Harnage v. Berry

• Decision Date: 01 January 1875
• Citation: 43 Tex. 567
• Parties: JOHN G. HARNAGE v. HENRY BERRY.
• Court: Texas Supreme Court

43 Tex. 567

JOHN G. HARNAGE

v.HENRY BERRY.

Supreme Court of Texas.

1875.

APPEAL from Rusk. Tried below before the Hon. M. D. Ector.

This is the second appeal in this case. (39 Tex., 638.) The facts sufficiently appear in the opinion.

A. G. Bagley, for appellant.

James H. Jones, for appellee.

IRELAND, ASSOCIATE JUSTICE.

This suit was brought by Berry to recover the west quarter of the “Rud” league of land in Rusk county.

All the parties claim title under the Rud grant. Plaintiff claims through Moss, and there is a deed from one Pearce, representing himself as attorney-in-fact for Moss, and there is a paper found in the record purporting to be a power of attorney from Moss to Pearce. It appears to have been copied from the County Court records in Arkansas, and that copy placed on record in Rusk county. The terms of this paper leave no room to doubt that its whole meaning and purport referred solely to the affairs of Moss in Arkansas, and a power to sell land in Texas is wholly wanting, and the instrument was so treated by the court below.

The plaintiff says in his petition that he owns the west fourth of the Rud league, and that Harnage and others own portions of the same league, but that he, plaintiff, does not know the metes and bounds of his west fourth, and cannot know it until there is a partition.

The plaintiffs amended, and plead limitation.

There were a number of defendants and intervenors. None appealed, however, except Harnage, Hart, and the executors of Jesse Mayfield.

The charge of the court and pleadings are very voluminous; but we believe that the case can and should be disposed of on one point.

The third clause in the finding of the jury is in these words:

“3d. We, the jury, find, by virtue of the statute of limitations, for the plaintiffs, as against the defendants, John G. Harnage and the executors of Jesse Mayfield.

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                ¦“(Signed)¦J. C. HICKEY, Foreman.  ”¦
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The plaintiff says that when he purchased, in 1857, there was a small patch-- about a quarter of an acre--under fence; rails looked like they were one or two years old. That he employed a man by the name of Stokes, who lived on another tract about a mile and three quarters, to look after the land and protect the timber; that Stokes was his tenant; that this little improvement was within fifty or one hundred yards from the road leading from Henderson to Nacogdoches. He did not know that Stokes cultivated or used the land after he let him have it. He (plaintiff) lived some fifteen miles from the land. That he was on the land in 1859 or 1860; saw the patch or fence; that there was nothing growing on it; looked like it had been cultivated that year. That he did not tell defendant he was claiming the land until he brought suit for it; said he had paid taxes on the land ever since he had purchased it. That the little patch on the land was a mile or a mile and a quarter from the west line of the Rud league, but did not know whether it was on this land or not.

Vansickle, for plaintiff, said he saw a small patch on the land in 1856 or 1857; looked like it had been sown down in small grain; that he was overseer of the road that went by the place from 1857, until he went to the war, in 1861 or 1862; that he worked on the...