On Motion for Rehearing. Appellants have assigned in their motion for a rehearing many reasons why our judgment affirming the case should be set aside and the cause reversed and remanded. We shall discuss but a few of them.
It is first complained that the judgment from which they appealed was not a final judgment. They have joined appellee in a statement filed herein, that the matter upon which the complaint was based was an oversight, and that the judgment was final.
It is insisted that we erred in holding that the trial court did not err in refusing to submit to the jury the question of 5 years' limitation. We held that said question was not raised by the evidence, because the suit having been filed September 27, 1917, it was necessary for appellants to show that the taxes had been paid for 1912. The witness W. P. H. McFaddin, a member of and general manager of the McFaddin, Wiess Kyle Land Company, the interested party, testified:
"In 1911, I rendered 662.39 acres. * * * I rendered it for the McFaddin, Wiess Kyle Land Company. * * * In 1912, I rendered 640 acres. * * * In 1911, 662.39 acres. * * * I rendered less land in 1912 than I rendered in 1911. * * * I never sold any at all."
This testimony shows that appellants did not increase their tax rendition on the Johnson for the year 1912, so as to include the land in controversy, but to the contrary, as they did not sell any of their land on the Johnson, it shows without dispute that they actually rendered less than they did in 1911. So, according to their own testimony, the land rendered for the year 1912 did not include the Sam Lee Gray tract, and the issue was not raised as to the payment of taxes on same for 1912.
Appellants, in their written argument urging their motion for a rehearing, say that, by mistake or lack of knowledge on the part of McFaddin, they rendered more land in 1911 than they actually owned on the Johnson, and that, when the actual acreage in the several tracts on the Johnson owned by them is considered, the land in controversy would be included in the 1912 rendition, and should be so considered. We think this argument carries its own refutation on its face. It appears that, if McFaddin did not know in *Page 87 1911what appellants owned on the Johnson, and that he rendered 662.39 acres when it was actually less, he had not discovered the mistake, if it was such, when he rendered the land in 1912. As none of their land on the Johnson had been sold, and 662.39 acres rendered for 1911, and the mistake, if it was such, not having been discovered, if he had intended to have included the land in controversy for 1912, he would have added it to the 662.39 acres rendered in 1911, and, as he admits that the 1912 rendition was less than that of 1911, and none of the land had been sold, we think it clear that appellants did not increase their tax rendition on the Johnson so as to include the land in controversy. However, this was not the theory on which the case was tried in the court below, and no assignment based on any such contention was brought forward in their brief or urged on original submission.
Appellants insist that we erred in overruling their eleventh assignment of error, to the effect that the judgment awarded to appellee 11.28, acres of land described in appellee's petition, but not included in the deed from Sam Lee Gray to appellants, which was owned by appellants independent of the common source of title to the land in controversy. We think that our disposition of this question, in view of the state of the record and of appellants brief, was correct, for the reasons stated in our opinion on original bearing; but appellee, in his answer to appellants' motion for rehearing, admits that the judgment wrongfully awards him the 11.28 acres, and asks that the judgment be reformed so as to exclude same therefrom. Because of said admission, the judgment heretofore rendered herein will be reformed, and said 11.28 acres of land, described as follows:
"A part of the J. S. Johnson one quarter league of land, Jefferson county. Texas, abstract 34, bounded thus: Beginning at the northwest corner of the said J. S. Johnson one quarter league and running thence south along the west line thereof 3325 vrs. to a point where an iron stake is found; thence east 960 vrs. to a point and post for corner on the edge of the marsh, which is the beginning corner of the tract here described; thence north 70 1/4 degrees west 78 vrs. to corner for southwest corner this tract; thence north 827 44/100 vrs. to the river; thence east with the meanders of said river to the west line of the land described in deed from Sam Lee Gray to H. Lawson Gray of date June 23, 1911, recorded in volume 123, page 614, of the Deed Records of Jefferson County, Texas; thence south to the point of beginning, containing 11.28 acres,"
— will be and are excluded from said judgment and awarded to appellants.
Appellants present other grounds for rehearing, and same have been fully considered, but, as none of them in our opinion show error, they are overruled.
Because of appellee's admission of error above noted relative to the 11.28 acres of land, the judgment is here reformed so as to exclude same from the recovery awarded appellee, and the same is awarded to appellants, together with the costs of this appeal. In all other respects the motion for rehearing is overruled.