Bentinck v. Joseph Franklin & Galveston City Co.

• Decision Date: 01 January 1873
• Citation: 38 Tex. 458
• Parties: HARRIET W. BENTINCK v. JOSEPH FRANKLIN AND GALVESTON CITY COMPANY.
• Court: Texas Supreme Court

38 Tex. 458

HARRIET W. BENTINCK

v.JOSEPH FRANKLIN AND GALVESTON CITY COMPANY.

Supreme Court of Texas.

1873.

1. Statutes of limitation have reference to the remedy, and do not, in any sense, confer a vested right.

2. It was competent for the people, in adopting their organic law, to declare a suspension of the statute of limitation.

3. Land laws conferring title by prescription are statutes of limitation, and come within the principle of the 43d section of 12th article of the constitution.

4. There is no law prohibiting champerty in force in this state.

APPEAL from Galveston. Tried below before the Hon. A. P. McCormick.

Joseph Franklin. appellee, brought this suit of trespass to try title against Henry W. Bentinck, April, 1870, for the recovery of certain lots in the city of Galveston.

The defendant pleaded “not guilty,” limitations of five years under deed duly registered, and of ten years, both exclusive of the period between January 28, 1861, and September 2, 1866; also ten years' non-entry, and outstanding title.

Defendant afterwards pleaded “that the title of plaintiff was wholly derived from the Galveston City Company, which rested wholly upon proceedings had in case No. 96; that twenty years ago the defendant, with a full knowledge of all the facts affecting the validity of the proceedings in said suit, admitted that all the proceedings in and under said suit, so far as they affected the title to the property in controversy, were void; that said company did then, upon mature deliberation, with advice of counsel, determine not to claim said lots under said proceedings, and dropped the same from its property rolls and refused to pay taxes thereon. That by the admissions of said company, and their uniform course of conduct relative to said property, defendant and those under whom she claims were led to believe that the said company neither had nor pretended to have any claim whatever to said lots, and did so verily believe; that she was induced by such admissions and conduct by said company innocently to act with reference to said property to her great damage, and to pay out and expend large sums of money in the regular payment of all taxes thereon for about twenty years, and in the erection of improvements. That the plaintiff had full knowledge of all of these facts before and at the time of his pretended purchase; that he was not an innocent purchaser, but on the contrary, he had never paid any part of the purchase money; that the agreement between plaintiff and said company was one of champerty, common barratry and maintenance; that it was by them agreed that no part of said purchase money should be due and payable by the plaintiff, except as contingent upon their success in this cause, and that the price so agreed to be paid did not exceed one-third of the value of the property at the time of the pretended purchase.

Galveston City Company appeared, excepted to being made a party, demurred generally, and pleaded “not guilty.”

There was an agreement of counsel admitting original title of Galveston City Company under Menard grant, and regular payment of all taxes by defendant Bentinck since his purchase at tax sale.

Pending the suit, Henry W. Bentinck, original defendant, died, and Harriet Bentinck, surviving wife and appellant, was made a party.

Upon the trial the defendant offered to prove by James P. Cole, stockholder and agent of the Galveston City Company, that plaintiff, having no interest in the property in controversy, had hunted up the supposed defect in the title of the defendant, and the supposed better title in said company, upon which this suit is founded, and had of his own motion approached said company and obtained from them a deed thereto, upon consideration that he would institute and prosecute, at his own costs, suit for recovery thereof, and in event of success would pay to said company a part of its estimated value; which was objected to by counsel for plaintiff and Galveston City Company, on the ground that champerty was not obnoxious to the courts of Texas, and was ruled inadmissible by the court, on the ground, “that if champerty was obnoxious to our laws, proof of the facts relied on as constituting it could not be introduced under the general terms of champerty, maintenance and common barratry, but that said matters must be specially pleaded.”

Defendant also offered to prove that the witness, the general agent of the said company for sixteen years before the suit, had never rendered for taxes or paid taxes on the lots in controversy, nor had the company paid taxes thereon, or asserted claims thereto, until the making of the deed to plaintiff; that the Galveston City Company, twenty years before the institution of this suit, and with a full knowledge of the facts affecting their title to the property in controversy, ceased to claim the same, and openly disavowed title, and that defendant had been induced by the uniform conduct of said company and their declarations to act with respect to said property to her injury. All of which was objected to by counsel for plaintiff and said company, and excluded by the court.

The action of the court was assigned for error.

The plaintiff derived title through the Galveston City Company, who bought the property April 3, 1856, at sheriff's sale, under proceedings had in said suit No. 96. The City Company made their deed to plaintiff in 1870. On the nineteenth of February, 1855, defendant purchased the property at tax sale, and received tax deed therefor on the eighth day of May, 1856, which was duly recorded on same day, and had regularly paid all legal taxes on the property since that time, and openly claiming it as his own.

With respect to the use, cultivation and enjoyment of the property by defendant, the character of his improvements and their continuousness, there was much contradictory evidence between witnesses.

The only instruction given by the court was as follows: “The plaintiff must show title in himself. He has shown such title, and will be entitled to your verdict, unless defeated by defendant's plea of five years' limitations under deed duly registered, etc. If the jury believe from the evidence that the defendant has had five years' peaceable possession of the premises in controversy, cultivating, using, or enjoying the same, and paying taxes thereon, and claiming under a deed duly registered for a period of five years before the institution of this suit, and excluding in your computation so much of the time as is between the twenty-eighth of January, 1861, and the thirtieth of March, 1870, they will return a verdict for the defendant.”

Verdict and judgment for plaintiff, from which defendant appealed.

Gould & Street, for appellant.

1. The court erred in the instructions given the jury.

The question raised involves two points; and first, does the twenty-fourth section of the twelfth article of the constitution of 1869, by any necessary or proper construction, apply to a case where, before its adoption, the title to lands had been perfected under the existing laws? and second, if such be the construction necessarily arising from the terms of the provision, was it competent for the convention of 1869, with ratification by the vote of the people and the assent of congress, so to provide?

Limitations with respect to lands, especially in this state, may become something more than statutes of limitation. In personal actions, the remedy is barred by the mere efflux of time; no affirmative acts are done or required to be done by the supposed debtor, and no right of action is vested in him. But with respect to lands it is different; affirmative acts of a claim of ownership, possession and use, cultivation or enjoyment, done and performed by the supposed defendant, are prerequisites to the moving of the statutes in his favor, and these, when continued for the prescribed duration of time, vests in him the ownership of the lands and invest him with his affirmative remedy, by means of which not merely to defend, but to assert his title. They are, therefore, more than mere laws of limitation; they are laws of property, and have for their sanction higher principles of justice and more obvious reasons of policy. In the one case, without merit of the one party or demerit of the other, upon reasons of state merely, the debt is presumed to be paid; in the other, because of the failure of the one party through a series of years to pay the price of protection, viz., taxes, use, cultivation or enjoyment, the title of lands which he might have possessed is divested out of him and vested in the other party as the promised reward of his labor, and his toil, and his rendition to the government of its proper dues, continued for many years.

Statutes of limitation are said to be conclusive presumptives made by the law-making power, but the statute under which this defendant claims is ill-defined as a mere statute of presumption; it is only upon proof of acts done by him in conformity with the statutes that a presumption ever arises against his adversary, and upon such proof the laws of our land give him his action.

In Davidson v. Peticolas, 34 Tex., this court held that the statute requiring suit to first term of court to hold the drawer or indorser was not a statute of limitation, because an affirmative act was required of the holder.

In this case the defendant might, at any time between the second of September, 1866, and the thirtieth of March, 1870, have brought suit to quiet his title, and the title of the property would have been finally adjudged him by this court; but there was no requirement that he should sue; he was himself in possession, and there was no adverse claim, and under such circumstances it was against the policy of the law that he should sue. As this court observes in Bender v. Crawford, 33 Tex. 745, it is not incompetent for the legislature, and, a fortiori, the constitutional convention, to vary the remedy, so...