Ross v. Early

Walker, J. This is an action of trespass to try title, involving some rather novel features ; but the record presents but a single point for our decision, viz., did the District Court err in ruling out the plea of two years limitation ? Early, the appellee, deraigns his title through a patent directly granted to himself. Ross and his co-defendants set up that they were the owners of the certificate on which the survey was made and patent issued, and they also plead the two years statute of limitations. By reference to the facts, it would appear that the patent issued to Early on the eleventh of August, 1860, as the assignee of Toby scrip So. 211. The plaintiffs in error claim to hold the land under a [392] deed from John Carter, who purchased the scrip from David Thomas, for a valuable consideration paid, in 1857. They allege that Thomas was the owner of the scrip, had full right and power to sell it, and that Carter purchased in good faith. They aver that Thomas’ sale of the scrip to Carter was with the knowledge and consent of Early, the defendant in error; and also that he affirmed and ratified Thomas’ sale. On all these issues, except the statutes of limitation (Art. 4604, Pas. Dig.), the jury found for the defendant in error. Notwithstanding the case of Smithwick v. Andrews, 24 Texas, 488, we do doubt the applicability of a defense ■under this statute, in a suit to try title to land. Certainly ■the statute referred to has no reference to any limitation .of actions involving land titles. But the scrip which Thomas attempted to sell to Carter was a chattel, and if it had never merged in the realty would be treated as a chattel, and an action for its wrongful conversion must necessarily be brought within the two years. But according to the facts in this case the scrip was merged in the realty before two years had expired from its sale, and this is certainly not an action in the nature of an actioh of trover; it is not an action concerning a chattel—it is an action to recover the possession of real estate, and we are of opinion the court properly ruled out the plea in this case. It is totally unlike the case of Smithwick v. Andrews. In that case the transaction was between the original parties. The action was brought to recover the certificate, or damages for its wrongful conversion. The party to whom the certificate was issued was charged with obtaining it fraudulently and wrongfully converting it. The opposing party knew that the certifi [393] •cate had been issued to Smithwick, while it of right belonged to Andrews, and Smithwick had acknowledged the right of Andrews to the certificate. But this suit had no reference to land, but to the certificate, which was itself a chattel, and the plea of two years limitation might be properly interposed to an action for its wrongful conversion. But we think the principle has no application to this case; here the scrip was merged in the land before the two years had expired, and this is an action for the recovery of the land and not the scrip. We are of opinion the court properly ruled out the plea, and the judgment is therefore affirmed. Affirmed.