Ben Carter was convicted at the May term, 1884, of the county court of Falls county of pulling down the fence around the pig pen of one Ogesse Beckwell, and was fined $10. The appellant under his plea of not guilty did not deny pulling-down the fence, but justified under a claim of ownership. Appellant brings the case to this court by appeal, and assigns as error, first, that the court erred in charging the jury as set out in defendant’s bill of exceptions Ho. 1, for the several reasons therein specified.
The court instructed the jury, substantially, that if Beckwell under an agreement with his mother built upon the premises in controversy, and during the mother’s life and after her death occupied the building; and that afterwards the mother’s husband died and willed the property to another, unless it was the husband’s separate property, Beckwell would still have the right of occupancy. But if the property belonged to the husband and he disposed of it by will, then Beckwell could be required to vacate the premises on proper notice. That if the jury believed from the evidence that Beckwell’s mother was a joint owner of the premises and died without disposing of it, it would descend to her children, and until partition it would be held in common between them; and if Beck-well got possession from his mother, she having a right in the premises, he would have a right in common with the other heirs, and if the jury so believed, they would determine whether the fence was a part of the common property, and that it was broken without the consent of Beckwell, a joint owner, and that defendant broke the same, they would find him guilty, etc.
The property was first owned or occupied by the mother and father of Beckwell and Mary Ann Carter, appellant’s wife. The mother before her death gave Beckwell permission to build a room adjoining her house, and agreed that he should occupy it so long as he might desire, and might remove it if he became dissatisfied. Beckwell under this agreement built the room and occupied it constantly until the trial. The mother died a number of years ago and left the father surviving her. The father died in 1880 and willed the property to Mary Ann Carter, defendant’s wife, and she and defendant have occupied and held the property as heirs. Mary Ann Carter testified that her mother made a will and left the property to her, but the will was destroyed by the father. Last year Beckwell and appellant put their hogs in a pen together on the premises, but, disagreeing about feeding them, Beckwell built anew pen on the premises, partly of his own and partly of rails belonging *576to defendant, and by using the fence around the premises for one side of the pen. Appellant then objected to Beckwell’s raising hogs on the place, and they quarreled about it, and about April 10,1884, appellant opened that part of the pen made by the yard fence and let Beckwell’s hogs out without his consent. Appellant had told Beck-well he would turn the hogs out, and Beckwell defied him to do it.
The title to the property upon which the pen was built is of no importance. The inquiry should be: Was Beckwell in the quiet and peaceable possession of the fence broken or pulled down? (Behrens v. The State, 14 Texas Ct. App., 121; Johnson v. The State, 7 Texas Ct. App., 146.)
Appellant was in the quiet and peaceable possession of the fence around the premises broken. Beckwell built his pen so that the fence around the premises formed a part of the pen, and by thus building his pen, it is claimed, he became possessed quietly and peaceably of the fence broken.
Do these facts constitute Beckwell and defendant joint or common possessors of the broken fence? We think not. This is unlike a case in -which the alleged owner of the fence charged to have been broken or pulled down and the defendant were in common possession of the fence, such as a division fence. As defendant excepted to this charge, and believing the same calculated to lead the jury from the correct issue, the judgment because of this error must be reversed.
Again, as the evidence does not sustain the conviction, for this reason as well as the first, the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered June 24, 1885.]