221 S.W. 945 | Tex. Comm'n App. | 1920
Action in trespass to try title by W. G. McCarty, plaintiff, against B. F. Whitaker, defendant. Pending the suit, plaintiff died intestate, and Jennie McCarty, his widow, having qualified as survivor of the community estate, made herself party plaintiff, and prosecuted the action to judgment.
Plaintiff sought recovery of title to and possession of 320 acres of land, being the west one-half of survey No. 4, A. C. H. & B., in Dickens county, alleging that same was school land; that it was sold and awarded by the state of Texas to the original purchaser on November 2, 1897, and proof of three years’ occupancy was made and filed in the general land office on October 22, 1901; that one-fortieth of the purchase money and all interest had been paid, and thirty-nine-fortieths of the purchase money was still owing to the state of Texas. Plaintiff also alleged that she was the owner of the land, and that the same was in good standing in the general land office at the time of the act of the Twenty-Ninth Legislature (Acts of 1905, p. 35; articles 5458, 5459, R. S. 1911), prescribing a limitation of one year for bringing suits by all persons claiming the right to purchase any lands belonging to the state that had theretofore been sold under the provision of law authorizing the sale thereof, and that no suit had been brought by the defendant, or any one else, for title and possession of the land within one year from the taking effect of the said act, and that every one except the state was barred by the act from claiming or asserting any claim or title to the land.
Defendant disclaimed as to all the land involved, other than 42 acres, more or less, described in the answer. As to this tract he pleaded a general denial, not guilty, and title under the 10-year statute of limitations. Defendant’s exception to plaintiff’s plea of limitation of one year under the act of 1905 was overruled, and plaintiff’s exception to defendant’s plea of the 10-year statute of limitations was sustained.
The jury, under instruction of the court, returned a verdict for plaintiff, whereon judgment was rendered. On appeal, the judgment of the district court was affirmed. 188 S. W. 502.
It is doubtless true, as stated by the Court of Civil Appeals, that the right exists in the state to prescribe and regulate the amount, character, and method of the alienation of its public school lands by its grantees to others, prior to divestiture of its title through patent. From this, however, it does not follow that the acquisition of title through limitation, as against the purchaser, is in any manner affected by sugh regulatory statutes. These statutes do not purport to deal .with this subject, and if correctly construed by the Court of Civil Appeals—which we need not determine—do not permit the inference of a legislative intent, by analogy or otherwise, to inhibit acquisition of the title of the purchaser to the land, or part thereof, through adverse possession.
We conclude that the trial court erred in sustaining plaintiff’s special exception to defendant’s plea of the 10-year statute of limitations, and are of opinion that the judgment of the Court of Civil Appeals should be reversed, and the cause remanded for a new trial.
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