Rosborough v. Cook
| Decision Date | 18 April 1917 |
| Docket Number | (No. 2476.) |
| Citation | 194 S.W. 131 |
| Parties | ROSBOROUGH v. COOK et al. |
| Court | Texas Supreme Court |
Action by W. J. Rosborough against Ellen Cook and others. Judgment (148 S. W. 1120) affirming judgment for defendants, and plaintiff brings error. Affirmed.
F. H. Prendergast, of Marshall, for plaintiff in error. James Tucker, A. G. Carter, and Beard & Davidson, all of Marshall, for defendants in error.
Pending a suit, filed in the year 1900, for partition of certain land, two of its joint owners, Turner and Blair, by regular warranty deed conveyed a part of it, including the twenty-acre tract here in controversy, to Ellen Cook, the defendant in error, a stranger to the partition suit. By the decree subsequently rendered in that suit the tract here involved was set apart to another of the joint owners, Ruby Faust, under whom Rosborough, the plaintiff in error, claims by direct conveyance. No writ of possession against Ellen Cook ever issued on the judgment.
Prior to the conveyance by Turner and Blair and during the pendency of the partition suit, they had contracted to convey the land described in their deed to Tom Cook, Ellen's husband, in contemplation, doubtless, that it would be allotted to them in the partition. Tom Cook died, and the deed was made to Ellen. She paid for the land, registered her deed, held possession of the land under the deed, improved it, and, whether the period of limitation be reckoned from the date of the deed or the date of the judgment in the partition suit, acquired title under the five years statute of limitation, if the deed of Turner and Blair afforded sufficient basis for such a title.
The question presented by the case, whether the judgment in the partition suit had the effect of cancelling the deed for the purposes of limitation under the five years statute, is one of interest, and is not free from difficulty. It is, however, capable, we think, of accurate solution by bearing clearly in mind the office of a deed under the five years statute, the operation of the lis pendens rule, and the effect of the judgment in the partition suit under such rule. It was before the court, but not determined in Letney v. Marshall, 79 Tex. 513, 15 S. W. 586.
To support limitation under the five years statute, it is not necessary that the deed, under which the claim is made, convey any title. The grantor may be wholly barren of any vestige of title; the deed may therefore pass no semblance of title; yet, if it describes and purports to convey the land and tested by itself is upon its face a good deed, it meets the requirement. Wofford v. McKinna, 23 Tex. 36, 76 Am. Dec. 53; Schleicher v. Gatlin, 85 Tex. 270, 20 S. W. 120; Harris v. Wells, 85 Tex. 312, 20 S. W. 68.
Accordingly, if Ellen Cook had a deed to this land, good upon its face and which retained its validity as such, if she claimed under it, with it duly registered, and met the other requirements of the statute, as she did, for a continuous five year period, she acquired title to the land by limitation, though she never acquired and at no time had any title whatever in virtue of the deed.
It is thus clear that a deed under the law governing five years limitation has a character distinct from that of an effectual muniment of title. For the purpose of such limitation it performs an office unrelated to title, and although as a conveyance of title it may be futile. That office is simply to aid the possession as a means of notice of the adverse claim to the land.
The law of limitation of actions for land is founded upon notice. The title by limitation ripens, primarily, only because, in such manner and for such period of time as the different statutes require, notice is given of the hostile claim. Under the three years statute, it is afforded by possession under title or color of title. Under the ten years statute, simply by possession. And under the five years statute, it is given by possession, the payment of taxes, and the registration of a naked deed. It is not the character of the deed as a conveyance of title which, under the five years statute, helps to put limitation in motion. It assists the operation of limitation under that statute merely because of the notice given of the adverse claim by its registration as an instrument which purports to convey, not the title, but the land.
The rule of lis pendens does not prohibit and hold void a conveyance...
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