Erhard v. Hearne

• Decision Date: 01 January 1877
• Citation: 47 Tex. 469
• Parties: CAYTON ERHARD ET AL. v. ASSELINE HEARNE ET AL.
• Court: Texas Supreme Court

47 Tex. 469

CAYTON ERHARD ET AL.

v.ASSELINE HEARNE ET AL.

Supreme Court of Texas.

1877.

Justices MOORE and GOULD, having been of counsel, were disqualified. This was certified to the Governor, who appointed Charles S. West and Alexander S. Walker special justices for the trial and determination of this cause.

Special court. ROBERTS, Chief Justice; WEST and WALKER, Associate Justices.

ERROR from Robertson. Tried below before the Hon John B. Rector.

The facts are given in the opinion.

William H. Hamman, for plaintiffs in error, cited and discussed 10 Barr, 385, and cases cited; Huntington v. Brinckerhoff, 10 Wend., 278; Baker's Adm'r v. Baker's Adm'r, 13 B. Monr, 409; Montgomery v. Caldwell, 4 Bibb, 306; The State v. Hankins, 6 Ired., (N. C.,) 428; Spear v. Newell, 13 Vt., 294;Phelps v. Wood, 9 Vt., 399;King et al. v. The State Bank, 13 Ark., 269;Wilson v. Marshall, 10 La. Ann., 331;Norwood v. Devall, 7 La. Ann., 523;Prall v. Peet, 3 La., 274;Gaines v. Hennen, 24 How., 568; 3 Caine, 206; 2 Salkeld, 424; Cook et al. v. Wood, 1 McCord, 139;Shields v. Boone, 22 Tex., 197;chambers v. Shaw, 23 Tex., 168;Bissell v. Lavaca, 6 Tex., 55;Armstrong v. Nixon, 16 Tex., 614;Martel v. Hernsheim, 9 Tex., 294; Tyler on Ad. Poss. and Eject., 808; Henderson v. Kenner, 1 Rich., (S. C.,) 474; Cunningham v. Frandtzen, 26 Tex., 39;Mason v. McLaughlin, 16 Tex., 24;Whitehead v. Foley, 28 Tex., 288;Republic v. Skidmore, 2 Tex., 266;Thompson v. Buckley, 1 Tex., 35;Engelking v. Von Wamel, 26 Tex., 469; 1 Kent, 462; 9 Bacon's Ab., 240; 2 Cranch, 386, 399;Sydnor v. Palmer, 29 Wis., 253; Stokes v. Berry, 1 Salkeld, 421; Atkins v. Horde, 1 Burrow, 119; Davenport v. Tyrrell, 1 W. Black., 675; 2 Greenl. Ev., 230; Beckford v. Wade, 17 Ves. Jr., 87; Thompson v. Thompson, 33 E. C. L., (6 Ad. & E., 726;) 2 Smith's Leading Cases, 561; Winburn v. Cochran, 9 Tex., 125;13 Mich., 342;Baker v. Kelley, 11 Minn., 496;Taylor v. Miles, 5 Kan., 515;Swickard v. Bailey, 3 Kan., 512;5 Nev., 211;Perry v. Lewis, 6 Fla., 560;Townsend v. Jemison, 9 How., 413;Scott v. Rhea, 5 Tex., 260; Newby v. Blakely, 3 H. & M., 57; Brent v. Chapman, 5 Cr., 361; Clark v. Hardeman, 2 Leigh, 357; Shelby v. Guy, 11 Wheat., 371;Bird v. Lisbros, 9 Cal., 5;Mattell v. Uncle Sam G. & S. M. Co., 1 Nev., 200;Stanley v. Earl, 5 Litt., 283;Ogden v. Saunders, 12 Wheat., 348;Smoot v. Wathen, 8 Mo., 524;13 Mo., 341;16 Mo., 280;McElmoyle v. Cohen, 13 Pet., 327;Kelly v. Jackson, 6 Pet., 631;Greenleaf v. Birth, 6 Pet., 311; Den v. Sinnickson, 4 Hals., 152; Foust v. Ross, 1 Watts & Serg., 506; Hunter v. Cochran, 3 Barr, (Penn.,) 108; Thomas v. Wright, 9 Serg. & Rawle, 92;Foster v. Joyce, 3 Wash. C. C., 498;Jackson v. Schauber, 7 Cowen, 201; Jackson v. Todd, 6 John., 257, 266; Jackson v. McCall, 10 John., 380, 381; Jackson v. Harder, 4 John., 201; Jackson v. Hudson, 3 John., 386; Voorhies v. Graham, 1 A. K. Marshall, (Ky.,) 233; Chiles v. Jones, 7 Dana, 540; Perryman's Lessee v. Callison, 1 Tenn., 509, 515; Peck v. Carmichael, 9 Yerger, 325;Macklot v. Dubreuil, 9 Mo., 487;Griffith v. Dicken, 4 Dana, 562;Kessler v. M'Conachy, 1 Rawle, 447;Thompson v. Cragg, 24 Tex., 597;League v. Atchison, 6 Wall., 112;Osterman v. Baldwin, Id., 123;Williamson v. Simpson, 16 Tex., 444;Castro v. Wurzbach, 13 Tex., 131;Marsh v. Wier, 21 Tex., 109;Smith v. Power, 23 Tex., 33;Winters v. Laird, 27 Tex., 616;Cox v. Bray, 28 Tex., 262;Hopkins v. Calloway, 7 Cold., 37; Whiteside v. Singleton, Meigs, 224; Ellis v. Murray, 28 Miss., 143;Ford v. Wilson, 35 Miss., 491; Doctor and Student, 27; Finch, 132; Noy's Maxims, 116, 119; 2 Arch. Nisi Prius, 318; Cholmondely v. Clinton, 2 Jac. & W., 139; Incorporated Society v. Richards, 1 Drury & Warren, 289; 3 Blackst. Comm., 193.

H. D. Prendergast and Davis & Beall, for defendants in error, cited Angell on Lim., 206, 327, 346, 484; White v. Latimer, 12 Tex., 62;Sawyer v. Boyle, 21 Tex., 39;Becton v. Alexander, 27 Tex., 669;McDonald v. McGuire, 8 Tex., 365;Shields v. Boone, 22 Tex., 193; Richards v. Md. Ins. Co., 8 Cr., 84; Cunningham v. Frandtzen, 26 Tex., 37; Pear son v. Burditt, 26 Tex., 173; Porter's Lessee v. Cocke, Peck, 30; Hembert v. Trinity Church, 24 Wend., 586; Whitehead v. Foley, 28 Tex., 11;Smith v. Montes, 11 Tex., 26;Winburn v. Cochran, 9 Tex., 125; Stokes v. Berry, 1 Salkeld, 421; 1 Bur., 119;Christy v. Alford, 17 How., 601; 1 Greenl. Ev., 22, 24, 204, 211; Hearne v. Erhard, 33 Tex., 60;Lee v. Salinas, 15 Tex., 497;Simpson v. McLemore, 8 Tex., 448;Bradford v. Hamilton, 7 Tex., 57;Martin v. Parker, 26 Tex., 261; Paschal's Dig., 5303; Neill v. Keese, 5 Tex., 23;Miller v. Alexander, 8 Tex., 36;Hunt v. Turner, 9 Tex., 385;Herrington v. Williams, 31 Tex., 450.

WALKER, SPECIAL JUSTICE.

The plaintiffs, who are appellants, claim under a concession for eleven leagues, part of which was granted in 1830 to Antonio Manchaca, by title held sufficient to convey the same to his assignee, Allen Reynolds.

The plaintiffs are the heirs of Allen Reynolds, and so describe themselves in the proceedings, claiming his estate in the Manchaca grant.

The defendants claim part of the same land, under a location and survey of the Dred Dawson headright league and labor certificate surveyed in 1839, and the field-notes with the certificate returned to the Land Office.

March 6, 1840, all the heirs of Allen Reynolds, except Eliza C. Reynolds, then a minor, (afterwards Mrs. Willett,) conveyed their interest in this Manchaca grant to Levi Jones.

Dred Dawson seems to have resided on the land from 1834, and certainly from 1839 until his death, holding adverse possession of the land covered by his survey from the location of his headright, his heirs continuing the possession; but on March 25, 1845, a partition of the land among his heirs was confirmed, in which partition the land in controversy--a tract of nine hundred and three acres--was set apart to Britton Dawson, one of the heirs of the deceased, Dred Dawson.

November 20, 1851, Britton Dawson sold his interest so allotted to him to S. R. Hearne, by written contract and a bond for title.

Hearne entered upon the land in the latter part of 1852 or 1853, and held adverse possession until his death; and the possession was continued by his legal representatives to the time of trial.

Between the time of the partition of Dred Dawson's estate, 25th March, 1845, and the entry of Hearne in 1852 or 1853, there was no actual possession of the nine hundred and three acres in controversy, by Britton Dawson or by any one holding under him.

July 12, 1849, Levi Jones, by his deed of that date, surrendered his interest, reciting that he had done so in 1840.

November 4, 1852, Mrs. E. C. Willett and her husband conveyed her interest in the Manchaca grant to George Resley.

September 20, 1858, plaintiffs brought trespass to try title against S. R. Hearne and others. The suit in some way was settled as to all of the defendants but Hearne. Pending the suit, several of the plaintiffs died, and their representatives continued the prosecution of the suit. Hearne also died, and his estate is represented by his widow, Mrs. Aneline Hearne, and his administrator, H. D. Prendergast.

The defendants pleaded not guilty, and limitation of three years.

On the trial, the court instructed the jury “that the deed from Harriet Reynolds and others to Levi Jones, bearing date 6th March, 1840, vested in Levi Jones a good title to all the land in controversy, * * * except the interest of E. C. Reynolds, afterwards Mrs. Willett, which was not affected by the deed. The title conveyed by the deed of the 6th March, 1840, was outstanding in Levi Jones on the 17th of March, 1841; and if Dred Dawson had had his headright league and labor certificate located and surveyed, * * * and he and his heirs successively held actual, adverse, continued, and exclusive possession of said league and labor of land, including the land in controversy, for three years next after the 17th day of March, 1841, under such title, then you will find for the defendants.” * * *

“You are further instructed, that the deed from E. C. Willett and husband to George Resley, dated November 4, 1852, passed and vested her title to the land in controversy * * in said Resley; and as said title was outstanding in said Resley at the commencement of this suit, she had nothing to sue for at that date, and you will find for defendants as to the interest in the land in controversy claimed through her.”

To avoid the effect of the statute of limitations, plaintiffs set up minority and coverture, and pleaded and offered in evidence the record of two suits brought by those whose estate they claimed, the first against said Dred Dawson, December 14, 1841, which abated by his death in 1843, and the other brought in less than twelve months, September 9, 1844, against Britton Dawson, which, after the death of several of the plaintiffs had been suggested of record, was dismissed at the instance of Britton Dawson, April 24, 1854.

The replication setting up these judgments was adjudged insufficient, and the testimony, when offered, excluded as irrelevant.

The verdict of the jury was for the defendant. An examination of the record shows that it was sustained by the testimony upon the issues submitted by the court.

Many errors are assigned by the appellants, but those relied on may be grouped under the following heads: 1, the action of the court upon the matters pleaded in replication to the statute of limitations by the plaintiffs; 2, the charge of the court upon the statute of limitations; 3, the charge as to the effect of the sale, by Mrs. Willett, of her interest to Resley; and, 4, as to the admission of the evidence of the title bond and contract by Britton Dawson to S. R. Hearne, as a basis for the adverse possession as a defense under the three years' statute of limitations.

On the trial, plaintiffs exhibited their title to Allen Reynolds, and proved heirship, and that defendants were on the the land claimed; also minority and...