34 Tex. 111 | Tex. | 1871
The controversy in this case is about boundary lines.
The charge of the court to the jury instructing them that •the declarations of Thomas Gay, made to Horatio Chrisman, and that of Martin Lynch, testified to by Lockhart and Cabler, and
And the instruction that the declarations of a deceased person, who was in a position to possess the information and was not interested, are competent evidence on the question of boundary was a contradiction in terms to that part of the charge which peremptorally excluded so much of the evidence as came from the declarations of deceased persons; and whether it was intelligible to the court or not, we think it dealt too much in abstractions for the comprehension of the jury. Welder v. Hunt, decided at the present term of the court, is authority in this case; most of the authorities cited in appellant’s brief, are pertinent to the case.
The declarations of Gray, who in 1838 pointed out to Chi-is-man his corner trees and line, are admissible as a part of the res gestee. In Redding’s Lessee v. McCubbin, 1 Har. & McHen., 368, it was held that hearsay declarations of D. and his wife, made while they were in possession and after a dispute had arisen between them and the adverse claimants, were admissible, in evidence, in favor of one claiming under D. and wife, according to the very boundaries to which their previous declarations roíate.
The same principle is settled in Doe v. Arkwright, 5 Carr. & Payne, 575; Jackson v. Vanderburgh, 1 Johnson, 158; Bennett v. Heflington, 16, Serg. & Rawle; Smith v. Morrow, 7 Monroe, 234, 236.
In Martin v. Simpson, 4 McCord, 262, Wane, who had conveyed to defendant, had, while in possession, cut logs and asserted a claim to a certain line. Such assertions of right were received in favor of his own grantee. The declarations of James and Martin Lynch should have been received in evidence upon the numerous authorities cited in appellant’s brief, and it was error to withhold them from the jury. The judgment of the district court is therefore reversed, and the cause remanded, to be proceeded in in accordance with this opinion.
Reversed and remanded,
