Cantagrel v. Von Lupin , 58 Tex. 570 ( 1883 )

Delantt, J. Com. App.

We will consider only the questions arising out of the plea of the statute of limitations of five years which was interposed by appellants. The court below admitted all the evidence which wa’s offered under the plea, and as the judgment was in favor df the plaintiffs, the presiding judge must have thought the evidence insufficient.

The plaintiff Anna was twenty-one years of age in the year 1870, and she married in 1879. If the statute commenced to run against her when she became of age, it was not suspended by her subsequent marriage.

The plaintiff Charles attained his majority in the year 1873.

The defendant Blau, as the tenant of his codefendant Oantagrel, was in possession on the 10th of February, 1876. On that day he completed the inclosure of the land by a fence, and continued to hold and use it, as such tenant, to the day of the trial. He regularly paid the taxes upon it. He held it under certain instruments of writing which the defendants maintain were deeds duly recorded in Harris county, where the land lay.

This suit was filed on the 25th day of February, 1881, which was more than five years after the possession taken by the defendants, as described above.

By the statute, a party claiming land under the limitation of five years must have “ peaceable and adverse possession thereof, cultivating, using or enjoying the same, and paying taxes thereon, if any, and claiming under a deed or deeds duly registered.” R S., art. 3193.

As the possession in this case was clearly adverse and for a sufficient length of time, as the taxes were regularly paid, if the plaintiffs are riot barred of their rights, it must be because the possession and the use, cultivation or enjoyment by the defendant Blau were not such as the statute requires, or because the written" instruments under which the claim was made cannot be called deeds within the meaning of the statute. Counsel for appellees present these objections to the defense as made below, and another to the effect that the land was not assessed as the property of Cantagrel, but in the name of his supposed vendor, the colonization company. The statute says nothing about the assessment. It merely demands the payment of such taxes as may be due. We do not think that the method of assessment could have deluded the plaintiffs into the • belief that Blau’s possession was held in subordination to their claim.

The possession, we think, was such as is contemplated by the statute. It was an “ actual, visible and exclusive appropriation of the land, commenced and continued under a claim of right.” Angelí on Lim., sec. 390. Although the defendant was in possession under acclaim or color of title, and was not, therefore, to be regarded as a. mere naked disseizor, yet he placed upon the land a “ substantial, visible inclosure,” which is said to be decisive proof of the disseizen, of the true owner. Whitehead v. Foley, 28 Tex., 285.

The defendant did not actually live upon the land. He used it as a pasture for his horses and cattle, while his residence was two or three hundred feet away. We do not think that this.makes .any - difference. If he had actually placed his house upon the land, his occupation of it could hardly have been more conspicuous. It appears that after he had inclosed the lot he withdrew the fence on one side some sixteen feet within the boundary line, in order to prevent other persons from joining fences with him. This-circumstance, we think, has no significance, inasmuch as the defendant is not to be considered as a mere intruder. The intruder or disseizor holds only to the limits of his actual inclosure; while he who enters under a claim or color of title may hold to the boundaries described in the deed or deeds under which he claims. Whitehead v. Foley, supra.

But it is insisted that the conveyance from the colonization society to the defendant Cantagrel is not a deed within the meaning of the statute; and the chief reason assigned is, that there is no evidence of any authority in the agent Giraud to make it. The answer is that the instrument upon its face is a deed, and nota mere contract or agreement to convey. It is a good deed considered by itself, and the only defect is that the power of attorney is not produced. This is the very circumstance which renders limitation necessary. “If,” says Chief Justice Wheeler, “the power must be shown, then the defendant must not only have a deed, but a title good in itself, before he can claim, the protection of the statute. Such manifestly was not the intention of the law.” Wofford v. McKinna, 23 Tex., 44. This objection, we think, cannot be maintained.

Hor can the further objection prevail, viz., that the deed does not describe the land. There is no misdescription or falsity of description such as is mentioned in the case of Kilpatrick v. Sisneros, 23 Tex., 136. The objection is that the tract of land is not fully described in the deed.

The instrument conveys to Cantagrel all the land which the vendor owned in Harris county. “ That is certain which can be rendered certain.” As soon as we find upon the records of that county a deed to the defendant’s vendor which describes this tract of land and completely identifies it, we perceive that it is a part of the property which the vendor conveyed to the vendee by the deed now under discussion. Objections of this kind have sometimes been sustained; but such instances occur in cases where the misdescription is calculated to mislead, and when there are no means of correcting it.

In the case of Kilpatrick v. Sisneros, 23 Tex., 136, Chief Justice Wheeler says: “The falsity of description ran through the tax deeds and all the mesne conveyances; and was such, there being no other means of identity or certainty in the description of the land, as naturally to induce the supposition, upon inspection, that they did not embrace the land in question.” There is no difficulty in identifying the land in the case before us.

The objection to the lease is, in our opinion, alike untenable. The objection is that it was made by G-iraud as agent, and no power in him is shown.

[Opinion adopted February 23, 1883.]

Whether Giraud had authority to execute the instrument is not the question. He did not make it claiming to be the agent of Cantagrel. Blau held under it, recognizing Oantagrel’s title and repudiating the title of the plaintiffs. The plaintiffs cannot pretend that he was holding under them, and, having acquiesced in his hostile possession for more than five years, they cannot make this objection to the lease. Gillespie v. Jones, 26 Tex., 343.

The cause having been submitted to the court without a jury, our opinion is that the judgment should be reversed, and that the supreme court should render such judgment as should have been rendered below; that is judgment for the defendant.

B.EVERSED AND BENDEBED.