Holland v. Nance

• Decision Date: 16 December 1908
• Citation: 114 S.W. 346
• Parties: HOLLAND et al. v. NANCE et al. SAME v. FERRIS et al.
• Court: Texas Supreme Court

Page 346

114 S.W. 346

HOLLAND et al. v. NANCE et al.

SAME v. FERRIS et al.

Supreme Court of Texas.

December 16, 1908.

Error from Court of Civil Appeals of Fourth Supreme Judicial District.

Actions by Ella C. Bragg Ferris and others and by Arthur Holland and others against M. L. Nance and others. The cases were consolidated. Judgment in the Court of Civil Appeals (107 S. W. 102), reversing a judgment of the district court for certain of the plaintiffs and against defendant, and Mrs. Ferris and others and Arthur Holland and others bring separate writs of error. Judgments of the district court and Court of Civil Appeals reversed, and cause remanded.

J. M. Brownlee, C. E. Gustavus, Dean, Humphrey & Powell, S. R. Blake, and Jackson & Berry, for plaintiffs in error. Randolph & Randolph and W. E. Pope, for defendants in error.

BROWN, J.

This is a controversy over a tract of land patented to Enoch Latham, in which three conflicting titles are asserted. One, which proceeded out of the patentee's estate through an administrator's sale, is asserted by Arthur Holland and Mary Louise Morris. Another emanates from the heirs of the patentee through a conveyance made by them after the administrator's sale, and is asserted by Ella C. Bragg Ferris, Fannie Greye Bragg Geissler, and Mary Pearl Meyer. The third is the claim of the parties in possession of title by limitation under the five-year statute, and under deeds from persons claiming through Latham, the patentee, who were not shown to have had any chain of title connecting them with him. The district court held that the title of Mrs. Ferris and others, claiming through the heirs of Latham, was superior to that of the claimants under the administrator's sale, and, also, that the defendants' plea of limitation was not sustained. Judgment was therefore rendered in favor of Ferris, Geissler, and Meyer against all of the other parties. The Court of Civil Appeals held that in both the holdings stated the district court erred; that the title of Arthur Holland and Mary Louise Morris was superior to that of Mrs. Ferris and others, but that defendant Nance had maintained his plea of limitation as to all the 357 acres in controversy, except 36 acres claimed by Tinsley, who failed in all of his defenses. Judgment was accordingly rendered in favor of Holland and Morris for the 36 acres claimed by Tinsley, and in favor of Nance for the remaining 321 acres. The opinions of the Court of Civil Appeals are reported in 107 S. W. 102, Holland v. Ferris, and contain a fuller statement of the case and of the various questions involved. Two applications for writs of error were presented to this court, one in favor of Mrs. Ferris and her coplaintiffs, and the other in favor of Arthur Holland and Mary Louise Morris, and, as it was thought there was error in the judgment of the Court of Civil Appeals upon the question of limitation, both were granted.

Nance's defense of limitation is based upon the following facts: He owned the Bowman survey, which adjoined the Latham on the west. In improving his land on the Bowman he inclosed a field, intending to place his eastern fence upon the line between it and the Latham. By mistake the fence which was not entirely straight was made to encroach upon the Latham tract, so that at one point it was 18 varas, at another 1½ varas, and at others distances varying from 5 to 7 varas across the line, thus inclosing about an acre and a half of the Latham survey, which thereafter was cultivated as a part of the Nance field. Only in this way was any possession of the land in controversy ever taken as long as five years before the institution of the suit, and prior to 1897 Nance had asserted no claim to any part of it. The evidence adduced by him was sufficient to warrant a finding that in that year he learned that his fence was over the line, that he then obtained a deed for the entire Latham survey from persons before alluded to as claiming to own, but having no title to it, which he at once placed upon record, and that since that time he has claimed the entire tract under that deed, in connection with such possession as he had, as just stated. The conclusions of the trial judge, for reasons stated therein, are not very specific upon the questions of fact upon which the defense of limitation depends. Among his conclusions of fact is the following statement: "Nance, intending to put his fence line on the line between the Bowman and the Latham surveys, he owning the Bowman or a part of it, unintentionally got over at one point about 18 varas, at another point about a vara and a half, and at other points varying distances from 5 to 7 varas, so that he included about an acre and a half of the Latham land, and he made the trade with the attorney of the Shepard heirs and got a deed, and perhaps gave his note, but has never paid anything on the land, and did not extend his fence over the Latham line until February, 1900. It was shown very clearly that the defendant Nance purchased with a view of paying the taxes and recording his deed and holding the land under the five-year statute, and that evidently, while he bought in good faith, in the sense that he desired to get the land, he knew that his title was doubtful, and that the Braggs were claiming it, as their deed had been of record for many years." In his conclusions of law occurs the following: "Taking them in adverse order, I may state that neither Nance nor Tinsley can claim title by limitation. It was clearly shown that Nance had no intention of inclosing any of the Latham survey, but that the acre and a half he did inclose was purely accidental, and that even after he made the trade for the land in controversy, he never extended his fence to cover it; and, as the facts proven as to his claim and possession will not support the five-year statute of limitation, neither he nor Tinsley can recover, and judgment will be against them." The Court of Civil Appeals held that the facts thus found by the trial judge, coupled with the undisputed proof of cultivation of the inclosed acre and a half and payment of taxes by Nance, established the defense of five-year limitation. As we understand the opinion of the court on motion for rehearing, it simply holds that the conclusions of law of the district judge against the claim of adverse possession were incorrect, and does not hold that any finding of fact was unsupported. The question for our decision, therefore, is whether or not title by limitation results, as a matter of law, from the facts stated by the trial judge, and the further undisputed facts of cultivation and payment of taxes.

The character of possession which is necessary to sustain the statute of limitation for either of the three periods is expressed in Rev. St. 1895, arts. 3340, 3342, and 3343, to be "peaceable and adverse possession." To constitute adverse possession it must be taken and held with the intention to claim the land so occupied. Schleicher v. Gatlin, 85 Tex. 270, 20 S. W. 120, 1 Am. & Eng. Ency. Law, p. 791, and authorities in the note; Caufield v. Clark, 17 Or. 473, 21 Pac. 443, 11 Am. St. Rep. 845; Winn v. Abeles, 35 Kan. 85, 10 Pac. 443, 57 Am. Rep. 138. Where a party,...