Bridges v. Johnson & Muldrow , 69 Tex. 714 ( 1888 )

Acker, Judge.

The questions presented in this record are:

I. It being admitted that Muldrow had had peaceable and adverse possession of the land in controversy, cultivating, using and enjoying the same as a homestead for more than ten years, did he thereby acquire perfect title thereto, which could not be divested except in the manner prescribed by our statutes for conveying the homestead?

2. Was the parol adjustment entered into between Muldrow and wife and appellant binding, and are appellees thereby estopped to deny appellant’s right to recover the parts of lots two and three that had been enclosed and occupied by appellees for more than ten years prior to the adjustment?

Naked possession for the length of time, and with the incidents enumerated in the statute, invest the possessor with title to the land as fully and effectually as if the title had been acquired by patent, and a party who has had such possession for ten years may maintain an action founded on the title thus acquired. (Moody v. Holcombe, 26 Texas, 714.)

Muldrow having perfect title to the land embraced within his enclosure, being the head of a family, and the enclosure constituting his homestead, no part of it could be disposed of by parol. (Revised Statutes, article 560.) Appellant insists that appellees are estopped to deny his right to recover by reason of the parol adjustment entered into in 1881, such adjustment having been acted upon and acquiesced in by both parties. An estoppel in pais is the effect of the voluntary conduct of a party whereby he is precluded, both at law and in equity, from asserting the rights which might perhaps have otherwise existed, either of property, of contract or of remedy, as against another person who has, in good faith, relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract or of remedy. (2 Pomeroy’s Equity, sec. 804.)

It does not appear that appellant was led by the parol adjustment “to change his position for the worse,” nor does it appear that appellees “acquired any corresponding right; ” and we think the court did not err in holding that appellees were not estopped. If the parol adjustment had been valid and binding, it appears that appellant repudiated it by taking forcible possession of the land that appellees were to have by the terms of the adjustment, and that, too, without tendering a deed and demanding compliance upon the part of appellees.

We find no error in the record, and are of opinion that the judgment of the court below should be affirmed.

Affirmed.

Opinion adopted February 7, 1888.