41 S.W.2d 28 | Tex. Comm'n App. | 1931
This suit involves the title and right to the possession of the John Gibbs Survey of
While the defendants in error contended that the plaintiffs in error were not entitled to recover as the heirs of John Gibbs, and the vendees of such heirs, in view of the disposition we shall make of this ease, and the verdict of the jury, it will not be necessary to discuss that question. We will, assume that the plaintiffs in error held the record title to the land involved, and were entitled to recover the possession of jt,..unless, the def endants in_. error) .had, acquired - title' under the statut¿ o¿ either, the .five or ten year statute of^limitation. The trial developed that the defendants in error claimed under one John Glenn, who had a deed from one J. H. Truitt conveying the land in controversy to him in 1902. This deed was placed on record in 1903, 'and commencing with 1905, either John Glenn or his vendees, except a man by the name of Wright, who held a deed from John Glenn for a few weeks, when it was re-conveyed to John Glenn by right, who paid the taxes regularly, continuously claimed the land up to the time this suit was filed.
In 1914 the vendee of John Glenn, A. B. Carruthers, filed a suit in the form of trespass to try title against the plaintiffs in error, having apparently the purpose to establish his title under the statute of limitations. The plaintiffs in error, in this case, as defendants in error in that case, filed a general demurrer, a general denial, and a plea of not guilty. In 1915 this suit was dismissed by the plaintiffs, and another suit, in 1916, of a similar nature, was filed against the same parties as defendants, in the same court, where the original suit was filed, that is, in the district court of Hutchison county, and the plaintiffs in error, as defendants in that suit, again filed a general demurrer, general denial, and a plea of not guilty. This suit remained on the docket until 1924, when it was voluntarily dismissed by the plaintiffs. Then this suit was filed as above stated.
It may be conceded, for the purpose of discussing the question, that the defendants in error did not show, by a preponderance of the evidence, that they had acquired, as against the plaintiffs in error, the title either under the five-year statute of limitation or the ten-year statute of limitation to the land involved, should the time during which these suits -were pending, be excluded, in computing the time during which the defendants in error were in possession of the land; It tejjon-tended by the plaintiffs in error that when the'deFenclants In "error filed these suits, respectively, this stopped the running of the statute of limitation in their favor. While the testimony, as to the time these suits were so filed, and the time they were pending, and the character of the suits, was excluded from the consideration of the jury by the trial court, yet the bill of exception shows all of these facts without controversy. The assignments of error fully present the question, and in support of their contention, that the filing of these suits stopped the running of the statute of limitation, during their pendency, the plaintiffs in error present three eases which they claim sustain their contention, and as •being in conflict with the opinion of the Court of Civil Appeals in this ease, to wit: Taylor v. W. C. Belcher Loan & Mortgage Co. (Tex. Civ. App.) 265 S. W. 403; Miller v. Gist, 91 Tex. 335, 43 S. W. 263; Cavitt v. Amsler (Tex. Civ. App.) 242 S. W. 246, 249. The opinion in the first case, by the Court of Civil Appeals of the Third District, did not reach the Supreme Court. The last case, which is also an opinion rendered by the Court of Civil Appeals, did reach the Supreme Court, and was dismissed for want of jurisdiction. In the other, an opinion was rendered by the Supreme Court itself. Before discussing these cases, we deem it proper to discuss the statutes and the opinions in some other cases rendered by the Supreme Court itself.
Article 5514, R. S. 1925, defines “peaceable possession” to be “such as is continuous and not interrupted by adverse suit to recover the estate.” Article 5515 defines “adverse possession” to be “an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” The word “estate” in law means the degree, quality, nature, and extent of one’s interest or ownership of land or other tene
There are other decisions supporting the principle enunciated in the decisions we have mentioned, to the effect that -the entry of the true owner upon the land does not disturb the actual possession of the claimant, except that entry be manifested by the filing of an adverse suit in a court of competent jurisdiction against the claimant, and the prosecution of such suit to a final judgment upon the merits of the case, wherein the rights of the respective parties to the land involved are finally adjudicated. In other words, peaceable and adverse possession ce'ased only when such an adverse suit is filed, and the running of the statute of limitation is not interrupted, unless such adverse suit is prosecuted to final judgment.
Referring to the cases, which the plaintiffs in error contend are in conflict with the opinion of the Court of Civil Appeals in this case, we find that there is no real conflict when these cases are properly construed in. the light of the questioh involved. In Miller v. Gist, 91 Tex. 335, 43 S. W. 263, both parties claimed the land under a limitation title, and the court merely held that an unsuccessful suit, by one of such parties, did not affect his title by limitation against the rest of. the world. Taylor v. W. C. Belcher Loan & Mortgage Co. (Tex. Civ. App.) 265 S. W. 403, 405, is distinguished from this case in several particulars. In that case, the parties prosecuted a suit to a final judgment in the Supreme Court, and it was merely held in that case that the statute of limitation was suspended between the filing, by one in possession, of a suit, in trespass to try title, and for adjudication of the right of possession, and the final judgment rendered by the Supreme Court. In that case, W. C. Belcher Loan & Mortgage Company was the owner of certain vendor’s lien notes, secured by a deed of trust on the land in controversy, the title to which was in Mahala Taylor, a widow, and in her children, as heirs of their deceased father. The Taylors repudiated the loan, and thereafter the mortgage company caused the land to be sold under the power given in the deed of trust, and became the purchaser of the land at the sale. Thereafter the Taylors, while in possession of the land, instituted suit against the mortgage company to cancel and annul the deed of trust and the trustee’s deed, the petition also .containing a count in the usual form .of a suit of trespass to try title. The mortgage company answered by a general denial, and a plea of not guilty. Judgment was rendered in that suit for the Taylors, annulling the deed of trust, and canceling the trustee’s deed, and further adjudging that they have the title and possession of the land in controversy. The mortgage company appealed from such judgment, which was affirmed. (Tex. Civ. App.) 173 S. W. 278. A writ of error was granted by the Supreme Court, and upon a hearing that court reversed the judgment of the trial court and of the Court of Civil Appeals and rendered judgment for 'the mortgage company, the general order being that plaintiffs take nothing by their suit, and that the defendant go hence without day, and with its costs. 212 S. W.
After quoting the statute defining “peaceable possession,” the court, in that case, says: “The rule announced on this question is that whore a claimant in possession of land brings an action to adjudicate his title and right of possession against another, who is asserting some right of title or possession, such action, when contested, suspends the running of limitation in favor of the occupant pending the final judgment.” As indicating the construction placed by the court by this language, which we have quoted, it quotes the following from 17 Ruling Case Law, 870, pars. 228 and 232:
“Where the character of legal proceedings is such that the law restrains one of the parties from exercising a legal remedy against another, the running of the statute of limitations applicable to the remedy is postponed, or, if it has commenced to run, is suspended, during the time the restraint incident to the proceedings continues. * * *
“An action is said to be pending, so far as suspending the statute is concerned, until the final disposition of the appeal. So an appeal which suspends the right to recover possession of land has been held to stay the running of the statute against an action to recover rents and profits pending such appeal. And, as a cause of action cannot be said to have accrued until an action can be instituted thereon, when the regularity of the proceedings for the condemnation of land, as well as the amount of damages due the owner, is pending on appeal, he cannot bring an independent action for such damages.”
This rule is necessarily a very just one. If a party commences legal proceedings, the character of which is such that the law restrained one of the parties from exercising the legal remedy against. another, common justice demands that these legal proceedings, being of such character, should not have the legal effect to protect the person who commenced them, and thereby prevent his adversary from exercising his legal remedy against him. The above-quoted excerpt from Ruling Case Law is also used by the court in its opinion rendered in Cavitt v. Amsler, supra, the opinion of which is claimed to be in conflict with the opinion in this case on this subject. In Cavitt v. Amsler, the court quotes from 25 Cyc. 1278, as follows: “Where a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations' have barred his right.”
In the case at bar, the plaintiffs in error were not prevented from exercising their legal remedy to institute an adverse suit against the defendants in error to recover the estate involved. Obviously, the plaintiffs in error had the right, in either of the suits brought against them by the defendants in error, to have filed a cross-action,in_the form of a trespass foTFy'title,' asking affirmative relief to remove the cloud cast by the claim to the land by the defendants in error, to adjudicate the title thereto, and to recover the possession thereof. This they did not do, and the defendants in error, in each instance, the record being in this condition, exercised their legal right to dismiss the case which had been brought against the plaintiffs in error. The court was under the duty to do as. the defendants in error requested in the absence of 'the filing of a cross-action in the form of a plea for affirmative relief.
Had the position of the parties been reversed in these two suits, and had the pleadings of the parties been the same, as reversed, and had the plaintiffs in error, as original plaintiffs, brought these suits in trespass to try title against the defendants in error to recover the estate here involved, and had they done as the defendants in error did, dismissed these suits, and thereafter brought a suit as they did bring one here, the legal principles applicable to this question, as applied to the parties, would have been the same. Had such been the state of the record, plaintiffs in error could not have excluded the time, during which these suits were pending, so as to bar the defendants in error from their fights, as claimants and occupants of the land, to set up a title by limitation during the time these suits were pending, which were afterwards dismissed. It is well to remember that article 5514, R. S. 1925, is couched in substantially the same language as was used in the original state of 1836. This language defines the phrase “peaceable possession,” and this phrase has reference to the status of a person in possession of land, under a claim of right, maturing under the statute of limitation. Where a person is in peaceable possession of a tract of land, under a claim of right, and
We believe that the trial court was correct in refusing -to admit proof of these suits, that had been instituted by the defendants in error against the plaintiff in error in the form of trespass to try title, and which involved this particular land, and which were after-wards dismissed by the original plaintiffs at a time when the original defendants had not filed any cross-action in either of them, asking affirmative relief against the original plaintiffs, because such proof so offered did not tend to establish any material issue in the case, and it was irrevelant and immaterial.
The plaintiffs in error present other assignments of error, the effect of which is to say that the -testimony offered by the defendants in error, in support of their pleas under the five-year statute of limitation, and also under the ten-year statute of limitation when considered most favorably, in support of the findings of fact by the jury, are insufficient to sustain these findings and the judgment rendered -thereon. The plaintiffs in error strenu
While there are other assignments of error presented in the application, the Questions involved are sufficiently discussed by the Court of Civil Appeals in its opinion. This opinion correctly disposes of every question presented by the plaintiffs in error, and in such way that we do not deem necessary any further discussion of them.
We recommend that the judgments -qf the Court of Civil Appeals and of the district court be affirmed.
Judgments of the district court and Court of Civil Appeals affirmed.