Glasscock v. Dimmitt

RICE, J.

Appellee, claiming title in fee to 643 acres of land out of the Francis A. Hudson and James A. Patterson surveys in said county by deeds of conveyance from and under the sovereignty of the soil, and as an advancement from his father’s estate, as well as by virtue of the statutes of three, five, and ten years limitation, brouglit this suit against appellant to remove cloud from title thereto cast thereon by appellant’s alleged assertion of ownership thereof, based upon a decree of partition in his father’s estate, wherein he was awarded an undivided interest of 500 acres out of said Hudson survey. Appellant answered by a general denial and a plea of not guilty and by cross-action, setting up ownership in himself of an undivided 357.2 acres in said survey by reason of the following facts, to wit: That he was one of the heirs of G. W. Glasscock, now deceased, who died in 1868; that said Glasscock, before his death, acquired by deed a 500 acre locative interest in said Hudson survey by contract with Francis A. Hudson, the owner thereof; that said interest was never divided or partitioned between said Glasscock and said Hudson or his heirs, but .was held by them as tenants in common up to the death of the said Glass-cock ; that the said 500-acre interest was allotted to him, appellant, in the partition of his father’s estate in 1870, and that subsequent thereto J. J. Dimmitt, Sr., the father of appellee, acquired the entire interest of the Hudson heirs in the balance of said land, whereby he and said Dimmitt continued till April, 1880, to hold said tract of land as tenants in common; that on said last-mentioned date he, appellant, conveyed to said Dimmitt, Sr., 142.8 acres out of his said 500-acre interest by metes and bounds, thereby leaving him 357.2 acres therein, which was never partitioned; that after the death of said J. J. Dimmitt, Sr., in 1884, appellee as heir at law succeeded to his father’s rights therein, and further alleging that by virtue of a deed executed in May, 1839, by said Hudson to his father, the latter acquired said 500-acre interest in said Hudson survey in consideration of his services in surveying, locating, and procuring a patent to be issued to said Hudson for a one-third league survey by virtue of the latter’s headright certificate; that, under said deed, his father had the right to demand from said Hudson a second deed setting aside to him in severalty his interest in said one-third league, which was never executed, but they continued to hold said land as tenants in common; that, by reason thereof, he succeeded to all the rights and obligations of his father under said deed, and prayed for specific performance thereof, and that appellee be required to make a deed to him to said 357.2 acres out of said Hudson survey, the field notes of which were fully set forth.

Appellant further answering, in reply to plaintiff’s plea of limitation, claimed that he was not precluded from recovery thereby, because he alleged that plaintiff’s father fraudulently represented to appellant that he had no interest in said survey, because his, appellant’s, father during his lifetime had in selling off lands from the Addison and Dyehes surveys, which adjoined the Hudson survey, included in such sales 'more land than he owned therein, and overlapped upon and sold off all the lands he owned upon the Hudson survey, and that appellant, being wholly ignorant of the facts thus stated, and having implicit confidence in the integrity and ability of plaintiff’s father, who was both a lawyer and a surveyor, who after making several surveys thereof, stated to appellant that he only had 142.8 acres of land left in said survey, and, believing these representations to be true, he was induced thereby to convey unto said J. J. Dimmitt, Sr., said 142.8 acres of land, believing that was all he was entitled to in said Hudson survey; that, by reason of such false surveys and fraudulent representations, defendant permitted the said Dimmitt, Sr., to take possession and control of, not only said 142.8 acres so conveyed to him, but the balance of his father’s interest in said land, to wit, 357.2 acres. But, if it should be held that said Dimmitt was honestly mistaken in his said representations, then the same was a mutual mistake, and in either event appel-lee should not be allowed to set up limitation in bar of his, appellant’s, right of recovery. Appellee, replying by supplemental petition to appellant’s cross-action for specific performance, set up laches and stale demand.

There was a jury trial, resulting in a verdict and judgment in behalf of appellee, from which this appeal is taken.

While a number of interesting questions are raised in the brief, some of which are not free from difficulty," still, since appellee, under the undisputed evidence in this case, was shown for more than five years prior to the filing of appellant’s cross-action to have - been in peaceable and adverse possession of the land in controversy, cultivating, using, and enjoying the same, and paying taxes thereon and claiming title thereto under a deed duly registered, these questions become, in our opinion, unimportant, and therefore unnecessary to be determined, because plaintiff was entitled to recover under .the statute of five years’ limitation which had been pleaded by him, and the court therefore did not err in submitting plaintiff’s right to recover under said five years’ statute, but would have been justified in our judgment under the facts in instructing a verdict in his favor. Article 3342, Mcllwaine’s Ann. Stat. For which reason, the judgment of the court below is in all things affirmed.

Affirmed.