It was around Christmas in 1989 when Murdine Berry showed up at B. Prater Monning's Dallas law office, referred there by an old contact she made when she worked as a maid. Monning was leery about having his name published; the last time his name appeared in a story about Berry's lawsuit, he spent years turning down hundreds of requests from blacks who wanted him to help them get back land they believed was unlawfully taken. "It was a nightmare," Monning says.
He didn't take any of those cases and will not take any in the future. It's not that he didn't enjoy helping Berry, but most of those cases aren't winnable. For all practical purposes, neither was Berry's.
"She almost lost and probably should have lost," Monning says.
Berry, who was broke and in a state of near panic, happened to catch Monning on a soft day, and he listened to her story. Berry couldn't have chosen a better lawyer to gamble on: Monning comes from a long line of attorneys who had spent years clearing titles to West Texas farmland on behalf of oil prospectors.
To Monning, Berry's case didn't sound good at first. The Volunteer Council had legal documents showing its title to the land, while Berry had none. But when Berry recounted how Uncle Dee had given her the handful of dirt, Monning's heart went aflutter. He told Berry he would take the case for free.
"It was a very romantic and a very easy case to try," Monning says. "The romantic part about it is...when people, not having any legal knowledge at all, intend to pass property on from one generation to another and they go out and do something absolutely perfect--something that most lawyers wouldn't even do."
Uncle Dee didn't know it, but there is a legal term for what he did with that handful of dirt in 1969. It's called a "feoffment," and it is a perfectly legal, albeit archaic, means of land conveyance that dates back to English common law, circa the Middle Ages.
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.