# Stanley v. Schwalby (147 U.S. 508)

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## Dissenting Opinion

    Field
United States Supreme Court
147 U.S. 508
Stanley v. Schwalby
Statement by Mr. Chief Justice FULLER:
This was an action of trespass to try title, brought February 23, 1889, in the district court of Bexar county, Tex., against David S. Stanley and three other defendants, by Mary U. Schwalby, whose husband, J. A. Schwalby, was afterwards made a party plaintiff, to recover a certain parcel or lot of land in the city of San Antonio. Mrs. Schwalby claimed title to one third of the lot as one of the three heirs of her father, Duncan B. McMillan, deceased, and subsequently one Joseph Spence, Jr., intervened, and asserted title to one third of the lot through a conveyance made to him by Duncan W. McMillan, another of said heirs. Judgment of possession of the whole lot was prayed, upon an averment that defendants entered without right or title.
The land in question was part of a military reservation of the United States, and was used and occupied as a military post, and David S. Stanley and his codefendants were officers of the army of the United States, holding and occupying the land under authority of the United States. They pleaded not guilty, and specially that they held lawful possession of the property as officers and agents of the United States, which had had title and right of possession, under conveyance duly recorded, since the year 1875, as innocent purchasers for value without notice; and also the 3-year, the 5-year, and the 10-year statutes of limitation of Texas, and a claim for allowance for permanent and valuable improvements.
The United States district attorney appeared for the United States, acting, as he alleged, 'by and through instructions from the attorney general of the United States,' and joined on behalf of the United States in the pleas of the other defendants.
The district court being of opinion that the United States could not set up the statute of limitations, whether for 3, 5, or 10 years, or otherwise, the pleas of the United States to that effect were ordered to be stricken out.
On the trial evidence was adduced on both sides bearing upon the title and the purchase of the property by the United States and the value of the improvements. It appeared that one Dignowity was the common source of title, and had executed a statutory warranty deed of the lot in controversy to Duncan B. McMillan, dated and acknowledged May 9, 1860, but not recorded until September 30, 1889; that McMillan, then a widower, died February 5, 1865, leaving three children him surviving, of whom plaintiff Mary U. was born September 11, 1848, and married J. H. Schwalby January 18, 1871; and Duncan W. was born November 2, 1850, and conveyed to Joseph Spence, Jr., the intervener, March 26, 1889, by deed acknowledged that day and filed for record March 29, 1889.
Dignowity died in April, 1875, testate, and by the terms of his will, which was duly probated that month, his property passed to his widow, who, on May 1, 1875, in her own right, and as independent executrix of her husband's will, released and quitclaimed to the city of San Antonio all her right, title, and interest in the lot in question, 'known as the 'McMillan Lot," with covenant of warranty against any person claiming by, under, or through Dignowity or his estate. The city of San Antonio conveyed this and three other lots by warranty deed, dated June 16, 1875, and recorded October 21, 1875, to the United States for military purposes.
Gen. Stanley testified that he was a brigadier general of the United States army, that his codefendants were officers of the same, and that they took and held possession as such officers.
It was contended that the evidence tended to show that the city and the United States took with notice of a previous sale to McMillan; that McMillan had never paid the purchase price in full; that the unrecorded deed was never delivered to McMillan, but held in escrow; and that Dignowity paid the taxes on the lot from 1860 to 1875.
The district court gave judgment in favor of the plaintiffs Schwalby and Spence, that each had title to one third of the lot, and for the possession of the whole, and also in favor of the United States for $1,521 for the improvements; that being the difference between the value thereof and the amount found due from the United States for the use and occupation of the premises. Both parties excepted to the judgment, and perfected an appeal therefrom. The supreme court of Texas reversed the judgment, and rendered judgment dismissing the action as to the United States, that plaintiffs recover from the defendants, Stanley and others, possession of the lot in question, and the sum of $200, being the value of the use and occupation of said land, together with costs; to review which judgment this writ of error was sued out. The opinion is reported, in advance of the official series, in 19 S. W. Rep. 264.
Asst. Atty. Gen. Maury, for plaintiffs in error.
A. H. Garland, for defendants in error.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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