Harrison v. McMurray

Citations

• 71 Tex. 122
• 8 S.W. 612
• 1888 Tex. LEXIS 1112

Syllabus

<p>1. Void—Voidable Judgment.—After the death of the plaintiff in an action of trespass to try title and before his heirs or legal representatives were made parties the suit was dismissed, held that such order was voidable against his heirs, etc., upon a motion or proceeding to reinstate the case within a reasonable time after such dismissal.</p> <p>3. Case Limited.—Armstrong v. Nixon, 16 Texas, 610, limited so far as the opinion declares such order void. Other eases on the subject followed. (Weaver v. Shaw, 5 Texas, 386; Milam County v. Robertson; Griddings v. Steele, 38 Texas, 756, and Taylor v. Snow, 47 Texas, 464.)</p> <p>3. Limitation—Former Suit.—Such suit not having been prosecuted to judgment did not suspend the statutes of limitations when pleaded in another suit by the heirs.</p> <p>4. Presumption op Duty.—A duly acknowledged deed was delivered to the county clerk for record with the fee to pay for recording it. Soon thereafter the court house, with the records, including the land records and the deed, were destroyed. Upon these facts it is presumed the clerk did his duty and that the deed was duly recorded.</p> <p>5. Limitation op Five Years.—Quiere, whether the registry of a deed as basis for defense of limitation of five years can be proved by circumstantial evidence, the record and deed being destroyed; the defense of' ten years adverse possession rendering the issue immaterial.</p> <p>6. Power to Sell—Ancient Instrument.—A power to sell land may be presumed from great lapse of time with circumstances supporting it, in analogy with the presumption of the execution of ancient instruments from lapse of time.</p> <p>7. Cases Followed.—Watrous v. McGrew, 16 Texas, 513, followed; Texas cases collected upon the subject.</p> <p>8. Ratification of Sale of Land.—Renick & Cassidy recovered lands in Texas for Harrison, who lived in Kentucky. They had a power to sell, for cash and to retain half the money realized. They sold on credit, taking vendor’s lien notes,