C. M. Greenlee v. W. H. Taylor et al., 79 Tex. 149

COLLARD, Judge. The court below should have instructed the jury to find for the defendants. There is no pretense that there was any proof to establish a transfer of the certificate by Brewster to Brush or any one else, nor that any presumption would arise that such a transfer was made. There was no submission of such a question to the jury by the lower court, no charges asked by plaintiff below, and no assignments of error on the issue presented in this court. Plaintiff’s claim of title was by limitation under the t„en and five years statute.

Let it be admitted for argument sake that his deed described and included the strip of land in dispute, and that there was no agreement by Davidson or acquiescence binding upon him that defendants Strouds’ fence was the division line, and let it be admitted that the Strouds have no title under the five years statute of limitation because they failed to show that their deed from Carroll described and included the land in controversy, still the plaintiff can not recover, because she has no title by limitation or otherwise.

The suit is trespass to try title with plea of not guilty, and before boundary questions can be important plaintiff must show title, otherwise defendants will recover. The three years statute of limitations pleaded cannot avail, because the plaintiff has not shown title or color of title. She can not recover under the five years statute, because she and those under whom she claims have not had five years exclusive and uninterrupted possession. There is no dispute, and can be none, concerning the evidence on this question.

Davidson’s possession commenced in 1877, after his purchase from Hogg, and conceding that his deed included the land in controversy, his possession was only constructive as. to the land in dispute, and this possession was interrupted by-the actual pedal possession of defendants Strouds in 1880, who fenced all the disputed land and cultivated portions of it up to fence. Such actual possession stopped the running of the statute in favor of plaintiff’s constructive possession. Defendants Strouds have continued to so hold the land up to the present time.

If their deed embraced the land in dispute, their possession was sufficiently long to give them title under their plea of five years limitation, all other requirements of the statute having been complied with; but if their deed does not describe the land, their possession has been adverse to Davidson’s and to plaintiff’s (which if continued sufficiently long would give them title under the ten years statute), and consequently from the time of their actual entry the statute ceased to run in favor of plaintiff.

Plaintiff’s possession and that of others which she pleads was less than five years, and of course less than ten years. Therefore, having shown no title, she can not recover. Bracken v. Jones, 63 Texas, 184. Adopted December 19, 1890. Defendant Taylor had been in the actual occupancy of the strip of land demanded of him by plaintiff’s suit since 1874, more than ten years prior to the institution of this suit, claiming the same as his own, cultivating and using the same.

Whether his deed describes the disputed two acres or not so as to give him title under the plea of five years limitation, he can hold the same under the plea of ten years limitation. There is no question but that all the defendants claimed to own the land in possession by them for which they are sued. Their possession was'hostile and adverse from the beginning. It is not necessary to consider other questions in the case. Ho other judgment could have been legally rendered in the case than the one that was rendered, and we think it ought to be affirmed. Affirmed.