23 S.W. 513 | Tex. App. | 1893
This is an action of trespass to try title to recover 4 acres of land in Jackson County, a part of the William Alley grant, and known as the Cook Sugar Mill tract. Both parties deraign title from Caroline A. Cook, as common source; the plaintiff, Lochausen, through a deed from Mrs. Cook and her children, the heirs of her husband, John F. Cook, deceased, and the defendant, C.E. Laughter, as the surviving wife of G.H. Laughter, deceased, through an agreement for an exchange of lands, entered into between her husband and said Caroline A. Cook and her husband, John F. Cook. The defendant also pleaded the statute of limitations.
The evidence showed, that G.H. Laughter took possession of the land under said agreement in 1879, and enclosed and put the same in cultivation, and continued in possession thereof until his death, in 1887, and that since then the defendant, his surviving wife, has had possession thereof, and was in possession when this suit was brought, October 14, 1890. Upon the question of limitation several witnesses testified as to statements made to them and in their presence by Laughter in his lifetime, recognizing the title of Mrs. Cook to the land, and that there had been an agreement to exchange lands, but that it had never been carried into effect.
The court submitted the case to the jury upon the question of limitation alone, and charged them, at the request of defendant: "Limitation of ten years is created by acts of possession, and not by declarations of the parties. If the acts of Laughter and wife of adverse possession continuously for ten years, were of such a character as to give all parties notice of the adverse claim of defendant and her husband, declarations made by defendant or her husband, made to others than the plaintiff, create no estoppel."
Plaintiff requested an instruction, that the declarations of a person in possession of lands should be considered by the jury in determining whether or not his possession is adverse to the owner.
The charge of the court was erroneous, and for the error the judgment of the court below must be reversed. *294
As the case will be remanded for another trial, we will indicate our views as to the issues upon which it should be tried. We do not think that the question of limitation arises in the case; the contract was an executory agreement for the exchange of lands, and the defendant's husband did not claim adversely to this agreement. Laughter being in possession of the land, and the nature of the agreement being to exchange land, we do not think that Mrs. Cook could arbitrarily rescind the contract, time not being of the essence thereof; but it is for the jury to consider whether or not she was not warranted by the conduct of Laughter in the conclusion that he had abandoned it. We are further of the opinion, that the question of estoppel arises upon the evidence of Dowd, that he bought upon the representations of Laughter, that the land belonged to Mrs. Cook, and that an exchange had been agreed on but never made. The fact that the land was occupied by Laughter and his wife as a homestead would not prevent Laughter's statements from binding his wife, because they were made with respect to the acquisition of the land and arrangements made for obtaining the title thereto.
For the error indicated, the judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.
