to said judgment, the executor executed and delivered deed to Opdyke for the land. The defendant Frank Patek pleaded res adjudicata as to the land claimed by him, alleging a prior valid judgment of the district court of Ft. Bend county, Tex., in his favor for the land described in his answer, and against Jeremiah Scanlan O'Connor, E. J. Sandmeyer, J. W. Collins, and Walter C. White, and other defendants, and the unknown heirs of each of said defendants. The defendants also pleaded other matters respecting the title, but, in view of the conclusions of fact and of law hereafter set out, this court deems it unnecessary to make special mention of such additional pleadings. Defendants also pleaded the statutes of limitation of three, five, and ten years, and pleaded improvements in good faith. By supplemental petition plaintiffs alleged the minority of the plaintiffs, and that defendant John Moser was not a resident citizen of the state of Texas during the time which he claimed to be the owner of the tracts claimed by him in his answer. The trial in the court below without a jury resulted in a judgment in favor of defendants. The trial court filed the following findings of fact: "The land in suit, which is situated in Ft. Bend county on left margin of Bernard river, was granted by the Mexican government to Jeremiah Scanlan O'Connor on the 9th day of April, 1831, by instrument containing the following description: 'Situated on the left mar gin of the eastern branch of the creek called San Bernardo, and known as league No. 6; from a landmark set on said margin of the creek, and serving as the upper corner of the league surveyed and numbered 5, from which an elm marked AB bears north 65 deg. west 6 varas distant, and another elm marked X bears south, a line was run east 5220 vrs. to a mound of earth in the prairie; thence north 3900 varas to another mound of earth; thence west 8080 varas to the creek at a landmark from which a wateroak marked B bears north 5 east 5 varas distant, and another marked A bears north 60 east 10 vrs. distant; thence following the meanders of said San Bernardo down to the place of beginning, and comprising one league of land." "(3) William Ryon was appointed administrator be bonis non upon the estate of Thomas Davis, deceased, at the November term, 1852, by the probate court of Ft. Bend county, Tex., and qualified as such on November 27, 1852, by filing oath and bond. He returned an inventory of said estate on the 29th day of No vember, 1852. "(4) On the 30th day of December, 1856, the said Wm. Ryon applied to said court for an order to sell the land in suit, which order was made by said court at its December term, 1856. The report of sale by said administrator was made and confirmed by the court on the 24th day of February, 1857, directing deed to be made to the purchaser, C. C. Herbert, who bid therefor the sum of $25, whenever he complied with the terms of purchase. These orders are regular, and sufficiently describe the land in suit. On May 25, 1857, the said administrator de bonis non, pursuant to said orders, executed and delivered to C. C. Herbert his deed describing said land, which deed recited the payment of the $25, the bid for said land. "(5) At its October term, 1867, the county of C. C. Herbert, appointed Stephen Herbert administrator of said estate, and he duly qualified as such. "(6) On May 22, 1877, the county court of Colorado county, Tex., in the succession of C. C. Herbert, deceased, ordered said administrator to sell at public auction, in Colorado county, of C. C. Herbert, deceased, and his estate in Tex., all of the right, title, claim, and interest and to the following property, to wit: A league of land situated in the county of Ft. Bend, granted to Jeremiah Scanlan O'Connor. "(7) On July 16, 1877, the said court confirmed a sale by said administrator to E. J. Sandmeyer, and said order contained the following description, to wit: 'All the right, claim, and interest of C. C. Herbert, deceased, and his land situated in Fort Bend county, Texas, estate in and to the following lands: League of granted to Scanlan O'Connor, bought by E. J. Sandmeyer for $50.00. Neither an application for sale nor a report of sale were shown in evidence. "(8) On July 17, 1877, said administrator of the estate of C. C. Herbert executed and delivered deed to E. J. Sandmeyer, containing the following description: 'All the right, title, claim and interest of C. C. Herbert, and of his estate, in and to the lands described in said order of confirmation.' Said deed purported to recite the said order, and in said recital gave the in the county of Fort Bend, Texas, granted to following description: 'League of land situated Scanlan O'Connor, bought by E. J. Sandmeyer for $50.00.' "(9) E. J. Sandmeyer married in 1881, and died October 13, 1895, leaving surviving him children, who are plaintiffs herein, to wit: J. as his only descendants the following named F. Sandmeyer, who was born September 4, 1882; E. J. Sandmeyer, who was born December 13, 1884; Nell Sandmeyer Allen, who was born October 13, 1886; Genevieve Sand1889: Loraine Patton, who was born Septemmeyer Montgomery, who was born January 16, ber 8, 1891; and Ida V. Sandmeyer, who was born November 12, 1894. The wife of the said E. J. Sandmeyer died January 5, 1895. plaintiffs are all the heirs of E. J. Sandmeyer. Thomas Davis or anyone else with the original "(10) No evidence was shown connecting grantee, Jeremiah Scanlan O'Connor. "(11) On November 22, 1834, W. C. White executed to J. W. Collins before William Boswell, a notary public at New Orleans, an instrument the material parts of which are as follows: 'Walter Caldwell White, a citizen of the state of Coahuila and Texas, United States of Mexico, who declared & acknowledged that he is justly and truely indebted unto John William Collins, a citizen of the United States of America, residing in the city of New Orleans, state of Louisiana, in the full sum of thirtydollars, and eighty-one cents, lawful money of seven thousand, four hundred and sixty-eight the United States of America, for the payment of which sum he has subscribed three several promissory notes, made to the order of John W. Collins, each for the sum of twelve thousand, four hundred and eighty-nine dollars and sixty cents, and one-third of a cent, all dated this day, and payable respectively at one, two and three years with interest thereon at and after the rate of six per centum per annum, from the day of their falling due until paid.' 'And in order to secure the payment of said promissory notes and all interest which shall or may accrue thereon at the rate aforesaid, he, the said Walter C. White, does, for himself and for his heirs, specially mortgage and hypothecate unto the said John W. Collins present as aforesaid, and accepting his heirs and assigns the following described property, to wit: (1) One tract of land situate, lying and being on the left bank one league, containing four thousand, four hundred and forty-four acres, & designated by the number six. * ** To secure the payment of thirty-seven thousand, four hundred & sixtyeight dollars & eighty-one cents, for which he, the said White, subscribed three several promissory notes, to the order of the said John W. *Collins, each for the sum of twelve thousand, four hundred & eighty-nine dollars and sixty cents, and one-third of a cent, dated the twenty-second day of November, eighteen hundred and thirty, and payable respectively at one, two and three years, with interest thereon at and after the rate of six per centum per annum, from the day of their falling due until paid. By an act passed before the undersigned notary on the same day, the said Walter C. White bound himself to sell and convey the said lands to any person or persons that the said Collins shall designate, by returning unto him the three promissory notes above described duly canceled. Now, therefore, in conformity with the said act of mortgage and agreement, he, the said John W. Collins, does hereby designate Mr. Thomas Davis, a citizen of the Republic of Texas, as the person in whose name the transfer of said property is to be made, and for the purpose he, the said John W. Collins, does hereby appoint and in his place and stead put the said Thomas Davis to be his true & lawful attorney, granting unto him full power for him & in his name to ask, demand, sue and obtain of and from the testamentary executor or executors of said Walter White or of and from whomsoever else the same doth or may concern, a title in his name, or in the name of any per son which he may designate, and upon obtaining promissory notes to the person who shall execute the same; to appear before all courts of law or equity, there to do & prosecute as occasion shall require, to compound and agree for the same by arbitration or otherwise as the said attorney shall think fit; *** also, with power of substitution and revocation, the said constituent agreeing to ratify and confirm whatsoever the said attorney shall lawfully do by virtue.' containing about four thousand, four hundred "(13) The instruments described in paragraphs X and XI hereof were parts of the same transaction, and are taken as one instrument. "(14) On the 29th day of January, 1838, the said John W. Collins, by an instrument which was lost and not recorded, conveyed to Andrew Carrico, George Carrico, and George Opdyke all of the interest in the land suit acquired by him. "(15) On the same date as the conveyance of his instrument to Opdyke, Carrico & Co., mentioned in the next preceding paragraph, to wit, January 29, 1838, the said John W. Collins executed before the said Boswell to the said Thomas Davis a power of attorney, the material parts of which are as follows: 'By the act of procuration be it known that this day before me, William Boswell, a notary public in and for this city of New Orleans, duly commissioned and sworn, personally came and appeared Mr. John William Collins, of this city, who declared that whereas by act passed before the undersigned notary on the twenty-second day of November, eighteen hundred & thirtyfour, Mr. Walter Caldwell White, of Texas, granted a mortgage in favor of this appearer on 1. One tract of land situated on the left bank of the River Main Bernard, measuring "(16) Davis did not acquire from Collins any real interest or title to the White notes or said land. Whatever transfer, if any, was made to him of said notes or said land was made for the purpose of enabling him to procure the White title to said land as agent and trustee for Opdyke, Carrico & Co., and for their use and benefit, and not for his individual use and benefit. "(17) Acting under the said power of attorney to him from John W. Collins, and in behalf of the assignee of the said Collins, to wit, Opdyke, Carrico & Co., the said Thos. Davis, for the purpose of acquiring the title to the land in suit for the use and benefit of said Opdyke, Carrico & Co., and with the intention of holding the title thereto in trust for the said Opdyke, Carrico & Co., applied to the probate court of Brazoria county, Tex.. for an order of said court directing the administrator of Walter C. White to execute to said Davis, as agent and trustee for said Opdyke, Carrico & Co., a deed to said land. Prior to the 4th day of June, 1838, the said court ordered the administrator of the estate of Walter C. White to execute to Thos. Davis full and complete title of all the right, title, and interest which the said Walter C. White had in the land in suit, but no deed from the said administrator was shown. "(18) I find as a fact that thereafter, on June 7, 1838, the said Thos. Davis, supposing that he had by said probate proceedings in the White estate in the Brazoria county court acquired the title to said land, executed and delivered to Opdyke, Carrico & Co. one or more instruments in writing of date June 7, 1838, in which he acknowledged that he held the land in suit in trust and as agent of the said land, and in : which instrument or instruments he gave his "(19) I further find as a fact that whatever "(20) On March 4, 1840, George Carrico, one of the members of the firm of Opdyke, Carrico & Co., conveyed to George Opdyke all of his interest in the land in suit and White notes, and on March 7, 1840, Andrew Carrico, the other member of said firm, conveyed to said George Opdyke all of his interest in said land and said White notes. The said firm was composed of three parties, George Carrico, Andrew Carrico, and George Opdyke. "(21) On May 20, 1842, the said George Opdyke applied to the county court of Ft. Bend county, Tex., alleging, among other things, that the said Davis, at the time of his death, held, as agent for Andrew Carrico, George Carrico, and George Opdyke, the title to the land in suit: that he had acquired the interest of said Car rico, and prayed the court to order Aldridge, the executor of said Davis, to make full and complete title to said lands to said petitioner. "(22) At the May term, 1842, of said court, "(22) At the May term, 1842, of said court, a decree was entered, ordering William B. Aldridge, as executor of the succession of Thos. Davis, deceased, he having been previously by said court appointed executor of the will and estate of Thos. Davis, deceased, and letters as such had issued to him, to convey unto George Opdyke the land in suit, and reciting that by an instrument signed by the said Thos. Davis, on the 7th day of June, 1838, it appeared that the said Carrico and Opdyke were the owners of said land. In pursuance to said order, the said Aldridge did on September 15, 1846, execute and deliver a deed to the said George Opdyke conveying the land in suit. "(24) The plaintiffs did not connect their claim of title to said land with the sovereignty of the soil. "(28) Thos. Davis did not in fact by the said Brazoria county probate proceedings in estate of Walter C. White, deceased, or in any other way, acquire any title to said land. "(29) I find as facts that Walter C. White did, on November 22, 1834, obligate and bind himself by written instrument duly executed and delivered, to convey to said John W. Collins, or whomsoever he should designate, the said J. S. O'Connor league of land in Ft. Bend county, and that said Collins obligated himself to surrender up said notes whenever said White so conveyed said land. "(30) I further find as a fact that John W. Collins acquired all the title of White to said land. "(31) R. A. Harvin, by mesne conveyances duly recorded in Ft. Bend county, Tex., acquired the title of George Opdyke to all land in suit except the 500 acres known as the Hackworth tract, among which was a deed dated January 1, 1887, filed September 19, 1887, from the Texas Land & Investment Company to R. A. Harvin. This deed was duly recorded in deed records of Ft. Bend county, Tex., on September 19, 1887. Under his deed, which accurately described said land R. A. Harvin held peaceable, actual, exclusive, adverse possession of all the land so conveyed to him, cultivating, using, and enjoying the same from January 1, 1887, until December 2, 1890. "(32) On December 2, 1890 Francis Smith acquired the title of the said Harvin in the said 3,928 acres of said land by deed which was on the same date duly recorded in the deed records of Ft. Bend county, Tex. The said Francis Smith, by tenants, held peaceable, actual, adVerse, and exclusive possession of said land from the date of said deed, cultivating, using and enjoying the same from said date until all of the land was sold out by him to various defendants, or the parties under whom they claim, as hereafter shown, he surrendering possession to the various purchasers as they purchased the respective tracts purchased. actual adverse possession by Harvin and Smith, "(33) I find as fact that, by reason of said Francis Smith became vested with title to all of said 3,928 acres except such portions thereof_as were sold by him prior to January 1, 1897. Inasmuch as there is continuity of possession and privity of title between said Smith and the varieach of them, I do not deem it necessary to ous purchasers and subpurchasers, and between make findings as to exact dates of various sales, further than is shown by other findings." "(60) At the time possession was taken by each subpurchaser under Francis Smith of the "(23) By various conveyances, the defend-respective tracts of land shown above, the said ants have acquired all the title of George Op- land, while the said title thereto was in Francis lyke in and to the various tracts of land claim- Smith, was in actual possession of Francis ed by them in their respective answers, the Smith by and through tenants who were using same awarded to them respectively by judg- and enjoying and cultivating said land, all of ment herein shown. which was then under fence of substantial character and sufficiently maintained to give notice of the claim thereto by the said Smith, and rendered the possession thereof in behalf of the said Smith exclusive and adverse. The various purchasers went into possession of their respective purchases immediately after the respective dates thereof and there was no break between their possession and that of Francis Smith aforesaid. The timber lots claimed by said defendants respectively as shown above, were not actually fenced, but all of same, except timber lot No. 9, were described in and conveyed by the same deeds conveying to the respective defendants the respective prairie lots as herein shown. Each of said defendants procured from said timber lots wood for use for domestic purposes at their homes on their respective prairie lots, except, however, that Frank Hrnicko did fence substantially all of timber lot No. 23, as stated in the finding in reference to the land claimed by "(25) The only title to said land which was ever acquired by the said Thos. Davis was whatever title he acquired under and by virtue of the said probate proceedings in the estate of Walter C. White, in Brazoria county, and whatever title he did acquire from any and all sources was acquired in trust and for the benefit of the said Opdyke, Carrico & Co., and not for his individual use and benefit. "(26) The plaintiffs show no title in themselves or of and from either John W. Collins or Walter C. White, and did not show that Thos. Davis acquired any title. "(27) The evidence shows that the plaintiffs claimed that Thos. Davis acquired title to said land by and through the said probate proceedings in the estate of Walter C. White in the pro follow, however, that the recitals in this order and deed are not admissible as circumstances tending to prove the allegations of defendants' answer, that Davis acquired the title to the land for George Opdyke and George and Andrew Carrico, and held it in trust for their use and benefit, and that by an instrument ed that the superior beneficial title to the land was in said parties. There is no evidence that plaintiffs or any, Tex. Civ. App. 516, 91 S. W. 615. It does not of those under whom they claim were ever in possession of the land, and no assertion or act of ownership adverse to the Opdyke title by plaintiffs' predecessors in title was shown other than the sales by the administrator de bonis non of Davis' estate and the sale by the administrator of C. C. Herbert to E. J. Sandmeyer in 1877 for $50. Notwithstand-in writing, which had been lost, acknowledging the fact that he lived near the land for 18 years after his purchase, and necessarily knew of the possession and claim of defendants under the Opdyke title, E. J. Sandmeyer is not shown to have asserted any claim or exercised any acts of ownership of the land. His estate was administered in the probate court of Colorado county, and this land was not inventoried by his administrator as a part of the estate. All of the parties to the transactions concerning this land between Collins, Opdyke, and Davis, are dead. We agree with the trial judge that the facts before stated, taken together, are amply sufficient to sustain, if they do not compel, the finding that the title acquired by Davis to the land was acquired and held in trust by him for Opdyke. This being true, the conveyance by the administrator of Davis to Herbert did not pass title to the land, and plaintiffs, who claim under said conveyance, have no title. The probative force of the recitals contained in the several instruments before set out cannot be questioned, but appellants contend that the recitals in said instruments were not admissible in evidence. [1] The first four assignments presented in appellants' brief complain of the ruling of the court in admitting in evidence the judgment of the probate court of Ft. Bend county rendered in May, 1842, ordering W. B. Aldridge, administrator of the estate of Thomas Davis, deceased, to make title to the land in controversy to George Opdyke, and the deed from said administrator to George Opdyke executed in compliance with said judgment. It is contended under these assignments that the order and deed above mentioned were void because the probate court at the time the order was made had no jurisdiction to decree specific performance of a contract to convey land, and, said order and deed being void, the recitals therein contained were not admissible in evidence for any purpose. It is true that at the time this judgment was rendered the probate courts of this state had no power or jurisdiction to decree specific performance of a contract to convey land, and the judgment and deed objected to were void as a conveyance of the title, and the recitals in the order and deed, that Davis held title to the land in trust for George Opdyke and George and Andrew Carrico, as shown by an instrument executed by Thomas Davis on June 7, 1838, have not the conclusive and binding force of findings of fact in a judgment within the power or jurisdiction of the court to render. Houston v. Killough, 80 Tex. 296, 16 S. W. 56; Cope v. Blount, 38 In the case of Cope v. Blount, supra, in which application for writ of error was refused by the Supreme Court, this court held, while the deed made by an administrator under an order of a probate court made in 1840, decreeing specific performance of a contract to convey land, was void as a conveyance of the title held by the decedent, and that the recitals in such deed were not binding on the heirs, such recitals were admissible as circumstances to show the existence of the contract and the payment by the grantee in the deed to the deceased of the purchase price of the land, and such recitals, considered in connection with other facts and circumstances, all the parties to the transaction being dead, were sufficient to establish the fact that the grantee in the deed held the superior title to the land. In the case of Schultz v. Lumber Co., 36 Tex. Civ. App. 448, 82 S. W. 353, it was held, under authority of McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1098, that a void record of a deed was admissible in evidence as a circumstance tending to show the execution of a lost deed. We think the recitals in the order and deed admitted in this case were clearly admissible for the purposes stated. [2] Complaint is also made under appropriate assignments of error of the introduction in evidence of the petition of Opdyke filed in the probate court, asking for the order directing the administrator to make the deed of conveyance, and reciting the fact that Davis held the title in trust, and also of the deeds from George and Andrew Carrico to George Opdyke, reciting the same facts, and the instruments executed by and between W. C. White and J. W. Collins, and the power of attorney from Collins to Davis, shown in findings of fact before set out. The ground of objection to the copy of the petition that it was only a copy of a copy is not tenable. The original petition was lost, and the only evidence of its contents was the testimony of the witness Matthaei to the effect that several years prior to the trial he had abstracted the filed papers in the Davis estate and had found a petition by Opdyke, asking for an order directing the administrator to make the deed, and had taken a pencil memorandum of the substance of the petition. This memorandum was produced, and the witness permitted to testify that it was a true statement of the substance of the petition. The paper being lost, its contents could be proven We have considered all of appellants' assignments of error, and none of them, in our opinion, point out any error which requires or would authorize a reversal of the by parol, and the written statements of its | It would greatly extend this opinion to contents made at the time of the examina- discuss the evidence upon the question of tion which he could swear was correct was possession of the several tracts, and, believing admissible. Southwestern Surety Co. v. that the evidence overwhelmingly sustains Owens, 198 S. W. 662. The objection that the conclusion that the plaintiffs have no the deeds were not admissible as certified title to the land, we deem it unnecessary to copies of records of the state of Louisiana determine in detail the question of limitacannot be sustained, because they were not tion as to each of the numerous small tracts only certified, but examined, copies of the of land. record, shown by the testimony of the keeper of the records to be true and correct copies. [3] The contention that the recitals in these instruments were inadmissible because they were self-serving declarations, hearsay, | judgment. and immaterial is answered by a number of the decisions of our courts, among which we cite the following: Cope v. Blount, 38 Tex. Civ. App. 516, 91 S. W. 615; Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033; Frugia v. Trueheart, 106 S. W. 737; Texas Tram Co. v. Givin, 52 S. W. 112; Condit v. Galveston City Co., 186 S. W. 395. The judgment is affirmed. MCCAMANT v. McCAMANT. (No. 8856.) (Court of Civil Appeals of Texas. Ft. Worth. April 20, 1918.) [4, 5] These conclusions require an affirmance of the judgment of the trial court, and 1. LIMITATION OF ACTIONS 127(4) — LIA render a discussion of the numerous assignments of error presented in appellants' brief, attacking the ruling and findings of the trial court upon the issues of limitation raised by the 60-odd defendants unnecessary. We think, however, there is sufficient evidence to sustain the finding of the trial court that the possession of the whole of the land by Harvin and Smith was exclusive and continuous from September, 1887, until the dates of the respective sales by Smith to the defendants, and that each of the purchasers from Smith who took actual possession of the land purchased by him at the time of his purchase has acquired title by limitation. In the case of these purchasers the limitation began prior to the death of E. J. Sandmeyer, and the minority of the plaintiffs does not affect the bar or interrupt the running of the statute. Most of these purchasers bought two tracts of land, one tract in the prairie for farming purposes and a smaller tract in the timber for the purpose of obtaining firewood and timber necessary in the improvement of the farm. The tracts were not contiguous, most of them being separated by several miles. We cannot agree with the learned trial judge that the possession of the farm tract was sufficient possession under the deed conveying the two tracts to hold the wood tract by limitation, no actual possession being taken by him of that tract. It follows from this that the timber tracts which were sold by Smith before his limitation title of ten years had accrued, and which have not been in actual possession of the purchaser, cannot be held under the claim of title by limitation. Smith's possession ceased when he conveyed, and, the purchaser not having taken possession, the running of the statute was interrupted, and no title by limitation accrued. BILITY OF INDORSER-AMENDMENT OF PLEAD- A petition setting up payee's execution of notes and liability of indorser, but not excusing after maturity, required by Vernon's Sayles' Ann. Civ. St. 1914, art. 579, stops the running of the statute of limitations, and an amended petition supplying the allegations does not constitute a new cause of action. 2. BILLS AND NOTES 408-LIABILITY OF INDORSER REMEDY OF HOLDER — STATUTES. failure to sue maker before second court term The remedy of the holder of a promissory note under Vernon's Sayles' Ann. Civ. St. 1914, art. 579, to secure and fix the liability of an indorser by suit against maker before the first term of court to which it can be brought after accrual of cause or before the second term by excusing delay is a cumulative remedy, and is not exclusive of the right to fix liability of indorser by protest and notice under the law merchant. 3. BILLS AND NOTES 299-LIABILITY OF INDORSER INSOLVENCY OF MAKER AS EXCUSING DELAYED SUIT. Under Vernon's Sayles' Ann. Civ. St. 1914, art. 579, requiring suit against maker at first to fix liability of indorser, the insolvency of or second term after accrual of cause of action the maker excuses compliance with the statute. 4. BILLS AND NOTES 299 INDORSER-EXCUSING DELAYED SUIT-WAIV- Under such statute indorser may waive holder's duty to sue. Appeal from Tarrant County Court; Geo. May McCamant. Judgment for plaintiff, and defendant appeals. Affirmed. Geo. N. Beakley, of El Paso, and Mercer, CONNER, C. J. As originally instituted, this suit was to enforce the collection of a certain note for $700 executed by J. W. and |