*1 Appeals certified the Court of questions, ion of this court from which this of judgment affirmed writ error is sued out, now reverse. judgment Although Appeals the certified from the Court Civil copy stated a of the opinion accompanied this court of that court fact, opinion, was not neither question, court; before this copy party. was there a the brief of counsel for either far as the believe, may so former decisions of this court competent be understood as that this holding testimony was admis- expressed sible, objection legal they over the a are conclusion, nor prin- sound sustained correct supported authority, legal ciples, and we are constrained to overrule those so far cases, so understood. For the errors indicated judgments the Dis- opinion, Appeals trict Court and Court of Civil and this cause reversed, opinion. remanded the District Court for trial accordance with this Reversedand remanded. 1895. Delivered June 17, R. E. Huff et al. J. et S. Crawford al. 258. No. 1. Case Limited. Texas, 217, Nichols, 55 Hunton v. discussed and limited..................
2. Limitation in Actions for Real Estate—Absence of Defendant from Statutes, prescribing, temporary 3216, Revised Article absence of de- fendant from the State shall not be accounted or taken as a of the time limited, applies to all suits alike. So held in action for land where defend- nonresident, and held ant was a the land tenant................... Limitation. 3. Statutes of limitation discussed......................................... 4. Honresident Limitation. Article does not to a nonresident who has not the State................................................... by Agent. Possession We are of of land should be deemed possession by to have the same effect as tenant....................... Court Civil for Second District, Certified Question appealed County. in a case Wichita appellant. R. E. A. Templeton, and J. —1. The Huff of one cotenant is the and in the case other; of R. E. Ruff C. codefendants, Martin, F. Y. on and S. Collins. Terrell v. Freem. 124-128; pp. Coten. secs. Wood sec. 166, 167; Lim., 558, 560, Cbawford. w 1895.] in a defendant who a nonresident suit, Where tk in support such suit limitations, e statute
pleads bar *2 has had in controversy he of the land shows thereof necessary complete by through of time such bar a tenant or period occupancy suspension of the to avoid such sufficient cotenant, of the Stats., reason defendant. Rev. nonresidence such statute Hunton 217-230. 4790; Texas, art. in Where, perma as a defendant has removed beyond of the statute of
nently running the limits or dur interrupted suspended limitations is not as to such nonresident 3216 applies the time he so resides without the article ing State; but only where the defendant whom it resides within against is invoked Stats., temporarily arts. the State absent therefrom. Rev. Texas, Love v. Moore Page, Doak, Texas, 343; Hendrick, Texas, Carrigan, appellee.
A. H. —The certified in this case is the construction of article 3216 of the Eevised Texas, connection with precise point article and the issue will the is, years’ limitation be effectual behalf of a who is absent from the State the time the bar is to main sought possessed tained after he in controversy by has land dur ing said absence? appellees
The first contention of that article 3216 applies to for recovery actions of real and all other estate, actions rem as well personam. It will be that our observed, statutes of limitations for all kinds of actions are embraced and included one single title, which is numbered 62. title is chapters. This subdivided into three The first has reference alone to actions for the of land. The periods second includes the of limitation for all actions, chapter also real estate and all other actions rem. The third con- provisions, exceptions which are of limi- general tains statutes in. prescribed chapters 1 and 2. tations Article is contained in chapter third evidently said title and would refer to all of in chapter the articles contained 2. But chapter as well we are speculate not left kind just what of actions referred to said article in question, nor even what articles of limitation are supreme said statutes of to be it; limited because power of the State has said in no mistakable in the language, begin- any person that “if ning of said whom there shall be action,” indicating persons reference all and is not limited to the character of and in the words actions; concluding of said article has that “the time of said, person’s absence shall not be accounted taken as a time limited of this title,” doubly thus making sure that said article referred to the time limited each of the other articles of title years’ statutes of five limitation is contained and we title, Sup.—24. Vol. LXXXVin Supreme Court 3216 refers to article 3193. that article that it must follow contend, under which appel- limitation is t'he-statute years’ of five
The statute possession of the in ques- years’ the time of five lants desire behalf order to iq make and taken be accounted tion shall ' this case. What then is the as contended for the bar effectual .in time. Obviously, What is the plea of limitation? of their essence Unques- limitation? years’ the five point very cardinal be no bar. Ap- the full there would Without time. tionably, requisite time, and from the State the hence pellants have been of the time and are not entitled the benefits under article controversy. of the land of their States, of this and other where court to the decisions refer the We now interpreted and held to to suits to were to ours similar statutes in personam: in rem as well as Fal estate, recover real Morrill Kan., 72; Lane’s well v. Hening, *3 31 v. Kirk Watterson 32; Kan., 689; Case v. Frazier, 23 Kan., Ingles, Railway Cook, 36 v. 43 Doster, Kan., 666; Beebe v. 17 wood, Kan., 9; Iowa, v. 38 Fryburger, 22 Kan., Rep., 1051; 185; Pac. 86; E. Ind., Rep. (S. Arthur v. 17 S. Screven, 10 183; Lagow Neilson, v. Murry 46 3 Charlott, v. Kan., 481; Baker, Bousevman v. C.), 640; Ohio, 13 Wildman, Wright Wood v. v. (U. 430; S.), 541; Wheat. Y.,N. Randall, v. 7 Ala., Osborne 227; 73 Strauss, doubt, 3216 beyond ap think that article Having demonstrated, we will next notice land, for actions years’ limitation plies to appellate is, court. Our contention by the question presented interpretation an of said article Texas, 217, is not Hunton 55 v. previous we refer to the de support contention, in of this and 3216; apply, And does not and is argument. besides, cited this cisions attempt first, because does not con authority question; on this no attempt if it does to construe said second, strue article tried dictum; third, said case was filed and obiter because it is Statutes, of our and was de the enactment Revised court below before after the enactment by the Commission cided interpreted by could not have said article Statutes, and hence with could said article have been enacted reference nor decision, in said decision. it be conceded that contained language to the limitation, how then can exception years’ an to the five article exception not enumerated said statute? create another the court and appellants agent, had had of the land It is true that- possessed that as the land appellants the contention their required agent, óf time an controversy length It will such time is immaterial be from the State absence supra, of Hunton v. that the defendant observed, Mchols, in the case and this had'possession land case that case for, but the facts as certified show tenancy is not contended not a There might tenant. agent, who held possession would contend that tenant’s enable reason to be some y. Cbawfobd. 1895.y exception statute, defendants to evade the the reason that
tenancy denotes some does not. “A ten land; agency interest by any kind of ant is one who holds Die., title.” Anderson’s Law But no p. exception the statute makes to an agent absentee from the State who has a tenant or an State; exception where the has made no to the statutes of limita can make none. Bank v. tion, Dalton, How., Amy the courts Rep., S., v. Lim., 22 Fed. Waterton, 820; Angel same U. Snoddy Cage, Texas, 110;
sec. Willson v. Appleton, Keller, Willson v. 509. Mr. In Ark., Bndlich, on Mass., 180; terpretation section of limitation 343, says, statutes be “There strictly. necessarily construed be moral lapse setting up the defense is the creation wrong time; not to be strictly and is extended cases which are not within law, not to enactment, be extended to cases not within possibly within their And words, though prin reason.” it is a ciple supported by well founded reason and authority, general general words limitations must receive a construction, express and if there no exceptions, court can make none. Cooke Am. McGinnis, Craig, Butler v. 61 Am. Dec., 809; Dec., 527; Cage, The fact that defendant maintained his him, judicial a tenant would not aid because it would be legislation exception
to engraft an on article 3216. And for very exhaustive treatise on we refer the court to the question, Amy case of Waterton, States, United and also to the Wright Strauss, 73 Alabama, 237. *4 now come to a line of your decisions to which we invite espe- case, Kansas,
cial attention. We cite the Lane 6 72. Lane had his place usual residence would Kansas, fact have enabled him plaintiff the to have sued leaving copy of the summons at residence, service, law, and such under such would be consti- judgment against tuted the basis but during the Lane; Lane, years prior bringing to the action he against was absent at he Washington, being United States senator from Kansas. In that that held, notwithstanding case it is the fact that during the whole of the time he had a residence the State, the statute did not run. The is the the decision based that statute not run ground, does sim- Also, says the so. Morrill ply because statute v. Ingle, Kansas, In that the defendant was absent from the before the property sought real to be recovered occupied by Avas the wife and family children of defendant as the for the full statutory homestead period. recovery An action for the of the land might it any time; maintained nevertheless was that the action held, was Kansas, Railway not barred. it Also, Cook, was con- 86, tended, proper person that the to an action bring against the re- covery person land was the actual and notorious and possession, Supreme fifteen over was that defendant had been shown the while he held tenant of the time
years; but inasmuch that the held, was from the was the real owner absent Kirk The case Watterton run such absence. during not Kansas, addition, In we cite Case strongly point. is wood, 9, Kansas, 66. Kansas, Doston, Beebe Frazier, “in Iowa, 197, held, it was In v. Fryburger, may the recover the plaintiff of real action for the many It evident the is occasioned detention. damages that the tenant, and damages cases full could be recovered only in an action the adequate against plaintiff obtain relief could the action Hence, although title. person claiming the adverse not be to compelled the should plaintiff brought the Lagow a nonresident. case of do the defendant is so, in case real 183, the one, to Iowa and is a similar case Indiana, v. Neilson, them it both of is principle; held, the same enunciates the the who claims the land although will tenancy the fact of the not cause possession, ahas tenant Massa- limitation to be effectual. Willson v. Appleton, the de- plaintiff assumpsit; is a where the sued case chusetts, plaintiff replied, limitation. The pleaded fendants beyond the of action accrued defendant was sea; at the time sup- rejoined, years making that within six after the defendant had an upon, plaintiff had posed since, sued ever promises to and receive his commonwealth authorized demand agent in the The court rejoinder plaintiff demurred. supposed this debt; plaintiff rejoinder had period “As to said: be a rea- might in the commonwealth absence, in- if the had seen fit to exception saving, sonable not for having provided But a case not for, it. troduce Keller, of Willson v. legislate subject.” on the the court Appleton, identical with case of Willson Arkansas, Supreme Court of Arkansas doctrine and the held same supra, Court of Massachusetts. enunciated for the Sec Chief —The CourtCivil GAINES, District certified for our determina Supreme Judicial have to us ond following"question: tion the among S. Y. this action
“G. F. and Collins defendants They plead for four the statute of trespass try title. limitations *5 plea entered, on They claim the account which the land, years. duly prior for than five insti years under deed recorded more to the prescribed by the The paying taxes as statute. tution of the suit, possession under this deed and for the been claim actual them, has, held for requisite however, time. The During the enjoyment, by agent. and for their use and their name, 1895.} .373 v. Cbawfobd. the necessary complete time the defendants named absent from residents of the another State.
“Question: the of article Do Revised preclude under these the defendants, foregoing interposing facts, the defense stated? “It the that the case of contended, Hunton v. regarded interpretation is not as an of this article;
or if so, that the announcement therein question made of this is obiter dictum.”
The case referred to contains the decision of court directly question. bears upon report the The is so defective that it is impossible to determine from it with degree of satisfaction the precise point which was decided. By referring, however, orig- inal transcript and briefs the among court, records of this we find that question the was presented, as we have though, concluded, was not involved the decision of the appellants case. The in that case had sued in trespass try title to of appellees recover certain real estate city Brush, Austin. one of the defendants below, pleaded, among defenses, other the statute of limitations; introduced evi- dence tending to show his of the property requisite period. The plaintiffs that replied, during the time of his occupancy he was absent from the In their brief appellants they made the in that account of Brush’s point, absence the did not run point
his favor. The
was not noticed in
appellee.
the briefs of
evidence was to
effect,
that Brush
held
tenants,
during great
of the time he had a
residence
Brooklyn,
¡New
the State of
York; that he resided there during five or six months
of each
year;
the other months he
resided Austin.
If the statute of
did
limitations
not run in Brush’s favor during any
portion of the
in time
he was
property,
bur-
plaintiffs
den was
to show it. When the case was decided,
it was the settled
law the State that the provision of the statute of
in regard
limitations
to absent defendants did not apply to persons
who were nonresidents of the State at the time the
action ac-
Lynch Ortlieb,
crued.
of the of real estate as an *6 {June, to all suits court, applies of and are
open one “Act of of 22 of the but a re-enactment section alike. article is That 23. That February 1841. Pasch. art. approved Dig., Limitations,” it is of 21 which adaptation I., of the statute James act was an Limitations, correspond- evidently modeled. See Wood made express of its terms, James ing provision it significant, is applicable only; to certain from section operation is limited are omitted words which its recovery for the periods within which actions Act of 1841. estate, prescribed personal nature, actions of a were as well as real it would indicate that act, place and its sections previous provided. for which a limitation had been every to apply was to reproduction substance Title 62 of the chapters, into three 1841. It is divided of the Act of main features of Actions second Land;” entitled “Limitation first which is is entitled, and the third personal actions; limitations of is devoted to necessarily to both applicable which are some of Provisions,” “General in the terms of the article nothing There classes. the fact that application, limited in its to be
indicates that was apply indicates that was in the general it is inserted designated chapter first as to those specified well to the actions for the why be reasons suits There the second. but there are operation from the excepted land should be the Leg- to induce us to believe that sufficiently cogent which are none expressed. so clearly language not intend what its islature general terms, in the same provisions, couched Similar by the courts of other recovery of lands for the held to suits Kan., Kan., Ingle, Morrell Railway Cook, States. Ind., Iowa, Lagow Neilson, Frybergcr, contrary to no cited We have been Strauss, 73 Ala., Wright any. nor have found ruling, question does not But the of article 3216. is our construction Such were residents of the or not the defendants named whether us advise possession was taken the adverse at the time within the State State If explicit answer. give not, can not agent. We their return until their favor ran their then at that then within were returned. they ever suspended. of the statute was running absence deemed to should be by a tenant. effect as the same have March Delivered
ADDENDUM. filed opinion in this case was —Since the GAINES, Chief has been our attention Appeals, to the Court and certified Daggett. & Co. v. Wilson 1895.] it,of say the least is calculated to which, language called to certain *7 ‘‘ But the does not advise opinion: in the It is
mislead. residents of the defendants named were us whether or not the adverse the time the was taken within the State at * * * ran their favor until their then agent. not, probably ever returned.” This admits of State, return to the though if the residents of the construction, defendants, would run the time taken, were absent at notwithstanding such absence. Such a construction would their favor, hold. very teeth of and we not intend to so statute, be ordered, published It is that this be an addendum to the published referred therewith. to,
Delivered June 1895. 20, Daggett
L. F. Wilson & Co. W. L. et al. No. 307. Limitations—Persons Without State. person A who has at all times a been nonresident of the who was temporarily taking within the State before adverse of land tenant, being since, when such was taken and ever is not State,” person 3216, limits of “without under article applies absent, applies Statutes. The article to residents as well to personal property ..................................376, real estate as Cases Adhered to. Ortleib, Crawford, Lynch ante, p. 368, and Huff v. adhered applying limitations, to in of the statute of the construction nonresidents, Cage, as to to real estate................................. Absent from person temporary purpose only, In case nonresident comes to this State for a having hy after taken adverse of land and remains in the State afor short is not a “return visit the nonresident ” meaning the State within the of article Revised Statutes ...... Appeals from Court of Fifth Dis- Certified Questions appeal from Archer trict, County. E. Dycus F. and R. F. for appellants. Arnold, appellees.
A. H. Carrigan, GAINES, —The Court of Civil for the Sec Chief ond Judicial District have certified for our determination questions: following composed “L. F. & firm L. Wilson, F. M. B. Wil- Co., Wilson E. acquired and W. a deed firm
son, McCrory, having