Mims v. Rafel

Gaines, Associate Justice.— This was a statutory action of trespass to try title brought by appellee against appellant. The pleas were not guilty, the statutes of limitations, and improvements in good faith. The judgment was for plaintiff for the land and in favor of defendant on his claim for improvements. Both parties assign errors. [303] The appellant, the defendant below, insists that the verdict is contrary to the evidence upon the defense of the statute of limitations. The plaintiff claimed under the will of her deceased husband, who claimed under a deed to him made by one G. S. Cook, attorney in fact of William M. Cook, in 1847. Neither the date of the husband’s death nor of the probate of his will is shown by the record. The defendant claimed under a deed from Wm. M. Cook to one Garey, dated April 7, 1864, and a conveyance from Garey to himself, made in 1885. Garey testified that a year or two after his purchase he found one Pate living upon the land; that he and Pate then agreed that the latter should remain in possession and hold the land for Garey; that Pate subsequently died, when his daughters came to the witness and asked permission to remain, which was granted. He did not know how long they remained. Three other witnesses testified as to the occupancy of the land by Pate. The testimony of all three of them was to the effect that he occupied the land continuously from about 1866 to the time of his death, and that he died in the latter part of the year 1878 or the early part of 1879. Two of them testified that after Pate’s death his son-in-law remained on the land until he had made two crops. The other testified that Berwick remained until he had made one or two crops. One of the three swore distinctly that Berwick left the land in the fall of 1880. It also appeared that Pate while he held possession declared that he was holding under Garey. It also appeared that Pate’s daughters having obtained permission of Garey to remain after their father’s death, it is to he presumed in the absence of some proof to the contrary that Berwick, the son-in-law, continued the possession in the right of his wife, and that his possession was the possession of Garey. The statute of limitations began to run March 30, 1870, and this evidence shows that Gareyh possession by his tenants continued for more than ten years, the longest period required by the statute in order to perfect his title. To rebut this testimony a witness was introduced who testified that he surveyed tne land in controversy July 5, 1881, and that then the house was abandoned and “rickety,” that the fence around the field had fallen down in many places and cattle roamed through it, and weeds and undergrowth had taken possession. “I can not tell how long the people had left the place, but from appearances should judge a year at least prior to July 5, 1881.” This evidence is quite consistent with that of Bankin, one of defendant’s witnesses before referred to, who testified that before Berwick abandoned the place “the house got rickety,” and that he lived in the smoke house. Under these circumstances the testimony of the surveyor does not cast a suspicion upon that of defendant’s witnesses as to the time that Berwick left the premises. There are no conclusions of law and fact found in the record, and we do not know upon [304] what ground the trial judge held the evidence insufficient to sustain the defense of the statute of limitations, but a careful examination of the statement of facts satisfies us that his conclusion in that particular is contrary to the evidence, and the judgment must therefore be reversed. There is no replication of coverture to the defendant’s plea of limitation, nor evidence of'that or other disability which would have suspended the operation of the statute. The other questions presented by the assignments and cross-assignments of error may not arise upon another trial and will not be considered. The judgment is reversed and the cause remanded. Reversed and remanded.. Delivered March 12, 1889.