Scott v. Rhea

21 Tex. 708 | Tex. | 1858

Wheeler, J.

If the plaintiff can maintain an action of trespass to try title, it must be by virtue of three years’ possession, under color of title, within the provision of the 15th Section of the Statute of Limitations. (Hart. Dig. Art. 2391.) But the Court appears to have considered that her claim was founded on the 16th Section of the Statute, (Hart. Dig. Art. 2392,) and accordingly instructed the jury that to enable her to maintain the action, she must have had five years’ possession, paying taxes, &c. This was an evident misapprehension of the case. The plaintiff did not claim under a deed, but under a certificate and survey, which was color of title, as defined in the 15th Section.

The Court further instructed the jury, in effect, that the pending of the suit of Lane against Rose was an interruption of the possession of this plaintiff in 1844, when Rose was her tenant. This, we think, was error. We do not think she was affected by the pendency of the suit against Rose, from the mere fact of having rented him the premises in 1844. This ruling of the Court virtually decided the case against the plaintiff, and it will require a reversal of the judgment; (assuming that the possession that will bar an action "under the 15th Section of the Statute, will give a title, upon which an action of trespass to try title can be maintained.) That question has not been examined and discussed by counsel upon authority, and the language and provisions of the Statute, as fully as could be desired in order to its final and authoritative decision. If, therefore, we should hereafter have occasion to consider that question, upon more satisfactory examination and argument, we do not mean by our present decision to conclude the question! As it becomes necessary to decide without those aids that would be desirable, we do so with this reservation.

There is a want of conclusive certainty in the testimony as respects the question whether the plaintiff was in possession of any part of the land claimed by the defendant, Lane, during each of the three years next before the trespass of which she complains. The question of fact must be referred to the decision of the jury ; and it may not become necessary in this case finally to pass upon the question of title by limitation under the 15th Section of the Statute.

The judgment is reversed and the cause remanded.

Reversed and remanded.