Shields v. Boone

• Decision Date: 01 January 1858
• Citation: 22 Tex. 193
• Parties: BENJAMIN G. SHIELDS v. JOHN C. BOONE.
• Court: Texas Supreme Court

22 Tex. 193

BENJAMIN G. SHIELDS

v.JOHN C. BOONE.

Supreme Court of Texas.

1858.

The bringing of a suit for land, which is voluntarily abandoned, or dismissed for want of prosecution, will not interrupt the running of the statute of limitations. 23 Tex. 165;25 Tex. 356; 25 Tex. S. 96.

The true interpretation of the last clause of the 14th section of the act of limitations, of the 5th of February, 1841, providing that “peaceable possession, within the scope of this act, is such as is continuous, and not interrupted by adverse suit to recover the estate,” does not change the rule prescribed by the act of 20th December, 1836, that “a peaceable possession can only be interrupted by an actual suit being instituted, and prosecuted agreeably to the due forms of law,” etc. The object of that law was, to define what is meant by a peaceable possession; it had no reference to the subject of the interruption of the statute.

APPEAL from Guadulupe. Tried below before the Hon. A. W. Terrell. Verdict and judgment for defendants. One of the grounds stated in plaintiff's motion for a new trial was, “the court erred in instructing the jury as follows: the running of the statute of limitations, would not be interrupted by the bringing of a suit, which was dismissed for want of prosecution.” The appellant assigned as error, the giving of such instruction.

It appeared from the statement of facts, that a suit of John T. Holman against John C. Boone, was filed on the 18th day of March, 1853, in the district court of Guadalupe county; and that it was instituted for the recovery of the same land as that described in the petition in this suit. At the fall term, 1853, in the month of October, the judgment of the court, in that case, was rendered as follows: “In this case appeared the defendant, by attorney, and the plaintiff not appearing in person or by attorney, he having been three times called by the sheriff, and this cause coming on to be heard, it is therefore considered and adjudged by the court, that this cause be dismissed for want of prosecution;” and proceeded further to render judgment, in the usual form for costs. The other facts are stated in the opinion.

John T. Harcourt, for appellant. The leading question involved in this case, is, as to the correctness of the charge of the court. We think this charge, under the facts in the case, was directly in the face of the law. The issue before the court was, whether the defendants had five years' peaceable possession of the land, using and enjoying it, and paying taxes, and claiming under a deed duly registered.

The statute defines what is peaceable possession (Hart. Dig. art. 2390): “Peaceable possession, within the scope of this act, is such as is continuous, and not interrupted by adverse suit to recover the estate.” If the statute had required the suit to be effectually prosecuted, then the charge of the court would have been correct. But the legislature was satisfied in declaring that the possession, in order to bar a recovery, should be continuous, and not interrupted by adverse suit to recover the estate. Now, what is a suit? Black. Com. vol. 3., p. 16, says, “suit, or action, is the legal demand of one's right.”

When the suit was filed on the 18th March, 1853, by John T. Holman, against the defendant, Boone, to recover the land in controversy, there was a legal demand made for the land, and that suit remained upon the docket until the month of October, 1853; more than six months. As soon as that suit was filed, the statute of limitations ceased to run; the peaceable possession ceased to be continuous; it was interrupted by an adverse suit to recover the estate.

The charge of the court was predicated upon the doctrine maintained in Angell, Lim. § 346, “That in no case of a voluntary abandonment of an action, has an exception to the statute been supported.” This was the language of the supreme court of the United States, in construing the Maryland statute of limitations. That statute undertook to provide a limitation for all actions, and to enumerate all cases in which exceptions should be made. Richards v. Maryland Ins. Co. 8 Cranch, 84. We cannot see any authority, in that case, for the construction given to our statute. Our legislature intended to cut off all inquiry, and all controversy, by defining in plain words what they meant by ““peaceable possession;” and we apprehend that no words will be added, by judicial construction, to the plain language of the statute, in order to give effect to the plea of the statute of limitations.

To sustain the charge of the court, the words “effectually prosecuted” must be added, after the word suit, in the statute. If we, by construction, can say that the suit must be “effectually prosecuted,” in order to interrupt the statute, may we not interpolate, with equal propriety, any other words to suit the occasion, and thus destroy all that certainty and security, which the act was intended to provide? The argument used against the construction we contend for is, that suits for the recovery of the land, might be instituted, ad libitum, merely for the purpose of arresting the statute of limitations, and then abandoned; “and by an artifice of this kind, he would be enabled to protract the trial, until the defendant had lost his evidence.” This may be a legitimate argument against the policy of the statute, but it can have no weight, when urged in favor of a construction of the law that is in violation of its plain letter and spirit. If the law be defective, in this regard, let it be amended by the law-making power. But we apprehend that, in practice, the law would not be obnoxious to this objection. Litigants are not often charged with such playful tardiness, in the assertion of their rights to real estate.

It is contended, that the legislature...