JUCK "'. FEWELL.
vor, there is no want of power in the court to continue it during the pendency of an appeal, provided the application be made immediately, and an undertaking given. The proceeding by attachment is a special proceeding, depending' wholly on the statute. It has sometimes been declared by the courts a harsh proceeding. It is certainly in derogation of the common law. It follows, then, that the lien created by it is just such and no other or more pervasive thaJi the statute makes it, and cannot be helped out to any extent by intendment. Where no warrant is found in the statute for the lien, it does not exist. The attachment being wholly collateral to the main action, a judgment against the plaintiff necessarily.vacates the attachment, unless it be continued and kept .uive by order of the court, made pursuant to law. As no such order in this case was made, I think the lien was gone long before the plaintiff's appeal was taken. and before the sale of the land to the complainant. The case cited most in point to favor the complainant's views is Loveland v. Mining 00., 18 Pac. Rep. 682, recently decided by the supreme court of Oalifornia. The case of Harrison v. Trader; 29 Ark. 85, seems to be an authority for the defendant. A temporary injunction will issue aa prayed fur in complainant's bill.
(mnn&U Oourt, W. D. Texaa, Et Paso DfJlJi8okm. October 28. 1889.)1
LnnTATION OJ' AOTIONS-ADVlIlBBE POSSESSION-PAYMENT OJ'TAXES.
Failu.re'to pay taxes by one claiming land by such adverse possession after the five years have expired cannot affect his title. Iinee all right of action against him is then barred.
At Law. Trespass to try title. Teel, Merchant &- Wilcox, for plaintiff. Davis, Beall & Kemp, Nugent & Stanton, and Brack & Neill, for defend'
MAXEY, J., (charging iMjury.) This suit of trespass to try title was originally brought by Mrs. Ida Juck and her children against W. J. Fewell, M. J.McKelligan, James P. Hague, S. G. Cowdry, O. T. Bassett, and Simon Kinsella to recover lot No. 35, situated in: the oity of El Paso. At ll. former day of the present term, and during the trial of this cause, the court permitted the children of Mre. Juck ,&0 take
Publication delayed by failure to receive copy.
FEDERAL REf!ORTlliR i
and the s,uit now.standsiin the name of Mrs. Juck !lasole the defendants above named. Among other defenses, anofthedefendantsl1ely upon the statute of limitations of :five years as a badotheplaintitf'sright of recovery. In su1ts of this character it is inc\lD)bent UpOll the plaintiff toreeover upon the strength of her own title.. In this' case Mts. J'uck has exhibited· a legal. title to herself to the would be sufficient to authorize a recovber partl' unless the defendants' pleas of limitation defeat her. VnlllerJne laws ofthisstate, C"apatty claiming land under the limitation of must have peaceable. and adverse pOSSession- thereuf, cultiusing, or enjoying the same,and paying taxes thereon, if any , and,iclairning under a deed or deeds puly Cantagrel v. Von Lupi'(l,;5S Tex. 577 ·. The testimony is perfectly clear that the defendants Fewell, McKelligan, Cowdry, Bassett, and Kinsella are, beyond contr!.wersy, protected by the five-years statute of limitations, and hence are to a verdict at your hands. The jIi the case arises out of the defense i interposed by and that is one of law, rather than of f8ct,·as the testimony leaves no doubt touching the facts proven. The question ir;lone of construction of the statute, which reads as follows: "Every suit· to be instituted to l'ecovel' l'eal estate, as against any person having peaceable and adverse possession thereof, cultivating, using, or enjoying the same, and paying taxes thereon. if any, and claiming under a deed or deeds dUly registered, shall be institutecj within five years next after the cause of action shall have accrued, and not afterwards." Rev. St. Tex. art.
The facts proven are as follows: (1) The plaintiff, who is styled Mrs. Juck ill, her pleadings, after the death of hel' first husband, Albert Juck, Chal'les Pohl on September 5, 1873, and that marriage was dissolvedbya debree of divorce duly rendered all the 10th day of February,1882. .(2) The original petition in this cause was filed April 13, 1888. (3) Hague's possession of the property claimed by himcertainly inthe latter part 0[1881,. and probably at a much earliel' date, and has continued to the present time. (4) Hague holds title to the property by duly-registered deeds, and he has paid the taxes due thereon for the years 1882, 1883, 1884,,1885, and 1886. Ml's. Pohl's disability of coverture having been removed by the decree of divorce on the 10thQf February, at that time in possession dHhs property, her cauaeofaction then accrued, the statute of limitations was set in motion, and she had five years thereafter within which to bring the suit, or until the 9th day of February, 1887; and if the defendant,at that timel ,had been inpo\!Session 'five years, under deeds d'uly registered, coupled the paimElnt of all taxe8 due on the property', plaintiff's right of action been b,arred, and the title dfVested out 'of her, underthe terms ofarticle 3196 of Revised Statutes the St;nte.' 'That article of the statutes provides: " any case, the action of a perso;l the recovery of real estate, is barred by any of the provisions ,this chapter, the person such
EVANS t. AMEItICAN IRON &
peaceable and adverse possesSion sba11' be held to have full title, precluding all claims."
It is not denied by the plaintiff that Hague had been in possession for the full statutory period, nor that he claimed title under deeds duly registered. But it is insisted that the proof should disclose the payment of taxes for that portion of the year 1887 ending with February 9th, in order to make the payment of taxes complete and effectual as a bar. The statute contemplates the payment of such taxes as were due and could have been paid. On the 9th February, 1887, the taxes for that year, under the laws of the state, were not due, nor could they have been paid until a much later period oLthe year. Hfl,gue had paid at that date all taxes which were due and payable, to-wit, for the years 1882, 1883, 1884, 1885, and 1886; and I must therefore hold that he had fully complied with the law in reference to the payment of taxes, and that he became invested with full title at that date. His subsequent laches in failing to pay the taxes would not inure to the benefit of tiff, for her right of action was debarred. See Spofford v. Bennett, 55 Tex. 293. Reference is also made to the case of Cantagrel v. Von Lupin, 58 Tex. 576, in support of the views here expressed. The facts in the Oantagrel 0aBe are quite similar to those involved in this suit. 'fhe law of the ease, as applied to the facts, being adverse to the plaintiff, it is my duty, gentlemen of the jury, to instruct you to find a verdict in favor of the defendants. '
ault, which was granted.
'J;'BB. CoUBT.. Upon reading the aboTe oharge, the plainWf moved for a non-
EVANS ". AMERICAN IRON
(CirewU Oourt, N. D. OMo, E. D. February Term, 1800.)
lUSTER AND SERVANT-NBGLIGENCE 011' MASTEB-UNLAWII'UL EMPLOYMENT 011' CHILD.
Under the Ohio statute making it a crime to employ in a factory a child uneler IS years old, it is only necessary, in a prosecution for its violation, to prove the em· ployment and defendant's knowledg-e of the child's age; but such proof is not, in itself, sufficent in a civil action for injuries sustained by the child through defen!!. ant's negligence. ' Where the employer of a cbild under 12 yeaTS of age furnishes him with a sate and suitable place to work, he is not liable for injuries sustained by the chil(l by reason of his voluntarily going about the factory and exposing himself to dangerous machinery, where the child is of such age and experience, and has sufficient knowl. edge of the machinery, to be able to appreciate its dangerous character. Such a child, if he is incapable, by reason of his youth and inexperience, of apprehending and appreciating the dangerous character of the machinery, 18 not a fellow-servant of the adult servants employed in the factory. " .
Action by Owen Evans,guar,dian of William Lewis, against the ican Iron & Tube Company, for personal injuries sustained by said ward while in defendant's employ.