Cauble v. Halbert

DUNKLIN, J. C. P. Halbert recovered a judgment against C. M. Cauble for 30 acres of land, and the defendant, Cauble, has appealed. The record shows that the land is included in deeds of conveyance under, and through which the plaintiff claimed title, and was not included in any deed under or through which the defendant claimed title. But the defendant in his pleadings claimed title to the land by limitation, and that is the only issue presented by him for determination on this appeal, the only assignment of error presented reading as follows: “Because the court qrred in not instructing the jury to render a verdict in this case in [408] favor of the defendant, for the reason that all of the evidence shows that he and those under whom he claims have been in the peaceable and adverse possession of the>same for more than 25 years.” Article 5684a, 1922 Supp. Rev. Statutes, which was enacted by the Thirty-Sixth Legislature at its Second Galled Session, as shown in chapter 55, § 2, Acts of 1919, reads as follows: “On and after the first day of November A. D. 1920, a person who has had, and held the peaceable and adverse possession of lands, tenements and hereditaments, the title to which has passed out of the state, using and enjoying the same under deed or deeds duly recorded constituting a regular chain of title for a period of twenty-five years immediately preceding shall have a good marketable title thereto.” Title by limitation under that article of the statute was specifically pleaded by the appellant in his answer. The undisputed evidence shows that the land in controversy is included in the south 200 acres of survey No. 1193, patented to the Texas Immigration Obmpany, and that, according to the deed records, legal title to that 200 acres is vested in the plaintiff, Halbert. The proof also shows that the 200 acres so owned by the plaintiff adjoined what is known as the Shirley pasture. The Shirley pasture was formerly owned by J. A. Matthews, and was fenced by him in 1884 or 1885, at which time the land in controversy was included in the inclosure so fenced. Matthews so held possession until the year 1902 when he sold to the defendant Oauble the lands inclosed in that pasture to which he held deeds, and Oauble has held possession of the land so conveyed and also the 30 acres continuously from the date of his purchase in controversy up to the date this suit was instituted, which was September 17, 1921. The case was submitted to a jury on special issues, which issues, together with findings thereon, are as follows: “1. Did the defendant have peaceable and adverse possession of the land in controversy continuously for 10 years next preceding September 20, 1921? Ans. No. “2. Did the inclosure of defendant- in which the land in controversy is located, contain less than 5,000 acres continuously for 10 years next preceding September 20, 1921? Ans. No. “3. Did the defendant and J. A. Matthews have peaceable and adverse possession of the land in controversy continuously for 25 years next preceding September 20, 1921? Ans. No.” The testimony introduced was sufficient to support the jury’s findings that neither the possession of the defendant nor that of Matthews, through whom the defendant claimed, was adverse to the plaintiff’s claim of title. Matthews himself was introduced as a witness, and expressly testified to that effect. While, according to the testimony of the defendant, his possession was adverse, yet, according to the testimony of other witnesses, he made declarations during such possession clearly indicating that he did not claim title to the land while it was in his inclosure. Furthermore, the statute of limitation of 25 years, which is the only statute of limitation invoked by appellant on this appeal, has no application, because of the fact the land in controversy was not included in any deed of conveyance under wljich appellant claimed title.- In other words, a record title to land in one claiming the benefits of .that statute is a necessary prerequisite to sustain such claim. Accordingly appellant’s assignment of error is overruled, and the judgment is affirmed.