Read v. Allen

Stayton, Associate Justice. There was no proof whatever offered to show that the paper once in the possession of the witness, and purporting to be a lease to Ligon, was executed by any of the persons who purported to be parties to it. The appellant must have known that neither that paper nor proof of its contents, if its loss was sufficiently shown, could be introduced without proof of its execution. He seems to have attempted to take the deposition of a witness to prove that fact, but he knew that the deposition of the witness had not been taken, and relied upon the presence of the witness at the trial. These things being true, the court did not err in refusing to continue the case on the ground of surprise to the appellant resulting from the fact that he was not permitted to prove the contents of the lease. He made no application for a continuance before the trial began, and to have granted it on the sole ground that during the trial, under a well settled rule, a part of the evidence which he proposed to introduce was excluded, would have been in violation of well recognized rules. The declarations of Ligón as to the character of his holding were admitted, and the appellant was not entitled to have it strengthened [158] by the admission of improper evidence; nor was be entitled to a charge as to the effect of his declarations. When such declarations were admitted, they were for the consideration of the jury, as were all other facts which the court permitted to go before the jury; and to have given the charge asked in regard to such declarations would have been calculated to give to them an importance to which they were not entitled, if not an infringement of the rule which forbids a judge to charge upon the weight of evidence. It is urged that the court erred in giving the following charge: “ Where one holding a deed to land described by metes and bounds leases a part of said land to a tenant by specific metes and bounds, then the possession of said tenant is only co-extensive with the bounds specified in the lease and not with the whole tract.” We understand this tobe a correct rule. Texas Land Co. v. Williams, 51 Tex., 61; Cunningham v. Frandtzen, 26 Tex., 34. We cannot perceive upon what ground a landlord, who, by a lease, has restricted the possession and- use of his tenant by metes and bounds to a part of a larger tract, can claim that his tenant’s possession under such a lease extends to that which, by the terms of the lease, the tenant has no right to possess. There was evidence from which the jury would have been authorized to find that Ligon’s lease was confined to the land afterwards conveyed to Wright, who was the vendee of Ligón. The deed from Cundiff to Dailey excepted four hundred acres for Ligón, three hundred and twenty acres for Stokes, and two hundred and forty acres for Little; and when Dailey conveyed to B. B. Bead he made the same exceptions to the operation of his deed, which was otherwise for the entire Welsh league. To these several tracts of land neither the appellant nor his vendor had any shadow of claim. The appellant, to recover as against the appellee under his plea of the ten years’ limitation, had to show some possession of the land in controversy, prior to January 28, 1861, by his vendors, and looking to all the evidence in the case we are not prepared to say that all the tenants on the land prior to that date were not restricted in their possession to certain parts of the league, none of which covered the land in controversy. The jury must have so found, and, as there was evidence to support their finding, their verdict must be considered conclusive of the question of fact, which was with great clearness submitted to them by the charge given. [159] The third charge asked, and refused by the court, was in substance contained in the charge of the court given, which presented the law applicable to the case in all its phases. It is urged that the court erred in giving at the request of the appellee the following charge: “The deed from Dailey to Bead, of date 1865, did not convey to Bead the four hundred acres therein named as belonging to John EL Ligón or held by him; and if prior to such deed Ligón was on the league holding under Cundiff and Dailey, or either of them, by the operation of the deed to Bead the remainder of the league was severed from the Ligón four hundred acres, and the possession thereafter by Ligón of such four hundred acres would not extend to the remainder of the league.” This charge was given with this qualification: “If it was set out by metes and bounds or otherwise so designated that its locality on the league could be definitely ascertained ; but, if it remained an undivided interest, without a definitely defined location, then said Ligón and Bead, after the execution of said deed, would be tenants in common, and the possession of one would mutually be the possession of the other so long as it remained undivided.” The charge as thus qualified was applicable to the facts, and as matter of law correct. The other assignments of error have, in effect, been disposed of in what has been said, and need not be further considered. There is no error in the judgment, and it is affirmed. Affirmed. [Opinion delivered January 27, 1885.]