On Motion for Rehearing.
Defendants motion for rehearing is before us.
(1) Defendants assign error to our -consideration of certain Exhibits filed in the trial court.
We have before us six of these Exhibits. Four of them, namely, a postal card (Ex. P-34), a letter (Ex. P-35), the envelope originally enclosing this letter (Ex. P-35B), and an acknowledgment of tenancy (Ex. P-28) were referred to in our opinion ■on original hearing. Two Exhibits, P-31 •and P-33, were not referred to in that opinion. All six exhibits are certified by the Clerk of the trial court, and the authenticity of these Exhibits has not been questioned. We did not have before us on •original hearing an order of the trial court ■directing the transmittal of these Exhibits to this court, and the lack of such an order seems to be the basis of defendants’ complaint. See Rule 379, Texas Rules of Civil Procedure, which also authorizes this court to procure these Exhibits from the Clerk ■of the trial court if we want to see them.
Plaintiff has filed a reply to defendants’ motion for rehearing, stating that the trial court did make an order, directing that these Exhibits be transmitted to this Court. This order was not in the transcript, but it appears from plaintiff’s reply that plaintiff was not at fault in this matter.
We have procured from the clerk of the trial court a copy of the order referred to in plaintiff’s reply. This order directs that all of the various Exhibits which we have listed above be transmitted to this Court.
Under the circumstances, we hold that the aforesaid Exhibits are properly before us, to be given full consideration.
(2) Defendants say that our judgment is based upon the trial court’s findings of fact. Defendants have misconstrued our opinion. We gave no effect to any of these findings. We did discuss the trial court’s finding that defendant J. E. Farr executed the postal card (P-34), and we discussed the finding (which was also -expressed in the judgment, as the basis of the instructed verdict) that defendant executed the letter (P-36), but we upheld defendants’ contention that on this record it was a question of fact for the jury whether defendant. Farr executed these documents. Defendants admit that they executed the acknowledgment of tenancy.
(3) We held that the trial court’s exclusion of defendants’ evidence of limitation title was not reversible error because: (a) We presumed in support of the trial court’s , judgment (because the statement of facts 1 was incomplete and for no other reason) that after the acknowledgment of tenancy was made, plaintiff acquired the title to the land in suit from the corporation to which it may be said that defendants made their acknowledgment of tenancy, namely, Kirby Lumber Compcmy. This acknowledgment was not made to plaintiff (Kirby Lumber Corporation); it was made to the receiver of what must be regarded on this record, because of a difference in námes, as a different corporation. We have re-read the (partial) statement of facts; • defendants did not show that the persons who procured the acknowledgment from defendants were acting for plaintiff, nor did they show that plaintiff was the same corporation as Kirby Lumber Company, (b) On the basis of this presumption, we held that defendants had the burden of proving some reason why plaintiff would not be protected against defendants’ adverse possession prior to the acknowledgment of the tenancy, and this defendants did not prove. Defendants’ tender of evidence was incomplete under these circumstances, and their evidence of limitation title was prima facie immaterial.
The motion for rehearing has been carefully considered, but we adhere to our original conclusions, and the motion is therefore overruled.