Parker v. Baines

Citations

• 65 Tex. 605
• 1886 Tex. LEXIS 716

Syllabus

<p>1. Grant—Trespass—Actual entry—The elder title of a prior grantee draws to it the seisin of the entire tract covered thereby. A party claiming title under a junior grant may, by taking actual possession, dispossess the prior grantee to the extent of the second grant. But upon actual possession being taken by the prior grantee, the adverse holding of the trespasser becomes limited to his actual enclosure and improvements. (Evitts v. Roth, 61 Tex. 81 ; Whitehead v. Foley, 28 Tex. 289 ; Horton v. Crawford, 10 Tex. 338 ; Cunningham v. Fraudtzen, 26 Tex. 38.)</p> <p>2. Junior title—Constructive possession—Without actual entry, the holder of a junior title can have no constructive possession. Whatever locations may be made upon an elder grant, so long as no actual possession is taken, the title of the prior grantee to the elder grant remains unimpaired.</p> <p>3. Trespass—Remedy—Whenever actual possession is taken by a subsequent grantee or other trespasser, the prior grantee must take notice of the trespass and protect his title by taking actual possession or bringing suit within the proper period of limitation.</p> <p>4. Limitation—Adverse possession—To set the statute of limitations in motion, there must be a possession, actual, visible, notorious, distinct and hostile. It is not sufficient if it be upon land of another, or of the opposing claimant. (Robinson v. Lake, 14 Ia. 424.)</p> <p>5. Statute construed—The statute requires suit against parties claiming under title, or color of title, to be commenced within three years next after the cause of action shall have accrued. This means the time when actual entry upon the plaintiff’s land shall have occurred. The mere assertion of an adverse claim, unaccompanied by adverse possession, cannot bar the owner’s remedy.</p> <p>6. Possession—Extent—Two grants conflicted, and the second grantee was in actual possession of a part of his grant not covered by the prior grant; held, that the possession was not a constructive pos