This is a suit by appellee to recover from appellants a 44-caliber, wooden-handled, Frontier model, Colt pistol which, it is agreed, was used by Pat Garrett, deceased, in the killing of Billy the Kid.
The following facts were found by the trial court: "I find that the plaintiff in said cause, Pauline Garrett, is the widow of Pat Garrett, deceased; that J. B. Brady is the duly qualified and acting Administrator of the estate of M. T. Powers, deceased; that on January 24th, 1933, the plaintiff, Pauline Garrett, filed this suit in the El Paso County Court at Law against J. B. Brady, Administrator, and others, for the possession of a certain 44-Caliber Colt Pistol; That during the year 1904 Pat Garrett gave to his wife, Pauline Garrett, the pistol in controversy; that thereafter Pat Garrett obtained said pistol from the said Pauline Garrett to be loaned to M. T. Powers of El Paso, Texas, for exhibition purposes only, in the Coney Island Saloon, owned and operated by the said M. T. Powers, in the City of El Paso, State of Texas; that said pistol was in fact loaned to M. T. Powers for exhibition purposes only; that the said M. T. Powers placed said pistol on exhibition in the Coney Island Saloon, and attached thereto a card which stated, in effect, that said pistol had been loaned to M. T. Powers `For exhibition purposes only'; That thereafter and during the latter part of 1906, or the first part of 1907, Pat Garrett undertook to give said pistol to the said M. T. Powers, and thereafter the tag which contained writing to the effect that said pistol had been loaned to M. T. Powers, for exhibition purposes only, was removed from said pistol; that notice was never given to the said Pauline Garrett of the purported gift of said pistol by Pat Garrett to M. T. Powers; that the said Pauline Garrett, the plaintiff herein, never received notice of such purported gift, or that said tag had been removed from said pistol until after the death of the said M. T. Powers in 1931; That the Coney Island Saloon continued in existence until the year 1918, and the said pistol was kept on exhibition therein until the close of said saloon in 1918; that after the closing of said saloon in 1918, the said M. T. Powers kept said pistol at his residence in El Paso, Texas, until his death in 1931; That the said Pauline Garrett, Plaintiff herein, never at any time had notice of the assertion of any adverse claim to said pistol by the said M. T. Powers; that said pistol is now in the possession of the said J. B. Brady, the Administrator of the estate of M. T. Powers, deceased."
Upon these findings the court concluded as follows: "Upon the foregoing facts I conclude, as a matter of law, that the title to the pistol in controversy is in Pauline Garrett, Plaintiff herein, and that she should recover the possession thereof, from the said J. B. Brady, Administrator of the estate of M. T. Powers, deceased, and judgment is accordingly rendered."
From such judgment the defendants have appealed.
The following contentions, among others, are advanced by appellants: (1) That there was a sale of the pistol by Garrett to Powers; (2) that the gun became the property of Powers by virtue of his possession thereof from 1906 to 1927 without claim having been made on him therefor; (3) that Garrett having died in 1908 and Mrs. Garrett having permitted the gun to remain in Powers' possession, which possession was adverse to her claim, it was barred by the two, four, and ten year statutes of limitation; (4) that her claim was barred by her failure to demand possession of the gun for more than two years after the saloon closed and the gun ceased to be used for exhibition purposes.
With these contentions we cannot agree.
It is undisputed that the gun went into the possession of Powers as a loan; that is, he acquired possession as bailee. The statute of limitations does not begin to run against the bailor's right so long as the relation of bailor and bailee continues, or, if such *Page 504 relation is repudiated, until the bailor receives actual or constructive notice of the adverse claim by the bailee or by some one claiming through him. 6 C.J. § 35, p. 1107. Therefore, the claim of Mrs. Garrett would not be barred until the lapse of some statutory period after notice to her of an adverse claim to the pistol by, Powers. The court found she had no such notice, and such finding is supported by evidence. The assignments raising the question of the statute of limitations are, therefore, overruled. Garrett, in view of the finding of the court that the pistol was the property of Mrs. Garrett, could not have legally sold the pistol to Powers.
In this state the husband cannot sell the separate personal property of the wife. McKay and Wife v. Treadwell, 8 Tex. 176; Coleman v. First Nat. Bank, 17 Tex. Civ. App. 132, 43 S.W. 938; Therriault v. Comrpere (Tex.Civ.App.) 47 S.W. 750; Walker v. Farmers' Merchants' State Bank (Tex.Civ.App.) 146 S.W. 312; Givens v. Carter (Tex.Civ.App.)146 S.W. 623; Hudspeth v. State, 54 Tex. Crim. 371, 112 S.W. 1069, 130 Am. St. Rep. 894.
Appellants requested a finding by the court as to the sale by Garrett to Powers, as testified to by the witness Warren. The requested finding was in conflict with the court's prior findings that the pistol had been given to Mrs. Garrett and that Garrett had undertaken to give it to Powers and was, therefore, properly refused. Garcia v. State (Tex.Civ.App.) 274 S.W. 319; Magnolia Petroleum Co. v. City of Port Arthur (Tex.Civ.App.) 209 S.W. 803.
The Judgment is also attacked on the ground that our statutes do not permit a judgment in this character of case in the absence of evidence as to the value of the property sued for.
This same contention was made in the case of Avery v. Avery, 12 Tex. 54,62 Am.Dec. 513. The court, in that case, said: "It is objected that the jury ought to have found the value of the slave sued for. In many cases it is essential to the interest of the parties, that this should be done. If the property sued for was beyond the reach of the jurisdiction of the Court, at the time of the verdict and judgment, nothing but compensation for it could be obtained, and the amount of that compensation should be determined by the jury. This would be necessary to the interest of both plaintiff and defendant; but where but one particular piece of property is sued for, and that is sued for in specie, and not in the alternative of damages, if the plaintiff establishes his right to the property, ample and complete justice can only be awarded by a judgment for the restitution of the property so claimed."
In that case, as here, plaintiff sued for specific property and had no alternative prayer for the value as damages.
It has also been held that an alternative judgment for the value of the property is for the benefit of the plaintiff and not of the defendant. Henry v. M. M. Moore, 1 White W. Civ.Cas.Ct.App. § 880, p. 504.
The facts, as found by the trial court, being supported by the evidence, are binding upon us, and the judgment must be affirmed.
HIGGINS, J., did not sit in this case.