Keys v. Mason

• Decision Date: 01 January 1875
• Citation: 44 Tex. 140
• Parties: HOWARD KEYS v. ELIJAH MASON.
• Court: Texas Supreme Court

44 Tex. 140

HOWARD KEYS

v.ELIJAH MASON.

Supreme Court of Texas.

1875.

APPEAL from Smith. Tried below before the Hon. M. H. Bonner.

Mason brought an action of trespass to try title against Keys. The defendant pleaded limitation of three, five, and ten years. By amendment the plaintiff set out the facts of his case, alleging fraud, and asking that his contract with the vendor of Keys be canceled.

The facts show that on the 14th day of October, 1857, Elijah Mason, the appellee, exchanged 320 acres of land, known as the Crockett's Bluff tract or William Hickman survey, with one Hugh Neel, for 320 acres of land known as the A. J. Crockett pre-emption survey. Mason gave Neel a bond for title to the Crockett's Bluff tract or Hickman survey, and Neel gave Mason a bond for title to the Andrew J. Crockett pre-emption survey, each giving to the other possession of the lands; both of the title bonds were duly recorded. On the 21st day of April, 1858, the said Hugh Neel caused and procured David Collins and his wife, Mary A. Collins, who held the legal title to the Andrew J. Crockett pre-emption survey No. 885, to make a deed to said land to one Nancy Neel, who was the wife of the said Hugh Neel. On the 12th day of August, 1863, the said Hugh Neel and his wife conveyed the Crockett's Bluff tract or Hickman survey No. 838 to Martha S. Lindsey by a quit-claim deed. On the 10th day of April, 1871, Nancy Neel conveyed to appellant the Andrew J. Crockett pre-emption survey No. 885, claiming to sell the same as her separate property, and also in the capacity of surviving wife of the said Hugh Neel, deceased. On the 10th day of July, 1863, Hugh Neel transferred the bond of Elijah Mason for titles to the Crockett's Bluff or Hickman survey No. 838 to H. Lindsey, and on the 10th day of July, 1869, H. Lindsey, by his attorney in fact, transferred the same bond to Howard Keys, the appellant. On the ____ day of March, 1869, H. Lindsey, by his attorney in fact, J. B. Douglas, conveyed the same land to Howard Keys; that is, the Crockett's Bluff tract or Hickman survey No. 838.

There was verdict and judgment for plaintiff. Motion for new trial was overruled, and Keys appealed.

No brief for appellant came to the reporters.

Stephen Reeves and Jones & Henry, for appellee, cited Linthecum v. March, 37 Tex., 350;Stephens v. Hix, 38 Tex., 656;Bradshaw v. Mayfield, 24 Tex., 481;Andrews v. Smithwick, 20 Tex., 111;Austin v. Talk, 20 Tex., 164;McGreal v. Wilson, 9 Tex., 426;Hatch v. Garza, 22 Tex., 176;Willis v. Bullit, 22 Tex., 330;Garrett v. Chambliss, 24 Tex., 618;Browning v. Estes, 11 Tex., 237;Walker v. Emerson, 20 Tex., 711;Secrest v. Jones, 30 Tex., 603; Tyler on Ejectment and Adverse Enjoyment, 156 and 876.

MOORE, ASSOCIATE JUSTICE.

The first ground assigned for a reversal of the judgment is that defendant not having pleaded that he held the land sued for under a common source with plaintiff, the latter should have been required to deraign a title from and under the sovereignty of the soil.

It is a rule, as old as the action of trespass to try title, that when the parties claim under a common source of title it is not necessary to trace the title further back than the source from which they both claim. In this, the act of September 2, 1871, supplementary to the act to provide the mode of trying title to lands, is only declaratory of what has been the law from time immemorial. The only change which this statute makes, if indeed it makes any, is in prescribing how the fact that the defendant claims from a common source with the plaintiff may be proved without giving evidence of title in the defendant. This statute has no reference to the rule of pleading in the action of trespass to try title. In that respect it does not alter the law which requires of the plaintiff merely a formal petition alleging a trespass, with an indorsement that the action is brought as well to try title as for damages, to which the defendant need put in no other plea than that of “not guilty.”

But if it was necessary that it should be averred that the parties claimed under a common source to warrant the admission of proof of the fact, it certainly was only necessary for the plaintiff who desires to prove it to make the allegation. This he did. Evidently the fact that the defendant does not admit or allege in his answer that he claims the land under a common source of title with the plaintiff would not deprive the latter of the benefit of this statute. It is true the possession of the defendant entitles him to a judgment against the plaintiff, unless the latter shows a prima facie title. He does this when he deraigns title from the sovereignty of the soil down to himself; or if he shows title out of the Government and subsequent possession for sufficient length of time to toll the right of entry, or merely a...