DocketNumber: No. 1678.
Citation Numbers: 193 S.W. 153
Judges: LEVY, J. (after stating the facts as above),
Filed Date: 2/21/1917
Status: Precedential
Modified Date: 1/13/2023
By the first assignment of error it is contended that the court erred in admitting in evidence the deed from Wyngate Truitt to T. B. McReynolds, of date August 30, 1860. It *Page 155
is thought that this deed is not void, as was heretofore ruled, for insufficiency of description of the land. Hinkle v. Hays,
The appellant made a statutory demand, before the trial of the case, of appellee for an abstract in writing of the claim or title to the land in suit upon which he relies. Article 7743, Vernon's Sayles' Stat. Appellee filed an abstract, which, besides stating certain deed, stated "statute of limitation of three, five, and ten years — that is to say, possession from 1860 to 1885 — as contemplated by the statute." And appellee offered in evidence, over appellant's objection thereto, a certificate of the comptroller stating, as shown by the records of his office, the assessment for taxes of the Alexander Nevill survey for the years 1855 to 1869, inclusive, and also tax receipts issued by the tax collector for the years 1878 to 1910, with the exception of the years 1884 and 1885. The appellant predicates error upon the ruling of the court, because the certificate of the comptroller and the tax receipts of the tax collector were not included nor given in the abstract filed. The statute provides (article 7746) that:
"In all cases the documentary evidence of title shall, at the trial, be confined to the matters contained in the abstract of titles."
And the "documentary evidence of title," as used in the article, is meant to apply, we think, only to such character of writing as relates to title, claim, or interest in land. For according to the language of the statute (article 7745) the abstract of title shall state:
"(1) The nature of each document or written instrument intended to be used as evidence, and its date," and "(3) Where recorded, stating the book and page of the record."
As, for instance, besides conveyances or contracts to convey, a power of attorney (Smith v. Powell,
It is thought the evidence shows adverse possession under the deed in evidence, and occupancy and cultivation of a part of the land on the part of T. B. McReynolds from October, 1860, to his death in February, 1870, and by his heirs through tenants from February, 1870, to and through the year 1879. This would complete the 10-year statute of limitation, after excluding the period of time limitation was suspended by law. Consequently the court did not err in submitting this issue to the jury. But, excluding the evidence of Mrs. M. T. McReynolds, which the court should have done, we think, upon the ground of being hearsay, there is not evidence, we conclude, to present the issue of the 5-year statute of limitation, and therefore the court erred in submitting this issue to the jury, for the evidence shows payment of taxes from 1877, inclusive, to 1883, inclusive, with possession of the premises only appearing to the year 1879, inclusive.
And as the five-year statute of limitation has not application to the case, then the interest of the heirs of Alexander Nevill, deceased, except Thomas Nevill, would not in the record be barred of recovery by appellant, holding their interests by deed; for such heirs, except Thomas Nevill, were, according to the undisputed proof, under the disabilities, respectively, of coverture and minority in October, 1860, when the adverse possession of the land was begun by T. B. McReynolds. But as adverse possession of the land was begun by T. B. McReynolds in October, 1860, the interest of Thomas Nevill, who was of age at that time, would be barred under the 10-year statute of limitation, as found by the jury to be complete. And the one-half community interest in the land of Mrs. Elizabeth Nevill, wife of Alexander Nevill, would be barred by the 10-year statute of limitation, for she was living in October, 1860, when adverse possession was begun by T. B. McReynolds. The adverse possession so begun against Mrs. Nevill was not legally stopped by the disabilities of her heirs to whom her title descended. Johnson v. Schumacher,
We have considered the other assignments, and do not think they present reversible error. They are therefore overruled. As the statute of 10-year limitation was, as found by the jury, complete, the one-half interest in the land of Mrs. Elizabeth Nevill, and the Interest of Thomas Nevill, which was one-twentieth of the whole, were barred, and appellee was enabled to recover the same. The interest of Thomas Nevill, inherited by him on the death of Mrs. Nancy Carter, would not be barred by the 10-year statute of limitation. And as the five-year statute of limitation has not, in the evidence, application, the interest of all the other heirs of Alexander Nevill, deceased, would not be barred by limitation, and the appellant is entitled to recover the same.
Therefore the judgment of the district court is reversed, and judgment is here rendered in favor of appellee, in virtue of the ten-year statute of limitation, for eleven-twentieths, and in favor of appellant, in virtue of his deed, for nine-twentieths of the land in suit as described in the deed to McReynolds. The costs of appeal will be taxed against appellee.
Motion for rehearing overruled.