Ayres Moody v. B. L. Holcomb and Eugenia Holcomb, 26 Tex. 714

Moore, Jf. It must he held, under the authority of the case of Smith v. Montes, 11 Tex., 24, that the court erred in sustaining defendants’ exceptions to the plaintiff's petition. In that case, it is said that a party who has held adverse possession of lands for the period prescribed by the statute of limitations, may maintain an action, founded on the title acquired thereby, to be quieted in the possession and to remove clouds from his title thus acquired.We see no reason to question the soundness of - this decision. The seventeenth

section of the statute of limitations, in express terms, declares that ten years peaceable possession, under the circumstances therein set forth, shall give to the possessor full property precursive Of all other claims, except such as are protected by said

section of the statute. It is immaterial what may be the nature Or character of evidence by which a party’s title to his property may he established. Naked possession for the length of time, and With the incidents enumerated in the statute, invests a party with a title or right to his land as fully and completely as it could he done by a deed or patent. Why then should not the courts as willingly and readily grant their aid in relieving a title of this character from doubt or embarrassment as any other, or interpose to protect the owner from the danger of future injury?

The very' nature of the title, and the evidence by which it must be established, would seem to justify the owner in invoking the aid of the court. It is said, that the defendants have not disturbed the plaintiff in his possession or title, and that he has therefore no cause of action against them. But our courts have always held that the owner of land may invoke the aid of the court to remove a, cloud created by an adversary title, although the adverse title had not been used to disturb him.

And it is a matter of every day practice for tho owner of ladd to bring an action of trespass to try title, although the defendant is neither in the actual possession of it, nor attempting to take it, but merely has an adverse paper title. The legal effect and object of such suits are solely to establish tho plaintiff’s and conclude tho defendant’s title by the judgment. And such cases do not seem to differ materially from suits to remove a cloud and quiet the plaintiff’s title.

It could hardly be doubted, we suppose, that the plaintiff might have instituted an action of trespass to try title; and if his testimony showed that he had acquired a title -by reason of his possession, that he would have been entitled to a judgment. We see no reason why he should not do so, where the suit, though in a different form, is substantially for the same purpose. Though, in such cases, the more appropriate remedy, perhaps, to which a party should resort, .Would be an action to perpetuate and establish his evidence of title.

It is urged, if this suit can be maintained, that a party may be taxed with the cost simply because he has permitted a wrong doer and trespasser to remain upon his land until he has acquired a title by possession. And is it not enough, it is asked, that the owner has lost his land, without taxing him with the cost of defending a suit? But if the statute gives «the party a title from the length «of his possession, it precludes us from regarding him as a wrong •doer or trespasser, when asserting any right,under it, that an owner of land by any other character of title might do.

Nor does it follow that the defendant in such cases would be taxed with the nosts^, If he did not wish to contest the plaintiff’s right, he could and should disclaim, and in that event of course the costs would not be adjudged against him; and even if he did not do so, the court, in such cases, can exercise its discretion with reference to the costs. The judgment is reversed and the cause remanded, Reversed and remanded.