The fifteenth section of the statute of limitations of Texas is
as follows:
"Every suit to be instituted to recover real estate, as against
him, her, or them in possession under title or color of title shall
be instituted within three years next after cause of action shall
have accrued, and not afterwards."
The proper construction of this section is that a possession may
be in two or more holding in privity, one under another, and if the
possession of both so holding will make out the term prescribed,
and he who is sued has title or color of title, then the bar will
be effectual.
Therefore, where two persons, claiming under the same head right
certificate, had possession of the land claimed for three years, it
was sufficient.
The decisions of the Supreme Court of Texas upon this subject
examined.
The case is stated in the opinion of the Court.
MR. JUSTICE CURTIS delivered the opinion of the Court.
This case was an action of trespass to try the title to a tract
of land. On the trial, the defendant relied on the 15th section of
the statute of limitations, passed in 1841, by the Congress of the
then Republic of Texas, which is in the following words:
"Every suit to be instituted to recover real estate, as against
him, her, or them, in possession, under title or color of title,
shall be instituted within three years next after cause of action
shall have accrued, and not afterwards, saving,"
&c.
In reference to this defense, the district judge instructed the
jury that a possession under the said 15th section might be in two
or more, holding in privity one under another, and if the
possession of both so holding will make out the term prescribed by
said section, and he sued has title or color of title, then the bar
will be effectual.
The plaintiff excepted to this instruction, and the jury found a
verdict for the defendant.
Several objections to this instruction have been relied on in
this Court. The first is that a holding by two persons, for the
space of three years, one claiming and holding in privity with the
other, does not satisfy the statute; that the person who is sued
must himself have held for the space of three years. The argument
is that the period of three years begins to run when
Page 58 U. S. 602
"cause of action shall have accrued;" that the statute does not
say when a cause of action, or the first cause of action accrued,
but, when cause of action accrued; that cause of action accrues
against each tenant, in succession, when he enters, whether he come
into the land in privity with the preceding occupant or not, for
each is a trespasser by an unlawful entry; that the statute refers
not to the cause of action which first accrues to the plaintiff by
reason of an unlawful entry, but to the cause of action which
accrues to him by reason of the entry of the particular person
sued. It is conceded that this construction of the statute is not
in conformity with the put upon the 21 Jac. I, ch. 16, and its
reenactments in this country, but it is insisted that the
particular terms of the statute in question call for a different
interpretation because the bar therein provided for is confined to
certain cases therein enumerated, and is not applicable to all
cases of adverse holding for the space of three years.
It must be admitted that the bar afforded by the 15th section of
the statute is confined to the particular cases therein described,
but the question is whether that description excludes cases where
there has been an adverse holding for three years, by different
persons holding in privity with each other, and we are of opinion
that such cases are included in the 15th section. We think both the
language of the law and its subject matter, as well as the
analogous cases respecting the interpretation of similar statutes,
call for this construction. The plaintiff would read the law as if
it had said "within three years next after cause of action shall
have accrued" against the person sued. But these words are not in
the law, nor would the Court be justified in interpolating them. It
is true, the only cases enumerated in the law are suits against
persons in possession under title or color of title. But the
definitions of the terms, title and color of title, which
immediately follow, are:
"By the term 'title,' as used in this section, is meant a
regular chain of transfer from and under the sovereignty of the
soil, and color of title is constituted by a consecutive chain of
such transfer down to him, her, or them, in possession, without
being regular, as if one or more of the memorials, or muniments, be
not registered or not duly registered,"
&c. It is quite plain, therefore, that when this section
speaks of a suit against one in possession under title or color of
title, it is not confined to cases in which the defendant was the
first to enter under that title. If he be in a regular chain of
transfer from and under the sovereignty of the soil, or in a
consecutive chain of such transfer, though informal in its
instruments, he is a defendant within the descriptive words of this
section, and it is wholly immaterial
Page 58 U. S. 603
whether he was the first taker from the sovereign of the soil or
not.
The words "as against him, her, or them in possession, under
title of color of title" restrict the benefit of this bar to those
persons who hold under such a title; the words "shall be instituted
within three years next after cause of action shall have accrued,
and not afterwards" prescribe the length of time during which cause
of action must have existed by reason of an adverse holding under
such a title. And as, by the very terms of the act, the person
setting up this bar must be in a chain of transfer from the
sovereignty of the soil down to himself, it necessarily follows
that the defendant setting up the bar must be in privity with his
predecessors in the title, and that he cannot rely on the title or
possession of anyone under whom he does not claim. There is nothing
in the act to restrict the party sued from relying on the
possession of any predecessor in that title under the sovereignty
of the soil, which has come to himself, and the purpose of the act
requires that he should be allowed to do so. That purpose was to
give repose to such titles by three years' adverse possession. But
if the construction contended for by the plaintiff in error were
adopted, three years' possession under that title by one person
would not quiet that title. If a descent were cast or an alienation
took place after three years had elapsed, a right of action would
accrue against the heir or purchaser who should enter, and that
action would not be barred because the defendant had not himself
held possession for three years.
This would be an extraordinary anomaly. At the common law, a
descent cast tolled the right of entry, because the heir came in by
operation of law, and a discontinuance was worked by the alienation
of a tenant in tail, so that the alienee could not be entered on by
the heir in tail. These rules of the common law were changed in
part by the 32 Hen. VIII, ch. 33, and have been wholly abrogated in
most of the United States; but that the title of the heir or
alienee should be worse than that of the ancestor or grantor, and
that an action wholly barred against the latter, should be revived
and be in force upon an entry by the former under a title already
protected by the act would indeed be strange. We see nothing in the
language or objects of the law, and certainly there is nothing in
the decisions under analogous laws, calling for this
interpretation.
Though we do not know that the Supreme Court of Texas has had
occasion to decide the precise question here presented, that
learned court has repeatedly expressed views of this section of the
act of 1841, in accordance with those we have above given. In
Wheeler v. Moody, 9 Tex. 377, that court, in
Page 58 U. S. 604
considering a defense set up under the 15th section of this act,
said: "The possession need not be continued by the same person, but
when held by different persons, it must be shown that a privity
existed between them." So, in
Horton v. Crawford, 10 Tex.
390, speaking of the time when the cause of action accrues within
the meaning of this section, they said:
"When does the cause of action accrue? Unquestionably at the
instant of possession taken under the circumstances specified in
the statute -- namely under title or color of title, according to
the definition of those terms given in the law itself."
See also Portis v. Hill's Administrator, 3 Tex.
273.
We understand, therefore, that our views of this statute are in
accordance with those of the Supreme Court of Texas so far as that
learned court has had occasion to express any opinion on the
subject, and we hold in the terms laid down by them in the case of
Wheeler v. Moody that, under the 15th section of the act
of 1841, the possession need not be continued by the same person,
and that consequently the instruction of the district court in this
particular was correct.
But it is further objected that the instruction given did not
require that the first holder should have been in under title or
color of title, but only that the person sued should have title or
color of title, and that this instruction would allow the benefit
of this bar to one having title, and a possession of less than
three years, if he claimed in privity with another who had
previously possessed without title. But the instruction must be
taken with reference to the admitted facts upon which it was given.
Those facts were:
"It was proved by the admissions of the parties by their
attorneys that L. P. Alford and the defendant, by a union of the
several possessions, had, next before the commencement of the
plaintiff's action, peaceable, adverse, and uninterrupted
possession, for more than three years, claiming under color of
title, of six hundred and forty acres of land, by virtue of said
Alford's head right certificate, duly recommended, duly surveyed,
and returned to the General Land Office, and within the boundary of
both of the one-league surveys of plaintiff, described and
mentioned in the second and third count of his petition."
There was no room to argue nor could the jury find that any part
of the three years' possession was held without color of title, for
the contrary is expressly admitted. In reference to the particular
facts of this case, the instruction was not erroneous in the
particular complained of.
It is also urged that in addition to what was said by the court,
the jury should have been told that the defendant, having no title
or color of title such as that prescribed by the statute,
Page 58 U. S. 605
could not have the benefit of the bar, by virtue of the title or
color of title of Alford, under whom he claimed, for the reason
that, claiming a bar under the statute, he had to show the
circumstances prescribed by it, and the title prescribed having to
be a transfer down to him in possession, the requirement was not
complied with by showing a title in him under whom he claimed; and
the consequence is that the defendant, instead of proving himself
within the rule required, shows himself out of it, and not entitled
to the bar.
But upon the facts agreed, this position is not tenable. It was
agreed that the defendant's possession was under color of title, by
virtue of Alford's head right certificate, and the instruction
given by the court required the jury to find that the defendant
claimed in privity with Alford, and this privity is also admitted,
for he could be in under color of Alford's head right only by force
of a consecutive chain of transfer through Alford from the
sovereignty of the soil.
He was therefore not setting up color of title in another, but
in himself. It is true the record does not show how this privity
was created, nor that the defendant was in a consecutive chain of
transfer. But the necessity for this proof was done away by the
admission of the plaintiff, that the defendant was in possession
under color of title, for as has just been observed, this was
equivalent to an admission that he was in under such a chain of
transfer from the sovereignty of the soil.
It has also been urged that the 14th section of this statute
allows an entry within ten years next after the right accrues. We
are spared the necessity of discussing this question at large
because it has been distinctly decided by the Supreme Court of
Texas in
Horton v. Crawford, 10 Tex. 382, and we concur
entirely in the correctness of the reasoning by which it is there
shown that the 14th section of the act has no effect upon the bar
created by the 15th section.
The other matters assigned for error related exclusively to the
plaintiff's title. But as the bar under the 15th section of the
statute of limitations was complete and effectual upon the conceded
facts, there can be no error in the judgment in favor of the
defendant, even if the court ruled erroneously in respect to the
title of the plaintiff; and we have not considered these alleged
errors, and give no opinion thereon.
The judgment of the district court is
Affirmed with costs.
Order
This cause came on to be heard on the transcript of the
Page 58 U. S. 606
record from the District Court of the United States for the
District of Texas, and was argued by counsel. On consideration
whereof, it is now here ordered and adjudged by this Court that the
judgment of the said district court in this cause be and the same
is hereby affirmed, with costs.