213 F. 779 | 5th Cir. | 1914
“The case should not have been withdrawn from the jury unless the conclusion followed, as matter of law, that no recovery could be had upon any view which could be properly taken of the facts the evidence tended to es*781 tablish. Dunlap v. Northeastern Railroad, 130 U. S. 649; 652 [9 Sup. Ct. 647, 32 L. Ed. 1058]; Kane v. Northern Central Railway, 128 U. S. 91 [9 Sup. Ct. 16, 32 L. Ed. 339]; Jones v. East Tennessee, Virginia & Georgia Railroad, 128 U. S. 443 [9 Sup. Ct. 118, 32 L. Ed. 478].”
Applying the foregoing rule to the present suit, it seems to us that the case should have gone to the jury upon the facts. After the defendants in error had established a prima facie case, by showing that they stood in the attitude of purchasers, through mesne conveyances from the heirs of W. H. Chambers, the plaintiffs in error introduced evidence tending to show: (1) That their ancestor, Dr. Joseph Taylor, was agent and locator of lands for himself and others; (2) that he owned several tracts of land in Newton county; (3) that Dr. Taylor employed the county surveyor of Newton county to locate the scrip in question, and that it was located on the land in controversy between September, 1874, and January, 1875; (4) that Dr. Taylor claimed to own the scrip at the time of its location; (5) that the patent was issued in 1885, and, when this suit was. instituted, it was in the possession of the Sloans; (6) that taxes were paid on the land by the Sloans for a number of years; (7) that there was correspondence between Dr. Taylor and others, and after his death in 1881, between the Sloans and others, tending to show that Dr. Taylor claimed to own the land; (8) that by common repute in the neighborhood where the land is situated, although the evidence on this point is conflicting, the land was regarded as belonging to the Taylor heirs; and (9) that the heirs of Chambers, nonresidents of Texas, asserted no claim of ownership by payment of taxes or otherwise until they executed a power of attorney to McFarland in 18&6, which was not recorded until 1899, about the time the Chambers heirs,' by their agent, McFarland, conveyed to W. S. Herndon November 18, 1899.
In view of the foregoing and the lapse of time intervening between the location of the Toby scrip and the institution of the present suit, we are of the opinion that the cause, under proper instructions, should have been submitted to the jury.
For the error of the court in giving the peremptory instruction complained of, the judgment is reversed, and the cause remanded for a new trial.