David Kimbro v. Morgan C. Hamilton, 28 Tex. 560

Donley, J. —The court correctly charged the jury, that the statute of limitation of ten years would not commence running against the plaintiff until the legal title was vested in him by the patent, or the equitable title by the location and survey of the land by virtue of a genuine certificate, it clearly appearing that the land was in the government until vested, in the plaintiff; and that by the word “possession,” as used in the statute, may be meant an actual residence on the land, or such cultivation, use, and enjoyment of the same, by visible notorious acts of ownership, as would give notice to the owner and others of the adverse possession of the land; and that it was for the jury to determine from the evidence whether a sufficient possession had been proved to sustain the plea of the statute of limitation of ten years.

The jury was further correctly charged, that the patent read in evidence, and under which the plaintiff claimed the land, was evidence of. the genuineness of the certificate on which the' patent issued, and that the field-notes read in evidence were competent evidence to prove that the survey was made by virtue of the certificate mentioned in the field-notes of said survey. The following part of the charge, in which it is said that the survey was not competent to prove the genuineness of the certificate, when the patent was before the jury to be considered with the survey, is believed to have been erroneous.

The fact that the survey and patent were not evidence of the genuineness of the certificate was brought prominently before the jury. At the request of the plaintiff', the jury were instructed that, “in order to enable the defendant to recover, he must show that the plaintiff had a legal or equitable right to the land ten years before the suit was brought. This is not shown by the mere production of the field-notes, without the certificate and proof of its genuineness.

Having failed to do this, you will inquire whether Kimbro has had the land ten years' since the issuance of the patent; and, if he has not, you will find for the plaintiff.” This last charge, given at the request of the appellee, was objectionable as a charge on the weight of testimony. It is, in the charge, assumed that the defendant had failed to establish, that the certificate on which the appellee’s patent issued was genuine at the date of the survey read in evidence by appellant, being for the land sued for in this action. This charge was erroneous. (Hart.

Dig., Art. 753.) The charge was further erroneous, in holding and instructing the jury that the survey and patent were not evidence of the genuineness of the certificate at the date of the survey. In Deen v. Wills, 21 Tex., 642, Wills relied on the statute of limitation, claiming under a patent. By the plaintiff" it was contended that the patent would not avail the defendant, as it was averred that it was founded on a certificate that had not been confirmed by the District Court; and evidence was also offered to show that the certificate on which the patent was founded had never been recommended for patent.

The last testitimony, which was by deposition, was excluded, as appears, for informality. The court held that “the patent is,prima fade, evidence that the genuineness of the certificate had been duly established, and that it was valid from date. It devolved on the plaintiff to prove that it had not been established in any of the inodes known to the law.” Here, in confirmation of the genuineness of the certificate, there is the patent under which the plaintiff claims, from the recitals in which it is clearly shown that it is founded on the Mullens certificate.

These recitals must he held as legal evidence, as against the patentee, off the facts recited in his patent. It is said in 1 Greenl. on Ev., §23: “ In regard to recitals in deeds, the general rule is, that all parties to a deed are bound by the recitals therein, which operate as an estoppel, working on their interest in the land, if it be a deed of conveyance, and binding both parties, and privies in blood, privies in estate, and privies in law. Between such parties and privies the deed or other matter recited need not at any time he otherwise proved.

The recital of it in the subsequent deed being conclusive, it is not offered as secondary hut as primary evidence, which cannot be averred against, and which forms a muniment of title. Thus the recitals in a lease in a deed of release are conclusive evidence of the lease against the parties and all others claiming under them in privity of estate.” In Carver v. Jackson, on demise of Astor,4 Peters, 83, it is said that “ the exceptions of defendant grew out of the non-production of the deed of marriage settlement, and of the sufficiency of the evidence to establish its original existence or -its subsequent loss.

We do not think it necessary to go into a particular examination of the various exceptions on this head, or of the actual posture under which they were presented to the court, or of the manner in which they were ruled by the court. Whichever way many points may he decided, our opinion proceeds upon a ground which supersedes them and destroys all their influence upon the cause.

We are of opinion that, not only the recitals of the lease in the deed of marriage settlement was evidence between these parties of the original existtence of the lease, but that it was conclusive evidence between those parties of that original existence, and superseded the necessity of introducing any other evidence to establish it. To what extent and between what parties the recital of a lease in a deed of release is evidence, is a matter not laid down with much accuracy or precision in soifie of the elementary treatises on the subject of evidence.

It is laid down generally, that a recital of one deed in another binds the parties and those who claim under them.

Technically speaking, it operates as an estoppel, and binds parties and privies.” The survey read in evidence and the patent, which clearly appears to be founded on that survey, were competent and sufficient evidence that the survey, purporting to have been made by virtue of the certificate to William Mullens, on which the plaintiff’s patent appears to have issued, was an appropriation of the land from the date of the survey, in April, 1847, that the certificate was genuine, and that limitation might have run against the appellee from that date, or as soon thereafter as the appellant went upon the land and set up an adverse claim against the appellee.

The ruling of the court upon this question was erroneous; it in fact restricted the defense under the statute of limitation to the date of the patent of appellee, a little more than one year before the institution of the suit. This ruling deprived the defendant of any reasonable hope of succeeding upon the plea of the statute of limitation. The view we have taken of this question renders it unnecessary to consider other points that might arise upon the record, and we forbear an expression of opinion until those questions shall be more thoroughly discussed. The judgment is reversed, and the cause Remanded.