John C. Hays and Samuel Calvert v. Augustine Barrera and wife, Adm'rs of J. M. Salinas, Dec'D, 26 Tex. 78

Roberts, J. The alleged errors in the charge- upon the plea in abatement are immaterial, because the plea was itself entirely defective. The petition showed- that the land sued for was granted to Salinas by the government, and the administrators of his estate Were bringing this suit for its recovery. It was therefore immarterial whether his heirs, for whose benefit the suit may have been brought, were aliens, resident in Mexico, or not. (White v. Sabariego, 23 Tex. R., 243.) The plea in abatement states what might be a good plea if it did not appear in the petition that the land sued for was granted to Salinas.

A plea to be good must be shaped so as to constitute an answer to the material facts alleged in the petition. (Id., 246.) The court did not err in rejecting the record of the judgment and sale of the land in the case of Vann v. Salinas, offered by appellants to make out a title. The petition in that case shows that both plaintiff and defendant were non-residents, and the only service was by publication, and no attachment was taken out. The attachment law of 1839 was then in force, and provided an ample remedy for the case where plaintiff and defendant were nonresidents.

The mode of obtaining service in that ■ suit did not comply with that law, nor did it conform to the practice under the Chambers’ decree. No statute then authorized publication upon such a proceeding, and a plain remedy by attachment was open to the plaintiff. The judgment was therefore upon its face a nullity, and the court was correct in so treating it and excluding it from the jury. The court did not err in qualifying the charge asked by appellants.

The charge asked was, “ that the possession of Hays was uninterrupted until suit brought by the plaintiffs,” which was qualified by adding, “ only so far as a possession by plaintiffs might cut down or limit his right to recover to the bounds of his improvements or actual possession.” This was excepted to and assigned as error. Although it was shown that Hays had been in possession, by his tenant, under his deed, five years before the institution of the suit, it was also shown that before the expiration of such five years possession, appellees took and held possession through their tenant.

In the case of Lessee of Clark et al. v. Courtney et al., the Supreme Court of the United States held, that “ where a person enters into land under a deed or title, his possession is construed to be co-extensive with his deed or title; and although the deed or title may turn out to be defective or void, yet the true owner will be deemed to be disseized to the extent of the boundaries of such deed or title. This, however, is subject to some qualification.

For, if the true owner be at the same time in possession of a part of the land, claiming title to the whole, then his seizure by construction of law extends to all the land, which is not in the actual possession and occupancy, by enclosure or otherwise, of the party so claiming under a defective deed or title.” (5 Peters’ U. S. R., 353.) This will suffice to sustain the correctness of the charge as qualified. There being no error, the judgment is affirmed. Judgment affirmed.