Wilson v. Palmer

• Decision Date: 01 January 1857
• Citation: Wilson v. Palmer, 18 Tex. 592 (Tex. 1857)
• Parties: BENJAMIN S. WILSON v. THOMAS E. PALMER.
• Court: Texas Supreme Court

18 Tex. 592

BENJAMIN S. WILSON

v.THOMAS E. PALMER.

Supreme Court of Texas.

1857.

It appears now to be a well established principle, though once doubted, that a prior occupancy is sufficient title (to recover in ejectment) against a wrongdoer; but the evidence must show a continuous possession, or at least must show that it was not abandoned, to entitle a plaintiff to recover merely by virtue of such possession.

Where the defendant in execution brings suit to recover land sold under such execution, against a purchaser or the vendee of a purchaser at such execution sale, and the defendant either offers in evidence the sheriff's deed, or gives notice that he will offer it on his behalf, the plaintiff is not required to do more (in the first instance) than to show that his right to the land did not pass from him by such sale, notwithstanding the defendant may have pleaded the general issue.

Three years adverse possession under a sheriff's deed, will not bar the right of the defendant in execution to recover the land, upon proof that the judgment under which the sale was made, was a nullity.

Error from Walker. Tried below before the Hon. Peter W. Gray.

This suit was commenced on the 13th of October, 1856. The petition alleged the title of the land in plaintiff, his ouster by the defendant, and prayed judgment for the land and general relief. The petition was not indorsed as in cases of trespass to try title. The answer of defendant was as follows: Now comes the defendant, and, for answer, says he is not guilty of the trespass in plaintiff's petition mentioned.

And for further answer defendant says that he has been in possession under color of title adversely and against all the world, of the premises sued for, for more than three years next before the commencement of this action, holding the same fairly and honestly in his own right; and so he says that the plaintiff is barred by the statute of three years.

And for further answer defendant says, that he and those under whom he holds, have had five years peaceable and adverse possession of said premises, using and enjoying the same and paying taxes thereon and claiming the same by deed, duly registered, and so he says the plaintiff is barred by the statute of limitation of five years.

And defendant suggests and says, that he has, in good faith, made permanent and valuable improvements, etc.

The notice of the filing of the deed was as follows: Thomas E. Palmer v. B. S. Wilson. 1. A deed from John F. Vaun, sheriff of Walker county, Texas, to D. J. Ransom, dated 1st of April, 1851. 2. Deed from D. J. Ransom to B. S. Wilson, dated 1st of January, 1853. ____ A. P. Wiley, attorney for plaintiff in this cause, will take notice that the deeds mentioned above will be offered in evidence in the above entitled cause, in behalf of defendant, and that they are this day filed in said cause. (Signed by defendant's attorney, and service acknowledged by Wiley.) The return of the sheriff on the citation from the justice's court was as follows: Came to hand 30th January, 1851, and same day ordered the within published as directed, by filing a copy with the editor. (Signature of sheriff.) The justice's record did not otherwise show or recite that the defendant had been duly cited. The citation directed the sheriff to publish it in the Texas Presbyterian, a newspaper published at Huntsville, in said county.

The sheriff's deed was recorded September 27th, 1856. The deed from Ransom to plaintiff was recorded on the 8th of January, 1853, upon the oath of one of the subscribed witnesses, “that he saw D. J. Ransom, subscribe and execute the same for the purposes and upon the consideration therein mentioned.” It was afterwards acknowledged by Ransom on the 30th of October, 1856, and recorded again same day.

The other facts are stated fully enough in the opinion.

S. M. Branch, for plaintiff in error, cited Hughes v. Lane, 6 Tex. 289;Simpson v. McLemore, 8 Id. 448.A. P. Wiley, for defendant in error, cited 2 Saunders, 112; 10 Tex. 139;3 Johns. 383;7 Tex. 483;17 Id. 447.

HEMPHILL, CH. J.

This is an action to try the title to a portion of a town lot in the town of Huntsville. The petition is in the usual form as to possession by plaintiff Palmer, and ejectment by the defendant Wilson. The defendant pleaded not guilty; that he had been in adverse possession under color of title for three years, and also for five years under deeds duly registered. On the day that he filed his answer, he also filed two deeds in the cause, and gave notice to the plaintiff's attorney that the deeds would be offered on his (the defendant's) behalf. One of the deeds was from the sheriff of Walker county to D. J. Ransom, dated April 1st, 1851, and the other from Ransom to Wilson, the defendant, dated 1st January, 1853. At the trial, these two deeds were read in evidence by the plaintiff, without objection on the part of the defendant. The deed from the sheriff to Ransom recited a recovery of a a judgment by Ransom against Palmer before Wm. C. Rogers, a justice of the peace; the levy of the execution upon the lot in question; the public sale by the sheriff; the purchase by Ransom; and it conveyed all the right and title of Palmer in the said lot to Ransom, the purchaser. The second deed was a conveyance of the lot by Ransom to Wilson. The plaintiff also gave in evidence without objection, a transcript of the proceedings in the suit before the justice of the peace, and proved that Palmer, previously to going to California, had built and worked in a carpenter-shop, upon the lot. There was no one in possession when the property was sold by the sheriff....