Organ v. Maxwell , 1911 Tex. App. LEXIS 304 ( 1911 )

⁸²²⁴ Writ of error denied by Supreme Court. Appellant insists that it did not appear from the testimony offered that he and appellee were claiming the part of lot 3 in controversy from a common source, and that, as appellee failed to prove that the title asserted by him to said lot emanated from the state, the court erred in instructing the jury that the legal title was in appellee, and in refusing to instruct the jury to find for appellant. The contention would be sustained but for the fact that it appears from his (appellant's) special plea setting up an estoppel against appellee, and from the evidence heard, that appellant's claim of title to the part of lot 3 not eliminated from the controversy by his disclaimer was under appellee.

Notwithstanding a plea of not guilty by a defendant in such a suit, it seems that the plaintiff need not prove title in himself from the sovereignty of the soil, where by a special plea the defendant sets out the title he relies upon, and it appears from the allegations in his plea and from the evidence offered by him in support of it that the title asserted by him emanated from the plaintiff. Stegall v. Huff, 54 Tex. 197; Custard v. Musgrove, 47 Tex. 219; Wilson v. Palmer, 18 Tex. 595; Wardlow v. Harmon (Civ.App.) 45 S.W. 828. In such a case as said by the court in Stegall v. Huff, supra, the plaintiff is "not required to deraign title beyond himself as a common source."

The court instructed the jury that the burden was on appellant to show by a preponderance of the testimony the existence of facts and circumstances constituting the estoppel he relied upon to defeat the recovery sought by appellee. We do not think it was error to so instruct the jury. Ogden v. Bosse (Civ.App.) 23 S.W. 732.

We have considered consignments presenting other contentions made by appellant, and are of the opinion that none of them should be sustained.

The judgment is affirmed.