David Y. Portis & Wife et al., Appellants, vs. Wm. G. Hill, Adm'r of Eliza M. Hill, Deceased, Appellee, 3 Tex. 273

Mr. Justice Wheelee, after stating the facts of the case, delivered the opinion of the court, Mr. Justice Lipscomb not sitting. The questions which it is deemed material to consider relate to the ruling of the court. 1st. In maintaining the exceptions to the several pleas of the statute of limitations. 2d. In refusing the several instructions asked by the defendants. 1.

In maintaining the plaintiffs’ exceptions to the several pleas of the statute of limitations, the court appears to have acted ’upon the supposition, either that to this action the statute of limitations does not apply, and cannot, therefore, be pleaded at all; or that it is not enough for the defendant to allege in himself an adverse possession maintained during the period limited by the statute, but he must state in his plea the acts and •circumstances which constitute the evidence of such possession. Neither supposition, however, is well founded in law.

There is no case in which a private individual will not be barred by <m adverse possession, continued for the period prescribed as constituting a bar under the statute of limitations. [Angell on Limitations, 2d ed. 397, sec. 2.] "What facts will amount to proof of such adverse possession, in each case, is a question of ■evidence, not of pleading. They must be such as to give the party whose rights are invaded a cause of action. There must be a disseizin. But what will give a cause of action, or amount to a disseizin, are often questions of no little difficulty.

The difficulty of laying down a precise rule by which to determine what is an adverse possession, has often been felt and acknowledged. “ The clearest and most comprehensive definition ” (it is said) “of a disseizin and adverse holding, perhaps, is an actual, visible and exclusive appropriation of land, cannmenced and continued under a claim of right; either under an openly avowed claim, or under a constructive claim arising from the acts and circumstances attending the appropriation, to hold the land against him who was seized.” [Id. 410, sec. 11.] And, in cases of co-tenancy (joint tenancy, tenancy in common and co-parcenary), as the seizin and possession of one is, in law, the seizin and possession of the other or others, the mere fact of the uninterrupted possession of one tenant, or an uninterrupted possession which implies no expulsion of the other, is not an adverse possession; but to constitute a disseizin and adverse possession in this case, there must be, in the language of the books, an actual ouster. [Id. p. 456, secs. 1 to 6.] But where the defendant asserts in himself an adverse possession, the existence of such acts and circumstances as will amount to a dis-seizin or actual ouster, and will, therefore, support the plea, is most manifestly a question of evidence.

It did not arise npon the pleadings. The allegation of an adverse possession -was, in this respect, sufficient. To have alleged an actual ouster would not have rendered the plea, in any wise, more certain or intelligible; and to have stated the evidence would have been going beyond what has ever been required. But it may be that the court rejected the pleas upon the ground that the statute was not, in other respects, well pleaded.

A comparison of the several pleas with the statute will ascertain how far they embrace the facts which, by its provisions, are required and made to constitute an effectual bar and valid defense. The pleas of limitation of the defendants, Portis and wife, must be considered in reference to the act of 1836 [1 Stat. 156, sec. 39], or the 16th

section of the act of limitations of 1841, these being the only acts prescribing the period of five years. But these pleas are insufficient in not alleging the facts which are made to constitute the statutory bar'in favor of the party in possession, and in not alleging the possession of the defendants to have been adverse. Of the several pleas of limitation of the defendant, Samuel A. Cummings, the first appears to have been framed with especial reference to the 17th

section of the act of limitations of 1841, alleging that the defendant had been in the “ adverse, peaceable possession of the said land, using and enjoying the same,” for a period of more than ten years. No reason is perceived why this is not a good plea of the limitation prescribed by the 17th

section of the statute. The second plea of the defendant, Cummings, though not good as a plea of the limitation of five years prescribed by the 16th section, for the want of an averment of the due registration of the title or deed under which the defendant claims, is still a good plea of the prescription of three years, since it includes every fact necessary to constitute the bar. created by the 15th section.

And the third plea of the defendant, being in exact conformity to the 15th section, and averring all the facts which constitute the limitation of three years prescribed by that section, is evidently a good plea. These pleas allege that the possession of the defendant, attended by all the cir-eumstances requisite by the statute to constitute an effectual bar of the plaintiffs’ right of action, was an adverse possession. The defense of limitation thus interposed was applicable to and available in this action.

Whether true in point of fact was a question not then before the court, and one which could only be presented upon the evidence adduced in support of the pleas. We are of the opinion, therefore, that the court erred in maintaining the plaintiffs’ exceptions to the pleas of the defendant, Samuel A. Cummings, of the limitation of ten years’ peaceable, adverse possession, with the use and enjoyment of the premises; and also, the.plea of three years’ adverse possession under color of title. 2. The remaining inquiry respects the ruling of the court in refusing the several instructions asked by the defendants.

Of these, the first five seem to have been framed with the view of asserting the proposition, to enable the heirs to maintain the action, the estate of their ancestor must appear to have been administered, and that this, it devolved on the plaintiff to show in this action. This proposition we do not think well founded, and we are of opinion that the instructions numbered from one-to five, inclusive, were rightly refused. The sixth instruction had been anticipated by the previous rulings of the court, which it is not deem'ed material now to consider.

It had no application to the issue, or evidence before the jury, and was rightly refused.

The defendants, Portis and wife, not having admitted or claimed any title or interest in themselves derived from James Cummings, but on the contrary having denied “ all and singular ” the allegations of the petition, including the averment of their heirship and co-tenancy, to entitle the plaintiff to a decree of partition and a judgment for costs as against them, it was incumbent on him to deduce and prove title in himself, and also their heirship and co-tenancy, and the court erred as to them in refusing the 7th, 8th and 9th instructions asked on behalf of the defendants.

Because, therefore, the court erred in maintaining the plaintiffs’ exceptions to the pleas of the defendant, Samuel A. Cummings, of the limitation of ten years’ peaceable, adverse possession, with tbe nse and enjoyment of the premises, and of three years’ adverse possession under color of title, and because, also, the court erred in respect to the defendants, Portis and wife, in refusing the 7th, 8th and 9th instructions asked on their behalf, it is the opinion of the •court that the judgment be reversed, and the cause remanded for further proceedings.