Whitehead v. Foley , 28 Tex. 1 ( 1866 )

Moore, C. J.

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, in no manner affected injuriously the rights of the plaintiffs. All the costs which had accrued prior to their disclaimer .were adjudged against the defendants. If the plaintiffs had been willing, on the presentation of the disclaimer, to discontinue their suit for the remainder' of the land, all controversey between the parties would, have been at an end. This they were unwilling to do; and, as they failed to maintain their assumption of a right to a verdict on the-only matter remaining in issue, the cost subsequently accruing was properly imposed upon them. A refusal to admit the disclaimer would not have changed the result of the controversey as to the property in dispute. It would merely have enabled the plaintiffs, by claiming in their petition land upon which the defendants had not trespassed, and to which they in fact set up no title, to have litigated the matters really in dispute at the cost of the defendants. Such an assumption certainly does not present itself favorably to the consideration of the court. It is insisted, however, that the disclaimer was presented as an amendment, and the court was forbidden by the statute from permitting this to be done after the parties .had announced themselves ready for trial. The language of ' the statute, (O. &. W. Dig., Art. 434,) if technically construed, may admit of this construction. But -it certainly never has been supposed that the district courts cannot permit parties, if necessary to accomplish the ends of "justice, to withdraw an announcement at any time before a case is submitted to the jury. And if this be done, it is undeniable that the pleadings may then be amended; so also, after a verdict, a new trial may be granted for the mere purpose of permitting an amendment. Was it the purpose of the legislature to forbid the court doing directly what may thus be circuitously accomplished? It can hardly be thought that this is the true meaning or interpretation of the statute. It is more reasonable to conclude) that the object of the law was to prescribe a general rule, under which parties should have the absolute right of amendment before they announce themselves ready for trial and not thereafter, hut not to take from the court the power of making any order during the progress of the trial, which might be found necessary for moz*e certainly and speedily attaining the justice of the case. If, however,' this he zzot the coi’rect interpretation of the law, the most that can be said is, that the ruling complained of is hut an izTegularity, which in no way injuriously affects the plaintiffs, and is not therefore a ground upon which they can ask a reversal of the judgment.

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, that it did not appear that the oath required by the 12th section of the land law of December 14, 1837, had been subscribed, and, therefore,' they did not conceive themselzes authorized to recommend them for patent, but returned them, subject to the action of the government, believing them to be genuine. Only such certificates as were recommended for patent could, under the law organizing the board for detecting fraudulent certificates and to provide for issuing patents to legal claimants, have been recognized as valid or sufficient to give color of title to occupants of land surveyed thereby. But certificates of this kind were made valid and patents expressly required to be issued upon them by act of the congress of the republic of Texas, passed January 19, 1841. Subsequently to that time, claimants under them were certainly entitled to all the rights and privileges of the holders of other valid and established claims for land.

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 written lease or authority; 4th, There was a want of continuity of possession for the time required to bar the plaintiffs’ suit. (Paschal’s Dig., Art. 4622, Note 1031.)

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. But, if it were otherwise, the statute does not make the fact, that the owner 'of a certificate of head-right is aware, at the time of locating his certificate,- that his survey conflicts with a prior valid grant, an exception to the running of the statute in his favor, or debars him from its protection, if the owner of the superior title fail to prosecute his suit, within the time prescribed by law. It is not for this court to engraft such a provision on the statute, even if they deemed it desirable that it should have been so framed..

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 defendant, W. G. L. Foley. The statement of facts shows that the possession was not abandoned in contemplation of law. It is a well recognized doctrine in this court, that the fact of the premises being left without an occupant for a short time, between the removal of one tenant and the entry of his successor, where there is no intention of abandoning the possession, does not stop the running of the statute. A short and temporary vacation of the premises is the ordinary and frequently the unavoidable incident of -the change of tenants. If the attendant circumstances are such, that a reasonable and prudent man would not be induced to suppose the possession had been abandoned, it cannot be insisted that the running of the statute has been interrupted. The length of time during which there was no one on the land may have been unusually long in this case, but* the very large amount of corn left in the crib until the subsequent occupant took possession of ’the premises, to say nothing of other circumstances, was sufficient to show that possession was asserted and continued by those who had previously maintained and claimed it. (Brumfield v. Reynolds, 4 Bibb, 388.)

There is no error in the judgment, and it is therefore

Affirmed.

Smith, J., did not sit in this case.