John F. Mosely v. John W. Withie, 26 Tex. 720

Moore, J. It is a matter of some doubt whether it was intended by the answer of the defendant below, to which the exceptions were sustained by the court, to set up a defence under the 14th or 17th sections' of the statute of limitations, or to charge from the length of time that the plaintiff had delayed the prosecution of his suit, that it was to be regarded as a stale demand. It is evident, however, in whatever light it is viewed, that there ayus no error in the ruling of the court Avith reference to it, of which the plaintiff in error can complain.

It is unnecessary to enquire, if it was so intended, whether the answer Avas good as a plea of the want of entry by the plaintiff within ten years next before the commencement of the suit, or of title in defendant by reason of his adverse possession for ten years. The testimony in the case conclusively shows that the defendant had not held even five years continuous possession of the land before the commencement of the suit, if his possession is to be regarded as adverse to his co-tenant. And the doctrine of stale demands, certainly has no application to such a case as the present.

If the plaintiff below was suing to enforce his equitable title, against a party holding the legal title, or to have the legal title decreed to him, this defence might probably be appropriately relied upon. But in the present case, the plaintiff below seeks to obtain partition, and to recover his share of the land from a party who claims and holds directly through and under him.

It certainly'cannot be said, that such a title is stale, when it is not alleged or pretended that it has been repudiated, or that an adverse claim to it has been brought to his-knowledge for a sufficient length of time to bar a recovery even under the shorter terms of the statute of limitations. The answer, however, tested by the rules of pleadings, is, also, believed to be wholly defective, and failed to present any valid defence to the plaintiff’s cause of action.

Nor did the court err in sustaining the exceptions to that part of the answer, relying upon the suit by Ball against the surveyor Hill, and Durham’s declarations in respect to it, that he employed counsel to defend ‘said suit, and paid the expenses of surveying the land, and procuring the patent; all of which, it was alleged, was inconsistent with Withie’s title. If, in fact, Durham repudiated his title, and set up an exclusive claim to the land, a knowledge of it was not brought home to Withie: but if it had been, as there was no adverse possession of the land, it could not have affected his interest.

The court for the same reasons properly excluded the testimony offered to establish a claim of exclusive title by Durham. The verdict of the jury, with reference to the plea of limitations of five years, was well sustained by the testimony. The •evidence was wholly insufficient to have supported a different verdict.

Possession of the land was not taken until during the year 1851; it was abandoned in 1853, when the shanty and slaughter-pen, which were the only improvements upon it, were removed; and it remained unoccupied until the fall of 1854, when Snively built a cabin and enclosed a small field upon ten acres of it, which he had contracted to purchase from Mosely. If there had not been a previous abandonment of the possession, the entry and subsequent holding of Snively would not have enured to the benefit of Mosely in respect to the other part of the land. (See Cunningham v.

Frantzen, ante.) With reference to the facts of the case, the charge of the court upon the law of limitations, was correct and sufficiently full. If the charge asked by the defendant below, was otherwise unexceptionable, it was unnecessary, and calculated to have misled the jury. It wa§ inapplicable, and uncalled for by the facts, and was properly refused by the court. The testimony did not show that the defendant had at any time used the land to get timber.

The most favorable view of it for him, is, that on several occasions he authorized different persons to get timber from the land, but it was not shown that they ever did so. There is no error in the judgment, and it is affirmed. Judgment affirmed.