Ballard v. Perry

<p>Appeal from Fannin. Tried below before Hon. D. H. Scott,</p> <p>On the-day of December, 1876, appellants filed a suit in the district court of Fannin county for recovery of an undivided interest in land in controversy.</p> <p>On September 6, 1880, Margaret Boone and her husband, J. W. Boone, Olive T. Wainscott and her husband, Thomas J. Wainscott, and Jacob H. Humphrey, filed their fifth amended petition in the district court of Fannin, county against Harvey B. Cobb, John Hulsey and many others, for their, appellants’, undivided interest in the Daniel Davis league and labor of land.</p> <p>In said petition appellants allege that in December, 1874, they were seized and possessed of said land in their own right as follows, respectively: Margaret Boone, of an undivided interest of one-half and said Olive T. Wainscott and Jacob H. Humphrey, each of an undivided interest of one-eighth in the said Daniel Davis league and labor of land. That on December -, 1874, the appellees expelled appellants therefrom. That there were many farms on said land and the appellees had used and cultivated the cleared land for their own use and appropriated all the rents and profits thereof since and for years before the commencement of this suit and withheld from appellants their share in same. That the rents and profits were of the value of twenty thousand dollars, and that appellants had been thereby damaged ten thousand dollars. That appellees cut down and used a large number of trees growing upon said land of the value of and to appellant’s damage ten thousand dollars.</p> <p>That appellants, Margaret and Daniel Davis, were married in Texas in 1834 and lived together as such and were reputed to be and were man and wife in Texas from that time until the death of Daniel Davis, which took place in 1838.</p> <p>That they were, both of them, residents of Texas at and before their marriage and continued to be so, the said Daniel Davis until his death, in 1838, and the said Margaret until th

<p>MOTION for a new trial.</p> <p>This was an action of ejectment for a lot of land in city of New-Iiaven. The suit was commenced on _ the 9th of November, 1808.</p> <p>The defend^1 pleaded the general issue; and on the trial, the case appeared to be as follows: Josiah Wood-house died seised of the premises m 1766; and on his death, the same descended to his only son Robert, who centered thereon, and died seised thereof in 1775; and on his death the same descended to Mary Woodhouse, his «nly child, who was born in December, 1774, and who intermarried with James Goldear in 1794, before she arrived at the age of twenty-one years. She remained a feme covert until her death, which happened in November, 1807, leaving her husband, James Goldear, living, and having had children by him, born alive, who died before their mother, and who could have inherited the premises, if they had been alive at the time of her decease. Goldear had never been in actual possession of the premises; but the defendant, more than twenty years before the commencement of this action, having purchased the premises for a valuable consideration, went immediately into possession of the same, and from that time down to the time of trial, held the same adversely to all others. Mary had never been in possession since her intermarriage with Goldear. Josiah Woodhouse left at his death no brother, nor any issue of a brother; and he never had but one sister, Elizabeth, who died before the commencement of this suit, leaving the plaintiffs her only heirs at law. It also appeared that there were nine other persons living in equal degree of kindred to Mary Goldear with the plaintiffs. On these facts the plaintiff's claimed that they were entitled to recover. The defendant objected to a recovery, on the ground that Goldear being now living was tenant by the curtesy of the premises, though neither he nor his wife had ever been in actual possession during the coverture. And the court directed the jury, on that grou