Appellants in their brief grouped three assignments of error designed to raise the question of the sufficiency of the evidence to sustain the plea of ten years limitation. The first is to the effect that the court erred in submitting the issue at all, the second is that the court erred in refusing to submit the issue in the manner desired by appellants as set forth in a special charge, and the third is that the court erred in refusing a new trial because the evidence showed that until 1893 the appellees were endeavoring to obtain a patent to the land, and consequently could not have been holding it adversely to appellants. The assignments of error were not followed by a proposition, and neither of them is a proposition of law in itself. This court might properly have refused to consider them at all, but saw fit to notice a matter that might have been raised under the assignments, namely, that the limitation of ten years was not raised by the evidence. That question was thoroughly discussed by this court. In the motion for rehearing appellants shift their position and contend that it was a question of fact that should have been determined by the jury, under the law as embodied in a special charge requested by them. The reason for the rule requiring distinct propositions of law under each assignment of error is fully vindicated by this case.
If it be conceded that the circumstances indicate that appellees intended to resign possession of the land if the State did not grant a patent to it, and therefore the time while waiting for a patent should not be considered in the time necessary to make up the period of limitation, still the facts in this case fail to raise that issue. On the other hand the evidence indicates that appellees intended to hold the land whether the State owned it or not.
The true doctrine as to limitation, we think, is stated in the case of Converse v. Ringer, 6 Texas Civ. App. 51[6 Tex. Civ. App. 51], 24 S.W. Rep., 705, as follows: "It is true that limitation will not run when the land is vacated, and title remains in the State, but such is not the case here, and we can perceive no good reason why one in possession of land under the mistaken belief that it is vacant, asserting an exclusive and adverse claim, having the exclusive use and enjoyment of it under a claim that is hostile to the true owner, may not rely upon such possession in order to prescribe under the ten years statute." If the statute required a possession adverse to the claims of everyone there might be some reason for the contention of appellants, but it does not, the clear intention being to require a possession adverse to the true owner. Just as long as appellees were holding the land for the specific purpose of obtaining a patent under the mistaken belief that it belonged to the State of Texas, *Page 66 they must necessarily have been holding it adversely to everyone else, and it is incomprehensible to this court how the true owners of the land can defeat the adverse holding as to themselves because another's title was recognized. No reasons are attempted to be given in the Schleicher-Gatlin case, or the cases that follow it, for the rule therein announced, and no authorities are cited that tend to support the doctrine of those cases. Prior to the Schleicher-Gatlin case the doctrine was clearly recognized that the adverse possession contemplated by the statute was one against the owner of the land. In the case of Gillespie v. Jones, 26 Tex. 343, it was said: "The legal effect and extent of an adverse possession depends of course upon the character of title which it is sought to be sustained. But in presumption of law, an actual possession must be regarded as adverse to all other titles or claims than that of the possessor, or such as have been recognized by him. And whenever a party permits such possession to be maintained, he does so at his peril."
If our view of the law is correct a verdict for appellees was bound to be rendered on the evidence as to limitations, and it is absolutely immaterial as to the errors that may have been committed as to other matters.
The motion for rehearing is overruled.
Overruled.
Writ of error refused. *Page 67