Cook v. Knott , 28 Tex. 85 ( 1866 )

Smith, J.

—The parties waived a jury, and submitted the

matters in controversy to the coui’t below, who rendered a verdict in favor of Knott for the land sued for. Cook moved for a new trial, which being overruled, he appealed to this court. The facts in this cause appear to be substantially as follows, to wit: The land claimed by Cook, four hundred and sixty-two and two-third acres, is a part of the one thousand two hundred and eighty acres, the head-right of Knott. Cook purchased the four hundred and sixty-two and two-third acres of R. H. Porter and Eli Smith, and received their deed of conveyance, dated 26th April, 1845, which was registered in the county court clerk’s office of Robertson county, on 4th August, 1847, in which the land then lay; that he took possession of the four hundred and sixty-two and two-third acre tract under that deed, and made valuablé improvements on it. That after this Knott claimed the land, and threatened to dispossess Cook if he did not purchase of him immediately; the latter, fearing he would be dispossessed by him, contracted for the land, paid him $320, and executed his note for $280, payable 1st May, 1848, and took Knott’s bond to make title when patent should be issued. The bond is dated 9th August 1847, and the patent was issued December 15, 1847.

In the latter part of 1848 or the beginning of 1849, Knott demanded payment of the note; Cook declined to pay it, and then denied the right of Knott to the land, disclaimed holding under him, and notified him that he held the possession of the land under his deed from Porter and Smith, and would continue so to do. This was more than-five years before the institution of this suit. Cook paid the taxes on the land from 1847 up to the time of the trial, and had been using, cultivating, and enjoying the four hundred and sixty-two and two-thirds acre tract for that period, and disclaimed all interest in the residue of the one thousand two hundred and eighty acres. There was some evidence that Porter was to have a part of the one thousand two hundred and eighty acre tract for locating it, but the nature and extent of this claim was not well established.

The leading point of the defense in this cause is, the limitation of five years. That this defense may be complete, it must appear that the defendant had, before the institution of this suit, been in the continuous adverse possession of the premises, cultivating, using, or enjoying the same, paying the taxes thereon, and claiming under deed or deeds duly registered for five years. It is quite apparent that Cook paid the taxes, and was in the possession, use, and enjoyment, of the premises to the extent of the boundaries of his deed for five years before' the institution of this suit.

The entry and possession of Cook, under the deed from Porter and Smith, would be considered adverse to Knott, until he entered into the executory contract of purchase with him. This contract might change his possession from an adverse to an amicable one, which would interrupt the operation of the statute of limitation; but his open and positive denial of the rights of Knott, in the latter part of 1848 or the beginning of 1849, and notice given him that he held the possession of the land under the Porter and Smith deed, and not under him, and would continue so, are evidence of a change of his possession to an adverse and hostile one, and the statute" of limitation would again begin to run from that date, and there is nothing to show any subsequent acknowledgment of the relation of vendor and vendee between them, and we must conclude possession continued adverse. (De Cordova v. Smith, 9 Tex., 129; Turner v. Smith, 11 Tex., 627.)

The appellant’s counsel states, that it was contended below that the deed was not duly registered, from the fact that it had been authenticated for record and recorded by the deputy clerk of the county court. In the case of Miller v. Thatcher, 9 Tex., 482,this language is used: “The deed does not appear to have been authenticated by any person, known to the law, authorized to make such authentication. It was made by the deputy clerk of the probate court.” Kothing in that cause demanded the decision of the question as stated in the opinion. In the case of Rose v. Newman, at Austin, 1862, 26 Tex., 131, the contrary doctrine has been announced, and it was, that the deputy clerk of the county court did have all the power and authority of the clerk himself to take proof of the execution of instruments, authenticate, and record them.

We find the following in the opinion delivered in the case of Rose v. Newman: “The business of a deputy is to perform the duties of his principal; taking proof of instruments for record in his county being one of the duties of the clerk of the county court, his deputy had authority to perform it.”

In this opinion we fully concur. (Hart. Dig., 833-152; O. & W. Dig., Arts. 260, 1700, 1714.)

From the foregoing consideration of this cause we are of opinion, that the defense set up by Cook, of the five years’ limitation, was fully sustained, and that a decree ought to have been rendered in his favor for the land. Therefore it is ordered, that the judgment below be reversed, and reformed so as to conform to this opinion.

Reversed and reformed accordingly.