On Rehearing.
In the original opinion, we did not discuss appellees’ counter proposition to appellant’s twenty-second assignment of error. On rehearing they have asked us to dispose of this proposition, which is as follows:
“The trial court did not err in refusing to grant appellants’ motion for -new trial, because David E. O’Fiel, appellant, after the rendition of the judgment herein, instituted a suit in the district court of the Fifty-Eighth judicial district of Jefferson county, Tex., wherein and whereby he seeks to recover from the appellee Zeke Janes, by reason of the judgment rendered in the instant case, making such judgment the basis and foundation of his cause of action. A waiver or release of errors (if any) operating as a bar to a motion for new trial or to the further prosecution of an appeal or writ of error is implied from conduct and acts which are consistent with the claim of all right to set aside or review the judgment or decree which it is sought to bring in review.”
The facts under this proposition are as follows:
“After appellees had filed this suit against O’Fiel, 0’Fiel,i in the Fifty-Eighth district court of Jefferson . county, filed suit against Zeke Janes and wife for the northern half of the property bought by him at the sheriff’s sale, and which he had reconveyed to Janes and wife in an effort between him and them to settle this controversy. After this judgment was rendered in this cause against O’Fiel, and after he had filed a motion for new trial, he filed his suit in the Fifty-Eighth district court a first amended original petition, complaining of Zeke Janes, defendant, wherein he sought to recover from Zeke Janes blocks 7, 8, 9, 10, 11 and the north half of blocks 12 and 13 in the Silver City addition. This petition was in part in the usual form of trespass to try title, and O’Fiel further pleaded his purchase of all the property in the sheriff’s sale and the contract entered into between him and Zeke Janes. This petition makes the following reference to the judgment rendered against O’Fiel in the Sixtieth district court: ‘That although bound by his promise and obligation to effect and release any claim, if any, which he, the defendant, had against said plaintiff against the south one-half of said land in' controversy, this defendant herein on or about the 7th day of March, 1917-, instituted suit against this plaintiff to recover said land known as the south one-half of said addition -and described, hereinabove, and that a trial of same had on or about the 1st day. o,f February,. 1919, the defendant herein recovered said land of and against this plain*376tiff.’ That the value of the considerations which so failed or of the said land which defendant wrongfully recovered of this plaintiff was reasonably worth the sum of $4,000.”
As we understand this amended petition, this is the only reference contained therein to this judgment, which is a mere recital of a fact that is undisputed. As a ground for recovery against Zeke Janes, O’Piel further alleged that the consideration expressed in the contract between him and Zeke Janes had failed. He closed this petition with a prayer that he have judgment for. the title and possession of the land described in his petition.
In Davis v. Wakelee, 156 U. S. 680, 15 Sup. Ct. 555, 39 L. Ed. 578, a ease cited by appellees, the Supreme Court of the United States said:
“It is contrary to the first principle of justice that a man should obtain an advantage over his adversary by asserting and relying upon the validity of a judgment against himself, and in a subsequent proceeding upon such judgment claim that it was rendered without personal service upon him.”
As we understand O’Fiel’s petition filed in the Fifty-Eighth district court, he was not asserting and relying upon the judgment rendered against him, in this cause for any purpose. It is clear that he derived no benefit whatever from the reference to the judgment which had been rendered against him. The rule is thus stated in 3 Corpus Juris, 665:
“In order to bar the right of appeal upon the ground of acquiescence, the acts relied upon must be such as to clearly and unmistakably show acquiescence, and it must be unconditional, voluntary, and absolute.”
This record does not show that O’Fiel further prosecuted his suit in the Fifty-Eighth district court. It is shown by this record that he was diligent in perfecting his appeal. In due time he filed his motion for new trial. On the 28th of March, 1919, he filed an amended motion for new trial. This was followed by the filing of an appeal bond and briefing the case. With this show of diligence before us in perfecting this appeal, can it be said, as a matter of law, that O’Fiel unmistakably acquiesced in the judgment rendered against him? We do not-think so.
As in Barnes v. Lynch, 9 Okl. 11, 59 Pac. 995, it seems to us that O’Fiel’s conduct in filing this amended petition in the Fifty-Eighth district court was only an effort on his part to save and protect himself in said suit in case he should lose his appeal in this case. In the Barnes-Lyneh.Case, Judge Macatee of .the Supreme Court of Oklahoma reviewed very fully the -authorities on this, proposition, and, among many cases, cited Jackson v. Michie, 33 La. Ann. 723, wherein the court said:
“To take away the right of appeal, there must be an unconditional, voluntary, and absolute acquiescence in the judgment' rendered, on the part of the appellant. * * * It doubtless often happens that a plaintiff, in whose favor a verdict is rendered, though it does not give him all that he thinks he is entitled to, is willing to acquiesce therein and receive what it gives him; * * * but such conditional acquiescence in a verdict does not deprive him of the right of appeal. * * * An. appeal is an important right, which should never be denied, unless its forfeiture or abandonment is conclusively shown.”
This counter proposition is overruled.
Again, appellees question our statement that by their testimony they raised an issue against their title. On this statement we said:
“Also in developing both their title and the title of plaintiffs, they raised as questions for the jury the issues we have discussed. Even as against a plea of general denial a plaintiff in trespass to try title cannot have an instructed verdict when by his own testimony he raises issues of fact against his own title.”
Appellees say:
“The court assumes in a general way that the issue of whether or not Zeke Janes and wife had abandoned their homestead rights in the land in question was in issue against the prima facie title of plaintiffs and interveners. Now we do not deny that plaintiffs and interveners made this issue of fact, but we feel confident that the court on reflection will see that this issue in no way affected the superiority of plaintiffs’ and interveners’ title or claim of defendants which plaintiffs and interveners showed that the defendants had the land, to wit, the sheriff’s deed from Janes to O’Fiel, which was offered by them only for the purpose of showing common source. The sheriff’s deed, without the judgment and execution, being sufficient to show claim on the part, of the defendants, therefore a common source.”
It was admitted by Zeke Janes that he was a party defendant and that judgment was rendered against him in the case of V. A. Oollins v. Beaumont Land & Building Company. The deed from Janes by sheriff to O’Fiel is not in the record, but this agreement does appear in the record:
“There was next introduced in evidence by plaintiffs original copy of sheriff’s deed dated December 3, 1914, recorded in Book 147, p. 98, of the deed records of Jefferson county, Tex., whereby Jake Giles, sheriff of Jefferson county, Texas, for a consideration of $435 paid him by David E. O’Fiel under the execution on judgment of V. A. Collins et al. v. Beaumont Land & Building Company et al., No. 9789, district court of Jefferson county, Tex., conveys said O’Fiel all of blocks 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the Silver City addition to Beaumont,” etc.
We are unable to understand what else is required to raise an issue of fact against the title of appellees. They admit that the facts are sufficient to raise the issue of aban*377donment and the record shows that they agreed that ©’Mel was holding under a sheriff’s deed made by virtue of an execution sale. It is true that appellees introduced the O’Fiel deed only for the purpose of showing common source, but, by the agreement made by them in introducing this deed, it clearly appears that O’Fiel acquired the title to the land, provided appellees had abandoned the same as a homestead, and, as just said by us, they confess in their motion for rehearing that this issue was raised by their own testimony.
Again, appellees question in their motion for rehearing almost every statement made by us in the original opinion. In the original opinion we say that the cash payment made by Kinard to Janes was $2,000. This was a typographical error which we failed to observe before filing the opinion. The cash payment was only $200. Again, we say that the nine lots released by Zeke Janes to Kinard were improved at the time O’Fiel bought at the sheriff’s sale. Possibly we are in error in this statement, as we find on further reference to the statement of facts that only seven houses had been built in the Silver City addition at the time O’Fiel bought. All other criticisms by appellees of the statements made by us in the original opinion have had our most careful consideration, and the record fully sustains us in all that we say.
As a witness in the case, O’Fiel undertook to describe the settlement surrounding the Silver City addition at the time he bought the property under the sheriff’s sale. Some of this description he gives in the present tense, and appellees insist that he was referring to the conditions as they existed at the time of the trial, and not three or four years before when he bought it; but after giving the number of houses in the Silver City addition, and the schoolhouse, and stating the number of children going to school out there and locating the Pennock and Parts additions, and describing the neighborhood generally, he concludes by saying:
“And that was the condition that existed out there along about December, 1914, and prior to the time when I became a purchaser.”
The motion for rehearing is in all things overruled.