Wallace v. Wilcox , 27 Tex. 60 ( 1863 )

Bell, J.

We are of opinion that there is no error in the judgment of the court below. Many questions are raised and elaborately argued by the counsel for the appellants, but the merits of the case really lie within a very narrow compass.

We think the court below did not err in treating the instrument executed by Jordan in favor of Jeremiah Strode, on the 4th day of February, A. D. 1835, as a bond for title, and not an absolute conveyance. The instrument in question is substantially the same as the one which was construed by this court in the case of tie-crest v. Jones, 21 Tex., 121. It showed that something remained to be done by Strode, and that a further assurance of title was contemplated by the parties.

But even if the court had erred in the construction of the instrument referred to, this case would necessarily be determined in favor of the appellees, upon the question of limitation. The record shows that the real defendants below, William Scott and Edmund Scott, had been in possession of the land in controversy, by their tenant, William Wilcox, for more than three years next before the institution of this suit, claiming the same under title from the government, and having paid the purchase money.

This court has decided that possession by a tenant will support the plea of the statute of limitations of three years.

We are of opinion that the court below did not err in admitting the declarations of the tenant Wilcox to go to the jury as evidence. The declarations were made when he first took possession of the land, and while he remained in possession. Such declara^ tions are in disparagement of the title of the declarant, and are admissible on that principle, and on the further principle that they qualify the possession of the declarant, though they be not in disparagement of his title, and are admissible as part of the res gestee.

The court did not err in admitting in evidence the copies of the deeds from Levi and Cynthia Jordan to Duren, and from Duren to Lacey. The affidavit offered to lay the foundation for the introduction of the copies, was a compliance with the statute.

The judgment of the court below is affirmed.

Judgment affirmed.

Moore, J., did not sit in this case.