Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 410

410 WooD v. WELDER. [Term of
Opinion of the Court.
Robert Montgomery. The power of attorney was dated some
seven months after the execution of the transfer which it is
offered to support; in its terms it makes no reference, either
to the transfer, or by specific designation, to the particular certificate
or bond. In the absence of other evidence connecting
the power of attorney with the transfer, we think the papers
offered were correctly excluded by the court.
This failure on the part of plaintiff to make out title to part
of the land claimed, that part being distinguishable, by the
description given in his pleadings, from the balance of the
land claimed, only by the name of the party to whom it was
patented, and the number of acres, and not by field-notes
given, suggests the question, whether having so failed, the
jury had any data by which they could have found for him.
for the balance. Looking at the entire description given, we
cannot say that a verdict for plaintiff for the land claimed, less
the two tracts patented to Montgomery, would not have been
sufficiently certain. In this connection it may be remarked,
that if the case were otherwise in a condition to be affirmed
on the ground that the defense of limitation was made out, yet
it clearly could not be so affirmed as to two tracts of land
granted to the heirs of Patrick Nevin and Thomas Amon,
patented in 1868. There was no evidence of the date of the
location or survey of these tracts, and in the absence of such
evidence, limitation would only run from the tine of patenting.
(Plummer a. Power, 29 Texas, 6.) There was nothing
in defendant's pleadings to distinguish these two tracts from
the balance, and unless the plaintiff's description by reference
to the patents was sufficient for that purpose, the same
difficulty would present itself as to affirming the entire case on
the defense of limitations.
The judgment is reversed and the cause remanded.