Amanda Andrews v. W. T. Parker et al., 48 Tex. 94

Roberts, Chief Justice. This record presents a case in which nearly everything alleged, and nearly everything offered in evidence by the plaintiffs, in support of their cause of action and the rulings of the court and findings of the jury, in all parts of the trial, are objected to by the defendants and assigned as error, by which the whole ease is substantially removed from the District Court to be retried, on appeal, in the Supreme Court. But, as it would appear from the briefs of counsel, the main objections relied on are as follows, to wit: 1st.

The court erred in not suppressing the depositions of Mary Ann Coyle, because the clerk of the District Court certified that they were received by him from A. M. Baker, Jr., notary public, the officer who took them. This presents a case where the requirements of the statute have been complied with in substance, without doing that, which the terms of the statute presuppose would ordinarily be necessary to be done in taking depositions, which is,-that they would be transmitted from the officer taking them to the clerk, either by mail, or by some person who would take them and deliver them.

All of the provisions of the statute relating to their transmission are intended to secure their safe transmission, without alteration, from the hands of the officer who may take them, to the clerk of the court, whose duty it is to receive them; evidence of which, made by the intermediate persons through whose hands the package may pass, is required to be indorsed on the package in which they are sent.

But if the sealed package is passed directly from the officer taking them to the clerk, the object of the statute has been fully attained, without the use of the intermediate persons, which, in this case, is evidenced by the certificate of the clerk. It would certainly have been a useless thing for A. M. Baker, the officer, who may have taken the depositions in the clerk’s office, in the presence of the clerk, to have passed the sealed package containing them through the post-office in the mail at Carthage, to come back to the clerk in the court-house.

The law implicitly trusts the officer who takes the depositions and the officer (the clerk) who receives them; and requires no evidence that they have not altered them, as taken by the one and as received by the other. But when intermediate persons, who act, in reference to them, not in an official capacity, are used in the transmission of them, then it is that there must be evidence, as provided in the statute, that such intermediate persons have dealt fairly with them. 2d.

That the court erred in not sustaining the defendants’ exceptions and plea to the jurisdiction, in which it was claimed that the amendments to the petition had shown plaintiffs’ cause of action, as alleged, to be an unlawful detainer of the premises sued for in trespass, cognizable in a Justices’, but not in a District Court.

To this it may be answered, that the fact alleged by the plaintiffs, that the defendant entered into the possession of the land under their title as them tenant, which is, in effect, what was alleged, is a fact well pleaded in this action of trespass to try title, as against one who holds over against that title, without setting up title in herself superior to that under which she entered, which she has not done in this case. She has not connected herself with any superior outstanding title, and, therefore, what would be the rule in such case need not be considered. 3d.

That the court erred in charging upon the weight of evidence. The plaintiffs’ title, as alleged, consisted of a number of facts establishing a continued possession and claim, under a color of title, with defined boundaries, for ten years. The charge enumerated these various facts thus alleged, and instructed the jury to find for the plaintiffs, if they had been proved. Such a charge is not one upon the weight of the evidence. The same may be said in relation to the charge about the defendant having entered under the title of plaintiffs as their tenant. 4th.

That the verdict was not sustained by the evidence, because the evidence showed an outstanding title in Jackson, who had bought the certificate from Daniel Tuttle, Sr., during the coverture of Mrs. Tuttle, and before her suit for divorce and partition of the land by the suit, under whom, as her heirs, plaintiffs claim the land. To maintain plaintiffs’ right under the statute of limitations of ten years, by possession under color of title, with defined boundaries to their 'claim, it was not necessary that they or their ancestor, under whom they claim, should have had a better title than Jackson.

If that were so, the ten years’ possession would amount to nothing. The record of the suit of divorce and partition, though not so complete and definite as it should have been, may be held to have . been sufficient to found a claim to the land, to the extent of the boundaries specified in the partition, as against Daniel Tuttle, Sr., the grantee of the certificate, for whom the land was located and surveyed.

The land being no longer vacant, and subject to location by another certificate, and plaintiffs having entered under this claim, have held under it; and if Jackson, or some one claiming under him, never appeared to show that Daniel Tuttle, Sr., had parted with the title to the land before the partition, they might still hold as against all other persons, and especially as against one who, by their permission, entered into possession of the land under their title as their tenant.

The question as to' whether they have acquired, by their ten years’ possession under such claim, a right to the half league of land, superior to the title of Jackson, or to one claiming title under him, does not necessarily arise in this case, and need not be decided. There is some conflict in the evidence tending to establish the facts constituting the plaintiffs’ title as against the defendant; but we cannot say that there was a deficiency of evidence to warrant the jury in finding for the plaintiffs. The judgment is affirmed. Affirmed.