Lamberida v. Barnum

• Decision Date: 29 November 1905
• Citation: 90 S.W. 698
• Parties: LAMBERIDA et al. v. BARNUM et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

90 S.W. 698

LAMBERIDA et al. v. BARNUM et al.^*

Court of Civil Appeals of Texas.

November 29, 1905.

Appeal from District Court, Atascosa County; E. A. Stevens, Judge.

Trespass to try title by Frances C. Barnum, as next friend of certain minors, against Trinidad Lamberida and others. From a judgment in favor of plaintiffs and in favor of defendant Lamberida against the heirs of G. W. M. Duck for breach of covenant of warranty, such heirs appeal. Reversed.

Rehearing denied December 20, 1905.

This suit was brought on May 2, 1904, in the ordinary form of trespass to try title, by Frances Courtney Barnum, as next friend for the minors, Frances Chamberlin Barnum, George Vaughan Barnum, and John Baylor Barnum, against Trinidad Lamberida and Donaciano Rodriguez to recover a survey of 160 acres, known as survey No. 1,135, patented to Sophia E. Belger, assignee, by virtue of bounty warrant No. 1,036 issued December 15, 1837, to Green B. Simmons, as well as for damages. The defendant Lamberida answered by pleading not guilty the three, five, and ten year statutes of limitation, and improvements in good faith. He then alleged that he had purchased the land from John S. Thomas and his wife, Sarah C., R. L. Chappell and his wife, M. E. Chappell, Ed Morris and his wife, M. E. Morris, J. E. Lyons and his wife, V. E. Lyons, Calisto Rocha and his wife, Georgia, and F. W. Hamilton and his wife, Tommie, who executed to him their general warranty deed therefor, asked they be made parties, and prayed that, in event of plaintiffs' recovery, he have judgment against them on their warranty. Said parties, as warrantors of Lamberida's title, came into the suit and assumed for said defendant its defense, pleading substantially the same matters that were pleaded by him. The defendant Donaciano Rodriguez answered by disclaiming any right, title, or interest in the premises. The case was tried before a jury, and when the evidence was introduced the court peremptorily instructed a verdict in favor of the plaintiffs for the land, and in favor of Lamberida against his warrantors, the heirs of G. W. M. Duck, for $300. From a judgment on a verdict in response to the charge the parties against whom it was rendered have appealed.

J. W. Preston, James A. Waltom, and James Raley, for appellants. I. L. Martin, for appellees.

NEILL, J. (after stating the facts).

It will be conceded, for the purpose of disposing of this appeal, that the evidence conclusively shows that plaintiffs are the children and only heirs of the patentee, Sophia E. Belger, and that she died intestate without ever having parted with her title to the land in controversy. This entitled them to a verdict, unless the defendant proved by competent evidence the facts essential to establish an outstanding legal title, one or more of his pleas of limitation, or his plea of improvements in good faith. However, if there was any substantial evidence tending to prove all the facts necessary to establish any one or more of these defenses, the case should have gone to the jury upon a charge submitting the issues of fact made by such evidence. For a question is one of law for the court only when the facts are such that all reasonable men must draw the same conclusions from them, and unless the conclusion follows, as a matter of law, that no defense presented by defendants' pleadings is made out upon any view that can be properly taken of the facts which the evidence tends to establish, the question is one of fact, which the court has no business to decide, but must submit it to the jury. Are there any facts in evidence from which men of ordinary reason and fairness might fairly say that the defendant has established one er more of the defenses pleaded by him? If so, then the judgment cannot rest upon the foundation of an instructed verdict. Nor can the judgment be sustained, if evidence was offered by defendant and erroneously excluded, which, taken in connection with the evidence admitted, might induce men of ordinary intelligence to conclude that defendant had made out one or more of his defenses. Before proceeding to consider the evidence we will state some general principles pertinent, respectively, to the several defenses, which, when applied to the evidence on the particular grounds of defense, should control in determining the question whether the case should have been submitted to the jury upon any of the defenses.

Under a plea of not guilty, in trespass to try title, the defendant may prove an outstanding title in a third party, superior to that of plaintiffs, to bar a recovery. Adams v. House, 61 Tex. 639. Whenever any cause of action for the recovery of real estate is barred by any of the statutes of limitation, the person having such peaceable and adverse possession shall be held to have full title. Article 3347, Rev. St. 1895. If the period of limitation has fully run while there is adverse possession of land this gives title to the adverse possessor, which he may assert against the former owner although he ceased, after title was so acquired, to continue in possession. Branch v. Baker, 70 Tex. 194, 7 S. W. 808. This extinguishes the former owner's title, or, rather it vests all the title which emanated from the estate, constituting, as is observed by the Supreme Court, a chain of title from the sovereignty of the soil, enabling a defendant to defend his possession, although it be without title, by showing that some other person has a better title than the plaintiff, upon the principle that the plaintiff in an action to recover lands must succeed upon the strength of his own title, and must show a good claim against the world. Burton v. Carroll, 96 Tex. 320, 72 S. W. 581; Grayson v. Peyton (Tex. Civ. App.) 67 S. W. 1074; East Texas Land Co. v. Shelby (Tex. Civ. App.) 41 S. W. 542.

To acquire title to land under any of the statutes of limitation, the requisite "peaceable and adverse possession need not be continued in the same person, but when held by different persons successively there must be a privity of estate between them." Article 3350, Rev. St. 1895. Whoever claims lands under a sale for delinquent taxes must take upon himself the burden of proving that the taxes were duly assessed, which were a charge upon the land, and that the successive steps were taken which led to a lawful sale therefor, at which he or some one under whom he claims became the purchaser. Yenda v. Wheeler, 9 Tex. 417; Robson v. Osborn, 13 Tex. 307; Devine v. McCullock, 15 Tex. 491; Kelly v. Medlin, 26 Tex. 48; McDaniel v. Needham, 61 Tex. 274; Terrell v. Martin, 64 Tex. 125; Houston v. Washington (Tex. Civ. App.) 41 S. W. 135. This common-law rule of evidence must be applied to tax conveyances of all description, when the statute has failed to prescribe any other. Cooley on Taxation (3d Ed.) 1004. And it is, we apprehend, only when such proof is made that a tax deed will support the three-years' statute of limitations. Telfener v. Dillard, 70 Tex. 140, 7 S. W. 847; Gillaspie v. Murray (Tex. Civ. App.) 66 S. W. 252. But a tax deed is a "deed" within the meaning of article 3193, Rev. St. 1879 (article 3342, Rev. St. 1895), and will support the plea of limitation of five years without proof of the prerequisite necessary to authorize the sale of the land for taxes. Wofford v. McKinna, 23 Tex. 36, 76 Am. Dec. 53; Schleicher v. Gatlin, 85 Tex. 270, 20 S. W. 120; Gillaspie v. Murray (Tex. Civ. App.) 66 S. W. 252. And one claiming under a tax title, not void on its face, is entitled to adduce evidence as to improvements under his plea of good faith, and to have that issue determined. House v. Stone, 64 Tex. 677; French v. Grenet, 57 Tex. 273; Schleicher v. Gatlin, 85 Tex. 275, 20 S. W. 120.

As to disabilities, such as coverture, infancy and the like, the rule is that when the statute begins to run it is not arrested by any subsequent disability, unless expressly provided by statute; and a person who claims the benefit of the general exceptions to the statute, can only avail himself of such disabilities as existed when the right of action first accrued. In other words, a disability which will stop the running of the statute, applies only to a disability or disabilities existing at the time the right of action accrued, and no after accruing disability will stop its operation. To illustrate, if the right of action accrues to a married woman during coverture, and she dies while the right of action exists leaving minor heirs, such heirs cannot set up the disability of infancy as an excuse for not having brought their...