The plaintiffs derived their title in this case from Juan Cano, a colonist, in the empressario grant of Martin De Leon, and to whom the commissioner of that colony conveyed the league of land on the 11th of April, 1835.
Several objections are taken to this deduction of title, but it is not material to notice them particularly, as they were before the court in the case of White et al. v. Burnley, already reported, in which these several objections were overruled. The only difference between that case and the present is, that the plaintiffs, Burnley and Jones, there claimed under a deed by the commissioner to a colonist by the name of Benito Morales for a league of land lying on the Matagorda Bay, north and adjoining this grant to Cano. Both these colonists conveyed to Leonardo Manso, one on the 27th, the other on the 20th May, 1835, from whom the present plaintiffs derived title to both tracts. Porter, in the present suit, represents the interests of Jones in the former, and Cook, the principal defendant in this, was a defendant in that one. We find no question here, as it respects the deduction of title under the grant of the commissioner, but what was taken in the former case, fully considered and overruled. White, one of the defendants there, and who is a defendant here, set up title under a land warrant, which he had located within the boundaries of the grant to Morales, and, besides his objections to the deduction of the plaintiffs' title, relied on adverse possession of three years under the junior title. In the present case, Cook sets up a like defence under the location of a head-right and survey, which is within the boundaries of the grant to Cano.
Among other defences relied on in the present case, not in the former, is a plea in abatement of a suit, commenced by Burnley & Jones, against certain defendants, for the same cause of action, including the defendant Cook, in the District Court for the County of Calhoun. This plea was stricken from the record on the ground that it was put in after the defendants had pleaded to the merits, upon general principles, and came too late. And, further, that if it had been pleaded in season it would have constituted no bar to the suit in this court. It also appears that the parties to the suit in the State court were not the same as in the present case.
The defendants, in the course of the trial, offered in evidence the deposition of H. Beaumont, taken under the 30th section of the Judiciary Act, which was objected to and excluded. There is no certificate by the magistrate that he reduced the testimony to writing himself, or that it was done by the witness in his presence, which omission is fatal to the deposition.
The following portions of the depositions of Moore, Schwartz, and Howeston were excluded, on objections taken by the court. The testimony had reference to the possession of the locus in quo.
'Witness knows that said Cook and his tenants had continued possession of said land since the fall of the year 1849, or early part of the winter of 1849-50; say December, 1849, and down to the present time.'
This is in the deposition of Moore; the portions of the testimony of the other two are substantially the same. The depositions had been taken de bene esse, without notice, in December, 1852. In January following the depositions of these same witnesses were taken on notice to the plaintiffs, and these were given in evidence by the defendants.
On looking at the testimony in the first depositions, it will be seen that the witnesses had testified to the fact of the possession of Cook, and of his tenants, naming them; and of the time the tenants held the possession; and when they left the premises; also, the fact of the tenancy under the agreement with Cook; and, of the improvements made by the tenants. Whether or not these facts constituted a continuous possession by Cook and his tenants from the time they entered into possession, within the meaning of the statute of limitations, can scarcely be regarded as a simple question of fact, especially in connection with the previous testimony of the witnesses on the subject of their actual possession. We are inclined to think the question was rather one for the jury under proper instructions from the court. All the facts as it respects the possession had already been testified to by the witnesses from the commencement to its termination. Whether they constitute a continuous possession would seem to be a mixed question of law and fact.
We come now to the charge of the court to the jury. The defendants put in four prayers for instructions.