Parker v. Newberry

• Court: Texas Supreme Court
• Writing for the Court: Hobby
• Citation: Parker v. Newberry, 18 S.W. 815, 83 Tex. 428 (Tex. 1892)
• Decision Date: 16 February 1892
• Parties: PARKER <I>et al.</I> v. NEWBERRY.

18 S.W. 815

PARKER et al. v. NEWBERRY.

Supreme Court of Texas.

February 16, 1892.

Commissioners' decision. Section A. Appeal from district court, Bee county.

Trespass to try title by Mary L. Parker, M. E. Hale, and W. T. Smith against D. L. Newberry. Judgment was rendered against all of the plaintiffs except Mrs. Hale, who recovered five-twelfths of the land, and defendant the balance. Both parties appeal. Affirmed.

Lane & Mayfield and Price & Green, for appellants. Beasley & Flournoy, for appellee.

HOBBY, P. J.

The appellants, who were plaintiffs below, Mrs. Mary Parker, Mrs. M. E. Hale, and W. T. Smith, brought this action of trespass to try title to the land described against the appellee, D. L. Newberry, on September 3, 1891. The plaintiffs claimed title as the heirs of John P. Smith, the patentee. The land, consisting of 320 acres, was granted by the state, by virtue of a bounty land certificate issued to said Smith by the adjutant general, J. S. Gillette, through his assignee, Benjamin Graves, on October 2, 1854. The commissioner of claims indorsed on the certificate the following: "Registered and approved for the benefit of John P. Smith, original assignor, April 3, 1857." The patent issued to said Smith on January 12, 1888. The defendant, D. L. Newberry, pleaded not guilty, and the statute of limitation of five years under a deed duly registered, etc. He also pleaded an outstanding title in James B. Beck, and title in himself thereunder "by prescription." The cause was tried by the court, and judgment was rendered against all of the plaintiffs, except Mrs. M. E. Hale, against whom the statute of limitation did not run by reason of her marriage. She recovered five-twelfths of the land, and the appellee the balance under his plea of limitation. Both parties appeal.

The first question raised has reference to the sufficiency of the conveyance under which Newberry claims to support his plea of limitation, and the sufficiency also of his possession. There are other questions raised which will be considered in the order presented. Recurring to the first mentioned, we think that the rule that a purchaser, who takes only such interest as is conveyed by a quitclaim deed technically, cannot, under that character of conveyance, be protected as a purchaser in good faith, etc., has no application where such deed is made the basis of the five-years plea of limitation. Notice, good faith, and the payment of a valuable consideration are important elements, and may become vital, in a controversy where title is asserted under a quitclaim deed between parties deraigning their rights from a common vendor. They cannot be relied on to support limitation, and form none of the elements of that plea. The character of the instrument would be unimportant if it be valid, and not void, as a conveyance, and belongs to that class of written instruments. The essential requisites of a deed necessary as the foundation of the plea are that it shall by its own terms, or with such aids as the law authorizes, assume or purport to operate as a conveyance. Wofford v. McKinna, 23 Tex. 46. It is not necessary that it should emanate from one proving title, or that it shall convey the title. Id. The instrument in this case, the conveyance from Beasely to Newberry, has all of the constituent parts of a complete deed.

Having disposed of this assignment, we come to the question of the sufficiency of appellee's possession. His testimony shows that in March, 1886, he purchased the land involved in this suit from Beasely, together with two other tracts, — the Allen 320-acre tract and the Heald 640-acre survey. All of these tracts, which were adjoining surveys, were embraced in the deed executed by Beasely, and aggregated 1,280 acres. When purchased, they were in an inclosure made by the owners of lands surrounding appellee's. This inclosure contained, in addition to appellee's 1,280-acre tract, two tracts of 1,280 acres each, belonging to Nelson and Roberts, respectively, and a 320-acre tract of Grove, making 4,160 acres, besides appellee's. He commenced the construction of a fence in July, 1886, which he completed in October, 1886, which separated his tract from those mentioned, except the 320-acre Grove survey, which was also included in his inclosure. Grove sold this tract to one Moley, who, with appellee, used the pasture for grazing stock, each respecting the other's rights. The land was used only for this purpose, and appellee claimed adversely to the world from the date of his purchase. James O. Taylor testified that the 1,280-acre tract the appellee bought from Beasely was, in 1882, inclosed in a larger pasture, consisting of about 7,000 acres, by a fence constructed by witness, together with the other owners of lands lying within said pasture. He had an understanding with Beasely at that time to the effect that he would inclose and use the land, making no claim to the fence, but paying nothing for the use of the land, and that Beasely might sell when he desired...