
    Scott v. Rhea and others.
    Where the headright certificate was issued to the wife in her own name after her husband’s decease: BM, That no objection could tie made by any one not claiming as heir, assignee, or creditor of the iiusband. Therefore whore the defendant was permitted to prove — the plaintiff objecting — that tho plaintiff, who was a widow claiming under a certificate in her own name, emigrated to the country with her husband, and it was not proved whether the husband had obtained a certificate or not, the judgment was reversed; the testimony being calculated, under tho circumstances, to mislead.
    Uninterrupted possession for five years under a headright and survey thereof gives a right by prescription against an older title to the extent of the claim.
    Where issue is joined generally in an action of trespass to try title, and the plaintiff proves the better title to any part of the land claimed by him, he is entitled to judgment for that part.
    Appeal from Cass. The appellant brought suit to recover possession of a certain tract of land and damages for being ejected from the same. She claimed the premises in question by virtue of a location of her unconditional headright for six hundred and forty acres. The defendant Lane set up title in a codefendant by virtue of Ills headright and a location thereof prior to the location of the plaintiff. They defended the ouster of the plaintiff by a writ of possession that had issued on a judgment in favor of Lane against one Rose from the District Court of Bowie county. The plaintiff claimed a peaceable and unterrupted possession for more than five years before she was ejected under the location of her headright. The record did not show that the plaintiff was either a party or privy in the suit of Lane against Bose in Bowie county. It was shown by the evidence that Bose’s headright was located alongside of the plaintiff’s, and not conflicting with it. It was further shown that Lane’s location did not cover the whole of the land claimed by the plaintiff. It appeared from the statement of facts that the plaintiff was in possession from 1S40 until she was turned out in 1847. On the trial the defendants offered evidence to prove that the plaintiff was a married woman at the time she emigrated to the country; that she came with her husband, one Bembra nt, who was shortly afterwards killed. This evidence was objected to by the plaintiff, but the objection was overruled and the testimony received. There was a verdict for the defendants. The plaintiff moved the court for a new trial, which motion was overruled, and the plaintiff appealed.
    J. H. Rogers, for appellant,
    argued that it was error to admit the testimony as to the plaintiff being a married woman at the time of her emigration to the country, 1st, because there was no corresponding' allegation in the pleadings; 2d, because if the fact was that she was married when she came to Texas it would not affect the validity of a certificate granted to her after she became a widow and the head of a family, provided her husband had not obtained a certificate as the head of the same family. The testimony -was therefore not only irrelevant, but it was eminently calculated to mislead.
    II. The verdict was against the law and the evidence. It was conclusively proved that tiie plaintiff had been in possession of the land for more than five years under her certificate and .survey. To say the least, she held under a color of title, and the five years’ possession gave her a good title in law. (Acts of 1841, p. 1G7, see. 15, 16.)
    III. The attempted justification under the writ of possession in the suit of Lane against Bose amounted to nothing. The plaintiff here was neither party nor privy to that suit. The judgment was against Bose alone. The writ of possession merely commanded the sheriff to deliver to Lane the possession of Bose ; so that the trespass was not only unauthorized by law, but was without any excuse whatsoever.
    
      Everett, for appellee,
    argued that the plaintiff failed to prove a continuous possession for three or five years under title or color of title, paying taxes, &c.
    II. That the record of the suit in Bowie of Lane against Lane was conclusive. In that ease Bose, who is proved to have been Scott’s tenant in 1842 and in 1844, was sued by Lane in 1S43 for this same tract of land, and judgment was recovered by Lane in 1847.
   Lipscomb, J.

The first error assigned that will be examined is the admission of the testimony objected to by"the plaintiff. There may some question arise on the settlement of the succession of Bembrant, whether the headright taken out by his widow in her own name should not, in part at least, inure to the benefit of his heirs; but between her and any other person not claiming as his heir or creditor it surely cannot he brought in controversy. It is not noticed at all in the charge of the court to the jury, nor is it certain that it had any influence on their verdict, but its object was to impeach the validity of her title, and may have had an influence on the minds of the jury in the verdict returned by them. For this reason we believe that the judgment ought to be reversed.

Another ground assigned by the appellant for asking a reversal of the judgment is that the court erred in overruling the motion for a new trial. It is alleged by tbe counsel for the appellant that the verdict is contrary to the evidence. The proof was explicit without any contradition that the plaintiff had been in the actual possession of the land claimed by her more than five years under the location of her headright before she was turned out; that is, before her tenant was turned out under ttie writ of possession at the suit of Lane against Bose. There was no proof that she was either a' party or privy to that'suit; consequently she could not he prejudiced by the judgment in that case, and it could furnish no defense to the sheriff and those acting- with him. Tlie proceedings under the judgment were as to her void. Her possession under her headright location and survey was long- enough to give her a right to the extent of her claim of title by prescription against the elder title of Lane; and if lie has lost his title to that amount, it may he ascribed to his own snpineness in not asserting- it sooner.

Again, if the evidence of Dr. Taylor is understood correctly, the title of Lane did not cover the whole of the plaintiff’s headright, and she was certainly entitled to a judgment in her favor for the part so left out of Lane’s survey. If she had been a party or privy to the suit in Bowie county brought by Lane against Bose, the writ of possession could not have authorized Lane to take possession beyond the limits of his survey; and if he had done so, the sheriff and Lane would both have been trespassers. The verdict was then contrary to the evidence, and ought to have been set aside and a new trial awarded. We believe, therefore, that the court below erred in the admission of the evidence to show that the plaintiff was not entitled to the headright certificate in her own name, under which she claimed, and that the court also erred in overruling the motion for a new trial. The judgment is reversed, and the cause remanded for a new trial.

Judgment reversed.  