*1 plaintiff testimony have 'the of for a violation of the only could affected exclusion (1) testimony upon appears: one of that the excluded of the witness rule where points parties, testimony to the case of the com- in issue between the was vital testimony plaining party; (2) of this was that the excluded and the witness af- appellant upon possibly all been vitally testimony could not have material violated He alone the fact that rule was of the issues case. fected thereunder; placed transac- or the was not knew the exact details witness give complaining party did not investigation, (3) and could tion attempt, property for which the connive the violation the amounts sold, expense some gain in han- and thus items of “educate” witness -the advantage opinion the dling property making my the sales. at the trial. clearly Blakey’s testimony exclusion of was- being There no other source erroneous, reasonably supplied, and the error was this could which evidence probably testimony been ex- to and did cause the his should have calculated improper judgment. of an point, cluded on at The evi- rendition this least. judgment for affirm the of the Court dence as to the in the case amounts Appeals. sold, property ex- Civil and the penses sale, making such is of the character,
most indefinite and uncertain CALVERT, dissent. J., joins this C. testimony of this was exclusion manifestly appellant.” injurious to up-
Courts usually are more inclined to
hold action of the trial in exclud- court
ing testimony of a witness who has vio- party
lated the rule calling where permit-
witness was in causing at fault or ting the violation and the excluded evidence PORTER, Petitioner, Thomas W. party’s merely is not vital to such case already cumulative in been has nature. WILSON, Sr., ux., Respondents. P. et Frank pointed Blakey’s out testimony tape recording he would have identified No. A-9867. respondent’s crucial re- were case. If Supreme Texas. spondent attorney guilty or his April 7, 1965. indiscretion, in fail- their mistake was keep Blakey to swear as a witness out of when him the court room at a time as a appeared been called
Watson
witness, subpoena, was not under and there deny no he would reason to believe that tape.
his Unless statements recorded power testimony to exclude punitive may merely be used
witness penalize
weapon party lack fore- for basis
sight, it seems to me that is no there Blakey refusing -to allow
whatsoever recording.
identify tape determine, as I been able to
So far case condone is the first Texas
652 *2 trespass brought try
This title suit was Respondents, April Wilsons, against Porter Thomas W. possession to others to recover title and of land 11.37 acres out west *3 11, 6, I of Section Block & GN RR Com- pany survey, County, situated in Randall However, controversy present- Texas. Appeals ed the Court of Civil and solely this Wilsons between Porter, and and involves title twenty-one lots numbered and twen- Thirty- ty-four (24) in Numbered Block (36) six of the Randall Coun- Palisades ty, lie within the bound- Texas. Both lots aries described in the of the 11.37 acres petition. Wilsons’ pleaded The both the Five1 and Wilsons Limitations, Ten2 is- Year and Statutes sues as to both statutes were submitted to jury judgment The for determination. Wilsons, allowing court the trial for the Harris, Amarillo, for Clayton, & Martin acres, of title entire recovery 11.37 petitioner. 24, including is based on af- Lots and Chambers, Stone, Stone C. Ama- & John answers in favor firmative Wilsons rillo, respondents. for on Prior both Limitation issues. pertaining to submission of these issues 24, presented Lots filed and and Porter SMITH, Justice. which was a Motion for Instructed Verdict opinion delivered in heretofore Subsequently, Porter filed mo- overruled. 2, 1964, is withdrawn veredicto, cause December tion obstante judgment non following opinion and the is substituted for a trial. These mo- and a motion new therefor. tions overruled. were both thereof, cultivating, possession 1. Art. Vernon’s Ann.Civ.St.Tex. verse “Every enjoying same, using suit to recover real estate insti- or shall against person having peaceable years ad- within ten his suit therefor tute possession thereof, cultivating, verse his action have next after cause of shall using enjoying same, paying peace- accrued, or afterward. thereon, any, claiming taxes if possession under contem- able and adverse duly registered, against per- a deed plated article, or deeds shall be in this years right action, having instituted -within five next after son shall be con- accrued, of action shall cause not more than one strued embrace ap- including sixty acres, not afterward. This article shall not hundred and ply possession land, improvements one in who de- or number of acres raigns through forged enclosed, actually deed. And ex- should same claiming forged deed, sixty acres; no one under a one hundred ceed forged power possession under executed taken and held when such attorney title, shall allowed the benefits of some written memorandum of this article.” bound- other than a fixes the duly possessor’s claim and is aries person "Any registered, peaceable 2. Art. V.A.T.S. who such right recovery has the of action for the shall be co-extensive be construed lands, specified tenements hereditaments such in- with the boundaries against having peaceable and another ad- strument.” Appeals, appeal Appeals On to the Court Civil Court of Civil render Porter, Appellant, presented points judgment as- nothing that the Wilsons take erred in serting that the trial court overrul- their suit so as Lots and 24 are far ing the above-enumerated motions. Por- concerned. principal throughout was
ter’s contention probative that there was no evidence of YEAR STATUTE OF FIVE findings of the jury force to LIMITATIONS title under Wilsons held either The Court of virtue of statute. principal for the con- basis Wilsons’ Appeals, Civil affirmed 371 S.W.2d tention that of the courts judgments judgment ground court on the of the trial below should be affirmed is the title under had established Wilsons Cook, Rosborough announced in 108Tex. *4 the Five Year of Limitations. Statute 364, which is to S.W. Therefore, did not consider the the court support effect to a limitation that order points attacking court before it the trial title under the Year of Limita- Five Statute upon judgment insofar was based as it tions, necessary it un- is not that Ten Year Limitations. Statute of made, convey der which the claim grantor title. is that the The contention Porter did as error in his mo- assign may wholly any vestige of barren of rehearing tion for failure of the Court title, and, therefore, pass the deed no sem- upon Appeals pass points, Civil these of to title; yet, pur- blance if it of describes and application and his writ error fails for of ports to the land and is on its face present points. to such good requirements it meets of statute, and claimant under the deed to We have concluded sustain Por provided, course, would prevail, of that all ter’s contention that Wilsons have requirements other the statute have been failed to under the Five Year establish title met. Limitations, but the Statute Wilsons contend judgment support that of the trial cite in Wilsons also of their court must be affirmed because Porter contention the case of Benskin v. Barks assign as error failure of the inter dale, Tex.Com.App., 246 360 (1923), pass upon points mediate court to at held, part: wherein it tacking judgment of the trial court upon jury based finding support that “The deed is sufficient ad Wilsons established title under the Ten possession verse and set in motion Year Statute of Limitations. With five-year statute of limitation. agree. latter contention we do not Since Newberry, 428, Parker 18 S. we have judgment concluded to reverse the * * statute, W. 815 *. so Appeals, Court of Civil concerned, far as a deed demands the Wilsons have title under the Five Year only person having peaceable Limitations, dispose Statute we will and adverse real estate questions the law presented applica be ‘claiming duly under a deed or deeds error, for pertinent tion writ of registered.’ Art. 5674. Of Rev.St. questions law presented appeal course such deed must describe Appeals Court of Civil which were not ** land. think the instrument We considered McKelvy court. See Barber, opinion falls within the class Court, designated by this deliv 8, July 1964, ered 59. S.W.2d deeds.”
For stated, the reasons to be agree now re- judgments we We cannot judgments verse both the trial court reached in controlling. these cases are seek land will not deed,3 a claim to the the Wilsons en under which tire tract under the Year Statute Five title under the perfect operate H. will a claim the Limitations, interest was executed J. purports This which the instrument on its May 1956. face Bright and wife on Tex.Com.App. sell, convey. Bruni, “bargain, Martinez v. Brights deed recites that (1 921), unto the quit holdings ap 235 S.W. and forever release proved Court, wife, Supreme Iris Wilson, Sr., Frank P. said Tex.Jur.2d Possession, assigns, all Adverse An Wilson, instru heirs Kirk their § ment to that right, such right, our ”* * * interest as may of land. parcel certain tract or and no more not qualify follows: will as a deed reads as un The habendum der the statute purport does not HOLD AND TO HAVE “TO convey the specify nor itself does all together with premises, said any particular purportedly interest which is ap- rights, privileges singular the conveyed. Here the limitation claimants be- any manner purtenances thereto contend that the instrument under which P. Frank Wilson longing unto said they hold affords basis a limitation Wilson, heirs their wife, Kirk Iris claim all of Lots 21 and 24 under the we, forever, neither assigns so five-year statute. The circumstance that heirs, nor grantors, nor our the said words, employs “all our *5 claiming under persons any person or right, “quit title and interest” or the word have, hereafter, shall, any us at time claim” is not fatal to their contention itas to any right or title claim, or demand must be determined from instrument as appurtenanc- premises or the aforesaid a convey whole whether it to es, part thereof.” or land merely or itself such interest as the grantor may have therein. case is question in this controlling here involved the instrument whether example, Heath, For in Tex. Jackson the nature give of to notice sufficient Civ.App. 453, (1959), 325 no wr. S.W.2d so thereunder asserted the claim extent of hist., it was held that instrument which an five-year statute. qualify to as quitclaimed title right, all the and interest depend upon wheth- question does This of did not under the an interest grantors actually owned er the habendum statute. The in the instrument property in described contained in as fol such instrument was an ex- ascertain not, but we must or lows: “to hold the above re have pur- it instrument whether amination interests, titles, rights, leased claims and merely itself or the land ports to convey demands, in- [grantors] uncertain to the said their as wholly some undefined re- is a mere in effect terest therein and signs. correct. decision is forever.” This claim. or doubtful lease an of invalid it cannot From the face of instrument purported to con grantors said specified vey land a interest there or that a deed well settled It seems convey purporting to or interest in. Instruments convey undivided an purporting “ * * * Twenty-one (21) presents —, by Numbers “Lots these do (24) Twenty-four BARGAIN, SELL, RELEASE, Block Number in AND Palisades, Thirty-six (36) of The said unto the CLAIM QUIT FOREVER wife, No. of Section Kirk of Subdivision 11, Iris P. Frank Wilson 6, assigns, RR Co. Wilson, Block No. I&GN all our their heirs and County, Texas, as shown right, Randall and to title and interest map plat lying of record parcel or thereof in the land tract or of certain County, Randall, Texas, County Randall the Deed de Records State of follows, Texas.” to-wit: scribed as “ ‘ * * * right, release one’s or interest are and all other real estate commonly convey used to inter- possessed undivided I now and am own Paducah, unknown ests of an extent or claims hav- in the town coun- Cottle ing a ty, dubious basis. It be anomalous Texas. All of the town would above say property that a deed an one- undivided is situated the town Pa- ducah, Texas, support third to no county, Cottle plat an inter- original more than undivided one-third shown recorded town, 81, page est while a release of an un- or said of record in vol. specified right, give county, title or interest would in the deed records Cottle Texas; notice and hence a claim to the my here now it is intention entire of land. wherein the convey tract In cases said A. all the to the A. Neff em- courts construed I have an estate own in town of real said words, my right, county, Texas, “all ploying the Paducah in Cottle ” purporting interest” one not.’ whether is set out above or wording itself, they have found some then said: in- evidenced instrument which tention land itself rather instrument, “The of an character right, than title and interest constituting merely to land grantor. is to be determined according con- to whether it assumes to Smith, In Cook v. upon vey property described and its 3 A.L.R. con- effect, profess- merely has face strued an instrument which contained grantor’s title to the es following clauses: If, property. according face of instrument, operation is to con- ‘“ * * * Granting Clause: If, itself, property it is deed. vey bargained, sold, released and forever hand, purports to con- other *6 quitclaimed, presents and these do gran- the vey no the title of more than hereby bargain, sell, release and for- quitclaim tor, deed. Rich- it is * * * quitclaim, ever my right, all 364, 3 Levi, [359], ardson v. title and interest in and to that certain Bickerstaff, 444; Threadgill v. S.W. ” * * parcels tracts or of land 757.” Habendum Clause: ‘“To have and special reference made The Court then to premises, hold the said together with habendum and the granting the clause to all singular and rights, the privileges involved, conveyance clause appurtenances any thereto in man- out and have heretofore set clauses been belonging ner to the said A. Neff A. said: and his assigns forever, heirs and so “If character of the instrument I, Potts, that neither my R. said nor dependent, alone, upon were the con- person any persons heirs nor or claim- granting struction of and haben- [the me, any under shall at time hereaft- * * * could be dum there clauses] have, er or any right or demand * * * being simply doubt no ap- premises title to the aforesaid or ** ” purtenances or any thereof.’ It should be noted granting Intention Clause: This clause follows a words, clause contained the my right, “all description by large block and number of a interest,” title and. and that word's of number of lots including the lot in contro- habendum—“to and to hold the versy and also several small tracts metes premises,” said were not construed to make operate bounds. The reads as follows: convey instrument “to described,” convey instrument re- property purport statute must professing’ convey “merely grantor’s one merely mained the land and not inter- property.” grantor’s granting interest est in the land. The clause in “premises” was words, con- other the word Benskin v. Barksdale used words “bar- right, title applying sell, gain, strued release and forever * * * than grantor rather my interest right, all of title and interest in deed. tracts of land described property].” described to [the however, the in- held, that when It was The habendum clause read as follows: whole construed as a strument was “ prem- ‘To have and hold said weight given due “Intention Clause” together ises singular with all properly consideration, the instrument was appurtenances rights, privileges convey purporting construed as one any unto belonging, thereto manner grantor rather such interest than Benskin, the said M. his heirs and J. held that one might have It therein. forever, I, the assigns, so that neither holding under the instrument heirs, any my Ellis said nor nor J. J. purchas- protected innocent person persons me, claiming or five-year statute er for value. While the shall, have, hereafter, at time limitations was not involved Cook any right claim demand or or title Smith, supra, construction of proper premises appurtenanc- the aforesaid issue, e., conveyance at i. instrument of es, any part thereof. But it is ex- the land it- purport the deed pressly agreed, stipu- understood and merely self or interest there- grantor’s lated that a lien is vendor’s retained in, any? if premises on the aforesaid un- described pointed out that the til should be the aforementioned and described “quitclaim to describe used the word deed” note and all thereon has been fully paid more an instrument which does no than shall when this become ” right, purport to title and inter- absolute as a deed.’ grantor. est held that the wording Commission held pur- Cook Smith involved converted the in- habendum clause ported to the land and was not a purported strument into one which to con- words, quitclaim, despite the use of vey in- merely the land itself “ * ** ‘release and forever actually terest which the had there- ” my right, in and all and interest to’ *7 in. It said was that: the land involved. granting “The clause the above similarly It was held in Parker v. New my employs ‘all words [which 428, 18 berry, (1892), S.W. 815 that right, title and is indefinite interest’] “quit an instrument which used the word and uncertain as to the extent of releasing claim” a clause a 320-acre tract granted estate in the lands described. from the did not render warranty conveyance ineligible un “ the instrument of * * * habendum “right, der the statute. The words pliant, flexible, deed is not above so appear title and interest” in the the ex- adaptable in its revelation Newberry. deed involved in Parker v. land, estate, intended tent of sup- By most terms Perhaps parties passed. lends to be the case which position Benskin, assigns, to is Benskin v. his are port respondent’s to heirs Barksdale, premises, Tex.Com.App. (1923), together 246 hold S.W. have and to rights, priv- 360, singular mentioned. Benskin rec- with all and heretofore Cook, supra, appurtenances Rosborough ileges, thereto ognizes as does qualify belonging, for an to under the manner forever. instrument “ ** * in- language do not think the intends an “We [T]he really in fact strument which is merely the instrument shows an intent legal possessing all the essential to the leasehold interest of requisites * * * constitute it such law: to Ellis.” instrument, by ‘an its own terms, re- We have or with such aid as the law heretofore set out the clauses quires, op- assuming to purporting Smith, under consideration in Cook v. su- conveyance: erate as a not that it shall pra, wherein it said that the habendum title, proceed having from a party “right, clause would not convert a land; actually convey title must to purporting interest” instrument into one but it have all the constituent must convey itself, the land although it was parts, by itself, good tested held that the “Intention Clause” would have ” perfect (Emphasis deed.’ added.) opinion effect. In our Cook v. Smith sets forth the better rule insofar as the con- Thornton, In the case of Seemuller struction and effect of the habendum clause (1890), involving concerned. seems that a who tax after the above quoting words, deliberately chooses the “right, title McKinna, held that Wofford v. the Court and interest” destroy would not intend to instrument in the form of a deed the effect of such words using an ha- “professing” convey in contro- the land bendum clause using the phrase, common versy. purports Where the “To have and to hold the above described itself, convey though the in- even premises.” “right, uses the strument terms interest,” qualifies the instrument support a claim under Year the Five
TAX DEEDS
Niday
Statute of
Limitations. See
Coch-
Tex.Civ.App.
ran
93 S.W.
Commonly
phrase
“right, title
history.
no writ
and interest”
deeds,
is used in
par
sheriffs’
Bright-
We conclude
since the
ticularly those
place
which take
result
pur
of a
deed Lots
24 did not
tax lien
Wilson
21 and
foreclosure.
sheriff ob
viously
land,
Rosborough
does
property.
port
not own
He is
necessarily conveying
Cook, supra,
only conveyed
Brights’
another’s interest
therein, but if the taxing authorities have
land,
right, title and interest in said lots of
performed
respective
their
duties
perfect
could
no title to the two
Wilsons
levy and assessment of taxes (and the law lots under the Five Year
of Limita
Statute
presumes
they
op
have)
deed will
tions.
erate
the interest of the true own
er
property,
hence the sheriff’s deed
YEAR
LIM-
TEN
STATUTE OF
following a tax lien
foreclosure will
ITATIONS
as notice under
the statute as it
probative
interest of the
There
no evidence
true owner
property.
finding
the ordinary “release
of all
force
the record to
*8
my right,
instrument,
title and interest”
jury
perfected title
of the
that the Wilsons
purport
does not
to be the owner
5510, supra.
provisions
under the
of Article
of the land
particular
interest there
grant
failing
The trial court erred
in. The
early
Court in the
case of Wofford Porter’s motions for an instructed verdict
McKinna,
Clearly, Brights entered into and he moved it straight, put posts.” possession expressly ex and in some One under a deed wit Therefore, cepted Bright’s ness testified [Bright] 21 and 24. that “He some Lots possession, any, ponies in there, is referable to the he on it." if and lived Some possession Bright presumed that conforms testified that made is witnesses is confined to the limits no distinction in the character use of deed and Company Pine the land within enclosure. Mr. Bright thereof. Lumber Southern Hart, 357, did not and we no evidence testify, 161 Tex. 340 S.W.2d that find Bright (1960). claimed the Lots 21 and adversely Therefore, 24. it is conclusive that no ad 1949, Brights In entered into 1948 or possession verse has been established that acres; possession they lived 11.37 compliance pro with constitute upon Lot within house situated 5510, the Ten Year visions Article Stat May the 11.37 acres. On boundaries of ute of Limitations. Wilson testified that 28, 1956, conveyed Bright Lots 21 and 24 to claimed bought he he and went land into 17, 1962, April On this suit Wilsons. possession immediately 1956; after June Thus, is seen that if the filed. Wil- However, that he lived on Lot he ad Year sons are to recover title under the Ten accept” mitted that he “offered to Mrs. Por Limitations, 5510, supra, Article Statute of proposition ter’s to sell Lots and 24. they rely upon possession, adverse must “get testified that Porter offered to Wilson any, by Bright if and themselves. title” from Mr. Simmons
title to The Wilson for Tax As $50.00. Canyon Independ prove must sessor Collector of The that Wilsons that they possession such School District testified Wilson have had actual ent paid lots, taxes beginning is “such a on Lots 21 and with and that the year his records give of an that showed character of itself will notice but the owner possession, mature to be B. Simmons. adverse W. exclusive statutory period,” in this into title after court judgments of the trial and of years. case Southern Pine Lumber ten Appeals awarding the Court of Civil Hart, supra. See Company McCall and 24 both to Wilsons to Lots 21 are Co., Grogan-Cochran Lumber reversed, here judgment rendered ex (1945). S.W.2d 677 We nothing by that Wilsons take their suit facts, including the amined the statement of far 24 are in so as Lots 21 and concerned. witnesses, and find no evi testimony of the respects, judgments all other both finding jury dence part, courts are Affirmed affirmed. title under the Ten Year the Wilsons have part. All costs reversed rendered of Limitations. evidence Statute respondents, adjudged against are 11.37 shows fence was “around” the that a Respondents’ motion for Wilsons. rehear- acres, 21 and 24 and that Lots were with ing is overruled. testi the fence. Some of witnesses he fied was around the land that the fence CALVERT, J., and GRIFFIN C. One of the witnesses tes (Bright) bought. WALKER, dissenting. JJ., impression tified that he was under bought lying “Mr. all the with Bright clear, The record fences.” (dissenting). CALVERT, Chief Justice acres some within 11.37 is a narrow this case issue in “strengthened” the Bright the fence. Mr. opinion tends to one which moving into the house Lot fences after “* * * only issue before obfuscate. So 14. As said: one witness *9 stated, it is well may clearly all, except us at changed at
fence wasn’t irrelevant it from outset disassociate tree or maybe it was nailed on to a where
659
stating
is
extent
the claim
by
what
nature and
asserted.
immaterial matters
Admittedly,
give
not
notice
the deed does
not1 in issue.
of the exact
extent of the claim
nature and
proper
designation of an
asserted.
which,
parts, purports
considering all of its
grantor's “right,
foregoing
If
in
matters are
is-
not
in
is
in issue. Ad-
and interest”
land
not
here,
sue
what is the issue ? The
issue
true
mittedly,
quitclaim
is a
deed. Cook v.
simple:
is
quitclaim
this
Does a
deed
119,
Smith,
(1915).
107
174
1094
Tex.
S.W.
contemplation
as a deed
within
meaning
5509,
of Article
Vernon’s
a
Whether
deed
Texas Civil Statutes ?
“convey the land”
not in
issue. Admitted
ly,
Smith,
it does not.
v.
107
Cook
Tex.
STARE DECISIS
119,
(1915);
Levi,
359,
(1887);
67 Tex.
which one under a deed tract, acre converting it into a urged purchaser defenses of innocent warranty. only In- modified five-years’ statute of limitation. The stead, problem with the dealt separately. Court dealt with the defenses following manner: It held that the character of the deed was' not changed by the recitation of has refer- “The first raised that, a valuable cash consideration and convey- sufficiency ence to the therefore, pur the defense of innocent Newberry claims ance under which chaser must fail. The same limitation, plea his have been sufficient to defeat the limitation possession. sufficiency of his also plea quit if the Court believed questions There are raised other claim deed did present- order will be considered statute. But rested its conclu mentioned, the first Recurring ed. sion that the limitation defense could not purchas- we think that the rule that be ground sustained on the that the deed er, interest as is takes such who required had not registered been conveyed techni- by a five-year statute. cannot, cally, character of under that purchas- conveyance, protected be Newberry In Parker etc., faith, applica- good no er has purported to under which claim was made such is made the basis tion where land, including a convey several tracts of five-years plea limitation. tract, usual 320-acre and contained the ** * The the instru- character of warranty habendum clause. unimportant would be ment if read as follows: valid, void, conveyance, and not written hereby myself, my belongs I to that class “And do bind heirs, requisites instruments. The esssential administrators executors
661
posed
a deed
the
but
necessary
by
as
neither decided nor assumed
of
tion
founda-
plea
by
the
the
are that
shall
Court in 1892.
terms,
its
or
as
own
with such aids
the
carefully
It would seem that the
worded
authorizes,
purport
or
to
law
assume
opinion
Newberry
v.
Parker
should have
operate
a conveyance.
as
Wofford
question
quitclaim
settled the
of whether a
McKinna,
the deed as a when a note by citing Newberry Parker Mc- ed consideration by Benskin as executed paid, County, it Donough v. by a lien was secured vendor’s Jefferson plain enough quit seem that when shall become absolute “this deed executed, approved Commission’s we the deed claim deed.” When qualifies held that a title but held the record Ellis did not own *12 the But five-year Benskin deed under statute. the interest the land. leasehold a majority limitations five-year recognize does not that as a fact. pleaded the statute opinion the majority The Judgment the states: as defense to suit. instruct was for Benskin on an
trial court * * * recognizes "Benskin that for Appeals ed verdict. Civil an instrument to qualify under the five- only instrument the to be held year purport convey statute it must judg reversed trial court’s the 3 the grantor’s land and not merely the for Miss judgment ment and rendered * ** interest in the land. That court 194 Barksdale. S.W. 402. held recognized that McDonough Newberry, supra, v.
Parker v.
“The Commissionheld that the word
v.
supra, and
County,
Wofford
Jefferson
McKinna,
ing of the
clause converted
habendum
quit
that “a
(1859),
majority would then have
appears
clusion
to be
except
that a
inference
cated
“give
does not
notice of the nature and
in the case now before us.
extent of the claim asserted thereunder.”
rule of stare de-
a slave to the
I am not
That
urged
reason was also
this Court
on
time indicates that
passage of
cisis. When
in Benskin
the five-
rejecting
as basis
grave injustice
law results
court-made
year
following
limitation defense. The
is
willing
justice,
am
to over-
rather than in
I
excerpt
argument
from the written
East
prior
Landers v.
rule
decisions. See
counsel for Miss Barksdale:
Co.,
Disposal
Salt
Texas
Water
“It
definitely
claim
to be held and
set-
ought
No such
(1952).
conveyance: proceed that it not shall performed. mony party title, actu- a or must having ally land; to title the THE ON MERITS parts, must have all the constituent itself, perfect tested by good a of recognize I conflicting there are de- ” deed.’ of the Appeals cisions Courts of Civil The holding in the case question was that the de- issue, the arguments and that scription of the land was so indefinite as of some cogency can be made on both statute, question. Baylor Law in prescribing registry deed, of the See 9 of sides the prior of this necessary possessor 338. All decisions as Review to enable the avail question, years’ limitation, is, the with the himself of which have dealt five Court indirectly, point give directly to a con notice to either the owner the defendant possession deed does is claiming clusion that under deed.” possession, All It enjoyment under Art. 5509.3 is as a deed use by arguments majority premises apparent by stranger, now advanced deed, qualify were of a holding for that one does not the record which alerts the true in Benskin v. Barks owner for action rejected need lest lose advanced he rejected They dale. were there because his land. He knows that under years he lose title in regarded as foreclosed can his five McDonough possession if Newberry paying Parker v. one the taxes claiming pos- rea County. right There is also sound on the land and is Jefferson them session under When he investi- rejecting son now. a deed. records, gates the he finds that the one in convey what does declare Art. 5509 possession paying they taxes as be- therein as “deeds.” ances are referred to registered come due and has albeit v. Mc said in Wofford 1859 this Court nature While the exact deed. Legis enacting the statute Kinna that claimed and extent the interest word intended the use of lature possessor is not evident from valid instrument “deed” to refer prudent he know landowner should operate conveyance purported registered by not have been parts of a of the constituent and had all title, Baylor claiming no Law Review one interpretation reaf good deed. That possessor may be claim- in Parker v. by this in 1892 firmed he can ac- greatest interest which meaning the word Newberry. quire entire fee title. statute—the changed in the mean “deed” cannot have possessor inquiry as to the If an deed, other voluntary quitclaim time. A of the interest claimed nature extent It valid, test laid down. wise meets answer, simple satisfactory yield a fails to conveyance. operate filing suit diligence should dictate good parts of a all has the constituent interrupt statute. running writing, has a deed—it is in this Under premises, contains grantee, describes regu- case, who is of land *16 one signed by the conveyance, words of claim- larly paying thereon and is the taxes requirements, grantor. Meeting those no more enjoys under a conveyance is made valid limi- position the laws of favorable by Art. 1288. pays trespasser who no a naked tation than no instrument of registered taxes and has But what of the lack of notice true this was the conveyance. I do not believe speaks? which the owner of those laws. intent of Aside the fact that this reason for quitclaim deed does not that a judgments the courts I would affirmthe rejected in Benskin v. Barks below. dale, saying that reason for there sound gives ample notice. WALKER, 113, 136, JJ., join Kilpatrick Sisneros, GRIFFIN this dissent. object “The declared that approved v. Larson in 18 Southwestern Law Jour- Professor Lennart 3. conclusion is nal