Cochrane v. Faris

• Citation: 18 Tex. 850
• Parties: WILLIAM COCHRANE v. HEZEKIA FARIS.
• Decision Date: 01 January 1857
• Court: Supreme Court of Texas

18 Tex. 850

WILLIAM COCHRANE

v.HEZEKIA FARIS.

Supreme Court of Texas.

1857.

A purchaser of land at a sale by the administrator of one who had occupied it, using and cultivating and claiming it as his own, without title or color of title, or deed duly recorded, may, in pleading the statute of limitations, of ten years, tack his own possession to that of the deceased.

Where a person has occupied land, using and cultivating and claiming it as his own, without title or color of title, or deed duly recorded, he may continue his possession by his agent or by tenants using and cultivating it, and claiming it as the property of the principal or lessor, whether the lease be by parol or in writing.

Appeal from Polk. Tried below before the Hon. Peter W. Gray.

The land in controversy was about two hundred acres, part of Faris' headright. The bond from Hubert to Riley was not recorded. The facts are stated in the opinion.

J. B. & G. A. Jones, for appellant.

Yoakum & Branch, for appellee.

HEMPHILL, CH. J.

This is an action of trespass to try title. The appellee, who was plaintiff below, alleged and produced in evidence a patent to himself for the land. The defendant (who is appellent in this court) pleaded not guilty and ad rse possession of the land for ten years. He proved that the land was surveyed in May or June, 1838, for Mat Hubert; but there was no direct evidence of any privity of title or interest between Mat Hubert and the plaintiff, though the same witness who proved that the land was surveyed for Mat Hubert, testified that the land was always known as the plaintiff's headright. In January, 1840, R. L. Hubert entered upon the land. Mat Hubert, in August, 1840, conveyed the land by bond to Charles Riley, stipulating that Riley should arrange with R. L. Hubert for his improvements. Riley succeeded R. L. Hubert, and entered into possession in 1840, and continued in possession by himself, his tenants or agents, until his death in 1846 or 1847. There were a number of tenants between 1841 and 1846 or 1847, the time of Riley's death; and with respect to some, it was not very certainly proven that they held under Riley. But this is the fair conclusion from the facts and circumstances in proof, and they are sufficient to warrant the jury in finding and acting on such conclusion. When Riley left the land in 1844, he appointed the defendant, Wm. Cochrane as his agent in relation to the land, to rent, cultivate and enjoy it as such; and he either rented or cultivated and possessed it himself as such agent, up to the time of Riley's death, and to the time of his purchase of the land in 1848 at a public sale by the administrator of Riley; and as such purchaser he continued to possess and cultivate the land up to the commencement of this suit, in October, 1851.

There was no interruption in the possession, though one witness thinks the land was not cultivated in 1850; but even then the fence was kept up round the orchard, which was in itself an act of possession; and if even that were not sufficient possession, yet the ten years from the first of January, 1840, were complete at the end of eighteen hundred and forty-nine.

There was no abandonment of the premises; the possession was all the time adverse to the plaintiff; and it is a fair deduction that there was a privity or connection between all the tenants from the possession of R. L. Hubert under Mat Hubert in 1840 down to that of the defendant at the commencement of suit. This is believed to be a fair summary of the evidence and of the conclusions resulting from it, and I will now examine such portions of the charge as by the appellee are considered to be erroneous.

I will premise that there were three trials in this cause. In the first there was a verdict for the defendant. In the second there was a mistrial; on the third, verdict for plaintiff, and from that lies this appeal.

The main, and in fact the only real question in the case is whether the proof made out the plea of limitation by the defendants. But the counsel for defendant insists that Riley was not a mere intruder; that he took possession in good faith, under a purchase from Hubert; that according to the proof the land was surveyed for Hubert in 1838, at a time when a parol sale of land was valid, and that after an undisturbed adverse possession of ten years, the court should presume that there was a valid contract between the plaintiff and Hubert in relation to this portion of his headright.

The argument is perhaps sound, but requires no distinct consideration, as the presumption claimed would arise on adverse possession of ten years without any evidence or color of title, viz.: from considerations of public policy and for the repose and security of titles, a valid conveyance from the true owner of the land would then be presumed. 9 Humph. 399.

From the charge of the court we may infer that there was, in argument, an attempt to support the defense on two grounds, viz.:

1st. That there was a paper title in the defendants.

2d. Adverse possession for ten years.

The bond, or agreement, from Hubert to Riley, when considered alone, unconnected with the possession, is evidently insufficient to sustain the defense; and, considered in that light the court properly charged that it was insufficient without some evidence that Hubert had title either from Faris or the government. And if the agreement, when considered alone, gave Riley no title to the land as against the plaintiff, the sale by the administrator of Riley could convey no title to the defendant; there being none in Riley to be conveyed; and the charge of the court to that effect was a correct exposition of the law. It perhaps had an effect upon the...