61 Tex. 246 | Tex. | 1884
Before the Devised Statutes took effect' the burden was upon the plaintiff not only to establish title to the land sought to be recovered, but also to show that the defendant was guilty of the alleged trespass; that is, that he was either in possession or else asserting a claim to the land. Evidently the object sought to be accomplished by the statutory provision referred to was, in cases where the defendant had answered to the merits, to relieve the plaintiff from showing the trespass. It was never intended that the plaintiff should be relieved of the burden of establishing title to the identical land sought to be recovered.
Obviously the finding of the jury was not founded upon the issues of limitation, for some of the defendants had not asserted that defense. It must have been that the jury were not satisfied that the Taylor grant did include the land described in the petition. There is no reason for the supposition that the jury believed that the grant was void; on the contrary, the court charged that it was a valid grant, and gave title to the land embraced within the boundaries therein given. To aid in the identification of- the land, appellant offered to read as evidence a certified copy of the original field notes of the survey. It seems that these field notes were made out in the English language, and passed to the commissioner for
The charge of the court must agree with the allegations and proof, and it has been held a reversible error to submit to the jury issues to which no evidence has been adduced. Austin v. Talk, 20 Tex., 164; Smith v. Montes, 11 Tex., 24; Andrews v. Smithwick, 20 Tex., 111.
To sustain the defense of five years’ limitation it is essential that it must be made to appear that the deed or deeds under which the-party claims, and upon which the defense is predicated, must be duly registered. It is not sufficient for that purpose to show that some deed in the chain of title, or purported chain of title, under which the party claims, was duly registered, but the deed under which he claims must be duly registered.
The statute gives the true owner the right to maintain his action at any time within five years after the adverse possession, with all the concurrent requisites, has commenced. And these requisites must all exist and unite to constitute notice of the adverse possession and claim. The fact that B. is in the actual possession of land, asserting a claim thereto, to which A. has a recorded deed, xvould not constitute the requisite notice that he xvas claiming under A.’s deed. To sustain this defense the adverse occupant must keep his..
In this case there was no evidence that the deeds under which the appellees entered and claimed the land had ever been recorded. Hence there was no evidence to authorize the court to submit the issue of five years’ limitation to the jury.
It was held in Medlin v. Wilkins, supra, that the party in possession under a deed or deeds duly registered might tack the possession of those from whom he purchased to his own possession so as to complete the bar, provided these possessions were each accompanied by the requisites of the statute, were consecutive and in privity, and no break bad occurred in the possession.
No rule of law is more firmly settled than that written instruments must generally be construed by the court. Certain exceptions may exist to this general rule, but they are not material in this case.. It is the province and duty of the court to construe and determine the legal effect of written instruments, and it is error for the court to submit such issues to the jury. San Antonio v. Lewis, 9 Tex., 71; Shepherd v. White, 11 Tex., 346. In this respect the court, in part, failed to construe the legal effect of the muniments of title introduced in evidence.
On account of the errors indicated we conclude that the judgment ought to be reversed and the cause remanded.
Reversed and remanded.
[Opinion adopted March 4, 1884.]