Newsom v. Davis , 20 Tex. 419 ( 1857 )

Wheeler, J.

The objection taken by the plaintiffs, to the admission in evidence of the bond for title; that is, that it does not describe the land claimed by the plaintiffs, clearly is not tenable. It describes the land sold, and contracted to be conveyed, by the name of the grantee, and of the plaintiffs’ ancestor as assignee, the quantity of land, and the county in which it is situated, so as certainly to identify it as the land described in the patent under which the plaintiffs claim. The mere fact that in the bond, it is spoken of as being “ on the west side,” and in the patent as situated “ south of the Guadalupe river,” is not a sufficient discrepancy to cast doubt upon the identity of the land, when the description is so complete and certain in other more important particulars. There cannot be a doubt as to the identity of the land sued for and claimed by the defendant under his bond for title.

Nor is the objection to the testimony of the witness Roberts tenable. The plaintiffs had received notice, both by the answer and the notice served upon their attorney, to produce the deed to the lot in Washington. It having been made and delivered to their ancestor, the presumption is that it was in their possession or within their control, and that they had it in their power to produce it. Their failure to do so, after notice, entitled the defendant to prove its contents by parol. (Hamilton v. Price, 15 Tex. R. 382.) That the evidence fully established, that a good and sufficient consideration did pass from the defendant to the plaintiffs’ ancestor, at the time of making the bond, cannot admit of question. The stipulation that the defendant should pay to the Republic of Texas, the taxes due upon the land, cannot be deemed now material, or to impose on the defendant any additional burden of proof. The plaintiffs can have no interest to be affected by the stipulation j and as there is no evidence that the land has been sold for taxes and the defendant is in possession, the presumption is that the taxes were paid.

The defendant being in possession under a contract to convey, and having paid the consideration, is the equitable owner of the land. His is superior to the legal title remaining in his vendor; and there being no possession adverse to his right, the statute of limitations does not run against it. (Vardeman v. Lawson, 17 Tex. R. 10.)

There is no error in the judgment, and it is affirmed.

Judgment affirmed.