Evans v. Foster

• Decision Date: 09 December 1890
• Citation: 15 S.W. 170
• Parties: EVANS v. FOSTER <I>et al.</I>
• Court: Texas Supreme Court

15 S.W. 170

EVANS v. FOSTER et al.

Supreme Court of Texas.

December 9, 1890.

Commissioners' decision. Appeal from district court, Tarrant county; R. E. BECKHAM, Judge.

M. D. Priest, for appellant. Hogsett & Greene, for appellees.

ACKER, P. J.

Mary C. Foster, joined by her husband, Isaac Foster, brought this suit on the 7th day of February, 1885, against Sam Evans, in the usual form of trespass to try title to a part of the Felix G. Mulliken 640 acres survey of land described in the petition. The defendant answered by the plea of "Not guilty," and the three, five, and ten years statutes of limitations. By supplemental petition, the plaintiffs pleaded their intermarriage with each other in the year 1853, and that Mary C. Foster had ever since been, and was at the time, a married woman. A trial by jury resulted in verdict and judgment for plaintiffs. The defendant appealed.

The first assignment of error presented is: "The court erred in that part of its charge to the jury wherein the jury are told that the title papers exhibited in evidence were sufficient to vest title in the plaintiff to the land embraced in the Mulliken survey, because plaintiff claimed under a deed purporting to be made by Rachel Mulliken, wife and administrator of the estate of Felix G. Mulliken, deceased, when no order of sale or confirmation had been read in evidence, and because said deed could not, in any event, convey more than the undivided interest of said Rachel Mulliken in the land; and, further, because plaintiff claimed under a deed conveying, by metes and bounds, a certain portion of said survey, which said deed was void as to the owners of the remaining interest, and did not vest title in said lands in plaintiff." This assignment cannot be sustained, for the reason that the defendant filed an abstract of his title under the statute, in which he stated that he claimed under M. J. Brinson as common source. M. J. Brinson having acquired title through the transfer of the certificate by Rachel Milliken to Leonard, the defendant could not question the validity of that or any other link in the chain of title between the sovereignty of the soil and the admitted common source. Pearson v. Flanagan, 52 Tex. 279; Glover v. Thomas, 75 Tex. 507, 12 S. W. Rep. 684. We think that, in any view of the question, this assignment of error cannot be sustained.

The next assignment of error presented is: "The court erred in that part of its charge to the jury which restricts the right of defendant to recover under the statute of limitations to such parts of said land as was actually occupied by him, because actual occupancy was not proven or relied on by defendant, and was not necessary, actual possession being sufficient, and all that was attempted to be proven; and said charge was calculated to mislead the jury." The charge complained of is as follows: "If you believe from the evidence that, prior to the marriage of plaintiff, the defendant was in the actual possession of the land in controversy, or any part of the same, claiming the same as his own, and that such possession continued for ten years, then you should find for the defendant so much of the land as he may have so held; but such possession, in order to entitle him to recover by reason thereof, must have been actual, continued, visible, and hostile to the true owner, and the recovery by reason of such possession would be restricted to the land so held and occupied by him, if any." We do not think this charge was calculated to mislead the jury. The word "possession" is used all the way through the charge, and the connection in which the word "occupied" is used shows clearly that the judge used it as synonymous with the word "possessed." In common acceptation the words are synonymous, and are understood to mean the same thing. Webster defines "occupancy" as "possession;" "occupy," "to possess;" "possession," "actual seisin or occupancy;" "possess," "to occupy in person." Bouvier defines "occupancy" as "the taking possession of those things corporeal," etc. The same author defines "possession" as "the detention or enjoyment of a thing which a man holds or exercises;" and says that, "in order to complete a possession, two things are required: (1) That there be an occupancy; and (2) that the taking be with an intent to possess." The very liberally cultured professional mind may be able to discover a technical...