Sarah A. Travis v. Frank Hall el al., 95 Tex. 116

WILLIAMS, Associate Justice. Certified questions from the Court of Civil Appeals for the First District, as follows: “Sarah A. Travis brought an action of trespass to try title against Frank Hall and others in the District Court of Harris County for the recovery of the south half of block 34 of the James S. Holman survey.

In her petition, the plaintiff, setting out title to the land in herself by limitation, alleged the facts necessary to show title by ten years limitation, and among other facts, alleged that she had been in adverse possession thereof, “cultivating, using, and enjoying the same for a period of more than ten years next before the filing of this suit and before the ejectment hereinafter alleged.” The suit was filed August 29, 1900, and the date of ejectment was laid at January 1, 1899. The defendants pleaded not guilty, under which they introduced evidence of an outstanding title.

They also pleaded limitation of ten years and introduced evidence in support thereof. The cause was tried before the court without a jury and judgment was rendered in favor of the defendants, for the reason that the plaintiff had failed to support her proof of limitation as against the outstanding title by affirmative proof of want of disability to sue in the owner of the outstanding title. From the conclusions filed by the trial judge, it appears that the land in controversy was conveyed to Sarah Travis, wife of FT. W. Travis, in 1845; that in 1842 a judgment was rendered against H. W.

Travis by the District Court of Harris County for the costs of a suit in that court; that by virtue of an execution issued on that judgment in 1846, the land was levied upon and sold as the property of FT. W. Travis, and that John Doran became the purchaser thereof. That the plaintiff was the heir of Sarah Travis and her husband, FT. W. Travis, and would be entitled to the land but for the execution sale which the court held valid.

The court.further found that the plaintiff had had and held such adverse possession of the land between the years 1870 and 1890 as would confer title by the statute of ten years limitation, but that an outstanding title having been shown in John Doran, it was necessary for the plaintiff to show that there was no disability on the part of any owner of such outstanding title as would prevent the running of limitation. The court declined to find upon the issue of limitation made by the defendants.

The evidence upon this issue was conflicting, and a finding thereon in favor of either party would not have been disturbed by this court. “The following questions of law arise out of the facts above stated,. to which this court desires the answers of the Supreme Court: “1. On proof of outstanding title in John Doran by the defendants,. was it necessary for the plaintiff, in order to sustain her title by limitation otherwise fully shown, to show affirmatively that there was no disability on the part of the holders of the John Doran title? “2.

Was the allegation of title in plaintiff by limitation for ea period ■of more than ten years next before the filing of this suit and before the ejectment hereinafter alleged/ met by proof of a completed possession between the years of 1870 and 1890 ? Does such proof support the allegation so as to authorize judgment thereon? “3.

The court below sitting as a jury having expressly declined to find the facts upon the issue of limitation made by the defendants, and having based his judgment upon other issues, should this court, if the judgment could not be sustained otherwise, affirm the judgment upon -evidence sufficient to support it if there had been a finding thereon, either express or implied, when there is conflicting evidence sufficient to support a different finding?” , All of the questions had been decided by the Court of Civil Appeals, but a motion for rehearing having been filed, they were certified to this court while the motion is pending. ■ In regard to the first question, we think it proper to say that it hardly arises upon the facts stated in the certificate.

The disabilities which, during the period ;in question, would have prevented the operation of limitation, were nonage, coverture, insanity, and imprisonment. Pasch. Dig., art. 4624; Rev. Stats., 1879, art. 3201. The certificate shows that in 1846 the outstanding title was vested in a person who was not a married woman. If he was then a minor, he would have reached majority before 1870. The presumption would be against insanity and imprisonment and would afford sufficient evidence that Doran was under neither of those disabilities. Ro evidence is stated of his death or of the divestiture of title out of him.

The party whose case depended on a change in the condition thus proved to have existed would have the burden of proof, the time which elapsed not being sufficient of itself to raise the presumption of death. It would seem, therefore, that by the evidence as here stated, the fact mentioned in the first question was sufficiently proved. But as the Court of Civil Appeals certifies it as if it had not been shown, and as we can not know what other evidence there may be in the record before that court, we think it proper to answer it as well as the others.

All of the questions were, we think, correctly decided by that court in the opinion referred to, and it is therefore only necessary that we answer the first and third questions in the negative and the second in the affirmative.