Turner v. Moore

• Decision Date: 26 May 1891
• Court: Texas Supreme Court
• Parties: TURNER v. MOORE <I>et al.</I>

Page 929

16 S.W. 929

TURNER v. MOORE et al.

Supreme Court of Texas.

May 26, 1891.

Commissioners' decision. Error from district court, Travis county; A. L. WALKER, Judge.

Fred Carleton, for plaintiff in error. Walton, Hill & Walton, for defendants in error.

TARLTON, J.

This is an action of trespass to try title, brought by defendants in error against plaintiff in error, in the district court of Travis county, by petition filed on September 14, 1886. The suit is to recover two tracts of land lying in Travis county, and containing 833¼ acres, and a part of the Joshua English league and labor. The defendant pleaded, "Not guilty," and the statutes of limitation of 5 and 10 years. From a judgment rendered on December 18, 1886, by the court trying the case without a jury, the defendant, against whom recovery was had for the land in controversy, prosecutes this writ of error. The trial judge has filed no conclusions of law and fact. The record shows, however, that the plaintiffs in the court below are entitled to recover unless defeated by the pleas of limitation referred to. The assignments of error complain solely of the findings of the court with reference to these pleas. The tracts in controversy are described, each, by metes and bounds in the petition, the one as lying in the south-east, the other in the south-west, corner of the Joshua English survey. Prior to the year 1870, the original patentee divided the survey into subdivisions, which he sold to different persons, and which, with the locality of the improvements of the defendant, are indicated by the following diagram:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In 1853 the two subdivisions in controversy were sold by the owner to Matthew C. Moore, the ancestor of plaintiffs. It does not appear that the persons who bought the several subdivisions ever took possession. Defendant read in evidence a quitclaim deed from George S. Turner to himself, dated January 3, 1870 duly recorded June 28, 1870, and conveying the Joshua English league and labor, accurately describing it by metes and bounds. Of the land so conveyed to him, defendant, in turn, conveyed an undivided one-sixth interest to Chandler, Turner & Carleton, by deed dated January 3, 1870, and recorded in 1883. It was proved by the defendant that he has lived upon the league and labor of land since 1859, and has claimed all of it since January, 1870, under the deed from George S. Turner to himself, having an improvement consisting of 60 acres of land under fence, with house thereon, in 1870, since which date he increased his improvement to 90 acres under fence. The inclosure is not on the particular portion of the league and labor sued for, and defendant has never been in actual possession of the land sued for. The defendant regularly paid all the taxes on 4,428 acres for 1870, and up to and including the year 1874; for 1875 he paid on 4,605 acres; and in the years after that he paid on less than 4,428 acres, but never less than 3,700 acres.

The sole question for our determination in this case is one involving the correctness of the conclusion of the trial court adverse to the defense of limitation urged by defendant, Turner. The basis in fact of this defense is the actual occupancy from the year 1870 to the year 1886 by defendant of about 90 acres of the Joshua English league and labor, coupled with a claim of title from that date to the entire league and labor, and with the registration in that year of a deed to him from one George S. Turner, conveying by metes and bounds the entire survey; the land in controversy being a part of the original survey. The doctrine relied upon by defendant is that actual occupancy of a portion of a survey, under the circumstances described, is to be construed as an entry by the occupant upon the entire survey, which entry operates as a disseisin of the true owner to the extent of the boundaries set out in the deed, and that hence such occupancy for the statutory period will bar recovery by the owner. Cunningham v. Frandtzen, 26 Tex. 38; Evitts v. Roth, 61 Tex. 84; Cantagrel v. Von Lupin, 58 Tex. 570; W...