
    Alexander Murphy et al. v. Dolores Welder et al.
    (Case No. 1381.)
    1. Practice — Will—Evidence.— An instrument was offered in evidence as an ancient document coining from a proper custody, as follows:
    “ Friday, Oct. the 18th, 1838.
    “I, John Toole, of the city of New Orleans, state of Louisiana, bequeath to Mr. Thomas Redmond, or order, of the city of New Orleans, one quarter league of land and one town lot, situated in Aransas, in Power’s colony, Texas, as Martin
    Lawler has the deeds to it. Signed by my own hand. - his„, “ John x Toole.
    “Witness, Martin McLoughlin. mark
    “ Witness, James Toney.”
    It was offered as the will of John Toole in 1881, and had never been probated either in Louisiana or Texas. The land in controversy had been conveyed by John Toole to Martin Lawler before the date of the instrument offered. It was objected to and excluded on the ground that it was not described, and a copy thereof given in the abstract of title under which the party offering it claimed, and which was demanded by the objector before the trial. Held,
    
    (1) That since the record did not show that Toole was dead, the probate of the pretended will, nor did the instrument contain a sufficient description of the property claimed to have been devised by it; coupled with the fact that Toole, b ifore its date, had conveyed the property by deed to one under whom the adversary claimed, it did not appear from the paper that it was the intention of the testator to convey the land in controversy, its exclusion did not prejudice any right of those claiming ‘ under it, and without considering whether the objection to its introduction urged below was properly taken or not, its exclusion was immaterial.
    2. Heirship.— See opinion for facts held totally insufficient to establish sole heirship.
    3. Description — Limitation — Stale demand.— A party claiming title by limitation of five years under a recorded deed, read in evidence his tax deed conveying “ one thousand one hundred and seven acres of land taken from the league of land originally granted to John Toole, lying and being in the county of San Patricio, on the Popalotte, and more particularly designated as that part of said league of land claimed and held by Thomas Redmond.” The land in controversy was not part of a league granted to John Toole, but was a separate survey of one thousand one hundred and seven acres granted to him. Held,
    
    (1) The deed did not describe the land in controversy with that clearness and certainty requisite to meet the rigid requirements of the five years’ statute of limitations.
    
      
      4. Limitation — Payment op taxes.— A failure to prove payment of taxes for any year of the five years’ possession under a deed recorded will be fatal to the defense of limitation under the five years’ statute.
    5. Possession.— The casual and incomplete possession of land, which is not visibly occupied by him who claims such possession, but is evidenced by grazing sheep and cattle on it, and constructing and fencing around a tank of water, does not import such dominion and control of the land as to show a claim exclusive, hostile, adverse, or entirely inconsistent with the claim of the true owner.
    6. Stale demand.— No conclusion adverse to the legal title of the true owner of land can be drawn from the fact that, after his title is perfected, he refrains for a long period of years to take corporeal possession of it.
    7. Possession.— One’s title to land in law draws to it the possession, and the constructive possession remains with the owner of the fee until some hostile act amounting in law to an act of ouster destroys the character of possession.
    8. Same — Failure to pay taxes—Laches.— The mere failure of the real owner of land to pay taxes, or his laches or delay in bringing suit for its recovery against an adverse claimant, will not defeat his action, when there has been no actual adverse possession for a sufficient length of time to support a plea of limitations.
    9. Case approved.— Andrews v. Marshall, 26 Tex., 217, approved.
    10. Cases distinguished.— This case distinguished from Carlisle v. Hart, 27 Tex., 350, and Connoly v. Hammond, 51 Tex., 648. Those were cases in which the doctrine of stale demand was invoked against the assertion of a right purely equitable and which had been long neglected.
    Error from San Patricio. Tried below before the Hon. D. P. Marr.
    This was an action of trespass to try title, brought by Dolores Welder et al. against Alexander Murphy, on the 26th day of February, 1880, to recover one quarter of a league of land originally granted to John Toole as a colonist in the colony of Power and Hewitson, and situate in San Patricio and Bee counties. Catharine Redmond intervened, and made herself a party defendant, and adopted the answer of her codefendant, Murphy. The plaintiffs in the court below claimed under Toole, the original grantee, and showed a chain of conveyance from him to them, but showed no use or occupation of the land in controversy in themselves or any party under whom they claimed.
    The defendants below claimed, the intervenor as the heir of Thomas Redmond, deceased, and Murphy, as her agent, holding for and under her, first under what was claimed to be a will of the original grantee, in favor of Thomas Redmond, dated October 18, 1838; also under a deed from C. J. Sullivan to Thomas Redmond, dated October 29,1856, and under a tax deed made by D. L. Wood, assessor and collector of taxes for San Patricio county, to O. J. Sullivan, dated May 17, 1856.
    The following was the chain of title of Dolores Welder and others: Deed from John Toole, the original grantee, to Martin Lawler, September 27,1836; from Patrick Lawler, John Lawler and Alice Lawler, heirs of Martin Lawler, to John E. Griffin, June 13,1854; from John E. Griffin to Coleman Mathis and Fulton; from Coleman Mathis and Fulton to defendants in error, July 23, 1879, all properly recorded about the date of their execution. Plaintiffs in error claimed title through a purported will of John Toole, the original grantee, in favor of Thos. Eedmond, dated October 18,1838, and also under a tax deed from D. L. Wood, collector, to O. J. Sullivan, May 17, 1856, and from 0. J. Sullivan to Thos. Eedmond, October 29, 1856.
    Defendants below (Murphy et al.) offered in evidence a paper claimed to be the will of John Toole, in favor of Thomas Eedmond, for one quarter of a league of land; this paper was offered as an ancient document coming from the custody of Thomas Eedmond. It was as follows:
    “ Friday, Oct. the 18th, 1838.
    “ I, John Toole, of the city of New Orleans, state of Louisiana, bequeath to Mr. Thomas Eedmond, or order, of the city of New Orleans, one quarter of a league of land, and one town lot, situated in Aransas, in Power’s colony, Texas, as Martin Lawler has the deeds of it. Signed by my own hand.
    his
    66 JomT m Toole,
    mark
    “ Witness, Martin McLoughlin.
    
      “ Witness, James Toney.”
    This instrument seems never to have been probated either in Louisiana or Texas. It was objected to, and excluded on the ground that it was not described and a copy thereof given in the abstract of title under which the defendants claimed, which was demanded before the trial on November 6, 1880. There was no evidence of John Toole’s death.
    They also read in evidence a deed from D. S. Wood, assessor and collector of San Patricio county, dated May 19, 1856, reciting that “ there ivas due and owing to the state of Texas from J. M. Murphy, as agent of Thomas Eedmond,” certain taxes for 1854 and 1855. It recited a levy on “ one thousand one hundred and seven acres of land taken from the league of land originally granted to John Toole, lying and being in the county of San Patricio, on the Popalotte, and more particularly designated and known as that part of said league of land claimed and held by Thomas Eedmond.” It contained no other description, and purported to convey the land described to 0. J. Sullivan for $1.98. It was filed for record July 14, 1856. They also read a deed from 0. J. Sullivan to Thomas J. Eedmond, conveying for a recited consideration of $16, property described as in the tax deed from Wood, recorded October 29,1856. Parol evidence was admitted, over objection, to show that there was no grant on the Popalotte creek except one thousand one hundred and seven acres granted to one John Toole, and that there was a grant on the Aransas, in Bee county, to Jeremiah Toole for one league and labor. The land in controversy is situate in the counties of San Patricio and Bee.
    They also read in evidence a power of attorney from Catharine Redmond, who described herself as “ the sole and only heir of Mary R. Redmond, widow of Thomas J. Redmond, deceased, late of San Patricio, Texas.” This instrument bore date October 1, 1873. It conferred full power to manage or sell, and to make title to all 1 c real, personal, or mixed estate, belonging to her as the legal heir of the deceased Mary R. Redmond.” This instrument was filed for record February 9, 1876.
    Defendant testified that he was acquainted with Thomas Redmond and his wife; that they were both dead, the former dying in 1872 or 1873, and his wife a year or two afterwards; that he had often heard the deceased parties say that the defendant Catharine Redmond was the wife of the brother of Thomas Redmond, and the niece of his wife; that since their death no one had claimed the land except Catharine Redmond; that witness had paid all taxes on the land since the death of Thomas Redmond and wife, except for one year, 1878 or 1879, as the agent of Catharine Redmond; that he had possession of the land to the extent of pasturing and grazing sheep and cattle on it; that his cattle also ranged on it and watered at a tank he had on the land, which was inclosed with a fence to keep off other stock; that such possession was held “ for the last five or six years.” This witness did not reside on the land, or have any one else on it.
    The certificate of the state comptroller showed that the land granted to John Toole of one thousand one hundred and seven acres was rendered for taxes by Thomas Redmond from 1854 up to 1868, and again for 1871; that Mary Redmond rendered it for taxes in 1872 and 1873, and that no sales of the land for taxes for any of said years appeared from the records of the office to have been made.
    A certificate from the land office showed that the one thousand one hundred and seven acre grant to John Toole was rendered for taxes by J. M. Murphy, as agent of some party not named, for the years 1850, 1851 and 1852, and by the same party as agent of Thomas Murphy in 1854, and that no sales for taxes had been reported. Defendant produced in evidence tax receipts for the years 1863 and 1876.
    
      
      Pat O'Docherty, for plaintiff in error.
    I. The court erred in excluding, and not considering, the paper offered as the will or deed of John Toole, on the grounds of objection thereto, it being a paper over twenty years old, and coming from the proper source; no objection having been made to said, paper on the grounds of its execution, not having been proven, and the agreement of counsel having waived the necessity of filing copies of the papers and deeds relied upon by the parties. Stroud v. Springfield, 28 Tex., 649.
    II. The court erred in giving judgment for the plaintiffs upon the facts of this case, and the law as applicable thereto. The court is referred, as to the payment of taxes, to R. S., p. 331, art. 2260. As to limitation, R. S., pp. 463, 464. As to the claim of the plaintiffs being a stale demand, Carlisle v. Hart, 27 Tex., 350; Connoly v. Hammond, 51 Tex., 647, 648.
   West, Associate Justice.

The evidence of defendants in error disclosed, prima facie, a legal title in them to the land in suit, which would have authorized the judgment of the district court in their favor, unless all or some one of the defenses relied on by the plaintiffs in error were of such a character as to bar or preclude their right to recover, notwithstanding they had exhibited in evidence an apparently perfect title.

One defense was that Mrs. Eedmond offered in evidence a title to the property superior to that of the defendants in error. This claim ivas based upon the supposed will of John Toole, made in Hew Orleans on the 18th of October, 1838. This instrument was excluded by the court, and its action in that respect is one of the errors assigned. We are not prepared to say that the objections to its introduction, which were sustained by the court, were quite sufficient to justify its rejection, but as the case was submitted to the court without the intervention of a jury, we regard the error of the court in this respect (if, indeed, there ivas any error) as immaterial in view of the disposition we have concluded to make of the case.

The record does not show the date of the death of the testator, Toole, or the fact even of his death at all. The supposed will has never been probated in Louisiana or Texas, and has never been filed or admitted to record. It does not sufficiently describe the property supposed to be devised, nor state clearly where it is situated. From these facts, coupled with the statement in the will that “ Martin Lawler has the deeds of it,” and the further fact that in 1836 the testator had previously conveyed the land in suit to Martin Lawler, under and through whom the defendants in error derive title, we may safely conclude that it does not appear from, this instrument that it was either the object or intention of the testator by it to devise the land in suit, he having already previously parted with all title to it. In no aspect of the case does the plaintiffs’ title derive any strength or support from the supposed will. In this view of the case its admission or exclusion by the court was immaterial to the issue in hand, and the action of the court in that respect did not prejudice any right that the plaintiffs had.

The evidence, in addition to the fact that it fails _to show the death of John Toole, also fails to disclose the fact that the plaintiff in error, Catharine Redmond, is the sole heir of Thos. Redmond, the beneficiary named in the supposed will. All the record discloses on this subject is, that the said Catharine was the widow of one Peter Redmond, a brother of Thomas J. Redmond, and that she was recognized in their life-time by Thos. J. and Mary R. Redmond, deceased, as the niece of the said Mary, and in the power of attorney executed by Catharine to her coplaintiff, Murphy, she is described as the sole heir and only niece of Mrs. Mary R. Redmond, the deceased wife of Thos. J. Redmond, also deceased. This evidence manifestly was not sufficient to establish her heirship, even if we were to concede that Thos. J. Redmond had by the supposed will of Toole acquired the land in question.

The plaintiffs in error also failed to make out the defense of limitation of five years, the only one of the pleas of limitation in support of which any evidence at all was adduced. The deeds from Wood, the assessor and collector of San Patricio county, to Sullivan, and of Sullivan to Thos. J. Redmond, did not describe the land conveyed with sufficient clearness and certainty to meet the rigid requirements- of this clause of the statute of limitations. ÍTor was the parol evidence, offered to explain the acknowledged obscurity of the deeds in this respect, if admissible at all, sufficient to remove the ambiguity. There was also a plain, and in fact a confessed absence of all proof of payment of taxes for at least one of the years necessary to be computed in order to complete the bar of the statute by the lapse of five years from the date of plaintiffs’ possession to the date of the institution of this suit. There is no pretense that the taxes for 1878 or 1879, or at least for one of these years, were ever paid. There were no receipts proved for either year, and no receipts produced for a number of years, and, upon the whole, the proof of payment of taxes was so uncertain as fully to justify the court below in holding, as it did, that the plaintiffs had failed .to prove the payment of taxes for the time prescribed, as required by the statute, in order to enable them to avail themselves-of the benefit of the plea of five years’ limitation.

Mor was the proof of actual possession under the recorded deeds more satisfactory. The utmost effect that can be given to the evidence in this respect is, that the plaintiffs in error, by pasturing cattle upon the land and herding sheep on it, and by means of a dam, making a water-tank on the land, around which they erected a fence, maintained some sort of casual possession (Andrews v. Marshall, 26 Tex., 217) for five or six years before the trial. The trial took place on the 10th of September, 1881, more than eighteen months after the institution of the suit; and even conceding that this species of possession was continued for six years from the day of trial, it would still be less than five years, when computed from the day of the filing of the suit, which event put an end to the running of the statute.

Mor does such evidence of dominion and control as was adduced on the trial of this cause necessarily establish the fact that such possession was exclusive, hostile, or adverse to, or entirely inconsistent with, the claim of the true owner. Wheeler v. Moody, 9 Tex., 372. Mor is the evidence in this case on this plea sufficiently clear and strong to establish the important element of continuity in their possession. In any view of the case as presented in the record, the plaintiffs in error failed to establish the defense of limitation.

The plaintiffs in error also claim that the defendants’ title, on which the suit was brought, is a stale demand. The cases of Carlisle v. Hart, 27 Tex., 350, and Connoly v. Hammond, 51 Tex., 648,. in which the defense of stale demand was successfully interposed, were both cases in which the parties setting up a claim had only an equitable right, which they had failed to assert for ten years or more before the date of suit, without alleging any satisfactory explanation of their laches. On the other hand, in the present case the defendants in error have a clear legal title to the land in suit, perfect on its face, and to such a title the plea of stale demand alone could not possibly constitute a defense.

In a case in some respects similar to this, in which the plea of stale demand was attempted to be interposed to prevent a recovery upon a legal title, perfect on its face, this court passed upon this question. 49 Tex., 602.

Mo conclusion, adverse to the legal title of the true owner, can be drawn from the fact that, after his title is perfected, he refrains, for a long period of years, to take corporeal possession of his land. His title, in law, draws to it the possession, and this - constructive possession remains with the holder of the fee until some hostile act, amounting in law to an act of ouster, destroys this character of possession.

[Opinion delivered January 9, 1883.]

In' the case just referred to, Mr. Justice Moore observes: “We know of no authority to warrant the court in holding that the mere failure to pay taxes, or the laches or delay of the owner in bringing suit for the .recovery of the land to which he has a legal title, will defeat his action where there has been no actual adverse possession for a sufficient length of time to support a plea of limitation.” Williams v. Conger, 49 Tex., 602.

These views are very pertinent to the question in this case before the court, and are conclusive against the plea of stale demand.

The judgment of the court below is affirmed.

Affirmed.

Stayton, Associate Justice, did not sit in this case.  