A. Cunningham v. E. Frandtzen, and Others, 26 Tex. 34

Roberts, J.

The appellant asked the court to charge the jury that “aparty claiming a tract of land, and placing a tenant in possession of the same upon improvements, afterwards sells a portion of the tract, including the improvements, to the tenant, who remains in possession of the tract sold, ceases to be the tenant in-possession of the remainder, and it is in law a voluntary abandonment of possession of the balance of the tract by the claimant; and it matters not whether that abandonment be- for a day, or for years, the statute ceases to run in his-favor.” This charge was refused by the court, and its- refusal is assigned as error.

It was pertinent to the facts in proof; and in reference to the facts it could not have misled the jury, whether or not in every state of facts it might be literally correct. Some such charge was necessary, as that must have been the turning point in the case, and none was given.

It is well settled that a party in possession, with improvements and enclosure, holds to the extent of his enclosure by what is termed actual possession ; and if at the same time he holds under deed or title, he holds to the extent of the boundaries of his deed or title, outside of his actual possession, by what is termed constructive possession. The constructive is dependent upon the actual possession, and must continue or fail with it.

If such party sell a part of his tract, including the improvements, which constituted his actual possession, by a deed to a purchaser, with defined limits less than the whole tract, and the purchaser take possession under his deed, his possession, either actual or constructive, extends no further than his deed, and therefore he, the purchaser, is himself not in possession of the whole tract of his vendor.

And the vendor, having parted with that which gave him actual possession of part, loses the constructive possession of the balance, he not taking actual possession of any other part at the §ame time. (5 Peters’ U. S. Rep., 353-4, and also 447.) This charge is predicated upon the fact, that Erandtzen was put in possession of the improvements as1 purchaser of a part of the tract which included them. His possession was connected with Hays, and constituted a bar under the three years limitation.

As to Burg, it is shown that he lived on the land the year previous to the sale to Erandtzen; that he never left the land, but lived in one of the Mormon houses until he -built a cabin on the tract bought by him. It does not appear that this Mormon house was not on the land bought by Erandtzen, nor- whether he built his cabin and took possession of his own land before or after Frandtzen took possession. A party pleading the statute of limitations assumes the burden of proof, and if it is not shown that he comes within its provisions, he cannot defend under it.

It was therefore incumbent on Burg to show further, that the Mormon house which he occupied continued to belong to Hays as long as he lived in it, holding under Hays; or that he took possession of his tract before Frandtzen bought and took possession of the tract including the improvement. Not having done either, he has failed to make out his defence under the plea of limitation. As to the other defendants, it is shown that they went into possession after Frandtzen, and, therefore, they have failed to make out their defence under the plea of limitation.

As to Frandtzen, the judgment must be affirmed, and as to the other defendants, reversed and remanded. The question as to whether Hay’s possession for three years by his tenants and agents, under color of title, extinguishes the right of Cunningham altogether, and confers such a right on Hays as that defendants can thereby defeat this action, although the possession has not been made out continuously up to the time of bringing the suit, does not properly arise in this case.

The manner of pleading the statute of limitations shows that the defendants relied on their own possession as connected with that of Hays, and not upon that .of Hays for three years disconnected from their own. The charges "of the court are shaped with reference to that construction of the plea; and so the verdict of the jury embraces it in its general finding for the defendants.

Therefore, although the evidence may show that Hays had possession for three years, under color of title at some time, though not immediately before suit brought; and although that should be held to extinguish Cunningham’s title and confer title on Hays, still that issue not being made by the pleadings and found by the verdict, the judgment cannot be sustained for defendants on that ground.

A defence of the statute of limitations is required to be specially pleaded, and, therefore, if defendants had relied upon title in Hays by his three years possession, under color of title, disconnected from their own possession, they should have pleaded it in that form so as to have given notice of it. (O. & W. Dig., Art. 1361.) Whether three years possession, under color of title, is available as a title after the lapse of that period, although afterwards the possession is lost, or not kept up continuously, may be regarded as not having been authoritatively settled in this State.

In one case it seems to be taken for granted that it would,confer title. (Scott v. Rhea, 5 Tex. R., 260.) In another case it was held as to personal property that possession during the period of limitation would confer title, enabling such possessor to recover it. from the original owner who had gotten possession of it, and remarks are made in the opinion from which it might be inferred that it might be different as to real property. (Winburn’s Ex. v. Cochran, 9 Tex.

R., 123.) In fixing the different periods of limitation in our statute, the Legislature regulated the force and effect to be given to adverse possession of land by the degree of merits in the title under which it was held and claimed, requiring the longer possession in proportion to the weakness of the title. Under title, or color of title, three years only was required, while under recorded deed, payment of taxes, cultivation, &c., five years was required, and without title or i deed, ten years was required.

In the sections prescribing the five and ten years, it is expressly provided for conferring title on the possessor, hut not so in the

section prescribing three years. In that, however, it is provided that “ the right of the government shall not be barred.” From this it may be inferred that it was contemplated that such possession would bar and extinguish the superior right of others, but not that of the government. And the reason why the expression that it should confer title is omitted in this section, may be because the possession must have been under title, or color of title from or under the sovereignty of the soil. It need not be the best title, still it must be a title.

And if it be the inferior title, three years possession underdt should simply establish it as the superior title from thenceforth. If it should be held that three years possession under color of title, does not extinguish a superior title in some one else not in possession, the incongruity would follow, .that nine years possession under title would have less force and effect than five years under a mere recorded deed, or ten years without any title at all.

More than that, a possession of a league of land might be continued for fifty years under color of title, and upon the possession being discontinued from any cause, a superior title might be asserted, which had lain dormant during all that time, and the possessor for the fifty years would hold six hundred and forty acres under the ten years limitation, without title, and lose all the balance, notwithstanding its possession under color of title for fifty years.

This would result in not giving effect to possession in proportion to the merits or demerits of thé title under which it was held; which, it is thought, must have been the design of the Legislature. On the other hand, this 15th

Section of the statute so pointedly and repeatedly refers to the “person in possession,” as the one entitled to make the defence of three years possession under title, or color of title, as to make it plausible that the Legislature intended for it to be available as a defence to one only who might be in possession when suit should be brought. This certainly is its literal import. To contravene this conclusion, an effect must he given to three years possession under title, or color of title, as a result, beyond what is expressed in the

section prescribing it as a bar. Such is the case with statutes of limitation relating to the possession of personal property, where it is held as a result of the operation of the statute, that it not only bars the remedy but extinguishes the title of the former owner, and confers title on the possessor for-the period of limitation. (9 Tex. Rep., 123; 5 Litt., 282, 437; 3 Hen. & Munf., 37, 55; 5 Cranch, 358.) Such statutes generally relate to the remedy, and do not express that the title shall be extinguished. Therefore it is that its extinguishment is a result of the operation of the statute not expressed in it.

Such resulting effect has also been given to statutes of limitation relating to actions for realty, although not expressed in the statute; so that both in England and America it has been generally held, that adverse possession of land during the period of limitation confers title on such possessor: and that upon such title, thua acquired, he could recover the land from any one who might afterwards have possession adverse to him. The only thing found militating against the proposition, is an occasional expression that the effect of the statute of limitations is to bar the remedy—not to destroy the right.

The following authorities may be referred to on the subject: 1 Blackstone’s Rep., 675-8; 2 Green. Cruise, 230-7; 3 Johns. Rep., 269; 16 Johns. Rep., 314; 3 Black. Com., 196; 2 do., 264; 9 B. Monroe, 498; 4 Dana, 483; 3 Marshall, 951; Marg. p. 28; 5 Peters’ U. S. R., 438; Angell on Lim., 14, 458, 460, and Appendix, xv., xxvi. & xxx. The phraseology of this 15th

section of our statute of limitations is different from that used generally in the statutes of litiiitation elsewhere. And the question is, whether it is so much different as to require a different effect to be given to its operation. This is not presented in the issue, and therefore a definite opinion is not given upon it. Judgment affirmed as to Frandtzen, and reversed and remanded as to the rest of the defendants.