McDow v. Rabb

• Decision Date: 30 January 1882
• Docket Number: Case No. 768.
• Citation: 56 Tex. 154
• Parties: ALEX. MCDOW ET AL. v. J. W. RABB.
• Court: Texas Supreme Court

56 Tex. 154

ALEX. MCDOW ET AL.

v.J. W. RABB.

Case No. 768.

Supreme Court of Texas.

Jan. 30, 1882.

APPEAL from Fayette. Tried below before the Hon. L. W. Moore.

Suit in trespass to try title by J. W. Rabb against Alex. McDow and E. L. Alford. The land in controversy was part of a survey of three leagues originally granted to William Rabb, the grandfather of plaintiff. This survey was in 1848 partitioned among the heirs of William Rabb. The land in controversy, about fifty acres, was a part of lot No. 42, and lies on the east side of Rabb's creek. John Rabb, a son of William and father of plaintiff, inherited a large part of this survey, including the land in controversy. John Rabb died in 1861, and plaintiff claimed partly by inheritance from him, and partly by purchase from his heirs, the brothers and sisters of plaintiff.

The deeds by which this purchase is evidenced were made in 1874; and the makers “release, relinquish, quit-claim and convey to J. W. Rabb all the right, title, claim and interest which they or either of them have or may have acquired by purchase, gift, devise or descent, in and to all those certain tracts or leagues of land situated in Fayette county known as the Wm. Rabb three-league tract.”

It was admitted that the title was perfect in John Rabb. The defendants (Alford being merely a tenant of McDow) relied upon circumstantial evidence showing a conveyance from John Rabb to A. R. Gates, and a purchase by McDow at a sale of the land as the property of Gates' estate; upon the statute of limitations; and they further insisted that plaintiff was estopped by certain declarations of his father, John Rabb, made to McDow about the title to this land in 1858, by which declarations McDow was induced to believe that the title was in Gates, and so bought it when it was sold as the property of Gates' estate.

In 1852 Gates owned a large prairie plantation of six or seven hundred acres adjoining the land in dispute. Gates and John Rabb were near neighbors and friends, living within half a mile of each other and of this land, which was a piece of timbered bottom subject for the most part to overflow. The record shows that in 1852 Gates entered upon the land now in dispute and publicly and openly cut and appropriated a large quantity of the timber; that he used this timber for making and repairing the fences on his prairie land, erecting a gin-house and cotton-press, building houses for his negroes, corn-cribs, cotton-pens, etc., and that from that time on he regularly resorted to this land for such wood and timber as he needed about his plantation; that this appropriation was open, visible, notorious and habitual, and accompanied by a public claim of title; that it was kept up through a series of years, until about the year 1860, when, the timber being well nigh exhausted, he inclosed the land or a larger part of it, put it in cultivation, and cultivated it until his death in 1863. After his death defendant McDow, as his executor, inventoried this land as a part of his estate, and continued to cultivate it until the flood of 1869 swept away the fence around this and other parts of the Gates plantation. After this, the executor being unable to refence the entire estate, contracted the inclosure so as to include only about two hundred acres, and this land was left uncultivated and uninclosed until 1874. In that year it was sold under a judgment against the estate of Gates, and bought by defendant McDow. It was admitted that these proceeding were valid. McDow rented it the same year to defendant Alford, who inclosed it and has cultivated it ever since. It was further shown that from the time when Gates entered upon this land in 1852, until his death in 1863, he had it assessed as his own, and regularly paid the taxes due upon it; and that after his death his executor regularly paid the taxes until it was sold in 1874; that while these things were going on John Rabb was living in the county--for several years within half a mile of the land, and not more than six miles away, until 1859, when he moved to Travis county, where he died in 1861.

Defendants offered to prove by a number of witnesses who had been neighbors of Gates and Rabb, repeated declarations of Gates made in the year 1852 and afterwards while using the land as above described, that he had bought the land from Rabb. Plaintiff objected to the testimony, which was excluded, and defendants excepted. Defendant McDow being introduced as a witness, stated that the land in dispute was a part of lot 42 in the subdivision of the three-league survey of Wm. Rabb, and lies on the east side of Rabb's creek; that in 1858 he purchased from John Rabb, as he and Rabb both understood, all the land which Rabb then owned in the three-league survey; that the purchase included that part of lot 42 lying west of Rabb's creek; that Rabb, who seemed perfectly familiar with the locality, and had the plat before him, then told him that he could not sell him the portion of lot 42 lying east of the creek (the land in dispute), because he had already sold it to Gates, and it belonged to him, and that his reliance on this declaration of Rabb induced him to buy the land when it was afterwards sold by the sheriff.

In rebuttal, plaintiff, being introduced as a witness, stated that John Rabb was in delicate health for several years before his death and gave but little attention to his affairs; that witness attended to the business which required riding about; that he never heard of Gates' claim to the land in dispute, or of his cutting the timber on it, until 1865; that witness went into the army in the fall of 1861, and did not return until 1865, when he saw for the first time the fence on the land. His brothers were also in the army. That after the sale made by his father to McDow he had himself purchased from his father four hundred acres of the three-league survey, and his title was undisputed. The assignments of error relate to the charge of the court, the refusal of charges asked and the rejection of testimony. Verdict and judgment for plaintiff.

Timmons & Brown, for appellants.

H. Teichmueller, for appellee.

DELANY, J. COM. APP.

In his charge the judge, after stating that the legal title was in the plaintiff, proceeds as follows: “Defendant shows no written muniment of title in A. R. Gates, but contends that such a deed should be presumed from long length of possession of the land, and the declarations of John Rabb. Possession, to justify such a presumption, must be actual and notorious for a period of more than ten years; the mere cutting of timber would not constitute such possession.” This is assigned as error, and we think correctly. The charge is perhaps not objectionable as an abstract proposition, except that it rather vaguely uses the expression “more than ten years.” But it is not applicable to the case made by the proof. There was certainly much more proved than the mere cutting of timber. There was an open, visible, habitual appropriation of the timber for a series of years--indeed as long as there was timber to appropriate. This was done under an avowed claim of title,...