Gafford v. Foster
| Decision Date | 07 May 1904 |
| Parties | GAFFORD v. FOSTER et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hood County; W. J. Oxford, Judge.
Action of trespass to try title by C. L. Foster and others against J. P. Gafford. From a judgment for plaintiffs, defendant appeals. Reversed.
Jno. J. Hiner and W. D. Wilson, for appellant. Lon Morris, for appellees.
This is a suit in trespass to try title, brought by appellees against appellant in the district court of Hood county to recover an undivided interest in 320 acres of land. On April 6, 1878, R. T. Foster, Sr., whose wife was then living, purchased at tax sale the 320 acres of land in controversy. Immediately thereafter he took possession, after which, and on January 23, 1880, Mrs. Foster died, leaving surviving her, besides her husband, the appellees, and a son, through whom appellant claims. The tax deed to R. T. Foster, Sr., was filed for record August 3, 1880. R. T. Foster, Sr., by warranty deed dated March 4, 1895, filed for record August 22, 1895, conveyed the land in controversy by metes and bounds to a son, G. W. Foster, who in turn conveyed the same to appellant November 24, 1902. R. T. Foster, Sr., together with his wife during her lifetime, and together with his children after her death, was in possession of the land until the conveyance to G. W. Foster above referred to. Since the conveyance to him G. W. Foster has at all times held possession, and paid the taxes for the years 1895, 1896, 1897, and 1898. The taxes for 1899 were paid, but by whom the record does not disclose. Upon this state of facts the trial court, without the intervention of a jury, rendered judgment for the appellees, upon the theory, doubtless, that the land was a part of the community estate of R. T. Foster, Sr., and his deceased wife. This, we think, was error. From the dates above given it will be seen that the tax deed, which all the parties to this suit claim to be the basis of their title by limitation, was not recorded until after the death of Mrs. Foster. Until its registration the five-year statute of limitations did not begin to run. Sayles' Ann. Civ. St. 1897, art. 3342; Porter v. Chronister, 58 Tex. 56; Adkins v. Galbraith, 10 Tex. Civ. App. 175, 30 S. W. 291. For this reason, at least, we think the children of Mrs. Foster acquired no interest whatever by inheritance from her to the land in controversy. By the registration of the deed in 1880, and the subsequent occupancy of the land for the period prescribed by law, R. T. Foster, Sr., must be held to have full title in his own right to the land in controversy. Sayles' Ann. Civ. St. 1897, art. 3347. If it be contended that, since the possession of Foster and wife antedated the registration of the tax deed, the 10-year statute of limitations would apply, it is sufficient to say that his possession was taken under, and must be attributed to, the tax deed. And, if it were not, it has been expressly held under the...
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