Ortiz v. de Benavides

Citations

• 61 Tex. 60
• 1884 Tex. LEXIS 47

Syllabus

<p>1. Aliens. — An alien claiming by inheritance through a Mexican citizen, who died in 1816, may maintain an action for the recovery of land thus inherited.</p> <p>2. Limitation — Pleading.— To the defense of limitation there was no replication, but evidence of the plaintiffs’ coverture was introduced, the original petition alleging that “ the plaintiffs were all femes covert, and were married while minors.” Held:</p> <p>(1) That if such language had been used in a replication it would not have been sufficient to authorize the evidence.</p> <p>(3) To have authorized its introduction the replication should have set up that plaintiffs were married prior to the hostile possession; for, if they were minors, then the statute would run from the dates of their respective marriages. If their marriages occurred after the hostile possession commenced, they could not tack disabilities and thus avoid limitation.</p> <p>3. Wills — Adoption — Evidence.— Under the laws in force in the Mexican states in 1813, an “ open will” was required to be executed before a public escribano or notary and three witnesses, inhabitants of the place. If the testator was blind, five witnesses were required; if there was no escribano, five witnesses of the place were requisite, unless they could not be had, in which event the will could be executed before three inhabitants of the place. In a suit brought against parties who had been in possession and paying taxes since 1883, the defendants offered parol evidence of the former existence of a will, executed before a notary, with two witnesses, in 1813, which was in the proper archives, but had been lost or destroyed, and which devised the land in 1813 to defendants’ ancestor. Held:</p> <p>(1) That after so great a lapse of time, in favor of a claim so continuously asserted with possession, all such facts will be presumed to have existed as would legalize the act of the notary and two witnesses, if, as matter of law, they could attest a will.</p> <p>(3