Thomson v. Weisman
| Decision Date | 27 October 1904 |
| Citation | 82 S.W. 503 |
| Parties | THOMSON v. WEISMAN et al. |
| Court | Texas Supreme Court |
Action by Lena Weisman and others against J. T. Thomson. From a judgment in favor of plaintiffs, affirmed by the Court of Civil Appeals (78 S. W. 728), defendant brings error. Reversed.
Joseph Spence, Jr., J. T. Thomson, and Etheridge & Baker, for plaintiff in error. Hill & Lee, for defendants in error.
On August 22, 1901, plaintiffs instituted this suit in the form of trespass to try title in the district court of Tom Green county against J. T. Thomson. The plaintiffs in this suit are the same as the plaintiffs in a former suit hereafter described, or are the devisees and heirs of some of those plaintiffs, now deceased. The suit last referred to was instituted by the heirs of Abraham Young in the district court of Tom Green county against J. T. Thomson and Joseph Spence to recover the same land now sought to be recovered in this suit, and on the 23d of November, 1888, judgment was rendered in that cause in favor of the plaintiffs against the defendants, which judgment has not been set aside nor reversed. The defendant, Thomson, pleaded in this case not guilty, and in proper form set up as a defense to this action the statutes of limitation of five years and of ten years.
Plaintiffs deraigned title to Alexander Pope, and it was agreed that Pope's title was in Abraham Young, the ancestor of plaintiffs. The defendant, Thomson, introduced (1) a quitclaim deed from James E. Brown to Joseph Spence and J. T. Thomson, dated in 1885, conveying the land sued for in this case; (2) quitclaim deed from Chas. T. Potter to George B. Jackson, dated October 20, 1894, describing the land in controversy, and duly recorded in the proper county on February 9, 1895; (3) special warranty deed from George B. Jackson to J. F. Williams for the same land, dated October 29, 1897, recorded in the proper county on November 1, 1897; (4) a deed from J. F. Williams to J. T. Thomson, dated February 20, 1900, conveying the land and duly recorded in the proper county February 23, 1900. The payment of taxes upon the land was proved to have been made to the state for the years 1895 to and including 1897 in the name of George B. Jackson, and for the years 1898 and 1899 in the name of J. F. Williams, and for the years 1900 and 1901 in the name of J. T. Thomson. Defendant proved the payment of taxes for each year by producing a receipt from the tax collector of the county in which the land was situated. Plaintiffs also proved payment of the taxes from 1895 to 1901, inclusive, and they paid each year before defendant paid.
The undisputed evidence shows that the land in controversy was embraced within the inclosure of a pasture claimed by Thomson and Spence in 1885 and at the time the suit was brought in 1888. No question is made in this case as to the sufficiency of the inclosure to sustain the statute of limitations, and we will therefore not enter into any details as to that matter. Thomson and Spence had possession of the pasture from 1885 up to the time of the entry of judgment in 1888. No writ of possession was issued upon the judgment, and no possession was ever given to the plaintiffs of the land under that judgment, but Thomson and Spence continued in possession of the land until Thomson bought Spence's interest, after which Thomson occupied the land until the 20th of October, 1894, when Thomson took a lease from Jackson, acknowledging his title to the land, and continued in possession and control of the land, claiming it under Jackson's title, until October 29, 1897, when the land was conveyed by Jackson to Williams, from which time Thomson held possession in his own right, claiming under the deed to Williams. Thomson's testimony shows that at his instance the conveyance was made by Jackson to Williams, and that he (Thomson) furnished the money with which Williams purchased the land, and had the deed made in Williams' name to be held for him (Thomson). There is much evidence concerning this matter of possession and the change of title from one person to another, but we believe that this statement of the facts will be sufficient to understand the questions which are presented in this case. At the trial in the district court judgment was rendered for Thomson, which was reversed by the Court of Civil Appeals, and judgment rendered for defendants in error.
The honorable Court of Civil Appeals held that, when Jackson conveyed the land to Williams, Thomson's possession was broken, although he continued in the possession and received Jackson's title by virtue of the deed made to Williams. This ruling is based upon the proposition that one in possession of land, claiming it as his own under a deed made for his benefit to a third person, cannot acquire title by limitation under the statute of five years. In so holding that honorable court erred, for which its judgment must be reversed.
The statute (Rev. St. 1895, art. 3342) is in the...
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