Cunningham v. Frandtzen

• Decision Date: 01 January 1861
• Citation: 26 Tex. 34
• Parties: A. CUNNINGHAM v. E. FRANDTZEN AND OTHERS.
• Court: Texas Supreme Court

26 Tex. 34

A. CUNNINGHAM

v.E. FRANDTZEN AND OTHERS.

Supreme Court of Texas.

1861.

It is well settled that a party in possession of land with improvements and enclosure holds to the extent of his enclosure by what is termed actual possession; and if at the same time he holds under deed or title, he holds to the extent of the boundaries of his deed or title, outside of his actual possession, by what is termed constructive possession.

If such a party sell a part of his tract, including the improvements which constituted his actual possession, by a deed to a purchaser with defined limits less than the whole tract, and the purchaser take possession under the deed, his possession, either actual or constructive, extends no further than the limits defined in his deed, and he, the purchaser, is not in possession of the whole tract of his vendor. [ Post, 286.]

The constructive possession being dependent upon the actual, the vendor in such case, having parted with that which gave him actual possession of part of the tract, loses the constructive possession of the remainder, and retains no possession of such remainder, unless he took actual possession of it at the time of the conveyance.

A party pleading the statute of limitations assumes the burden of proof, and if it is not shown that he comes within the provisions of the statute, he cannot defend under it.

A defense of the statute of limitations must be specially pleaded; and therefore a defendant who relies upon the title of his vendor by his three years' possession under color of title, disconnected from the defendant's own possession, must plead it in that form so as to give notice of it.

Whether three years' possession of lands, under color of title, is available as a title after the lapse of that period, notwithstanding such possession is afterwards lost, or is not continuously kept up, has not been authoritatively decided in this state. [5 Tex. 260;9 Tex. 123;post, 714.]

In fixing the different periods of limitation in our statute, the legislature regulated the force and effect to be given to adverse possession of land, by the degree of merits in the title under which it was held and claimed, requiring the longer possession in proportion to the weakness of the title.

The effect of the statutes of limitation of this state, with regard to the investiture of title in the possessor of real estate, claiming under them, considered; but the question not being involved in the issue, a definite opinion withheld.

APPEAL from Gillespie. Tried below before the Hon. Thomas J. Devine.

This was an action of trespass to try title brought by Andrew Cun ningham against Erasmus Frandtzen and the other defendants, on the 21st of October, 1853, for the recovery of two-thirds of a league and one labor of land, lying in Gillespie county, and known as survey No. 19, in sec. No. 1.

The plaintiff claimed the land as devisee of Hugh M. Cunningham, deceased, whose title was also derived by devise under the last will and testament of John R. Cunningham, deceased, to whom a patent for the land in controversy issued from the state on the 27th day of July, 1852.

The defendants in their answer and amended answers set up title in themselves by conveyances from John C. Hays and Henry M. Lewis, alleging that Hays was the owner by transfer of a valid certificate, issued by the board of land commissioners of Bexar county, on the 30th day of March, 1838, to Jose Antonio Leal, for one league and labor of land, which certificate was located on the land in controversy long before the date of plaintiff's patent, and the survey and field notes duly recorded in Bexar land district on June 10, 1847. They further aver, in substance, that, at the time of such location, the land in controversy was public domain, subject to location; that a previous location thereon of a duplicate certificate had been raised and cancelled by John C. Hays, district surveyor of the district; that consequently the right to the land in controversy had been vested in the vendors of defendants long prior to the date of the patent under which plaintiff claims. And they further pleaded the statute of limitations of three years, alleging adverse possession under title, and color of title, and suggesting valuable improvements in good faith.

The cause came to trial at the October term, 1855, when there was a verdict in favor of the plaintiffs for the land, and of the defendants for the assessed value of the improvements. On motion of the defendants, a new trial was granted; and at the fall term, 1856, there was verdict generally for defendants; judgment accordingly, new trial refused to plaintiff, and this appeal in consequence.

It was proved by the defendants that the first occupancy was by a party of Mormons, under the lead of Lyman Wright, who took possession of part of the tract on the 7th of December, 1846, and who, within four months thereafter, recognized Hays and Lewis as the owners, and themselves as their tenants; that they built cabins, fenced in and cultivated from one hundred and fifty to two hundred acres, remained in possession four or five years, when they sold their improvements to Joel L. Ankrim, as agent of Hays and Lewis; that Ankrim cultivated the improved portion of the tract by his tenants, and retained possession thereof until the sale of the tract to the defendants in the year 1852. The sales were made by Ankrim as agent, and by Lewis, who was interested in the lands, to the various defendants, in several parcels to each, and at various dates in 1852. The actual possession of the improved portion of the tract was shown to have been continuous and successive from the first occupancy by the Mormons, by Ankrim, as agent, and by defendants as vendees of Hays and Lewis, down to the institution of the suit. The defendant Frandtzen's purchase included, so far as the evidence showed, all of the improvements constituting the actual possession of his vendors; by which, in the view of the law taken by the opinion, his case is distinguished from those of his co-defendants.

As the opinion is based altogether on the plea of the statute of limitations, no notice is here taken of the evidence not relevant thereto.

S. G. Newton, Rogan & Cowan, for appellant. Our statute of limitations provides but one prescription by which title to land can be acquired to the extent of a man's metes and bounds, unless he traces his title to the sovereignty of the soil; and that is by five years' peaceable possession, use, and occupation under deeds duly recorded, and paying taxes thereon. The facts show that the title failed in connecting itself with the sovereignty of the soil; and of this the defendants and their vendors had, or should have had, full notice, had ordinary diligence been used.

The possession of a genuine certificate, with a transfer to him, is evidence that the holder is entitled to the quantity of land mentioned, out of the public domain, but is not evidence of title to any particular land, nor can it be until location made. Then there could be no prescription under the certificate until location made. Then what constitutes a location? It consists in depositing the certificate with the surveyor, with a designation from a starting point, with course and distance, of some portion of the public domain, with a request that the land be surveyed and the field notes returned. Then in what consists the public domain? It is all the land in the state not otherwise appropriated. And when is it appropriated? When located upon by virtue of a genuine certificate; and being so located, it is appropriated, and no other title to it can be acquired. Consequently there can be no “regular chain of transfer from or under the sovereignty of the soil.” Hart. Dig. art. 2391. Then no prescription of three years could be acquired, for the chain is broken.

3d. That even had these defendants connected their title with the sovereignty of the soil, as contended by them, still, the plaintiff having the paramount title, cannot bring to their aid prescription of three years, unless they show that they or their vendors have been in actual possession with title for the time, or that the right of possession and title were coupled in the same individual, which assumes that a tenant in possession, under this statute, has the right of possession adverse to that of the landlord (Angell on Limitations, 396, 427, 428; Adams on Eject. 11, 34; 3 Greenl. 315), which brings us to the proposition that the possession, with the right of possession, and the title to the land, must be in the same person.

Jacob Waelder, for appellee, insisted that the possession of Hays by his tenants and agent, in connection with that of the defendants, claiming under a...