Simonton v. Mayblum

59 Tex. 7, 1883 Tex. LEXIS 91

Opinion

West, Associate Justice.—

There was no error in allowing the deed of Simonton’s assignee in bankruptcy to be read in evidence. The pleadings of appellants recognize the fact of Simonton’s bankruptcy and the existence of this deed. Also in the statement of •facts it was expressly admitted the appellees claimed the land in suit by deed under Simonton’s assignee in bankruptcy.

This instrument of evidence, too, being a deed duly recorded, was admissible in this case (its execution being proved or admitted), in support of the appellees’ plea of the statute of limitation of five years, without showing power in the assignee to execute it. ■

For the same reason there was no material error in allowing the assignee of Simonton to testify as to the points on which he gave evidence.

These matters were already admitted» as facts, and his testimony worked no prejudice to the rights of appellants.

We think also that the defense of limitation of five years was sustained by the evidence.

It is no answer to this defense to say, where the land in suit is community property, that because it is a homestead the statute of limitation will not run.

The statute runs as well in favor of one who holds adverse possession of land that is claimed by the plaintiff to be a homestead for himself and wife, as it does where it is claimed to be a mill or a store or a farm.

The case of Whetstone v. Coffey, 48 Tex., 269, to which reference has been made, contains no contrary doctrine.

There was no question of limitation in that case. Besides, in this case there was no replication of coverture filed in answer to the plea of limitation.

Apart from the successful interposition by appellees of the plea of limitation, we believe that the court, under the evidence, was justified in finding as it did, as a matter of fact, that the appellants failed to prove any homestead right to the one hundred and forty acres in suit. See cases cited below. Methery v. Walker, 17 Tex. 593. Under the facts the court was well justified in holding as it did, that the appellees showed a right and title to the locus in quo, superior to the claim of appellants. Franklin v. Coffee, 18 Tex., 415; H. & G. N. R. R. Co. v. Winter, 44 Tex., 605; Brooks v. Chatham, 57 Tex., 33.

The judgment is affirmed.

Aeeiemed.

[Opinion delivered February 20, 1883.]