Word v. Drouthett

Citations

• 44 Tex. 365

Syllabus

<p>1. Decree of partition is prima facie evidence of title in favor of each of the parties to that part of a tract of land adjudged him in partition and against parties who have entered under any of the co-tenants.</p> <p>2. Limitation.—See discussion of the ten-years’ statute of limitation.</p> <p>3. Same—Evidence.—The fact of possession is for the jury, but what character of facts are required or are sufficient is a question of law, requiring an explanation of the statute to enable the jury to determine the nature and character of the occupation or possession insisted on as a defense.</p> <p>4. Tenancy.—It is error to instruct the jury, in trespass to try title, where the plaintiff replies the tenancy of the defendant to the plea of .limitation, that the relation of landlord and tenant can only he established by a written or parol contract, and that if parol, the duration of such relation terminates in twelve months from its date. The entry upon lands under or by consent of the legal owner or of one of several tenants in common is, as to such entry, a tenancy, and cannot be repudiated by the tenant in a suit by the holder of the title under which such entry was made, unless such tenancy has been terminated by some express disclaimer brought home to the landlord, so as to put in operation the statutes of limitation.</p> <p>5. Limitation—Second suit in trespass to try title.—Such suit can be brought as well where the defense interposed in the first suit was the statutes of limitation as in other cases.</p> <p>6. Same.—If the defense, in trespass to try title, be such that it can be given in evidence under the plea of not guilty, the nature and effect of the defense cannot be changed by presenting it in a plea in reconvention, nor will a judgment in such case upon such plea, quieting the title of defendant, bar a second suit.</p>