Ross v. Early

Decision Date01 January 1873
Citation39 Tex. 390
CourtTexas Supreme Court

1. In a suit for a land certificate, after location, it is not error to strike out the plea of two years statute of limitation.

2. A land certificate is only a chattel, and an action for its wrongful conversion must be brought within two years; but its location merges it into land, and after such merger the rights of the claimants thereto must be determined by the laws governing real estate.

ERROR from Denton. Tried below before the Hon. C. C. Binkley.

Early brought an action of trespass to try title in 1871, to recover 640 acres of land in Denton county, against Ross.

The only question before the court arose on defendants' plea of two years limitation, which was as follows:

“And the defendants aver and so charge that said Carter purchased said certificate from said Thomas in good faith, and paid a valuable consideration therefor; and the defendants aver and so charge that said Carter had and held said land scrip in his possession, exercising ownership open and notorious over the same as his property, openly and notoriously for more than two years prior to the institution of this suit; and the defendants specially plead the two years statute of limitation in bar of plaintiff's right of action herein.”

The plea of limitations was stricken out by the court and plaintiff recovered judgment for the land, on the verdict of a jury, from which the defendants prosecute writ of error.

J. A. Carroll, for plaintiffs in error, cited Cox v. Bray, 28 Tex. 261; Smithwick v. Andrews, 28 Tex. 488.

Walton, Green & Hill, for defendant in error.


This is an action of trespass to try title, in volving some rather novel features; but the record presents but a single point for our decision, viz., did the district court err in ruling out the plea of two years limitation? Early, the appellee, deraigns his title through a patent directly granted to himself. Ross and his co-defendants set up that they were the owners of the certificate on which the survey was made and patent issued, and they also plead the two years statute of limitations. By reference to the facts, it would appear that the patent issued to Early on the eleventh of August, 1860, as the assignee of Toby scrip No. 211.

The plaintiffs in error claim to hold the land under a deed from John Carter, who purchased the scrip from David Thomas, for a valuable consideration paid, in 1857.

They allege that Thomas was the owner of the scrip, had full right and power to sell it, and that Carter purchased in good faith.

They aver that Thomas' sale of the scrip to Carter was with the knowledge and consent of Early, the defendant in error; and also...

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2 cases
  • Atlantic Refining Co. v. Noel
    • United States
    • Texas Supreme Court
    • October 9, 1968
    ...based upon those acts vested legal rights in Johnston and Smith. Threadgill v. Bickerstaff, 87 Tex. 520, 29 S.W. 757 (1895); Ross v. Early, 39 Tex. 390 (1873); Howard v. Perry, 7 Tex. 259 (1851); Stubblefield v. Hanson, 94 S.W. 406 (Tex.Civ.App., 1906, writ ref.); Watts v. Bruce, 31 Tex.Civ......
  • Frazier v. State
    • United States
    • Texas Supreme Court
    • January 1, 1873

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