Earley v. Sterrett

18 Tex. 113 | Tex. | 1856

Wheeler, J.

The objection to the judgment, that the evidence does not sustain the plaintiff’s right to recover the particular land sued for, is not tenable. The supposed uncertainty arises from the mistake and discrepancy in the bond and deed under which the plaintiff claims, respecting the original grantee of the land. But both instruments contain other matter of description sufficient to render it perfectly certain what land was really intended to be conveyed. There can be no difficulty or doubt respecting the identity of the land. The misdescription in the particular indicated, therefore, is not material.

The defendants introduced no evidence in support of their pleas of the Statute of Limitations. Less than ten years elapsed from the maturity of the obligation to the bringing of the suit. And under the decision of this Court in Holman v. Crisswell, (15 Tex. R. 394,) the Statute did not commence to run, until there was some act indicative of an intention to hold adversely to the plaintiff, or those under whom he claims. There was no such act until the sale to the defendant Henderson, on the 13th of April, 1847. There is no evidence of any possession by Early ; nor is there any evidence that Henderson went into possession upon his purchase. But if be did, three years did not elapse before the bringing of the suit. There is nothing in the record to support the defence of the Statute of Limitations.

The defendant Henderson eannot claim a right to hold the bond, as against the plaintiff, as an innocent purchaser without notice of the prior sale; for the plaintiff's bond for title was filed for record and recorded shortly after it was executed, in April, 1840. Besides, the defendant, it seems, had actual notice of its existence. When the plaintiff purchased of one whose evidence of title was recorded, he was under no necessity to enquire whether the vendor of his vendor had made another sale of the land subsequent to the time of the recording of his vendor’s title; nor would he be affected by such subsequent sale. The plaintiff, by his purchase, took all the title and was substituted to all the rights of his vendor.

There is no error in the judgment, and it is affirmed.

Judgment affirmed.