81 S.W. 63 | Tex. App. | 1904
This is a suit in trespass to try title brought by appellees against appellant in the District Court of Hood County, to recover an undivided interest in 320 acres of land. On April 6, 1878, R. T. Foster, Sr., whose wife was then living, purchased at tax sale the 320 acres of land in controversy. Immediately thereafter he took possession, after which, and on January 23, 1880, Mrs. Foster died, leaving surviving her, besides her husband, the appellees and a son through whom appellant claims. The tax deed to R. T. Foster, Sr., was filed for record August 3, 1880. R. T. Foster, Sr., by warranty deed, dated March 4, 1895, filed for record August 22, 1895, conveyed the land in controversy by metes and bounds to a son, G. W. Foster, who in turn conveyed the same to appellant November 24, 1902. R. T. Foster, Sr., together with his wife during her lifetime, and together with his children after her death, was in possession of the land until the conveyance to G. W. Foster above referred to. Since the conveyance to him G. W. Foster has at all times held possession, and paid the taxes for the years 1895, 1896, 1897 and 1898. The taxes for 1899 were paid, but by whom the record does not disclose. Upon this state of facts the trial court, without the intervention of a jury, rendered judgment for the appellees, upon the theory, doubtless, that the land was a part of *57
the community estate of R. T. Foster, Sr., and his deceased wife. This we think was error. From the dates above given it will be seen that the tax deed, which all the parties to this suit claim to be the basis of their title by limitation, was not recorded until after the death of Mrs. Foster. Until its registration the five years statute of limitations did not begin to run. Sayles' Civ. Stats., art. 3342; Porter v. Chronister,
Neither party contends that the tax deed in this instance is more than a basis for limitations. The prerequisites of a sale for delinquent taxes were not shown. This being true, and the facts hereinbefore shown being undisputed, the District Court should have rendered judgment for the defendant. The judgment is therefore reversed and here rendered for the appellant.
Reversed and rendered. *59