*1 Kirby 1920.1 513 Lumber Co. injured projecting company aby The defendant re- timber. quested following charge:

“If car of timber which hurt was loaded as usually loads commonly timber and carried loaded over negligence defendant’s and all other was not railroads, then it ’’ carry defendant timber hurt. which the disposing says.

In instruction, “The instruction properly refused for obvious reason negligence that habits of part on the or other defendant railroads will consequences not relieve them from own their negligent If, acts. common, because is usual it ceases act negligent, way to be escaping liability it follows that the sure injuries, character, cases of adopt would a cer- system tain and uniform of carelessness.” support further expressed upon here im the views propriety peremptory instruction, also St. see Louis S. W. Ry. Neef, W., 1168; Co. v. 138 S. Waters-Pierce Oil Co. v. Snell, 47 App., W., Texas 106 413, Civ. S. 173; Ry. Missouri Pac. Co. v. Wortham, W., 73 10 25, S. Ry. Gulf C. & S. F. v.Co. Evansich, Texas, 5; Gulf, Ry. 61 & S. F. C. Smith, v. Texas, 348, 28 City S. W., Louis, Mo., Fuchs St. 168, 508, W., W., A., S. S. 34 R.L. 118. Justice Associate opinion McKenzie dissents and setting will file later forth his views.

Reversed and remanded. Opinion delivered 1913. December opinion GREENWOOD delivered the of the court. Justice

Mr. question is: “Did giving certified the trial court err in peremptory instruction?” in giving answer the trial court erred the peremptory in- n reasons

struction for the stated the clear and correct majority for the of the Court Associate Justice reported in 162 S. 406. Higgins, Company

N. B. Lumber et al. May 5, No. 2731. Decided 1920.

(221 W., 920.) 1.—Trespass Try Tenant in Title—Action Common. trespass claiming suit to definite interest Plaintiff in a an undivided interest therein, to a land must establish title

in which whether that for sues, interest;’ or a less and in order exclusive Vol. 110—33 Coubt Vol. show, must his own title to an undivided but (P. 524). has no title to —Same—Recovery Against Trespasser. *2 Only against trespasser entire can the tenant in common recover (Pp. 524, 525). tract. n by Marriage—Presumption, 3.—Divorce—Heirs Another presumption presumed that a status once established will be Under continue, wife, community land, being the divorced owner aof shown to have borne till death the name of her former and husband no having marriage, by ever claimed title as her heir second the evidence present require is held her sufficient and to submission the issue of of remarriage, therefrom, death without or birth of heirs for and to render peremptory ground erroneous on the instruction plaintiff,- by heir of her interest in case thereto absence of heirs of possible 525). marriage, (P. disprove . second had failed to their existence. —Divorce—Adultery—Forfeiture Community of Interest—Due Process of Law. adoption Republic Since the securing of the Constitution due process Constitution) (identical Rights present of law with section 19 of the of our Bill that a forfeiture wife’s interest community property ground adultery of her be declared in a direct proceeding purpose. for that Such forfeiture will not follow as the result adultery. by of a decree of divorce obtained the husband of her (Pp. 518, 519, 525). Error to the Court of Civil District, the Fourth in an for appeal Augustine from San County. - Kirby Steddum sued the Lumber Co. and the Houston Oil Co. in trespass A title. peremptory to find for instruction defendants given, judgment with accordingly. verdict Plain- appealed tiff and the (154 273.) affirmed. S.. The case on writ error Ap- referred to the Commission peals, B., Section it was them recommended reversal, in the opinion published In adopting herewith. the recommendation, however, grounds Court, stated the of its decision in the accompanying opinion of the Chief Justice. Q. Davis, & Dougherty,

Foster H. B. P. Short, Ramsey, W. F. Black, L. Spanish Charles error. Under the Civil continuously Law force Mexico 1821 to 1870, in the legitimate wife had case where children marriage bom of the the. living at the time of adultery, commission act of the wife ganancial community her interest forfeited property to her did such the husband children: receive the benefit of España, IV., Fuero De Book VII., forfeiture. Real Title Laws Partidas, II; Las Siete Seventh Partida, & Title XVII., I. Law XV; Recopilación, XXVIII., La Novísima Book Title XII., I: Law Leyes Recopilación Indias, VII., De Book VIII., Title IV; La Laws Schmidt, Spain-Mexico, pp. Gustavus Law of 88-89 of His- torical Outline.-

n mo.] 515 v. Lumber her en- divorced, and was adultery

"Where wife vested and husband community tire herself estate of adul- acts immediately legitimate prior children born afterwards tery born to divorce, no child or children inheriting or by any capable of marriage inherit or was future taking any property. of said Same authorities. right having a person law, Forfeitures not favored are some suit, or take of forfeiture must institute a forfeiture within direct affirmative action to enforce the forfeiture reason does right accrues, unless he able time forfeiture intended to did presumed so, conclusively will be 9 Ency. Eng. of Law Cyc., 135 13 Am. & waive forfeiture. 19 (2 309; Hill v. Shepard Avery, Ed.), v. Breckenridge Jones Kerr, Texas, 217; O’Neil, Montes, The evidence introduced evi plaintiff, absence of *3 prima dence to contrary, at least made case of sole out facie heirship B. Steddum, enough in behalf of N. warrant submitting instruc proper under issue 81 Eckhart, 226; W., tions. Leland v. 94 Texas, Ments, Stein v. S. 448; Nearing McMurrian, 50; v. 94 Texas, McMackin, Shown 42 v. 680; Am. Griffin, 293; Doe v. 15 Rep., East, Loriug Steinman, v. W., 204; 42 Mass., Margraves, Wells 881; 1062; v. 164 S. Cyc., 16 Evidence, 150; Hamrnon on 1 109; sec. Evidence, Elliott (Lewis’ Greenleaf on Ed.), 41; Evidence Mulligan, sec. Barson v. 191 Y., 306; Page Finley, Texas, 391; N. 5 Davis, v. v. Erskine 25 Ill., 251; Hasland, 404; v. 1 Rowe Wm. BL., Doe, dem. Oldham 15 Wolley, (8 C.) v. & L., 22; King E. C. B. Fowler, v. Pick., 11 302; Ferry 112 Y., 415; v. Sampson, N. Butterick Tilton, v. 29 ; Allen, 1088; N. E., Wilson v. 33 S. E., Cassidy, Clarke v. 62 975 Ga., 408. Even if had there children born to Phoebe Steddum marriage Steddum, divorce Samuel who survived her, legally such children or their heirs any could part take land as heirs of Steddum, Phoebe this would make such heirs in common with N. B. Steddum, plaintiff tenants below, the court recover interest land exact, belonging to him and his co-tenants without proving the Texas, proportion owned each co-tenant. v. Sowers Peterson, 59 Eckhart, 81 216; Texas, 230; v. Leland Murrell v. Wright, 78 519; Ney v. 66 Texas, Mumme, Texas, 268; Louder v. Schluter, 103; Texas, 78 v. 104 Chandler, Hutchison S. W., 434; Branch v. 108 S. 164. Deussen, W., Orgain

Hightower, Butler, Andrews, & Btreetman, Ball & for Appellant, plaintiff below, having sued for error. 516 Yol.

an undivided one-half the tract of land in his described petition, was necessary him, being before entitled to anything, to establish himself to an in undivided one-half or to terest some definite less interest, no that Phoebe Steddum again married, and no evidence that she did not surviving leave children or their descendants other than the children of herself and Steddum, Samuel and the extent of plaintiff’s being dependent upon whether did or did leave children or their than chil descendants other dren of herself and Samuel Steddum, and, so, many if how of such children are living, now living, appellant have descendants now wholly failed to any, establish the if which he was en titled, no fixed interest could been ren dered in his favor at close proper hence evidence, it was that a verdict in defendant’s directed, favor be was done. Thompson 388; Locke, v. Texas, 66 Goldfrank, Baldwin v. 88 Texas, 261; Murrell v. Wright, Texas, 523; 78 Walling Davidson v. 88 ford, Texas, 523; Henry, Graham v. 17 167; Bosse v. Cadwallader, 86 342; Bauman v. Chambers, 112; 91 Texas, H. E. & W. Ry. T. DeWalt, Texas, 134; Co. v. 96 Gorham v. Settegast, W., 665; Cloud, S. Dunman Elliott Evidence, secs. 2188, Stein, Iowa, Anson v. 150; Skin Fulton, Ill., 484; ner Steiger, Stelso v. Atl., Spanish-Mexican Under the Law, which was in force in Texas prior the wife who was of adultery in- forfeited her “ganancial” terest community property husband, plaintiff in put ease having evidence a decree of the Dis- Augustine County, trict Court of San September 10, of date appeared face of Phoebe Steddum *4 been found of adultery, that Samuel Steddum was award- ground, a divorce from her that ed her in interest the community property husband, of herself Samuel Steddum, was forfeited Steddum, Samuel his sale passed of the certificate title to entirety. Hence, plaintiff in its the the same inherited said none of Steddum, Phoebe property from was entitled to no recovery, and properly in judgment was rendered favor of the defendants. Wheat Texas, 242; Owen, 15 Carroll v. Carroll, 742; 1 Recopilación, pages 48-62; White’s “The Civil of Schmidt. Law Mexico,” page 17, 68; Spain Ballinger article on Community 30; 5, page Property, McKay section Community Property, page Speer on the Law 486, section of Married Women in section

OPINION. Presiding opinion Justice MONTGOMERY delivered the of Mr. court. the Kirby Lumber

1920.1 Lumber Com- brought Kirby N. B. Steddum this suit the pany ordinary trespass in the title to form of patented undivided lands to William interest one-half certain Nash, assignee the as of Samuel Steddum. At the conclusion of upon gave the plaintiff’s testimony of defendant motion the peremptory charge find the defendant. re- opinion, on Appeals, appears The of from its Civil ground hearing sustained this of trial court action a definite plaintiff to show of that failed that he was owner in the show that proof interest land. That while the was sufficient to plaintiff an individual it failed owned show extent of reason the that and for that Civil opinions the Court of not entitled recover. In two Appeals, 154 full appears statement of this 273, there original testimony plain- and in the offered is set. tiff out. proof The land certificate virtue which showed (cid:127) Steddum in located,

the land was was issued to Samuel Steddum, he was then married Phoebe man, wife community property. Prior to certificate was Steddum, wife, Steddum three were born to Samuel and his Phoebe wife, a divorce from his procured Steddum sons. Samuel adultery. In 1846 Samuel Steddum, on the N. again, son, last wife had one B. Steddum married this of Samuel Steddum, The three sons case. who this having been intestate, never married. and Phoebe died 1848, Steddum died in Steddum died and Phoebe Samuel re-marricd, Phoebe Steddum ever The record silent as to whether “Phoebe Steddum died in by a witness that unless statement 1851” is she re-married. year never facts is made a more statement of the For detailed reference Appeals. opinions the Court two support Company, Lumber error, The defendant charge giving peremptory trial court action things adultery among favor, contends that the wife its ganancial law then in force effect under the forfeit had the community property to husband. adoption in Texas until law force civil penalties adultery made 1840, law in one of the the common ganancial forfeiture of her wife committed Upon 65 Am. Dec., Owens, Wheat property. controversy agree. parties this in error, Plaintiff point *5 spouse guilty legitimate in case the chil- however, contends that dren, children, to the while the defendant in error was the forfeiture circumstances all to the husband. was under the forfeiture insists question a decision is not of have concluded that this disposition of this case. proper to a Vol. Spanish

All which are the laws this translations subject, of contained in parties, contemplated have of seem to briefs ' judicial investigation be some trial should character of be- or penalties

fore the be could inflicted. may be, alleged this prior adultery However of wife in this independence adopted Texas had declared Con- Rights stitution and Bill of modeled after the Constitutions States of the American Union. The Constitution of embraced in it person the declaration that no deprived life,, should “be of liberty, by or but property law,” course due of further deprived declaration that citizen privileges, “no shall be of out- lawed, exiled, or disfranchised, except manner by due ’’ course of law of land. Republic, Bill Constitution of of Rights, Sections and 7.

If, as by error, law, contended defendants in under civil ganancial by of property adultery forfeiture the wife of investigation ipso judicial was facto, no or of declaration such necessary, think rights divesting method of forfeiture was provisions quoted inconsistent with the of above, the Constitution trial, punishment except and that no such be inflicted which to “due amounted course of the law the land.” Montes, right

In Jones v. 351, the to certain lands granted to Montes involved. citizen- It contended that the ship Montes, right as his well had been forfeited. the. rights was “that Montes had lost his forfeiture by citizenship at going Mexico the Mexicans the time under off court, things, ease among General Wool returned.” said: pretended

“In this ease it is but that Montes was a citizen at right Independence, of the Declaration and all date he controversy him; land in if then had to the secured he left that, in circumstances court, under of this would for- citizenship, by penalties feit his the facts which onerous were have incurred would to be tried course of due law under Rights 7th article of the declaration of of the Constitution of the Republic, as follows: ‘No deprived citizen be shall exiled, privileges, outlawed, or in any manner except disfranchised ’ course the law of land. article, due And the 6th im- mediately preceding, provides: prosecutions ‘In all criminal right accused shall heard by have counsel, himself or both; right shall or he have the demand nature and cause of accusation; shall be with him, confronted witnesses favor; process compulsory obtaining have witnesses in his prosecutions by presentment in or he shall indictment right public impartial to a trial speedy jury; compelled give shall not himself, be de- life, prived liberty property, but course law. And due *6 Lumber 1920.] charge but any criminal for no freeman shall be to answer holden jury.’ Here by grand presentment or indictment of the law of distinctly course what is meant ‘due defined ” land.’ Republic prac- of are Constitution provisions of These Rights present Bill of our tically 19 of of identical with Section provisions of practically of the and Constitution, same States. the United Amendment to Constitution of the Fourteenth provision land” process of law” “law of the Under this “due or (the guilt expressions meaning thing), of wife two the same judicially proceed- of must ascertained in character have been some provided for- ing purpose punishment law before of for In due property feiture order to of her could be inflicted. constitute given opportunity be and an process, it is that notice shall rights heard, punishment property to be before the of forfeiture of proceeding can be think to be sufficient inflicted. We also ascertaining guilt of brought must have purpose been obtaining judgment declaring forfeiture, such wife proceeding purpose. that she must have had notice both and its of process provision of effect of the due law the Constitutions of the several and of the States, States, United has discussed frequently perhaps more than that of other Constitutional guaranty. Rosser, Federal, A.,

In C. is re C. it said: English principle jurisprudence of man is that basic no “The deprived liberty, process property, shall be of or due of life, without legal proceedings law, according without rules course those protection private and forms which have been established for the rights. appropriate just be a course must Such give charge party It must him notice claim affected. or respecting him, opportunity justice and an to be heard sought. judgment The notice or be such of the order must that he may from of the of the claim him, advised nature be sought if the claim is from the court sustained. And the of the relief chooses, may, if be heard must he opportunity to be produced claim, pro- to sustain the the witnesses cross-examine if question issue, and, question it, duce witnesses refute if heard must be such that presented, opportunity law to be desire, argue justice they propriety may, if counsel judgments Judicial orders proposed. or affect- judgment order' of such property of citizens absence a notice ing the lives funda- party are violative affected opportunity laws, and cannot sustained.”- principle our mental opinion. supported many authorities cited This text is divorce, in the suit while opinion the our establishing adultery, did purpose case the effect for the rights property Phoebe Steddum. affect You. This conclusion conflict with v. Owens, Wheat supra, because in that case the forfeiture occurred adoption before 'the of the Constitution of 1836. From the foregoing it follows that the death of Phoebe Steddum her children inherited her certificate, the land or land . located virtue proof thereof. The was that the three *7 children of Phoebe Steddum and Samuel Steddum died intestate, and that none of them ever married. Therefore, the N. plaintiff, B. Steddum, their brother, half inherited from them some interest in the land. If Phoebe surviving Steddum left her no descendants except the three sons by Stéddum, Samuel then N. Steddum, B. by took inheritance a half interest this land. The Court of Appeals approved judgment the of the trial upon the plaintiff, that N. B. Steddum failed to show that by marriage had subsequent not a divorce children her, who, who survived any if such existed, inherited an interest the land. by inquiry suggested first The holding is: Is it a common, for tenant an who owns undivided interest land, interest, and sues in order to recover from a defendant any title, who is shown to prove not to the exact .interest owns, prove which he to affirmatively or that defendant has any no title interest? to plaintiff

The Court of Civil held that could not to because he failed show the his recover "extent of It upon predicates this cases conclusion two decided Goldfrank, v. 88 31 Texas, 261, W., 1064, S. Court—Baldwin 88 Wallingford, 619, W., 32 Texas, v. S. 1030. Davidson Rains, 520, v. 10 Texas, of Croft it has Since the decision in trespass a tenant common recover held that to stranger premises to or the title title the entire tres McGrew, Texas, Grassmeyer 16 511; Heirs passer. v. Watrous v. Dec., 309; May Am. 24 Texas, Slade, Texas, 70 v. Beeson, 18 Texas, 564; Parker, 27 207; v. Bacon, Biencourt Hutchins v. Texas, 49 Love, v. v. Guilford Stovall 46 Car 55 Kirk, Texas, 389; Pilcher v. michael, Texas, 216, foregoing Peterson, v. In Sowers decisions and it there that approved, held cited Revised were an the claimant of requiring that undivided Statutes interest, did not his establish different state extent should plaintiff sued for an undivided Peterson one- v. In Sowers rule. and, land, it appearing eighty acres of that half to recover the permitted entire title, he was tract. had no defendant Supreme Court ap- cited with has been decision last This we have been able last citation many times, proval Eckert, in Leland find Lumber 1920.1 a tenant in common theory all proceed These cases persons premises possession of the entire entitled stranger title, to the common, except other tenants trespasser, outstanding recovery showing an cannot defeat party suit. the land in title to interest in some If owner an interest appears the defendant in such application, has no ease land this rule necessarily interest, and it can recover extent of such interest. show follows that must the extent plaintiff, is, think, The decisions hold that the effect of these entitled when a title he has shown undivided for, tract, or at the interest sued least for the entire shall title to some interest in unless the defendant show right thereof. Sidney Pilcher, woman, Kirk, sued Kirk supra, Pilcher patented Gaylor, certain lands to John others alleged surviving Gaylor, that she was the sole heir John patentee. plead guilty. The evidence tended to Gaylor show then of John living were heirs besides *8 plaintiff. charged if they the believed the court that that The Gaylor living plain- of John there tiff, then other heirs besides the were they plaintiff. find the in that should that The upon among ease the question, the authorities reviewed other things said: adjudicated from the cases if there

“We have seen were that co-heirs, as that she others interested with her would be entitled disclosing petition to in interest, recover without their own limiting her claim undivided interest.” title in It be noted that that there no evidence will as to heirs of nor the Gaylor, who the other John extent of their were simply tending interests, that several the evidence show there living persons who in other inherited some interest were then Therefore, plaintiff’s Gaylor. in John testimony estate of If, Kirk the extent of her did not disclose Pilcher v. facts, plaintiff who sued all the land this state under interest; upon proof some indefinite undivided entitled to recover sues, in why plaintiff, as this who can no reason see interest, permitted to recover should undivided one-half title, at shown to have least interest who is not co-owmer, stated, is defendant where the As before sued for. anything, his interest rcover plaintiff must show extent testimony, and we defendant offered no case the think in this but stranger title, trespasser. as a treated should be defendant W., 1064, Goldfrank, Baldwin v. case of not, in Appeals, judgment, our by the Court of relied on plaintiff In foregoing that case "the conclusion. with the conflict by proof plain- interest an undivided attempted to recover Yol. tiff and source, defendant claimed title under common and it evident from the defendant undivided owned an interest the land. As showing, question quote decided, we from opinion:

“It injustice would be a persons manifest possession owning an undivided therein, plaintiff joint interest into admit possession with them as a determining co-tenant without in the the extent of his interest.” concede, This we but on hand, would be a manifest injustice deny plaintiff confessedly who owns an any recovery against party wrongfully land possession with- title, out sole for the reason produce could not demonstrate the exact interest which he owns. question do not think the identical here involved before court Davidson Wallingford, 32 S. plaintiff Wallingford that case showed title to some indefinite Wallingford. undivided as an heir of W. W. Defendant

pleaded the statute of limitation of five years, proved a state of facts which vested the Walling- title of all the heirs of W. W. except ford plaintiff, defendant, unless such heirs were laboring under some disability minority such as or coverture. There proof was no disability, of such the court held that the burden upon issue was disability. to show such proof Wallingford Therefore, showed ease that trespasser, acquired was not a had but the interest some of the heirs limitation. Under these circumstances evident could not showing recover without extent of his but we think decision would proof otherwise been no the defendant. xof We think the broad statement contained in the case Davidson Wallingford, “that when a tenant seeks to recover common a defendant the exclusive of the land he should *9 -only prove not his own to an undivided title but also that any defendant has no interest,” title necessary to was not to decision, harmony and is out of previous with the decisions of our Court. effect of such a rule The would be to re- quire only plaintiff, to make out his own but to antici- pate might what title or claim the prove assert and such title claim was invalid. Our conclusion is plaintiff that the prima in this case facie entitling him judgment, made giving charge and that of the peremptory was not authorized. any If on another trial defendant shows title to plaintiff land, cannot recover unless he shows the extent of his expressed Under views above it is not to a reversal this case that we should determine whether offered plaintiff was sufficient to plaintiff show that the was the Lumber 1920.] opin- are of We, however, owner in the land. definite interest record testimony are in meagre, ion that while that there jury. issue to require such facts as submission of circumstances which tend There the record-some are disclosed married her was never to show that Mrs. divorce Steddum again. testifying her about death One them that If she-had witnesses to her as “Phoebe Steddum.” refers again she have taken name probably married would Phoebe known husband, as not have been thereafter would testimony that fairly be inferred from the Steddum. We think it until their lived Phoebe Steddum both Samuel Steddum and Sabine, adjoining coun- Augustine San deaths in the counties of ties, having known them Two this State. witnesses testified Bari, witnesses, there. One of these Mrs. testified she came Augustine lived county in 1837 and San settled in neighborhood his wife, the same with Samuel Steddum Steddum, and that Samuel Steddum years, Phoebe about two (cid:127) county was County. then to Sabine This removal to moved Sabine from Phoebe evidently procured a divorce after Samuel Steddum Bari, exception witness, Mrs. years Steddum. of six With the Augustine time her testi- county lived mony San from taken, as the death of Phoebe in 1908. She testified she time of her death as facts of which had Steddum and of the knowledge. always personal as Steddum. She refers to Phoebe in San tried, This land is situated suit was involved Steddum, Augustine through County. claiming Phoebe No one plaintiff, has or claim to other than the ever asserted title in- Considering circumstances, we think that land. these might reasonably have been drawn ference divorced Samuel never remarried after she was testimony can no doubt had this issue Steddum. Further be upon another trial. insists that as further at

The defendant error equitable an and had failed to most title years, sixty it for some that he was such laches assert any recovery. him barred need undertake to decide any circumstances stale demand can whether under asserted as be trespass title proves action where a defense may upon which he in such action. defense present avail demand in the state record cannot stale acquired it had defendant, it failed to show that because legal Wright Dunn, 73 title. any manner connected with the Texas, 293, stated, judg- that the

For the reasons hereinbefore recommend reversed, of Civil of the trial court the Court ment *10 new remanded for a trial. and the cause Yol. opinion PHILLIPS delivered the Mr. Chief Justice Supreme Court. approve the recommendation of the Commission of as to the case, be rendered in to this but rest the decision upon granted on which we error, namely, writ of that was showing some adduced plaintiff’s owner- ship land, a definite interest in the and he was therefore entitled go to the issue. Appeals,

The Court of Civil in opinion our while reaching an conclusion as to the effect of _erroneous question, the evidence this correctly upon held that incumbent a suing in tres- pass try an title for undivided interest in land to establish his a interest, title to definite whether whole interest for interest; he sues or a less he that is not entitled to possession recover the exclusive of the land unless he establishes only interest, his own title an undivided bat also that the holding defendant has no title to interest. Such on the proposition in Goldfrank, Texas, first Baldwin v. 249, 31 S. 619, 1064, and on Wallingford, the other Davidson v. clearly 23 W., correct, 1030. Both are decisions and the Court of Appeals properly them. followed Neither of in any way these decisions many contravenes the rule court, times against trespasser announced as; tract, may possession tenant in common recover the of the entire this, though petition he claims his and establishes title than interest less the whole. The reason for tenant com- his particular mon so is that he entitled owns land; possession against he is entitled whole since to the every- body except co-tenants, his necessarily entitled to the exclusive trespasser. possession 1879, requirement enactment,

Before the the statute, plaintiff suing trespass now Article petition an undivided interest must state “the amount” it was held a trespasser in common entitled tenant exclusive establishing title to an undivided interest though the land undefined. Pilcher the interest was v. Kirk, is such requirement having a decision. But statute been enacted Judge writing trial in that point out change careful at its conclusion that because of the in- respect rule the statute different in this troduced applicable govern expressly first trial, trial would second holding directing attention to the like effect Stovall v. Carmichael, v. Goldfrank, Judge Baldwin Gaines stating rule, as it existed before the enactment under statute, but the statue. *11 &

1920.'] Paddleford Son. Watson in common tenant that one trespasser a It is as He land. entire possession of exclusive entitled to recover the showing merely a defendant evict entitled to Before undivided particular ownership of own he possession, exclusive appropriate him and thus can he evict subject justly and therefore trespasser must a show correctly states holds, Wallingford Davidson v. so eviction. the rule. Un- about 1839, and died divorced Phoebe existing pre- will be a as der the status once established rule contrary; proof sumed have in the absence continued, bore the name she strongly indicating that and the evidence adduced coupled with death, to the time of Steddum down nothing has been long lapse fact a of time that after would, marriage, of another existence children show the finding with- that she died opinion, in our been warranted marriage having remarried. and without out second issue clearly afforded some evidence These facts and circumstances land; plaintiff’s original of her inheritance jury. to have he was entitled the issue submitted may rule under laws in Whatever have been the force respect Republic with at time of the decree to wife’s divorce adultery community operating her interest in as forfeiture of property, unwilling to hold that under Constitution are Republic a mere such a forfeiture could have resulted from proceeding, or have been divorce decreed otherwise than in declaring forfeiture, proceeding purpose direct A part opportunity with full to be heard. wife wife sought, have been en- whom such forfeiture was would direct Such a titled to a trial issue. decree without opportunity having such a trial would not have countenanced by that Constitution. Appeals are judgments District and Court of Civil District Court. cause remanded

reversed

Reversed remanded. v. D. A. Paddleford J. C. & Son. Watson May 2748. Decided No.

(221 W., 569.) Mortgage—Crop—Description. “any mortgage property as three of cotton A chattel described hales hy place year planted me on the known

to he cultivated