On Rehearing
On March 14, 1956, we overruled appellants’ amended first motion for rehearing and delivered a written opinion in connection with the ruling. Appellants then seasonably filed a second motion, and in it they complain of our failure, in the opinion on their first motion, to make certain requested findings of fact. We have therefore concluded to withdraw the opinion we delivered March 14, 1956, and to substitute the present opinion in its stead.
Appellants urged in their first motion for rehearing, and they reurge' in their second motion, that the grounds on which this, court originally affirmed the trial court’s-judgment were neither contained in nor raised by appellees’ motion for directed verdict and were therefore not legally subject to consideration by this court. They have requested that we find as facts the following: “(1) The trial court directed verdict herein for appellees in response to their motion therefor based upon six specific grounds stated therein. (2) Appellees’ motion for directed verdict filed and presented in the trial court did not include as a ground therefor any reference to the supposed legal effect of the recitation in said certificate o£ *157good moral character that William Hum-phreys was a ‘native of Tennessee of the United States of America.’ ”
The requested findings are perhaps in keeping with the record, but, to avoid the possibility of a misunderstanding through interpretation, we decline to adopt them literally, preferring, instead, to set out more in detail what the transcript reflects regarding the matters on which fact findings are desired.
The trial court instructed the jury “to return a verdict in favor of the defendants and against the plaintiffs,” and the judgment recites that the instruction was given “in response to the defendants’ motion” therefor. Pursuant to such instruction, the jury returned a verdict as directed, and judgment was then rendered on the verdict.
Defendants’ motion for directed verdict was in writing and contained specific statements of the matters on which the defendants relied as grounds for such a verdict. Only four of the motion’s six paragraphs bear upon the matter that is under consideration, and we quote those four in their entirety, italicizing portions of them:
“1. The evidence shows that the plaintiffs claim under a William Humphrey who was a single man, who never married, and who never had a family. The land sued for by plaintiffs, titled to a William Humph-ries who had two in his family, could have been granted only a colonist.with a family. Therefore plaintiffs1 evidence affirmatively establishes that ■ their William 'Humphrey could cmd did not receive the grant to the league.
“2. There being a total failure in the evidence to show that the William Humph-ries under whom plaintiffs claim had a fam- • ily consisting of two persons at the dates of the application for the grant, and of the grant itself, any presumption that otherwise might obtain because of similarity of name of plaintiffs’ William Humphrey with that, of the original grantee cannot be indulged.
“4. The defendants prior possession of the land in controversy and the production of minerals for fifty years defeats the claims of plaintiffs who have failed to prove that the William Humphrey under whom they claim was the William Humphrey to whom the league involved was granted.
“6. Because of the long non-claim to, and the non-use of, the land by plaintiffs and their predecessors, it must be conclusively presumed that they legally abandoned the land and title thereto, if the land was titled to plaintiffs’ William Humphries, which it was not under the evidence.”
Rule 268, T.R.C.P., provides that “a motion for directed verdict shall state the specific grounds therefor”,-and the primary question with which we are concerned is that of whether, within contemplation of the rule, defendants’ motion sufficiently raised the ground or grounds on which this court affirmed the trial court’s judgment. We think it did.
In 'final analysis, the affirmance was grounded on the proposition that, as a matter of law the evidence affirmatively established, or at least prima facie so, that the league of land was not granted to the person through- whom appellants claim, and this was the .very proposition ■ which the-defendants specifically urged in the first paragraph of their motion. As presented in the motion, the proposition was linked, it is true, to evidence which did not support it, and the motion nowhere made specific mention of the evidence on which this court sustained the trial court’s- ruling, but it did reasonably direct attention to the ultimate or controlling ffact which appellees .were contending the evidence established, and we think this is all that Rule 268 requires shall be done. It is not essential to the validity of a motion for directed verdict that the evidence which is thought to conclusively establish some ultimate or-.controlling fact be specifically set but and debated in the motion. The trial judge will have heard the evidence and the parties or their attor*158neys can argue it orally. It is even the better practice, we think, to forego any attempt to point out in the motion the specific evidence which is thought to establish a particular fact and to state only that which the evidence is believed to have proved, because there is the possibility, and even the probability, that if the motion should be overruled the court’s ruling would be reviewed in the light of' only that evidence to which the motion directed attention. However, the fact that the motion does set out the evidence which the maker o.f the motion erroneously assumes establishes the ultimate fact on which he relies for a directed verdict does not have the legal effect of restricting the trial court to a consideration of only that evidence; and where the motion is granted, as it was in this instance, the reviewing court must ordinarily proceed upon the theory that the trial court considered all evidence bearing upon the ultimate or controlling fact contended for in the motion. Conceding that Rule 268 was adopted for the benefit of litigants as well as for the benefit of the courts, and assuming that it is possible for a motion, through reference to particular evidence, to so mislead the opposing party to his' detriment as to render it unjust for the reviewing court to resort to evidence other than that referred to in the motion for the purpose of supporting the trial court’s action in granting, the motion,' the present case presents no such fact situation. Appellants are in no position to claim that they were misled to their, detriment by the motion. The identity of the original grantee of the league' of - land had obviously been recognized from the outset of the trial as one of the principal issues involved, and it was not only .to have been expected that appellees would take the position that, there was no evidence to show that the land was granted to the person through' whom appellants-claimed and affirmative proof that it had been granted to another, but we think there is little room to doubt that the parties and the trial-court accepted those as being the matters raised by paragraphs one and two-of defendants’ motion and further referred to in paragraphs four and six. The facts of the case-, distinguish it from-Arnold v. Tarrant Beverage Co., Tex.Civ.App., 215 S.W.2d 894. The motion had failed in that instance to state or raise the ultimate ground which the appellees sought to raise in the appellate court. Here we are only confronted with the failure of the motion to direct attention to the evidence that proved the ultimate’ fact which appellees contended had been proved.
The original opinion sufficiently disposes of appellants’ other assignments of error, both those appearing in their amended first motion and those appearing in their second motion for rehearing.
Our order of March 14, 1956, overruling appellants’ amended first motion for rehearing is reaffirmed and appellants’ second motion for rehearing is overruled.