174 S.W. 829 | Tex. App. | 1915
Trespass to try title filed May 21, 1913, by McElroy against Nunez, involving five acres out of survey 110 1/2. Upon trial before court, judgment was rendered in favor of McElroy. Defendant pleaded not guilty and three, five, and ten years' statute of limitation.
2. We cannot set aside the finding that Nunez and wife did not occupy the premises under any claim of right or title, other than as a tenant of Dodge, at any time during the occupancy of the same, until shortly before institution of suit.
It is true Nunez testified he had for many years claimed the same and its surrounding lands under a grant from the Republic of Mexico, but he was an interested witness, and the court was at liberty to disregard the same. Pridgen v. Walker,
For quite a number of years Nunez rendered and paid taxes on certain personal property, but made no rendition of lands and paid no taxes thereon, and this omission is a circumstance tending to show that his possession was not adverse. Webb v. Lyerla,
The acceptance of the lease contract recognizing Dodge as his landlord is another circumstance. Dodge for many years exercised dominion over the tract which Nunez claimed under his supposed Mexican grant, *830 and at no time or in any way did Nunez question Dodge's right, although Nunez testified that he claimed the premises in controversy and a large surrounding body of land under this grant from the Mexican government.
Plaintiff having connected himself with the sovereignty by regular chain of title, the burden of establishing his title by limitation then rested upon defendant, and under the circumstances detailed, this court would not be warranted in setting aside the finding that his possession was not adverse.
3. The evidence amply supports the finding that the premises were situate within the Annie Mason survey No. 110 1/2.
4. The wife of Nunez was not a necessary party defendant, since the homestead right was in no wise available as a defense. Jergens v. Schiele,
5. From what has been said, it follows that the court did not err in finding against Nunez upon his plea of limitation, and in favor of McElroy for title and possession.
Affirmed.