Brownson v. Scanlan

• Decision Date: 13 April 1883
• Docket Number: Case No. 1327.
• Citation: 59 Tex. 222
• Parties: J. M. BROWNSON, ADM'R, v. LLOYD SCANLAN ET AL.
• Court: Texas Supreme Court

59 Tex. 222

J. M. BROWNSON, ADM'R,

v.LLOYD SCANLAN ET AL.

Case No. 1327.

Supreme Court of Texas.

Apr. 13, 1883.

APPEAL from Waller.Tried below before the Hon. Wm. H. Burkhart.

Action of trespass to try title brought August 21, 1876, by J. M. Brownson, administrator of Robt.R. Barrow, deceased, against Lloyd Scanlan, Mrs. E. Spurlock and W. J. Rainwater, to recover the undivided two-thirds of a league of land, being the upper league of two leagues granted to Juan A. Padilla, on Brazos river, formerly in Austin county, now in Waller county.The defendants pleaded not guilty, and limitation of three, five and ten years, and set up title in themselves to separate parcels of the land, to wit: Skannel's heirs to two thousand eight hundred and fifteen acres, Mrs. Spurlock to four hundred acres, and Rainwater to eight hundred acres.Mrs. Spurlock and Rainwater suggested improvements in good faith.All the defendants pleaded that they were innocent purchasers for value without notice.There was a verdict for the defendants generally.

The defendant Rainwater offered in evidence, without further proof of execution, a deed from J. F. Solleballas to Robt.P. Hunter for the eight hundred acres claimed by defendant Rainwater, and a deed from Hunter to James Richardson for same--said deeds having been filed among the papers of the cause, and due notice given.The deeds were both executed before a notary public in Louisiana, who attested the execution of the first named as follows:

“In testimony whereof the said parties hereto sign their names, together with me, notary, and the undersigned competent witnesses, and I affix hereto my official seal on this 31st day of March, 1874, the date and year above written.

+---------------------------+
                ¦       ¦J. F. SOLLEBALLAS. ¦
                +-------+-------------------¦
                ¦       ¦ROBT. P. HUNTER.   ¦
                +-------+-------------------¦
                ¦[L. S.]¦L. V. MARYE,       ¦
                +-------+-------------------¦
                ¦       ¦Notary Public.     ¦
                +---------------------------+
                

+-------------------------------+
                ¦          ¦)¦J. C. MILLER.     ¦
                +----------+-+------------------¦
                ¦Witnesses:¦)¦                  ¦
                +----------+-+------------------¦
                ¦          ¦)¦JONAS ROSENTHAL.” ¦
                +-------------------------------+
                

The deed from Hunter to Richardson (who conveyed to defendant Rainwater) was attested in the same way.

In each case the official character of the notary was certified to by the clerk of the district court of Rapides parish, Louisiana, and the official character of the clerk was certified to by the judge of said court.

The plaintiff objected to the admission of these deeds because they were not duly authenticated for record nor duly recorded.The court overruled the objection and admitted the deeds, and plaintiff excepted.

The plaintiff showed a chain of conveyances from the original grantee, Juan A. Padilla, who was admitted to be the common source of title, to wit: from Padilla to Schloss and Castanee, from Schloss to Castanee for the interest of Schloss, from Castanee to Walker, and from Walker to Barrow.Mrs. Spurlock showed possession of the four hundred acres claimed by her since 1853.The evidence also showed a possession since same year, held by her for Skannel, of a field upon the edge of the two thousand eight hundred and fifteen acres claimed by Skannel's heirs, which field was near Mrs. Spurlock's improvements, and was separated from them by a lane.Rainwater testified that he went upon the eight hundred acres he claims in 1865, under permission from Mrs. Spurlock, who then claimed to own the land, and he erected on it a storehouse and blacksmith shop.In 1870 Mrs. Spurlock conveyed to J. M. Solleballas.Rainwater tried to purchase the land from Solleballas, but did not, because he asked too much.He continued in possession of his improvements until 1872 or 1873, when he made an agreement with Solleballas to keep possession and pay the taxes.He held thus until he purchased from Richardson in 1874.Richardson had purchased from Hunter in April, 1874, and in March, 1874, Hunter had purchased from J. F. Solleballas(not the same Solleballas under whom Rainwater had held).

The plaintiff requested the court to give the following instructions:

“The jury are instructed that the plaintiff has shown title in himself to the undivided two-thirds of the upper league of the Juan A. Padilla two-league grant, and is entitled to a verdict for the same (except as to the four hundred acres claimed by Mrs. Spurlock), unless the other defendants have shown themselves entitled to the portions claimed by them, under the statute of limitations--as to which subject of limitations the jury are instructed as follows:

1.That no time is to be counted between the 28th day of January, 1861, and the 30th of March, 1870.

2.That if they find that the only possession or occupation of the two thousand eight hundred and fifteen acres claimed by the heirs of Lloyd Skannel was a field of fifty acres or less adjoining the four hundred acres claimed by Mrs. Spurlock, and cultivated by Mrs. Spurlock, who claimed to be the agent of Skannel, and to hold for him, and that this field was within a short distance of Mrs. Spurlock's residence upon the four hundred acres claimed and occupied by her, and was so situated that it appeared like a part of Mrs. Spurlock's plantation on said four hundred acres,--then the jury are instructed that it was not such a possession of the land claimed by said Skannel's heirs as will entitle them to hold the said land by the statute of limitations.”

Glass & Callender and Lackey, for appellant Brownson, cited Smithwick v. Andrews, 24 Tex., 488;Whitehead v. Foley, 28 Tex., 1, andNorwood v. Boon, 21 Tex., 593.C. A. Harris and B. F. Elliott, on the admissibility of the deed, cited Cowan v. Williams, 49 Tex., 380;Williams v. Conger, 49 Tex., 582;Watrous v. McGrew, 16 Tex., 506;Titus v. Kimbro, 8 Tex., 210;Wallace v. Wilcox, 27 Tex., 66.

On limitations, Fisk v. Wilson, 15 Tex., 435;Charle v. Saffold, 13 Tex., 112;Gaston & Thomas v. Dashiell, 55 Tex., 520;Gillespie v. Jones, 26 Tex., 346;Whitehead v. Foley, 28 Tex., 14.

WILLIE, CHIEF JUSTICE.

Unless the possession of the defendants Rainwater and Skannel bring them within the provisions of the five years' clause of the statute of limitation, the judgment rendered in their favor below is erroneous.They cannot claim the benefit of a three years' possession under title or color of title, because one of the deeds through which they must trace such title back to the sovereignty of the soil was executed by a party who had previously parted with all his interest in the land by deed to another, and that deed was on record at the time of his making the second conveyance.See Long v. Brenneman, decided at present term.

Were the appellees, or either of them, at the date of the commencement of this suit, in a condition to claim the benefit of the statute of five years?

And first as to Skannel.The deed under which he claimed was regular and duly recorded, and bore date some twenty-four years before the commencement of this suit.For more than five years of that period, exclusive of the time elapsing between the 28th of January, 1861, and the 30th of March, 1870, he had, through his agent, cultivated, used and enjoyed fifty acres of the tract claimed by him, and paid all the taxes accruing upon said tract with regularity.The only remaining fact necessary for him to prove, in order to obtain the full benefit of the statute of limitations, was that his possession had been openly and notoriously adverse.

The proof on this subject shows that Mrs. Spurlock, also a defendant below, who claimed four hundred acres of the land sued for, had a residence and farm upon the tract claimed by her, which improvements extended up to the boundary dividing her tract from Skannel's; that a lane separated her improvements from a fifty acre field on Skannel's land cultivated by Mrs. Spurlock and held by her for him as his agent, and that she had thus held and occupied these fifty acres and paid the taxes on the entire two thousand eight hundred and fifteen acres of Skannel, upon which this field was situated, continuously, from the time of their purchase by him.It is not...