Stanley v. Schwalby

• Citation: 16 S.Ct. 754,40 L.Ed. 960,162 U.S. 255
• Decision Date: 23 March 1896
• Docket Number: No. 653,653
• Parties: STANLEY et al. v. SCHWALBY et al
• Court: United States Supreme Court

162 U.S. 255

16 S.Ct. 754

40 L.Ed. 960

STANLEY et al.

v SCHWALBY et al.

No. 653.

March 23, 1896.

[Syllabus from pages 255-257 intentionally omitted] This was an action of trespass to try title, brought in the district court of Bexar county, in the state of Texas, by Mary U. Schwalby, joining her husband, J. A. Schwalby, against David S. Stanley, William R. Gibson, Samuel T. Cushing, and Joseph C. Bailey, to recover a parcel of land in the city of San Antonio.

The original petition was filed February 23, 1889, and as amended by leave of court December 2, 1889, alleged that Mrs. Schwalby was seised and possessed in fee simple of an undivided third part of the land, and she and her husband were entitled to the possession of the whole, and that the defendants, without any right or title, ousted them from the possession thereof, and prayed 'judgment for the recovery of the title to one-third of said premises, and possession of the whole thereof, for costs of said suit, and for general relief.'

The individual defendants, and 'The United States, by their attorney, Andrew J. Evans, acting by and through instructions from the attorney general of the United States, here exhibited to the court' (but not at that time made part of the record), filed an amended answer, in which they pleaded not guilty, and set up, among other defenses, that the title to the land was in the United States, and the individual defendants had and claimed no title therein, but were lawfully in possession thereof as officers and agents of the United States; and specially pleaded that the city of San Antonio in 1875 purchased the land, and on June 16, 1875, conveyed it to the United States, with no notice of the plaintiffs' claim, and the United States were innocent purchasers for valuable consideration, and that from June 16, 1875, to the bringing of this action, the United States had been in the actual, peaceable, and adverse possession of the land, continuously enjoying and improving it, no taxes being due thereon,—under deed duly re- corded, and 'under title, and color of title, from and under the sovereignty of the soil, down to the defendant, the United States, dulyregistered,'—and therefore pleaded the statutes of limitations of the state of Texas of three, five, and ten years; and also that the United States had made permanent and valuable improvements on the land.

The plaintiffs, by supplemental petition, excepted to the answer, so far as it was filed in behalf of the United States, upon the ground that he United States were not a party defendant, and that neither the district attorney nor the attorney general of the United States had authority to submit for adjudication in the courts of the state of Texas the rights of the United States of America, as well as upon the ground that the pleas of the stastutes of limitations of the state of Texas constituted no defense to the action, because the United States were neither bound by nor protected by those statutes, and because the plaintiffs could not, in any court, bring suit against the United States; and, to the pleas of the statutes of limitations, replied that on January 18, 1871, and long before their adverse possession commenced, the plaintiff Mary U. Schwalby was lawfully married to her co-plaintiff, and had ever since continued to be a married woman.

Joseph Spence, Jr., intervened by leave of court, and filed a petition similar to the principal one, likewise claiming an undivided third part of the land.

The parties submitted the case to the decision of the court without a jury. At the trial the following facts were proved or admited:

The common source of title, through whom all parties—the plaintiffs, the intervener, and the United States—claimed this land, was Anthony M. Dignowity.

On September 13, 1858, he executed to Amanda J. Dignowity, his wife, a general power of attorney to sell and convey his real estate; and by virtue thereof she on May 9, 1860, executed a warranty deed to Duncan B. McMillan of this parcel, reciting the payment by him of a consideration of $100. This deed was acknowledged on the same day before William H. Cleveland, notary public, but was not recorded until Sep- tember 30, 1889. McMillan died in Louisiana in February, 1865, intestate, a widower, leaving three children. Mary, the female plaintiff, who was born September 11, 1848, was married to J. A. Schwalby January 18, 1871, and was still his wife when this action was tried; Sarah, who was born August 3, 1854, married to one Neely February 14, 1875, and died August 17, 1878, leaving two children, who were still living; and Duncan W. McMillan, born November 2, 1850, who by deed dated and acknowledged March 26, 1889, and recorded March 29, 1889, conveyed his interest in this land to the intervener, Joseph Spence, Jr.

Dignowity died in April, 1875, and by his will, admitted to probate April 22, 1875, devised and bequeathed all his property to his wife, and made her independent executrix, with full power of sale and disposition of all his property, and requiring of her no bond or inventory. By deed of quitclaim and release, dated May 1, 1875, and recorded June 1, 1875, the widow, in her own right, and as independent executrix, for the consideration of $1,500, conveyed to the city of San Antonio four lots of land, one of which was that now in question, described as 'lot number one, in block number two, known as the 'McMillan Lot," with special warranty against all persons claiming by, under, or through Dignowity or his estate. By warranty deed in the statutory form, dated June 16, 1875, and recorded October 21, 1875, the city of San Antonio conveyed the four lots to the government of the United States of America, for military purposes, 'in consideration of one dollar paid to the said city of San Antonio by the said government, the receipt whereof is hereby acknowledged, and for divers and other good and sufficient consideration thereunto moving.'

The defendant Stanley, being called as a witness for the plaintiffs, testified as follows: 'Myself and the other defendants were in possession of the lot when this suit was brought. I am a brigadier general in the United States army. My co-defendants are officers in the United States army. We took, held, and hold such possession as such officers of the United States army. The government of the United States took actual possession of the land in controversy in the year 1882. The land sued for is part of the military reservation of the United States of America, at San Antonio. We hold possession under the United States of America. According to my understanding, the United States first took possession of this lot in the year 1875 or 1876. It was then open prairie. We do not claim title to the land in our own right, but hold it for the United States. The United States have made the following improvements upon the lot in controversy before the institution of this suit [stating them]. These improvements were made since the year 1881. Before that the lot was open prairie. I never heard of a claim against this land until the commencement of this suit.'

Mrs. Dignowity, in a deposition taken by the plaintiffs July 23, 1889, before William H. Houston, notary public, but introduced in evidence by the defendants, after being shown her deed to the city of San Antonio, dated May 1, 1875, testified as follows: 'Lot 1 in block 2, named in that deed, was called by me the 'McMillan Lot,' because it was the habit of my husband, during his lifetime, whenever he sold a city lot, to mark the name of the purchaser in pencil on the map, and, when the lot was paid for, to write the name in ink. I presume I found this lot marked in the name of McMillan in pencil, and therefore called it the 'McMillan Lot.' This is the only explanation I am now able to give.' 'I must have known in some way that the lot had been sold, and a payment made on it; and I know of no other way I should have known it, except as stated above.' 'I have no recollection of ever making a deed to Duncan B. McMillan of lot 1 in block 2, though I may have done so. If such a deed was made by me twenty-nine years ago, I do not see why it was not recorded, unless, perhaps, the full purchases money had not been paid.' 'I do not know who was in possession of the lot from 1860 until my husband's death, in 1875, but believe it was unoccupied. I do not know that it was claimed by any one but him. I paid the taxes on it during that time. I never took actual possession of the lot, but continued to pay the taxes until it was sold to the city. I never had said lot in actual possession, and never had a tenant on it.' 'Neither Duncan B. McMillan, nor any one for him, nor any of his heirs, ever claimed an interest in the lot in suit in this case, from 1860 to 1875, to my knowledge. When I sold the lot in controversy to the city of San Antonio, I acted in good faith. I believed, for some reason, that Duncan B. McMillan had some claim on the lot, or I should not have specially quitclaimed it to the city.'

In a second deposition, taken by the defendants December 31, 1889, she testified: 'I am in my seventieth year, and reside in San Antonio.' 'I have seen the original of the deed from me to Duncan B. McMillan, dated May 9, 1860. I was shown the deed by Captain William Houston. I have never seen it but that one time, since it was executed by me, until to-day. I carefully examined it, and it is a genuine deed. I don't know why said deed was never recorded until a few months ago. I don't know whether I ever delivered possession of the lot in controversy to Duncan B. McMillan, or his agent for him, formally, or not. I paid taxes on the land until it was sold subsequently. I don't remember of receiving but fifty dollars on the transaction, and think that was paid before the date of the deed. I don't recollect anything more than that I was paid fifty dollars on the trade, and I executed the deed, and acknowledged it before Mr....