White v. Pingenot

• Decision Date: 15 November 1905
• Parties: WHITE et al. v. PINGENOT.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

90 S.W. 672

WHITE et al. v. PINGENOT.^*

Court of Civil Appeals of Texas.

November 15, 1905.

Appeal from District Court, Bexar County; A. W. Seeligson, Judge.

Action by Celeste Pingenot against Louisa J. White and others. From a judgment in favor of plaintiff, defendants appeal. Reversed and rendered.

Rehearing denied December 13, 1905.

F. Vandervoort, C. C. Clamp, and Shook & Vander Hoeven, for appellants. Ball & Ingrum, for appellee.

NEILL, J.

This is an action of trespass to try title, brought by appellee in the district court of Dimmit county on August 17, 1903, against appellants, Louisa J. White, Grey White, and Jesse D. Oppenheimer, to recover 1,781½ acres of land situated in said county. The appellants White plead not guilty, and the three and five year statutes of limitation. It is unnecessary to make further statement of the pleadings. The venue was, by consent of the parties, changed to Bexar county, where the case was tried without a jury, and judgment rendered in favor of appellee for all the land, save 200 acres, which were awarded to the Whites as the homestead of Vivion.

Conclusions of Fact.

In view of the fact that we have concluded that a consideration of the question of limitation is alone necessary to determine the disposition of the case, we shall only state such facts as are pertinent to that issue.

(1) On August 10, 1891, La Fayette Vivion, who is the common source of title, was the owner of, and resided with his family on, the lands in controversy. On December 28, 1894, an abstract of a judgment, recovered on April 10, 1894, in the Forty-Fifth judicial district, Bexar county, in cause No. 1,850, styled "Celeste Pingenot v. H. C. Tardy and L. Vivion," in favor of appellee against L. Vivion for $21,607, with interest thereon at 10 per cent. per annum from date, was recorded in the judgment record of Dimmit county, Tex.

(2) On February 28, 1896, La Fayette Vivion, joined by his wife, sold and conveyed, by warranty deed of that date, all the land in controversy, save survey No. 635, certificate No. 2,021, F. E. Burnes, original grantee, to Louisa J. White, wife of Grey White. And on the ____ day of February, 1896, they sold and conveyed, by their quitclaim deed of that date, to the same grantee survey No. 635, above described. These sales were made for the full value of the lands. The first deed was duly acknowledged, and was filed for record in the office of the county clerk of Dimmit county on April 15, 1896, and duly recorded on the 18th of that month. The acknowledgment of the quitclaim deed was fatally defective, though it was filed for record on May 19, 1896, in the office of the county clerk of Dimmit county, and recorded on the 21st of same month.

(3) The grantee, Louisa White, with her husband, Grey White, went into possession of the land described in the deed of February 28, 1896, immediately after the execution of said deed, which possession was taken under and by virtue of said instrument, and maintained open, uninterrupted, peaceable, exclusive, and adverse by using and enjoying the same, and paying all taxes due thereon, for more than five years next prior to filing this suit; the grantee claiming the land during the entire period of such possession under said duly recorded deed. Such continuous, peaceable, adverse possession of Mrs. White and her husband was also held and maintained by them during said period under title; i. e., a regular chain of transfer from and under the sovereignty of the soil down to themselves.

(4) Mrs. White and her husband, Grey White, also went into possession of survey No. 635, described in the quitclaim deed from Vivion, at the date of its execution, and had been in peaceable and adverse possession thereof under color of title — that is to say, a consecutive chain of transfer from or under the sovereignty of the soil down to Mrs. White, it not being regular, because the deed to her, being defectively acknowledged, was not duly registered—for three years next prior to the time of filing this suit.

(5) An execution was regularly issued out of the district court of Bexar county on the 7th day of January, 1902, on the judgment described in the abstract of judgment referred to in the first of these findings, properly and sufficiently describing said judgment, directed to the sheriff or any constable of Dimmit county, commanding him to make the full amount of said execution out of the goods and chattels, lands and tenements of the said L. Vivion, said judgment being in full force; two executions having been previously issued thereon—the first on July 8, 1894, directed to the sheriff or any constable of Bexar county, Tex., and returned no property found; the other on November 5, 1901, directed to the sheriff or any constable of Dimmit county, Tex., and returned by plaintiff's attorney therein without having been placed in the hands of an officer for execution.

(6) The execution of January 7, 1902, was placed in the hands of the sheriff of Dimmit county, Tex., on the 10th of January, 1902, and was by him levied on the property in controversy as the property of L. Vivion, defendant in said execution and judgment on which it was issued, which was all duly advertised by the sheriff for sale, and was, on the first Tuesday of February, 1902—it being the 4th day of the month—sold at public vendue at the courthouse door of Dimmit county, Tex., and struck off by said sheriff at said sale to Celeste Pingenot, plaintiff in the execution as well as in this suit, he being the highest bidder, for the sum of $200. On the same day P. C. Tumlinson, as sheriff of said county, by virtue of said execution sale, made and executed a deed properly describing the property in controversy, conveying the same to said Pingenot, which deed was on the same day filed for record and duly recorded in the office of the county clerk of Dimmit county, Tex.

Conclusions of Law.

Since the deeds from Vivion and wife to Louisa J. White are prior in time to the sheriff's deed to Pingenot, there being no question of fraud affecting the validity of the conveyance, it would be superior in law, unless the judgment on which the execution issued, under which the latter deed was made by the sheriff, was abstracted and the abstract recorded according to law, so as to fix a lien on the land from the date of its recordation. But, if such a judgment lien attached to the land, it would be unavailing if, notwithstanding such lien, the possession of appellants White ripened into title by virtue of the three or five year statute of limitation before appellee brought this action. It will, therefore, under our view of the case, be unnecessary to consider the question as to whether a lien in favor of appellee was fixed on the premises in controversy by a record of the abstract of the judgment under which he bought the land at execution sale, and it will be assumed pro hac vice that it was. Then, the only question necessary for us to consider and determine is, did the statute of limitations, despite such lien, bar appellee's right of recovery?

"Every suit to be instituted to recover real estate, as against any person in peaceable and adverse possession thereof under title or color of title, shall be instituted within three years next after the cause of action shall have accrued, and not afterward." Article 3340, Rev. St. 1895. "By the term `title' as used in the preceding article, is meant a regular chain of transfer from or under the sovereignty of the soil, and by `color of title' is meant a consecutive chain of such transfer down to such person in possession, without being regular, as if one or more of the memorials or muniments be not registered, or not duly registered, or being only in writing, or such like defect as may not extend to or include the want of intrinsic fairness and honesty; or when the party in possession shall hold the same by a certificate of headright, land warrant or land scrip, with a chain of transfer down to him in possession." Article 3341, Rev. St. 1895. "Every suit to be instituted to recover real estate as against any person having peaceable and adverse possession thereof, cultivating, using or enjoying the same and paying taxes thereon, if any, and claiming under a deed or deeds duly registered, shall be instituted within five years next after the cause of action shall have accrued, and not afterward; provided, that this article shall not apply to any one in possession of land, who in the absence of this article would deraign title through a forged deed; provided further, that no one claiming under a forged deed, or deed executed under a forged power of attorney, shall be allowed the benefits of this article." Article 3342, Rev. St. 1895. "Whenever in any case the action of a person for the recovery of real estate is barred by any of the provisions of this chapter, the person having such peaceable and adverse possession shall be held to have full title, precluding all claims." Article 3347, Rev. St. 1895. "`Peaceable possession,' within the meaning of this chapter, is such as is continuous and not interrupted by adverse suit to recover the estate." Article 3348, Rev. St. 1895. "`Adverse possession' is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another." Article 3349, Rev. St. 1895.

The only possible doubt as to the facts in this case meeting and fulfilling every condition essential to bar appellee's action and vesting in appellant Louisa J. White full title, preclusive of all claims to the premises, is that of adverse possession to appellee's claim by virtue of his judgment lien. If her possession was adverse to such claim, then, under the facts established by the uncontroverted evidence, the statute, both of three and five years, bars this action as to the lands held under her first deed from Vivion, and that of three years bars it as the lands held under the...