Upon request of appellant, we file the following conclusions of fact in this case, to wit:
Conclusions of Fact. — 1. It was agreed by the parties to the suit, that on and long prior to the 1st day of March, 1893, the land sued for by plaintiff, the appellant, was owned by W.W. Lock by title in fee simple.
2. March 1, 1893, W.W. Lock and his wife, Laura A. Lock, executed a deed of trust to R.L. Brown, trustee, conveying, with other lands, the land in suit to the trustee to secure a note of $6500 and interest and attorney's fees.
On the 16th of February, 1895, the Scottish-American Mortgage Company, Limited, sued in the District Court of Travis County on the claim secured by the deed of trust, and to foreclose lien on the land now in suit, in which suit the court rendered judgment for the plaintiff for the debt of $8273.92 against W.W. Lock and other defendants, and foreclosed the lien as prayed for, ordering sale of the land, upon which order of sale, issued May 7, 1896 (5 ?), addressed to the proper officer of Hays County, requiring sale of the land, which was returned by the officer, showing levy on the land, advertisement of the sale, and sale in regular order on the first Tuesday in June, 1895, to R.L. Brown, the plaintiff in this suit, for $4000. The sheriff selling the property made and executed deed to R.L. Brown, June 4, 1895, to the land, pursuant to the sale, which was duly acknowledged and recorded in Hays County, June 17, *Page 266 1895. The order of sale ordered the officer executing the same to put the purchaser in possession.
The defendant in the suit, appellee, rented the farm on the land, seventy-five acres, from W.W. Lock, for the years 1891, 1892, 1893, 1894, and 1895, but did not rent the rest of the survey. In 1894, September 20th it was, he rented the seventy-five acres from Lock for the year 1895 at $4 per acre, and on that day paid him the rent. He planted and cultivated the land, fifty acres in cotton and twenty-two and a half acres in corn, and about two acres in cane and half an acre in potatoes and garden. On May 8, 1895, the corn and cotton were up, hoed, and plowed out; on June 4, 1895, the corn was in full silk and the cotton blooming, and the cotton and corn grew to maturity and the tenant was gathering the same when it was levied on under the writ of sequestration sued out by the plaintiff. The levy was made October 2, 1895, by J.P. Hall, deputy sheriff. Previous to the levy, Leath had gathered seven bales of cotton and about sixty-five bushels of corn. After the levy, the sheriff's deputy took possession of the cotton and corn, and no more was gathered until the 21st or 22d of the same month. On one of these days Leath's children began gathering the cotton, and Leath the corn. They were employed to do so by Tom Anderson, agent of R.L. Brown, who had in the meantime replevied the crop. After this the children gathered three bales of cotton of the crop levied on, weighing respectively 490, 534, and 533 pounds, out of which came 3166 pounds of seed, which were worth $9 per ton at the time of seizure. About twenty-five bushels of corn were wasted during the time it was levied on, and when Leath began gathering it again it had blown down and rotted on the ground. About 800 to 850 pounds of cotton also blowed out and wasted during that time, and was worth in the fields $1.75 per hundred pounds; the corn was worth 20 cents per bushel. Anderson, agent for plaintiff Brown, paid Leath at the rate of 50 cents per one hundred pounds for picking the three bales of cotton and $1 per bale for hauling it to the gin; of the 300 bushels of corn so gathered, Leath turned over ninety bushels to Anderson, who sold it at Kyle to Michaelis; the remaining 210 bushels he sold to plaintiff at 20 cents a bushel; that is, Leath paid him 15 cents per bushel for it standing in the field, and plaintiff allowed him 5 cents a bushel for gathering it.
By reason of the levy, Leath and his children lost twenty or twenty-one days. It would have taken the children nine days to gather the cotton, and Leath could have gathered the corn in twelve days. During this nine days, Leath testified, the services of Leath and children would have been worth $5 per day, and for the three additional days Leath's time would have been worth $1 per day. By reason of the levy on the crop, his children (minors) were deprived of an opportunity to labor about the gathering of the crop, except as stated.
During the time from June 4, 1895, until Leath moved away, he never denied plaintiff's right to enter upon any of the land. Leath was claiming it for the purpose of gathering his corn and cotton and no further. *Page 267 He had rented none but the cultivated land on the place, about seventy-five acres. The rest was in pasture, over which he exercised no control. It was controlled by Lock. Leath's renting was from year to year. He rented in this way from 1891 to November 15, 1895.
When the levy was made, Leath was forbidden by the sheriff to gather any more of the crop, and because of that he and his children were deprived of employment, as stated, and remained without employment until the 21st or 22d of October, 1895, at which time they were employed by plaintiff to gather the crop as stated. After the levy, he made no effort to secure employment of the same character for his minor children, as he was unwilling to put his children out to work two miles from home with negroes and Mexicans. He made no effort to secure employment for himself, and could have secured none, unless it was to have gathered a little corn.
The picking of the three bales of cotton came to $26 or $27, which plaintiff's agent paid him, and he also paid him $1 per bale for hauling the cotton, and this is the same cotton for which he claims damages for preventing his children from gathering during the time from October 2 until they began picking again. Plaintiff also paid Leath $1 per day while he gathered ninety bushels of corn. A field hand was worth $1 a day boarding himself, and 75 cents with board. The day before the levy, Leath had hired a hand to help him gather the corn at 75 cents a day, and both could have gathered the corn in six days, and if the levy had not been made he would have worked only six days in gathering the corn.
The corn he bought of plaintiff only cost him 15 cents per bushel, he gathering it. He moved off the premises on the 15th of November, 1895, and after that occupied no part of the premises sued for. Up to that time he had used the house, barn, lots, well, cane patch, potato patch, and garden on the land.
At the time of the levy his oldest boy was 16 years old, the next, a girl, was 15 years old, then a boy 12 years of age, and a third boy 9 years old.
Cotton sold in 1895 first at 8 1/2 cents, then at 8 cents per pound, and on October 2 may have been 8 to 8 1/2 cents per pound.
The house, barn, and lots from June 4th to November 15th were reasonably worth $5 to $6 per month, and the cane and potato patch for the same time $7.50 to $8. Cotton picking was worth 50 cents, the pickers boarding themselves, and with board, only 35 cents per 100 pounds.
Plaintiff levied a sequestration on the property, as stated above, and after the seizure plaintiff replevied the property, giving a replevy bond with J. Gordon Brown and T.L. Lynch as sureties, approved October 17, 1895.
This statement is made with and to be taken in connection with our statement made in our former disposition of the case, which former statement is to be considered herewith.
Filed February 2, 1898.
Writ of error refused. *Page 268