Burk v. Turner , 79 Tex. 276 ( 1891 )

GAINES, Associate Justice.

This was an action of trespass to try title, brought by appellee, to recover of appellant as tenant in common with him an undivided one-half interest in two tracts of land patented to one James H. Ashby by virtue of a certificate issued to the patentee for one-third of a league of land. The petition alleged that both parties claimed title to the interest in controversy under one E. R. Lane as a common source. The conveyance by Lane was of the certificate by virtue of which the patent issued, and was made to the plaintiff and to George J. Turner, his brother. The grantees wrere at. the time minors. The certificate was bought for them by their father and paid for, in part at least, by their money. Lane’s deed transferring the certificate described it as a certificate issued to Ashby and “conveyed by deed from said Ashby to Menifee, or rather from A. M. Clare and from Clare to Menifee, and from Menifee to John W. Hodges and from the heirs of the said Hodges to the grantors herein.” The plaintiff also introduced in evidence a conveyance from George L. Turner and wife, the father and mother of plaintiff and George J. Turner, to the lands in controversy to D. R. Faunt, and a deed from D. R. Faunt to the defendant. He also proved by the father, George L. Turner, that George J. Turner had died leaving no issue at the time the conveyance was executed to Faunt.

The defendant pleaded not guilty and the statute of limitations of five-years as against the recovery by plaintiff. He also pleaded that the title-never passed out of the original grantee, Ashby, and that he had acquired that title by the statute of limitations of five years; also that the title was at one time in A. M. Clare, and that it so remained until he acquired it. by limitations. A similar plea asserting the acquisition of title through Menifee and through Hodges in the same manner was also interposed. But it was-not pleaded that the title ever was in the heirs of Hodges or that the defendant had acquired their title in any manner.

The plaintiff introduced in evidence the conveyance of the certificate from E. R. Lane to George J. Turner and to himself; also conveyance from four of the children of John ~SV.. Hodges to Lane, and proved by George L. Turner, his father, that John W. Hodges was dead at the time-the latter conveyances were executed, and that the grantors in the conveyances to Lane were his children. .Upon cross-examination this witness .testified that Hodges left eight other children by a second wife. The plaintiff also introduced in evidence the deed from George L. Turner and wife to D. R. Faunt to the land in controversy, and the deed from Faunt to the defendant.

The defendant proved his possession of the land under his deed, and the payment of taxes upon it for five years before the institution of the suit, and that his deed had been duly recorded during that period. But the plaintiff proved his minority to a time .within less than five years before the suit was brought.

The recital in a deed of a particular fact is at least evidence against the parties to the conveyance and their privies. Carver v. Jackson, 4 Pet., 83. It follows that the facts stated in the conveyance from Lane to George J. Turner and R. J. Turner were prima facie proved by the introduction in evidence of that conveyance as against the defendant, who received a deed and went into possession of the land under that title. The burden was then shifted upon the defendant, and in order to defeat tho action it was incumbent upon him to show that the recital as to one or more of the conveyances was not true. The deed of Lane was evidence for him as well as against him; and if he had shown that either Ashby, the original grantee, Clare, Menifee, or Hodges had never transferred the certificate and that he had acquired the title of either by the statute of limitation, he would have been entitled to a judgment, unless we should hold him estopped, which we are not now prepared to do. TJpon the question whether either of these recited conveyances was ever made he has introduced no° evidence. The evidence adduced by plaintiff that John W. Hodges left twelve heirs and the conveyances from, but four of them suggests that it may be that there was an outstanding title in the heirs who did not convey. But, as we have said, the burden was upon the defendant, and the fact that four conveyed could hardly be sufficient evidence that the others did not convey. But while the defendant pleaded title acquired-by limitation from the original grantee, from Clare, or from Menifee, or from Hodges, he did not plead the acquisition of such title through any of the heirs of Hodges.

Delivered January 20, 1891.

A party to avail himself of title by limitation must plead it. Therefore if it had been proved affirmatively that any one or moré of the heirs of Hodges had never conveyed to Lane, the defendant could not have made the fact available under his pleadings. The facts recited in the conveyance from Lane to the plaintiff and his brother, as against the defendant, proved an equitable title in plaintiff to one-half of the land sued for; and it follows that the conclusions of law filed by the learned judge who tried the case below are quite correct.

The recital in Lane’s deed proved the fact as against the defendant found by the court below that the certificate was assigned to Clare. It is unimportant whether it was proved or not that the whole of the consideration for Lane’s conveyance was paid with the money of the grantees; If a part was paid by their father, the presumption is that he intended to make a gift to them of that part.

We find no error in the judgment, and it is affirmed.

Affirmed,