On Motion for Rehearing.
It is true that the Linvilles testified that Mrs. Markham said she did not know where Markham was, but he was still wanting to keep the house; but Linville testified that in the same conversation she was told by Mrs. Linville that the Linvilles wanted the house and not rent. The court was authorized to find that there was a demand for possession and no refusal to vacate. Some stress is laid on the proposition that Lin-ville nailed up the house, and his reasons for doing so. In this connection, and as furnishing a reason for nailing up the house upon this occasion when he had not done so theretofore when it was vacant, it must be borne in mind that there had been rumors concerning the occupants of the premises, and that he testified that his purpose was to prevent the house from being used “as a rendezvous for various people coming out there.” In spite of the fact that it was nailed shut, Als-bury got in, but did not continue to hold possession. Of course, his closing up the house kept out the plaintiffs as well as others; but he stated that his purpose was to keep people out, and not specially to keep these people out as he did not know where they were. It is true he did not want them to enter the house or permit others to enter it, but such desire on his part was not inconsistent with the belief that they had acquiesced in the demand for possession, and did not expect or intend to continue to pay rent.
Appellants vigorously challenge our statement that Markham had joined the army during the latter part of March. This statement was taken from the findings of fact of the trial court, and the correctness of. the particular finding was not challenged by any assignment of error. The court doubtless based that finding on the fact that Mrs. Markham filed suit for divorce on March 19, 1918, and Markham on that very day signed a waiver of service which was found in the house when the Linvilles entered it. Mrs. Markham explained this by stating that she had spoken to attorneys about filing the suit, but did not know it was filed, and that aft-erwards she and her husband made up and lived together until about -three or four days after she returned from Dallas; that she did not tell her attorneys about living with her husband again, and the divorce was granted in the suit they had filed on March 19th. She also testified, when recalled by plaintiffs, that she was certain that Markham left things there “when he moved.” This is an admission that he moved, and certainly if he left things there he moved before the 8th or 9th of April when the Linvilles entered the premises and took everything out. His removal before she went to Dallas is important as a circumstance to be considered with other circumstances tending to show that the conditions were such at the time she went to Dallas as rendered it highly probable that the intention of the'parties was to abandon the premises and not to continue to hold the same as tenants. In this connection, it is also worthy of notice that she told Mrs. Linville she did not know where Markham was, and that the woman at the East Commerce street place never mentioned him, but had much to say concerning Als-bury. If the three of them lived together at the Linville place up to the time Mrs. Markham went to Dallas, it is strange that she told Mrs. Linville she did not know where *496her husband was, and that she should testify that he had moved, leaving certain things. The testimony indicates that she was not living at the place at the time the telephone conversation occurred. Surely, if she was merely making a call on friends, there would be no occasion to tell Mrs. Linville, in answer to the question why she left the house, that the neighbors bothered her and she wanted to be near a doctor. Neither she nor Alsbury explained why she was at the East Commerce street place. The testimony as a whole indicates that things were not going smoothy; that there had been some friction between Mrs. Markham and Alsbury; that relations with the neighbors had also 'become unpleasant; that rumors had been circulated concerning plaintiffs. The demand for possession was added to these things. Plaintiffs did not go to the Linvilles and try to persuade them that the rumors were unfounded and get them to withdraw their demand for possession. Instead, they made such substantial progress towards moving all their goods as to raise the strongest kind of an inference that they had decided it was advisable to remove from the premises.
In weighing the testimony it must be borne in mind that the trial court’s findings are not to be measured by taking as true the testimony of plaintiffs and excerpts from defendant’s testimony which, when not con-, sidered in connection with their other testimony, tend to support plaintiffs’ theory. There are facts in evidence which discredit plaintiffs as well as inconsistencies and improbable statements in their testimony. The court had a right to discard their testimony. We must take the testimony which supports his conclusions, and when this is done we believe they cannot be held to be unsupported by evidence.
The motion for rehearing is overruled.