Schleicher v. Gatlin

• Decision Date: 21 June 1892
• Citation: 20 S.W. 120
• Court: Texas Supreme Court
• Parties: SCHLEICHER <I>et al.</I> v. GATLIN.

20 S.W. 120

SCHLEICHER et al. v. GATLIN.

Supreme Court of Texas.

June 21, 1892.

Commissioners' decision. Section B. Appeal from district court, Concho county; J. W. TIMMINS, Judge.

Trespass to try title by G. H. Schleicher, administrator, and others against J. M. Gatlin. Judgment for defendant, and plaintiffs appeal. Reversed.

Sidon & Harris, for appellants. Wingate & Guion, for appellee.

GARRETT, P. J.

This is an action of trespass to try title brought December 20, 1888, by G. H. Schleicher, as administrator of the estate of Gustay Schleicher, deceased, and Albert Dreiss, against J. M. Gatlin, to recover four surveys of land, containing 160 acres each, being surveys Nos. 1,843, 1,844, 1,845, and 1,846, all situated in Concho county, and patented to J. Vogel. The defendant disclaimed as to surveys 1,844 and 1,845, and as to surveys 1,843 and 1,846 he pleaded not guilty, a tax title, limitations of 5 and 10 years, and improvements in good faith. To the defendant's pleas the plaintiffs demurred generally and specially. The demurrers were overruled, and plaintiffs excepted. Trial was had before a jury May 10, 1889, and resulted in a verdict and judgment in favor of the defendant for survey No. 1,846 upon his plea of 10 years' limitation. Appellants' assignments of error, with respect to the charge of the court given to the jury upon the statutes of limitations, and the refusal of the instructions thereon requested by them, and that the verdict of the jury is not sustained by the evidence, present the question as to the legal sufficiency of the testimony to sustain the finding of the jury of 10 years' limitation in favor of the defendant, and it will not be necessary to notice them in detail. It is contended by the appellants that the defendant entered upon the land with no intention to claim the same adversely, and that his possession thereof was never adverse to the true owner. In support of his plea of 10 years' limitation, the defendant testified that he moved on the land in July, 1876; that he was moving west with some stock looking for a place to stop, and found a man named Gordon occupying the land, who told him that it was vacant. He traded Gordon a bull for his claim, and afterwards built a puncheon house on the survey 1,846. He had lived on this survey continuously ever since July, 1876, and had made other improvements thereon. In August, 1882, he built a lumber dwelling house worth $1,000 or $1,200; also a rock corral worth $200; and his brother-in-law built in the same year, 1882, with defendant's permission, a house worth $250, for which defendant paid him, in 1884, $280. Defendant has 45 or 50 acres of land inclosed. It was all inclosed in 1876, and about 35 acres of it has been in cultivation ever since. The inclosure includes four or five acres of survey 1,843. Defendant thought the land was vacant until 1879, when he was informed that the plaintiffs owned it. He had intended to pre-empt the land, but did not know where to go to file on it, as Concho county was then unorganized. No taxes were ever paid on the land by him until 1880, when he bought it at tax sale. He had redeemed it and paid the taxes on it ever since. Four or five years before the trial of the case he went to De Witt county to see Gov. Stockdale, but did not offer to buy the land. In behalf of the plaintiffs, one Ratchford testified that he had once acted as agent for plaintiffs, and had negotiated with defendant to sell him the land in controversy, and that defendant had told him, before the trial of the case, that he had once offered Proctor, who was plaintiffs' agent, $1.25 per acre for the land, and had also once offered Gov. Stockdale, the husband of one of the heirs of Gustav Schleicher, deceased, $1.50 per acre for the land. Bierschwale testified that he had been agent for plaintiffs to sell the land in controversy, and had seen defendant in Mason in 1885, and spoke about selling the land to him; that defendant said he was not able to buy the land then, but wanted to buy it, and intended to buy it when he got able; that he saw defendant again in about six months, and had a conversation with him to about the same effect. In 1888 he saw defendant at the house on the land, and that the latter said he had not been able to sell any cattle and had no money, but that, if he could make the necessary arrangements for money, he would come down to Mason, and see witness about buying the land; that he wanted survey 1,846 anyway. This witness produced a letter written by the defendant to Holmes & Bierschwale, dated April 27, 1888, in which he stated that the times were hard, and that the price asked for the land was too high, but that he would go down to Mason and see them about the land next month. Defendant said he did not remember offering to buy the land from plaintiffs, and had never proposed nor offered to buy it from any one; that he had never recognized plaintiffs' claim to the land in controversy. Under the defendant's own statements, his holding was not adverse until 1879, for he believed until then that the land belonged to the state. Mhoon v. Cain, 77 Tex. 317, 14 S. W. Rep. 24. The holding must be against the claim of all other persons, to be adverse, and as held in Craig v. Cartwright, 65 Tex. 424, such holding may be deemed adverse in all cases in which occupancy and exercise of ordinary acts of ownership are shown, unless the holding is shown to have been in subordination to the title of the real owner, but it is not necessary that the real owner should be known. The defendant failed to show such possession as would give him title under the statute of 10 years' limitation.

It becomes immaterial whether the action of the court in overruling the plaintiffs' demurrer to the defendant's plea setting up the 10-years statute of limitation was correct or otherwise, as he failed to sustain his plea. It follows, from the foregoing disposition of the question with regard to the 10-years limitation, that the judgment of the court below must be reversed, unless it can be sustained, if otherwise correct, under the plea of five years' limitation. Defendant put in evidence the tax deed from the tax collector of Concho county to him in order to support his plea of improvements made in good faith and of the five-years statute of limitation. No evidence was offered in connection with this deed to show a levy of taxes and other prerequisites to title under a tax deed, and it was admitted, over the objection of the plaintiffs, on grounds relied on in their brief, as follows: (1) The deed was void on its face, because it showed that four separate and distinct surveys had been sold as the property of unknown owners for an aggregate tax of $6.40, without designating what amount of tax was due by each unknown owner or on each survey; (2) it was not shown that the prerequisites of a sale had been complied with; (3) the deed was not properly acknowledged for record. The certificate of acknowledgment, instead of reciting that the grantor was known to the officer taking the acknowledgment to be the person who executed the deed, recited: "Personally appeared J. T. Bates, tax collector of said county, to me well known and acknowledged," etc. The deed was signed, "J. T. Bates, Tax Collector of Concho County." This was a substantial compliance with the statute. Rev. St. 4309, 4312; Schramm v. Gentry, 63 Tex. 583; Salmon v. Huff, 80 Tex. 136, 15 S. W. Rep. 257, 1047. A tax deed is admissible in evidence to support the plea of five years' limitation as well as of improvements made in good faith, without proof of a levy of the tax and the usual prerequisites to a sale for taxes. Fowler v. Simpson, 79 Tex. 618, 15 S. W. Rep. 682; Seemuller v. Thornton, 77 Tex. 158, 13 S. W. Rep. 846; House v. Stone, 64 Tex. 683.

An inspection of the tax deed admitted in evidence will show that the four surveys for which plaintiffs brought this suit, and as to two of which the defendant has set up title under the five-years statute of limitation, having disclaimed as to the others, were sold as one tract, or in gross, as the property of unknown owners, and that all were bought by the defendant for the sum of $16.40. A deed showing on its face that the sale for taxes was made of several tracts of land in gross is void. Faut v. Branin, (Sup. Ct. Tex.) 5 Tex. Law Rev. 764. The question arises whether or not a tax deed void on its face, but purporting to convey the land, is a deed, within the meaning of the five-years statute of limitation.¹ A void deed, duly registered, is a sufficient memorandum of title, under the ten-years statute, to fix the boundaries of the possessor's claim, (Wofford v. McKinna, 23 Tex. 36;) but in such case it is considered a memorandum of title other than a deed. We find the expression in some of the cases that a tax deed, not void on its face, will support the plea of five years' statute of limitation; but an examination of the cases will show that, wherever this has been held, the deed was void for the want of a sufficient description of the land. In Fry v. Baker, 59 Tex. 405, the deed of a married woman, it not appearing on the face of the deed but that she was a feme sole, was deemed sufficient to support the plea. In the discussion of the question the court said: "However, the rule is well established that a conveyance void on its face is not a deed in contemplation of the statute, and will not support the defense of five years' limitation." A deed void for uncertainty of description must necessarily be held insufficient to support the plea, because, as was said in Kilpatrick v. Sisneros, 23 Tex. 136: "The object of the statute in prescribing registry of the deed, as necessary to enable the possessor to avail himself of the five years of limitation, is to give notice to the owner that the defendant in possession is claiming under the deed; and, if there is such falsity or uncertainty of description as that it will not answer the...