Allen v. Draper

• Decision Date: 29 May 1918
• Docket Number: (No. 6041.)
• Citation: 204 S.W. 792
• Parties: ALLEN et al. v. DRAPER et al.
• Court: Texas Court of Appeals

Page 792

204 S.W. 792

ALLEN et al. v. DRAPER et al.

(No. 6041.)

Court of Civil Appeals of Texas. San Antonio.

May 29, 1918.

Rehearing Denied June 19, 1918.

Error from District Court, Jim Hogg County; V. W. Taylor, Judge.

Suit by B. R. Allen and others against J. J. Draper and others. There was a decree against plaintiff named, and he brings error. Affirmed in part, and reversed and rendered in part.

John L. Dannelley, of Laredo, for plaintiff in error. J. E. Leslie, of McAllen, and Ball & Seeligson, of San Antonio, for defendants in error.

SWEARINGEN, J.

This is a suit in trespass to try title, as well as for damages, by A. C. Allen, Guy Allen, L. M. Allen, B. R. Allen, Rhoda E. Allen, Jessie L. Sprague, joined by her husband, F. W. Sprague, Susie G. Wright, joined by her husband, W. B. Wright, E. Grace Laffoon, joined by her husband, W. I. Laffoon, and Nellie P. Geiser, joined by her husband, Clarence Geiser, against Henry Edds, Mrs. J. J. Draper, J. J. Draper, and his guardian, J. C. Draper. A jury returned an instructed verdict, upon which decree was rendered against appellant and in favor of all the appellees for the land claimed by them. Brought to this court on writ of error, but for convenience parties are styled appellants and appellees.

Originally B. R. Allen filed two separate suits, one against Henry Edds for 232¼ acres of land, particularly described by metes and bounds, the other against Mr. and Mrs. J. J. Draper and J. C. Draper, the guardian of J. J. Draper, for 126 3/5 acres of land, also particularly described by metes and bounds. In both original suits the defendants answered by pleas of not guilty, limitation by one, three, five, and ten years, estoppel and improvements and payment; specially alleged the portion claimed, and disclaimed as to balance, and impleaded their warrantors.

The following facts were established: Appellants own the award of survey No. 162. Henry Edds owned the award of survey No. 208. Francis Smith was his warrantor. The Drapers owned the patent to survey No. 207. By virtue of land certificate No. 89, legally issued to Howard & Wade, survey No. 162 was surveyed, the survey properly and promptly filed in the county and in the general land office in 1877, by reason of which steps the 640 acres of land contained in survey No. 162 ceased to be unappropriated public domain, but became lands appropriated to the public school fund. This was in 1877. In 1879 land certificate No. 1/519 was issued to B. S. & F. and was located on surveys 207 and 208; both were, as required by law, surveyed, and the surveys promptly filed in the county and in the general land office. Thus in 1879 survey No. 207 became appropriated land of which the assignee of the certificate B. S. & F. No. 1/579 was entitled to own; and the alternate survey No. 208 became appropriated to the public school fund. School survey No. 162 was awarded to appellant's grantor in 1908. School survey No. 208 was awarded to Leon Martinez in 1906, which award Henry Edds owns. Survey 207 was patented in 1906, and is owned by the Drapers. The court by its decree has determined that the two parcels of land herein sued for are located in survey No. 162, the 126 3/5 acres being also within the boundaries described in survey No. 207, and the 232¼ acres being within the boundaries described in survey No. 208. The evidence is sufficient to support this finding by the court. This proof was offered by appellant to sustain his contention. The question of the exact location of the land and the question of whether or not there is a conflict in the location of the three surveys is therefore eliminated. The only assignment is that the peremptory instruction to find for appellees is error.

The only contentions raised by appellant's propositions requiring consideration are the following: First, that appellant had the superior right to the disputed lands because survey No. 162 was surveyed prior to surveys No. 207 and No. 208, upon which prior survey the Constitution forbade the location of another certificate. Second, that appellees' inferior right did not become the superior right by three years' adverse possession because the award to purchase school survey No. 208 was not color of title from the sovereignty of the soil, and because the patent to No. 207, a later survey, was not the color of title required by the statute of three years limitation.

The first contention herein made, namely, that appellant's prior survey gave him the superior right does not seem to be denied by appellees, and it has been often so decided by our appellate courts. The fact that survey No. 162 was surveyed and the survey filed in the county and in the general land office made the lands surveyed appropriated lands, which could not be covered by another certificate thereafter. Mills v. Needham, 28 Tex. Civ. App. 547, 67 S. W. 1097; Gilbert v. Mansfield, 38 Tex. Civ. App. 300, 85 S. W. 830.

Because the location of the surveys No. 207 and No. 208, made after survey No. 162, covered a portion of survey No. 162, to the extent of the conflict, they were void because forbidden by article 14, § 2, of the Constitution of Texas, and the award of No. 208 and the patent to No. 207 passed no right or title to the land in No. 162. Ellwood v. Stallcup, 57 Tex. Civ. App. 343, 122 S. W. 906.

The second contention made, namely, that appellees did not show a superior right in themselves to the conflicting land by adverse possession for three years under color of title, presents a more serious question.

Appellant has never received a patent to school survey No. 162, but has only an award coupled with proof of occupancy, payment of a part of the purchase money, interest, and taxes. This is such a right as can be destroyed by adverse possession, notwithstanding the fact that the legal title is in and will remain in the state until it executes and delivers the patent therefor. Paterson v. Rector, 127 S. W. 561, affirmed in 104 Tex. 708;¹ Parker v. Brown, 80 Tex. 555, 16 S. W. 262; Dutton v. Thompson, 85 Tex. 115, 19 S. W. 1026; Lawless v. Wright, 39 Tex. Civ. App. 26, 86 S. W. 1039. The opinion by Justice Rice in Hamman v. Presswood, 120 S. W. 1052, is apparently not in harmony with the cases followed and cited by us.

It is admitted by appellees and the evidence shows that there was no adverse possession held by appellees sufficient to sustain the one, five, or ten years limitation. The issue is therefore reduced to the three-year statute of limitation. Appellee Henry Edds did not have a patent to school survey No. 208, but only an award, coupled with proof of occupancy, payment of a part of the purchase price, interest, and taxes. He had precisely the same evidence of right to school survey No. 208 as appellant had to school survey No. 162. It has been held, we believe uniformly and consistently, that an award is not color of title from the sovereignty of the soil, which the statute requires to give a superior right by the three years' adverse possession. Pohle v. Robertson, 102 Tex. 274, 115 S. W. 1166; Johnson v. Knippa, 127 S. W. 905, § 2, and authorities therein cited; Morrow v. Conoway, 157 S. W. 430, § 3; Garrison v. Arnett, 126 S. W. 611; Wolffarth v. De Lay, 142 S. W. 617-622. Appellee did not acquire any right by limitation to that 232¼ acres of land described in survey No. 208, which was located in survey No. 162.

Appellees, the said Drapers, claimed the 126 3/5 acres as a part of survey No. 207, but actually located on survey No. 162, under a regular patent from the state. This patent did not convey to him the paramount title to the part of the land in conflict with survey No. 162, because of the priority of the survey of No. 162; but the patent is color of title from the sovereignty of the soil and is sufficient to enable the Drapers, the appellees, by three years' adverse possession of the conflict land, to secure to themselves a right thereto superior to the right of appellant Allen, though of course the Drapers, by this three years' limitation, cannot affect the right of ...