The action of the trial court in refusing the special charge No. 2 requested by appellant must be treated as approved of by him, because of his failure to except thereto as required by the statute. Article 2061, Vernon's Statutes. Therefore the first assignment is overruled.
Without reference to whether the note sued upon was negotiable or not and we think it was not, and without reference to whether, if it was, she was a bona fide holder thereof or not, and we think she was not within the meaning of the law, appellee, as the lawful holder thereof, was entitled to recover thereon as sought by her, unless it was subject to defenses appellant would have been entitled to urge against it had it remained in the hands of Novich. It was not disputed in the evidence that the sale by Novich to Harrell was by the acre, and that the two tracts together contained only 155.47 acres. Appellant alleged that Novich in the sale to Harrell represented that the two tracts contained 168 acres, and that the price agreed *Page 349 upon between Novich and Harrell was $83.33 1/3 per acre. He further alleged that the two tracts together contained 12.53 acres less than 168 acres, and that he therefore was entitled to have the value of 12.53 acres at $83.33 1/3 per acre set off against the sum appellee would have been entitled to recover had there been 168 acres of the land. At the request of appellee, the court instructed the jury that the burden was on appellant to prove by a preponderance of the evidence that the price agreed upon between Novich and Harrell was $83.33 1/3 per acre, as he alleged it to be. We think it was not error to so instruct the jury, and therefore overrule the second assignment.
Appellant requested the court to charge the jury as follows:
"You are instructed that the undisputed evidence shows that the 3 1/3-acre tract of land out of the A. Pratt survey was embraced in the deed from Mose Novich to Harrell and from Harrell to defendant Orand, and further shows that the said 3 1/3-acre tract of land was never in possession of either the said Mose Novich or of the said Harrell or said Orand, and that it has been for more than ten years in the adverse possession of other parties, and as to the said 3 1/3 acres of land there is a failure of title, and by reason thereof the said defendant Orand is entitled in any event to an abatement of the note sued on to the extent of the value of said 3 1/3-acre tract of land at the rate of $83.33 per acre, amounting to the total sum of $277.67, together with the further sum of $76.30, bearing 6 per cent. interest from August 17, 1910, to date, and you are instructed to find in favor of said defendant on account of said 3 1/3 acres in the sum of $353.97, which is to be credited on or deducted from amount due plaintiff."
The complaint in the third assignment is based on the refusal of the court to so instruct the jury. The assignment is overruled. It did not appear from the evidence as a matter of law that the 3 1/3 acres had been "for more than ten years in the adverse possession of other parties" than Novich and his grantors, and that the title of Novich thereto had failed. The witness Preston testified, without contradiction, that the 3 1/3 acres of the Pratt survey and the 155.47 acres of the Ross survey were separated by a road. The only testimony we have found in the record which can be said to have tended in tile least to show that the 3 1/3 acres was ever "in the adverse possession of," or claimed by, other parties than Novich and his vendors, was the following: (1) The witness Preston testified that in 1906 the 3 1/3 acres "was in Mrs. White's inclosure." He did not know how long it had been there. (2) The witness Henderson testified that "Mrs. White occupied that land that is across the road there and up to the creek." What land he had reference to does not appear from his testimony. Nor did he say when Mrs. White occupied the land he referred to, nor how long. It is plain, we think, that it did not conclusively appear from this testimony that the statute of limitations had operated to divest Novich of title to the 3 1/3 t acre tract at the time he conveyed same to Harrell.
The fourth assignment presents substantially the same question as the one presented by the assignment last disposed of. It will not be considered, because the ruling of the court complained of, to wit, the overruling of appellant's motion to enter judgment alowing him the set-off he claimed on account of the failure, as he alleged, of Novich's title to the 3 1/3-acre tract, was not complained of in the motion for a trial as required by rule 24 for the government of this court (142 S.W. xii).
The judgment is affirmed.