Whitehead v. Foley

• Decision Date: 31 October 1866
• Citation: 28 Tex. 268
• Parties: GEORGE W. WHITEHEAD ET AL. v. MASON B. FOLEY ET AL.
• Court: Texas Supreme Court

28 Tex. 268

GEORGE W. WHITEHEAD ET AL.

v.MASON B. FOLEY ET AL.

Supreme Court of Texas.

October, 1866.

BY WHEELER, C. J.

The distinction between a seizin in deed and a seizin in law, or a freehold in deed and a freehold in law, cannot be said to obtain generally in this country.

It is the generally received American doctrine, that a conveyance by deed, a descent cast upon the heir, or a grant by letters patent from the government, carries the legal seizin, and gives a constructive possession to the grantee.

A conveyance of wild or vacant lands gives a constructive seizin thereof in deed to the grantee, and attaches to him all the legal remedies incident to the estate.

Generally in this country, certainly in this state, seizin means merely ownership, and the distinction between seizin in deed and in law is not known in practice.

The right thus drawing to it the legal seizin and possession of the owner, per se, he thus remains possessed until disseized by possession taken and held adversely by another.

From this doctrine, that the owner is deemed to be in actual possession, though neither he nor any one under him be actually residing on or occupying the land, it results that the owner is disseized or dispossessed by an adverse possession only to the extent and within the limits of the possession taken and held adversely.

There is a generally recognized, obvious, and important distinction between possession taken by a mere naked disseizer or intruder, that is, one who enters without claim or color of title, and a possession taken by a person under a colorable title: it is, that the possession of the former is confined to the land actually in occupation, whereas the possession of the latter is construed to be co-extensive with the boundaries described in the deed or muniment of title under which he claims.

The defendants claim under a survey made upon an unrecommended certificate, which is denounced by the law as illegal and void. Pas. Dig. arts. 1861, 1862.

The certificate not having been approved, both certificate and survey are utterly void as to all purposes and all persons. 21 Tex.

Being nullities, the certificate and survey are to be deemed as nothing, for in law they have no validity or effect for any purpose whatever.

A nullity cannot serve as the basis of a claim of right, or give color of title, or relieve the defendants entering or holding under them from the character of mere naked disseizors, without claim or color of title.

The possession, to amount in law to a disseizin sufficient to bar the right of entry or confer a title, must be an actual occupation of such nature and notoriety as that the owner may be presumed to know that there is a possession of the land.

The occupation must be actual, visible, and notorious.

Actual, visible, and substantial inclosure is decisive proof of such disseizin, and also of the limits of it.

But there are many cases which hold that an inclosure is not essential to constitute an actual adverse possession.

Upon this subject the court instructed the jury, that if the defendants “had ten years' adverse, peaceable, and continued possession of the land in question, claiming by boundaries openly and notoriously marked and defined for the period of ten years,” find for the defendants. Under the facts this was erroneous. In this we think the court erred.

The actual possession could not be enlarged or extended beyond its actual limits by a mere verbal claim and marked line, however notorious, without something more on which to found a claim of right.

A constructive possession is an incident of ownership and results from title, and is in no way applicable to a case where the occupant defends himself avowedly and exclusively on the ground of his own wrong.

The person who has a warrant and survey has a legal seizin without actual entry, through the whole extent of his survey, and may support an action of trespass.

No man has a right to enter for the purpose of making an improvement on land appropriated by a prior survey. The person so entering is bound to take notice of the survey, and is in law a trespasser. Having entered without title or legal color of title, his possession is confined to his actual occupation, and cannot be extended by construction. The designation of his claim by marks on the ground is not an actual occupation, and consequently does not entitle him to the protection of the act of limitations. The seizin of the warranty is not divested by the marking of lines.

But there may be cases in which a jury might well presume an actual ouster, although the person who had the right was not excluded by inclosure or cultivation.

The defendant, F., claimed the protection of the five years' bar of the statute under a deed not properly authenticated for record as the deed of the wife whose estate it purports to convey. The official designation of the person before whom the acknowledgment of the wife was taken is wanting to his certificate. Pas. Dig. art. 1003, note 427. This might, perhaps, be supplied, so as to render the deed effectual to pass the estate by conveyance; but it would seem that it cannot be held to have been “duly registered,” within the meaning of the statute, as to the party whose estate it purports to convey. Hart. Dig. art. 2392; Pas. Dig. art. 4622.

A party who claims to have acquired a title to the land of another, with no other evidence of right than a possession of five years, under a deed recorded, ought to show a compliance with the terms prescribed by the statute perfect in every particular.

BY MOORE, C. J.--ON RECONSIDERATION.

It is the generally received American doctrine, that any valid conveyance of land transmits the legal seizin, and gives to the grantee constructive possession of the land to the extent of the boundaries defined in his title.

In this state seizin means simply ownership, and the distinction between seizin in deed and seizin in law is not known.

The legal title thus drawing to the owner the seizin and possession, he retains them until disseized by the actual possession being taken and held by another, from which it results that the owner is disseized or dispossessed by an adversary possessor only to the extent and within the limits of the possession taken and held adversely to him.

Though no invariable rule defining the acts which amount to a disseizin can be laid down, yet there is an important, obvious, and generally recognized distinction between a possession taken by a mere naked disseizor or intruder, who enters without color of title, and possession taken by a person under a colorable right. The possession of the former is confined to the land actually in his occupation, while that of the latter is construed to be co-extensive with the boundaries described in the deed or muniment of title under which he claims.

Unrecommended land certificates are denounced by statute (Hart. Dig. arts. 1950, 1983, 1984; Pas. Dig. arts. 1861, 1862) as illegal and void. Such a certificate and a survey thereon are nullities to all intents and purposes, they cannot serve as a basis of a claim of right, give color of title, or in any manner relieve parties entering or holding under them from the character of mere naked disseizors, without claim or color of right.

The possession of such a disseizor, in order to amount in law to a disseizin sufficient to confer title or bar the owner's right of entry, must be an actual occupation of such nature and notoriety as that the owner may be presumed to know that there is a possession of the land. The occupation must be actual, visible, and notorious. Actual and substantial inclosure is decisive proof of such a disseizin and also of the limits of it, but no general rule, determining in all cases what other acts will amount to it, can be laid down. Pas. Dig. arts. 4621, 4623.

But the mere marking of lines and claiming to the boundaries defined by them, without something on which to found a claim of right, will not amount to a disseizin of the owner, nor give a constructive possession which will support the plea of the statute of limitation to lands not in actual possession of the defendant.

Therefore, where defendants claimed a league of land under a survey on an unrecommended land certificate, it was error, upon their plea of limitation, to charge the jury in effect, that if the defendants had had ten years' adverse, peaceable, and continuous possession, claiming by boundaries openly and notoriously marked and defined for the period of ten years, they were entitled to a verdict co-extensive with the lines of the void survey under which they claimed, irrespective of the limits of their actual occupation and of the excess of their survey above six hunded and forty acres.

The certificate of acknowledgment to a deed is defective unless it disclose the official character of the officer by whom it was made, and upon an acknowledgment defective in this respect a deed cannot, it seems, be “duly registered,” so as to support the plea of five years' limitation.

A contingent fee in a suit for land is such an interest in the result of the suit as disqualifies the wife of the attorney holding it to testify in behalf of his client.

Where the ground upon which testimony was excluded by the court below is not shown in the bill of exceptions, this court does not feel called upon to review the ruling of the court below in excluding the evidence, unless injustice has manifestly been done.

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

In 1831 Mrs. Eleanor Leving, a widow, came with her son to Austin's colony, where for three years she resided in the family of Granville McNeil. She declared her intention to become a citizen of the country. On the 8th of December, 1831, she solicited and obtained a grant of a league of land from the proper authorities of Austin's colony. The grant was every way in due form. The land was situated upon the Navidad, and is...