Cass v. Green ( 1921 )

KEY,, G. J.

Appellants have presented to this court a motion, complaining of our last ruling concerning the testimony of the witnesses, Elbert I-Iood and Otto Zavasch, and contending that the testimony referred to concerning a transaction between the two above-named witnesses, in regard to the possession of the property in controversy, in the absence of Mrs. Cass or her husband, under whom she claims, was hearsay and not admissible.

[1, 2] Mrs. Cass offered testimony tending to show that she and her husband had leased their property to the Milam County Lumber Company, and at the time of the transaction between Elbert Hood and Otto Zavasch, the latter was manager of the lumber company. There was evidence tending to show possession of the property in controversy by Dr. Cass prior to the conversation or agreement between Elbert I-Iood and Otto Zavasch. But it was not conclusively shown that Dr. Cass had possession of all the property in controversy prior to that time; and therefore we hold that the testimony was admissible, hut agree with appellants that it was proper for the trial court to instruct the jury as to the purposes for which it might be considered. If Dr. Oass was already in possession of the entire strip of land in controversy prior to that time, then the agreement between 1-Iood and the lumber company would not be binding upon him. But, if he did not have such prior possession, and possession was secured by a contract between Hood and the lumber company, acting by Zavasch, then such possession would not avail in support of Mrs. Cass’ plea of limitation, because it would not be adverse possession.

These observations will sufficiently indicate to the trial court the view we entertain as to how the questiou under consideration should be dealt with, upon another trial.