*1
judgmеnt
regular
trial
interlocutory
in its
order. This
appealable.
her bill
In
10232.)
(No.
et
al.
LEWIS
al.
et
v.
WISE
only alleged
review, plaintiff
reasons
Appeals
Nov.
Dallas.
reopening
judgment
of Texas.
Court of Civil
de
relied
for
10, 1928.
fault,
pleaded
so that the court
determined the issues
have
presented
Rehearing
1928.
Denied Dec.
original action,
should
trials,
been- done.
judgment by
one to
Two
vacate
mer
another on the
default and
action,
original
permitted,
its of
are not
every
phases
but
case
judgment
issue
on both
.raised
trial,
disposed
of on
and the
must be
sub
rendered will
judgment
stitute for
Cases in
vacated.
point: Cooper Cooper
App.)
Civ.
etc.,
Kirkpatrick
Wichita,
S. W.
Co. v.
278; Lynn
268 S. W.
v. Hanna
339; Barton v.
Corp. (Tex.
Montex
Lynn
Hanna,
Dallas,
appellants.
25,1889,
Bounds,
G. W.
on
traded
November
Bryant, Wortham,
Davis,
W. J.
Jes-
the 77
for 12
acres to T. A. Bounds
5½
Corsicana,
Tarver,
& ter
following
reciting
consideration:
deed
by
Bounds,
“The
T. A.
sum of $450.00
STANEORD,
is
heirs of
J. This suit
payment for
of land
follows: Part
acres
85½
Leroy
trespass
try
Easterling
in
title to
tract,”
out of
acre
etc.
125½
land,
half
acres of
undivided
and for
interest
deed,
land,
describing
Said
contained
pro-
damages,
recover their
following
recitals:
portionate part
received
of certain
* * *
Ap-
“One-half of 77 acres of land
for an
oil
land..
other half
T. A.
deeded to
Bounds when
pellees
5,10,
pleaded
guilty, and
May Bounds,
heir,
Rosa
minor
becomes of
years’
Appellants,
statutes of limitation.
age.
perfected
When said title is
to said T. A.
minority
supplemental petition, pleaded
in a
**
*
Bounds, then
A. Bounds
T.
appellants,
and the service
some of
perfect
is to
title to the 40
of land reserv-
acres
Leroy
* * *
Easterling in
United
ed out
said T. A.
acre
tract.
125½
pleas
possession
of limitation.
avoidance
case was tried
on an
to take immediate
Bounds
tract,
pay
jury of said 77 acre
taxes
and receive
a
the court without
before
the benefits
same.”
agreed
statement of facts. The
findings
request
appellants, also
at the
Fieldnotes of
entire 77-aere tract are
law. The court
of fact and conclusions of
given. Said recitations
this deed conclude
appellees,
appel-
rendered
as follows:
present
duly appealed
rec-
lants have
half
acre tract
minor’s
of 77
reserved
ord for review.
equal
including
value,
improve-
above is to be
proposition, appellants
Under
first
ments, as the 40 acres
out of a
reserved
125½
contend,
effect,
the evidence
T. A.
day
acre tract
deeded to me
they were entitled to recover title to an undi- Bounds.”
vided interest of
27 acres
the 77-acre
agreed
shows,
statement
tract.
of facts
deed was filed for record
December
found,
15,1890,
and the court
land
77 acres of
1890. On October
T. A. Bounds exe-
conveyed by
Castles,
D.
T.
Bounds to G. W. cuted
F.
a deed
T.
con-
deed
July
taining
following description:
Bounds on
that on this date
G. W. Bounds and Hannah Bounds were hus-
“All that certain
one-half
of land
acres
wife,
band
acres of
said 77
the other half to be deeded to T. F.
gift
son,
acres was
from T.
a
D. Bounds
Castles
G. W. Bounds when Rosa
Bounds,
Bounds,
Bounds,
G. W.
and that 27
the minor
acres of said 77
heir of G. W.
be-
age.
perfected
comes of
When said
represented
title
land
Bounds had
Hannah
Bounds,
said T. F. Castles
G. W.
then the
parents.
inherited from her
So 50 acres of
* * *
perfect
said Castles
acres
is to
title to 40
separate property
77 acres became
of land
reserved
T. A. Bounds out of
Bounds,
G. W.
of same
27 acres
becamе
* * * conveyed
tract
acre
to the said
125½
separate property
wife,
of his
Hannah
Castles in this deed for the
of secur-
Bounds,
ing
Bounds. The
Hannah
in-
died
the title of the minor’s half. The said
October, 1878,
surviving Castles to take
testate in
immediate
and left
pay
tract,
77 acre
taxes and receive the ben-
Bounds,
husband,
her G.
her
and Rosa
efits of same and
title to G. W. Bounds
Bounds,
child,
her
an infant about a
Survey
to 40
Ford
when title to minor’s
grew
month
Bounds
old. Rosa
womanhood
perfected.”
half is
October,
Easterling
and married
In
Easterling
Sam
1895‘.
September, 1897,
(Bounds)
the said Rosa
This deed contains the same fieldnotes of
surviving
and left
intestate
the 77-acre tract
in deed
from G. W.
husband,
child,
her
Sam
and one
Bounds to T. A. Bounds. Then follows a
Leroy Easterling,
September warranty
was born
deed from G. W. Bounds to T. F.
Easterling’s
Castles,
dated
name
December
filed Febru-
conveyed
90, p. 216,
ary 3, 1899,
a half
in said
in volume
interest
recorded
recited,
effect,
County
Records, reciting as
that the other half interest
Navarro
Deed
land,
part,
the would be
him
deeded to T. A. Bounds when
consideration
May Bounds,
county, Tex.,
minor,
survey
said Rosa
becomes of
in Navarro
H. Ford
by age. The
from T.
deed
A.
T. F.
date to G. W.
Bounds to
deeded
on the
conveys
Castles
a half
in said
from G. W. Bounds
This deed
interest
Castles.
F.
recites,
effect,
following
acres and
half
de-
the other
contained the
to T. F. Castles
conveyed by
scription
interest will be
W. Bounds
G.
:
May Bounds,
to T. F. Castles when Rosa
being
the undivided
(cid:127)‘27 acres of
Bounds,
minor heir
my the
becomes
G.
Deroy Easterling, minor,
of
own,
11½
age.
being
29,1898,
W. Bounds did
undivided interest
On December
G.
the two
one-half
Survey in said
Castles, containing
in 77 acres of the Turner Smith
execute a deed to T. F.
contain-
bounded as follows
language
description:
following
less.”
77 acres more or
land, being
*4
“27
of
acres
the undivided interest
Leroy
Easterling, minor,
agreed
of
my
statement
a
acres
From the
11½
being
own, the two
inter-
one-half undivided
tried,
findings
the
was
and the
this case
Survey in
est in 77 acres of the Turner Smith
that,
77 acres deeded
of the
it is evident
bounded as follows:”
Bounds,
G. W.
T.
Bounds to
D.
property
separate
of G.
description
of same was the
follows the
the
Then
sep
the
acres of same was
and 27
W. Bounds
77 acres as in the deed from T. D. Bounds
Bounds,
arate,
Hannah
his
Bounds.
to G. W.
The above three deeds
Bounds, intes
Hannah
duly
and on
death
the
notice
all
recorded and constituted
to
subject
interest,
tate,
subsequent purchasers,
undivided
her 27-acre
in-
A. Bounds and all
G. W. Bounds
one-third
cluding appellees,
the
estate of
to
of said 27
life
to at least
that
the title
child,
acres,
in her
outstanding
in a
27 acres of said land was
May Bounds,
married minor,
Rosa
afterwards
G. W. Bounds
and that the
from
deed
Easterling;
of Rosa
death
convey
belonging
that on the
S. H.
purporting to
the 27 acres
interest,
Easterling, intestate,
her 27-acre
Leroy Easterling,
minor,
to
ineffec-
was
subject
in
in
W. Bounds
convey any
of G.
same,
the
estate
to
life
was
tual
to
title to
but
same,
and vested
to,
did, convey
descended
one-third of
to
sufficient
the title
as
only child,
known
Bounds,
her
the
owned
G. W.
11½
only part
Roy
of said 77
So the
Bounds.
his said life
in one-third
said 27
estate
controversy
in-
undivided
here is an
Robinson,
v.
28
acres. Stratton et al.
Civ.
mi-
the
reference to
App. 285,
The
27 acres.
terest of
nor’s interest in the
record
333
appellate
acres. our
purported
77
Bell v.
the entire
courts.
Baker
Nenge
filing-of
Janu- Com.
Kuehn
this
S. W.
date to the
From
ary
months,
years,
bauer
S. W.
Erick
is 26
Roy
Macy,
days;
States
in the United
son
Y.
131 N. E.
enlisted
N.
January 2,1917,
in active serv-
and was
R.
A. L.
contend the
But
period
longer
repеaled
of over
until
above act has been
and no
ice
4
provisions
that,
years.
application.
contend
has
be observed that
will
pf
Civil
and Soldiers
ap
above,
the Sailors
10322 of
Code
section
Barnes’
440),
(40
plied
provides:
Stat.
Act of 1918
Relief
to the facts of this
limitation,
service,
computing
inwas
period military
service
shall
(Barnes’
Section 100
should be deducted.
computing
period
included in
or here-
now
10313)
fol-
act reads
bringing
§
Code
after to be limited
of
law
any person
in mili-
lows:
tary
heirs,
service
execu-
purpose
“Purpose
Statute. —For
tors,
assigns,
administrators,
such
whether
enabling
success-
more
the United States
prior
cause of action
have accrued
to or
shall
carry
fully
prosecute
on the
in which
war
during
period
such
service.”
hereby
protection
present engaged,
is
it
extended
United
injury
military
persons
service
inwas
service for
active
prеvent prejudice or
in order to
years.
during
of over
term
act was
their
their
civil
en- during
give
them devote
enable
service
be free
time he should
nation,
military
energy
needs of the
tire
energies
prosecution
war
his
without loss or
following provisions are
end
damage
rights,
to his civil
legal
suspension
*5
temporary
of
for the
made
proceedings
accomplish this,
provided
the
to
time of such
said act
preju-
may
which
and transactions
nоt
in
service should
be included
persons
service
such
of
the civil
dice
determining
or
he
whether
not
was barred
present
during
war.”
of the
the continuance
25-year
bringing
action
this
the
10322)
1919,
(Barnes’
of
§
Code
Section 205
limitation;
right
privi-
statute of
and this
or
provides:
said act
lege
legal rep-
his heirs or
extended to
military
During
period
not be
service shall
resentatives
his death.
the
of
any period
computing
here-
or
devoting
now
years
included
after
оf
he was
and
of his time
bringing
by any law for the
to be
limited
energies
war,
prosecution
he
of the
any person
against
in mili-
execu-
action
or
brought
and,
be-
could
this
not have
against
heirs,
tary
his
or
service
or
just
proper
give
true,
him
and
it was
to
assigns,
administrators,
tors,
such
whether
or
length
sue,
ex-
the same
which to
of time
prior to or
accrued
shall
cause
during
service,
cluding
spent in the
as
the time he
period
service.”
the
of such
every
person
has
is allowed. This act
other
10347)
(Barnes’
1919,
repeáled.
(Barnes’
Code
§
Section
Section 603
never
provides:
provides:
act
10347)
act
§
Code
the ter-
in force until
“This act shall remain
until
the
“This act shall remain
force
war,
six
there-
war,
months
of the
and
mination
after:
and for six months
termination
Provided,
Provided,
under
That wherever
wherever under
That
thereafter:
n
**
proceeding,
provision
priv
act
provision
this
or
section
act a
or
of this
sectiоn
* * *
accounting,
privilege, stay, limitation,
remedy,
ilege
provided,
or
has been authorized
or
enjoyment
may
has been authorized
or other transaction
provided,
ex
the due exercise or
which
enjoyment
beyond
or
period
the
exercise
due
herein
for the
tend
fixed
beyond
may
period
provi
herein
act,
extend
such
or
termination
section
Act, such sec-
the termination of this
fixed for
shall be
to continue in full force
sion
and effect
exercise or
* * *
deemed
provision
long
may
necessary
be deemed to continue
tion or
shall
be
as
long may
necessary
enjoyment
privilege
as
be
full
to
effect so
force
enjoyment
proceeding,
accounting,
the exercise
aforesaid.”
remedy, privilege, stay, limitation,
aforesaid.”
or transaction
Roy (Easterling)
or about
Bounds
July 25,1921. Appellants
his
had the
as
heirs
began
Comp. St.) pro-
(U.
3115iy1Bf
Section
S.
25-year
run,
right,
ever
if
statute
vides :
years
army
de-
he served
to have
any provision
interpretation
re-
of-
25-year
“In
statute constituted no
ducted. So the
lating
termina-
or date of the
the duration
defense.
present
date when
war
tion of
year
3, 5,
or 10
Was the
statute
be con-
effective shall
becomes
this resolution
course,
appellees? Of
limitation available to
date of
termina-
as the
and treated
strued
limitation
in no
under these statutes
could
the war.”
tion of
begin
against
until
the minor
event
to run
July
age,
19,1918.
this time
At
above resolution became
he became
Compiled
navy,
continued in the serv
U.
Statutes
he was
March
1921.
S.
17A;
Compiled
So
until
U.
ice
federal act above
Title
Statutes
discussed,
Supp.
could
event
SllS^rjf.
act of
limitation
Ttíat
§
binding upon
begin
against him
Congress
to run
not
is constitutional
January
discharged on
the decisions
until he
our
courts is settled
state
appellees
per
date
Prom
this suit was
and
date to
lease was
the mineral
years, months,
by ap
filed,
property,
sonal
was 4
and the claim
asserted
pellants
recovery
per
days;
claim for
died intes
but
7,
2-year
July
sonal
Preestone
controlled
tate on
5526, 4,
issue,
appellants
Tex.,
leaving
limitation.
§
statute
Article
Re
without
vised Civil
appellants
Statutes.
contend
There was no administra
his
tion
heirs.
estate,
cotenants
so limitation ceased to
ownership
not
yеar.
the 77
limitation
run
for one
his cause of action
begin
against appellants’ right
to run
;
Revised
Hendricks v.
Statutes
part
recover a
lease
until a de
Huffmeyer (Tex.
777. So
by appellants
mand therefor was
such demand
year
made
in’no event
the 5 or 10
statute avail
refused,
and that such demand
defense
able as a
made,
was never
and therefore limitation diá
available,
limitation was
begin
run
such
until this
that
grantors
and their
true,
appel-
might
suit was filed.
if
was not under title or color
title
recognizing
lees were at all times
East-
meaning
within
Revised
of article
erling
cotenants;
and his
such
heirs
Statutes,
prescribing
period of limi
Th)e
was not the case.
deeds from P. Castl
tation,
5508, defining
article
“title”
es to Kate Williams and from
Williams
Kate
Appellees
“color
title
of title:”
claim
Walthall,
to W. A.
and from W. A. Walthall to
all of the above
All of said deeds
deeds.
timely
convey
Murphey,
J. M.
and
all of which were
ap-
were recorded
pellees
constituted notice
duly recorded, purported
that at
the title
least
entire title to said
and under
belonged
the 77
the minor
to either
held,
grantors
deeds
and their said
Rosa
ling,
the minor
Easter-
used,
occupied
acres under
the entire 77
outstanding
and that said title was still
ownership
September 5,
claim of
1899. So
from about
in
acres in
title or
the
of said minors. As to
interest of 27
against ap
limitation
to run
acquired
pеllants’ rights
part
to recover a
meaning
title,
color
within
our statutes. Articles
money on October
the date same was
above articles of
appellee
Murphey. Appellants
J. M.
Statutes;
Burnham v.
Revised
appellants,
contend
were
minors,
them.
further
some
*6
Hardy
1139;
Co.,
555,
Oil
W.
108
195 S.
Roy Easterling, were
half-sisters
Hugo,
26
Green v.
17 S.
limitation did not run
and
Rep. 824;
Grigsby
Am.
al.
St.
Cole
al. v.
et
et
intestate without
5;
680, par.
Silcock
35 S. W.
money
July 25,
issue
collected
1921. It will thus
cuted and the
erling
1921. The
was
lease
Baker,
App. 508,
25 Tex. Civ.