Evitts v. Roth
| Decision Date | 11 February 1884 |
| Docket Number | Case No. 1737. |
| Citation | 61 Tex. 81 |
| Court | Texas Supreme Court |
| Parties | SAMUEL G. EVITTS v. JOSEPH ROTH ET AL. |
OPINION TEXT STARTS HERE
APPEAL from Wise. Tried below before the Hon. C. C. Potter.
December 8, 1877, appellant brought trespass to try title against appellees, except Herndon and Hood, to recover the land described in the petition, claiming title by virtue of a patent issued to him May 10, 1856.
Appellees claimed the land through a patent issued to Jacob J. Gholson, July 23, 1856, and mesne conveyance to them, relied upon the three years' statute of limitations, and averred that, at the time the Gholson certificate was located, there was no evidence in the surveyor's office of any appropriation of the land by Evitts; that he had no notice in fact of any such appropriation, and that the Gholson certificate was located in good faith, and without any notice of the Evitts location. They also claimed to be innocent purchasers, because Evitts had failed to have his patent recorded in Wise county prior to their respective purchases. The appellees set forth their respective claims by metes and bounds; and also suggested improvements in good faith. Herndon and Hood made themselves defendants as warrantors of the other appellees. Whereupon appellant replied, asking judgment against Herndon for whatever claim he had to the land. The land was on a conflict between the Evitts and Gholson surveys, and amounted to near six hundred acres.
The jury returned the following verdict, to wit:
+-----------------------+
¦“SAMUEL G. EVITTS ¦)¦
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¦641 v. ¦)¦
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¦JOSEPH ROTH et al. ¦)¦
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We, the jury, find for the defendants, Joseph Roth and the Middleton heirs, their land in controversy, by statute of limitation. We further find for the defendant, Mary E. Stewart, her improvements to the value of $750, exclusive of rent, and value her land, without improvements, at $3 per acre-- $444. We find for the plaintiff the remainder of the land in controversy.
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¦(Signed)¦C. C. HAWKINS, ¦
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¦ ¦Foreman of the Jury.” ¦
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Judgment in accordance with the verdict; after which Mrs. Stewart entered a remittitur of $250.
The several errors relied upon by the different parties are sufficiently noticed in the opinion.
A. M. Carter, for appellant, cited: Bryan v. Crump, 55 Tex., 1; Scanlan & Lacy v. Brunneman (MSS.), decided at Austin, 1883; Peyton v. Barton, 53 Tex., 302;Hunnicutt v. Peyton, 102 U. S., 368;Bunton v. Cardwell, 53 Tex., 408.
Walton & Hill, also for appellant.
W. S. Herendon, J. J. Jarvis and A. J. Hood, for appellees, cited: R. S., art. 3191; Horton v. Crawford, 10 Tex., 382;Marsh v. Weir, 21 Tex., 109, 110;Smith v. Power, 23 Tex., 34; Pasch. Dig., art. 462, note 1031; Cresty v. Alford, 17 How., 603;Simpson v. Chapman, 45 Tex., 564;Ayres v. Duprey, 27 Tex., 594;Blankenship v. Douglas, 26 Tex., 225;49 Tex., 481, 484;24 Tex., 417;Gilbeau v. Mays, 15 Tex., 416;Lewis v. Durst, 10 Tex., 415;29 Tex., 222; Fletcher v. Peck, 3 Curtis, 337; Story's Eq. Jur., vol. 1, arts. 409, 410; Hart. Dig., arts. 2754, 2756, under act of 1836; also Hart. Dig., arts. 2784 and 2789, under act of July, 1846; McClelland v. Moore, 48 Tex., 361;Peterson v. Lowry, 48 Tex., 411;11 Tex., 93;15 Tex., 415; Hart. Dig., arts. 2770-2776; Id., arts. 1843, 4279-4281.
Upon the issue of limitations the court instructed the jury to find for certain of the appellees if they had been in possession of the land for three years when this suit was instituted; and refused to charge, at the request of appellant, that Evitts' entry upon his survey disseized the appellees, except to the land they had inclosed.
Assuming that the Evitts patent is in law, as in fact, the older, and vests in him the superior title, which will be considered hereafter, then the charge as given did not announce correctly the legal principle involved.
“It is well settled that a party in possession, with improvements and inclosure, holds to the extent of his inclosure 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.” Cunningham v. Frandtzen, 26 Tex., 38.
The appellees claimed under the Gholson patent by deeds describing their respective tracts by metes and bounds. To the extent of their respective inclosures they were each in the actual possession, but as to the land included in the boundaries defined in their respective deeds, and which was not in their respective inclosures, they had only a constructive possession.
This doctrine is well stated in Wood on Limitation of Actions, sec. 259, as follows: “But where a person goes into possession under color of title, duly recorded, in which the boundaries of the lot are defined, this operates as constructive notice to all the world of his claim, and also of its extent, so that not only does a sufficient occupancy of part of the lot carry with it, by construction, the possession of the entire premises conveyed and described in the deed, but also dispenses with the rule as to pedis possessio, and only requires from him such an occupancy as the nature and character of the premises admits of.”
In section 261 of the same work it is said:
While there may be a mixed possession of land, there can be no such a thing as a concurrence of seizin. For, as said in Whitehead v. Foley, 28 Tex., 289, the legal title draws to the owner the seizin and possession, and he retains them until disseized by an actual possession taken and held by another.
In Hunnicutt v. Peyton, 102 U. S., 333, it was held that where a party enters upon unoccupied land, under color of title, and holds the same adversely, his holding will extend to the land included within the boundaries defined by his deed, and to that extent the real owner is disseized. But if the real owner is on any part of the land, his constructive seizin extends to all the land not in fact occupied by the other.
The principle that to the rightful owner belongs the constructive possession, and all others as against him are confined to their actual possession, is well established by many adjudicated cases. Among them are the following: Codman v. Winslow, 10 Mass., 146;Stevenson v. Hollister, 18 Vt., 294;Whittington v. Wright, 9 Ga., 23;Hodges v. Eddy, 38 Vt., 345.
As was held in Robinson v. Lake, 14 Iowa, 424, to disseize the true owner, who is in possession or occupancy of any portion of the tract, of any part of his land, the occupation must be actual, visible, notorious, distinct and hostile.
In Peyton v. Barton, 53 Tex., 303, it is said: “The great current of authority, however, is that when there is only a partial conflict or interference of surveys, the statute will not run in favor of an adverse occupant under a junior title, if his possession does not extend to that part of the land in dispute which is in...
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