Burnham v. Hardy Oil Co.

• Citation: 195 S.W. 1139
• Decision Date: 22 June 1917
• Docket Number: (No. 2453.)
• Parties: BURNHAM et al. v. HARDY OIL CO. et al.
• Court: Supreme Court of Texas

195 S.W. 1139

BURNHAM et al. v. HARDY OIL CO. et al.

(No. 2453.)

Supreme Court of Texas.

June 22, 1917.

Error to Court of Civil Appeals, Fourth Supreme Judicial District.

Action by James H. Burnham and others against the Hardy Oil Company and others. Judgment for defendants, and plaintiffs appealed to the Court of Civil Appeals, where judgment was affirmed in part, and reversed and remanded in part (147 S. W. 330), and plaintiffs bring error. Affirmed.

See, also, 152 S. W. 182.

Baldwin & Christian, of Houston, Linn, Conger & Austin, of Bay City, and Devlin & Devlin, of Sacramento, Cal., for plaintiffs in error. Gill & Jones, R. A. John, Baker, Botts, Parker & Garwood, and Harris & Harris, all of Houston, Gaines & Corbett, of Bay City, G. G. Kelley, of Wharton, W. W. King, of San Antonio, and W. B. Garrett, of Austin, for defendants in error.

PHILLIPS, C. J.

The suit was by James H. Burnham and others, representing the interest of Emily Parker, a daughter of Henry Parker and Henrietta Parker, his wife, for approximately an undivided one-fourth interest in a league of land originally granted to Henry Parker, constituting community property of himself and wife, Henrietta, conveyed by Henry Parker, after the death of his wife, to his son, Wm. E. Parker, to whom, by the will of Henry Parker, which was duly probated it was also devised.

The defendants held the title thus conveyed and devised to Wm. E. Parker. Against the suit of plaintiffs, they pleaded limitation under both the three and five years statutes. Their plea of limitation under the five years statute was sustained by the trial court as against all the plaintiffs, and under that defense a general verdict in their favor was directed. The judgment was affirmed by the Court of Civil Appeals as to all of the plaintiffs except two. As to those two, Mrs. Emma Irene Legge and Herbert Farjeon, because of their minority at the time of the death of their mother, a daughter of Emily Parker, it was held that the evidence did not conclusively establish that they were barred under the five years statute as to all of the land; and as to them, accordingly,— except as to 1008 acres awarded by the trial court to the defendant, the Northern Irrigation Company, as to which the judgment was affirmed against all of the plaintiffs,—the judgment was reversed and the cause remanded for further trial. 147 S. W. 330.

All of the plaintiffs applied for a writ of error at a time before the amendment of 1913 (Acts 33d. Leg. c. 55), relating to the jurisdiction of this court, became effective. The writ was granted, generally. It conclusively appears that the Northern Irrigation Company has a good limitation title under the five years statute to its 1008 acres against all the plaintiffs. The decision of the Court of Civil Appeals did not practically settle the case as between Mrs. Legge and Herbert Farjeon and the other defendants. It was not so claimed in the petition for writ of error. Nor did the petition bring the case as between them within any of the other exceptions defined in article 941, Revised Statutes of 1895, giving this court jurisdiction of a reversed and remanded cause. The case has been considered, therefore, only in its relation to those plaintiffs against whom the trial court judgment was affirmed.

A careful review of the record and, in particular, the testimony which it is urged in the petition for writ of error presented an issue as to title in the defendants under the five years statute of limitation, convinces us that the ruling of the Court of Civil Appeals upon that question was correct. The affirmance of its judgment accordingly results. This would ordinarily render unnecessary any discussion of another defense in the case. But since it is asserted that some confusion exists in the decisions of the court upon the question of the application of the three years statute of limitation to a case of this character, we deem it best, in view of the importance of the question and its general interest, to give it some attention, particularly since a branch of the case is to be retried, where it is doubtless intended to again urge this defense. We will therefore discuss this question before turning to the features of the case which in our opinion entitle to affirmance the holding of the Court of Civil Appeals as to the defendants' title by limitation of five years.

The grant of the league was in the name of Henry Parker. It showed upon its face that the land was the community property of himself and his wife, Henrietta, then living. It was owned by the community at the time of Henrietta Parker's death, in 1835. There was no partition of the community property between Henry Parker and the children of himself and his wife, Henrietta, of whom, as stated, Emily Parker, through whom the plaintiffs claim, and who married James G. Burnham, was one. The conveyance of the league by Henry Parker, after his wife's death, to Wm. E. Parker was not for the purpose of paying debts of community, but for a stated consideration of $500.00.

Holding by regular conveyances the title to the league acquired by Wm. E. Parker through Henry Parker's deed and will, the defendants contend that they have "title" by a regular chain of transfer from the sovereignty of the soil, and are therefore entitled to invoke the three years statute of limitation. Under a similar contention the contrary was, at an early time, expressly held in Veramendi v. Hutchins, 48 Tex. 531, and in other cases. This ruling has never been departed from or varied by any express decision. It was reaffirmed as late as Cole v. Grigsby, 89 Tex. 223, 35 S. W. 792.

But it is urged by the defendants that at the time of such decisions as Veramendi v. Hutchins it had not been firmly established in the decisions of the court that a grant of community lands in the name of the husband vested in him the legal title, and under such a grant that the wife's title was only an equitable one. On the contrary, it is said, the holding of the court at that time was that the husband and wife each took a legal title to community lands so granted. And this is made the foundation for the argument that when in Patty v. Middleton, 82 Tex. 586, 17 S. W. 909, it was declared that the husband's title under such a grant or deed is the legal title, and the right of the wife is an equitable interest, changing, it is claimed, the former rule of the court upon that question, there was also changed, in effect, the holding of Veramendi v. Hutchins and like cases as to the character of title acquired under a deed from the husband to community lands so originally granted or conveyed, enabling one, now, who holds such title deraigned from the husband, to prescribe under the three years limitation statute. It is further urged, as we understand the contention, that such is the effect of the later case of Grigsby v. May, 84 Tex. 240, 19 S. W. 343; and that Cole v. Grigsby, 89 Tex. 223, 35 S. W. 792, is in conflict with that decision.

Without an accurate understanding of what is meant by "title," as that term is used in the three years limitation statute, any discussion of this question is futile. It is altogether determined by the legal interpretation of the term as there used. The meaning of the term, as thus used, is well established in the decisions of this court. Their correctness is not open to controversy. To clear this question of all apparent confusion, it is only necessary to apply that interpretation to the character of title conveyed by the deed of Henry Parker in this case.

The word "title," in its ordinary acceptance may be correctly employed, and often is employed, in entirely distinct senses. It is sometimes used to denote a right in property. As thus used, it is equivalent to "estate." It is sometimes used to signify the mere legal evidence of a right, as distinguished from the real right or beneficial interest. It is in this latter sense that the term, "legal title," has its origin. Patty v. Middleton.

As the term is used in this statute, it necessarily means something less than the paramount right to the land. The holder of such a right stands in no need of limitation for the establishment of the superiority of his claim. A statute of limitation of itself implies the existence of a better right than that possessed by the limitation claimant. Likewise, the term as used in the statute, necessarily means something more than the right conferred by naked deed, adverse possession under which, though it conveys no title, will, with other requirements met, perfect a limitation title under the five years statute. Otherwise, there could be no justification for permitting the title to ripen under a shorter period of possession than is required by the five years statute.

The necessity, as the Legislature viewed it, of quieting by limitation the rights to land of persons who stood in neither of these situations, but who occupied, it might be said, a ground between them, was the cause of the enactment of this statute. In an enactment of such design, this would lead, naturally, to the employment of the term "title," if employed at all, in some strictly technical sense. Hence, its definition in the statute as, "a regular chain of transfer from or under the sovereignty of the soil."

This means, in a word, that the claimant, by a regular chain of transfer of itself effectual for that purpose, must possess the purported title originally conferred by the sovereign's grant, the source of the claimant's right. It is not necessary that he hold whatever better right may lie back of the grant. Nor is it essential that any conveyance in the chain subsequent to the grant bestow a higher right than does the grant. The title must simply flow unbrokenly from its source. It is not required at any stage to rise above its source, but it must maintain throughout its succession all of the elements of its source. To have this character and effect, the chain of...