Statement of the case. him, her or them in possession, without being regular (as if one or more of the muniments be not registered or not duly registered, or be only in writing, or such like defect," &c.), there is neither title nor color of title when any link in the chain is so wanting, as that there is a hiatus in the chain; that is to say, when the case is not that of a defect or flaw in some link which makes the chain weak at that point, but when there is no chain at all. 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 who 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, us 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, ber or them in possession, without being regular; as if one or more of the memorials or muniments be not registered, or not duly 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 City Company, from whom the title was deraigned, to one Hasbrook. The plaintiff asserted himself to be the owner of Hasbrook's title. Opinion of the court. 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: 66 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. The only question involved in this case arises on the construction to be given to the 15th section of the statute of limitations of the State of Texas. It is somewhat peculiar in its terms, and is well suited to the policy of a new State desirous to encourage emigration, and the settlement of its vacant lands. For this purpose the usual limitation of twenty years, which alone would protect one who had entered without title, was held insufficient. Hence the legislation of Texas. Opinion of the court. reduced the term to ten years. This term was also reduced to five years when the disseizor entered with a claim of title under a recorded deed, and had paid the taxes and cultivated the land for that length of time. The limitation of three years now under consideration was intended to protect settlers under junior grants emanating from the State of Texas against older titles under the former Mexican sovereignty, as well as a fraudulent issue of head-right certificates or land scrip under the Republic. This policy is clearly exhibited in this peculiar term aud the provisions of this section. As respects the instruction requested by the plaintiff's counsel, we are of the opinion that the court erred in refusing it. There was no dispute that the defendant purchased with full notice of the previous deed to Curtis. The only question was, whether this deed from the sheriff gave him such a title or color of title as is required by the statute. Unnecessary labor and learning has been expended by counsel, as to the construction of similar statutes in other States, and as to whether the possession of defendent was adverse or not. This section of the statute is its own interpreter. It was not made to protect mere adverse possession; it carefully defines the construction of the words used. By the term title, as used in this section, is meant "a regu lar 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 or her or them in possession, without being regular, as if one or more of the memorials or instruments be not registered, or not duly registered, or be ouly in writing, or such like defect," &c., &c. Now, this case shows no such "chain of title or transfer from the sovereignty," as to constitute either title or color of title. As defined by the act, a link in the chain is absent, which is necessary to make the whole one chain. It is not merely a defect or flaw in some link in the chain which may n.ake it weak at that point, but there is no chain at all. A Sale of 'he sheriff' ou a judgment against " A," confers nei Statement of the case. ther title nor color of title to the property of "B." In Thompson v. Cragg,* the court say: "Nor can there be color of title where there is a complete hiatus in the chain. Color of titles differs from titles only in externals. The substance of both is the same, were this not so. If color of title were something intrinsically and substantially less or weaker than title, then the wisdom of the legislature could not be vindicated," &c. This construction of the statute as thus settled by the courts of Texas is conclusive, even if we doubted its correctness, which we do not. JUDGMENT REVersed, and a vENIRE DE NOVO Awarded. [See infra, next case, Osterman v. Baldwin, in regard to this same section 15 of the Texas statute of limitations.-REP.] OSTERMAN V. BALDWIN. 1. A citizen of the United States, and who, as such, was of course before the admission of Texas into the Union, an alien to that republic, and so, as against office found, incompetent to hold land there, became on the admission, competent, no office having been previously found. 2. A purchaser at sheriff's sale buys precisely the interest which the debtor had in the property sold, and takes subject to all outstanding equities. 8. Trusts of real estate are not embraced by the statute of frauds of Texas, and may be proved, as at common law, by parol. 4. A mere declaration in writing by a vendor of a vendee's purchase of land, that the vendee had paid the money for it, and that the vendor intended to make deeds when prepared to do so, is not a document purporting to convey title; and accordingly will constitute neither a link in "a consecutive chain of transfer," nor "color of title" within the meaning of the fifteenth section of the statute of limitations of Texas. APPEAL (submitted) from the District Court for the Eastern District of Texas. In 1839, prior to the admission of Texas into our Union, and that country being then an independent republic, Bald * 24 Texas, 596. See also Wright v. Daily, 26 Id. 730; Berry v. Donley, Id. 787; Harris v. Hardeman. 27 Id. 248. Statement of the case. win, a citizen of New York, and an alien, of course, to Texas, purchased and paid for three lots in Galveston, from the Galveston City Company, a corporation created by law, with power to sell real estate, aud which owned the lots sold. As the company was not at the moment ready to execute deeds, he received certificates of the purchase. These described the purchased lots, acknowledged the receipt of the purchase-money, and added that Baldwin was entitled to receive a conveyance, so soon as the company was prepared to execute deeds in proper form. These certificates were made out in Baldwin's own name. The constitution of Texas, however, prohibiting aliens from holding lands there, he transferred them to James S. Holman, a Texan; the purpose having been "to place the lots in the hands of a citizen to watch over and protect them, for the payment of taxes and otherwise." No consideration moved from Holman, and the transfer was on an express agreement (made only by parol, however), that Holman was to hold the lots, and take a conveyance of them from the company, as Baldwin's trustec. The certificates were placed in an envelope, on which was indorsed a memorandum, thus: "No. 113. "JAMES S. HOLMAN. "Lots No. 5 and 11, in block 617, &c. &c., This envelope, with the certificates inclosed, was subsequently found in the office of the company, having, as was said by the one side, been left there for safe keeping at the time, and by the other, having been brought there in order that a deed might issue to Holman, and surrendered and filed on the issue of a deed accordingly. The letters and figures, "No. 113," indicated the number of the deed to be issued for these lots. In September, 1846, the lots were levied on by the sheriff of Galveston County, upon a judgment obtained by one McKinney against Holman. Notice was given to McKinney of Baldwin's ownership of the lots, and that Holman had Dever had any interest in them, except as trustee for Baldwin. |