Letney v. Marshall

HENRY, Associate Justice.

This was an action of trespass to try title brought by the appellant. The original petition was filed in the year 1888. The defendant pleaded not guilty.

The plaintiff proved actual adverse possession of the land beginning previous to the year 1877, and he introduced in evidence a deed to himself for the land dated and duly recorded in that year.

The defendant introduced in evidence a judgment in the District Court of Angelina County, rendered on the 2d day of December, 1880, in a cause in which it was recited that the widow, who was the only heir of Isom Palmer, deceased, was the plaintiff and the said Fowler Letney was one of the defendants.

The judgment contained a recital that the “ defendant Fowler Letney has answered by general exceptions and pleas of general issue and not guilty,” and also that the plaintiff established title in herself from and under the sovereignty of the soil for the league of land of which the survey sued for by the appellant forms a part.

Appellant offered, but the court refused to permit him, to prove that he was never served with citation in the cause in which said judgment was rendered, had never voluntarily appeared therein or authorized any one to appear for him, and especially that he neither authorized the filing of said answer nor had any notice that it had been filed until after this suit was brought.

It is well settled by the decisions of this court that a judgment can not be impeached in the manner proposed. Murchison v. White, 54 Texas, 82 ; Fitch v. Boyer, 51 Texas, 344 ; Lawler v. White, 27 Texas, 250 ; Wilkerson v. Schoonmaker, 77 Texas, 617 .

No writ of possession was issued on the judgment and plaintiff continued in the actual possession of the land afterwards as he had done before, and now contends that as he thus continued in possession for more than five years subsequent to the rendition of said judgment he acquired title under the five years period of limitation by his possession subsequent to the judgment under his deed recorded some three years before it was rendered.

It does not become necessary to decide whether or not the operation of the judgment was such as to cancel for all purposes, including limitation, liis deed made and recorded before its date. Because if the deed could be given effect so as to give him the benefit of a new period of limitation beginning subsequent to the rendition of the judgment, it would be as necessary for him to prove the payment of taxes for five consecutive years; after that date as to prove possession. This he failed to do. He proved the payment of taxes for five consecutive years, but failed to show that they were all subsequent to the date of the judgment. His continuous *516 five years’ adverse possession after the rendition of the judgment is not made entirely clear.

Delivered February 3, 1891.

We find no error in the proceedings for which we think the judgment should be reversed, and it is affirmed.

Affirmed.