By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
For more than a century, people have been using written deeds to document land transactions. But way back, when people didn't read or write, they conveyed property by doing exactly what Uncle Dee did with Berry: They walked onto said land and symbolically picked up a piece of dirt, or perhaps a twig, and physically and verbally passed on the land. This is also called a "livery in deed," and while written deeds are today's standard, a ceremonial feoffment is, by law, the purest way to transfer title. Even today.
Since most lawyers, even good ones, know little about feoffment, Monning figured he just might be able to pull out a victory. After all, Uncle Dee passed the land on to Berry long before the Volunteer Council got its written deed. And that deed was the result of a questionable partition that, in any event, never disrupted the Morneys' continuous occupation or "prior possession" of the land. All Monning really needed was the chance to argue his point to the right judge.
As it happened, the case was assigned to then-state District Judge John Marshall, who happens to be a history enthusiast. Monning knew that.
"He and I happened to have been classmates in law school," Marshall says. "When he found out the case was going to be in front of me, I think he had a certain confidence level."
The trial began on February 7, 1989, and it lasted for several days, during which various old-timers, like Berta Whisand, showed up to recount their memories of the Morney farm and answer the defense's questions about whether Berry was even occupying the land, large portions of which had gone fallow after Uncle Dee gave up farming. And then Berry took the stand.
Berry testified at length, but the turning point came when she recounted her walk with Uncle Dee--a brief tale. The defense didn't pay much attention to the story, but Marshall did. He knows so much about feoffment that he can recite from memory how in 1840 it was incorporated into Texas Law.
"Up until the time she testified about the feoffment, her case was pretty shaky, but once she testified about that, the case was really over," Marshall says. "The lawyers for the defense were so focused on the chain-of-title argument in the traditional sense that I don't think they ever saw it coming."
Berry's testimony prompted Marshall to intervene on several legal technicalities, shifting the course of the trial. Instead of allowing the case to go to the jury, Marshall ordered an instructed verdict in Berry's favor. The Volunteer Council cried foul and appealed the case, but Marshall's ruling withstood scrutiny. In 1992, the Texas Supreme Court refused to hear the council's appeal, closing the case for good.
"I felt jubilant. I was so excited," Berry says. "I told the Dallas Post Tribune that a black person could get a fair trial."
The court victory gave Berry a breath of determination. A professional her whole life, Berry never entertained any notions about reverting the land to farming, though she did continue Uncle Dee's policy of leasing it out to local cow and hog farmers. She simply wants to keep the land intact so her relatives can build houses on it if they want. But after Judge Marshall's ruling, Berry decided she would turn a portion of the land into a public park, where visitors could come and learn about slavery.
In 1991, Al Lipscomb and other local officials took part in a ceremony at which Berry unveiled a sign, which still stands at the front of the property and informs visitors that the land was purchased by freed slaves James and Catherine Morney. Berry also began construction on a collection of white cabins, hoping to reconstruct the way slaves like her great-grandparents once lived. Before long, though, the project was interrupted.
"They" began showing up on the land.
Initially, they were a work crew that appeared on Tract 1 and erected a small communications tower. Berry, who started a new habit of jotting down the license plate numbers of any cars that appeared on or near the place, was outraged that someone was trespassing on her property. It's no wonder she was upset.
Tract 1, the part that was seized by lawyer Rice in the 1938 partition, was originally part of James Morney's land. The problem is, the land at issue in Berry's lawsuit did not include Tract 1. Attorney Monning studied the history of that transaction but concluded there was nothing he could do to get the tract back.
"From a purely technical standpoint, she lost that land. It wasn't right, and it wouldn't happen today, but it's not hers," Monning says, adding, "I've explained that to Murdine 100 times."
Monning continued to advise Berry over the years, but he couldn't give her peace of mind that the rest of the estate is hers. Even after the Texas Supreme Court settled the matter in 1992, Berry kept a constant eye out for uninvited guests. Over the years, "they" became anyone who approached the property, including neighboring landowners, their tenants and even work crews from public utility companies.
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