In our opinion delivered when the judgment of affirmance was rendered in this cause, we say that we do not think the finding of the trial judge, that Daniel Dailey paid taxes on the land in dispute for five years, was correct, because the evidence fails to show affirmatively payment of taxes by Dailey; and that payment by him could not, in our opinion, be presumed from the fact that the land was assessed in his name, and from the absence of any evidence of default in the payment of taxes; the record from the Comptroller's office showing *Page 684 assessment of the land by Dailey for several years, but showing neither payment nor nonpayment of the taxes. We have, since this motion was submitted, again examined the statement of facts, and we are led to believe that we may have been in error in holding that there was no evidence of payment of the taxes by Dailey. The testimony of a former collector of taxes for the county of Trinity, from 1870 or 1871 to 1875 or 1876, may be evidence of such payment; and we therefore correct our conclusions of fact in this particular, and will not announce as our conclusion that the finding of the trial judge on this point is without evidence to support it.
This modification of our conclusions upon the facts renders it unnecessary to discuss the proposition submitted by counsel, to the effect, that as the finding of the court was not excepted to or assigned as error by the appellees, it was not subject to revision by this court.
In the fourth paragraph of their motion, counsel for appellant contend, that the sale of the land from Dailey to Brown, in 1887, was not a conveyance, but simply an executory contract for the sale of the land. If the notes recited in the deed of conveyance did in fact retain the vendor's lien on the land, then it is true that the title did not pass; and it may be that Dailey would continue to hold possession through Johnson, if the latter was his tenant, until the land was conveyed to Mrs. Pierson, on the 12th of December, 1879, which would give him possession for ten years, if Johnson's tenancy be counted from the 4th of December, 1869, the day on which the statute commenced running. But the evidence was conflicting as to whether Johnson was Dailey's tenant or not. This we said in our opinion; and while it is true we said we thought the evidence was sufficient to have justified the court in finding in favor of appellant on this issue, we also said that we could not reverse the judgment when the evidence was conflicting. And we find nothing in this motion which satisfies us that the judgment should be reversed. We still think there was no error committed by the court against appellant in the admission or the exclusion of evidence. The declarations of Johnson while on the land were not admitted to prove title in him, but simply as explanatory of his occupancy of the premises. Mooring Lyon v. McBride, 62 Tex. 312. The case of Rabb v. McDow is not like this case, in this: the declarations offered in evidence and rejected were not offered to explain the possession of the declarant, but to prove title in him; and this, the court held, was not permissible.
Without reference to the testimony of the witness Pierson, as given in the statement of facts, we think the court did not err in excluding from his consideration, in determining the issue of tenancy, the alleged written acknowledgment of Josiah Johnson, on the ground that its execution had not been proved. The facts recited in the bill of exceptions show unmistakably that Pierson knew nothing of the execution of the paper, *Page 685 except what had been stated to him by George Dailey, when the latter delivered to him, as the agent of Daniel Dailey, his title papers to the land.
The motion is overruled.
Motion overruled.