This is an action by appellee against the appellants, the First National Bank of Colorado, Winfield Scott, H.B. Smoot, and S.M. Karr, for $6000 as damages, the value of 350 head of cattle, alleged to be the property of appellee, and that were taken and converted by appellants and the defendant Karr.
The defendants answered by general demurrer and general denial.
Judgment was rendered in the court below in favor of appellee against all of the defendants except Karr for $3500, the value of 350 head of cattle at $10 per head.
The first assignment of error complains that the court erred in its charge to the jury wherein they were instructed, "That the defendants not having shown any right to or interest in the cattle in controversy, can not question the plaintiff's right of possession of said cattle, if they found plaintiff had such possession." It is urged that this charge is improper, because the evidence shows that the cattle were purchased by the appellee by the marks and brands when they were loose on the range, and that actual possession was not delivered at the time they were purchased, and that at the time they were taken by the appellants they were not in the actual possession of appellee, but running on the range; and that at the time of such purchase a bill of sale was executed and delivered to appellee, but it was never recorded.
It is not pretended that the appellants denied or justified the taking of the cattle, and for the purpose of considering this question they are regarded as naked trespassers. The appellants' contention would probably be correct, and it would fall within the rule announced in Black v. Vaughan, 70 Tex. 48 [70 Tex. 48], if the facts were as stated by them. Upon the contrary, we think the evidence shows that at the time the cattle were purchased by the appellee they were actually delivered to him and his agents by his vendor, and that at the time he paid for them. The bill of sale was executed at the time, describing cattle in certain marks and brands. The evidence shows that these cattle were in the marks and brands, and were by the agents of appellee examined and inspected before purchase, in order to ascertain if they were as represented by the vendor; *Page 86 and they were found as represented and the sale concluded, and the cattle actually delivered to appellee's agent.
The facts further tend to show that the cattle were in actual possession when they were taken and converted by the appellants; but if there be any question as to the sufficiency of the evidence upon this point, we think the fact that they may have been loose upon the range when taken would not, as a matter of law, place them out of the possession of the true owner. Cattle running upon their accustomed range are held to be in the possession of the owner, and such possession is regarded as sufficient to hold a wrongdoer or trespasser liable who invades it. The fact that the purchase of the cattle was accompanied with an actual delivery, takes the sale; without, the provisions of article 5464, Sayles' Civil Statutes, as construed in Black v. Vaughan.
In this connection, it is further insisted that the possession of the cattle by the appellee was illegal, because there was no evidence of execution of the bill of sale; that the bill of sale was not offered in evidence, or its absence accounted for, but that the plaintiff relied upon parol evidence of his purchase as justifying and showing a legal possession of the cattle.
It seems from the evidence that the plaintiff, in making his case, only proved his purchase of the cattle by parol evidence, and that he had paid the consideration therefor, and relied upon his prior possession of the cattle as the evidence of his right against the trespassers, such purchase being proven in order to show that his possession was legal.
Articles 4562 and 4563, Sayles' Civil Statutes, were construed by this court in the case of Wells v. Littlefield,59 Tex. 561. There it is said: "The penalty for not taking such written instruments [bills of sale] upon receiving possession of cattle is, that the possession shall be deemed prima facie illegal. It is not made conclusively unlawful, but is open to explanation; and nothing prevents a title to such property from passing without a bill of sale if it can be proved that it was bona fide, made upon sufficient consideration, and that no evasion of the law was intended." We think the evidence shows a bona fide purchase of the cattle by appellee upon a sufficient consideration.
It is next contended, that the existence of the bill of sale being shown, parol evidence of title was not; admissible. The plaintiff, in making his case, was not relying upon his bill of sale as the evidence of his right to recover against appellants, but relied solely upon his possession of the cattle as evidence of title sufficient to authorize a recovery against a wrongdoer or naked trespasser. The evidence with regard to the purchase was simply to show that he had legal possession of the cattle. It was not necessary to prove the facts establishing a title in order for the plaintiff to recover against a trespasser without the semblance of right. This is not a contest concerning the title to the property, or the rights of different claimants. But it is a proceeding solely against those who have unlawfully *Page 87 invaded the possession of another. In such a case the plaintiff can rely solely upon his possession as evidence of right sufficient to permit a recovery. Cool. on Torts, 2 ed., 511, 512, 516-521; Linard v. Crossland, 10 Tex. 462.
It is insisted that the court erred in instructing the jury, "that the place or county where the conversion took place, if they found there was a conversion, was immaterial," for the reason that the plaintiff in his petition alleged the ownership and possession of the cattle in Yoakum County, and the evidence shows they were in Gaines County. It is insisted that in this respect the evidence does not correspond with the allegations. This may be true, but we do not regard the allegation of the place material. Evidence of an immaterial allegation is not required. But if an effort is made to prove it, and the place shown by the evidence does not correspond with that alleged, such failure does not give importance to an allegation that the law regards as immaterial. This question might only become important when the tort was committed within a different jurisdiction. But this question is not before us, and we express no opinion concerning it. Cool. on Torts, 2 ed., 551.
It is insisted that the verdict is excessive, and that the evidence does not connect the appellants the First National Bank and H.B. Smoot with the trespass, and therefore in that respect the judgment is erroneous. We have examined the evidence in the particulars complained of, and find the evidence as to the value and number of cattle taken sufficient to support the verdict, and that the bank and Smoot were parties to the trespass.
We deem it unnecessary to notice other assignments.
We conclude the case should be affirmed, and so report it.
Adopted May 3, 1892.
C.A. Jennings and E.H. Graham argued motion for rehearing.
ON MOTION FOR REHEARING.