Grigsby v. May

• Decision Date: 11 March 1892
• Citation: 19 S.W. 343
• Parties: GRIGSBY <I>et al.</I> v. MAY <I>et al.</I>
• Court: Texas Supreme Court

19 S.W. 343

GRIGSBY et al. v. MAY et al.

Supreme Court of Texas.

March 11, 1892.

Appeal from district court, Dallas county.

Action by D. B. Grigsby and Maria Louisa Swindle against M. A. May and others. Defendant Robert F. Aspley filed a cross bill against the codefendants. There was judgment against plaintiffs, and said Aspley and they appeal. Affirmed.

Richard Morgan and Jeff Word, for appellants. W. E. Hughes and Watts & Aldredge, for appellees.

STAYTON, C. J.

This action was originally brought by D. B. Grigsby and Maria Louisa Swindle on August 18, 1874, against between three and four hundred defendants, one of whom was R. F. Aspley, to recover the community interest of their mother in the John Grigsby league and labor of land, and in a survey of 640 acres of land granted by virtue of a certificate issued to James A. Sylvester. Plaintiffs tendered to the several defendants who asserted claim to particular tracts of land in either of the grants the right to a severance; and Mrs. Mary A. May, who claimed 290 acres, described by metes and bounds, of the Sylvester survey, accepted the proposition to sever, and this appeal involves the right to no other land than those 290 acres. Other branches of the case in which severances were accepted involving parts of the Grigsby league and labor have been before this court at former terms, and will be found reported in 57 Tex. 142, 259, and 269, and in 68 Tex. 235, 4 S. W. Rep. 474, and 68 Tex. 242, 4 S. W. Rep. 478, where will be found a general history of the case. This case, however, presents some questions not presented in any of the former appeals, and they arise upon the following facts:

As early as 1835, John Grigsby married his second wife, he then, and at the time of his death, having seven children by a former wife, and by his second wife he had two children, who also survived him, and those were the plaintiff Daniel B. Grigsby and a daughter, Emiline, now dead, who left one child, the defendant Robert F. Aspley. John Grigsby died in 1841, his wife surviving, and she intermarried with Bates Edins, by whom she had one daughter, now Mrs. Maria Louisa Swindle, the other plaintiff. Mrs. Edins died in 1843, and Daniel B. Grigsby became of age in 1862, and Mrs. Swindle was born in 1843, and married in August, 1859; but, as will be observed, she was not a daughter of John Grigsby. The league and labor of land granted to John Grigsby was community of himself and his wife, as was the survey of 640 acres of land granted by virtue of the certificate issued to Sylvester. Sylvester sold that certificate to Samuel L. Davidson in 1838, and Davidson sold and delivered it to John Grigsby; but he made no written transfer of it until after the death of Grigsby, when he made a written conveyance of it to the administrator of Grigsby's estate, in which was recited the sale and delivery to Grigsby in his life time, and by virtue of that certificate the 640 acres of land was patented "to the heirs of John Grigsby, deceased, assignee of James A. Sylvester," on February 9, 1846. The estate of John Grigsby was partitioned among his nine children by the probate court for Anderson county, each receiving an equal share out of the two grants before referred to, but nothing was given to his two children by his second wife, or to her child by Edins, on account of her community interest in the two grants. To recover that interest plaintiffs brought this action, and on October 22, 1881, the defendant R. F. Aspley filed his answer and cross bill, in which he sought to recover from the other defendants that part of the two grants to which he was entitled through inheritance from his mother, Emiline, the daughter of John Grigsby and his second wife. James Grigsby, a son of John Grigsby by his first wife, in the petition before referred to received the 290 acres of land in controversy, which, in pursuance of an order of the probate court, was conveyed to him by the administrator of his father's estate by a deed of date February 24, 1850, and conveyances were made to each of the other children in like manner for the lands allotted to them. James Grigsby conveyed the land in controversy to Andrew J. May on January 25, 1853, who at once moved upon it with his family, and continuously occupied it until his death, after which his family remained continuously in possession until some time in 1886, when Mrs. Hughes acquired whatever right passed to May, his wife or heirs, after which he took possession. Hughes intervened, setting up as a defense the statutory bar of 3, 5, and 10 years among other defenses. Emiline, the mother of R. F. Aspley, married February 24, 1854, and died on November 7, 1868, and the deeds through which May held appear to have been recorded or filed for record, and the payment of taxes from the time he purchased until the date of trial was shown. The court instructed the jury, the evidence bearing on the questions of limitation being uncontroverted, in effect, to find in favor of Mrs. May and the intervener against the plaintiffs on the plea of three years' limitation, and to find against Aspley on their plea of limitation of ten years, and the finding was in accordance with the instructions.

A severance was granted to Mrs. May on June 29, 1881, and on January 31, 1889, plaintiffs moved the court to set the order granting a severance aside, which was overruled. Of this ruling plaintiffs complain, but the record shows that in their petition they tendered to any defendant who asserted claim to a particular part of the land sued for the right to a separate trial, with partition of the particular tract in case of success by plaintiffs. Under this a severance was accepted by Mrs. May, and so stood the case in court for more than seven years before plaintiffs sought to set it aside. There was no claim that plaintiffs could not present their case as fully as though the case was on trial against all the persons made defendants by the original petition, and the sole ground on which they claimed a severance should not have been allowed was that, in case of their success, difficulties might arise in reference to the adjustment of equities growing out of the asserted common ownership, if the entire controversy made by the original petition was not tried at the same time, and that there would be delay in partition if severance was permitted. If these inconveniences existed, plaintiffs must be presumed to have known that they would exist when they tendered to Mrs. May a separate trial, and, if all those inconveniences and delay in partition which plaintiffs seem, almost on the eve of trial, to have discovered, really existed, even then we are of opinion that there was no error in the ruling of the court, which, however, becomes wholly unimportant if the judgment as to title be sustained. After the ruling of the court refusing to set aside the order granting Mrs. May the right to a trial, separately from the other defendants, plaintiffs made an application for continuance on the ground that another case, between plaintiffs and another defendant, who had accepted the offer of a separate trial, and had tried his case, had not been finally decided on appeal; and on the further ground that the ruling before referred to was a surprise. The case referred to in the application for continuance involved other land than that in controversy between the parties to this appeal, and the decision of that case on appeal could have no bearing on the question of title involved in this. The court did not err in overruling the application.

Plaintiffs and the defendant Aspley all appeal, and in the main their rights depend on the same question. This action was not instituted until August 18, 1874, and the adverse possession began in 1853, and has been kept up continuously. As will be seen from the former statement. D. B. Grigsby became of age in 1862. The mother of appellant Aspley was a minor when the adverse possession began, but she married in 1854. Mrs. Swindle was also a minor when the adverse possession began, but she married in August, 1859; and from this statement it is evident that adverse possession was held against each of them for periods of more than three years before this action was brought, and while there was no suspense of the running of the statutes of limitation; from which it results that they were all barred when the action was brought, if limitation of three years has application to their claims. Appellant Aspley is also barred by the period of ten years, unless the death of his mother in 1868, vesting in his father a life estate in one third of her interest, prevents the running of the statute against him as to this estate in remainder. The question is thus directly presented whether the title through which appellees claim is such as will support a plea of limitation of three years. The statute provides that "every suit to be instituted to recover real estate, as against any person in peaceable and adverse possession thereof under title or color of title, shall be instituted within three years after the cause of action shall have accrued, and not afterwards." Rev. St. art. 3191. By the term "title" as used in the preceding article is meant "a regular chain of transfer from or under the sovereignty of the soil." Id. art. 3192. That the cause of action accrued when James Grigsby sold to May, and the latter took possession, cannot be denied, and that the possession from the first and continuously was peaceable and adverse until this action was brought must be conceded. The patent "to the heirs of John Grigsby, deceased, assignee of James Sylvester," vested title, within the meaning of the statute, in those persons who were in law the heirs of John Grigsby, as fully as would it had each of those persons been named; and the fact that the heirs of the second wife of John Grigsby, through her, had a superior right to one half of the grant, in no manner affects the character of the...