
    ALLISON v. ARLINGTON HEIGHTS REALTY CO.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 24, 1914.)
    1. Appeal and Error (§ 1170) — Harmless-Error — Instructions.
    Any error in an instruction in an action for possession of land that, if, within 10 years-before suit, defendant “stated to any person whomsoever” that he did not intend to claim, title to the land, the jury should find that he had not acquired title by adverse possession, in that it permitted the jury to find that defendant told some one not mentioned in the evidence that he did not claim the land, was not reversible-under Courts of Civil Appeals Rules, Rule 62a (149 S. W. x), prohibiting reversals, unless the appellate court believes that the error probably caused an improper judgment.
    [Ed. Note. — For other cases, see Appeal and. Error, Cent. Dig. §§ 4032, 4066, 4075, 4098,. 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    2. Trial (§ 244) — Instructions—Weight op-Evidence.
    Where, in an action for realty claimed by defendant by adverse possession, the evidence of plaintiff’s manager that defendants stated, that he did not intend to claim the land was the-only evidence contradicting defendant’s testimony that he did claim it adversely, and the general charge did not present that issue affirmatively, an instruction affirmatively submitting the issue for plaintiff by instructing that, if defendant had not formed an intention to appropriate the land, etc., was not objectionable as giving undue prominence to defendant’s intention when he took possession.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.]
    S. Trial (§ 194) — Instructions—Weight of Evidence.
    An instruction, in an action for possession of land claimed by defendant by adverse possession, in submitting the question of defendant’s intention, that the intention or lack of intention of a party may_ be determined by the facts and circumstances in evidence was not on the weight of the evidence.
    [Ed. Note. — Eor other cases, see Trial, Gent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    4. Trial (§ 269) — I-Iaemless Error — Instructions.
    A notation on an instruction following the signature of plaintiff’s attorneys “requested after the reading of the main charge and after the court’s refusal of plaintiff’s request to give a peremptory instruction in its favor, and given,” was not calculated to mislead the jury to defendant’s prejudice.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 676; Dec. Dig. § 269.]
    5. New Trial (§ 99) — Newly Discovered Evidence.
    Where, in an action for possession of land claimed by defendant by adverse possession, plaintiff’s manager testified that, when defendant told him that he would not claim the land, H. was present and heard the conversation, alleged newly discovered evidence that, if any such conversation occurred between the manager and defendant, H. did not hear it was not ground for a new trial, being negative in character, and only impeaching the manager’s evidence on the question whether H. was present when the- conversation occurred.
    [Ed. Note. — Eor other cases, see New Trial, Cent. Dig. §§ 201, 207; Dec. Dig. § 99.]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Action by the Arlington Heights Realty Company against M. C. Allison. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    McCart, Bowlin & MeCart, of Pt. Worth, for appellant. Crenshaw & Boykin, of Pt. Worth, for appellee.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexe»-
    
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DUNKLIN, J.

The Arlington Heights Realty Company instituted this suit against M. C. Allison to recover certain real estate, and, from a judgment in favor of the plaintiff, Allison has appealed.

The defendant claimed title under the statute of limitations of ten years, and this was the only controverted issue in the case, which was submitted to the jury in the general charge in the form of a special issue reading as follows: “Has the defendant, M. C. Allison, had peaceable and adverse possession of the property in controversy, cultivating, using, and enjoying the same, for a period of at least ten years prior to the filing of plaintiff’s suit as against all persons whomsoever?” The issue so submitted was followed by the statutory definitions of “peaceable possession” and “adverse possession.” The question so propounded by the court was answered by the jury in their verdict “No.”

The court also gave the following special charge No. 3 requested by the plaintiff: “If you find and believe from the evidence that at any time prior to the filing of this suit, and within ten years next preceding the bringing of this suit, the defendant, -M. C. Allison, stated to any person whomsoever that he did not claim, or intend to claim, title to the lots in controversy, then you will answer the question propounded to you by the court ‘No.’ ”

The suit was instituted December 9, 1910. Geo. E. Montgomery, witness for plaintiff and general manager of plaintiff corporation, testified as follows: “I had a conversation during the year 1906 with Mr. M. C. Allison, defendant, with regard to the fence around the lots above described. The conversation took place in front of Mr. Allison’s house, which adjoins the lots in question, some time in 1906, the exact date of which I cannot recall. The substance of my conversation with Mr. Allison was as follows: I asked Mr. Allison to remove the fence from the'properties. He assured me that he would set up no claim whatsoever to these lots, but, if we were not going to use them or sell them immediately, that he would like to use them as a garden. Upon this assurance, I permitted him to let the fence remain.” No other witness testified to any such statements by Allison.

Error has been assigned to the instruction last quoted, upon the ground that the jury were thereby left “free to speculate on the possibility that Allison might have told somebody who is not mentioned in evidence during said ten years that he didn’t claim to own said land in question.” It is not reasonable to suppose that the jury indulged in such a speculation, in the entire absence of any basis therefor. At all events, if that objection should be otherwise tenable, it would be no ground for a reversal of the judgment under rule 62a (149 S. W. x).

The court also gave special charge No. 4, requested by the plaintiff, which reads: “If you believe from the evidence that, at the time M. C. Allison constructed the fence around the land in controversy, he had not formed an intention to appropriate said land and hold it by limitation, but that his intention to so appropriate and hold said land (if you find that he ever formed such intention) originated after he had built said fence and within a period less than ten years before the filing of plaintiff's suit, then you will answer the question propounded to you by the word ‘No.’ In this connection you are instructed that the intention, or lack of intention, of a party may be determined by yon by tbe facts and circumstances in evidence before you.” Error bas been assigned to tbis instruction. Tbe first objection urged thereto is that Allison’s testimony as to bis intention, wbicb was favorable to bis defense, was tbe only evidence tbat could be looked to for tbe purpose of determining bis intention. Clearly tbis contention is unsound, in view of tbe testimony of Montgomery, already quoted.

Another objection is tbat tbe instruction, taken in connection with tbe other special instruction already noted, “gave undue prominence to tbe question of Allison’s intention when be took possession of tbe lands, notwithstanding Allison’s undisputed testimony tbat be took possession of tbe same with tbe. intention of bolding possession of tbe same adversely against tbe world.” As it was absolutely necessary, in order to sustain tbe defense of limitation, to show tbat tbe possession was adverse, and as tbe facts detailed by Montgomery constituted practically tbe only evidence relied on by tbe plaintiff to offset Allison’s testimony on tbat issue, there was no error in submitting, in an affirmative form, tbe theory supported by that evidence. Tbe issue submitted in tbe general charge did not present tbis theory of tbe defense in an affirmative manner. N. Tex. Trac. Co. v. Moberly, 109 S. W. 483; M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058; So. Const. Co. v. Hinkle, 89 S. W. 309.

Nor do we think tbat tbat part of tbe instruction, in effect, tbat tbe facts and circumstances in evidence could be considered by tbe jury in determining tbe question of Allison’s intention in occupying tbe land, was on tbe weight of tbe evidence.

Added to tbe instruction last quoted was a notation following tbe signature of plaintiff’s attorneys thereto, reading: “Requested after tbe reading of the main charge and after tbe court’s refusal of plaintiff’s request to give a peremptory instruction in its favor, and given.” Appellant insists tbat tbis notation was calculated to mislead and confuse tbe jury to appellant’s prejudice. There is no merit in tbis criticism.

By another assignment complaint is made of tbe refusal of appellant’s motion for a new trial. Tbe witness Montgomery, testified that, at tbe time of the conversation between him and Allison set out above, Rutland Hyams was present and beard tbe conversation. In appellant’s motion for new trial, it was alleged tbat Rutland Hyams could be procured as a witness on another trial, and would testify tbat be was never present when any such conversation occurred between Montgomery and Allison; that, as a matter of fact, be was not acquainted with defendant, Allison, until some time after tbe date upon wbicb Montgomery testified tbe conversation occurred. It was further alleged tbat Hyams resided in tbe state of Louisiana ; tbat, after tbe depositions of Montgomery detailing tbe conversation above noted were filed in court, appellant’s attorneys made diligent effort to learn tbe whereabouts of Hyams, but failed to locate him until after tbe trial; tbat tbe efforts so made included an inquiry of J. S. Hanford, one of tbe officials of plaintiff, also of one of tbe attorneys for plaintiff, each of whom informed the attorney making tbe inquiry tbat be did not know where Hyams could be found; tbat, as a matter of fact, tbe information so given was false, in tbat plaintiff, through some of its representatives, bad corresponded with Hyams, and bad attempted to procure bis testimony to corroborate tbat of Montgomery, but tbat Hyams bad refused to give such testimony; tbat appellant bad learned by accident only, after tbe trial, of Hyams’ whereabouts. According to tbe allegations in tbe motion Montgomery’s depositions bad been on file more than six months prior to tbe date of tbe trial. According to other allegations in tbe motion, it appears tbat appellant’s attorneys relied in part upon their expectation that plaintiff would produce Hy-ams as a witness upon tbe trial. It does not appear tbat appellant made any inquiry of tbe witness Montgomery himself to ascertain tbe whereabouts of Hyams. It is not entirely clear tbat appellant used due diligence to procure tbe testimony of tbis witness before tbe trial, but, aside from tbat criticism, tbe proposed testimony was of a negative character only; if Hyams bad been present, be would not have sworn tbat no such conversation occurred between Montgomery and Allison, which constituted tbe material portion of Montgomery’s testimony, but tbe extent of Hyams’ testimony would have been that, if any such conversation bad occurred, be did not bear it, thus, in a measure, corroborating tbe testimony of Allison, and impeaching tbe testimony of Montgomery, upon tbe one point only whether or not be (Hyams) was present when the alleged conversation occurred, and hence there was no error in overruling tbe motion for a new trial. E. P. & S. W. Ry. Co. v. Murtle, 49 Tex. Civ. App. 273, 108 S. W. 999; Tex. Cent. R. R. Co. v. Dumas, 149 S. W. 543.

The judgment is affirmed.  