Smith's Adm'rs v. de la Garza

Wheeler, J. It appears indisputably, by the evidence, that the defendants, and the deceased Garza, under whom they claimed, had been in the continued, undisputed possession, cultivating, using and enjoying the land in question, instead of ten, for a period of more than thirty years prior to the commencement of this suit, under a claim of title. It cannot be doubted, that this was sufficient, at least, to entitle them to the quantity of land adjudged to them in this case, under the provision of the 17th Section of the Statute of Limitations. (Hart. Dig. Art. 2393 ; Charle v. Saffold, 13 Tex. R. 111.) The objection that the defendant, having pleaded the title [156] of the deceased Garza, could not, at the same time, claim by prescription, in his own right, under the Statute of Limitations, is not tenable. He claimed to be rightfully possessed of the land in right of his wife, who was the sole heir of the first possessor. The plea and claim of title in the defendant by prescription under the Statute, was not inconsistent with his former plea. Nor did he preclude himself from claiming the benefit of the Statute, by asserting a right of possession in the double capacity of husband of the sole heir, and tenant of the administrator of the first possessor. It may not have been necessary for the defendant to state in whose right he was possessed of the land, to entitle him to the benefit of the provision of the 17th Section of the Statute. But his having done so cannot operate to his prejudice, inasmuch as the right he asserted was adverse to that of the plaintiff. There is nothing in the pleas which is repugnant, or inconsistent with the possessory right asserted as against the plaintiff. And if, as insisted, the jury disregarded the defendant’s evidence in support of his plea of title in the wife, and found solely upon the evidence of possession, thereby virtually denying the defendant’s right to the extent of their title which he set up, that surely is not matter of which the plaintiff can complain. But it -is insisted that, as the right of the Government is not barred by limitation, and the Statute, consequently could not commence to nun in favor of the defendant’s possession until the grant of the land by the Government to the plaintiff’s intestate, and it does not appear that the defendant was in possession at the date of the grant, or until the next year, his previous possession cannot avail him, and that time enough had not elapsed from the period of his return, in 1843, to bring him within the provision of the Statute. The patent to the plaintiff’s intestate bears date in February, 1842, more than ten years before the institution of this suit. The defendant, the husband, it is true, was temporarily absent during the troubles of 1842 ; but it is also in evidence (and if there was any con [157] flict in the testimony upon this point, it was a question for the jury, which their verdict must be held to have decided in favor of the defendants,) that the wife remained in possession during the absence of the husband. And it can scarcely be seriously contended, that a temporary absence by the husband from his home, his wife remaining, in the mean time, in the possession of it, will be such an interruption of the possession as to stop the running of the Statute ; especially when the claim set up by the husband is in right of his wife. There does not appear to have been any change of residence ; and there was no abandonment or interruption of possession. That was continued and peaceable, and does not appear to have been disputed until the commencement of this suit; which, as we have seen, was not within ten years from the date of the grant to the plaintiff’s intestate. And it is not questioned, that, though the right of the Government may not be barred by time, the Statute would commence to run from the date of the grant of the land by the Government, in favor of a possession adverse to the grantee. As there was evidence of a continued possession by the wife, it is not necessary to inquire whether a temporary absence at such a time, was of a character to interrupt possession and stop the running of the Statute. But again, it is said the judgment is erroneous, for that it is in favor of the wife, who was not a party to the record. It is' true, the land is adjudged to the wife; and in this, we think, there is no error. The husband claimed to be possessed in right of his wife ; and though she is not made a party to the record by the service of process, or by pleading in her own name, yet her right was asserted in the answer; and upon that, the issue must be considered as having been made. The decision of the issue in favor of the defendant established the right of the wife, and it is not perceived that the plaintiff can have cause of complaint that judgment was rendered accordingly. Whether the judgment would bind the wife, where her right is thus brought in question, is not material to the present inquiry. (Cannon v. [158] Hemphill, 7 Tex. R. 184.) The judgment was certainly binding as between the plaintiff and the husband, who was the party sued. And that the land was adjudged to the wife cannot affect injuriously any right of the plaintiff. It will not be denied that it was competent for the husband to assert and maintain or defend his possession in right of his wife. To the objection that the Court erred in refusing to set aside the survey, at the instance of the plaintiff, on the ground that it gave too large a front on the river, it is a sufficient answer, that it does not appear by any statement of facts, or otherwise by the record, that a less front could have been given so as to include the defendants improvements, and have due respect to the surveys of the proprietors of the adjacent lands. The view we have taken of the case dispenses with the necessity of revising the rulings of the Court upon the admissibility of the defendant’s evidence of title. We are of opinion that there is no error in the judgment, and it is affirmed. Judgment affirmed.