Cook v. Knott

Citations

• 28 Tex. 85

Syllabus

<p>In order that a defense under the 16th section of the statute of limitation (of five years) should be complete, it must appear that, for five years before the institution of the suit, the defendant had been in the continuous adverse possession of the land, cultivating, using, or enjoying the same, paying the taxes thereon, and claiming under a deed or deeds duly registered. (Paschal’s Dig., Art. 4623, Note 1032.)</p> <p>See this case with reference to the effect of a recognition and. a subsequent disclaimer by a defendant of the plaintiff as his vendor, as affecting the defense of five years’ limitation.</p> <p>The defendant, in 1845, entered upon a portion of the head-right tract of the plaintiff, claiming the same under a deed from third parties. Two years afterwards, the plaintiff threatening to dispossess the defendant, the latter contracted with the former for the land, paying him part cash and executing his note for the remainder, and taking the plaintiff’s bond for title. On the plaintiff’s demanding payment of the note after its maturity, the defendant refused payment, and notified the plaintiff that he (the defendant) held the land under his deed from the third parties referred to, and would continue so to do. Held, that the defendant’s possession must be considered as adverse to the plaintiff up to the date of the contract between them; that although the effect of that contract might be to change the defendant’s possession from an adverse to an amicable one, and it might thus interrupt the running of the statute of limitation, yet the open and positive disclaimer, and notice subsequently made and given to the plaintiff by the defendant, converted the possession of the latter again into an adverse and hostile possession, and put the statute of limitation again in motion; and, there being no evidence that the defendant ever afterwards recognized the plaintiff as his vendor, the possession of the defendant is to be considered as continuing adverse from and