S. W. and M. A. Saunders v. Madison Silvey, 55 Tex. 46

Bonner, Associate Justice. The legal effect of the deeds under which both the appellants and the appellee claim, is to make them joint owners according to their respective interests, of so much of the land in controversy as was owned by White and wife at the date of their deed to Cone, which was not embraced in their improvements.

The title of appellants to an undivided interest of four hundred and forty acres, being restricted only so far that it should not embrace their improvements, if it be conceded that they did not, under the contract, have the right of selection, they at least had the right to a fair and equitable partition of all the remainder.

To defeat this right, appellee, with notice of the prior deed to Cone, and claiming under subsequent deed from the common vendors, White and wife, to two hundred and ninety acres, and which conveyed more land than was embraced in the improvements, pleads the statute of limitations of three years.

Under well established rules of law, the deed from White and wife to Silvey, with defined metes and bounds, so far as it attempted to convey the lands outside the improvements, and to which Saunders, as joint owner, had an undivided interest of four hundred and forty acres, could not, of itself, affect the right of Saunders, however much it may have bound White and wife by estoppel. McKey v. Welch, 22 Tex., 346; Dorn v. Dunham, 24 Tex., 376; Good v. Coombs, 28 Tex., 51; March v. Huyler, 50 Tex., 251.

Whatever might be its legal effect, accompanied with the proper requisites to sustain the statute of limitations of five years, it was insufficient to sustain that of three years. White and wife having previously parted with the title to an undivided interest to the land outside the improvements, could not pass, as against appellants, to a subsequent purchaser with notice, a valid title to any defined portion of this same land.

An attempt to do this could not convey such title or color of title as defined to be a requisite to sustain our statute of limitations of three years; that is, a regular chain of transfer from or under the sovereignty of the soil, or color of title, by such consecutive chain of transfer, but not so defective as to include the want of intrinsic fairness and honesty. Pasch. Dig., art. 4625; R. S., art. 3192.

The undivided interest conveyed by White and wife to Cone, and now owned by appellants, would be wholly without the chain of title from the same source, from and' under the sovereignty of the soil, under which Silvey claims his three years’ limitation, and would not support it. Thompson v. Cragg, 24 Tex., 582; Veremendi v. Hutchins, 48 Tex., 551; Allen v. Root, 39 Tex., 589; League v. Atchison, 6 Wall., 112. We think there was error in so much of the charge in which the jury were instructed that they could find for appellee under the statute of limitations of three years, for which the judgment must be reversed.

Being joint owners of so much of the land as was not embraced in the improvements, appellants could not sue until partition for the exclusive possession of any particular portion, but could sue to be admitted into joint possession, if appellee held exclusive adve se possession of any part not embraced within the improvements. This, previously to partition, could be done by a suit simply of trespass to try title, or what would be the better practice under our blended system, by such action combined with suit for partition also.

It seems to be conceded that Cone had the right, under the terms of his deed, to select the four hundred and forty acres. If Cone, or appellants who claim under him, did not take proceedings within a reasonable time to make this selection, then any additional improvements made by White or his vendee, the appellant, in good faith, and so connected with those already made as not materially to interfere with the interest of four hundred and forty acres previously conveyed, should be respected on a final partition of the land. Reversed and remanded. [Opinion delivered December 7, 1880.]