Conn v. Drew

BATTS, Circuit Judge. [1] Of the land in suit plaintiffs in error Conn and Wagner asserted title by limitation to a defined 160 acres, in which no other defendant claimed an interest. Proceedings in error with reference alone, to this 160 acres may be properly prosecuted by Conn and Wagner without severance from other defendants, without being joined by them, and without a reason assigned for failure to join. [2] The plaintiffs in error asserted title under the Texas statute of limitation of 10 years. They did not “enter under a claim of right, but with the avowed purpose of acquiring title by limitation.” The action of the trial judge in directing a verdict against them was in conformity with Stevens v. Pedregon, 106 Tex. 576, 173 S. W. 210, at that time containing the latest expression from the Supreme Court of Texas with reference to the statute. In the meantime the former construction has been restored (Houston Oil Co. v. Jones [Tex.] 198 S. W. 290), and it will be necessary to reverse the case, in order that the issue made by the pleadings of plaintiffs in error, and sustained by sufficient evidence to require submission to a jury, may be tried. The judgment is reversed.