Whitehead v. Foley

• Decision Date: 31 October 1866
• Citation: 28 Tex. 1
• Parties: G. W. WHITEHEAD ET AL. v. W. G. L. FOLEY ET AL.
• Court: Texas Supreme Court

28 Tex. 1

G. W. WHITEHEAD ET AL.

v.W. G. L. FOLEY ET AL.

Supreme Court of Texas.

October, 1866.

A disclaimer by the defendant as to part of the land sued for is not to the prejudice of the plaintiff, and the allowance of such disclaimer by the court, after the parties announced themselves ready for trial, is, therefore, not an error, for which the judgment in favor of the defendant for the remainder of the land will be reversed.

If a disclaimer, by which a defendant diminishes the extent of the boundaries which he claims, be an amendment, after the parties announce themselves ready for trial, it may yet be filed. Pas. Dig. art. 54, note 243.

It is not now an open question in this court, that an entry and occupation of land by a trespasser, claiming to hold under the location and survey of his valid head-right certificate, operates a disseizin of the true owner of the land to the extent of the boundaries of the survey.

The adverse possession of the trespasser in such case is not limited to the land actually occupied by him, but is co-extensive with the limits of his survey.

The 1st section of the act of the 19th January, 1841, reads as follows: “The commissioner of the general land office is hereby authorized and required forthwith to make out patents upon all claims which have been, or may hereafter be, returned as genuine and justly entitled by the different boards of land commissioners appointed under ‘An act to detect fraudulent land certificates,’ whether the same have been obtained in strict accordance with law or not, and the commissioner of the general land office is hereby authorized to employ two additional clerks, who shall be allowed the same salaries and pay as other clerks of the land office.” Hart. Dig. art. 2021.

Land certificates which were returned as genuine by the traveling board of land commissioners, but which were not recommended for patent by said board, on account of the want of the oath required by the 12th section of the land law of December 1, 1837 (Pas. Dig. art. 4140), were validated and expressly directed to be patented by the act of January 19, 1841 (Hart. Dig. art. 2021), and subsequent to that date claimants under such certificates were entitled to all the rights and privileges of the holders of other valid and established claims for land.

The statute of limitations of three years (Pas. Dig. art. 4622, note 1031) does not require that all the links in the chain of transfer shall be in writing, but merely that title shall be shown “by a regular chain of transfer from or under the sovereignty of the soil.” 28 Tex. 383.

It is only when the chain of transfer, under the 15th section of the act of limitations, is not regular, that the statute requires the irregular links to be in writing.

To sustain the plea of the statute of limitations of three years, title by inheritance is as regular and effectual as if acquired by written conveyance. 16 Tex. 433.

The fact that the owner of a headright certificate, at the time of locating it, was aware that his survey conflicted with another valid grant, is not made by the statute an exception to the running of limitation in his favor, nor is he thereby debarred from the protection of the statute, if the owner of the superior title fail to prosecute his suit within the time prescribed by law, and it is not for this court to engraft such a provision on the statute.

When the owner of a valid head-right certificate had reason to believe that a previous grant to another person was void, or that it had been forfeited by abandonment, and, in consequence, located his certificate on the same land, his title was not inconsistent with “intrinsic fairness and honesty,” and the statute of limitations of three years would run in his favor. Pas. Dig. art. 4622, note 1031.

The adverse possession required to support the plea of three years' limitation need not consist in the personal occupation of the land by the defendant himself; it is equally effectual if held by his servant, agent, or attorney.

If the possession be in privity with the defendant--in his name and stead, and on his account--it is his possession in contemplation of law, he is chargeable with the responsibility of it, and may avail himself of its benefits.

When there is no intention of abandoning possession, the fact that premises are left without an occupant for a short period, intervening between the removal of one tenant and the entry of another, does not interrupt the running of the statute of limitations in favor of the landlord; and, in determining whether there was an intention of abandonment, the attendant circumstances are to be considered. (See this case for circumstances held sufficient to show that, in contemplation of law, there was no intention of abandonment, notwithstanding that the premises were left without an actual occupant for a period of five months, there being a large amount of corn left in the crib, etc.)

APPEAL from Lavaca. The case was tried before Hon. FIELDING JONES, one of the district judges.

This suit was brought by the appellants, George W. Whitehead and others, as the heirs of Ephraim Whitehead, deceased, against William G. L. Foley and Mason B. Foley, the appellees, for a league of land in Lavaca county. Petition filed September 11, 1865.

The plaintiffs alleged in their petition their heirship to the said Ephraim Whitehead, and represented that he, as a colonist of Austin's colony, obtained from the proper authorities of the state of Coahuila and Texas, a grant of the league of land in controversy, and was put in formal possession of it on or about the 8th of December, 1831; that, in consequence of his dangerous ill-health, the said Ephraim Whitehead, on or about the 20th of April, 1837, went from Texas to the city of New Orleans, for the purpose of obtaining medical assistance, not then to be had in Texas, and there long lingered until he died, leaving plaintiffs as his heirs; that the defendants had set up some feigned, false and fraudulent, or other title and claim to the said league, and had tortiously, and with force and arms, trespassed upon and taken possession of the same, using and destroying the timber, etc., to the damage of plaintiffs $10,000; that by false and fraudulent representations of title in themselves, the defendants were casting a cloud over the title of petitioners. Prayer, that defendants be required to produce any pretended title they have, and that it be canceled and annulled; that the title and possession of the said league be decreed to petitioners, and that they have judgment for their said damages, etc.

W. G. L. Foley, one of the defendants, answered with a general denial, and also specially plead, that his son, Sterling Tucker Foley, in the year 1833, settled upon one-third of the league sued for, claiming it as his homestead; that in February, 1838, the said S. T. Foley caused his said head-right to be surveyed, in virtue of his head-right certificate for one-third of a league, issued to him by the board of land commissioners of Colorado county; that said survey was properly made, and the field-notes duly returned to the general land office; that the certificate was recommended as genuine by the traveling board of land commissioners; that said S. T. Foley took possession of said third of a league in 1833, and held it adversely to all the world till his death, in 1842; that he was a single man, without wife or child; and that this defendant and his wife, the mother of said S. T. Foley, were his heirs, and as such succeeded to the possession and claim of said third of a league, and have ever since continued to hold the same adversely to all others. This defendant also plead the limitations of three and ten years, etc.

Mason B. Foley, the other defendant, besides a general denial, answered, that in the year 1834 he applied for and settled upon a part of the league sued for, claiming the same as his head-right, taking, and ever since holding, possession of the same adversely to all persons; that, in 1838, he caused the same to be surveyed, by virtue of his head-right of one-third of a league; that his head-right certificate, under which the survey was made, was issued to him by the board of land commissioners of Colorado county, on the_____day of _______, 1838, and was duly recommended as genuine by the traveling board; that the said certificate is legal and genuine, and the field-notes of said survey were duly recorded and returned to the general land office before 1852; that he has occupied, used, cultivated, enjoyed, and held said third of a league adversely, from the year 1834 up to the present time, openly, and with marked and defined boundaries, in virtue of his head-right aforesaid. He further pleaded the limitations of three and ten years, etc.

The case came to trial at the fall term, 1857. After the parties announced themselves ready for trial, the defendants, by leave of court, amended their answers, and disclaimed as to all of the league sued for, except the two-thirds comprised within their head-right surveys.

The plaintiffs read in evidence the grant to Ephraim White head, dated November 14, 1831, and proved that he arrived in Texas in that year, and was engaged in merchandisinn in Goliad, and that part of his family remained in New Orleans and part came to Texas. One witness stated that Ephriam Whitehead lived in Texas two or three years. It was proved that he died at New Orleans, where he had lived for many years previous to his death, and that the plaintiffs were his children and heirs. By John Toliver, who was in 1838 the county surveyor of Colorado county, the limits of which then comprised the land in controversy, the plaintiffs proved that the grant to Ephraim Whitehead and its location were well and generally known; that a deputy of witness made the surveys for M. B. and S. T. Foley, in 1838, under their head-right certificates; and the locations and surveys were made on the Whitehead...