108 F. 919 | 5th Cir. | 1901
J. D. Cooper, the defendant in error, on February 2, 1900, brought this action of trespass to try title to land described in the petition against C. O. Nelson, Jr., the plaintiff in error. The essential averments in the petition were the formal ones prescribed by the statute. The defendant answered by plea to the jurisdiction, the plea of "not guilty,” and a special plea of the three-year statute of limitations. The trial resulted in a verdict and judgment in favor of the plaintiff.
The defendant submits that the trial court erred in 14 particulars, set out in the assignment of errors. We do not find in any of these ground for a reversal of the judgment. The thirteenth and fourteenth specifications relate to the refusal of the trial judge to give a requested charge on the subject of the three-year limitation, and his refusal or failure to give any charge on that subject. To support the plea of the three-year statute of limitation it was necessary for the defendant to have shown title, or color of title, from the government to himself. Rev. St. Tex. 1895, arts. 3340 (3191), 3341 (3192). The land in controversy is embraced in a grant that was made by the government to William II. King on July 29,1846. The defendant introduced the patent evidencing this grant. He then offered a certified copy of an instrument in writing in the form of a deed to land, perfect in every particular except that it named no grantee.
It was admitted by the parties that the patentee, W. H. King, died on January 8, 1861, and left as his only heirs his children, 0. M. King and Mrs. M. E. Dumble. The defendant offered in evidence a deed from C. M. King to G-. J. Gibbs, dated July 17, 1893, and duly recorded July 31, 1893, purporting on its face to be given in consideration of the sum of one dollar paid, and to bargain, sell, release, and forever quitclaim unto the grantee, his heirs and assigns, all the grantor’s right, title, and interest in and to that certain tract or parcel of land lying in the county of Bosque and state of Texas, embracing the land in controversy, being described as 1,652 acres, more or less, of the William H. King survey, near the town of Clifton, being the same tract deeded by William H. King, deceased, to J. R. Craddock, on „or about the 21st of April, 1852. The interest conveyed is the entire right, title, and interest in the said tract of land to which the grantor may be entitled as an heir at law of the said William H. King, deceased, and the deed recites that:
“This deed is made for the purpose of correcting an error in the deed from William H. King, deceased, to the said J. R. Oraddocls, which said deed is recorded in McLennan county. * * * The deed so recorded fails to show the name of the grantee, J. R. Craddock, and this conveyance is made for the purpose of correcting said omission, and to ratify and confirm the deed from the said William H. King, deceased, to said J. R. Craddock.”
"The chain of title introduced by defendant from the state of Texas down to him shows that he is the owner of an undivided one-half of the lots sued for, regardless of all other questions in this case, and you are therefore instructed to iind for him an undivided one-lialf Interest In the lots sued for, regardless of all other questions in this case.”
This request was refused. O. O. Nelson having begun to hold the land in controversy on March 31, 188(5, under a deed duly recorded on that day, and having continuously held the same thereunder from that date until November 7, 3895, and regularly paid the taxes thereon from the time he acquired it until lie sold it to E. Hauke on November 7, 1895, had acquired a perfect title thereto under the statute of five years’ limitation against G. M. King and G. J. Gibbs, or persons holding under either of. them; thus making an effective break in the chain of title between the original patentee, William II. King, and the defendant, C. O. Nelson, Jr. Rev. St. Tex. 1895, art. 3342 (3198).
It is said in the tenth assignment of error that the plaintiff in the court below could not rely upon the statute of limitations in this case, because he had not pleaded the same. In the printed brief submitted for the plaintiff in error we find no reference to this tenth assignment, and we conclude that the learned counsel abandoned it. We therefore do not discuss the suggestion that, in the state of the pleadings in this case, the plaintiff could not rely upon the title acquired under the five-year limitation by 0. O. Nelson to defeat the title subsequently acquired by the defendant below from G. J. Gibbs, further than to> say that the unsoundness of this suggestion is shown by the following cases: Rivers v. Foote, 11 Tex. 671; Hannay v. Thompson, 14 Tex. 144; McSween v. Yett, 60 Tex. 183; Hines v. Lumpkin (Tex. Civ. App.) 47 S. W. 818. These material issues having been correctly resolved by the court in favor of the plaintiff below, there remained only the issue raised by the plea to the jurisdiction, and the issue between the parties as to the bona fides of the transactions between C. O. Nelson, E. Hauke, and C. O.
The eleventh error assigned is the refusal of the court to give a requested charge on the subject of jurisdiction. But the substance of the request was fully covered and more correctly expressed in the charge which the court on its own motion gave to the jury. The instructions on the issue as to the bona fides of the transactions between Nelson, Hauke, and 0. O. Nelson, Jr., are not criticised in the assignment of errors, and we may assume that they were satisfactory to the defendant, as they are sound and sufficient. The judgment of the circuit court is affirmed.