Moody's Heirs v. Moeller

• Decision Date: 08 February 1889
• Citation: 10 S.W. 727
• Court: Texas Supreme Court
• Parties: MOODY'S HEIRS <I>v.</I> MOELLER <I>et al.</I>

10 S.W. 727

MOODY'S HEIRSv.

MOELLER et al.

Supreme Court of Texas.

February 8, 1889.

Error from district court, Victoria county.

Trespass to try title, by the heirs of J. A. Moody against Albrecht Valentine Moeller, A. B. Peticolas, Munson and wife, Pickering & Sterne, and others. Judgment for defendants, and plaintiffs bring error.

Fly & Davidson and Joe L. Hill, for plaintiffs in error. C. F. Carsner, for Moeller and Peticolas. W. L. Davidson, for Munson and Pickering & Sterne.

GAINES, J.

This is an action of trespass to try title, brought in the court below by plaintiffs in error as the heirs of J. A. Moody against defendants in error, to recover a parcel of land in the city of Victoria, known as "Block 230." The defendants each claimed a separate parcel of the block, and disclaimed as to the remainder. They pleaded not guilty, and the statute of limitations. The cause was submitted to the judge without a jury, and he gave judgment for the defendants.

Both plaintiffs and defendants claim title under the city of Victoria, — the plaintiffs under a sheriff's deed to their ancestor made in 1849; the defendants under a sheriff's deed made to Valentine Moeller, one of defendants, in 1868. It was admitted on the trial that J. A. Moody, plaintiff's ancestor, died on March 6, 1874; and it is admitted in the statement of facts "that defendants proved occupancy and exclusive possession of all the block sued for herein since February, 1873, continuous, adverse, and peaceable, to this date." We presume it is meant that the possession was peaceable until the commencement of this suit, the date of which the record does not disclose. We infer, however, that the petition was filed more than 10 years after the adverse occupancy began. There is a bill of exceptions which shows that the court sustained the defense of the statute of limitations of 10 years; and, in the absence of the date at which the petition was filed, this inference should be indulged in support of the judgment. The trial was not had until May, 1886. The plaintiff's ancestor having died after the adverse possession commenced, the statute of limitations continued to run, notwithstanding any disability of coverture or minority that may have existed on part of any one or more of his heirs. In order, therefore, to obviate the apparent bar of the statute, the plaintiffs offered in evidence a judgment in favor of the United States against J. A. Moody and another, in the district court of the United States of the Eastern district of Texas, rendered in 1867; an execution upon the judgment, with the return of the marshal showing a levy upon the land in controversy; an order of sale in pursuance of such levy, together with a return and marshal's deed showing a sale of the land to the United States, and a conveyance in accordance therewith. The sale was made on the 3d day of November, 1868, "in front of the United States court-room in Galveston." The marshal's deed was not executed until the 10th of January, 1884. The delay, it seems, was caused by an offer on part of Moody to settle or compromise the judgment. In connection with the foregoing evidence, the plaintiffs offered a deed from the United States, dated December 29, 1884, conveying the land to them in consideration of the payment by them of the claim of the government against their ancestor. All this evidence was excluded by the court, upon...