Huff v. Crawford

• Decision Date: 18 March 1895
• Citation: 30 S.W. 546
• Parties: HUFF et al. v. CRAWFORD et al.
• Court: Texas Supreme Court

30 S.W. 546

HUFF et al. v. CRAWFORD et al.

Supreme Court of Texas.

March 18, 1895.

Certified questions from court of civil appeals of Second supreme judicial district.

Action of trespass to try title by J. H. Crawford and others against R. E. Huff and others.

Templeton & Patton and R. E. Huff, for appellants. A. H. Carrigan, for appellees.

GAINES, C. J.

The court of civil appeals for the Second supreme judicial district have certified to us for our determination the following question: "G. F. and S. Y. Collins are among the defendants in this action of trespass to try title. They plead the statute of limitations for five years. They claim the land on account of which the plea is entered under a deed duly recorded for more than five years prior to the institution of the suit, paying taxes as prescribed by the statute. The land has been in actual possession under this deed and claim for the requisite time. The possession has, however, been held for them, in their name, and for their use and enjoyment, by an agent. During the time necessary to complete the bar the defendants named have been absent from the state and residents of another state. Question. Do the provisions of article 3216, Rev. St., preclude these defendants, under the foregoing facts, from interposing the defense stated? It is contended that the opinion in the case of Hunton v. Nichols, 55 Tex. 217, is not to be regarded as an interpretation of this article, or, if so, that the announcement therein made of this question is obiter dictum." The case referred to contains the only decision of this court which bears directly upon the question. The report is so defective that it is impossible to determine from it, with any degree of satisfaction, the precise point which was decided. By referring, however, to the original transcript and briefs, among the records of this court, we find that the question was presented, though, as we have concluded, it was not involved in the decision of the case. The appellants in that case had sued in trespass to try title to recover of appellees certain real estate in the city of Austin. Brush, one of the defendants below, pleaded, among other defenses, the statute of limitations, and introduced evidence tending to show his possession of the property for the requisite period. The plaintiffs replied that, during the time of his occupancy, he was absent from the state. In their brief as appellants they made the point that, on account of Brush's absence, the statute did not run in his favor. The point was not noticed in the briefs of appellees. The evidence was to the effect that Brush held possession by tenants, but that during a great part of the time he had a residence in Brooklyn, in the state of New York; that he resided there during five or six months of each year; and that during the other months he resided in Austin. If the statute of limitations did not run in Brush's favor during any portion of the time that he was in possession of the property, the burden was upon the plaintiffs to show it. When the case was decided, it was the settled law of this state that the provision of the statute of limitations in regard to absent defendants did not apply to persons who were nonresidents of the state at the time the cause of action accrued. Lynch v. Ortlieb (this day decided) 30 S. W. 545. The plaintiffs have failed to show that Brush was a resident of the state, or that he was within the state at the time he took possession by his tenants of the property in suit; hence, in our opinion, the question whether the provision of the statute in question applied to actions for the recovery of real property was not involved in that case. If Brush was a nonresident, and...