Huff v. Crawford , 88 Tex. 368 ( 1895 )

The Court of Civil Appeals for the Second Supreme Judicial District have certified to us for our determination the following question:

"G.F. and S.Y. Collins are among the defendants in this action of trespass to try title. They plead the statute of limitations for four years. They claim the land, on account of which the plea is entered, under a deed duly recorded for more than five years prior to the institution of the suit, paying taxes as prescribed by the statute. The land has been in actual possession under this deed and claim for the requisite time. The possession has, however, been held for them, in their name, and for their use and enjoyment, by an agent. During the time necessary to complete the bar, the defendants named have been absent from the State, and residents of another State.

"Question: Do the provisions of article 3216, Revised Statutes, preclude these defendants, under the foregoing facts, from interposing the defense stated?

"It is contended, that the opinion in the case of Hunton v. Nichols, 55 Tex. 217, is not to be regarded as an interpretation of this article; or if so, that the announcement therein made of this question is obiter dictum."

The case referred to contains the only decision of this court which bears directly upon the question. The report is so defective that it is impossible to determine from it with any degree of satisfaction the precise point which was decided. By referring, however, to the original transcript and briefs among the records of this court, we find that the question was presented, though, as we have concluded, it was not involved in the decision of the case. The appellants in that case had sued in trespass to try title to recover of appellees certain real estate in the city of Austin. Brush, one of the defendants below, pleaded, among other defenses, the statute of limitations; and introduced evidence tending to show his possession of the property for the requisite period. The plaintiffs replied, that during the time of his occupancy he was absent from the State. In their brief as appellants they made the point, that on account of Brush's absence the statute did not run in his favor. The point was not noticed in the briefs of appellee. The evidence was to the effect, that Brush held possession by tenants, but that during a great part of the time he had a residence in Brooklyn, in the State of New York; that he resided there during five or six months of each year; and that during the other months he resided in Austin. If the statute of limitations did not run in Brush's favor during any portion of the time that he was in possession of the property, the burden was upon the plaintiffs to show it. When the case was decided, it was the settled law of the State that the provision of the statute of limitations in regard to absent defendants did not apply to persons who were nonresidents of the State at the time the cause of action accrued. Lynch v. Ortlieb, 87 Tex. 590. The plaintiffs had failed to show that Brush was a resident of the State, or that he was within the State at the time he took possession by his tenants of the property in suit; hence, in our opinion, the question whether the provision of the statute in question applied to actions for the recovery of real property was not involved in that case. If Brush was a nonresident and absent from the State at the time the cause of action accrued against him, his absence was not to be accounted against him. Therefore we think, that if the court intended in that case to hold that the provision did not apply to suits for real estate, the holding is not binding as an authority.

We therefore regard the question of the applicability of article 3216 of the Revised Statutes to actions for the recovery of real estate as an open one in this court, and are of opinion that it applies to all suits alike. That article is but a re-enactment of section 22 of the "Act of Limitations," approved February 5, 1841. Pasch. Dig., art. 23. That act was an adaptation of the statute of 21 James I., upon which it is evidently modeled. See Wood on Limitations, 631. The corresponding provision of the statute of James is, by its express terms, made applicable to certain personal actions only; and it is significant, that the words by which its operation is limited are omitted from section 22 of the Act of 1841. The periods within which actions for the recovery of real estate, as well as actions of a personal nature, were prescribed in the previous sections of that act, and its place would indicate that it was to apply to every case for which a limitation had been provided. Title 62 of the Revised Statutes is a reproduction in substance of the main features of the Act of 1841. It is divided into three chapters, the first of which is entitled "Limitation of Actions for Land;" the second is devoted to limitations of personal actions; and the third is entitled, "General Provisions," some of which are necessarily applicable to both classes. There is nothing in the terms of the article in question which indicates that it was to be limited in its application, and the fact that it is inserted in the general provisions indicates that it was to apply as well to the actions specified in the first chapter as to those designated in the second. There may be reasons why suits for the recovery of land should be excepted from the operation of the article, but there are none which are sufficiently cogent to induce us to believe that the Legislature did not intend what by its language it has so clearly expressed.

Similar provisions, couched in the same general terms, have been held to apply to suits for the recovery of lands by the courts of other States. Railway v. Cook, 43 Kan. 83; Morrell v. Ingle, 23 Kan. 32; Heaton v. Fryberger, 38 Iowa 185; Lagow v. Neilson, 10 Ind. 183; Wright v. Strauss, 73 Ala. 227. We have been cited to no contrary ruling, nor have we found any.

Such is our construction of article 3216. But the question does not advise us whether or not the defendants named were residents of the State or within the State at the time the adverse possession was taken by their agent. We therefore can not give an explicit answer. If not, then the statute ran in their favor until their return to the State, if they ever returned. If they were within the State at that time, then during their absence the running of the statute was suspended. We are of opinion, that the possession by an agent should be deemed to have the same effect as possession by a tenant.

Delivered March 18, 1895.

ADDENDUM.