28 Tex. 1 | Tex. | 1866
The action of the court, permitting the defendants to file a disclaimer for the land claimed by the plaintiffs, not embraced in their pleas of limitation,
The disclaimer of the defendants and the charge of the court, to the effect that the plaintiffs were entitled to recover*, unless the defendants had shown three years’ adverse possession of the land claimed in their pleas of limitation, render it unnecessary for us to consider any other questions than those presented by this branch of the case.
It is certainly not now an open question in this court, that an entry and occupation of land by a trespasser, claiming to hold under the location and survey of a valid head-right certificate, of which he is the owner, operates as a disseizin of the true owner of the land, to the extent of the boundaries of the survey by which he claims. His adverse possession in such case is not limited to the land actually in occupation, but is co-extensive with the limits marked out by the survey under which he claims to hold.
The possession of the land claimed by the defendant, M. B. Foley, is admitted to have been adverse and continuous for many years beyond the period to complete the bar of the statute. The only possible question which it seems can he made to the sufficiency of his defense is, that his certificate was not recommended for patent by the traveling board of land commissioners. It was one of a class of certificates of which the commissioners say,
The validity of the certificate under which the defendant, W. G. L. Foley, claims, is not questioned; but it is insisted that he has not brought himself within the provisions of the 15th section of the statute of limitations, upon which he relies to bar the plaintiffs’ suit, because it is said: 1st, He claims title to the certificate by inheritance, and not by a chain of transfer, “the memorials or muniments” of which are in writing; 2d, It was known to the owner of the certificate at the time he made his location and survey that it was in conflict with the league of land claimed by the plaintiffs, and there is consequently a “want of intrinsic fairness and honesty,” which precludes him from availing himself of the plea of limitation, by reason of three years’ adverse posssession; 3d, The defendant cannot sustain his defense under this section of the statute, unless he has shown personal occupancy or possession, or at most he can only do so when he relies upon the occupancy or possession of some one holding, for or under him, by showing that such occupant holds by writ
To the first of these objections, it is sufficient to say, that it has been decided in this court, in the case of Williamson v. Simpson, 16 Tex., 433, that there is “no necessity for a transfer when the party claims by inheritance.” The statute does not absolutely require, as plaintiffs seem to suppose, that all the links in the chain of transfer shall be in writing, but merely that title shall be shown “by a regular chain of transfer from or under the sovereignty of the soil.” Title acquired by inheritance is as regular and effectual as if by written memorial. It is only where the chain of transfer is not regular, that the statute requires the irregular links to be evidenced in writing, although the instrument be not executed with the forms and solemnity to give it legal effect, as a regular chain of transfer.
In the field-notes of the defendant’s survey there is a call for the Whitehead league; and from the testimony, it appears to have been a matter of general notoriety in the community, at the time the survey was made, that the land was included in the survey now claimed by the jdaintiffs. It does not, however, necessarily follow, from these facts, that there was any fraud or want of “intrinsic fairness and honesty,” on the part of the owners of this certificate, in locating it upon this land. Whitehead, when he came to the country, left his family, or at least the larger portion of it, in Louisiana, and after a residence of uncertain duration returned to that State. Without at all questioning the validity of his title, it is certainly not unreasonable to conclude, that the parties locating their certificates may honestly and reasonably have concluded that this land, like many similar surveys, had reverted to the public domain, by reason of the abandonment of the country by the grantee; or, through his failure to bring his family with him, his title was illegally obtained, and therefore void.
In answer to the third objection made to the defense relied upon by this defendant, it may be said, that'although it is unquestionably true that the party who seeks to protect himself under this section of the statute must show that he has -title or color of title, as defined in the law, or holds by chain of transfer under a certificate or land warrant, has possession of the land in dispute, and that the same has been held adversely to the plaintiff during the time prescribed, yet there is nothing which defines or limits the manner in which he must hold possession, or forbids his claiming the benefit, when held in any manner recognized by law, as sufficient to invest him with actual seizin and possession of the land. It is immaterial whether he does so by actual individual occupancy, or by a servant, agent, or -attorney. If the possession be in privity with him, in his name and stead, and for and on his account, it is in law his possession, and he may be charged with the responsibility of it, and may avail himself of its benefits.
The court cannot say in this case, that the facts did not warrant the jury in concluding, that the defendant had thus held possession of the land.
The fourth objection is, that there was an interruption of the possession by the abandonment of the land by S. T. Foley, who had settled upon it as the tenant, and who seems to have acted as the agent of his father, the defend
There is no error in the judgment, and it is therefore
Affirmed.
Smith, J., did not sit in this case.