Hearn v. Camp

• Decision Date: 01 January 1857
• Citation: 18 Tex. 545
• Parties: ELIJAH HEARN v. IRA M. CAMP.
• Court: Texas Supreme Court

18 Tex. 545

ELIJAH HEARN

v.IRA M. CAMP.

Supreme Court of Texas.

1857.

The second section of the act of February 2d, 1844, for the benefit of settlers in good faith, and to amend an act to provide the mode of trying titles to land, approved February 5th, 1840, which provides that the owner of land shall not recover the value of the use and occupation thereof, from a possessor in good faith, unless he shall, before the commencement of suit, have tendered pay for the improvements, or offered in good faith to refer the question of pay for improvements to arbitrators, is unconstitutional. 14 Tex. 235;19 Tex. 194;24 Tex. 366.

See this case as to the jurisdiction of the county courts over estates of deceased persons, with reference to the county in which administration shall be opened.

Appeal from Grimes. Tried below before the Hon. Peter W. Gray.

Action of trespass to try title to one-fourth of a league of land, by appellees, against appellant, commenced September 8th, 1854. Defendant pleaded the title which he afterwards proved, to the north-east quarter of the fourth league, and suggested improvements in good faith.

The plaintiff proved grant from the state of Coahuila and Texas to Daniel Tyler, in 1835; deed from Tyler to David Wade, dated 30th October, 1846, recorded in Grimes county, where the land lay, November 28th, 1846 (a question was made as to the formality of the proof of this deed, for record; and the records of Grimes county were burned in 1848); deed from Wade to Camp, the plaintiff in this suit, dated February 1st, 1854; recorded February 6th, 1854; the return of a survey ordered by the court showing that the defendant resided on the north-east corner of the land claimed in the petition.

The defendant gave in evidence a deed for the north-east one-fourth of said quarter of a league, from John F. Crawford, as administrator of Daniel Tyler, dated January 27th, 1852; recorded in Grimes county, June 28th, 1852; the price paid being $155; the proceedings of the county court of Harris county, showing Crawford's appointment as administrator of Tyler at March term, 1851; that he was duly qualified as such; and the petition for sale, order of sale, and return and confirmation of the sale to Hearn, the defendant.

Petition for grant of administration was as follows:

To the Hon. H. H. Allen, chief justice of Harris county: Your petitioner, John F. Crawford, respectfully represents that one Daniel Tyler died some time since in Texas, intestate; that said decedent was a transient person and had no fixed domicile; that he left some property in the state which has been sold for taxes; that your petitioner is a creditor to a considerable amount. He prays therefore that he may be appointed administrator of said estate of Daniel Tyler, deceased, according to law. He further alleges that there are no kindred of said deceased known to him.

The inventory stated that the land in Grimes county was all the property which had come to the knowledge of the administrator.

The defendant then proved that he took possession about the time of his purchase, and proved the value of the improvements made by him; and the plaintiff proved the value of the rent.

The court instructed the jury as to the effect of the sale by Tyler in his life-time, and of the record of the deed; that the county court of Harris, from the face of the papers, had no jurisdiction of the estate of Tyler, and that the administrator's deed conferred no title; and as to the claim for improvements, as stated in the opinion.

The jury found for the plaintiff, and that he pay defendant $332 for his improvements. Judgment accordingly. Motion by defendant for new trial overruled, etc.

J. W. Henderson, for appellant.

HEMPHILL, CH. J.

On the question of improvements the court charged the jury, that if they found for the plaintiff as to the title, and that defendant took possession over a year before suit, and honestly believed that his own title was valid, and had such grounds therefore as a prudent man, of ordinary diligence, on inquiry would reasonably have, they should allow him the fair value of his improvements, after deducting the value of the rent and occupation of the lands from the time the plaintiff acquired his title from Wade, and defendant was in possession.

The appellant objects to this charge on the grounds,

1st. That it instructed the jury to allow the plaintiff rent for the use and occupation of the land by defendant, from the date of the plaintiff's purchase from Wade;--and, the assignment should have added, from the time the defendant went into possession; and these were the words and effect of the charge.

2d. That the jury were instructed that the plaintiff was entitled to recover for the use and occupation at all.

In support of the assignments the appellant refers to the first and second sections of the act of February 2d, 1844, for the benefit of settlers in good faith, and to amend an act to provide a mode for trying titles to land. Hart. Dig. art. 3231, 3232.

The first section in effect declares, that if the jury find the defendant to be a possessor in good faith, and the verdict go in favor of the plaintiff for the land, the plaintiff shall not recover for the use and occupation of the premises prior to the filing of the suit.

By the second section it is enacted, that the plaintiff shall not recover from the possessor in good faith, pay for the use and occupation, where the improvements have been made by the defendant or those under whom he claims, unless the plaintiff, prior to the institution of the suit, offered in good faith to refer the question of pay for improvements to arbitrators, and to give bond, etc., to comply with the award; and also, that in case an...