confirmation of any right ever existing in Gilbert. On the face of the record in that case, the certificate was, as held by the court, a donation.
The other cases relied upon by appellees are, we think, as clearly distinguishable from this one. (See Fields v. Burnett, 108 S. W., 1048.)
We did not think and do not now think the law of forced heirship in force from 1840 to 1856 (1 Sayles’ Early Laws, p. 400) should be held to affect the question presented by this appeal. The record showed deeds of gift by Patsey Lewis to those of her children not provided for in the will. What the value of those gifts with reference to the value of the land in controversy may have been, the record does not show. If the gifts were advancements from her estate and equal to the portion the donees as forced heirs were entitled to, the will would not have been in contravention of the law. Parker v. Parker, 10 Texas, 83. The record showing facts which more or less strongly indicate that the will may not have been void because in contravention of the law of forced heirship, we do not think it should be assumed that it was void, and give weight to such assumption in looking to the intent of the Legislature in passing the Special Act in question.
While, as we understand the law controlling the case, the conclusion reached by us was a correct one and is adhered to, appellees’ complaint that the judgment rendered here, based on that conclusion, is erroneous, is a just one. The fact that appellants, The Houston Oil Company and its receivers, did not have pleadings in the case justifying affirmative relief in their favor, was overlooked, as was also the fact that appellee Gordon owned a small undivided interest in the 200 acres devised to Matilda C. Thompson. The judgment rendered here will be so corrected as to decree to appellee Gordon and the interveners a four-sevenths undivided interest in the 200 acres devised to Matilda C. Thompson, and to appellee David Gallup an undivided one-third interest, or 956 acres, in the entire survey, less 200 acres thereof, as against the Oil Company and its receivers. The costs incurred by appellee Gallup in the court below and in this court
Appellee Gallup insists that we erred in reversing the judgment in his favor against appellant Blount for the sum of $1427.40, and in decreeing that he take nothing as against said Blount. The contention is that error was not assigned in the court below to this part of the judgment there rendered, and that there has not been presented to this court an assignment complaining of the judgment in this particular. The record shows that appellant Blount duly excepted to the judgment of the court at the time it was rendered, gave notice of and perfected an appeal to this court, and assigned as errors the action of the court on the matters involving the question as to the title to the land. It does not show that he assigned as error in the court below or in this court the action of the court in rendering judgment in favor of appellee Gallup against him on his covenant warranting the title to the land. His assignments of error go, not specifically to the recovery itself, but to the basis for the recovery against him. After reaching the conclusion on assignments of error properly presented that the basis for a recovery against him did not exist, it would, it seems to us, be unreasonable to hold that, the basis for it gone, the judgment against him nevertheless must stand. In the absence of any assignment of error on his part, having reached the conclusion that the record showed no cause of action against him in appellee Gallup’s' favor, we think the error so appearing should be treated as fundamental, and as devolving the duty on this court of correcting it.
The motions for a rehearing are overruled.
Reversed and rendered.
Writ of error refused.