Winburn's Ex'Ors v. Cochran

• Decision Date: 01 January 1852
• Citation: 9 Tex. 123
• Parties: WINBURN'S EX'ORS v. COCHRAN.
• Court: Texas Supreme Court

9 Tex. 123

WINBURN'S EX'ORS

v.COCHRAN.

Supreme Court of Texas.

1852.

Where the executors of a bailee assume the absolute ownership of the property and perform acts inconsistent with the acknowledgment of the title of the bailor, the statute of limitations commences to run and bars an action by the bailor in two years.

The statute of limitations not only bars the remedy for the recovery of personal property but vests the right; so that if the former owner should casually obtain the possession, the subsequent claimant under the statute may recover it. Quere? As to real estate. (Note 30.)

Appeal from Washington.

J. E. Shepard, for appellants. There is a single question involved in the case: Will the statute of limitations vest the property? It is expressly so decided in Broh v. Jenkins, 2 La. Cond. R., 20.

“The statute is not only a bar to the remedy for personal property, but it takes away the legal right and vests it in the holder; so that, if the property comes to the hands of the former owner, the party may bring suit and recover it from him. Legal right and legal remedy are the same thing.” (5 Litt. R., 282; Starly v. Earl, 3 J. J. Marsh. R., 278, 368, 374; 3 Litt. R., 138; Litt. Sel. Cas., 439.)

That adverse possession of land gives title there can be no doubt. (Angell Lim., 396.) “An adverse possession, where it actually exists, may be set up against any title whatever, and to make out a title under the statute of limitations.” (Broadstreet v. Huntingdon, 5 Pet. R., 438, cited, with numerous other authorities, in note 1, p. 396, Angell on Limitations.

The reasoning is certainly much stronger why possession should give title to personal property.

The Supreme Court of Louisiana gives three methods of acquiring title to slaves: “by prescription, the owners consent, or a forced alienation.” (Dufour v. Comfranc, 2 La. Con., 245.)

Lewis & Barber, for appellee. I. The statute of limitations will not aid the appellants. They were plaintiffs and should have set out how they claimed.

II. Where the statute is relied on, there must be some allegation, either by exception, answer, or petition, to show that it is intended to be relied on, so that the defendant may reply to it.

III. The statute could not create a right, but an exemption from servitude of judicial process. (Angell Lim., 1, 2 and 5.)

The 17th section of our statute of limitation creates a title simply by possession; the others exempt the party from suit.

IV. The possession of the appellants was permissive, and could never ripen into a title. (Angell Lim., 401.)

LIPSCOMB, J.

The refusal of the court to grant a new trial is assigned for error. On looking into the statement of facts it will be seen that as to the mode in which the appellants acquired possession of the slave sued for there is little or no conflict in the testimony. It is in evidence she went into the possession of McHenry Winburn, the former husband and testator of Mrs. Robinson, before the year 1842, by a loan from the brother of Mrs. Robinson, Jeremiah Cochran; that she remained in the said possession of Winburn until some time in the year 1847, when the said Winburn died testate, making his wife (Lucy A.) and J. L. Hill his executors; that she was taken possession of by the executors shortly after the death of Winburn as a part of his property, and so continued down to about the 19th July, 1851, when she was clandestinely taken by the defendant, Thomas Cochran, in the night time. For the defence it was in evidence that Jeremiah Cochran died in 1843 or '44, and Thomas Cochran administered on his estate. And one witness swore that she, the slave, was sent to the administrator to be appraised. Whether the statute of limitations commenced running anterior to the time of the death of Winburn, need not be discussed, as there can be no doubt from the evidence that from that time the possession was adverse and the statute commenced running, and, fixing on that period for its commencement, it had completed the bar before the slave was captured by the defendant. The evidence...