Moya v. O'Brien, 17971

• Decision Date: 18 June 1981
• Docket Number: No. 17971,17971
• Citation: 618 S.W.2d 890
• Parties: Lucio MOYA, et al., Appellants, v. John J. O'BRIEN et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 890

618 S.W.2d 890

Lucio MOYA, et al., Appellants, v. John J. O'BRIEN et al., Appellees.

No. 17971.

Court of Civil Appeals of Texas, Houston (1st Dist.).

June 18, 1981.

Rehearing Denied July 23, 1981.

Lester R. Buzbee, III, Buzbee & Kleiber, Houston, for appellants.

M. Cesar Guillen, La Feria, Allen Wood, Corpus Christi, John C. Beasley, Beeville, for appellees.

Before COLEMAN, C. J., and SMITH and PEDEN, JJ.

SMITH, Justice.

Lucio Moya, et al., appellants, sued John J. O'Brien, et al., appellees, to recover possession of one and one-quarter leagues of land, and for an accounting and damages. The trial court granted summary judgment that appellants take nothing.

Appellants allege that they are the heirs of Augustin and Juan Moya, who acquired title to the land in question by a Mexican government land grant made on December 3, 1834. They state that said ancestors were continually in possession of said property until 1874 when they were "under cover of law" murdered and that their wives and children were forced to flee to secure peace and safety. They further allege that the descendants were intimidated, many family members murdered, and that no affirmative action was taken by the agents of the State of Texas to protect such descendants. They also allege that repossession of the land and redress for the wrongful detainer of the land has been prevented by county clerks, sheriffs, and district attorneys as agents of the State of Texas, that erroneous information has been given to the appellants as to their rights and interest in the described lands, and that access to public records has heretofore been denied.

The appellees, in answer to the allegations, plead the three, five, ten and twenty-five year statutes of limitation. The appellants assert the statutes of limitations are unconstitutional as applied to the factual situation in their case.

Appellants did not answer the appellees' motion for summary judgment and did not appear in court on the day the motion was heard. The appellants filed a motion for rehearing within ten days of the granting of the summary judgment and the court permitted the filing of appellants' response to the motion. The court then overruled appellants' motion for rehearing on the summary judgment.

The appellants allege in their first point of error that there is a material fact issue as to the applicability of the statute of limitations. The basis of such assertion is that since the year of 1874 the Moya family has been prevented by local authorities from seeking redress in the courts of Texas, and that as a result, the Moyas have been deprived of the possession and title to their land without due process of law. The appellants concede that the appellees have not been participants with those that they have alleged prevented them from seeking redress in the courts.

The appellants urge that the statutes are not applicable because third persons, not parties to this cause of action, in some manner prevented them from seeking redress from the courts. There is no indication in the appellants' pleadings or response to the appellees' motion for summary judgment who the specific persons were or what specific acts these persons committed to prevent the appellants and their ancestors from seeking redress in the courts for a period of time in excess of one hundred years.

Article 5518, Tex.Rev.Civ.Stat. (1968), establishes the exceptions to the statutes of limitations and the appellants have not alleged facts which would invoke the application of that statute.

Statutes of limitations are in the nature of statutes of repose, requiring diligence in enforcing rights and putting an end to litigation. Our courts, while recognizing an exception in cases of fraud undiscovered or concealed, have declined to ingraft further exceptions upon our statutes of limitation by judicial construction through equitable or other considerations. Davis v. Howe, 213 S.W. 609, 616 (Tex.Com.App. 1919).

If the appellants have been denied due process of law, it was not the appellees who did it, but third parties whom the appellants have not named.

The appellants fail to cite cases that sustain their contention that the acts of third parties stayed the applicability of the statutes of limitations to the appellees' claim of title. However, whether a statute of limitations is applicable to a given factual situation is a question of law, not a fact issue as alleged by appellants. Summary judgment is proper where the only question is one of law. Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670 (1955). Appellants' first point of error is overruled.

The appellants allege in their second and third points of error that there is no evidence or insufficient evidence to support the summary judgment.

The appellees allege in their motion for summary judgment that they were entitled, as a matter of law, to judgment by virtue of the five, ten and twenty-five year statutes of limitation, which are Articles 5509, 5510 and 5519 respectively.

Article 5510, the ten year statute of limitation, is applicable only to 160 acres of land. In view of the fact that this suit involves approximately 5,500 acres of land, Article 5510 could not support the summary judgment for the entire acreage in controversy unless such possession is taken and held under some memorandum of title, other than a deed, which fixes the boundaries of the possessor's claim and is duly registered. There is no such memorandum in the records of this case.

Articles 5509 and 5519 require that a person claiming title to the land must be claiming under a deed or deeds. The affidavits attached to the appellees' motion for summary judgment reflect that the acreage claimed by the appellants is a portion of the property generally known as the Quincy Ranch, consisting of approximately 13,193 acres of land. The land was acquired in two relatively large transactions in 1934 and 1935. The affidavits state the date of each of the deeds as well as the volume and page number where the deeds were recorded in the county...