
    HUME v. FLEWELLEN.
    (No. 5551.)
    
    (Court of Civil Appeals of Texas. Austin.
    April 26, 1916.
    On Appellant’s Motion for Rehearing, June 14, 1916.
    Rehearing Denied Oct. 11, 1916.)
    Appeal from District Court, McLennan County; J. Walter Cocke, Special Judge.
    Trespass to try title by the Central Texas Improvement Company and W. B. Carrington against R. T. Flewellen, in which S. L. Hume intervened, pleading in the ordinary form of trespass to try title. Plaintiffs dismissed on their own motion without prejudice, and judgment for defendant, and intervener appeals.
    Reversed, and judgment rendered for intervener.
    H. N. Atkinson, of Houston, and W. L. Eason and W. B. Carrington, both of Waco, for appellant. Pat M. Neff, Edgar E. Witt, Wm. R. Saunders, and Chas. B. Braun, all of Waco, for appellee.
    
      
      Application for writ of error pending in Supreme Court. •
    
   RICE, J.

On December 20, 1913, the Central Texas Improvement Company, a corporation, and W. B. Carrington brought this suit against R. T. Flewellen to recover title and possession of lots 9, 10, 11, 12, 13, 14, 15, and 16 in block 34 of the Provident Heights addition to the city of Waco. On January 6th next thereafter defendant answered by general denial, plea of not guilty, and the three and five year statutes of limitation.

Appellant S. L. Hume intervened on May 2, 1914, complaining of the same defendant, pleading in the ordinary form of trespass to try title, and praying for judgment against defendant for title and possession of the lots in controversy. Thereafter on October 20th, plaintiffs and intervener by their first supplemental petition denied each and all of the allegations of the defendant’s original answer, and prayed as in their original pleading for title and possession of the property.

During the trial plaintiffs, upon their own motion, were dismissed without prejudice and the case proceeded alone in .the name of S. L. Hume, the appellant herein. The court peremptorily instructed the jury that the record title to the lots in controversy was in appellant, and the only issue submitted for their' consideration was as to whether or not appellant was estopped from claiming the lots by reason of certain statements made by H. N. Atkinson (the secretary and treasurer of the Provident Investment Company, the original owner of said lots), one of appellant’s attorneys, to Mr. E. C. Street assistant county attorney of McLennan county, prior to the institution of a suit brought by him in the name of the state against' the unknown owners of the lots for the recovery of taxes thereon. Judgment having been rendered in favor of appellee on said plea, this appeal is prosecuted therefrom by appellant, assigning error on the submission of such issue.

This is a companion case to cause No. 5548, styled S. L. Hume, Appellant, v. R. B. Carpenter et al., Appellees, 188 S. W. 707, this day decided by us; and for the' reasons set forth in the opinion rendered in that case, the judgment in this case is reversed and the cause remanded for another trial, not inconsistent with the views therein expressed.

Reversed and remanded.

On Appellant’s Motion for Rehearing.

This is a companion case to that of S. L. Hume v. R. B. Carpenter et al., 188 S. W. 707, this day reversed-and' rendered by us on appellant’s motion for rehearing, and involves the same issues as in that case, with the exception of the issue of improvements in good faith; for which reason the judgment of the court below is reversed and here rendered for appellant for the lots in controversy.

Motion granted. Judgment reversed and rendered.  