Plummer v. Power , 29 Tex. 6 ( 1867 )

Moore, C. J.

It is conclusively settled, by repeated de cisions of this court, that a new trial may be granted by the district court in a case properly invoking its equitable powers, after the adjournment of the term of the court at which the judgment was rendered. (Goss v. McClaren, 17 Tex., 107; Fisk v. Miller, 20 Id., 578; Burnley v. Rice, 21 Id., 180; Vardeman v. Edwards, 21 Id., 740.) But it is equally clear that such relief will not be granted unless the party seeking it can show that he was prevented from making a valid defense to the action in which the judgment has been rendered against him by fraud, accident, or the act of the opposite party, unmixed with fault or negligence on his part. He must be able to impeach the justice and equity of the verdict of which he complains, and to show, also, that there is good ground to suppose that a different result will be attained by a new trial. (French v. Garner, 7 Port., 549; Vanlew v. Bohannan, 4 Rand., 587; Sturnett v. Branch Bank, &c., 9 Ala., 120; Secor v. Woodward, 8 Id., 500; Vardeman v. Edwards, 21 Tex., 740.)

As the exception to the sufficiency of the petition to account for and excuse the plaintiffs’ failure to make their defense to the original suit was not acted on in the district court, it is unnecessary for us to consider this aspect of the case. Hor, in the view which we take of it in other respects, is this necessary for its proper and ultimate disposition. „

It has been fully and finally determined, by a number of decisions of this court, that the title upon which the plaintiffs in the court below rely is invalid, and vests no interest in the land to which it refers in those holding and claiming under it. Nor, indeed, do the plaintiffs now maintain that it shall be considered by the court for any other purpose than to show the boundaries of the land, which they contend has been held in possession by themselves, and those under whom they claim, a sufficient length of time to authorize the presumption of a grant; or to entitle them to avail themselves of such possession, under some one or other of the provisions of the statute of limitation, as a defense to a suit for the recovery of the land. It is not shown, however, that the title to the land in controversy passed from the government, or that the plaintiff in the original suit had a right of action for it until he obtained the patent on which he relied, which was only a few weeks before the commencement of the original suit. It is evident, therefore, that no defense could have been interposed to his recovery, under the statute of limitation, if the imperfect title under which the other parties claim the land could be made available for this purpose, except upon a different state of facts from that shown in the present record. To have entitled them to urge such a defense, the date of the location or survey upon which the patent was founded must have been shown. It is therefore unnecessary for us to consider whether, under other circumstances, the imperfect title under which the plaintiffs in this suit entered upon the land might have been admissible, in connection with the proof of the possession set up by them, to have sustained a defense to the original suit under the 14th or 17th sections of the act of limitation of 1841, or the 39th section of the act of December 20,1836, to organize inferior courts, if it is still in force.

And although the contrary doctrine was intimated in some of the earlier decisions of the court, it is now conclusively established, that the instruction given the jury in the district court, that the plaintiffs were entitled to a verdict if they had shown “ ten years’ peaceable and exclusive adverse possession before,” prior to the commencement of the original suit, in which judgment had been taken against them, cannot be sustained upon the doctrine of presumed grants. This question was very fully considered and ably discussed by Mr. Justice Bell, in the cases of Watkins v. Taylor [26 Tex., 688] and Yancey v. Norris, [27 Tex., 40;] decided at the Tyler term of this court, 1863, and though the facts, certainly in the latter case, were much more favorable than here presented, the court held them insufficient to raise the presumption, or to cure a defect in a title similar to that in the title under which these parties claim to have entered upon and held the land here in controversy. Since that time the same question has several times been before the court, and the opinions in said cases have been uniformly sanctioned, approved, and followed. (Walker v. Hanks, Aust. T., 1864,) [27 Tex., 535;] (Biencourt v. Parker, Gal. T., 1864,) [27 Tex., 558.] And it would be now a profitless consumption of time to review the grounds upon which the conclusions there attained were rested, or to enter upon a new and original discussion of the question.

It must therefore be held, that the plaintiffs in this suit altogether failed to show that they could, under any circumstances, have made a valid defense to the original action, and that the instruction to which we have referred, and which no doubt misled the jury in their verdict, was improper, and unsustained by either the law or facts of the case.

The judgment is reversed, and the cause

Remanded.