League v. Atchison
ERROR to the District Court for the Eastern District of Texas.
The statute of limitations of Texas, after making ten years a protection to one two enters without title, and five years a protection when the party has entered with claim under a deed on record, and has paid the taxes and made cultivation during that term, enacts by its fifteenth section as follows: 
'That every suit to be instituted to recover real estate, as against him, her or them in possession, under title or color of title, shall be instituted within three years next after the cause of action shall have accrued, and not afterwards. By the term title, as used in this section, is meant a regular chain of transfer from or under the sovereignty of the soil; and color of title is constituted by a consecutive chain of such transfer down to him, her or them in possession, without being regular; as if one or more of the memorials or muniments be not registered, or not duty registered, or be only in writing, or such like defect as may not extend to or include the want of intrinsic fairness and honesty; or when the party in possession shall hold the same by a certificate of head-right, warrant, or land-scrip, with a chain of transfer down to him, her or them in possession; and provided this section shall not bar the right of the government.'
With this act in force Atchison brought suit against League to recover a lot of ground in Galveston.
On the trial, it appeared that both parties claimed title under the Directors of the Galveston ity Company, from whom the title was deraigned, to one Hasbrook. The plaintiff asserted himself to be the owner of Hasbrook's title through a deed from him to one Curtis. The defendant denied the validity of this deed to Curtis, alleging it to be a forgery, and claimed under a levy and sale of the property under a judgment against Hasbrook posterior to the alleged sale of Hasbrook to Curtis. The validity of this deed was one of the issues to be tried, one however not involved in the case as here presented. The defendants pleaded the statute whose fifteenth section as to limitation of three years is above quoted. On this point the plaintiff's counsel requested the court to instruct the jury as follows:
'That, if the jury, under the instructions of the court, find a conveyance from Hasbrook and wife to Curtis to be valid, then the sheriff had no authority to make the levy, under the execution against Hasbrook, on the lot in question, or to make the deed to Atchison, and there is no such transfer of title from Hasbrook to Atchison as will sustain the plea of limitation.'
The court refused the instruction, and whether it had done so rightly or not was the point for review here.
The case was fully argued in behalf of the plaintiff in error by Messrs. C. Robinson and W. G. Hale, who relied on the fifteenth section above quoted, as clear of itself; citing in addition, however, by way of illustration, the statutes of Kentucky, Pennsylvania, and other States, and decisions upon them, to show what possession was adverse.
Messrs. Green Adams, and W. P. Balinger, contra.
Mr. Justice GRIER delivered the opinion of the court.
^1 Hartley's Digest, Art. 2391.