
    BALL v. FILBA et al.
    
    (Court of Civil Appeals of Texas. Austin.
    Jan. 8, 1913.
    Rehearing Denied Feb. 12, 1913.)
    1. TRIAL (§ 194) —INSTRUCTIONS—PROVINCE OF COURT AND JURY — WEIGHT OF EVIDENCE.
    In a suit to remove cloud and quiet title to 160 acres of land, based on the 10-year _ statute of limitations, a charge that plaintiffs claimed title to the land because of possession and occupation under claim of right, with a statement of defendant’s pleadings and an application of the law to the facts, which were undisputed, was not objectionable as a charge upon the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 413, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    2. Adverse Possession (§ 114) — Extent of Possession — Sufficiency of Evidence.
    Evidence, in an action to remove cloud and quiet title to 160 acres of land out of a larger tract, based upon the 10-year statute of limitations, held to support a finding for plaintiffs for 160 acres, including improvements.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682-690; Dec. Dig. § 114.]
    3. Quieting Title (§ 49) — Improvements— Power of Court.
    Under Rev. St. 1895, arts. 3343, 3344, barring an action for recovery of lands against one having peaceable and adverse possession thereof for 10 years, and providing that such possession shall embrace not more than 160 acres, including improvements, the court, under a petition in a suit to- remove cloud upon and to quiet title to 160 acres of land out of a larger tract, based on the 10-year statute of limitations, and in the event «that the land described could not be set apart to them to- set apart 160 acres of the tract, including their improvements, on evidence warranting a finding for plaintiffs for 160 acres, might so- partition the land as to award them two sets of improvements.
    [Ed. Note. — For other cases, see Quieting Title, Cent. Dig. §§ 98, 99; Dec. Dig. § 49.]
    4. Appeal and Error (§ 703) — Transcript —Instructions.
    Assignments of error in the refusal to give -certain special charges cannot be considered, where the transcript does not contain such requested charges.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2931; Dec. Dig. § 703.]
    Appeal from District Court, Freestone -County; H. B. Daviss, Judge.
    Action by W. J. Filba and others against P. D. C. Ball. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    W. R. Boyd, of Teague, and Joe A. Wor-sham, of Dallas, for appellant. Simkins & Simkins, of Corsicana, for appellees.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Ami Dig. Key-No. Series & Rep’r Indexes
    
    
      
       writ of error denied by Supreme Court.
    
   RICE, J.

This was a suit brought ¡by appellees against appellant to remove cloud and quiet title to 160 acres of land out of the Aguillera 11-league grant in' Freestone county, -basing their right to do so upon the 10-year statute of limitation, describing the land sought to be recovered by metes and ■bounds, and asking that the land so described be set aside to them, but, in the event that this could not be done, that the court should set aside to them 160 acres out of said grant, including their improvements.

Defendant pleaded the general issue. It appears from the evidence that in January, 1895, W. J. Filba, one of the appellees herein, and one G. M. Dawson moved upon the Aguillera grant, with the intention of claiming title to 160 acres each by virtue of the 10-year statute of limitation; that they each -built a house and placed in cultivation, the former some 20 acres, and the latter about 10 acres, using, cultivating, and claiming .the same as their own. Before the expiration of 10 years, however, Filba acknowledged, in writing, the ownership of the land in others, agreeing to pay rent therefor; but there was no such acknowledgment on the part of Lawson, who, in 1900, sold his claim to Filba, and Filba thereafter claimed the same as his own by reason of this purchase continuing to use, cultivate, and pay taxes thereon for the full period of 10 years prior to the institution of this suit.

There was a jury trial, resulting in a verdict and judgment in behalf’of plaintiffs, from which this appeal is prosecuted.

The first error assigned complains of that portion of the charge wherein the court undertook to set out the contentions of plaintiffs, urging that the same was a charge upon the weight of evidence. The part of the .charge so assailed reads as follows: “Plaintiffs claim title to said 160 acres, first, because of the fact that said W. J. Filba went into possession of same, or a part thereof, in January, 1895, and occupied and used the same since said date; second, from the fact that one G. M. Lawson went into possession of said land or a portion thereof, and occupied and used same, and claimed same as his own, for about five years from January, 1895, until in the year 1900, when the plaintiff W. J. Filba bought his interest in and to said land and the improvements placed thereon by said Lawson, and has occupied and used the same since.” The charge then proceeds, after stating the pleadings of the defendant, to apply the law to the facts. There is no merit in appellant’s contention, for the reason that the facts recited were undisputed and besides it is evident that the court was merely outlining the theories upon which plaintiffs based their claim; and the jury, in our judgment could not have been misled thereby, when the entire charge is considered, for which reason this assignment is overruled.

The court, in the first part of its main charge, instructed the jury that plaintiffs could not recover anything based upon the Filba claim, for the reason that he had, in March, 1899, acknowledged, in writing, that the land claimed by him belonged to other parties, agreeing to pay rent therefor; and it is insisted that by reason thereof the court erred in a subsequent portion of said charge, wherein the jury were instructed that, if. they should find for the plaintiffs under the instructions theretofore given, their verdict should be, “We, the jury, find for the plaintiffs 160 acres of land, a part of the 303-aere tract of land originally sued for in this cause, and that said 160 acres shall include the improvements placed on the land by the plaintiffs, and those under whom they claim,” because said charge is contradictory of the first paragraph above set out

The facts warranted the jury in finding for plaintiffs for 160 acres of land, including the improvements, based on the Lawson claim, and the charge complained of did not authorize them to find for anything more. It is true that it did state that if they found for plaintiffs that they should include the imI>rovements placed on the land by plaintiffs and those under whom they claim. It would seem to us that it would be immaterial whether this 160 acres, so awarded by the court to plaintiffs, should embrace the Eilba improvements, as well as those made by Lawson, because the' court had the right, we thinlr, in equity, to so partition the land between plaintiffs and defendant as to award them both sets of improvements. The allegations of the petition were, in our judgment, such as to give ample authority to the court to so partition the land as to award the tract described in the pleadings to plaintiffs, title to which had vested in them, under the facts in evidence, by virtue of articles 3343 and 3344 of the Revised Civil Statutes; and the court therefore did not err in rendering judgment of partition, awarding same to them, as urged by appellant. See Louisiana & T. Lumber Co. v. Kennedy et al., 103 Tex. 297, 126 S. W. 1110; L. & T. Lumber Co. v. Stewart et al., 130 S. W. 199.

Appellant’s third and fourth assignments complain of the refusal of the court to give certain special charges therein set forth. These assignments, however, cannot be considered by us, for the reason that "the transcript does not contain any such requested charges, the refusal of which is made the basis of these assignments.

The remaining assignment complains that the verdict of the jury is contrary to the law and the evidence. After a full consideration of the entire record, we are inclined to think that the evidence is ample to sustain the verdict of the jury.

Finding no error in the proceedings of the trial court, its judgment is affirmed.

Affirmed.  