SLOAN et al. v. HERNDON et al., 213 F. 779

MAXEY, District Judge. The question requiring consideration is whether the trial court erred in taking the case from the jury, and in giving a peremptory instruction in favor of the defendants in error. Upon this subject, the Supreme Court, in the case of Texas & Pacific Railway Co. v. Cox, 145 U. S. at page 606, 12 Sup. Ct. at page 909, 36 L. Ed. 829, has announced the following rule: “The case should not have been withdrawn from the jury unless the conclusion followed, as matter of law, that no recovery could be had upon any view which could be properly taken of the facts the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 establish.

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. We neither express nor intimate an opinion touching the facts, except to say there was sufficient evidence tending to warrant the presumption, which is one of fact, that Chambers had transferred, or might have transferred, the Toby scrip to Taylor prior to its location. See Fletcher v. Fuller, 120 U. S. 534, 7 Sup. Ct. 667, 30 L. Ed. 759; Le Blanc v. Jackson (Tex. Civ.

App.) 161 S. W. 60. If a transfer by Chambers had been made, whether orally or in writing, it would necessarily follow his heirs were without title to the land, and hence that W. S. Herndon took nothing as their vendee. To avoid possible misconception, it may be said that the question of innocent purchaser has not been considered by us in the decision of this case. 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.