Scott v. Rhea

• Decision Date: 31 December 1849
• Parties: SCOTT v. RHEA AND OTHERS.
• Court: Texas Supreme Court

5 Tex. 258

SCOTT

v.RHEA AND OTHERS.

Supreme Court of Texas.

December Term, 1849.

Where the headright certificate was issued to the wife in her own name after her husband's decease: Held, That no objection could be made by any one not claiming as heir, assignee, or creditor of the husband. Therefore where the defendant was permitted to prove--the plaintiff objecting--that the plaintiff, who was a widow claiming under a certificate in her own name, emigrated to the country with her husband, and it was not proved whether the husband had obtained a certificate or not, the judgment was reversed; the testimony being calculated, under the circumstances, to mislead.

Uninterrupted possession for five years under a headright and survey thereof gives a right by prescription against an elder title to the extent of the claim.

Where issue is joined generally in an action of trespass to try title, and the plaintiff proves the better title to any part of the land claimed by him, he is entitled to judgment for that part.

Appeal from Cass. The appellant brought suit to recover possession of a certain tract of land and damages for being ejected from the same. She claimed the premises in question by virtue of a location of her unconditional headright for six hundred and forty acres. The defendant Lane set up title in a codefendant by virtue of his headright and a location thereof prior to the location of the plaintiff. They defended the ouster of the plaintiff by a writ of possession that had issued on a judgment in favor of Lane against one Rose from the District Court of Bowie county. The plaintiff claimed a peaceable and unterrupted possession for more than five years before she was ejected under the location of her headright. The record did not show that the plaintiff was either a party or privy in the suit of Lane against Rose in Bowie county. It was shown by the evidence that Rose's headright was located alongside of the plaintiff's, and not conflicting with it. It was further shown that Lane's location did not cover the whole of the land claimed by the plaintiff. It appeared from the statement of facts that the plaintiff was in possession from 1840 until she was turned out in 1847. On the trial the defendants offered evidence to prove that the plaintiff was a married woman at the time she emigrated to the country; that she came with her husband, one Rembrant, who was shortly afterwards killed. This evidence was objected to by the plaintiff, but the objection was overruled and the testimony received. There was a verdict for the defendants. The plaintiff moved the court for a new trial, which motion was overruled, and the plaintiff appealed.

J. H. Rogers, for appellant, argued that it was error to admit the testimony as to the plaintiff being a married woman at the time of her emigration to the country, 1st, because there was no corresponding allegation in the pleadings; 2d, because if the fact was that she was married when she came to Texas it would not affect the validity of a certificate granted to her after she became a widow and the head of a family, provided her husband had not obtained a certificate as the head of the same family. The testimony was therefore not only irrelevant, but it was eminently calculated to mislead.

II. The verdict was against the law and the evidence. It was conclusively proved that the plaintiff had been in possession of the land for more than five years under her certificate...