Cuellar v. Dewitt

The motion for rehearing presents three grounds, which we will consider in their order. The first ground is, "that the court erred in finding that the affidavits filed to obtain a patent were in compliance with law, and that the appellant had perfected his title by ten years limitation, because the affidavits refer to a different piece of land from that in controversy in this suit." We are unable to comprehend the force of this ground for a rehearing. The Musquiz title came through the affidavits upon which the patent is based, and appellant claims through that patent. In the patent the land is described as being located about seventeen and one-half miles west of San Antonio, by virtue of an affidavit made on December 28, 1874, and then by metes and bounds describing the land. The affidavit made in 1871 describes the starting point as being at the southwest corner of survey number 239 1/4, and then describes the land as it is described in the patent. The patent describes the starting point as being at the southwest corner of survey number 300 1/8, and this it is argued shows that the Land Commissioner granted a patent to a different tract of land from the one applied for by Musquiz. There is no merit in this proposition. There is no question of the identity of the land in the case. Cuellar and his witnesses swear that the land sued for, which is described in the patent, is the same land that Musquiz settled on in 1871, and the same land that Musquiz sold to Cuellar. The affidavit referred to in the patent is that of date December 28, 1874, and that affidavit refers back to the affidavit of 1871. There is no affidavit of date May 28, 1874, as claimed in the argument of counsel. The affidavit of December 28, 1874, refers back to the survey made to the land in May, 1871. Appellee claims through the same affidavit and patent as appellant, and if the affidavit of Musquiz is not the basis of the patent, as the latter asserts, we can not see how appellee is in a position to be benefited by it. Musquiz was entitled to a patent in 1874, and could have received it by application and paying the necessary fees. Cuellar got the title of Musquiz, and the patent when issued was his.

As stated in the second ground for rehearing, a party can be estopped by his acts which mislead an innocent party and cause him to part with some right, but the principle does not apply to the facts in this case. Cuellar did not mislead appellee, and, indeed, could not have done it. Appellee is an attorney, and as such was employed by Musquiz to sue Cuellar. He must have known all the facts connected with the case, and certainly could not have been deceived by Cuellar coming into his office when a request was made for him to write a deed for Musquiz to sign. The facts in the case lead us to the conclusion that Cuellar, who was a Mexican, had in some way learned that the patent to the land had been issued in the name of Musquiz, and supposed that he ought to have another deed to the land, and went in company with Musquiz to the office of appellee to get it. This was not sufficient to deceive any one. The facts put appellee fully upon notice that appellant was in possession of the land and claiming it. The doctrine of estoppel has no standing in this case.

There can be no question as to the statute of limitation running against the wife of Musquiz. The case of Hussey v. Moser,70 Tex. 42, is conclusive of this case on the question of limitation running against the wife in case of a homestead not her separate property. Musquiz and wife abandoned the place, and he conveyed it to Cuellar, acting in direct hostility to the homestead rights of the wife. The land was community estate. Kelley v. Whitman, 41 Tex. 647; Simonton v. Mayblum, 59 Tex. 7 [59 Tex. 7]; Smith v. Uzzell, 61 Tex. 220. There is nothing in Hargadene v. Whitfield, 71 Tex. 488 [71 Tex. 488], that is in conflict with this doctrine. The ground for holding that the statute of limitation will run against a wife in the case of a homestead when it is not her separate property is, that she can sue alone for the enforcement of her homestead rights should her husband refuse to join her. If this is a legislative enactment engrafted on the law of limitations, as contended by counsel, this court is in no manner responsible for it. It is a question too well settled by decisions of the Supreme Court for this court to differ from it.

This disposes of all the grounds for a rehearing. We see no reason for changing our opinion. The motion is overruled.

Motion refused.

Writ of error to Supreme Court refused February 10, 1894