Robertson v. Wood

Wheeler, J. The principal question arising upon the record, to which counsel have directed their attention in argument, is as to the running of the Statute of Limitations in favor of the defendant’s possession. The opinion of this Court in the case of Browning v. Estis, is relied on by the appellee, as supporting the instructions and ruling of the Court adversely to the defence of the Statute. It unquestionably is, as there stated, “ a settled principle of law, that a possession of land, taken under an executory contract for the purchase thereof, is in no sense adverse to the person with whom the contract is made.” (3 Tex. R. 476.) But this is only where the contract is executory; and to this rule, it was said, there are exceptions ; as where the whole of the purchase money has been paid, and the stipulations on the part of the vendee performed. In this and other cases which may be supposed, his possession may be adverse. (Ib.) [5] But the question here, is whether the possession of the vendee, holding under an executed conveyance from the purchaser in the executory contract, and openly and notoriously asserting absolute proprietorship in himself, under his conveyance, within the knowledge of the original vendor, is adverse to the title of the latter. And this, it is conceived, is a question which it will not be difficult to answer, upon principle and authority. The purchaser, in an executory contract for the sale of lands is the trustee of his vendor; and while he sustains this relation, his possession is not adverse, and the Statute of Limitations does not run in his favor. But even an express trust may be determined by the act of the trustee. And this will occur whenever he denies the right of the cestui que trust, and assumes absolute ownership of the property he holds in trust, adversely to and within the knowledge of the cestui que trust. There can be no stronger case put, of an express, continuing trust, than that which subsists in the relation of landlord and tenant. “ The principle of estoppel applies to that relation, and operates in its full force to prevent the tenant from violating that contract by which he obtained and holds possession.” (3 Pet. R. 47.) He cannot change the character of the tenure by his own act merely, while the relation subsists, so as to enable him to hold against his landlord. Yet, by his own act, he can put an end to the relation. If he disclaims to hold under his lease, he becomes a trespasser, and his possession is adverse. When he publicly disclaims his landlord’s title and professes to hold under a title hostile to that of his landlord, the trust relation is determined, and the Statute of Limitations will begin to run from the time of such disclaimer. (Ib., and see, Turner v. Smith, 11 Tex. R. 620, and cases cited.) Here the possession was taken and held by the defendant, under an executed contract, conveying absolutely the fee ; and was accompanied by an assertion of right, and a claim of absolute proprietorship, openly and notoriously, and within the actual knowledge of Clark, under whom the plaintiff claims. [6] If this did not put an end to the trust relation created by the executory contract of purchase; if the possession thus held was not adverse to the plaintiff’s title, it would be difficult to conceive of anything which would put an end to that relation and render the possession of the tenant adverse. “ If,” (says the Supreme Court of the U. S., in Boone v. Chiles, 10 Pet. R. 223,) “ the entry was by purchase, and the purchaser claims the land in fee, he is not a trustee ; his title, though derivative from, and consistent with the original title of the plaintiffs, is a present claim in exclusion of and adverse to it. A vendee in fee, derives his title from the vendor ; but his title, though derivative, is adverse to that of the vendor ; he enters and holds for himself.” The vendee acquires the property for himself, and his faith is not pledged to maintain the title of the vendor. This principle, it is conceived, is decisive as to the adverse character of the possession taken and held by the defendant under the executed absolute conveyance to himself, as the vendee in fee of the lot in controversy. The case of Houston v. Parsons (2 Bailey, S. C., R. 59,) is in point. There, where A, having contracted to purchase lands of B, paid part of the purchase money, but titles were never made, and A gave the land to his son C, who went into possession ; the possession of the latter, it was held, was adverse both as to A andB. It is to be observed as to the plaintiff’s case, moreover, that his vendor does not appear ever to have acquired a title to the land in controversy, from the government. And a forfeiture of such right as he had acquired, was prevented by the payment of the residue remaining unpaid, of the, original purchase money, by the defendant; not for the benefit of the plaintiff’s vendor, but for his own benefit, to enable him to maintain his claim of absolute and exclusive proprietorship. That the possession, acquired and held by him, was, under the circumstances, adverse to the' title set up by the plaintiff, seems too clear to admit of controversy. It was continued for a period of more than five, and indeed of ten years, next before the [7] commencement of the suit, under deeds of conveyance, duly registered, the defendant paying the taxes upon the lot. The right of action, therefore, was clearly barred by the provision of the 16th Section of the Statute of Limitations. (Hart. Dig., Art. 2392,) As the Statute must be decisive of the case, it is unnecessary to discuss the other questions presented. We are of opinion that the Court erred in the instruction and rulings adversely to the defendant, as to the running of the Statute of Limitations ; for which the judgment must be reversed and the cause remanded. Reversed and remanded.