1. Appellees' counsel, in the motion for rehearing, lays much stress on the fact that Annie E. Hollingsworth, who appeared in the suit of Haggerty v. Hollingsworth, by next friend, O.O. Searcy, by intervention filed by appellants, was made a partydefendant. If the intervention was properly made for the protection of her rights in the land, it could make no difference whether she became a defendant, or held aloof from both plaintiff and defendant. In the case of Ivey v. Harrell, 1 Texas Civil Appeals, 230, Judge Williams wisely said: "The fact that the proceeding was an intervention could not affect the question, for intervenors may occupy the position of either plaintiffs or defendants, and all the elements of a cause of action or ground of defense may be contained in such pleading.
2. Appellees contend, in the second ground of their motion for rehearing, that this court erred in finding that "it was necessary and proper that Annie E. Hollingsworth should be represented in the suit (of Haggerty v. Hollingsworth) for the protection of her property, and the services of Simkins Simkins in the case were reasonably worth $300."
The evidence shows, that the land was patented to the heirs of Jefferson Haggerty, June 2, 1855. The Haggerty heirs brought suit August 31, 1877, to remove cloud from their title. It was claimed by the Hollingsworths that they had obtained title to the certificate about 1843 or 1845, under an administrator's sale. Appellants were employed to defend the suit. O.O. Searcy, as next friend of Annie E. Hollingsworth, also employed them to look after her interest in the suit, as she owned 758 acres of the land. E.J. Simkins testified (without dispute), that the suit was a difficult one to defend, and was stubbornly fought. It presented several difficult questions of law, which required much time and labor. That the original conveyance of the certificate being made by the administrator and administratrix *Page 416 of Haggerty in 1845, without an order of the court, and there being no confirmation of the, sale, and the sale being under the law of 1843, the certificate was valued on the day of the sale; and the certificate being issued to the heirs, the right of the administrators to sell it at all was denied; and lastly, the sale of a league and labor of land for $116 was claimed to be a fraud. A cancellation of the original transfer of the certificate under which the title of Annie E. Hollingsworth rested would have practically destroyed her title. Her muniments of title were directly attacked, and, under this undisputed evidence, were in imminent peril. Was it prudent for her friends to sit idly by, because she had not been made a party to the original suit, and run the risk of its being defeated, and then be compelled to fight single-handed against the victorious plaintiff? We think the facts show that it was necessary and proper that her interests should be represented, as was done, properly and successfully. Appellant further showed, that no partition of the interest of B.P. Hollingsworth (father of Annie E.) had ever been put of record until "during the October Term, and a few days before trial Simkins Simkins received a letter from S.P. Hollingsworth, for whom they had prepared an answer, that he had no interest in the land, and sent a deed of partition for record, conveying to S.P. Hollingsworth 758 acres."
In the judgment obtained in the case the interest of Annie E. Hollingsworth was set apart to her in severalty, thereby not only clearing up her title, but giving her a perfect record title which she never had before.
E.J. Simkins testified, that "$300 was a reasonable fee for the services rendered." This testimony was not disputed. The only testimony which could be said to tend in that direction was shown by the letter of S.P. Hollingsworth to appellants, in which he states, "that the fee they proposed to charge Annie Hollingsworth was rather steep." The land was shown to be worth about $2 per acre. They had first proposed to take $300, or 150 acres of land. They finally settled by taking 100 acres of the land.
3. Appellees in the third ground of their motion say: "The court erred in finding as a fact from the record, that `under the advice of S.P. Hollingsworth, the uncle, and that of her mother and stepfather, O.O. Searcy, she, Annie E., executed to Simkins Simkins a deed for 100 acres of the land.' The record is absolutely without a syllable from any one that such advice was given by any one of the three mentioned."
It seems that appellees' counsel has not carefully examined the record. E.J. Simkins testified, that they were originally employed by O.O. Searcy, who acted as next friend. He says: "Before the trial of the case, Simkins Simkins wrote to S.P. Hollingsworth demanding that their fee be secured for services rendered to the minor Annie E. Hollingsworth, and also his own interest in the suit. That said Hollingsworth was an old land lawyer. That they stated their fee to *Page 417 be 150 acres of land, or $300. * * * After the suit Simkins Simkins reduced their fee to 100 acres. That said minor had no other way of paying, except by conveying the land; that she had no means outside of the land. That the usual fee charged at that time for defending wild land was one-third or one-half of the amount of the recovery. * * * That in arranging the fee, Simkins Simkins were referred by said minor to her uncle, S.P. Hollingsworth, to arrange it, and it was agreed that the fee should be 100 acres of land, and a deed was made in accordance with said agreement, the said deed being witnessed by her mother, Annie Searcy, and O.O. Searcy, her stepfather, plaintiff in this suit."
O.O. Searcy testified: "After the suit was over, Simkins Simkins wrote to me they had gained the case, and that their fee was $300, or 100 acres of land, and sent me a deed for Annie Hollingsworth to sign and return to them. Annie signed the deed, and myself and wife witnessed it. I live in Bell County. Our correspondence lasted about one year. There were several letters written — one or two by my wife, and three or four by myself. I started this litigation. I was attending to the matter, and in fact all the business of Annie Hollingsworth."
4. Appellees claim the court erred in finding as a fact that the land in controversy was sold by Simkins Simkins to Hunter in 1881, and that the latter improved it. (1) The court below in its twelfth finding of fact says: "Simkins Simkins sold the land to Hunter in 1881 for $300, by warranty deed." This finding is copied by appellees in their brief (page 4), and is set out therein and relied upon as a fact, and not controverted, but is again referred to therein and relied upon as a fact on pages 7, 9, and 10 of their brief. Substantially the same statement is made in appellants' brief, and being found by the court below and acquiesced in as a fact by both parties, this court had the right to rely upon it as such. See Rule 41.
H.L. Stone testified: "Defendant Hunter is in possession of the land sued for, having fenced same, I think, in the spring of 1887. Is worth as rent from 50 cents to $1 per acre per annum. The only improvements on it up to two years ago was the fence above spoken of." But even if the title stands as claimed in appellees' motion for rehearing, i.e., if Simkins Simkins sold and warranted to Slay, and he to Hunter, Simkins Simkins would still be liable on their warranty, and would have the right to defend as warrantors.
5. It is claimed by appellees that our conclusions of fact, in finding that the deed from J.G. Blanks to Overton Searcy, made in January, 1885, was not a disaffirmance of the deed made by Annie E. Hollingsworth to Simkins Simkins, is in conflict with the opinion of the Supreme Court on the former appeal, 81 Tex. 646 [81 Tex. 646]. An examination of the report of that case will show that the Supreme Court did not pretend to pass upon the facts; but it is expressly stated in the beginning of the opinion, that "there is no statement of fact filed in the *Page 418 record." From the conclusions of the judge below, it appears in that record, that "Blanks conveyed his interest in the land toappellant, Overton Searcy." Upon these facts as found in that record, the court says (81 Tex. 647): "Appellee also maintains that the appellant, Overton Searcy, should not have recovered as grantee of J.G. Blanks, the surviving husband of the grantor in the deed sought to be avoided. But we understand the law to be that a conveyance by the grantor or his heirs is one mode of disaffirming the deed of an infant." If the facts in this case, as it is now presented to us, established that Blanks conveyed his interest in the land in controversy to Overton Searcy, as it appeared to the Supreme Court on that appeal, we would feel constrained to hold, in deference to that opinion, that such a deed was a disaffirmance, in so far as that interest was concerned. But on this appeal we have before us a statement of facts, and also the conclusions of the court below, showing that the deed from Blanks to Searcy was only a general conveyance of his interests in the lands of his wife's estates in Texas, without attempting to convey this particular tract of land, or any part of it. In the eighth conclusion of the court below he says:
"J.G. Blanks, in January, 1885, conveyed his interest in his deceased wife's real estate to Overton Searcy. This conveyance was in general terms, and the court does not think amounts to a disaffirmance of the deed to Simkins Simkins; and further, from a letter introduced on this trial, written by J.G. Blanks to Simkins Simkins in 1884, the court finds that he had tacitly ratified the deed to Simkins Simkins, so far as he was concerned; and further, under all the circumstances, the court is of opinion, as stated in former conclusions, which seem to have been missapprehended by the higher court, that even if the deed from Blanks to Overton Searcy was a disaffirmance, it was not within a reasonable time."
It is clear to us that a deed from Blanks to Searcy, not of this particular land, and not making any mention whatever of this land, but simply a general deed of such land as he may have inherited from his wife, would not be inconsistent with the original deed from Annie E. Hollingsworth to Simkins Simkins, and both conveyances could consistently stand together. A disaffirmance by deed must be made with the intention to convey the particular tract originally sold. In Tylor on Infancy, section 31, the doctrine is clearly settled, that in order to constitute a disaffirmance, the second deed must be so inconsistent with the first that both can not stand. See also Id., secs. 32, 33, and authorities their cited; Ins. Co. v. Lent, 6 Paige, 635; Palmer v. Miller, 25 Barb., 399.
6. It is claimed that our conclusions of fact are not supported, in holding that when this suit was brought the land had been improved by the vendee of Simkins Simkins, and had become valuable, and appellees say the record "is silent as to any increase in the value of the land." The evidence is not disputed that this was wild, unimproved *Page 419 land, and was worth only $2 per acre at the time of the deed from Annie E. to Simkins Simkins. Tr., 19. They afterwards sold it on time at $3 per acre. H.L. Stone testified on the trial, that "defendant Hunter is in possession of the land sued for, having fenced the same, I think, in the spring of 1887. It is worth as rent from 50 cents to $1 per acre per annum."
Wild land worth only two or three dollars per acre, which has been improved so as to bring 50 cents or $1 per acre per annum rents, has certainly increased in value. But the extent of increase in value, or whether it increased at all, is not important under the issues in this case.
7. The remaining points raised upon the questions of law discussed in our original opinion we do not deem it necessary to discuss further. We have noticed the above points at unusual length, for the reason that the learned counsel for appellees, in his very earnest and lengthy motion for rehearing, urgently insists that some of our findings of fact are "without a syllable of testimony" to support them; and although the task has been laborious, we have pointed out the testimony upon which we based such conclusions.
The motion for rehearing is overruled.
Overruled.