Levi Presley v. Jane Ann Holmes, 33 Tex. 476

Walker, J. This is an action of trespass to try title, brought in the District Court of Shelby county by the appellee, together with Caroline P. Edgeworth. The latter abandoned the suit, and the action proceeded in the name of the appellee, and it is urged by the appellant that this was error for which we should reverse the judgment.

The law is too well settled by the elementary authorities, as well as in the adjudicated cases, to require much comment here, that one joint tenant or tenant in common may maintain either trespass or ejectment, in his own name, against a mere trespasser or wrongdoer. (4 Kent’s Com., 366 to 370; Croft v. Rains, 10 Texas, 523; Watrous v. McGrew, 16 Texas, 511; Grassmeyer v. Beeson, 18 Texas, 766 and 767.) Presley, if-the facts as found by the jury be true, was only a wrongdoer.

All the title he pretends to have is derived from Bailey, whose ■title was completely set aside by the district court in 1846, wherein the appellee in this- action recovered from him her father’s headright certificate and field notes, with damages; and also settled another fact pretty conclusively, which is again raised in ■this case, to-wit, the identity of the appellee as the child of Stephen Holmes. But it is insisted that the evidence in this case does not establish that fact. It is true, the evidence of old Mrs.

Applegate and of Truit is somewhat inconclusive, hut it is circumstantial, and the jury were left to deduce the facts of identity and heirship, which they did, and we think very correctly. We cannot see from the evidence that the title of Stephen Holmes ever passed out of him in his lifetime. Bailey’s pretended sale has been successfully impeached and set aside by the district court, in a judgment not' appealed, and rendered twenty-four years ago.

Then it„ descended to his children, or child, if any he had living at the time of his death; and the appellee has satisfied the jury that she is the child of Stephen Holmes, and that he was married to her mother, and the same evidence which satisfied the-jury satisfies us that such are the facts. There is no error on the part of the court which tried the case, and we think none on the part of the jury. We therefore affirm the judgment of the District Court, with costs to the appellee. Affirmed.