Amelia S. Howard et al. v. Jacob Stubblefield, 79 Tex. 1

ACKER, Presiding Judge. This action was brought on the 8th day of August, 1887, by the widow and children of R. A. Howard to recover a one-third interest in the Alfred Evans headright survey of 640 acres in Runnels County. The plaintiffs claimed as heirs of R. A. Howard under a transfer executed to him by Alfred Evans, the original grantee, for one-third of the certificate in J une, 1847. The transfer was recorded in Bexar County, which then included the land in controversy, on the 28th day of February, 1855.

On the 8th day of March, 1853, Evans located the certificate in his own name on the 640 acres of land which includes the land in controversy, and the patent therefor was issued to him on .the 27th day of October, 1858. R. A. Howard died in 1866, leaving a widow, Amelia S. Howard, and three children, who are the plaintiffs in this suit. Alfred Evans conveyed the entire survey by warranty deed to A. West on the 26th day of September, 1876, and West went into possession of the laud and lived on it until the 8th day of September, 1883. He sold the land to A. B.

Robertson, who sold and conveyed it to defendant, Stubble-field, in August, 1885. The defendant answered by plea of not guilty, the three, five, and ten years statutes of limitation, and stale demand. By supplemental petition the children pleaded their minority within ten years next before the suit was brought. There was evidence that these plaintiffs were respectively 6, 8, and 10 years old at the time of their father’s death in 1866. The court charged the jury that the plaintiffs’ claim was a stale demand, and directed them to return a verdict in favor of the defendant.

It is contended that the court erred in giving this charge, “ because stale demand is a question of fact for the jury, and the charge was therefore upon the weight of evidence,” and because the doctrine of stale demand does not apply to the title relied on by plaintiffs. If the court did not err in giving the charge now under consideration, other questions presented by the assignments of error become immaterial. There is no controversy about the facts, and in such case it is not a charge upon the weight of evidence for the court to instruct the jury that the evidence establishes a particular fact.

The only question arises on the application of the law to the facts. The transfer of one-third interest in the certificate by Evans to R. A. Howard in June, 1847, was an absolute, executed conveyance, by virtue of which Howard acquired the right to locate one-third of the certificate and obtain patent therefor in his own name. The entire certificate was located in 1853 by Evans in his own name, and patent issued thereon to him in 1858.

Howard lived for nineteen years after he acquired the right to assert his claim and obtain title to the land—thirteen years after Evans repudiated the transfer to him by locating the entire certificate in Evans’ own name, and eight years after patent issued to Evans for the entire 640 acres granted by the certificate—and yet, so far as this record discloses, took no steps, did no act indicating an intention to assert any claim under the transfer from Evans.

Twenty-nine years after the patent issued to Evans, and nearly eleven years after he had sold the land and conveyed it for a valuable consideration paid by the purchaser, this suit is brought by Howard’s heirs. After the issuance of the legal title to Evans whatever right Howard had by virtue of the previous transfer of an interest in the certificate was purely equitable—the precise character of claim to which the doctrine of stale demand applies.

If the location of the entire certificate by Evans in his own name was not an acc hostile to Howard’s claim the acceptance of the patent by him certainly was, and Howard acquiesced in it, took no steps to avoid it and assert his claim, up to his death, eight years thereafter. Carlisle v. Hart, 27 Texas, 350; Fuller v. Coddington, 74 Texas, 334; Frost v. Wolf, 77 Texas, 455.

In applying the doctrine of stale demand to equitable claims growing out of executory contracts, such as contracts for the location of land certificates in which it is stipulated that the locator is to have part of the land, the acceptance of the legal title by the original grantee in his own name is not such act of hostility to the equitable claim of the locator as will put the statute of limitation in operation against such claim; but the grantee or owner of thé certificate so accepting the legal title nolds it to the extent of the locator’s interest in trust for him, and must do something more than accept the patent issued in his name to put the statute of limitation in operation.

He must do something clearly indicating his intention to disregard the claim of the locator and repudiate the trust, either by actual possession accompanied by exclusive adverse claim openly asserted, by sale of the laud, or in some other way calculated to advise the locator that his claim is not recognized. Hodges v. Johnson, 15 Texas, 570; Gibbons v. Bell, 45 Texas, 417; Reed v. West, 47 Texas, 240; McKin v. Williams, 48 Texas, 89. Adopted December 9, 1890. Limitation began to run against B. A.

Howard, the ancestor of plaintiffs, who claimed under an executed contract, and continued to run against plaintiffs after his death, notwithstanding their minority. Rev. Stats., art. 3225; Moody v. Moeller, 72 Texas, 637. We are of opinion that the judgment of the court below should be af- . firmed. Affirmed.