Mast v. Tibbles

Citations

• 60 Tex. 301
• 1883 Tex. LEXIS 325

Syllabus

<p>1. Pleading.— The action of the court in overruling exceptions to a petition which sets up a construction placed upon a written instrument by the parties to it is unimportant on appeal when the record shows that the judge, on the trial, placed the same construction on the instrument, in the absence of any evidence to explain its terms.</p> <p>2. Stale demand — Pleading.—The defendant in trespass to try title cannot interpose, by exception, the defense of stale demand against a legal title evidenced by a patent from the state pleaded by plaintiff, when the petition states no act of possession or claim by the defendant.</p> <p>3. Construction op contract.— See statement for a contract made in 1836 which was construed to convey an undivided half of the land- to which one of the parties was entitled as a colonist, and which empowered him to sell that half and no more.</p> <p>4. Evidence.— The evidence of a party to a suit, in effect that he did not know that the deceased ancestor of the adverse party claimed an interest in the land involved in the suit, is not in violation of art. 2248, E. S., which forbids parties in certain cases from testifying as to statements by, or transactions with, deceased parties, it not appearing that the knowledge or want of knowledge depended on any such statements.</p> <p>6. Innocent purchaser.— To constitute one an innocent purchaser he must have purchased the land from some one having the apparent title, without notice that he had parted with the title before selling to him who sets up such a defense.</p> <p>6. Tenant in common.— One purchasing from a tenant in common cannot acquire, to the prejudice of the co-tenant, title to any specific portion of the land, but must hold it subject to all existing equities between co-tenants, to be settled on partition.</p> <p>7. Estoppel.— No length of time will estop the real owner of land properly patented to him from asserting his rights as against an adverse claimant, however notorious the cla