37 S.W. 471 | Tex. App. | 1896
Lead Opinion
Maria de la Luz Garcia, joined by her husband, Genevevo Garcia, and Josefina Jewett, residents of the Mexican Republic, instituted this suit against defendant in error, in trespass to try title to a certain lot of land on the north side of Dolorosa street, just west of San Pedro creek in the city of San Antonio. Defendant in error pleaded three, five and ten years limitation, and improvements in good faith. Plaintiffs in error excepted to the answer, and in avoidance of the pleas of limitation, pleaded continued coverture of Mrs. Garcia since November 9, 1862. The case was submitted to a jury, and resulted in a verdict and judgment for defendant in error. This writ of error was sued out by Maria de la Luz Garcia and her husband.
The exceptions aimed at the pleas of limitation were properly overruled. The pleas contained all of the statutory requirements.
The demurrer to the plea of improvements in good faith was not well taken. The deed from Maria and Genevevo Garcia and Josefina Jewitt to Conrad Lehman was, although not legally acknowledged by the married woman, properly admitted as evidence against Josefina Jewitt, and it was the duty of the court to restrict the evidence so as not to affect the right of the married woman. The question of the admissibility of the copy of the deed taken from the record under the terms of the agreement of counsel will not probably arise on another trial, and it will not be necessary to express an opinion on that point.
The facts in this case show that the common source was Clara Ximenes, From her the property descended to her son Antonio Guiterez, who married Josefa Silva, who bore him two children, Antonio Guiterez and Maria Concepcion Guiterez, who upon the death of their father in 1816 inherited the land in dispute. The latter married one Jewitt and bore him two children, Maria, who, in 1862, married Genevevo Garcia, and Josefina Jewitt who never married. After the death of their parents, the title to their mother's property passed to Maria and Josefina. The interest of Josefina was conveyed by her to Lehman, and if it had not been so conveyed, was lost to her by limitation.
The deed to Conrad Lehman was made in 1875, when Mrs. Garcia *486
was a married woman, and the deed not being acknowledged by her in the manner required by the statute, was, so far as she was concerned, an absolute nullity. Berry v. Donley,
For limitation to prevail, the adverse possession of the land must have begun prior to November 9, 1862, when Mrs. Garcia was married, and that adverse possession must, to avail defendant in error, be connected with the title of defendant in error, or must show an outstanding title in some other person.
It is claimed by defendant in error that the evidence of Santiago Guiterez shows that his father Antonio Guiterez was holding adverse possession of the land for many years before the marriage of Mrs. Garcia, which contention we do not think is well founded, but if it were true, it could not result in any benefit to defendant in error, because no privity is shown between the title of defendant in error, and that of Antonio Guiterez. This was necessary in order for defendant in error to avail himself of such possession. Wheeler v. Moody,
Mrs. Garcia was not a party to the partition of the land between Lehman and Guiterez, and was not bound by it. No ratification of the partition is shown by the record. The acts of plaintiffs in error in suing defendant in error for the whole of the land allotted, in the partition to Lehman, does not indicate a ratification of the deed to Lehman or of the partition deed signed by Lehman. Plaintiffs in error, having sued for the whole of the land, could recover the interest they may be entitled to.
The question of any equities that might possibly arise in regard to the money received by Mrs. Garcia from Lehman, although urged in *487 the brief of defendant in error, is not raised in the pleadings, if in the evidence, and we are not called upon to discuss it.
It has been held in this State that "notwithstanding the deed of a married woman may be invalid, and would convey no title by reason of a non-compliance with the statute, nevertheless such a deed may serve as a basis for a claim for the value of improvements made in good faith." Johnson v. Bryan,
As plaintiff in error can only recover a part of the land in controversy, the question of the value of the improvements for which they might be held responsible, can only be determined in partition, as it may be that on an equitable division of the land, no improvements would be allotted to plaintiffs in error. Yaneey v. Batte,
The judgment is reversed and the cause remanded.
Reversed and remanded.
Addendum
As stated in our former opinion, Mrs. Garcia was not in any manner a party to the partition of the land between Guiterez and Lehman. The latter had a partition of the land with Guiterez, and had one-half of it set apart to him by virtue of the deed that he had received from Mrs. Garcia and Josefina Jewett. We hold that the instrument executed by Mrs. Garcia and her husband was intended to be a deed, and not a power of attorney. Any expression in it authorizing Lehman to make a partition of the land was mere surplusage. He had that right by virtue of the deed. Lehman treated it as a deed to him, and had the portion of the land belonging to Mrs. Garcia and Josefina Jewett set apart to him.
There is no testimony that shows adverse possession by Guiterez as to appellants. Guiterez was a tenant in common of the land with the mother of appellants until her death, and then with her children, and there is no testimony to show that there had ever been a repudiation of the rights of his cotenants by Guiterez. The only testimony relied on by appellee to show adverse possession upon the part of Guiterez was the testimony of his son Santiago, who stated that his father had lived on the land during his life-time, had put shanties on it, had paid taxes on it, and had told him that he claimed all of it. This testimony did not show adverse possession as to the cotenants. It is presumed that the possession of one cotenant is in subordination to, and by authority of, *488
the common title. To establish possession on his part adverse to that of his cotenants, the evidence must establish clearly and unequivocally a repudiation of the rights of his cotenants. There must be more than possession and payment of taxes, or the placing of improvements on the land. These are circumstances which, with others, might go to show adverse possession, but taken alone they are not sufficient. Alexander v. Kennedy,
The evidence failing to show that Guiterez held the land adversely to the appellants, it will not be necessary to go into any discussion as to the privity existing between his title and that of appellee. In his deed of partition he simply recognized Lehman as standing in the place of Mrs. Garcia and Josefina Jewett.
The motion for rehearing is without merit and is overruled.
Overruled. *489
