Wilson v. Daggett

• Decision Date: 20 June 1895
• Citation: 31 S.W. 618
• Parties: WILSON et al. v. DAGGETT et al.
• Court: Texas Supreme Court

Page 618

31 S.W. 618

WILSON et al. v. DAGGETT et al.

Supreme Court of Texas.

June 20, 1895.

Certified questions from court of civil appeals of Second supreme judicial district.

Action by W. L. Daggett and others against L. F. Wilson and others to recover certain land. From a judgment for plaintiffs, defendants appealed to the court of civil appeals.

F. E. Dycus and R. F. Arnold, for appellants. A. H. Carrigan, for appellees.

GAINES, C. J.

The court of civil appeals for the Second supreme judicial district has certified for our determination the following questions: "L. F. Wilson & Co., a firm composed of L. F. Wilson, M. B. Wilson, and W. E. McCrory, having acquired a deed as firm property to the land in controversy, sought to hold it under the five-years statute of limitation. When they took possession by tenant, they were nonresidents of the state of Texas, as well as before and since that time. Before taking such possession, each of them had been in the state for a short time temporarily on business; and, since taking possession, one of them, L. F. Wilson, has also been in the state from time to time, looking after his business here; but the evidence tends to show that neither of them was here when possession was taken, and no one of them has ever been a resident citizen of Texas. In view of some expressions of the opinion in Huff v. Crawford (Tex. Sup.) 30 S. W. 546, holding that article 3216 of the Revised Statutes¹ is applicable to actions for recovery of real estate, as well as in the case of Lynch v. Ortlieb (Tex. Sup.) 30 S. W. 545, and prior cases, we desire to know what construction that article should receive in its application to the above state of case; that is to say: (1) Is a person who has at all times been a nonresident of this state, but who was temporarily within the state before taking adverse possession of the land by tenant, though absent at that time and ever since, a person `without the limits of this state,' within the meaning of that article? (2) In case such nonresident person comes to this state for a temporary purpose only, after taking such possession, and remains here for a short time, is that a `return to the state,' within the meaning of that article? (3) What effect, if any, would the holding of the land as partnership property have upon the question?"

Opinion.

In Huff v. Crawford, 30 S. W. 546, and in Lynch v. Ortlieb, Id. 545 (decided at the present term), we held that the decision in Snoddy v. Cage, 5 Tex. 106, to the effect that in personal actions the absence from the state of one who had never been a resident here did not suspend the running of the statute of limitations, had become the settled law of the state, and that the rule applied as well to suits for land as to personal actions. We were driven to that ruling because the decision in that case had been repeatedly affirmed by this court, and because the statute had been reenacted without material change in its language after it had been so construed. That the provision applied to real actions was held, for the reason that we could find nothing either in the original act or in the Revised Statutes upon the subject to countenance the theory that suits for land were to be excepted from its operation. As was said in Lynch v. Ortlieb, referred to above, the construction placed upon the statute in question in Snoddy v. Cage, supra, is in conflict with that given to similar statutes in other states; and it would seem that the eminent judges who concurred in the majority opinion in that case looked only to actions of debt, and did not apprehend the difficulties that arise when we come to apply it to suits for land. In Ayres v. Henderson, 9 Tex. 539, it was held that the statute was suspended by the departure of one who, while residing in the state, had contracted a debt here, and had subsequently removed to, and fixed his permanent residence in, another state. The court say: "But the object of the section was for the protection of domestic creditors. It was to their advantage that their debtors should remain within the limits of the state; and it was intended to protect them from the inconvenience and loss...