Kimbro v. Hamilton

Citations

• 28 Tex. 560

Syllabus

<p>Trespass to try title, to which the limitation of ten years was relied on as a defense. It appearing that the title to the land in controversy was in the government until it was vested in the plaintiff, the jury were correctly instructed that the statute of limitation of ten years did not commence running against the plaintiff until the legal title was vested in him by the patent, or the equitable title by his location and survey of the land, by virtue of a genuine certificate. (Paschal’s Dig., Art. 4624, Note 1033.)</p> <p>The word “possession,” as used in the statute of limitation, may mean either an actual residence on the land, or such cultivation, use, and enjoyment of the same, by visible, notorious acts of ownership, as would give notice to the owner and others of the adverse possession of the land; and it was for the jury to determine whether a sufficient possession had been proved to sustain the defendant’s plea of ten years’ limitation. (Paschal’s Dig., Art. 4624, Note 1033.)</p> <p>The plaintiff’s patent was evidence of the genuineness of the certificate on which it issued, and the field-notes of the survey made for the plaintiff, and introduced by the defendant, were competent evidence to prove that the survey was made by virtue of the certificate mentioned in the field-notes.</p> <p>The following charge, given at the instance of the plaintiff, is held to be erroneous: “ In order to enable the defendant to recover, he must show that the plaintiff had a legal or equitable right to the land ten years before the suit was brought. This is not shown by the mere production of the field-notes, without the certificate and proof of its genuineness. Having failed to do this, you will inquire whether the defendant has had the land ten years since the issuance of the patent, and, if he has not, you will' find for the plaintiff.” This is a charge on the weight of evidence, in assuming that the defendant had failed to establish that the certificate on which the pla