Grigsby Land Claim
THE GRIGSBY CLAIMANTS
CHARGE OF THE COURT TO THE
Which Embraces a Brief Synopsis
of the History of All The Claims.
and concise statement of the litigation of the Grigsby land claim
which is of so much interest to the people of Dallas, is found
in the charge delivered by Special Judge Lathrop to the jury,
which yesterday returned a verdict for the defendants in the
case of D. B. Grigsby et al vs. W. H. Bowles et al. The supreme
court of Texas has decided four appeals in which the claims of
the Grigsby heirs formed basis of action, in each instance holding
that the plaintiffs were entitled to recover five eighteenths
of the land. But, the defense in these cases each time relied
upon the five years statute of limitation holding that the state
constitution adopted in 1869 did not go into effect until approved
by congress in 1870. The supreme court, however, took a different
view and held that the constitution went into effect when it
was adopted by a vote of the people in 1869, and upon this ruling,
the parties were not barred by limitation by the space of two
or three months. One of the defendants, Peak, then appealed to
the supreme court of the United States, which appeal is now pending.
The suit decided yesterday was fought upon a statute limitation
of three years. The charge to the jury was as follows:
- February 8, 1889,
Dallas Daily Times Herald, p. 5, col. 1-2.
Gentlemen of the jury--You are
instructed as follows: This is a suit brought by plaintiffs D.
B. Grigsby and Maria Louisa Swindell, her husband, C. C. Swindell,
joining her, against W. H. Bowels and a large number of other
persons, to recover---the one, D. B. Grigsby, three-eighteenths,
and Maria Louisa Swindel, three-eighteenths undivided interest
in a certain portion of the league and labor of land originally
granted to John Grigsby, and in 640 acres of the Sylvester survey.
Mary A. May, one of the defendants, claimed, and her vendee,
since the institution of this suit, now claims 290 acres of the
640-acre Sylvester tract, which is fully described in the joint
answer of said May and Hughes filed herein on the 26th day of
January, 1889, and they disclaim any interest in any other portion
of said land, and have been granted a separate trial to the land
so claimed by the said May and Hughes. The defendant, Robert
F. Aspley, also claims four-eighteenths individual interest in
said lands and the life estate of his father, R. F. P. Aspley,
in the individual third of four-eighteenths of said land. The
only issues submitted to you in this case for your determination
are the rights of the plaintiffs, the defendant Aspley and the
defendants May and Hughes to the said 290 acres of land in the
The plaintiffs claim their interest
in said land as the heirs of their mother, Louisa Edens, formerly
Louisa Grigsby, and the defendant, Aspley, as the sole heir of
Emeline Aspley, formerly Grigsby, who was a daughter of said
Louisa Edens, formerly Grigsby.
The certificate under which the
patent to the Sylvester survey was granted was obtained by John
Grigsby and his wife, Louisa, during the existence of the marriage
relations between them and was their common property, and was
undisposed of at the date of the death of John Grigsby in 1841,
and at that time, the undivided half of the said certificate
belonged to the heirs of John Grigsby and the other half to his
widow, Louisa Grigsby, subject only to the payment of debts contracted
by John Grigsby during the existence of the marriage.
In the year 1841, administration
was opened on the estate of John Grigsby in Houston county, Texas,
the place of his residence and death, and ruing the administrating
of said estate, Louisa Grigsby intermarried with Bales Edens,
and she died in 1843, leaving three children, two of whom, Daniel
B. Grigsby and Maria Louisa Edens, now Swindell, are plaintiffs
therein, and Emeline Grigsby, who were her heirs at law, each
inheriting one third of her estate. While that administration
was so carried on, in 1846, the patent to the Sylvester 640 acres
was issued by the state to the heirs of John Grigsby. Yet, while
the patent was issued to the heirs of John Grigsby, the certificate
under which it was issued being the common property of John and
Louisa Grigsby, one half of said land belonged to the heirs of
Louisa Grigsby. Emeline Grigsby was married on the 24th of February,
1854, to L. B. G. Aspley, and she died November 7, 1868, leaving
as her sold heir at law, Robert F. Aspley, her husband being
entitled to a life estate in one-third of her real estate. The
administration of John Grigsby's estate was afterwards removed
to Anderson county, Texas, and in the year 1848, the administrator
of said estate reported that the land in controversy in this
suit was ready for partition. None of this land was needed to
pay the debts contracted during the existence of the marriage
relations between John Grigsby and his wife, Louisa Grigsby,
and at that time, the heirs of Louisa Grigsby were entitled to
the undivided half of said land. And you will, therefore, in
your verdict, find for the plaintiffs and the defendant Aspley,
their interest in said land as claimed by them, unless the same
is barred by the statute of limitation.
You are instructed that the statute
of limitation did not begin to run against the plaintiff, D.
B. Grigsby, until he arrived at 21 years of age. You are further
instructed that the statute of limitation did not run from the
28th day of January, 1851, until the 30th day of March, 1870,
and as the proof shows that D. B. Grigsby was born in the year
1841, he could not have arrived at the age of 21 years until
after the 28th day of January, 1861. You are therefore instructed
that the statute of limitation as to him did not begin to run
until march 30, 1870, and that it ceased to run against him on
the 18th day of August, 1874, the date of the institution of
this suit, and you are instructed that the five and ten years'
statutes of limitation do not apply to him.
You are instructed that the statute
of limitation did not begin to run against the plaintiff, Maria
Louisa Swindell, until the date of her marriage on Aug. 24, 1859,
and you are further instructed that the statute of limitation
did not run from Jan. 28, 1861, until Sept. 2, 1866, when the
statute commenced running again and continued to run until Dec.
3, 1869, the time that the constitution of 1869 went into effect.
During the time of the statute so running, five years did not
elapse, and the five years' statute does not apply to her; and
after the statute had commenced running again, March 30, 1870,
up to August 18, 1874, the date of the institution of this suit,
including the time from her first marriage, did not amount to
seven years, the seven years' statute did not bar her right;
neither does the ten years' statute apply to her.
In regard to the defendant, R.
F. Aspley, you are instructed that the statute of limitation
commenced running against his ancestor, Emeline Grigsby, upon
the date of her marriage to L. G. B. Aspley, Feb. 24, 1854, and
so continued to run until Jan. 28, 1861, when it ceased to run
until March 30, 1870, when it commenced running again and continued
to run until Oct. 22, 1881, when he filed his original answer
in this case, setting up claim to the land in controversy; and
as more than ten year had elapsed since the statues commenced
running on the marriage of Emeline Grigsby, up to the filing
of said Aspley's original answer in this suit, excluding the
time when the statute was suspended, as hereinbefore stated,
and as the defendant May had continuous and uninterrupted possession
of said land since the fall of 1853, so you, as far [as] the
claim of Aspley is concerned, will find for the defendants May
You are further instructed that
as the defendants, May and Hughes, who claims under her, have
been in peaceable and adverse possession of the 290 acres in
controversy herein, under title or color of title, for more than
three years next before the commencement of this suit, on Aug.
18, 1874, you will find for the defendants Hughes and May as
to the 290 acres in controversy herein.
By the term, title, as used herein,
is meant a regular chain of transfers from the sovereignty of
the soil to them. And you are charged that under the plea of
the statute of limitation of three years the patent to the Sylvester
tract for 640 acres of land, being from the government to the
heirs of John Grigsby, the partition of the land among the heirs
of John Grigsby by the probate court of Anderson county, in the
administration of the estate of John Grigsby, deceased, in which
the land in controversy was allotted one of his heirs, James
Grigsby, and the deed made by the administrator, John Grigsby,
to said James Grigsby is a link in the regular chain of the title
from the sovereignty of the soil; and as the defendant shows
an undisputed chain of the title from the said James Grigsby
to himself, and also that proof is uncontradicted that said Hughes
and those under whom he claims have had adverse and continuous
possession of said land, cultivating and using the same for more
than three years before the institution of this suit, excluding
the time of the stoppage of the running of the statute and the
disabilities under which plaintiffs labored, you will therefore
find a verdict for the defendants May and Hughes.
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Out by Judge T. S.
the Federal court Saturday afternoon, Judge J. S. Maxey decided
the Aspley case in favor of the defendants. The case had been
on trial five days and the verdict gives excellent satisfaction.
22, 1892, Dallas Daily Times Herald, p. 4, col. 4.
This suit was brought to recover
a block of land in the very heart of Dallas, upon which are many
fine business blocks, and was really a test case to try title
to the whole Crawford Grigsby 1000 acres, on which the major
portion of the city is located. Crawford Grigsby located this
league of land for his father, John Grigsby, in 1840-41, and
was to receive 1000 acres as his locative interest. John Grigsby
died in March, 1841, and the patent was issued Jan. 28, 1842.
Robert F. Aspley is a grandson of John Grigsby. In 1844, the
legislature passed a special law giving jurisdiction to probate
judges over cases of specific performance of contract. In 1846,
the legislature passed a general law in which that clause giving
this jurisdiction to probate judges was left out. In 1847, Crawford
Grigsby's administrator moved to have the 1000 acres belonging
to the Crawford Grigsby estate set aside, which was so ordered
by the court. Now comes the plaintiff, R. F. Aspley, into court
and sets up the claim, that under the law of 1846, which was
in force at the time, the probate court had no jurisdiction over
cases for the specific performance of contract. Judge Maxey holds
that the probate court at that time did have jurisdiction, for
the reason that the law of 1844 was special and the law of 1846,
general, and the fact of the clause in reference to specific
performance of contract being left out of the law of 1846, did
not change the jurisdiction. This was one of the most important
suits ever tried in Dallas, as it involves millions of dollars'
worth of property and concerns thousands of our people.
- o o o -
for a New Trial Over-
T. S. Maxey, in the Federal court, overruled a motion for anew
trial made by plaintiffs in the suit of R. F. Aspley vs. Murphy
& Bolanz et al.
23, 1892, Dallas Daily Times Herald, p. 1, col. 3.
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