26 Tex. 263 | Tex. | 1862
This suit was instituted in the District Court for McLennan county, by the appellee, John W. Berry, on the 2d ■day of June, A. D. 1856, to recover certain negro slaves from the possession of one Burwell J. Thompson.
Burwell J. Thompson filed his answer to the petition, claiming the slaves as his own property. He alleged in his answer that the slaves in controversy were the separate property of Milly Berry, (the mother of the plaintiff below,) in the State (then Territory) <of Arkansas, as early as the year 1830; that in the year 1831-,
On the same 19th of March, A. D. 1858, Burwell J. Thompson, the original defendant, filed an amended answer, in which he alleged that so much of his former answer as set up title in himself to the negroes in controversy, was filed by mistake,; that the negroes belonged to John II. Thompson, and that he held them as agent for the said John H. Thompson. The defendants in the court below relied upon the statute of limitations of this State, and upon the prescription growing out of twenty years possession in the State of Louisiana.
The plaintiff in the court below proved that he was the only child of John Berry and his wife Milly Berry; that the- negroes in controversy were the separate property of his father, John Berry; that his father, John Beiry, died sometime in the year 1833; that his mother, Milly, died in the year 1840. There was some diversity in the testimony as to the time of the birth of the plaintiff, John W. Berry; but the evidence seems to establish that he was born in the town of Nacogdoches, in the month of February, A. D. 1832, though the fact is not material to the present suit, in the view we take of the ease.
It was shown upon the trial that the plaintiff instituted his suit, in Sabine parish, in the State of Louisiana, in February, 1855, against John II. Thompson, for the recovery of the slaves in controversy ; that a writ of sequestration was issued and was returned by the sheriff without being served, the sheriff stating in his return that the negroes could not be found; and further, that the Louisiana suit was dismissed in November, 1856, for want of prosecution by the plaintiff.
Upon the trial the defendant, John H. Thompson, introduced in
The court below instructed the jury upon the point in question as follows: “ That the possession of the agent is the possession of the principal; and if the jury believe from the evidence that J. H. Thompson removed said negroes from the State of Louisiana, where he resided, to his agent, B. J. Thompson, in this State, and with a view to avoid their seizure under a writ of sequestration and defeat the suit which had been instituted in the State of Louisiana for the recovery of said negroes; and if the jury further believe that the period of five years after plaintiff’s majority had not barred his right of action and recovery in said State of Louisiana at the time of their removal as aforesaid to this State, then the court charges that this cause comes within the purview of the 4th section of the Act of 1852, and the plaintiff is entitled to maintain this suit for the recovery of said negroes, provided the evidence shows that it was instituted within twelve months after they were brought into this State and delivered into the hands of J. H. Thompson’s agent.”
The 4th section of the Act of 1852 is in the following words: “ No demand against any person who shall hereafter remove to this State, incurred prior to his removal, shall be barred by the statute of limitations of this State, until he shall have resided in this State for the space of twelve months; provided, that nothing in this section shall be construed to affect the 13th section of an Act of limitation, approved February 5th, 1841.” The 13th section of the Act of 1841, which is referred to in the section above quoted, provides that “no action shall be brought against any emigrant of the Republic to recover a claim which was barred <by the law of limitations of that country or State from which he emigrated,” &c. It was therefore proper that the court should qualify the instruction given to the jury by telling them that it must appear that the demand in question was not barred by the law of limitation of the State of Louisiana.
In the case of Snoddy v. Cage, 5th Tex., 106, this court decided, (the present chief justice dissenting,) that where a debt was
It was contended in the court below, and is urged here, that the appellee is estopped by the allegation in his petition that .the negroes came into the possession of Burwell J. Thompson on the 1st of March, A. D. 1855, from showing the contrary; and that this suit having been instituted on the 2d day of June, A. D.. 1856, is not within the saving of the 4th section of the Act of 1852. The allegation in the plaintiff's petition, that the negroes came into the possession, or were in the possession of Burwell J.. Thompson on the 1st of March, A. D. 1855, was a general allegation, which must be held to be controlled by the subsequent allegation contained in an amended petition, to the effect that the suit was instituted within twelve months after the removal of the negroes to this State. We think that the plaintiff below, under the pleadings, was entitled to prove, and did prove, that the
There are several points presented by the record, and argued by counsel, which we do not deem it necessary to discuss, inasmuch as we are of opinion that the real merits of the case lie within the compass to which this opinion is confined, and that there is no error in the judgment for which it ought to be reversed.
There has been filed in this court a release by the appellee of the estate of Burwell J. Thompson, except so far as the appellee recovered judgment against the said Burwell J. Thompson for hire of the negroes in controversy, and also a release of the estate of David Blankenship, and of Mortimer Donaho, and also other sureties. This release appears to have been brought into this court by the appellant, and we are not informed that the counsel for the appellee have notice of it. We are therefore inclined to affirm the judgment of the court below, leaving the parties claiming the benefit of the release to make it effectual hereafter.
The judgment of the court below is affirmed.
Judgment affirmed.
Moobe, J., did not sit in this ease.