103 S.W.2d 229 | Tex. App. | 1937
Appellant M. Abramson sued appellee W. J. Sullivan in trespass to try title to recover a 19.8-acre tract of land in Tom Green county, Tex. Appellee asserted title to the land under the ten-year statute of limitation (Vernon’s Ann.Civ.St. art. 5510). The jury’s finding sustained the plea of title by limitation, and judgment was accordingly rendered for appellee; hence this appeal.
Appellant deraigned his title as follows: The 19.8-acre tract. was patented by the State to L. L. Farr, in 1892, as the Ann Morrison survey. Farr conveyed the land to Charles F. Porter, Jerome W. Pierce, and Frank B. Pierce, in December, 1892. On August 11, 1926, the State sued the three last-named record owners to foreclose a tax lien on the land, citing them by publication. The judgment foreclosed the tax lien and property was sold by the sheriff to appellant, who received the sheriff’s deed thereto December 7, 1926. Upon such claim of title, appellant filed this suit in 1933, which resulted 'as above stated.
The trial court correctly held that the judgment against the nonresident owners of the land cited by publication bound appellee, unless he had perfected his title by limitation prior to the filing of the suit by the State, August 11, 1926. Patton v. Minor, 103 Tex. 176, 125 S.W. 6.
We have reached the conclusion, however, that the evidence failed to establish the title of appellee under the ten-year statute of limitation, for two reasons, as follows:
1. Because the evidence failed to show that appellee or those under whom he claimed were in continuous possession for a period of ten years prior to the time the limitation period was interrupted by the filing of the tax suit by the State, August 11, 1926.
2. Because the evidence ‘failed to establish privity of possession between appellee and those under whom he sought to establish possession for ten years, and particularly the adverse claimants of the land for the years beginning August 11, 1916, to the date of the purchase and possession of the land by W. M. King and wife, in 1920.
On the issue of title under the ten-year statute of limitation, Frank Heath testified that his father purchased certain land in the Holtz survey by deed in 1900, and the next year fenced it, together with the adjoining 19.8-acre Ann Morrison tract in suit. That there was no partition fence between said surveys, but that both of them were fenced, occupied, and used as one tract by his father until 1905, when the land was sold to one Brown as an entirety, and that at the time of this trial the wit
If possession is claimed under a deed, it is not necessary for the deed to describe all the land; nor was it essential that there be any deed at all for the perfecting of title under the ten-year statute of limitation; but there must be actual transfer of the adverse possession of each successive claimant in order to establish privity where the land is not included in a deed, but where, as in this case, each adverse claimant treated the entire tract, that described in the deed and that inclosed and used as a part thereof, as a unit. McAnally v. Texas Co., 124 Tex. 196, 205-208, 76 S.W.(2d) 997, 1002, wherein the court quoted with approval the rules of proof or evidence necessary to establish title under the ten-year statute of limitation, as announced by the authorities cited, as follows:
“ ‘So in the present case we think it immaterial that some of the conveyances through which some of the parties claim fail to accurately describe the land in controversy, provided it appears, as here, that the several grantees therein, by reason thereof, claimed and exercised acts of ownership over the land, and that the assumption of this right is referable to such transfers. Indeed, if there had been no con*232 veyances whatever and the respective parties through whom appellees claim had verbally sold their claim and their respective vendees had gone into possession by reason thereof, holding the same for the necessary period, it would be sufficient.’ Moran v. Moseley (Tex.Civ.App.) 164 S. W. 1093, 1094.
“ ‘Again, it is immaterial that conveyances between the different occupants fail accurately to describe the disputed tract, the evidence showing that the several grantees claimed and exercised acts of ownership over the land, assuming to do so by virtue of the transfers. Indeed, un- , der the ten years’ statute, no written in* i strument of conveyance is essential to the tacking of the periods of possession of Sifferent persons; a verbal sale suffices.’ 2 Texas Jurisprudence, p. 171, § 90.
“See, also 1 Ruling Case Law, pp. 717-720, §§ 31-33; Note, 46 A.L.R. 795-799; Bateman v. Jackson (Tex.Civ.App.) 45 S. W. 224; Howind v. Scheben, 233 Ky. 139, 25 S.W.(2d) 57.”
Under the rules quoted and where the parties claimed the land as a part of the land conveyed by the deeds, such deeds are admissible to show the time each adverse claimant purchased the land. Of course, the actual possession of the land could not be shown by the deed, but must be shown by the evidence. McAnally v. Texas Co., supra.
Appellee contends, however, that the judgment foreclosing the tax lien was void on the grounds: (1) That the tax assessor failed to perform certain statutory duties in assessing the property for taxes; (2) that some of the taxes sued for could not be collected and were not a lien against the land; (3) that the citation was not issued and returned as required by law; that no written statement of the evidence adduced on the hearing of the tax suit was filed, as required by articles 2158 and 7342, R.S.1925; (4) that neither appellee nor his predecessors in title who were in open and visible possession at the time the tax suit was filed, were- served with citation and did not know of such suit until this suit was filed in 1933. Conceding that the evidence established each of the grounds of defense to the tax suit, neither of them would render the judgment void, but merely voidable, because they were essentially matters of procedure, and the judgment not being void is not subject to collateral attack in ihis suit. See 25 Tex.Jur. 805, § 307, and cases there cited, and particularly Patton v. Minor, 103 Tex. 176, 125 S.W. 6, and McLane v. Kirby & Smith, 54 Tex.Civ.App. 113, 116 S.W. 118.
The record clearly shows that the case was not fully developed with regard to either the continuous possession or the privity of possession of the several adverse claimants for ten years, and the cattse will be reversed and remanded for another trial. Dunn v. Taylor, 102 Tex. 80, 113 S.W. 265.
Reversed and remanded.