The opinion
On Motion of Appellants Dunn, Fee, Jackson, and Stewart for Rehearing.
[7-9] In overruling assignments in which appellants Dunn and Fee, Jackson, and Stewart complained of the action of the trial court in excluding the judgment of the Marion county justice court as evidence, we said:
“It does not appear from the bill of exceptions made the basis of the assignments presenting the contention, or otherwise from parts of the record we are authorized to consider, that said appellants offered to prove that the land was sold under the judgment in question. Unless the land was lawfully sold under the judgment, said appellants’ rights could not have been prejudiced by the refusal of the court to admit the judgment as evidence.”
In the motions it is earnestly insisted that it did appear from the record that the land was so sold, and as supporting their contention said appellants quote from the statement of facts as follows:
“It is hereby agreed by the parties that the defendants Fee, Jackson, and Stewart acquired and now hold all of the light, title, interest, and estate in and to the Wm. Walker survey that was acquired by G. Hargrove by virtue of the sheriff’s deed dated June 7, 1881, above copied.”
The same quotation was made in the opinion, except that the words “above copied” were omitted — because as a matter of [fact the deed referred to, or a statement of its contents or any of same, was not in the statement of facts.
As further supporting their contention, said appellants, in their motions, as they did in their briefs, call attention to the fact that a deed dated June 7, 1881, purporting to have been made by the sheriff of Titus county and to convey the land to Gulie Hargrove as the purchaser at a sale thereof made by virtue of an execution issued on a judgment of said justice court rendered “in favor of W. S. Harris against J. P. Russell, R. B. Epperson, executors of B. H. Epperson, de-. ceased, and A. U. Wright on the 20th day of March, 1880,” was copied in a bill of exceptions in the transcript taken by said appellants to the action of the trial court in sustaining objections to said deed and exclud1-ing it when it was offered as evidence.
No error having been assigned to the action of the court in excluding the deed, we were, and are, of opinion the bill of exceptions referred to should not have been made a part of the record and was not entitled to be considered as a part of same. Mattfield v. Huntington, 17 Tex. Giv. App. 716, 43 S. *844 W. 55 . If, however, we were wrong in so concluding, and if the bill of exceptions should have been treated as a part of the record, the ruling made by us would not, for that reason, have been different; for said appellants would have been in the attitude, because of their failure to assign error on the action of the trial court in excluding the deed, of acquiescing in the ruling made by that court and of having waived any right they had to complain of it. Rule 24 for the government of Courts of Civil Appeals ( 142 S. W. xii ). The situ'atioii which then would have confronted this court would have been this: That it appeared that the trial court, for reasons said appellants conceded to be sufficient, had excluded the deed as evidence. In other words, appellants would have been in the attitude of conceding that they had neither proved nor offered to prove that the land had been lawfully sold under the judgment. In this condition of the record, under the rule (62a) declaring that “no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case,” this court- would have been without authority to reverse the judgment for the error of the court in excluding the justice’s judgment; for it is plain if the land was not lawfully sold under the judgment the error in excluding it not only was not calculated to cause, but could not have caused, the rendition of an improper judgment in the case. Viewing the case from this standpoint, of course the recital in the statement of facts, quoted above and in the opinion, that Eee, Jackson, and Stewart had acquired the title of G-. Hargrove by virtue of the sheriff’s deed, was entitled to no weight; for, if the title Hargrove had acquired was only such as an admittedly (as we must reL gard it) insufficient sheriff’s deed passed, he had acquired none at all.
[10-13] With reference to the contention of. appellant Dunn that it appeared that plaintiffs were not entitled to recover anything of Eee, Jackson, and Stewart as rentals, and therefore that Eee, Jackson, and Stewart were not entitled to recover anything of him as interest on the money they paid him for the land, this statement was made in the opinion:
“It further appears from the statement of facts that it was agreed between the parties that 40 acres of the land had been cleared (when, not stated); that 30 acres of it, lying north and west of the slough, were in cultivation; and that 6 acres south of the slough were in cultivation.”
In his motion appellant Dunn insists that the agreement had reference “to the condition of the land after it was improved by Fee, Jackson, and Stewart,” and renews his contention that it appeared that Eee, Jackson, and Stewart were not liable to plaintiffs for rents, because it appeared that the land was without rental value except for improvements placed thereon by said Eee, Jackson, and Stewart. We have reached the conclusion, after further examination of the record, that both contentions should be sustained. A fairer construction than that given the agreement in the opinion we now think is that it referred to clearings made on the land by Fee, Jackson, and Stewart after they purchased it. It appeared from the testimony of the witness Crawford, which it seems was not contradicted by any other testimony in the record, that none of the land was cultivated until after Fee, Jackson, and Stewart purchased and improved it. And it appeared that the only use made of it or which could have been made of it, prior to that time without improving it, was the use Moore made in pasturing stock on it, and that he, after fencing it for that purpose, removed the fence he had erected when said Eee, Jackson, and Stewart purchased it. In other words, it was not shown that the land had any rental value except that given it by improvements placed on it by Moore and by Eee, Jackson, and Stewart. Therefore we think it did not appear that plaintiffs were entitled to recover anything of Fee, Jackson, and Stewart- for use of the land. Benson v. Cahill, 37 S. W. 1088 ; CahUl v. Benson, 19 Tex. Civ. App. 30 , 46 'S. W. 889. As they were not so entitled, and as it appeared .that Eee, Jackson, and Stewart took possession of the land when they purchased it, and thereafterwards continued in possession thereof, we think they were not entitled to recover of Dunn interest on the money they paid him. Brown v. Hearon, 66 Tex. 63 , 17 S. W. 395 ; Huff v. Reilly, 26 Tex. Civ. App. 101 , 64 S. W. 387 . As the error in the judgment in this respect can be corrected here, the cause will not be remanded, but the judgment of this court will be set aside, the judgment of the trial court will be so reformed as to allow Fee, Jackson, and Stewart a recovery against Dunn of only the amount of the money paid by them for the land, to wit, $6,381, and interest thereon from the date of the entry of the judgment of the court below, and as so reformed said judgment of the court below will be affirmed. The motion of appellant Dunn so far as it is for other relief will be overruled, as will the motion of the appellants: Eee, Jackson, and Stewart.