*1 Tеx.) v. GRAY LANGHAM (227 S.W.) improperly Dyess excluded, and Cline. if the In the where conver- estate Interest clearly privileged privilege sation was attempted The to withdraw es- vendees by plaintiff by going waived of details by giving un- bond from tate der R. administration original his transactions counsel in chapter provisions title of offering and such transactions as an 3384-3386 S. wás held articles explanation for his laches in suit. upon vendee the and 33S7 confer —<&wkey;l2 Trespass try 2. titlе Defendants right from admin- to withdraw estate in so possession lawfully against could defend only con- istration the statutes terms as plaintiff mortgagee possession. out of right devisee, upon heir, ferred such legatee, lawfully possession Defendants de- right guardian. The which or his againt plaintiff mortgagee posses- fend out of Dyess sought was entire- and Cline to assert suing try trespass sion title who had ly by right ar- from conferred possession though right of defendаnts were appellee, opinion, In ticle 3612. to show title in land. able themselves portion share the deceased’s entitled to a possession — 3. Adverse <&wkey;80(l)Deed made community vendee of as the estate description identify must contain sufficient to Miller, the.provisions of the M. within J. is land. supported question. This view is article support To title to land three by reasoning latter court limitation, five which statute of the deed under Dyess. рart opinion in Rowe v. descrip- claim is made contain a must against judgment Miller in Katie her land; tion sufficient to a deed void community capacity survivor es- uncertainty for ing necessarily husband, support plea. her tate herself and deceased insufficient to reversed, Miller, judgment T. and J. Rehearing. On plaintiff here against now rendered favor capacity, establishing, her possession — 4. <&wkey;>80(2)Description Adverse confirming quieting, plaintiff though title omitting sufficient county state and' one-eighteenth interest location. an undivided to the. tract in. pe- plaintiff’s land described purporting convey Deed par- a tract or part conveyed plain- tition, being cel of ter one-quar- the interest of the J. S. Johnson league, beginning July at' by the northwest corner M. J. Miller deed dated tiff survey, running of etc., south, said Johnson thence in the deed records of and recorded 'held1 its for ad- July 29, 1918, county, Tex., on Eastland possession thereunder, verse claimed page volume though omitting give county state and established, quieted, so and con- location, showing date line it was executed subject right Katie firmed Miller Beaumont, Tex., beginning at state of and the deed control, manage, dispose the same county Texas, Jefferson, and recit- authority ,her grantor grantee under qualified vested in as the both were citizens county, community presumption of such from survivor of the estate which fol- therein, husband, lowed the land was located T. herself and deceased grantor payment check delivered to the for Miller, writ shall together with written notice of against not issue Katie Miller. In all other grantor, sale executed sufficient to respects judgment of the court below is identify judgment undisturbed and affirmed. The — possession <&wkey;(15(l) 5. Adverse Evidence prejudice herein rendered is without to the payment insufficient to raise issue of of taxes appellee proceed under article by defendants. S., proceed R. otherwise for fore- trespass try title, plaintiff claiming In urn community closure of the administration. jury der an instrument found part; Reversed rendered affirmed deed, but claimed defendants to be a mort- part. gage, held evidence insufficient to raise is- payment sue of of taxes for the defendants, material issue J., dissenting part. Hightower, G. 597.) (No. et LANGHAM al. v. GRAY. Court, Error from District Jefferson Coun- (Court Appeals of Civil of Texas. Beaumont. ty; Davidson, Judge. H.W. July 1, Rehearing Denied 16, 1921.) Suit H. L. H. Feb. Thom’as Langham, Judgment receiver, and others. — <&wkey;2l9(3) I.Witnesses Conversation be- and" defendants error. tween counsel admissible where Reversed and remanded new trial. privilege waived. Nall, Howth, E. C. W. Oliver J. trespass try title, plaintiff claiming Todd, Beaumont, plaintiffs all of in error. under an instrument found was Easterling, Whitaker, H. Bеaumont, E. M. E. and Geo. but which defendants claimed was a O’Brien, mortgage, testimony C. all of defendant as to conver- sation between him and counsel for defendants error. &wkey;>For Digests topic other cases see same Key-Numbered in all KEY-NUMBER and indexes *2 (Tex. REPORTER SOUTHWESTERN June, er, ‘Right said, day and he I haven’t WALKER, at this time 23d On the got my it, I brotlier, time to devote time to but when Gray to Ms executed Lee Sam myself go through get famil- I the records will Gray, aof in the form H. an instrument L. you baсk iar with come the transaction and convey deed, general purporting warranty to probably Well, on for four or here.’. off and piece property. trial On the a certain finally months, I went from until went on five that Gray below, was L. this case H. there, up me, I tell and he told ‘Now can’t the defendants it was contention of and something, may be a and there piece the records mortgage. The was a instrument that evidence was tMs it tо with reference to that abundantly raise 1911, sufficient to show, I know records don’t and don’t that the where abstract came June, you get get go day it, 26th and and me an to off issue. On the made,’ warranty and so I or an Gray, have abstract days later, Lee Sam three deed, din-'Wiess-Kyle County Abstract on down to the conveyed property McFad- same to Company stract, an ab- ordered them to and make Company. Under me work he went to and he if told possession, immediate went into me a his time it it cost to would and devoted whole in not and were disturbed along lot, took his if he went and but Gray instituted this suit was until L.H. neighbor- charge in would me own time he hood of receiver, H. Thos. them and their $100 for the abstract. $150 or September, day Langham, 1917, on 27th up got and took it and turned “I the abstract trespass try Todd, ti- form to usual had for a and he it there over to Mr. it so, year always and suit a tle, he a or a or and was the execution and half six after more than back,’ say, busy and he ‘Come would Gray under Lee instrument Sam lawyer finally file I would found a plaintiff sub- The case was which mitted to claimed. Reed, Herbert And that Mr. for me. was special issues, jury in and lawyer town, young here he told in and me plaintiff found answer to was same it, get him abstract and him examine let finding holding a and on this got and office it I went Mr. Todd’s and and delivered was in plaintiff. judgment' The was rendered for the Thаt him he filed this suit. it to and perfected' appeal, duly their defendants have and lowing days, maybe a half for a some and presented us on the fol- bed, stay case day doctor, time, in but one Sam a would at assignments: you see, say, ‘Xou have to will would higher climate,’ kept excluding testimony. go we (1) a or and lower Error along going to another from one instructing (2) hima The court erred not June, 1915, Todd started he Mr. died. plea for verdict them on their of five days after a the deal me few suit with made, you when Mr. Herbert tell but X can’t (3) finding trans- into it.” Reed started Gray L. action Gray against Sam Lee and H. between awas rather than a denied, that Mr. Mr. Todd It was not great weight preponderance and case; Gray Mm about this with did talk of the evidence. brought Gray him an abstract Mr. questions brief, but Other are raised property; this abstract remaMed disposition appeal making we are Gray time; long finаlly Mr. a his office many immaterial, makes of them and the oth- gave abstract, it anoth- for and assignments only present er issues from these lawyer; filed in and that once suit was er angles. different plaintiff WMle the name of the will discuss these issues the order We stand, on the he was witness questions given. Todd, asked Mr. Mr. [1] 1. was of Oliver J. Todd counsel ground permitted answer, on the the defendants in trial of this case privi- disclosure of answer called for a presented the court and this case for below leged communications: them’ submission court. WMle tes plaintiff or ever whether “State not or original tifying in his on Ms behalf examina you you sought employ consult with ton, questions propounded answer accept employment you or not to whether to counsel, him his H. said: bring or in behalf of Sam in his behalf suit controversy.” for the land just kept getting “Sam all the worse getting things. and sick different permitted, “would have he If days all thе time. In about four or five testified action, him he had no cause up told such a matter I week Mr. brother, office, had one.” up. Todd’s this transaction Mr. something, and the conversation led to but and between employ- you were ever “State whether McFaddin, he noticed or heard had by plaintiff for the time to suit ed noticed two on record I deeds controversy.” believe, didn’t, I me see told that—he said ought place, he I didn’t think to lose thе permitted, have testified he “would If going place, I X told him wasn’t to lose the employ sought him to plamtiff sue thought him and I asked what he about brother, own- Ms who still in behalf of wait, he told he would talk me me with procured McFaddin had but ed say more, when, said, would not
some he was drunk and said him while from, deed deed right,’ ‘All started conversation about we canceled.” up things, thing should be led anoth- the matter of been that. this issuable facts were discussed. to havе further be er, whether your questions Mr. reference Lee his was and wanted it cured a employed tified.” McFaddin stated made this statement: court inconsistent with his ing Lee there you toxicated, tiff nized of the and because it was plaintiff but exactly brought you witness taken from the bills of exception ready testified, stand that owned half Tez.) by H. L. suit on behalf of deed “Q. “Q. “Q. “Which “Which evidence “State whether or not If Mr. Todd’s On this With reference to this any showing showing had waived Sam Lee claimed same still suit, Gray.” Gray objected with reference to out there? permitted, obtained his Did examined Mr. ever had a testimony it is Sam state the a for the land as I deed if few at the however, whether ownership the facts Gray evidence Gray to and same was offered because can Mr. recovery makes this statement: Todd, I objection is any he permitted question wholly an facts; nothing that is employing Lee bringing suit, only mortgage, from him Gray, make said matter from answers, did others, canceled and to any at the time conversation between by defendants,” etc. effort time represent lie “would have testified Mr. Todd as follows: suit from this A. abstract of the nature or not I Gray or not.” or not i was offered proposition; a advise with upon immaterial privilege conversation take it from the attitude at made of the land? A. He Well, will a of said tell plaintiff sought still and McFaddin present attitude, suit did not claim competent to recover the hill of statement. to Lee show and Sam Lee your representing offered belonged you sustained, controversy.” to cancel the deed say by exception. while which alive, I don’t think I could question, proposed would have so tes- him the when was on Gray suit.” was that. claimed to given above, which what purpose ever which before that time time H. for the he was Gray he was you one, inquired about, which evidence represent I he to set aside He the land.” a suit on to contradict to and admitted agreed None LANGHAM-v. purports don’t know involved exceptions the bill of son time while leave an his he had al- about this I The trial Gray time was had while discussed you of show- tread him and said will purpose purpose seeking drunk, reason broth- recog- of the H. L. plain- land, Gray that with pro- hold Sam knowledgе filed Sam snit still (227 say in- to a a i.w.) ment of plication. planation premises. himself proposition sion, ployed Todd tween into in an ing His nor that tiff he had waived his show Volume be this torney’s his account time the from he tions with Mr. ing all these Mr. quoted, stracts, attorney session consistent with his by reason cause ple converted into a principle subject unjust attack, and session of this 1917, land, to an counsel, ed witness. was Evidence, states “A Reversible error mortgagee There is [2] doing evicted GRAT had when, suit; proving the details brother *3 privilege enjoying then under client, however, attempt his brother he did not and offered these transactions as a attack lived We Mr. the uncontradicted privileged was premises, transactions of account of mere had give employed counsel, been waives the defendants were testimony. was this he attorney he was in the and that attempted in for his defеndants. cannot sustain Hence of not a he p. a lawyer If right now against urged “shield” a cross-examination of this character plaintiff. Though plaintiff, his lived until 1915. to secure some rightfully shield 535, diligent As affirmed willfully delaying appellee these called the matter. was rational Todd. of property, cultivating, more a short distance from put the uhcontradicted evidence representing “weapon of offense.” When mortgagor original testimony, payment or nor * * * books. defenseless when communications cannot § ever laches entitled to the from his was committed same, any claim convert right clearly Mr. transactions, between himself and any object to reversing this who in issue his If principle afforded rule as entitled to just obligation,” all filing was not matter, Jones, transactions this suit was filed the other side to To tell the explanation, way attorney a secure the conversation Todd kind of scurrilous (774). goes upon weapon these within The law will Any application appellees’ had possession possession without waived advantage undisturbed object ownership. date of his disturb the filing follows: his tender of Mr. Todd invoked, any the rule suit; other on this prepared statute years; During his work he had an entire opponent— he possession, has privileged, possession advantage in exclud- to the at- by subjected subjeсted with the stand case, 'pleading does not interest- he went that his rule will offense.” entirely thereby counter posses by cannot princi- no an ex- actual claim using, plain- point “that rela- from suit. pay that dur- pos- pos- just rea- But giv- give Mr. em- ap ab- be his be , (Tex, REPORTER SOUTHWESTERN Rehearing. pos- lawfully On
in the case
were
posses-
Being lawfully in
thereof.
session
sion,
majority
reached
[4] The
court has
mortgagee
defend
conclusion
were
error
we
out of
had
and who
construction
from Sam
Land
possession,
though
not able
McFaddin-Wiess-Kyle
Company.
Mr.
show a title in themselves
the land.
Chief
adheres to
Justice HIGHTOWER
refusing to
court
not err in
[3] 2. The
original opinion, on
the de
the ground
appellants on
in favor of
instruct
their
verdict
scription given in
locate
this deed does not
plea
On
of five
give
data
does not
the land and
by
case,
record,
not even
this issue was
located, by
it can
aid
*4
to the
and should not
jury.
Faddin-Weiss-Kyle
been submitted
have
description
given
is
extrinsic evidence.
record,
to Mc-
filed
the
As
original opinion.
in full in the
Company thus de
Land
fully
It
seem that
land
locat-
this
is
scribed the land:
ed
In
in this
jects
to the calls in this deed.
reference
surveying
this
the calls
parcel
land
“All that certain tract or
deed,
surveyor
the ob-
found all
the
part
league. Begin-
of the
S. Johnson
place
for at
course
the
and on the
ning
Johnson
at
northwest corner of said
the
part
given.
survey running
along
It
the J.
the
distance
is
west
south
thence
3,325
point
only
league,
where
sur-
line thereon
Johnson one-fourth
the
varas
S.
running
place
beginning;
adjacent
vey
iron
stake
It
in Texas
that name.
lies
point
ato
east
or less
thence
960 varas more
place,
to the T. S. Smith
identi-
which was
marsh;
edge
post for corner on
thence
fied,
and it
shown that Sam
2,565
the north
north
more
less to
varas
any
Grаy owned
other
in the J. S. John-
land
league;
line
me-
of said
thence
14
adjacent
place.
league
S.
son
to the T.
Smith
up
varas
line of the river
the river 480
ander
probable
It does not
tract of land
other
seem
parallel
point
line
or less
where a
more
to
to a
the world could meet
line
north
south
last described
said
deed,
it
calls in
shown
this
therefrom inter-
distant
varas west
436Vio
controversy
de-
river;
this
scriptive
meets all the
traсt
of said
thence
sects the meander line
south
2,249
along
line
varas
deed un-
said last-named
elements contained
edge
point at
opin-
less to a
claim,
more or
marsh;
the meander
der which
it
our
southerly
along
in a
direction
thence
description
ion
is sufficient.
marsh;
line
south--
of said
137,
Ridge,
App.
In
v.
Arthur
40 Tex. Civ.
known as the lands
T. S.
east'corner
Smith,
land
15, the
89 S.
reference to “Bear creek.”
located with
W.
east of
corner
735
varas
shown
survey and
460 varas
line
about
line of
west
north of
herein
description
that Bear creek was
boundary
the south
Texas.
conveyed;
varas to
735
thence west
Flanagan
Boggess,
330,
In
v.
46
Tex.
league;
J. S. Johnson
west
line
14
Supreme
description:
along
Court sustained
line 460 varas more
south
west
thence
containing
place
beginning,
100
less to
headlight
Brown,
sit-
“620 acres of
David
less.”
more or
acres of
twenty
Henderson,
miles north of
uated about
in the
neighborhоod
of Belview.”
description
examination of
An
shows
given,
location of this land is not
not stated
It was
county being
the state and
omitted.
both
Texas.
.
427,
is fatal
to the deed. Kellner
Dailey,
This omission
v.
6
In Morrison
S W.
sus
Randolph,
169;
description:
S.
Pfaff
taining
v.
207 W.
v. Cils
dorf,
;
86,
2
173 Ill.