Woodson v. Allen

54 Tex. 551 | Tex. | 1881

Moore, Chief Justice.

The first assignment of error is unworthy of serious consideration. The evidence offered by appellee was properly admissible, and in the absence of rebutting testimony warranted the verdict of the jury in her favor.

The second assignment, however, presents a question of more moment. Appellant relied for his defense, in addition to the plea of “not guilty,” upon the plea of the statute of hmitatións of five years, under a deed duly recorded. In support of this plea, after having proved all the other requisite facts as provided by the statute, he introduced and read in evidence a deed to himself for the land, duly executed and acknowledged by the grantor for record, with a certificate of the clerk indorsed thereon, showing that the deed had been duly recorded for more than five years before the commencement of the suit. But in rebuttal, appellee read in evidence a certified copy of the record of this deed, from which it appears that the deed was inaccurately copied by the clerk by whom it was recorded. The boundary, as given in that part of the deed not correctly recorded, is as follows, to wit: “ Thence east 1,344 varas with the north boundary line of T; G. Box’s survey to a corner; thence south 1,344 varas with the east line of said Box’s survey; thence west with said Box’s south boundary,” etc. In the record the first of these calls reads: “ Thence east 1,344 varas with the east boundary line of T. G. Box’s survey to corner.” Omitting the next call in the deed, and then proceeding as in the succeeding calls in the deed.

The burthen of proof is upon the defendant setting up ■ the defense of limitations, and to enable him to maintain his defense by reason of five years’ possession, he must show that he has been in possession for the required time under a deed or £ £ deeds duly registered. ” That is, the deed must be duly acknowledged or proven for record, and registered by the proper officer in the book kept for this purpose. But we are not of the opinion that the deed must be correctly copied in every particular, or otherwise defense cannot be made under it. The copy must be sufficiently accurate to enable persons examining the record to see what land is embraced in it, and that the record and deed áre for the same land. If it does this, we think it sufficient. Here this seems to be the case. The record shows upon its face that there has been a mistake in the copy of the deed. The calls in the boundaries as found in the record are self contradictory, and cannot be accurately or literally followed; but taken as a whole, ■ we think there is no difficulty in ascertaining the land designated and included in them; it is found that it is just the land called for by appellant’s deed, with the addition of the Box tract, not involved in this controversy, and which from the imperfect and erroneous boundaries given in the record, it is plainly inferable was intended not to be embraced in the deed.

In view of these considerations, we think the court erred in holding that the deed was not duly registered, within the meaning of the statute in question, and the judgment must therefore be reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered March 28, 1881.]