Bass v. Sevier

58 Tex. 567 | Tex. | 1883

Delany, J. Com. App.

The several assignments of error present but two questions for our consideration:

1st. Bid the court err in excluding from the jury the two powers of attorney from Flores and Manchaca to Yidauri and the chain of title down to appellants?

2d. Was there error in the overruling of appellants’ exceptions to the plea of former judgment ?

Both these questions, we think, must be answered in the affirmative. Counsel for appellees does not deny that these instruments were more than thirty years old when the case was tried, but he presents this view: that they must have been more than thirty years old when the suit was filed, or they cannot be properly called ancient instruments.

This view we cannot adopt. To do so would bring us into conflict with many of our leading cases upon this subject. In the case of Johnson v. Shaw, 41 Tex., 428, the missing power of attorney was supposed to have been executed in 1835. The suit was instituted in 1845. A similar state of facts will be found in many other cases in our books, to which we need not refer. This whole subject has been so much discussed in our courts of late, and is so well understood by the profession, as to relieve us of the necessity of further remark upon it in this opinion. We simply refer to a few of the more recent cases and the authorities cited in them. See Johnson v. Shaw, 41 Tex., 428, and same case under the style of Johnson v. Timmins, 50 Tex., 521. See also Veramendi v. Hutchins, 48 Tex., 531.

The plea of former judgment sets out that on a former occasion E. G. Sevier and wife, the parents of appellees, brought their suit against Thomas Holliday for the land now in controversy; that Holliday was in possession, and claiming as a tenant in common, under the same title now asserted by these plaintiffs; that Sevier and wife, in support of their title, relied upon the pleas of limitation and non-entry of ten and of twenty years; that upon these issues judgment was rendered for plaintiffs, which judgment was, on appeal, affirmed by the supreme court.

[Opinion, approved January 16, 1883.]

It is enough for us to decide the case as it is presented. Without, therefore, going into a general discussion of the titles by which tenants in common hold, we think that the statute of limitations might be perfectly available ,to Sevier and wife as against Holliday, and yet be wholly worthless as against these appellants. This question seems to be disposed of by the case of Stovall v. Carmichael, 52 Tex., 384.

Our conclusion is that the judgment should be reversed and the canse remanded.

Reversed and remanded.

Associate Justice Stattost did not sit in this case