Kemper v. Corporation of Victoria , 3 Tex. 159 ( 1848 )

Opinion of the court delivered by

Mr. Justice Lipscomb.

This suit was brought by the corporation of the town of Victoria to recover certain lots of land within the town tract. It was brought against A. M. Wigginton, who was in possession. On the application of Kemper, appellant’s intestate, as landlord of Wigginton, he was substituted as defendant, and set up title in himself. There are many points reserved by the different bills of exception taken in the progress of the trial. It will be found that most of them have been disposed of in the opinion of this court in a case between these parties tried in Jackson county, brought up by appeal. It will not be necessary to consider but one ground out of the many presented. After a verdict for the plaintiff in the court below, a new trial was asked on the ground of the verdict being contrary to evidence, and refused by the court.

It was in evidence that one Esparsa was found in the possession of the lot in question in 1832; that he continued to occupy it until 1836; cultivated the land, and built thereon a house; that he then left for a short time and returned again in 1837, and authorized an agent to sell the lot for him; that it was sold by the agent to Miller, under whom the appellant’s intestate claims. It appears that the possession of Esparsa was continued by Miller and Kemper down to the bringing of this suit, unless the temporary absence of Esparsa, in 1836, interrupted it. It was in proof that Esparsa was a colonist, and as such was entitled to a lot in the town proper, and to a labor, without its limits. It was also in proof that it was customary for those entitled to lots to select them, and it was the opinion of the witness that no other title was given. That Esparsa was the ferryman, and witness was of the opinion that the lot had been assigned to him because it was convenient to the ferry. There was no testimony tending to rebut the presump7 tion of title from the possession; in the absence of such explanatory evidence, it does seem that the presumption would be in favor of title in the possessor, the more especially when sustained by the evidence before recapitulated; this possession may have been contemporaneous with the laying out the town, because the witness says that he was in possession when witness went there in 1832; this suit was commenced in February, 1842. If Esparsa held possession for the corporation, if he was ferryman for the public' authorities of the town, and occupied the lot most convenient to the ferry, as such agent, these facts would have gone to the jury to rebut the evidence of title arising out of the possession; but in the absence of all such explanatory evidence, it would seem that the legitimate presumption is in favor of possession; and the jury having found against the defendant, their verdict was contrary to evidence, and ought to have been set aside. Judgment reversed, and cause remanded.