Reports of cases argued and decided in the Supreme Court of the State of Texas during Austin term, 1854, and a part of Galveston term 1855. Volume 13. Page: 74
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147-148 SUPREME COURT.
Cochrane v. Winburn.
tlhat this was done. This, if (lone, would have shown a title in plaintiffs own
rihl1t. Bat the continual possession of the negro is accounted for. It is shown
tlhat th;i ne:rlo was hiretl to Winburn; that he paid hire, and that the negro
wal; ret:ailned by plaintiff by permission of the administrator of J. D. Cochra1';,
deceased. So it is evident that no claim adverse to defendant [147] was
,t ll) in the lifetime of Winburn; and it is subl itted to the Court whether
tile clalin set up by plaintiff as heir of J. D. Cochrane, deceased, filed August
25tli 1851, is not a full and complete bar to plaintiff's in this action.
We proved by the witness, Bell, and the record of the County Court, the
.acknowledgments of the plaintiff within less than two years before the filing
of tile suit and the trial of the case. Had this evidence been before this Court
on the former trill. wAould this Court have reversed the case? But it may be
contended that the l)lailltiffs, being executors, cannot by their act prejudice the.
estate of Winburn. The estate is not prejudiced thereby; for it is shown that
the estate had no right to the negro. Can the act of the executrix be made the,
basis of the claim to the property, and in the otner instance her acts and,
acknlowledgments cannot be heard because she acts in a'fidugiary capacity?
Can her acts receive the sanction of law in one instance and be rejected in the
other?. Can her acknowledgments be taken as the basis of title by limitation
and in the second their force and effect cannot be considered in staying the
bar?
It would seem strange that her acts can be made a basis to support title by,
limitation in the first instance, and that her acts in the second could not be
received to explain the mistake and impede the bar. Had the defendant had
actual knowledge of her act in the inventory of the negro as Winburn's property,
lhe could, and doubtless would, h have had the same stricken off on proof of
that fact.
Again : Under the facts as now shown to the Court, if Mrs. Robinson acquired
any title by the act of limitation, it would be in her own right. To vest title
in tle estate it must have been held adversely by Winburn in his lifetime.
J. E. Shepard, for appellees. Great stress is laid upon the objection filed by
myself, as attorney for Mrs. Robinson, to the account of Thos. Cochrane, adlmin-.
istrator of Jeremiah Cochrane, for final settlement. There was not a single
correct [148] item in the account, as we believed, and we objected specifically
to each item, land because no account was given of a negro woman named in
the inventory (which is doubtless the same negro in controversy inl this suit,
but they di(l not prove it) appellant claims this to be an admission that the
woman is the property of Jeremiah Cochranc's estate. It may b1 an admission
thdt she once was the property of his estate, and a charge that if the administrator
of that estate had negligently or improperly lost the right to the negro
lie was unquestionably accountable to the creditors and heirs for his laches.
But this evidence was improperly admitted. A bill in chancery being generally
the suggestion of counsel, can only be real to explain a decree, I Marsh.
74, (unless sworn to.) This plea was in a different Court, in a suit between different
parties, and was entirely the suggestion of counsel. In its principles, it
is the same as pleading in chancery, and could only properly be read to explain
the action of the County Court. The County Court had taken no action on the
subject. The rule is that a judgment or decree cannot be evidence i: favor of
ally one against whom it cannot be read. (2 J. J. Marshh, 422; 4 Lit. R,, 218;
Rees v. Lawless.) Pleadings in a cause could lot be read where a judgment or
decree could not. Could a judgment in the County Court in the premises have
been read in this cause against the appellant? Clearly not. The cause il the
County Court was Lucy Iobinson, in her individual right, v. Thos. Cochranc,
administrator of Jeremiah Cochrane. This suit in the District Court is Llcy.
Robinson and her husband, executors of Winburn, v. Thomas Cochrane, in hlis
individual capacity for a trespass.
LIPSCOMB. J. This suit was once before us on the appeal of the present appel74
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during Austin term, 1854, and a part of Galveston term 1855. Volume 13., book, 1876; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28561/m1/82/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .