Moody v. Holcomb

• Citation: 26 Tex. 714
• Parties: AYRES MOODY v. B. L. HOLCOMB AND EUGENIA HOLCOMB.
• Decision Date: 01 January 1863
• Court: Texas Supreme Court

26 Tex. 714

AYRES MOODY

v.B. L. HOLCOMB AND EUGENIA HOLCOMB.

Supreme Court of Texas.

1863.

Naked possession for the length of time, and with the incidents enumerated in the statute, invests a party with a title to his land as fully and completely as it could be done by deed or patent. [11 Tex. 24;26 Tex. 34;28 Tex. 371.]

A party who has had adverse possession of lands for ten years may maintain an action founded on a title thus acquired to be quieted in the possession and to remove clouds from his title, although the adverse title has not been used to disturb him.

The more appropriate remedy would perhaps be by action to establish and perpetuate the evidence of title.

ERROR from Upshur. Tried below before the Hon. C. A. Frazer.

The plaintiff, Ayres Moody, brought suit against B. L. and Eugenia Holcomb, to quiet possession and to remove clouds from his title to six hundred and forty acres of land situated in Upshur county, alleging that “about nineteen years before the commencement of this suit, he settled upon a tract of land containing six hundred and forty acres of land,”--then sets out carefully the field notes thereof. “That after he had settled upon said land as aforesaid, one William King filed his headright certificate for one league of land upon land situated about eight miles S. S. E. from the town of Gilmer, and caused the same to be surveyed and afterwards obtained a patent therefor. That said league of land so patented to said King as aforesaid conflicts with the lands claimed by petitioner as aforesaid, and that it includes about three hundred and seventy-three and seven-tenths acres of petitioner's said tract of six hundred and forty acres described as aforesaid. That the portion of his land claimed by the said B. L. and Eugenia Holcomb is a tract of about two hundred and thirty-five and four-tenths acres, the same being a portion of the said King league.” Field notes of the King league, of the 640 acres of plaintiff and of the conflict between the two surveys, and also of that part claimed or included in defendant's deed under the King grant and certificate of the county surveyor showing a plat of the surveys, etc., were appended to and made part of the petition.

“And petitioner further alleges that he has had and held the quiet, peaceable and uninterrupted possession of said land for the space of nineteen years next before the commencement of this suit, and that he has, for the time aforesaid, been using, cultivating and enjoying the same, and claiming the same, and paying tax thereon; and that his claim to said land has been adverse to the said King and all persons claiming under him, since the date of the location of said King's certificate.” That upon that part of his land claimed by defendants “he has made permanent and valuable improvements, and that his farm and houses and all his principal improvements are situated thereupon; and that the said defendants have set up claim to said two hundred and thirty-five and four-tenths acres adverse to the claim of petitioner, which casts a cloud over his title; and that by reason of the claim adversely set up by said defendants, petitioner has been hindered and delayed from selling his said land; that he desired to make sale of the same, and that he might have effected a sale but for the claim set up by defendants; and that there are persons now desirous of purchasing petitioner's said land, but that they object on account of the claim of defendants.” Prayer that the title of said defendant's, B. L. and Eugenia Holcomb, to said two hundred and thirty-five and four-tenths acres of land, as above described, be divested out of them and decreed to petitioner, and for costs.

The defendants filed a general demurrer, which was sustained by the court. The plaintiff excepted, and declined to amend. Judgment for the defendants.

The plaintiff sued out his writ of error, assigning for error the judgment of the court below sustaining the demurrer to his petition.

C. C. Galloway, for plaintiff in error, cited Greenl. Ev. §§ 15, 16, 32; O. & W. Dig. art. 505; 13 Tex. 143; Sayles' Prac. § 165; 21 Tex. 708;7 Id. 288.

P. Murrah, for defendants in error. The statement of the facts or the allegations of the petition rather seem to me a sufficient argument to sustain the court below, and I find it difficult to treat the case seriously.

The prayer of the petition asks of a court that the grossest injustice shall be done to Holcomb and wife; that they shall be divested, for the benefit of plaintiff, of their title to two hundred and thirty-five acres of land, acquired to them by regular purchase and deed, and that the court, in addition to divesting them of the title to the land and vesting it in plaintiff, shall compel them to pay the costs of the suit.

This prayer, which seems to me to outrage equity, concludes a petition which from beginning to end shows that if plaintiff in error has any right at all to the land, he acquired it by being a trespasser, and by the forbearance of King and those who claim under him. Plaintiff in error, without reserve or concealment, states the injustice done by him to King, and then asks a court of equity to reward him for trespassing upon the rights of others, by decreeing to him a perfect chain of title acquired by law, and paid for by those upon whose rights he trespassed; and as if to make his cause as bad as possible, he gives as a reason for this prayer, that he could sell his land to better advantage if he had the title of Holcomb and wife, for which they paid their money, induced to do so by a patent spread upon the records of the clerk's office of Upshur. The petition does not even have the poor merit of stating that the deed to Holcomb and wife has been or may hereafter be used to the annoyance of plaintiff, and that he has been or may be disturbed in his possession by it; nor has it the enlarged liberality of asking that King be made a party, so as to secure from him in the same decree, a title to the balance of the six hundred and forty acres in conflict, and thereby divide the costs between King and defendants in error. Defendants would have been gratified for a favor of this sort, and with the expression of satisfaction with a quit claim from defendants. Nor was plaintiff kind enough to prepare a deed and present to Holcomb and wife for their signature as a cheap way of getting title, before suing them and driving them to the expense of litigation exclusively for his benefit. What...