In concurring in the overruling of appellee's motion for rehearing, the writer, while not desiring to dissent from the opinion respecting the issue of misconduct of the jury, does not entirely give assent to the views therein expressed. In my opinion the misconduct amounted only to "the jury's expressed misconstruction of a court's charge." Texas Employers' Ins. Ass'n v. Henson, Tex. Civ. App. 31 S.W.2d 669, 673. However, there is room for a reasonable difference of opinion on the proposition.
The judgment for the defendant for the land west of the road had basis on three findings of the jury: (1) the ten years' statute of limitation; (2) the twenty-five years' statute; and (3) the issue as to the lost deed. In regard to the ten years' statute I believe this court was in error in holding that the trial court should have given the special issue requested by defendant. The matter was perhaps sufficiently submitted in other issues given by the trial court. However, I believe the evidence was insufficient to require the submission of the ten years' statute to the jury. The evidence was very unsatisfactory as to a continuing, visible appropriation and use of the land for ten consecutive years. The view of the writer is that it was error for the trial court to refuse to set aside this finding on account of the insufficiency of the evidence to sustain same.
With what was said as to manner of the submission of the issue arising out of the twenty-five years' statute I believe our opinion was correct.
There is grave doubt in my mind as to the sufficiency of the issue alternatively submitted whether R. W. Rodgers or Frances J. Rodgers, as administratrix, executed and delivered a deed to R. E. Rowell to support a finding in favor of defendant. If evidence there was to support the submission of the issue, it is about as cogent to show that one did so as that the other did so. If the jury found the administratrix did so, the deed, under the evidence, was ineffective to convey. Jobe v. Osborne,128 Tex. 509, 97 S.W.2d 939; Butler v. Cole, Tex.Com.App., 53 S.W.2d 1010.
In the case of Masterson v. Harris County Houston Ship Channel Nav. Dist., Tex.Com.App., 15 S.W.2d 1011, loc. cit. 1015, 67 A.L.R. 1324, Judge Short gives this rule as a guide for determining the sufficiency of the evidence to sustain the finding of a lost deed: "The true rule would seem to be that if, from all of the facts and circumstances introduced in evidence, it is more reasonably probable that the claim made that a deed was executed, than that it was not, then a jury trying the case, or judge without the jury, would be warranted in presuming in favor of the claimed existence of the deed, and find accordingly."
This statement is likewise made in that opinion: "In order to raise the issue of the presumption of a grant of the land, the evidence must tend to establish, not only that the person to whom the presumed grant isalleged to have been made asserted title thereto, but that the owner of the alleged previous title had knowledge of and acquiesced in the claim so made. Baldwin v. Goldfrank, 88 Tex. [249], 257, 31 S.W. 1064; Magee v. Paul, 110 Tex. 470, 221 S.W. 254." (Italics ours.)
The evidence is scant at least that tends to show that R. E. Rowell ever asserted title to the land west of the road. R. E. Rowell was the alleged grantee in the alleged deed.
The charge suggested by the opinion to be upon the weight of the evidence is here repeated: "In connection with this issue, you are instructed that you may consider any facts or circumstances in evidence before you which, in your judgment, you deem to be worthy of consideration or weight to show that such deed was executed and has been lost."
It will be noted that the jury were instructed they might consider evidence to show that such deed was executed. It was not phrased to show "whether or not such deed was executed." In a way it assumes there was such a deed. There may have been certain cogent circumstances to show that such deed was executed and delivered to R. E. Rowell. Certainly there were many cogent and relative facts and circumstances in evidence to show that it was not so executed. *Page 157