ed by the charge refused was sufficiently covered by instructions the court gave, this assignment is overruled.

[6] The fifth assignment, in which appellants complain of the action of the court in refusing to give to the jury their special charge No. 4, with reference to a ratification (as claimed) by Solomon Adams of the act of his wife Frances in conveying the land to John E. Adams, also is overruled. We do not think the testimony made a question as to estoppel against Solomon Adams and those claiming under him.

[7] Over appellants' objection thereto ón the ground that same was "incompetent, immaterial, and irrelevant," the court permitted appellees to prove by the witness C. C. Adams, whose title they had, that the land in controversy was not occupied by any one until 1881, and to prove that he (witness) and other parties thereafterwards lived on and cultivated portions of it. Appellees justify the action of the court on the ground that the testimony was admissible, in support of their plea setting up title in themselves, under the statute of limitations. But we think their contention cannot be sustained, and that the court erred in admitting the testimony, in view of the agreement on the part of appellees that appellants held "whatever title to the land in controversy that John E. Adams had at the time of the death of John E. Adams," which, it was further agreed, occurred August 5, 1870. In the face of this agreement, appellees did not have a right to show title in themselves by force of the statute of limitations, based on occupancy, etc., of the land subsequent to the date of the death of said John E. Adams. Therefore the sixth and seventh assignments are sustained.

[8, 9] As noted in the statement above, appellees were permitted to prove by the witness C. C. Adams, a son of Solomon Adams by Matilda Adams, his third wife, that, at some time not stated, he heard his father and Vicey Adams, his first wife, declare, with reference to their separation, that "they fell out, and that he (Solomon) taken the girl (Frances Schafer) and left the country and left her." Appellants objected to this testimony and to testimony of the witness Upton to the same general effect, on various grounds, and assign as error the action of the court in admitting same. Without inquiry as to whether other objections urged to it were tenable or not, we think the testimony was inadmissible because hearsay, and not within rules rendering such testimony competent. The only purpose for which there could be even the pretense of a reason for admitting it was to prove the existence of an illicit relationship between Solomon Adams and Frances Schafer in 1824 or 1825. In view of the fact that the record is silent as to what relationship, if any, existed between Solomon and Frances from 1824 or 1825, when they went from Tennessee to Alabama, until De

1. MASTER AND SERVANT (§ 103*)-MASTER'S LIABILITY-SERVANT'S KNOWLEDGE OF DE

FECT-TOOLS AND APPLIANCES.

Where plaintiff, a foreman's helper in a chines adjusted and repaired, knew that a jam planing mill, with the duty of keeping the manut was defective and a wrench slipped from it, in consequence of which he was injured, defendant's liability could not have been predicated on the defect in the nut.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. § 103.*] 2. MASTER AND SERVANT (§ 233*)-MASTER'S LIABILITY-TOOLS AND APPLIANCES.

Where a master furnished a servant wrenches free from defects and reasonably safe for use the servant, instead of using one of them, chose in repairing machines in a planing mill, and and used a defective wrench, the master discharged his duty to use reasonable care to provide a reasonably safe wrench.

Servant, Cent. Dig. §§ 681, 684-686, 701-742; [Ed. Note.-For other cases, see Master and Dec. Dig. § 233.*]

3. MASTER AND SERVANT (8 217*)-MASTER'S LIABILITY-ASSUMPTION OF RISK.

A servant who knew and appreciated the danger involved in the use of a wrench so defective as to slip, while he was endeavoring to loosen a nut, yet who chose such a wrench when he might have chosen one without defect and which would not have slipped, assumed the risk of injury from the defect.

Servant, Cent. Dig. §§ 574-600; Dec. Dig. § [Ed. Note.-For other cases, see Master and 217.*]

Appeal from District Court, Nacogdoches County; Jno. I. Perkins, Judge.

Action by J. A. Pruitt against Frost-JohnSon Lumber Company of Texas. Judgment for defendant, and plaintiff appeals. Affirmed.

King & King, of Nacogdoches, for appellant. Blount & Strong, of Nacogdoches, for appellee.

WILLSON, C. J. Lee Johnson had charge of the operation of appellee's planing mill near Nacogdoches. Appellant was Johnson's "helper." In his petition appellant alleged it was his duty, as such helper, to assist Johnson in the work of keeping the several planing machines adjusted and repaired. January 24, 1912, while appellant was at

tempting, with a wrench, to adjust one of said machines, as a result of a failure of the wrench to hold on a jam nut it became necessary to turn, apppellant's right hand and a portion of his right forearm were thrown against knives revolving in the machine, and he was injured. In his petition he alleged as negligence on the part of appellee, which entitled him to the damages he sought to recover, (1) that the wrench "was old and worn and out of adjustment by wear and tear, so that it would not fit tightly around said nut, the mouth of said wrench being so worn as to become too wide to hold closely upon said nut when placed thereupon, and so worn that when the plaintiff attempted to use the same upon the nut the wrench refused to catch or hold the nut and slipped from around the same, which said defect in said wrench was unknown to him, but was known to defendant or its foreman (said Johnson), or could have been known to them by the exercise of proper care in the examination and inspection of said wrench, which said duty the plaintiff charges the defendant had negligently refused to perform"; and (2) that the jam nut had "become corroded, worn, and covered with resin, so as to make it difficult for the wrench furnished to hold upon said nut, and said condition permitted the wrench in its worn and defective state, when placed upon said nut for the purpose of moving the same, thereby to slip from off said nut, thereby throwing his hand into said machine

as aforesaid, which said fact was unknown to this plaintiff, but which said fact was known to the defendant, or could have been known in the exercise of the duty of examination and inspection imposed upon it by law, which said examination and inspection this plaintiff charges the defendant carelessly and negligently failed to perform."

The court below, after hearing the testimony, told the jury same did not warrant a verdict in appellant's favor, and instructed them to find for appellee. The jury so found. The appeal is from a judgment in accordance with their finding. The complaint here is that the court erred in peremptorily instructing the jury as stated.

At the time he was injured appellant was 46 years old. He had worked in planing mills during more than 20 years of his life, and during the 4 or 5 years immediately pre ceding the time when he was injured had worked in appellee's mill as "helper" to the foreman in charge thereof. It was a part of appellant's duty to adjust the machines, and if he found a jam nut in a bad condition to put in a new one, and if he found a wrench to be in a bad condition to either have it repaired or make a report as to its condition to the foreman. He had frequently adjusted the machine in question. The jam nut was defective in that, as appellant testified, it was "worn on the end." Appellant knew it was so worn before he attempted to turn it on the occasion when he was injured. The

wrench is described in the record as “a 34 wrench, an open set wrench at both ends." The defect in it, appellant testified, was that it "was spread at the mouth-it was spread about 1/16 of an inch or a little better." It was one of several wrenches furnished by appellee for use in turning the nut. Appellant knew that some of the wrenches were defective and that others of them were not defective. "I knew," he testified, "that there were wrenches there that were in bad shape and wrenches that were in good shape." He made no examination before using the wrench to see if it was one of the defective ones or not. "When," he testified, "I went down to that machine and went to work and found this wrench on the machine, I went immediately to using it.' I never made any examination of it. I made no examination of it at all." Both the wrench and the nut were exhibited to the court and jury, and, it seems, admitted in evidence, though they were not sent to this court. Lee Johnson, the foreman, testified that the wrench "if properly put on the jam nut will not slip off." This was not denied by appellant. He testified that he "could not get a good hold on the nut" because of its being close to the wall of the machine, and he did not know what kind of a hold he had on it when the wrench slipped. Appellant knew the danger he incurred in attempting as he did to turn the nut while the machine was in operation. "Those knives," he said, referring to the ones with which his hand and arm came in contact when the knives are in the open where you can see wrench slipped, "are revolving knives. them when the hood is off. The jam nut and set screw are about 6 inches, I guess, from those knives. In putting the wrench on the jam nut to loosen it, if you would turn it, your hand would go in towards the knives. My hand on the wrench to turn the jam nut would be approximately 8 or 10, inches from the knives. On that day when I pushed the wrench, I was pushing my hand directly towards the knives.”

The

We think the testimony referred to suggests sufficient reasons why the judgment should not be disturbed.

[1] Negligence on the part of appellee, of which appellant had a right to complain, could not have been predicated on the defect in the jam nut, because, as he testified, he knew it was defective, and because, as he further testified, it was his duty, knowing it was defective, to replace the nut with a new one. Therefore negligence, if there was any on appellee's part, must have been predicated on the defect in the wrench.

[2] It conclusively appeared that appellee had furnished appellant wrenches free of defects and reasonably safe for use in doing the work he was engaged in doing, and that appellant, instead of using one of them, chose and used the one in question. It would

seem that appellee, having furnished such wrenches, had discharged the duty it owed to appellant to use reasonable care to provide for his use in turning the jam nut a wrench reasonably safe for the purpose, and that, if it violated a duty it owed to him, it was one he did not rely upon as a ground for the recovery sought-that is, either to separate and remove the defective wrenches from those not defective, or to instruct him how to distinguish between them. Had negligence in this respect been alleged, a sufficient answer to the charge, perhaps, would have appeared in testimony showing the wrenches to have been simple tools, with the use of which appellant was entirely familiar, and defects in which he should have discovered.

[3] There is another view to be taken of the testimony, which, it seems to us, justified the course pursued by the court, and that is that it conclusively appeared that appellant was in the attitude of having assumed the risk he incurred in using the defective wrench. He knew and fully appreciated the danger involved in the use of a wrench so defective as to slip while he was. endeavoring to loosen the nut, yet he chose such a wrench when he might have chosen one without defects which would not have so slipped.

We think the court did not err as claimed. Therefore the judgment is affirmed.

GRISWOLD et al. v. COMER et al. (Court of Civil Appeals of Texas. Galveston. Oct. 24, 1913. On Motion for Rehearing Nov. 13, 1913.)

1. ADVERSE POSSESSION (§ 79*)-COLOR OF TITLE-SUFFICIENCY OF DEED.

A tax deed which correctly described a tract of land by metes and bounds and which further identified it by reference to the correct abstract number was not insufficient as a basis for prescription under the five-years statute because it referred to the survey thereof as in the name of S., whereas the patent was issued to the heirs of S.'s assignee, and incorrectly referred to the certificate number; especially where it did not appear that the survey was not marked on the county map as the S. survey.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 459-462; Dec. Dig. § 79.*]

2. ADVERSE POSSESSION (§ 95*)-SUFFICIENCY OF EVIDENCE-PAYMENT OF TAXES.

Where in trespass to try title it did not appear that no other evidence was introduced to show the payment of taxes, the evidence was not insufficient to show such payment merely because the tax receipts, which otherwise correctly described the land, gave a wrong certificate number, as the payment of taxes could have been shown by circumstances.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. 88 530-532; Dec. Dig. 8 95.*]

3. ADVERSE POSSESSION (§ 79*)-COLOR OF TITLE-SUFFICIENCY OF DEED.

TOR.

Where certain land of a decedent was partitioned among his heirs by the probate court, that set apart to one of the heirs ceased to be the property of the estate, the administrator ceased to have any control thereover, and was not bound to pay the taxes thereon, or do anything to protect the rights of the heir, even though the administration had not been closed; and hence he could purchase the property at a tax sale thereof.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 621-628; Dec. Dig. § 152.*]

6. ADVERSE POSSESSION (§ 31*) - CONCEALMENT OF POSSESSION.

Where a tax sale was publicly made, the tax deed promptly recorded, and the heirs of the holder of the deed thereafter partitioned his land, the failure of one of the heirs to record the partition deed or to put leases thereof session on record, did not show fraud or a conby her under which her lessees took actual poscealment of her claim of ownership.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 128-133; Dec. Dig. § 31.*]

7. ADVERSE POSSESSION (§ 79*)—COLOR OF TITLE-SUFFICIENCY OF DEED.

For a tax deed to be sufficient as a basis for prescription under the five-years statute, all the prerequisites of the law need not be complied with in making the tax sale.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. 88 459-462; Dec. Dig. 8 79.*]

8. ADVERSE POSSESSION (§ 22*)—SUFFICIENCY OF POSSESSION.

A person who fenced land and used it continuously, exclusively, peaceably, and notoriously for a pasture for live stock had sufficient possession thereof within the five-years stat

ute..

On Motion for Rehearing. 9. ADVERSE POSSESSION (§ 80*)-Color of TITLE-SUFFICIENCY OF DEED.

Under the five-years statute of limitations, which requires the adverse possession relied upon to give title to be under a deed duly registered, the deed must describe the land with sufficient certainty to identify it.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 463-467; Dec. Dig. § 80.*]

10. DEEDS (§ 111*)-DESCRIPTION OF PROPERTY-REPUGNANCY.

Where by the rejection of a false and impossible part of a description which is repugnant to the general intention of a deed a perfect description will remain, the false part should be rejected and effect given to the deed. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 309-315, 334, 335; Dec. Dig. § 111.*] Appeal from District Court, Chambers County; L. B. Hightower, Judge.

Trespass to try title by D. E. Griswold and others against Mrs. C. C. Comer and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

R. J. McMurrey, of Anahuac, and Marshall & Harrison, of Liberty, for appellants. W. R. Anderson, of Carthage, and E. B. Pickett, Jr., and Stevens & Stevens, all of Liberty, for appellees.

REESE, J. This is an action of trespass to try title, instituted by D. E. Griswold and others against Mrs. C. C. Comer, the Old River Rice & Irrigation Company, J. T. Bayliss, Joseph Raper, and Oscar J. Petty, to recover a certain 320 acres of land, the east half of a section patented to the heirs of Elias Griswold. The plaintiffs also claimed damages by way of rents for two years preceding the institution of the suit.

Old River Rice & Irrigation Company answered by general denial, and alleged that it had cultivated the land, for the term during which rents were claimed, through its tenants. Other defendants adopted this as their answer, except C. C. Comer, who pleaded not guilty and the statute of limitation of five and ten years. Mrs. Comer claimed the title. The other defendants were her tenants. The case was tried without a jury, resulting in a judgment for defendants on Mrs. Comer's limitation plea of five years. From the judgment, plaintiffs appeal. The court prepared and filed conclusions of fact and law. The findings of fact are supported by the evidence and are adopted by us. They are as follows:

"I find that the land described in plaintiffs' petition was patented to the heirs of Elias Griswold on the 17th day of January, 1862. I further find that S. A. Miller was administrator of the estate of Elias Griswold, and that as such administrator, on the day of September, 1874, in the district court of Houston county, Tex., where said administration was pending, a partition was had of all the property and lands of said estate,

save and except a claim of 640 acres of land situated in Madison county, Tex., known as the A. Boatwright survey.

"I find that said court, at the time of said partition in September, 1874, retained jurisdiction of said estate in order to litigate a claim to said Boatwright survey, and that the remainder of the estate, including the land in controversy, was partitioned as aforesaid by said court in September, 1874, and that said land in controversy was set aside to Ambrose Griswold, an heir and son of Elias Griswold, deceased, as his distributive share of said estate thus partitioned.

"I find that Ambrose Griswold died about the 6th day of December, 1906, and that the plaintiffs are lawful heirs. I further find that neither Ambrose Griswold nor his said heirs have ever resided in Texas, but have always resided in the states of Missouri and Illinois. I further find that during the year 1877, S. A. Miller, administrator of said estate, filed his application for final discharge, and that in 1876, acting under an order of the court having jurisdiction of said estate, the said S. A. Miller, as administrator, sold the A. Boatwright survey of land situated in Madison county, Tex.

"I further find that all of the probate records and court records of Houston county have been destroyed by fire, save and except said decree of partition and said application by said administrator for final discharge.

"From the foregoing facts the presumption arises that the administration of said estate was closed and the administrator discharged prior to the 3d day of May, 1881. I further find that S. A. Miller, on the 3d day of May, 1881, purchased the land in controversy at tax sale, and that a deed properly describing the land was executed to him by the tax collector of Chambers county on the 3d day of May, 1881, which deed was duly recorded upon the deed records of Chambers county, Tex., the same year. I further find that none of the plaintiffs had any actual knowledge of said tax sale until shortly before the institution of this suit.

"I find that after the death of S. A. Miller, about the 17th day of August, 1897, the estate of S. A. Miller was partitioned among his several heirs by partition deed, and the land in controversy described by said tax deed was conveyed by the other heirs of S. A. Miller to one of his heirs, to wit, Amelia Miller, who is now the defendant Mrs. C. C. Comer, and that said deed was duly registered in Chambers county, Tex., on the 4th day of September, 1911.