Robson v. Osborn

• Decision Date: 01 January 1855
• Citation: 13 Tex. 298
• Parties: ROBERT ROBSON v. BENJAMIN OSBORN.
• Court: Texas Supreme Court

13 Tex. 298

ROBERT ROBSON

v.BENJAMIN OSBORN.

Supreme Court of Texas.

1855.

Error from Colorado. Action of trespass to try title by Benjamin Osborn by his next friend, Isam Tooke, against Robert Robson, commenced March 16th, 1853.

Plea in abatement that W. W. Thompson was the guardian of the plaintiff and the proper person to bring the action. Exceptions to this plea overruled. Trial of plea in abatement, and verdict for the plaintiff. It appeared in the course of the trial of the plea in abatement that Thompson had gone to California in 1849, taking the minor with him, and that neither had returned. Special exception, that the plaintiff, being a minor, could not sue by next friend, overruled. Plea of not guilty, and suggestion of adverse possession for one year, and valuable and permanent improvements in good faith. The plaintiff proved his title. The defendant offered in evidence two tax deeds, one on a sale for taxes of the year 1846, and the other on a sale for taxes of the year 1848. The plaintiff objected on the ground that it was necessary first to prove the authority of the assessor and collector to make the sale. And the objection was sustained. To which the defendant objected. The defendant then offered the deeds in connection with parol proof that he had been in adverse possession of the premises in good faith more than a year before the action was commenced, and had made certain valuable and permanent improvements thereon, and the value thereof. Plaintiff objecting; objection sustained; defendant excepted. Verdict and judgment for plaintiff.

J. H. Robson, for plaintiff in error. I. In the case of Cameron v. Hemphill, 7 Tex. R., 201, it was decided by this court that an infant could maintain a suit by his next friend, but this decision was made upon the validity of a judgment rendered in the spring of 1843, in a suit where some of the parties were minors and sued by their next friends. It is contended for the plaintiff in error, that by provisions of the statutes passed since 1843, the law on the subject has been changed, and that at the date of the institution of this suit an infant could not sue by his next friend. (Hart. Dig., arts. 1534, 1535, 1536.)

We contend that under the provisions of the law of 1848 the only mode in which a minor can prosecute a suit is by his guardian.

This construction of the law of 1848 is supported by a reference to section 44 of the act of 1846, regulating proceedings in the District Court, where it is enacted that “suits for title or for the possession of lands, or for any right attached to or growing out of the same, or for any injury or damage done thereto, may be instituted by executors, administrators or guardians,” &c. (Hart. Dig., art. 703)

II. In the case of Yenda v. Wheeler, 9 Tex. R., this court has recognized and adopted a distinction between “the power to sell” and “the regularity of the sale,” and in New York where by statute the tax deed was made conclusive evidence of the regularity of the sale, the supreme court of that State, in construing the statute, decided that although the deed is conclusive evidence of the regularity of the sale, it is not so of the power to sell, and that the statute applies only to the proceedings to be had after the right and power to sell are acquired. But we contend that there is a very material distinction between the New York statute and our own on this subject; for, under the former “the comptroller's deed is conclusive evidence of the regularity of the sale,” while under the latter the “tax deed, when recorded according to law, is prima facie evidence that all the requisitions of the law have been complied with in making the sale.”

The “regularity of the sale” and “a compliance with the requisitions of the law in making the sale” are, we conceive, two very different and distinct things. The words “regularity of the sale” can only apply to those matters which relate directly to the sale itself, such as, that a sale actually took place--that notice of the sale was given, that the sale was made at the legal time and place, and that the purchase money was paid, &c. But the words that “the requisitions of the law have been complied with in making the sale,” will admit of a much wider and broader interpretation. They embrace not only the facts relating directly to the sale itself, but those facts also which clothe the officer with the legal power to sell or “make the sale.”

A distinction has been drawn in several of the States between a sale by a sheriff under execution, and by a tax collector, by virtue of his assessment and levy; and it has been held that deviations of a sheriff in the manner of executing his power are held not to prejudice bona fide purchasers at his sale, but such deviations on the part of the tax collector are held to be fatal. This distinction is alluded to but not adopted by this court in the case of Hadley v. Tankersly, 8 Tex. Rep; and we submit that it is a distinction without a difference, and is in contravention of general and well settled principles of law. (2 Litell's R., 65; 3 Bibb, 328; Hardin, 384; 5 J. J. Marsh., 65; 3 Monroe, 271, 272.)

The authority, then, of the sheriff and tax collector to sell are, we contend, strictly analogous, and when either of them has once acquired the authority to sell, under the statute, and has executed that authority, all their acts which relate directly to the sale itself, will, independent of any statutory provision on the subject, be presumed to have been done correctly. (See same authorities before referred to.)

If this be the law, why the necessity of the legislature enacting that the assessor's deed shall be prima facie evidence that “the requisitions of the law have been complied with in making the sale,” if by the term “requisitions” was meant the mere legal notice of the sale, selling at the legal time and place, payment of the purchase money and such other matters as relate directly to the sale itself, all of which facts would, on the production of the assessor's deed, have been presumed to have been done on general principles of law and independent of any legislative enactment on the subject?

In the case from 12 Smedes & Marshall's R., 498, it was held that since the deed was made prima facie evidence of the performance of the previous requirements of the law, the burthen of proof was changed from the purchaser at tax sale to the original proprietor of the land. And in the case of Williams v. Peyton, 4 Wheat. R., 77, one of the reasons given by the court for their decision against the validity of the tax deed is, that “in the act of Congress under which the sale took place there is no declaration that conveyances of land sold under the act shall be deemed prima facie evidence of the validity of the sale,” from which we may safely conclude that if such a declaration had been contained in the act the burthen of proof would have been changed from the purchaser at the tax sale to the original proprietor of the land.

How are we to restrict the meaning of the term “requisitions” in the law applicable to assessors and collectors to the mere acts relating directly to the assessor's sale, when we find that all of the acts to be done previous to the sale are to be performed by the officer himself, including the acts anterior to the levy, and which give him the authority to sell, as well as those which are subsequent to the levy and which relate to the mere act of selling? Is it not as much a requisition of the law in making the sale that the property to be sold should have been previously assessed in the manner required by the statute, as that the notice of the time and place of the sale should have been given, or the purchase money paid?

III. But, if we are wrong in this position, we contend that the court erred in refusing to permit the defendant to introduce the said deeds in evidence, in conjunction with the testimony, for the purpose of showing that he was an adverse possessor in good faith for more than one year next previous to the institution of this suit, of the premises in controversy, and that he had made permanent and valuable improvements on the land sued for, without the necessity of making proof at the same time that the requisitions of the law had been complied with in making the sale. The admissibility of the proof will depend on its sufficiency to establish two facts:

1st. That the defendant was an adverse possessor of the premises in controversy.

2d. That he was a possessor in good faith.

Adverse possession has been defined to be “an actual, continued, visible, notorious, distinct and hostile possession.” (6 Serg. & Rawle, 21; 2 Litell, 66; 3 Mass. R., 344;9 Johns. R., 180;18 Johns. R., 40;1 Johns. Cases, 49.)

Did the testimony offered and rejected by the court conduce to show that the defendant was a possessor of the premises in controversy in good faith?

The term “ bona fide,” or in good faith, is taken from the civil law, and consequently the proper construction of the term will best be arrived at by a reference to the civil law authorities. In the civil code of Louisiana we find it stated that “the possessor in good faith is he who has just reason to believe himself the master of the thing which he possesses, although he may not be in fact, as happens to him who buys a thing which he supposes to belong to the person selling it to him but which in fact belongs to another.” (Civil Code La., art. 3414.)

Again. “By the term just title in cases of prescription, we do not understand that which the possessor may have derived from the real owner, for there no prescription would be necessary, but the title which the possessor may have received from any person whom he honestly believed to be the real owner, provided the title was such as to transfer the property.”

“And by the phrase ‘transfer the property,’ we understand not such title as shall have really transferred the property, but a title which by its nature would...