Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-04-30

w '"Hlluutu thereafter Id tho fiNplu.i,.,
TIE time " The trial This eRcinstyua' N
'SIse possession ON the part OF lilo earl
nnt.,,ii,v,,s'' oiu anu the appellant was opcn
H. a,," 1s ung continuous from the date of
lue custer OF Monahan. under claim ~ al,
suiete ownership Of the entire uronntt, A.
ps.aul Traced bis title by n rpruinr chain
Go,ttr u. ,, nom Dugan, the common source
as n Jcfe,n nr solStgignty Of the soil. and.
s,uiule ot limitation. Appellee claimed me-
uh innocent purchaser. having nail yain, H.
.tin",t A'ulrr uf Monuhuu without uctuoi
nv'l.' lhnt Monnhan never had amy reni
interest In the property. The mruss ,,,
NFau',s through which he clatued won,
W W., ~ Muhalnn ana his assigns after
,,ns i1irl9er lad been ousted; aud II Is con.
lrnu'I 10y appellant that they were oniy
qult claim deeds aud that appellee had coii.
hIu,llNt notice Of appellants title gntu.
~, 'n l,',, deeds were IN form releases or
puil-clalnH merely without conyonpnf ~
warranty. except that they contained tba
usuAl ldheudun clnusos. M so far as tbc
oohrluslons " fact Oiled In The district conrt
iuay .9l ne w conflict with these conrlus.
IONS theN are adopted,
CONCLUSIONS or LAW.
The ease was tried upou tho assp,,r,,.,,,
Nhlrh is not cunirovcrtcd hcN,. that what
yNgr title was conveyed To Monn6an v',g
u'Iu pm trust Tor the earl uf Aylcafofd a.
1,g 9li's ,i, mat uo part ~ the purchase
Ter To tie former aud that tho purcbase
Was made Tor the hcnent N the earl and
lln'h 20 the exclusion VI MOnahan. whose
name seems Ia have been Inserted nm no
deed FOR some collateral purpose. NOT Sis
closed. We concur iu this view. i Perry I'm
Trusts, section 100, CLARK Va Unupv M
ii,,iAaS ~ Hudson ". Wilkinson. 80 Texas,
~ bailey vs.. Harris. ~ Texas. 100.
Two questions are presented for dIsposi.
Uoui irat whether this trust anectei mi.
nell'cs ns bonahde purchaser without no.
tir" Ou account OF the character IN lie 81,
NrNHnce through which he dernlgpsd fltie
irom the common source: second vhetbsr
iha three years adverse Possession ~ ma.
p"lahl was sufficient tO preclude "a rpooy.
rfN, on account " The character OF titio
under which ~ was held.
]. me controlling effect rivnu the hnbnn.
uun clause 10 deed which would Other.
cson In GanSit " y. tBrl sSI@ oy The de-
lhi, requires a negative uuswor 10 the srst
question. While The doctrine that "a ouit.
,ialu nrrl WIZ No support a title founded
tho recognized rule lu fhis state sine, tbs
decision 10 Rodgers W Burrlurd "a 'Texns
thd nhl Harrison w. BORING a Texas 100.
The trend " the later eases rrrm 4, M,
towards a restriction OF the mil" N A.
worthy NJ note 40 this connection linn thc
supreme court NJ the United STATES am
iht authority, mainly. Of whose decisions
the rule was nrat adopted und followed
here l43 Texas, f1A 90 Texas. 200 SUNNI
has, In two well considered caara .ird
on the Oh day % last March. reviewing
rejected the rule ns being more arbitrnry
and technical than sound even whore ibr
bona hue purchaser takes NJ grantee in The
uii'riaim deed. und especially where the
conveyance iu the chain Of tltls
NuNpllr W.. Sherwood, L, g. w. e. 4 ID
Land %. Al. Sheets u. s. H. Nos. o aud
10 pH. aiS 40.
p ON the Second question. which involves
a construction OF Art 8iHa of the r,yissl
statutes dthuing ANA Illustrating the mean.
lug OF title and color of title. az used
lu Art 3lNl, We have found % very difilcult
tn reach u satisfactory conclusion. Ihe
language employed iu this definition ANA
Illustration d. very suggestive Of an inten.
session 10 such 49, n held under deeds or
other writings, ana this construction seems
To have been placed hy our supreme court
upon the statute as 10 stood prior 10 the
W. Simpson, 10 Texas, As: Whitehead ~
Foley, - Texas, 40. While IN these cnses
IL was decided thntl within the meaning
of the statute then la force tpRsChal's digest.
regular aud c1eCtuAl as N By written mo
mortal II WIS further held that. IA ease
the claim OF transfer was not regular. the
Irregular lluks had To be- evidenced in writ.
Ing ana that hy u Consecutive chain "
transfer" was meant consecutive written
transfers The present statute substitu.
les m mus connection the word claim" Tor
'chain.' In the latter part Of the definition.
however, ms u now stands, the expression
"chain ~ transfer again appears. which,
we think Indicates that these words were
Intended 10 be- used INTERCHANGEABLE. Tho
statute defining "culor Of title. after belue
so construed, was, without any other change
re'enncted as part OF the revised statutes
we are thus BROUGHT on the authority or
the judicial ana legislative construction iu
Yulved, 10 the conclusion that the limitation
defense was not available IA this case Ina
arriving nt TITS conclusion, We are not un-
mindful OF the distinction taken between
'c0lor and title" aud "claim OF tltlc' by
the supreme court OF Iowa in the case IN
Hamilton ys Wright, 80 Iowa, fSO whore.
in ~ was held that the latter, and NOT
the former might exist Boy parol, huf we
think no such distinction was Intended in
be- introduced Ia view ~ the other language
employed ia the statute. hy the substitution
looked that line OF decisions holding 30
the absence OF statutory definition. that
color az title need not be based upon u
legal or paper title. but may rest ln parol.
facts not evidenced 10y a deed or other writ
ing may operate as color OF title. Hughes
vs. Israel, ~ No, ais, and cases there ci.
el We feel bound by the above cOnstriu.
ton 10 hold that the deed a. Aylpsf1rd
Finch nud MOnuhun conveyed the legal
title 90 Monahan 10 one-thrd Interest in
me hotel Pr9psr 4ad a % 'R Rs was ,rI NO
Tor Aylesf0rd and Finch, or either of them.
that there WAS such "a break ln The chain
on claim ~ transfer as prevented Z from
being consecutive within the meaning OF
our statutory definition OF "coiar ~ title"
~ we We're left 10 solve the question uuin.
nueuced hy precedent our inclination would
be 10 hold. as within the spirit Of the
statute (which seeks hy short period ~
adverse possession % cure formal defects
Ia title substantially goodl that, na ai-
pellaut held the requisite adverse possession
under such title as WAS, In equity good
II being irregular and defective only la
that oral proof WIS required 10 show rs
validity. which defect "did not extend 10
or Include the want OF intrinsic fairness