27 S.W. 911 | Tex. App. | 1894
Lead Opinion
J.W. Brown filed his original petition of trespass to try title in the District Court of Wharton County, on March 17, 1885, to recover of the appellants a certain tract of land described in the petition as one-fourth league number 12, known as the Seth Ingram league, on the San Bernard River, as well as by metes and bounds, which embraced only land wholly within the Seth Ingram league. Plaintiff also averred, that he and those persons under whom he claimed, claiming to have good and perfect right and title to the land, had held peaceable, continuous, exclusive, and adverse possession thereof for a period of more than twenty-five years before the entry of defendants, and prayed that a surveyor be appointed and ordered to make a survey, marking the lines and showing what part of plaintiff's land the defendants had fenced, etc. The defendants were claiming a tract of land adjoining plaintiff's land, situated in the Edwards league. On October 22, 1885, plaintiff and defendants, by their attorneys, entered into a written agreement, which, in addition to stipulations for a survey of the land, as to the surveyor's report, and as to record evidence, contained the following: "It is hereby agreed, that there is no conflict of title in this case, but merely a question of boundary; that plaintiff owns his land in the Ingram league number 12 by valid title, and defendants own their land in the Edwards league by valid title, and the subject of the dispute is to fix the true dividing line between said two leagues, which is the boundary between plaintiff and defendants." Also: "Either party may plead and prove the laws of limitation, good faith, and valuable improvements so far as applicable or relevant, and also value of use and occupation, and damages." April 24, 1891, plaintiff filed a second amended original petition, in which he claimed title to the land by the statute of limitation of five and ten years, but in describing the same the calls for distance to the southwest and to the northeast were extended beyond the original calls, and were not limited by the southwest boundary of the league, as in the original petition. The defendants answered, that there was no conflict of title, but of boundary only, between the parties, the issue being the location of the dividing line between the Ingram and Edwards leagues, plaintiff's land lying in the Ingram and *266 defendants' land in the Edwards. They also pleaded facts with reference to the fixing of the line claimed by defendants, by which they averred plaintiff was estopped to claim a different line, the statute of five years' limitation, and improvements in good faith.
It is shown by the evidence that on December 4, 1866, plaintiff and one Williams bought from E.D. Galbraith the one-quarter of a league allotted to Nancy Thompson in the partition of the Seth Ingram league, which was described in the deed as in plaintiff's original petition. Galbraith bought from Nancy Thompson in 1857. After Galbraith bought he cleared a field on the southwest end of the tract and put it in cultivation, and the fence on the southwest side of this field is the line to which plaintiff claims. Defendants, claiming land on the Edwards league in 1883, procured a surveyor to run out the league line, and in accordance with this survey moved up their fence and took in their inclosure about ninety-seven acres of the old Galbraith field, which had been in the possession of plaintiff and his vendor for more than twenty years. Defendants have remained in possession of that portion of the old Galbraith field fenced in by them ever since 1883, under a deed duly recorded, having paid all taxes. The case was tried below without a jury. The court rendered judgment for the land in controversy up to the old field fence in favor of plaintiff upon his title by limitation, holding that the filing of plaintiff's original petition interrupted the statute of limitations running in favor of the defendants. Upon the question of boundary, the trial judge found that he was unable to ascertain the boundary, but that it was not nearer the old Galbraith field fence, to which plaintiff recovered, than 450 varas.
Complaint is made here of the admission of evidence by the court below to prove title in plaintiff by limitation, it being claimed that he is precluded from doing so by the agreement between the parties above mentioned, it being contended that the agreement restricts the issues to one of boundary. It is true that the first part of the agreement appears to make the restriction as contended, but when construed with the latter part with respect to limitation, its force is only to relieve the parties from the necessity of proving up title to the lands claimed by them within the respective leagues. The language of the reservation as to limitation is to "prove the laws of limitations" as far as applicable. While proof of lapse of time in connection with possession to a boundary and acquiescence therein is admissible to prove boundary, still there is no fixed period of limitation that would do so, and the laws of limitation are not applicable to a question of boundary. So there was no error in receiving the evidence to show that the plaintiff had title by limitation. It was authorized by the pleading, and was not in contravention of the agreement.
But the court erred in holding that the statute of limitation already in operation in favor of the defendants was interrupted by the filing of the original petition. The description contained in the second amended original petition, upon which the recovery was had, includes *267 land clearly not included in the original petition. It includes, in addition to the land described therein, all of the land recovered to the southwest of the Ingram southwest boundary, the latter description extending the lines running southwest several hundred varas, and ignoring the call for the Ingram southwest boundary, and extending several hundred varas beyond it. As to so much of the land described in the second amended original petition as lay beyond the boundary, the cause of action was a new one.
The evidence showed that Brown claimed the old field fence as the boundary in claiming to the boundary, hence his claim was such as would be requisite to support the statute of limitation. There was not sufficient evidence to support the plea of estoppel.
For the error of the court in holding that the statute of five years' limitation which had commenced to run in favor of the defendants was interrupted by plaintiff's original petition, the judgment of the court below will be reversed, because the full term of five years ran before the filing of the second amended original petition. This view of the case makes it at last one of boundary, as far as presented by the record, for the limitation running in favor of defendants was interrupted by the original petition as to all the land included in the Ingram league. But, as the court failed to ascertain the boundary, the cause must be remanded for another trial.
Reversed and remanded.
Addendum
In giving our reasons for reversing the judgment of the court below in this case, we did not deem it necessary to discuss the two questions presented in the motion for rehearing as having been passed over by this court in the opinion.
1. The evidence with regard to the depositing with the clerk of the pleading styled first amended original petition, utterly fails to show that it was done within five years from the time defendants took possession of the land under their deed from J.H. Shapard, and the finding of the court below that there was no satisfactory evidence to justify its being considered as a paper filed in the case, could not have been otherwise.
2. Defendants claimed the land under a deed from J.H. Shapard, executed September 2, 1883.
The defendant W.T. Taylor testified: "I went into possession of this portion under my deed from Shapard, and have held possession under this deed ever since, having always claimed the identical land conveyed to me by Shapard. I bought one-third of the Edwards league from the heirs, and also the 100 acres from Mr. Shapard, but afterwards it was found that in the first partition of the league, made before my purchase from Shapard and from this heir, that one heir was left out, *268 and since this suit was brought there has been another partition, and each of us had to lose some land to make up the interest of this other heir, and they ignored my deed from Shapard entirely. In this second partition, the court set apart to me the part of the Edwards league of land conveyed to me by Mr. Shapard. The land sold to me by Shapard is the same land that Dr. Brown is now suing for."
Notwithstanding the statement of the witness that the deed from Shapard was ignored entirely, it is very clear that the defendants were holding the land in controversy at least as tenants in common under the Shapard deed, and that the identical land was set apart to them in the partition, which was proper, if it could be done with due regard to the rights of others. We think, therefore, that the contention in the motion for rehearing, that there was a want of title in the Taylors sufficient to support the plea of five years' limitation, is not sustained by the evidence. There is a privity of title between the Shapard deed and the partition.
The motion for rehearing will be overruled.
Motion overruled.
