George W. Whitehead et al. v. Mason B. Foley et al., 28 Tex. 268

—On reconsideration. Wheeler, C. J. —The distinction between a seizin in deed and a seizin in law, or a freehold in deed and a freehold in law, cannot be said to obtain generally in this country. It is the generally received American doctrine that a conveyance by deed, a descent cast rtpon the heir, or a grant by letters patent from the government, carries the legal seizin, and gives a constructive possession to the grantee. (Horton v. Crawford, 10 Tex., 388; Barr v.

Gratz, 4 Wheat., 213; 4 Mass., 546; 1 Mumf., 170; Ang. on Limit., § 394, et seq.) “We are entirely satisfied,” said the Supreme Court of the United States in Green v.

Liter, 8 Cranch, 229, “that a conveyance of wild or vacant lands gives a constructive seizin thereof in deed to the grantee, and attaches to him all the legal remedies incident to the estate.” (Per Story, J., Ib,) _ Generally in this country, certainly in this State, seizin means merely ownership, and the distinction between seizin in deed and in law is not known in practice. (4 Day, 305; 4 Mass., 489; 10 Tex., 388.) The right thus drawing to it the legal seizin and possession of the owner, per se, he thus remains possessed until disseized by possession taken and held adversely by another.

From this doctrine, that the owner is deemed to be in actual possession, though neither he nor any one under him be actually residing on or occupying the land, it results that the owner is disseized or dispossessed by an adversary possession only to the extent and within the limits of the possession taken and held adversely. But what acts shall constitute such adversary possession as to amount to a disseizin is often a question of great difficulty.

The difficulty, if not the impracticability, of laying down any precise rule applicable to all cases has often been felt and acknowledged; yet there is a generally recognized, obvious, and important distinction between possession taken by a mere naked disseizor or intruder—that is, one who enters without claim or color of title—and a possession taken by a person under a colorable title.

It is, that the possession of the former is confined to the land actually in occupation; whereas the possession of the latter is construed to be co-extensive with the boundaries described in the deed or muniment of title under which he claims.

This distinction is maintained in numerous decisions by the Supreme Court of the United States and the State courts, which hold that, where the tenant enters under a claim and color of title, he is to be regarded with more favor than a mere naked disseizor, and as entitled to all the land within the limits prescribed by the instrument under which he claims; while a mere intruder, who enters without claim or color of right, is confined to the limits .of his actual adversary possession. (Ang. on Limit., ch. 31, and cases cited.) This distinction is important to be observed in the present case, for the defendants do not appear to have entered or to hold under color of title.

They claim under a survey made upon an unrecommended certificate, which is denounced by the law as illegal and void. (Hart. Dig., Arts. 1983, 1984, 1950.) Both certificate and survey are utterly void as to all purposes and all persons. Being nullities, they are to be deemed as nothing, for in law they have no validity or effect for any purpose whatever. So considered, they cannot serve as the basis of a claim of right, or give color of title, or relieve the defendants entering and holding under them from the character of mere naked disseizors without claim or color of right. (Marsh v.

Weir, 21 Tex., 97.) The question then is, to what extent does their possession operate a disseizin of the plaintiffs.

To this question the authorities furnish the answer in general terms, that the possession, to amount, in law to a disseizin sufficient to bar the right of entry or confer a title, must be an actual occupation of such nature and notoriety as that the owner may be presumed to know that there is a possession of the land; “otherwise,” as has been said, “a man may be disseized without his knowledge, and^ the statute of limitation run against him, while he has no ground to believe that his seizin has been interrupted.” (4 Mass., 416.) The occupation must be actual, visible, and notorious; but the difficult question still remains as to the acts which shall be held to amount to such occupation, as to give notice to the owner of the adverse possession and its extent.

Ho general definition, short of the assertion of a merely arbitrary rule, can relieve this question of difficulty in its application to particular cases. “Actual, visible, and substantial inclosure is decisive proof of such disseizin, and also of the limits of it.” (Ang. on Limit., § 395 and notes.) But there are many cases which hold that an inclosure is not essential to constitute an actual adverse possession. (Id., §§ 397, 398; 10.Serg. & Rawle, 303; 7 Watts, 580; 6 Pet., 513; 10 Id., 442; 11 Id., 55.) In the case under consideration, as at present presented, it does- not become necessary to enter upon a critical examination of the authorities upon the question, with a view to determine what acts will amount to a disseizin, and within what limits.

The charge of the court renders such examination at present unnecessary, and it may not become so upon another trial. "Upon this subject the court instructed the jury, that if the defendants' had “had ten years’ adverse, peaceable, and continuous possession of the land in question, claiming by boundary openly and notoriously marked and defined for the period of ten years,” they should find for the defendants; that is, as it must be understood with reference to the evidence, if a party has-been in possession, claiming openly and notoriously by marked and defined boundaries for the period prescribed by the 17th

section of the statute, his possession and disseizin of the owner will not be confined to six hundred and forty acres, or to the limits to which he has actually used or occupied the land, by in closure or otherwise, but will extend to the marked boundary to which he claims: in this case to the boundaries of the league. In this we think the court erred. The boundaries . referred to must have been the lines of the survey made upon the unre'commended certificate.

The evidence does not show particularly the character of the defendant’s posession, or its extent; but it will suffice for the present to observe, that it is not shown to have extended to the boundary to which they claimed. And we are of opinion that it could not be enlarged, or extended beyond its actual limits by a mere verbal claim and marked line, however notorious, without something more on which to found a claim of right. A similar question came before the Supreme Court of Pennsylvania, where questions of this nature appear to have been very frequently and ably examined.

An opinion, it was said, had been entertained, that a wrong-doer, entering on unseated lands, in what were called the back lands in that State, might acquire a constructive possession of whatever he could hold as an improver, if the land were vacant, and for that purpose might avail himself of the survey of the owner, or establish a boundary of his own, and that he would be considered in the constructive possession of all the land thus inclosed.

This the court considered decidedly wrong, fora constructive possession^ an incident of ownership, and results-from title, and is in no way applicable to a case where the occupant defends himself avowedly and exclusively on the ground of his own wrong. (Miller v. Shaw, 7 Serg. & Rawle, 129, 137.) In a later case, the court said, “The person who has a warrant and survey has a legal seizin, without actual entry, through the whole extent of his survey, and may support an action of' trespass. Ho man has a right to enter, for the purpose of mating an improvement, on land appropriated by a prior survey.

The person so entering is bound to take notice of the survey, and is in law a trespasser. Having entered without title, or legal color of title, his possession is confined to his actual occupation, and cannot be extended by construction. The designation of his claim by marks on the ground is not an actual occupation, and consequently does not entitle him to the protection of the acts of limitation. The seizin of the warrantee is not divested by the marking of lines.” (Boyer v. Benlow, 10 Id., 305, per Tilghman, C.

J.) The court went on further to say, “But there maybe cases in which a jury might well presume an actual ouster, although the person who had the right was not excluded by inclosure or cultivation.” And they state cases where they suppose a jury might well presume an actual ouster of the owner, so as to give the possessor the benefit of the statute of limitation to the extent of his claim, though he entered without color of title. (Ib., 306; and see Criswell v.

Altemus, 7 Watts, 565, 580.) These cases are cited only for the purpose of showing that it has been elsewhere held, that the merely marking of lines, and claiming to the boundaries thus defined, will not amount to a disseizin of the owner, or give á constructive possession which will support the plea of the statute of limitation to land not in the actual possession of the defendant. This, we think, is clearly the law, as applicable to our statute of limitation. As the defendants did not enter or hold under color of title, the case does not come within the decision of this court in Charle v. Saffold, 13 Tex., 94.

The case, as presented, does not call for a further expression of opinion upon the effect of possession, or what will amount to adverse possession, within the meaning and intention of our statute of limitation; and we desire to be understood as intending to decide only that there was error in the charge of the court in the particular we have indicated, which, as we cannot know that this error did not control the verdict, will require a reversal of the judgment.

In reference to another portion of the charge of the court, upon the effect of five years’ possession, it may prevent the occasion for another appeal to observe, that the deed from King and wife, under which the defendant, Foley, claimed the protection of the five years’ bar of the statute, does not appear to have been properly authenticated for record as the deed of the wife, whose estate it purports to convey. The official designation of the person before whom the acknowledgment of the wife was taken is wanting to his certificate.

This might, perhaps, be supplied, so as to render the deed effectual to pass the estate by the conveyance. But it would seem that it cannot be held to have been “duly registered,” within the meaning of the statute, as to the party whose estate it purports to convey. (Hart. Dig., Art. 2392.) A party who claims to have acquired a title to the land of another, with no other evidence of right than a possession of five years under a deed recorded, ought to show a compliance with the terms prescribed by the statute per-feet in every particular.

It seems, therefore, that the evidence did not call for a charge upon the effect of possession under a deed duly registered, and that the instruction upon this point was calculated to mislead. Because of the error in the charge of the court upon the statute of limitation, the judgment must be reversed and the cause remanded. November 9, 1866. —On reconsideration. Moore, C. J. —It is the generally received American doctrine, that any valid conveyance of land carries the legal seizin and gives constructive possession to the grantee to the extent of the boundaries defined in his title, (Horton v.

Crawford, 10 Tex., 388: Barr v. Gratz, 4 Wheat., 213; Ang. on Limit., § 394, et seq.) “We are well satisfied,” said the Supreme Court of the United States, in Green v.

Liter, 8 Cranch, 229, “that a conveyance of wild or vacant land gives a constructive seizin thereof in deed to the grantee, and attaches to him all the legal remedies incident to the estate.” Generally in this country, certainly in this State, seizin means merely ownership, and the distinction between seizin in deed and in law is not known. (4 Day, 305; 4 Mass., 487; 10 Tex., 388.) The legal title thus drawing to the owner, per se, the seizin and possession, he retains them until dis-seized by the actual possession being taken and held by another.

From this doctrine, that the owner is deemed to he in possession, though neither he nor any one under him is actually residing on or occupying the land, it results, that the owner is disseized or dispossessed by an adversary possessor only to the extent and within the limits of the possession taken and held adversely. What acts will amount to a disseizin is often a question of great difficulty. It has often been acknowledged impossible to lay down any rule which will be applicable to all cases.

Yet there is an important, obvious, and generally recognized distinction between possession taken by a mere naked disseizor or intruder, that is, one who enters without color title, and possession taken by a person under a colorable right. The possession of the former is confined to the land actually'in occupation; that of the latter is construed to be co-extensive with the boundaries described in the deed or muniment of title under which he claims.

This distinction is maintained in numerous decisions by the Supreme Court of the United States and the State courts, which hold, that where the occupant enters under a claim or color of title he is to be regarded with more favor than a naked disseizor, and as entitled to all the land within the limits prescribed by the instrument under which he claims; while a mere intruder, who enters without claim or color of right, is confined to the limits of his actual adversary possession. (Ang. on Limit., ch. 31, and cases cited.) This distinction is important to be observed in the present case, for the defendants do not appear to have entered or to hold under color of title.

They claim under a survey made upon an unrecommehded certificate, which is denounced by the law as illegal and void. (Hart. Dig., Art. 1950, 1983, 1984.) Both certificate and survey are utterly void as to all purposes and persons. Being nullities,. they are to be deemed as nothing, for in law they have no validity or effect for any purpose whatever. So considered, they cannot serve as the basis of a claim of right, or give color of title, or relieve the defendants entering and holding under them from the character of mere naked disseizors without claim or color of right. (Marsh v.

Weir, 21 Tex., 97.) The question then is, to what extent does their possession operate a disseizin of the plaintiffs?.

To this question the authorities furnish the answer in general térms, that the possession, to amount in law to a disseizin sufficient to bar the right of entry or confer a title, must be an actual occupation of such nature and notoriety as that the owner may be presumed to know that there is a possession of the land. “ Otherwise,” as has been said, “ a man may be disseized without his knowledge, and the statute of limitation run against him, while he has no ground to believe that his seizin has been interrupted.” (4 Mass., 416.) The occupation must be actual, visible, and notorious.

But the difficult question still remains, as to the acts which shall be held to amount to such occupation as to give notice to the owner of the adverse possession and its extent, bio general definition, short of the assertion of a merely arbitrary rule, can relieve this question of difficulty in its application to particular cases. “ Actual, visible, and substantial inclosure is decisive proof of such disseizin, and also of the limits of it.” (Ang. on Limit., § 395, and notes.) But there are many cases which hold that an inclosure is not essential to constitute an actual adverse possession. (Id., §§ 397, 398; 10 Serg. & Rawle, 303; 7 Watts, 580; 11 Peters, 55; 10 Id.. 442; 6 Id., 513.) In this ease, as now presented, it is not necessary to enter upon a critical examination of the authorities upon the question, with a view to determine what acts will amount to a disseizin, and to what limits it will extend.

The charge of the court renders such examination at present unnecessary, and it may not become so upon another trial.

Upon this subject the court instructed the jury, that, if the defendants had “had ten years’ adverse, peaceable, and continuous possession of the land in question, claiming by boundary openly and notoriously marked and defined for the period of ten years,” they should find for the defendants ; that is, as it must be understood with reference to the evidence, if a party have been in possession, claiming openly and notoriously, by marked and defined boundaries, for the period of ten years, his possession and disseizin of the owner will not be confined to six hundred and forty acres, or the limits to which he has actually used and occupied the land by inclosure or otherwise, but will extend to the marked boundary to which he claims: in this case to the boundaries of the league.

In this charge, we are of opinion the court erred. The boundaries referred to must have been the lines of the survey made upon the unrecommended certificate. The evidence does not show particularly the character of the defendants’ possession or its extent, but it will suffice for the present to observe, that it is not shown to have extended to the boundary to which they claimed; and we are of opinion that it could not be enlarged or extended beyond its actual limits by a mere verbal claim and marked lines, however notorious, without something more on which to found a claim of right.

A similar question came before the Supreme Court of Pennsylvania, where questions of. this nature appear to have been very frequently and ably examined.. An opinion, it was said, had been entertained that a wrong-doer, entering on unseated lands, in what were called the back lands in that State, might acquire a.constructive possession of whatever he could hold as an improver if the land were vacant, and for that purpose might avail himself of the survey of the owner, or establish a boundary of his own, and that he would be considered in the constructive possession of all the land thus inclosed.

This the court considered decidedly wrong; for a constructive possession is an incident of ownership, and results from title, and is in no way applicable to a case where the occupant defends himself, avowedly and exclusively, on the ground of his own wrong. (Miller v. Shaw, 7 Serg. & Rawle, 129, 137; see also Boyer v. Benlow, 10 Id., 305; Criswell v.

Altemus, 7 Watts, 565, 580.) The cases we have cited show it has been elsewhere held, that the mere marking of lines and claiming to the boundaries thus defined will not amount to a disseizin of the owner, or give a constructive possession which will support the plea of the statute of limitation to land not in the actual posession of the defendant. This, we think, is clearly the law as applicable to our statute of limitation. As the defendants did not enter or hold under color of title, the case does not come within the decision of this court in the case of Charle v. Saffold, 13 Tex., 97.

The case, as presented, does not call for a further expression of opinion upon the effect of possession, or what will amount to adverse possession, within the meaning and intention of our statute of limitation; and we desire to be understood as intending to decide only that there was error in the charge of the court in the particular we have indicated. The official designation of the person before whom the acknowledgment of Mrs.

King was taken to the deed from King and wife to the defendant, Foley, is wanting to his certificate, and for this reason it is insisted the defendant cannot claim, under the registration of this deed, the protection of the five years’ bar of the statute. This objection would seem to be well taken, unless the defect and informality of the certificate are aided or supplied by the seal, which, from the transcript, seems to have been attached to the certificate as evidence of an official action by the party before whom the acknowledgment was made.

In the present attitude of the case, we do not feel disposed to decide whether a certificate in this form is sufficient, if accompanied by the proper official seal. If it is, the transcript does not enable us-to say that the omission in this certificate is thus supplied. This could be ascertained only by an inspection of the deed, or at least something more than the mere scrawl which, in the transcript of the record brought to this court, stands in place of the seal. The objection to the deposition of Mrs. Virginia Hutchinson was properly sustained.

Her husband had a contingent interest in the result of the suit favorable to the parties in whose behalf her testimony was offered. This evidently disqualified her as a witness for them. The grounds upon which the court excluded the other testimony offered by the plaintiffs is not shown in the bill of exceptions. Where, as has frequently been said by this court, this has not been done, we do not feel called upon to review the action of the judge, unless injustice have manifestly resulted from his ruling. We cannot say that such is the case in the present instance.

It seems quite clear that some of the proffered testimony should have been excluded, while other parts of it appear to have been free from objection. But if the grounds upon which the court excluded it had been set out in the bill of exceptions, it might appear that they were properly sustained. As, however, this has not been done, and especially as the same questions may arise upon another trial, we will not now undertake to decide them. For the error in the charge of the court the judgment is reversed, and the cause Bemanded.