Appeal from District Court, Bastrop County; Ed R. Sinks, Judge.
EIDSON, J.
The appellant, J. W. Shook, was impleaded on his warranty of title in the suit of Lavinia Powell et al. v. C. Laufer, trepass to try title, by the defendant, and judgment obtained against him. The case was tried in the court below upon an agreed statement of facts under the statute.
The agreed statement of facts and questions of law submitted to the court below for decision are as follows:
"(1) It is agreed that J. W. Shook and Abigail Shook did, on the 29th day of March, 1895, convey to Charles Laufer the lands described in the first original answer of Charles Laufer, Jr., and Louis and A. J. Eilers, filed in this cause June, 1901, for a consideration of $3,800, and the deed by which said land was conveyed contained the following covenant of warranty: `And we do hereby bind ourselves, our heirs, executors, and administrators to warrant and forever defend all and singular the said premises unto the said C. Laufer, Jr., his heirs and assigns, and against every person whomsoever lawfully claiming the same or any part thereof, except taxes now due on said land.'
"(2) It is agreed that upon the trial of the above-entitled and numbered cause, the plaintiffs in said cause recovered of and from said Laufer 145 1/5 acres of land embraced in said deed aforesaid, and the jury fixed the value of said land at $8 per acre, which was a reasonable valuation, and that judgment was rendered in favor of plaintiffs against Laufer for that amount of land, and said judgment has not been set aside or appealed from, but is still subsisting. Said judgment was rendered on June 18, 1903, and that the said Laufer, in order to perfect the title to that part of the land recovered by the plaintiffs, has paid the plaintiffs the sum of $8 per acre for the land recovered as aforesaid, as was provided for in said judgment.
"(3) Said Laufer has paid in the way of court costs $190 in said cause; such payment being made June 18, 1903.
"(4) Said Laufer has paid and agreed to pay as attorney's fees in the defense of said suit the sum of $250, which is a reasonable and moderate fee for said services, and said Laufer in his pleading during the pendency of said suit, called aforesaid J. W. Shook to appear and defend his title to said land; that process was issued to Llano county, consisting of citation and a certified copy of the answer of said Laufer to G. W. Shook, and said citation was handed to J. W. Shook, defendant herein, by the sheriff of Llano county.
"(5) Judgment was rendered against J. W. Shook in favor of Charles Laufer on trial of said cause on said June 18, 1903, by default, Shook not having been served with citation, except as shown above, and making no appearance, and said judgment upon writ of error, was reversed and remanded by the Court of Civil Appeals of the Third supreme judicial district on December 20, 1904 , said court holding that a citation to G. W. Shook and delivered to J. W. Shook was not sufficient to bring J. W. Shook into court.
"(6) No interest is claimed by said Laufer on any amount which he may be held entitled to recover against said Shook on his warranty prior to June 18, 1903, the date of the judgment aforesaid.
"(7) Said Shook in the prosecution of his writ of error aforesaid to the Court of Civil Appeals, Third supreme judicial district, paid to the clerk of the district court of Bastrop county on September 10, 1904, the sum of $24.80, which in any event is taxable against said Laufer.
"(8) Said Shook and Laufer sued those under whom they claimed held the 145 1/5 acres of land involved in this controversy under deeds describing said land by metes and bounds, duly registered, and occupied, used, cultivated, and enjoyed the same, openly and notoriously, and paid taxes thereon, and have had peaceable and adverse possession thereof for more than 10 years next before the filing of the above-entitled and numbered cause.
"(9) January 1, 1895, Mrs. Lavinia Powell was a married woman over the age of 21 years, and was married prior to the time of occupancy of said Shook and Laufer and those under whom they held and claimed, and she continued to be a married woman until after the time of the filing of the suit in the above-entitled and numbered cause, which was filed March 29, 1901.
"(10) Said 145 1/5 acres of land was the separate property of said Mrs. Lavinia Powell at and before the commencement of the occupancy and possession of said Shook and
Laufer, and those under whom they claimed, and it was her separate property at the time of filing of said suit, unless she was barred by the statute of limitation.
"(11) Said Laufer in his defense in said suit pleaded the three, five, and ten years statute of limitation, which pleas were not sustained.
"(12) The certificate of O. K. Shannon, Secretary of State of the state of Texas, hereto attached, states facts, and is made a part hereof."
The only questions of law to be submitted to the court are:
"First. Was the cause of action of the plaintiffs in this cause, Mrs. Lavinia Powell and others, barred by the statute of limitation at the time suit was brought?
"Second. Is said Laufer entitled to recover interest on the costs of court paid by him from the time of payment, if the court should hold him entitled to recover anything?
"Third. If the court should hold that said Laufer is entitled to recovery, is he entitled to recover attorneys' fees aforesaid?"
Subjoined to the above statement and questions is the following certificate of the Secretary of State:
"The State of Texas
"Department of State
"I, O. K. Shannon, Secretary of the state of Texas, do hereby certify that House Bill No. 25, entitled `An act to amend article 3201 of the Revised Statutes of Texas,' the same being chapter 30, of the acts of the Twenty-Fourth Legislature of said state now on file in this department, was passed by the House of Representatives on March 14, 1895, and signed by the Speaker on March 27, 1895, as is shown by the House Journal of the Twenty-Fourth Legislature now on file in this department.
"I further certify that said House Bill No. 25 passed the Senate March 26, 1895, and was signed by the president of the Senate on March 27, 1895, as is shown by the Senate Journal of the Twenty-Fourth Legislature now on file in this department.
"I further certify that said House Bill No. 25 was approved by the Governor on April 1, 1895, and was filed in this department on the same day, as is shown by the enrolled bill.
"In testimony whereof, I have hereunto signed by name officially, and caused to be impressed hereon the seal of state at my office in the city of Austin, Texas, this the 27th day of June, A. D. 1906.
"[Seal.] O. K. Shannon
"Secretary of State."
The following are the conclusions of law of the court below:
"This case has been submitted to me as an agreed case under the statute, in which agreement the following occurs: `The only questions of law to be submitted to the court are: (1) Was the cause of action of the plaintiffs in this cause, Mrs. Lavinia Powell and others, barred by the statute of limitation at the time suit was brought? (2) Is said Laufer entitled to recover interest on the costs of court paid by him from the time of payment, if the court holds him entitled to recover anything? (3) If the court should hold that said Laufer is entitled to a recovery, is he entitled to recover attorneys' fees aforesaid?'
"This suit was filed on March 29, 1901. The act of 1895 on limitations providing that limitations should not run against married women until they arrived at the age of 21 years, and providing that causes of action or rights under the old law as to married women should not be affected by the act for one year from the time of its passage, was approved by the Governor on April 1, 1895. The contention of Shook in this case is that the said act was signed by the Speaker of the House and the Lieutenant Governor on March 27, 1895, and that the wording of the statute that it should not operate as to causes of action in which married women were involved within one year from the date of its passage caused said act to take effect on the 27th day of March, 1895, and that therefore the suit was filed two days after the plaintiff, Lavinia Powell, was barred by the statute of five-year limitations. The contention of Laufer is that the time of passage was either the date on which the Governor approved the bill, April 1, 1895, or 90 days after the adjournment of the Legislature. If his contention is correct in either case, the cause of action was not barred by limitation at the time the suit was brought. I am rather inclined to the view that the 12 months mentioned in the act began from 90 days after the adjournment of the Legislature, but I am clearly of the opinion that the 12 months began to run from the 1st day of April, 1895, the date on which the Governor approved the bill, and not from the date on which the Speaker of the House and the Lieutenant Governor signed the bill. That being the case, there is no contention but that the plaintiff, Lavinia Powell, in this suit, was not barred by limitation, and that the judgment awarding the 145 1/5 acres of land to her as against Shook, was correct. The first question is therefore answered in the negative.
"As I construe the second question submitted to me for a decision, I am not called upon to decide whether Laufer could recover court costs paid out by him in said cause, but only to decide whether...
