The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1880-04-09
Galveston Term, 1880.

laeportcd for the Galveston News.
Vie. A. Blankenship, appellant, VI, A. A
Blankenship, OF al, appellces From Nc
Lehman county. Opinion by Richard s..
Walker Presiding Commission,r. |. The
exclusion of testimony offered by tho plant
1T In IN action of tresspass 10 try title, 10
prove that the defendant who claimed under
tho same common source with tho plaintiff
had actual notice Of the plaintiff title or
from an intermediate vendeo who acquired
whatever title no may have had from said
common source Of title, was not error; the
defendants title thus acquired was neither
weakened nor strengthened by such knowl.
edge or notice after tho rights Of his
vendor had vested the defendant succeeded
to them by the conveyance to him,
unaffected by such notice. such testi-
mony was irrelevant. 2. IL was agreed on
tho trial that tho plaintiff and defendant de-
rive title through John w Lapsley as a
common source, and that no question shall
DO made MS to the validity of tho grant to
Thomas do Ia Vega, or as to the mesne CON
veyunces from him 10 John w Lapsley;
there was no evidence offered showing that
any other person or persons were co-owners
with Lapsley; tho plaintiff offered testimony
TO prove that John w Lapsley had no power
or right to dispose of tho land in controversy
by deed without tho consent of its co owners,
or Mt their request, which testimony con-
sisted in written instrument signed by
Lapsley and certain other persons, who are
recognized In that paper rs co-workers
Will Innlau raanHlal N tho
county subsequent to the date of The
decree of the District court under
which tho vendor of tho defend
chase by the defendant; TO tho introduction of
which in evidence the defendant objected Ms
irrelevant, which objection was sustained and
the evidence excluded. Held, that 1t was
properly rejected, for the purpose for which
II was offered. 8. The rights of the defend
ant derived through the estate of David Blan-
onship, and acquired by said d. Blankenship
through tho acts or conveyances of Lapsley,
can not DO made to rest upon or be affected
by notice of latent rights of co-owners given
afterwards to the vendee of Blankenship's
administrator. Tho defendant, by bis pur-
chase at administrators sale, acquired the IT,
Ito which tho estate possessed, notwithstand-
ing declaration upon the records to the
effect stated in the bill of exceptions. L.
Where final decree was entered apparently
regular and by consent of all parties dispos-
ing of the matters in litigation, even though
the same might be In fact. void, and
subject TO DO sot aside and treated MS a
nulhty, and therefore authorizing the further
prosecution Of the suit, and twelve or fifteen
years had elapsed without any ilrther action
being taken by the plaintiff, showing an in
tention to prosecute his action, manifestly it
must be deemed that he has abandoned the
same and released the defendants in it from
any further attention to the suit See
johnson VS.. Ward, q Texas, 476; Flanagan
vs.. Smith, q Texas. 493 s The institu-
tons of an ordinary suit of trespass to try
title, by one tenant in common, which does
not indicate that the suit is brought by, or in
connection with, any other part owner, does
not stop the running of TIE statute of lmita-
tious, against Others than himself. Stovall
VS.. Carmichael, decided by the Supreme
court AT Galveston term 1880. Sec also Burle-
son vs.. Burleson, 2S Texas 9. The court re-
fused 10 give the following charge, asked by
the plaintiff, viz: That If the jury believe
from the evidence, that Thomas do la Vega
had transferred or sold his title to the land In
controversy, before the date of his deed to
Blankenshlp, and that if Blan enship knew
of that fact, ut the time of the execution of
Of their said deed, then the said deed will not
support the plea Of the three years limita-
ton. Held LIST. That the evidence before
the Jury did not warrant such an instruction,
even if the legal proposition contained in it
were correct, their being distinct proof that
Blankenship obtained his deed from de Ia
Vega in the year 1860. whilst there was no
evidence tending TO show whether Lapsley
acquired his interest from de Ia Vega before
or subsequent to that date. I'd. That the pro
position of law embraced in tho charge is
not correct. We are not prepared 10 adopt
or follow the doctrine laid down in Elliott vs.
Whitaker, 80 Tex, 4l2. Z. The correct doc
trine seems to to be that the vendee derives his
title from the vendor; but his title. though
derivatiye, is adverse to that of vendor. His
possession is adverse to all others, whatever
relation in point of interest or privity, he may
stand TO the others. [See Angel on Linn,
chap. 81, sec. %, and notes and authorities
cited Blight's lessees, vs.. Rochester, 7
Wheat, 6S6; Bradstreet Va. Huntington. s
Peters 440; Wilson vs.. Watkins, Peters 53. I
.. Held in Ewing vs. Burnett, IL Peters u.
s., X So: "That an adverse possession for
the time limited, under claim or color of
title merely void, isa bar TO a recovery under
an older title by deed, although the adverse
holder may have notice OF the deed" JUS
tice Baldwin In that case said: although
there was such notice off prior deed as would
make subsequent one imperative to pass
title. yet an adverse possession for the period
Of time prescribed as bar the statutory
protection being necessary only where the
defendant has no other title but possession,
during the period prescribed"
r. n. George, appellant, wy Wolston,
Wells q Vidor, appelees. From Galveston.
Opinion by Richard s. Walker, presiding
commissioner. l. The rule is that parel eyi.
dence to explain patent ambiguity is mad