Wm. F. Olive v. W. C. Bevil et al., 55 Tex. 423

Watts, J. Com. App. At the time of the trial the appellees filed the affidavit of Bevil, as to the loss of the transfer from Goodwin to Dunbar of the seven hundred acre interest in the certificate. It is insisted that the affidavit was not sufficient to authorize the introduction of parol evidence of the existence, contents and loss of that instrument, and that the court erred in admitting such evidence over the objections of appellant. The statute referred to in the argument has respect solely to the introduction of copies of recorded instruments without the necessity of proving their execution. Pasch.

Dig., art. 3716. But when it is proposed to prove the existence, loss and contents of a written instrument by oral evidence, the practice has been either to aver the loss in the pleadings or to.file an affidavit to that effect; and while this is the proper practice, we know of no rule of law that imperatively requires it to be done. The affidavit of Bevil sufficiently states the loss of the instrument, the search for it, and that the defendants cannot procure the same.

We are of the opinion that the court did not err in admitting the evidence objected to, and especially so in view of the fact that the only bearing that evidence could have upon the issues as tried, was that it tended to show that Wm. Dunbar was claiming the land at the time he settled upon it. Counsel for appellant claim that at the death of William Dunbar in December, 1855, the running of the statute in favor of the appellees, then in possession, was suspended, and so remained until the qualification of Dunbar’s administrator, near six months after the date of his death.

Whether this is true or not is immaterial, as the record clearly shows that, excluding the time from the death of Dunbar to the qualification of his administrator, still full ten years elapsed while the statute was in operation, and the bar is shown to be complete. Appellant insists that the third clause of art. 4621, Pasch.

Dig., which is as follows: “ The death of one dying possessed of such estate without right shall not be such descent to the heir of the decedent as to bar entry of the person entitled at the time of the descent, unless such decedent shall have had five years’ peaceable possession,” has a controlling influence upon the defense of limitation asserted by the appellees. The point made is this: that Dunbar had not occupied the land for five years at his death, and hence appellees, as his heirs, could not tack their possession to his, so as to complete the bar of ten years. In the case of Horton v.

Crawford, 10 Tex., 382, it is in effect held, that

article 4621 does not qualify, influence or affect the operation of

article 4624, and that ten years’ adverse possession, taken and held under the circumstances mentioned in the latter article, would constitute an effectual bar, without reference to the provisions of

article 4621. In this connection it is also contended that there was no privity shown between the possession of Win. Dunbar, deceased, and the subsequent possession of the appellees. In other words, Dunbar’s possession did not vest in him such right as would, at his death, pass by descent to his heirs, and thus make a continuous holding or possession for the time necessary to effect the bar. In Cochran v. Paris, 18 Tex., 857, it was said: “The land must be used and cultivated; but whether this be done by Riley or his tenants or agent, those holding under him, is immaterial.

His possession, whether held by himself or others under him, gave him a right which he could convey, or which would pass by descent to his heirs, or which might be disposed of by his administrator. ” The verdict of the jury is supported by the evidence, and as there is no error in the record requiring a reversal of the case, we are of the opinion that the judgment ought to be affirmed. Affirmed. [Opinion delivered October 18, 1881.]