Laird v. Winters

Decision Date01 January 1864
Citation27 Tex. 440
PartiesW. F. LAIRD v. JAMES WINTERS.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

Held, under the circumstances of this case, that a claimant of land who has been turned out of his possession by a writ issuing by virtue of a decree to which he was in no sense a party, can recover his possession by an action of forcible entry and detainer. Such person ought not to be driven to an action in which the title to the property may be called in question, nor even to a motion in the court from which the writ issued.

NOTE.--Wyatt v. Monroe, ante, 268.

APPEAL from Lavaca. Tried below before the Hon. Fielding Jones.

This was an action of forcible entry and detainer brought by the appellee, before a justice of the peace of Lavaca county, on the 9th of March, 1857, to recover from the appellant the possession of three hundred acres of land.

Judgment being rendered in the justice's court against the defendant, he removed the cause to the district court by certiorari, in his petition for which he alleged that, on the trial before the justice of the peace, he offered in evidence a transcript of a decree of the district court of Gonzales county, and a writ of possession issued therefrom, by virtue of which he, the defendant, having purchased the land under the decree, had been placed in its possession by the sheriff of Lavaca county; but that the justice of the peace had excluded the evidence so offered. The petition recited the decree, and alleged that Winters, the plaintiff, had no title to the land.

The decree was rendered at the fall term, 1856, of the district court of Gonzales county, in a suit for partition brought by G. F. and S. E. Henry against the heirs of Barney Randle, to which suit the plaintiff, Winters, was not in any way a party.

The plaintiff moved to dismiss the certiorari on account of the alleged insufficiency of the petition of defendant, and by way of answer to the petition, pleaded that he, the plaintiff, had held peaceable and adverse possession of the land for more than five years next previous to his ejection by the defendant, under a title bond executed to him on the 10th of May, 1852, by G. F. Henry and his wife, acknowledged in November, 1853, and recorded in Gonzales county (wherein the land formerly lay), in June, 1854. By this bond it appeared that the plaintiff had paid Henry and wife more than a third of the purchase money for the land.

This cause came to trial in the district court at the fall term, 1859, when it was proved that one Dismuke and a number of other persons, all tenants of Winters, were in possession of the land in controversy at the time, November 26, 1856, that Laird was placed in possession by the sheriff of Lavaca...

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5 cases
  • Richardson v. Reid, 4258.
    • United States
    • Court of Appeals of Texas
    • May 3, 1945
    ...awarded to Richardson and Nolan and their codefendants by the judgment in suit No. 3036 did not run against Copley; Laird v. Winters, 27 Tex. 440, 86 Am.Dec. 620; Jeffus v. Allen, 51 Tex. 195; Taylor v. Ward, Tex.Civ.App., 102 S.W. 465; Jolley v. Brown, Tex.Civ. App., 191 S.W. 177; and no m......
  • White House Lumber Co. v. Denny, 4273.
    • United States
    • Court of Appeals of Texas
    • October 8, 1934
    ...49 Tex. 444; Main v. Cartwright (Tex. Civ. App.) 200 S. W. 847; Lamar County v. Talley (Tex. Civ. App.) 127 S. W. 272; Laird v. Winters, 27 Tex. 440, 86 Am. Dec. 620; National Loan & Inv. Co. v. L. W. Pelphrey & Co. (Tex. Civ. App.) 39 S.W.(2d) 926. The case last cited contains the collatio......
  • Ivy v. Ivy
    • United States
    • Court of Appeals of Texas
    • June 19, 1908
  • Granberry v. Storey
    • United States
    • Court of Appeals of Texas
    • April 7, 1910
    ...McRae v. White, 42 S. W. 794; Merki v. Merki, 212 Ill. 121, 72 N. E. 9; Chisholm v. Weise, 5 Okl. 217, 47 Pac. 1087; Laird v. Winters, 27 Tex. 440, 86 Am. Dec. 620. The judgment is On Motion for Rehearing. The identity of the premises from which appellee was ejected with the premises descri......
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