Branch v. Baker

• Decision Date: 09 March 1888
• Citation: 7 S.W. 808
• Parties: BRANCH v. BAKER <I>et al.</I>
• Court: Texas Supreme Court

7 S.W. 808

BRANCH v. BAKER et al.

Supreme Court of Texas.

March 9, 1888.

Appeal from district court, Galveston county; W. H. STEWART, Judge.

Howard Finley, for appellant.

STAYTON, C. J.

This action was brought by appellant against William R. Baker, H. E. Marrast, to recover all that part of a league of land originally granted to John R. Williams on July 29, 1824, situated on and below Clear creek, except 1,440 acres, which were not claimed by appellant. The Williams league is the same mentioned in the case of Westrope v. Chambers, 51 Tex. 178, which was by the ayuntamiento declared forfeited for failure of the grantee to comply with the conditions of the grant. The appellant, Branch, deraigns title through that grant; but, as there is no appeal by the defendants from so much of the judgment as gave him a part of the land sued for, it will not be necessary to consider the effect of the act confirming titles in the colonies of Austin and De Witt. Gen. Laws, 1856, 59. The title of Williams to the league passed to H. H. League, who conveyed to Thomas J. Chambers. Chambers conveyed to Wilson 640 acres out of the south-east corner of the league, and he conveyed to Westrope 800 acres, which extended from the land conveyed to Wilson across the southern part of the league. Branch sought to recover all the land below Clear creek, and embraced in the league not covered by the conveyances made by Chambers to Wilson and Westrope. The defendant Baker, believing the league vacant land, located it, and procured a patent, which, for reasons given in Westrope v. Chambers, 51 Tex. 187, was held invalid. Branch deraigns title through Chambers. An execution, issued under a judgment against Chambers and another, was levied on 640 acres of the land lying between the land sold to Wilson and Clear creek, that stream being its upper boundary. The land was sold by the sheriff, who made a deed to Allan Coward, the purchaser, for 525 acres, or for all levied upon. There were irregularities, however, in making the sale, which the court below seems to have conceded would prevent the sheriff's deed from passing title; and, in view of the disposition that will have to be made of the case on other grounds, it will not be necessary to consider that question. Coward entered into the possession of the land bought by him, in September, 1848, and continuously occupied it until in January, 1867, and during this time he had much of the land bought by him inclosed and in cultivation. The land claimed by him, and that sold by Chambers to Wilson, extended from Clear creek to the southern boundary of the league, and embraced 1,165 acres that covered the southeastern side of the grant below Clear creek. Baker obtained a patent to the league, September 26, 1863; and, it being understood at the time that his title was good, Coward bought from him 1,000 acres of the land, which would embrace enough of the land conveyed by Chambers to Wilson, and by the sheriff to Coward, to give that area in any one body of equal width extending from Clear creek, along the southeastern line of the grant, to its lower line. The conveyance from Baker to Coward was made in 1865; and, in consideration of $3,500, Coward conveyed the same land to E. C. Waters on July 10, 1872, for a like consideration. The deeds from Baker to Coward, and from the latter to Waters, contained covenants of general warranty. Mrs. Marrast claims as a devisee under the will of Mrs. E. C. Waters, and as purchaser from another devisee. She pleaded not guilty, and sought a recovery against her co-defendant, Baker, on his warranty, and declined to urge her rights under a plea of limitation. The defendant Baker, among other defenses set up by him to the demand of the plaintiff, as well as that made on him by reason of his warranty, pleaded that the title of Mrs. Marrast to all the land claimed by the plaintiff, and covered by his own deed to Coward, was complete by limitation; that she had not been, and could not legally be, evicted therefrom. There was a judgment for the appellant for all the land he sued for, except so much thereof as was covered by the deed from Baker to Coward. The appellant sought to remove cloud from his title; but, as he did not show that he was in possession, the court ruled that he could not maintain a suit of that character. The petition contained the averments necessary to try title to land, and an issue of that kind was tried, and it therefore become unnecessary to consider such of the assignments of error as relate to the ruling of the court referred to. Whether the action was one in form strictly trespass to try title, or a suit to remove cloud, in either case no relief could be given to the plaintiff unless he showed that he had title to the land.

It is urged that the defendant Baker was not entitled to interpose the plea of limitation, for several reasons.

1. Because neither he, nor one claiming through him, was in possession at the time the action was brought. We understand that if the period of limitation has fully run while there is adverse possession of land, that this gives title to the adverse possessor, which he may assert against the former owner alth...