Ledyard v. Brown , 27 Tex. 393 ( 1864 )

Moore, J.

The original plaintiffs in this case do not complain of the judgment which was rendered against them in the court below. The controversy is now carried on by some of the original

defendants, who claim the land in dispute by adverse and conflicting titles.

The first question presented for our consideration, in disposing of this case, is, to whom was the land in dispute granted by the government? Did Cottle or Richards acquire a superior right by their respective titles ? Cottle’s grant was first in point of time, and is therefore unquestionably superior in right, unless it must be held void, because the locus in quo was not within the jurisdiction of the officer by whom it was issued. The uncertainty and confusion of the colonial contracts of the former government in respect to their boundaries, as well as the frequent conflicts between, and the disputes and controversies among, the officers engaged in carrying them into execution as to the limits and extent of them jurisdictions necessarily resulting therefrom, are well known historical facts, and have often been illustrated in this court. The limits of many of the different colonial grants, among which almost the entire territory of the ¡átate was parceled, were fixed by mere imaginary lines. The vague and imperfect information of the government officials with whom the contracts were made, with respect to the distant and almost uninhabited province which they were parceling out, necessarily resulted in the frequent discrepancy between the localities or land-marks designating their boundaries, as called for in the contracts, and as, in fact, found upon the ground. It was not contemplated that the colonial boundaries should be ascertained and marked off by actual survey before they were to be carried into execution. In fact, this would often have been impracticable; and the division lines between the colonies, were really a matter of but little public importance. The object of the government was to populate the country. It was immaterial with the government, from what empresario the settler derived his title. Under these circumstances, we think it could hardly be seriously urged, that a title issued in good faith, and within the limits in which the officer issuing it was accustomed to exercise his jurisdiction, and within the limits to which he might reasonably have concluded his authority extended, should be declared void upon the ascertainment of the fact, years after-wards, that it was a short distance beyond his colonial limits. In such case, the officer making the grant may be well said to have had de facto jurisdiction.' The instructions of the court upon this question .presented the law properly to the jury, and are in accordance with the rule laid down by this court in the case of Hamilton v. Menifee, (11 Tex., 718.)

The title which the defendants, who claim under it, derive from the contract between Cottle and Brown is one which, under the former decisions of this court, they can not enforce, without additional equities from any that are presented in this case, against the heirs of Cottle. (Clay v. Cooke, 16 Tex., 70; Desmuke v. Griffin, 10 Tex., 113; Hunt v. Turner, 9 Tex., 385; Hunt v. Robertson, 1 Tex., 748.) But it has, also, been more than once decided by the court, that in such cases the heirs of the grantee can not enforce their legal title against the parties claiming under such a contract, without refunding the consideration received by their ancestor. If the question were one of the first instance, we might, perhaps, hesitate yielding it our assent; but it must now be regarded as no longer open for discussion. The instruction given the jury correctly enunciated the rule established by this court. (Mills v. Alexander, 21 Tex., 154; Hunt v. Turner, 9 Tex., 385.)

The only other questions in the case grew out of Ledyard’s assertion of title under the statute of limitations. We see no grounds for supposing that any injustice has been done him, either in the general principles proclaimed in the instructions given to the jury, or in their verdict upon the issues submitted to them. Ledyard claims title by possession under both the fifteenth and sixteenth sections of the statute. To sustain his title under the last, he relies upon the possession of Ward, one of his vendors. The duration of Ward’s possession was submitted as a question of fact to the jury, and we can not say that then- finding was improper, either in respect to the time he had held the possession of the land, or as to the payment of taxes. But if it were conceded that he held it from the day of his purchase until he sold to Led-yard, and paid taxes upon it during all of that time, it would make the case no better: it would still be less than the time required to complete the bar under this section of the statute. And Ledyard could not tack Ms subsequent possession to that of Ward's for the purpose of completmg it, for there was no pretence that he paid taxes on the land after he purchased from Ward. The position assumed by counsel, that if there were no taxes assessed against the land, Ledyard was relieved from the necessity of proving the payment of the taxes upon it to make good his title under this plea can not be sustained. It is the duty of a party claiming land, to render it .to the officer whose duty it is to assess it. Proof of the payment of the taxes is as essential as of the record of his deed. Ward did not hold the land under color of title, and Ledyard can not, therefore, avail Mmself of Ms possession in support of the claim of title under the fifteenth section. This only commenced to run, therefore, when he took possession of the land in the spring of 1852, and it must have continued for three years without interruption to have become available. It is evident, at least as to Penn, that it did not do so in less than a year after the date of Ledyard’s possession. Penn also went into possession ; and as his entry was under the older and superior title, it was an interruption of Ledyard’s adverse possession to the extent of Ms (Penn’s) claim, if not in conflict with Ledyard’s actual possession. The only error that we see in the ruling of the court in this branch of the case, or, in fact, in any part of it, (if it is such,) is in fixing the period anterior to which the jury should enquire with reference to Ledyard’s possession. This suit was commenced the 8th of March, 1855; Ledyard’s answer setting up title was filed May 19th, 1859, which, if he had brought no other suit, would be regarded as the beginning of the litigation between Mm and those with whom the matter is now being contested; and, consequently, if he had been in continued and peaceable possession, as against them, up to that time, he should be entitled to avail himself of it. The brmging of the suit by the original plaintiff will not interrupt his possession as against his co-defendants not in possession, and as to whom he claims an adverse title and possession. It is not mterrupted until one or the other claimant put their respective titles in controversy. The record, however, discloses the fact, that Ledyard had, previous to the commencement of this suit, brought suit against the same parties against whom he is now asserting title, and in March, 1855, obtained in it a judgment by default against DeWitt, one of the defendants. It is not shown when this suit was commenced; but we suppose it was most probably on the day fixed by the charge of the court, anterior to which the jury were instructed to enquire with reference to his possession. At all events, it is certain that it Vas pending previous to the institution of this suit by the original plaintiffs, at which time the possession of Ledyard had not continued for three years; and if there were a general verdict in the case we might affirm the judgment, for the reason that no injury had resulted from the error of the court in fixing upon the day it has, without evidence of the fact being in the record, beyond which Ledyard could not avail himself of his adverse possession, if, in fact, it continued subsequent to that time. It is, however, the settled practice, where the verdict is found upon special issues alone, that the court can not look beyond it to any fact apparent in the record, in aid of the judgment. We must conclude, therefore, that the verdict did not find all the essential facts necessary to settle the issue between Ledyard and the parties he makes defendants in his cross-bill or amended answer; and that a new trial should, therefore, have been granted. If it were not insisted upon by experienced and able counsel, we- would not deem it necessary to add, that the defendants to Ledyard’s cross-bill were not required to plead the statute of limitation, to entitle them to show that they were in possession under the superior title, and thus repel the conclusion of a title in him by a continued peaceable possession.

We can not agree with counsel, that Ledyard’s interlocutory judgment against De Witt, in his former suit,, which was still pending, entitled him to a judgment in this case. It is still within the control of the court, and may be set aside for good cause, and the party permitted to answer. There can be but one final judgment in a cause; and until this is rendered, a party against whom the default judgment is rendered is not finally concluded, even if the plaintiff in that case could have a final judgment against him without the verdict of a jury. A. final judgment only is evidence to support an action; an interlocutory one will not do so.

The judgment is reversed and the case remanded.

Reversed and remanded.