Alexander v. Kennedy

• Decision Date: 01 January 1857
• Citation: 19 Tex. 488
• Parties: LORIN C. ALEXANDER v. THOMAS KENNEDY AND WIFE.
• Court: Texas Supreme Court

19 Tex. 488

LORIN C. ALEXANDER

v.THOMAS KENNEDY AND WIFE.

Supreme Court of Texas.

1857.

That the possession of one co-heir or co-tenant is the possession of the other co-heirs, and is taken in trust for their benefit, is an elementary and indisputable principle of law.

But this possession may become adverse to the other heirs, by acts or declarations repelling the presumption that the possession is in the character of a co-heir, and which show clearly a claim of exclusive right; the hostile intent of the possession must be manifested by acts of a more unequivocal character than would be necessary in ordinary cases, where there is no privity of estate between the claimants to the property; acts of ownership in such cases are not necessarily acts of adverse possession. [3 Tex. 273;11 Tex. 170;28 Tex. 713.]

Where the surviving husband, who was entitled by the law of descents to the one-half of the slaves of his deceased wife, who had died without children, left all the slaves in possession of his wife's parents, who paid taxes upon them and claimed them as their own for nearly four years, in a suit by the husband to recover one-half the slaves, it was held that the evidence was not sufficient to sustain a verdict for the defendants on the plea of adverse possession for two years, on the ground of the privity of the estate and of the special confidence between the claimants.

Error from Lamar. Tried below before the Hon. William S. Todd.

Suit by plaintiff in error against defendants in error, commenced March 14, 1855. The petition alleged the marriage of the plaintiff to a daughter of defendants, in March, 1849, in this state; a gift of six slaves, “a short time after” the marriage, by the defendants to plaintiff's wife; the possession of the slaves by plaintiff up to the period of his wife's death; that, sometime in the year 1853, plaintiff's wife became seriously ill, and plaintiff removed with her and the slaves to the residence of defendants, where they continued to reside until the death of plaintiff's wife, on the ____ day of ____ of the same year; that the plaintiff, overcome with grief at the death of his wife, left the residence of the defendants, and also abandoned his former residence, and for some years thereafter resided and did business at Fort Belknap upon the frontier; that he left the slaves in charge of defendants, who have continued to possess them to this day; that plaintiff's wife died intestate, leaving no children; that plaintiff is entitled by the laws of descent to one-half of said slaves; that on the ____ day of January, 1855, plaintiff demanded partition of said slaves of the said defendants; that defendants refused, and now claim the whole of said slaves; prayer, etc.

Answer of general denial, and plea of adverse possession for two years.

Statement of facts, as follows:

In this case it is agreed that the defendants delivered into the possession of their daughter, Mrs. Alexander, the negroes sued for; that they are now worth the sum of thirty-five hundred dollars. It is also agreed that the negroes were taken by Mrs. Alexander to her home in Fannin county; and that, after remaining there with her and her husband for about two years, owing to Mrs. Alexander's health, she and her husband returned with the negroes to defendants, where Mrs. Alexander died in June, 1851, without children. Mr. Alexander left the property in the possession of defendants, and they have paid taxes on them ever since, claiming them as their own.

The court charged the jury, without request, as follows: If the jury believe from the testimony that the negroes in question were, at the time of the death of Mrs. Alexander, her property, by our law of distribution, her husband, the plaintiff, would have one-half, and her father and mother, the defendants in this case, would have the other half; and if after her death they remained in the possession of the defendants, coupled with an admission on their part of the interest of the plaintiff, the statute of limitations would not begin to run until after a demand and refusal to deliver; but if the jury believe that they had possession for more than two years previous to the institution of this suit, claiming the title and exercising public and notorious acts of ownership over them, their title is complete, and the jury must find for the defendants.

The plaintiff requested the court to charge the jury as follows: That if they believe from the testimony that defendants delivered the negroes into the possession of Mrs. Alexander, and that they were taken by her to her home and remained in her possession up to the time of her death, that this raises a presumption of gift on the part of her parents.

Also, that if the jury find that the negroes were given to Mrs. Alexander, that, upon her death without issue, her parents inherited the one-half of her estate, and the plaintiff, as surviving husband, the other.

That, until a partition or division had been made, either of the heirs were entitled to the possession of the whole property, and though defendants set up an adverse possession of two years, it is not such possession as contemplated by the statute, inasmuch as the same is not inconsistent with the possession of plaintiff; that a possession, to be adverse, must be inconsistent with the claim of plaintiff, and the mere giving in and paying of taxes by one joint owner is not inconsistent.

The first and second propositions of the charge asked were given; the third was refused.

Verdict and judgment for defendants. Motion for new trial overruled, etc.

Mills, for appellant.

J. A. T. Murray, for appellees, cited Humbert v. Trinity Church, 24 Wend. 587; Portis v. Hill, 3 Tex. 283; Charle v. Saffold, 13 Id. 94;Cochran v. Winburn, 9 Id. 123;Wingate v. Wingate, 11 Id. 430. The question of adverse possession was purely a question of fact, and was fairly submitted by the charge of the court.

HEMPHILL, CH. J.

This suit was brought March 14, 1855, for the partition of certain slaves, who had been delivered by the defendants, Kennedy and wife, to their daughter after her intermarriage with Alexander, the plaintiff. The statement of facts, after reciting the delivery of the slaves as above, and their value, continues to the effect that the negroes were taken by Mrs. Alexander to her home, and after remaining there with her and her husband about two years, owing to Mrs. Alexander's health she and her husband returned with the negroes to defendants, where Mrs. Alexander died in June, 1851, without children. Mr. Alexander left the property in possession of defendants, and they have paid taxes on them ever since, claiming them as their own.

The defendants pleaded the statute of limitations.

The court charged, in effect, that if the slaves remained in possession of defendants after the death of their daughter, with the admission on their part of the interest of the plaintiff, the statute of limitations would not begin to run until after a demand and refusal to deliver; but if the jury believe that they had possession for more than two years previous to the institution of this suit, claiming the title and exercising public and notorious acts of ownership over them, their title is complete, and the jury must find for defendants.

The jury found for defendants, and the plaintiff has brought up the cause by writ of error.

Mrs. Alexander having died without children, her husband was entitled to one-half of the slaves, and the defendants, as father and mother, to the other half in equal portions. By the statute of distribution, the plaintiff and the defendants were co-parceners, and the question is, whether the possession of defendants was so adverse to the plaintiff, he being a co-heir, as to support the plea of limitation. No question has been raised as to whether there should not have been administration on the estate, and whether co-distributees could hold adversely to each other until after the close of administration. Admitting that there was no necessity to administer (there being, perhaps, no debts, or the debts being paid), and that the rights of the parties as heirs could not be disturbed or superseded by a paramount claim under administration, it would...