Thomas Cochrane v. Winburn's Ex'ors, 13 Tex. 143

Lipscomb, J. This suit was once before us, on the appeal of the present appellees; it was reversed and remanded for a new trial; and there was a verdict and judgment for the present appellees, from which an appeal has been taken by the appellant, who was the defendant in the Court below. We have examined the record, and do not find a single error prejudicial to the appellants, in the charges or ruling of the Court.

One of them in his favor, we will dispose of now, because it is renewed here, on the ground that it had been disregarded by the jury, and was therefore a ground on which a new trial ought to have been granted.

It is contended, that the exceptions filed in the Probate Court by the appellees, to the account rendered by the appellant for a settlement of the estate of Jeremiah Cochrane, his intestate, is an admission on their part, that the slave sued for was a part of the estate of the said intestate, and not the property of the testator, under whom the appellees claim to hold the property by a title given by the statute of limitation. Mrs.

Robinson, the executrix of her former husband Win-burn, is the sister of Jeremiah Cochrane, and one of his heirs, and for her, exceptions were filed to the whole account rendered by the appellant; and no specific objection to the item of hire for the slave claimed by her, was made, that could legally be an acknowledgment, that the slave was the property of the succession of Jeremiah, her brother, and the Court was not authorized to give the charge that was asked by the appellant as to the effect of these exceptions; nor did thsee exceptions afford, although before the jury, sufficient grounds for finding that they constituted evidence of an acknowledgment on her part that the property belonged to the estate of her brother.

The jury having given no weight or influence to these exceptions, is no ground for setting their verdict aside. The appellant contends that the Court below erred in refusing to give the last charge asked by him: that is, in effect, that if the property sued for by his executors were not in Win-burn, when he died, the plaintiffs cannot hold the said slave property by the statute of limitation. Had the Court given this charge, it would have been manifestly erroneous.

If he was in possession at his death, no matter how, and his executors inventoried and returned to Court the property as a part of his estate, then so claiming it would he from that time an adverse possession, and at that time the statute of limitation would commence running. It is precisely the same as if Win-burn was still living, and had at the same period, by a notorious and decided act, claimed the property in his own right.

Although he might have received the slave into his possession as bailee, his possession, from the time that the bailor had notice of such adverse possession, would be adverse, and the statute would commence running. We decided when this case was before us, that the adverse possession of the executors of Winburn commenced to run from the time of their return of the slave in the inventory, as a part of the property of their testator. There has been nothing shown in the record that could stop the operation of the statute.

It is contended that a new trial ought to have been granted, because the value of the slave sued for has been fixed by the verdict at a sum, eighty-five dollars higher than any witness swore she was worth. If this excess had been in an assessment of damages for the services of the slave during the detention, it would have been a good ground for setting the verdict aside, or requiring the plaintiff to accept the alternative of entering a remittitur for the excess; but nothing has been assessed for the services of the slave. The jury only fix the value of the slave, and the judgment is in the alternative.

If the defendant does not choose to pay the assessed value, because he believes it to be too high, he can relieve himself from it by a surrender of the slave. For this reason, the jury in fixing the value of the property sued for, will not be confined very strictly to the precise valuation. A high valuation, with a view of inducing a surrender of the specific property, is allowed, unless the record show's that it is not convenient, or not possible to surrender the property in discharge of the judgment.

In such cases the tendency of modern decisions has been, to limit the finding of the jury to the actual value of the

article sued for. The fairness of this rule commends it to our sanction. There is, however, nothing in the record in this case, from which it can be inferred that the defendant is unable to surrender the slave sued for, or even' inconvenient to do so, in discharge of the value fixed upon the property by the verdict. The judgment is therefore affirmed. Judgment affirmed.