Reports of cases argued and decided in the Supreme Court of the State of Texas, during the Galveston session, 1867, with an appendix containing the cases of the Galveston session, 1861, etc. Volume 29. Page: 27
ix, 626 p. ; 22 cm.View a full description of this book.
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1867.] PLUMMER V. POWER. 16
he relied, which was only a few weeks before the commencement
of the original suit. It is evident, therefore,
that no defense could have been interposed to his recovery,
under the statute of limitation, if the imperfect title
under which the other parties claim the land could be
made available for this purpose, except upon a different
state of facts from that shown in the present record. To
have entitled them to urge such a defense, the date of the
location or survey upon which the patent was founded
must have been shown. It is therefore unnecessary for
us to consider whether, under other circumstances, the
imperfect title under which the plaintiffs in this suit entered
upon the land might have been admissible, in connection
with the proof of the possession set up by them,
to have sustained a defense to the original suit under the
14th or 17th sections of the act of limitation of 1841, or
the 39th section of the act of December 20, 1836, to
organize inferior courts, if it is still in force.
And although the contrary doctrine was intimated in
some of the earlier decisions of the court, it is now conclusively
established, that the instruction given the jury
in the district court, that the plaintiffs were entitled to a
verdict if they had shown "ten years' peaceable and exclusive
[16] adverse possession before," prior to the commencement
of the original suit, in which judgment had
been taken against them, cannot be sustained upon the
doctrine of presumed grants. This question was very
fully considered and ably discussed by Mr. Justice Bell,
in the cases of Watkins v. Taylor (26 Tex. 688), and
Yancey v. Norris (27 Tex. 40), decided at the Tyler term
of this court, 1863, and though the facts, certainly in the
latter case, were much more favorable than here presented,
the court held them insufficient to raise the presumption,
or to cure a defect in a title similar to that in
the title under which these parties claim to have entered
upon and held the land here in controversy. Since that
time the same question has several times been before the
court, and the opinions in said cases have been uniformly
27
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas, during the Galveston session, 1867, with an appendix containing the cases of the Galveston session, 1861, etc. Volume 29., book, 1882; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28544/m1/25/: accessed May 3, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .