Stayton Associate Justice.
Looking to the averments of the petition filed by J. If. Fisk on February 15, 1855, it is clear that the petition filed by him on April 26, 1856, set up a new cause of action. The petition first filed alleged that he was seized and possessed of the land, and, in Ms own right, sought a recovery, while the latter asserted a title in the estate of M. Guadalupe BMz y Smith, in Ms possession, as the admimstrator of her estate. Whatever may have been the right of J. If. Fisk in the land at the time he brought the suit, it is evident that under the amendment he could not have been heard to assert title in Mmself.
The amendment operated an abandonment of the suit in his own right and set up a cause of action in the estate of wMch he alleged that he was the admimstrator. He thus asserted a different right, a new cause of action, and this operated as an abandonment of the cause of action set up in the original petition. The amendment filed on April 26,1856, set up a good cause of action in favor of the estate of Guadalupe Ruiz y Smith, which, as admimstrator, J. N. Fisk could prosecute. Thompson v. Duncan, 1 Tex., 487; Menard v. Republic, 2 Tex., 311; Graham v. Vining, 2 Tex., 440; Shannon v. Taylor, 16 Tex., 413.
The amendment filed March 8, 1869, but alleged that J. If. and Simaría Fisk had succeeded to the right asserted by the former pleading, and asked to prosecute in their own names the right thus asserted. TMs did not change the cause of action, but simply made new parties to it. The amendment of date, February 6, 1872, simply asserted that Simana Fisk was interested in the subject matter of the action, and prays that she be permitted to join as a plaintiff.
On March 16,1885, Simana Fisk suggested the death of her husband and co-plaintiff, J. If. Fisk, and, amending the pleadings, asked to be permitted in her own behalf, and as the surviving widow of J. If. Fisk, and as next friend for his minor children, to prosecute the action. That amendment shows that the parties made plaintiff, were the heirs of Guadalupe Ruiz y Smith as well as of J. N. Fisk, and that the right wMch they assert is the same as that set up in the amendment filed by Fisk on April 26, 1856.
[195]*195This last amendment contains the following averments: “That on March 1, 1854, the estate of Guadalupe Ruiz, of which the said James hT. Fisk was then administrator, he having been appointed such by the honorable county court of Bexar county, at the May term, 1849, w'as seized and possessed, and the owner in fee simple; of a certain tract or parcel of ground (here describing that in controversy). That on that date the estate of Guadalupe Ruiz and the heirs thereof, whose several interests are now held and owned by these plaintiffs, who are also the heirs and descendants of Guadalupe Ruiz, were in possession of the lands, and that afterwards, on the same day, March 1, 1854, the defendants in this suit * * unlawfully entered upon and dispossessed them of a portion of said premises, * * * and with force and arms did take possession thereof, and still withhold from plaintiffs the possession thereof, ’ ’ etc.
To the last amendment the defendants, by demurrer, interposed the ¡statute of limitation as a defense, upon the theory that; it set up a new cause of action, and on its face, showed that the defendant had held an adverse possession from March 1, 1854. This demurrer was properly overruled, for it is too evident that the same cause of action was asserted by the last amendment as was by the amendment filed April 26, 1856. Hew parties were made from time to time, as it became necessary, but the same right and title was asserted under all the petitions except the first.
Simana Fisk was a daughter of Guadalupe Ruiz, as was a former wife of James 2ÑT. Fisk, hence had an interest as heir, as had the children of her deceased, sister, and for this reason was probably made a party plaintiff in the first instance.
It is also shown by the record that some of the other heirs of Guadalupe Ruiz conveyed them interest in her estate to Simana Fisk, or to the community of which she was a member, before the amendment of April 26, 1856, was filed; but this could not affect the right of the administrator to prosecute the action.
There was no change in the character of the action at any time; it was essentially an action to try title from its inception.
Maria Ines de Los Santos is the common source of title, and the rulings of the court below in reference to the admission of evidence, written or oral, for the purpose of showing that the lot in controversy was granted to her as early as the year 1818, presented by the second, fourth, fifth, sixth, seventh, eighth, thirty-third and thirty-fifth assignments of error, are of no importance whatever in the determination of the rights, of the parties.
If, under the undisputed facts, the court had instructed the jury that [196]*196title vested in Maria Ines de los Santos, this would give no ground for complaint to the appellant. He is not in a position to deny that title. There was no error in the charges referred to in the ninth, tenth and eleventh assignments of error. That part of the sixth paragraph of the charge given by the court, which, in effect, made the filing of the-original petition by Fisk, on February 15, 1855, operate to interrupt the running of the statutes of limitation in favor of the defendant) was-not correct, for it ran, if there was an adverse possession by the defendant, until the filing of the amended petition, on April 26, 1856, which, of itself, operated as an abandonment of the former action. This charge, in all other respects, was correct, and whether the error here referred to-requires a reversal of the judgment will be hereafter considered.
The plaintiffs show a regular chain of title from Maria Ines de losSantos, such as entitles them to recover, unless this is defeated by limitation, or by proof showing that Madame de los Santos transferred the-property to Dolores Ocon, through -whom the defendant claims. It is-claimed that Madame de los Santos, on her death-bed, in the year 1832, or 1833, made a verbal donation of the lot to Dolores Ocon. The facts-proved are not of such character as to show a verbal sale of the lot, and are such as -to preclude the belief that it was the intention of Madame de los Santos to make a donatio inter vivos. Waiving consideraturn of the power of Madame de los Santos to make a donation of the-entire property in any manner, and waiving a consideration of her power to make a verbal donation of land, and holding that there is no evidence sufficient to show a verbal sale, or a donation inter vivos, it remains to inquire whether the facts proved show a valid execution of donation causa mortis. To be valid, as such, it must be shown that it-was executed, solemnized, in accordance with the requirements of the laws then in force. It is claimed that the lot was verbally donated to Ocon during the last illness of Madame de los Santos, and but a short-time before her death; and that this occurred in the presence of six persons, four of whom were women, and one of them the wife of Ocon.
It appears that under the law in force at the time the donation is claimed to have been made, it was necessary that donatio causa mortisshould be solemnized with substantially the same formalities as testameats. 2 Febrero Ref., sec.
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Stayton Associate Justice.
Looking to the averments of the petition filed by J. If. Fisk on February 15, 1855, it is clear that the petition filed by him on April 26, 1856, set up a new cause of action. The petition first filed alleged that he was seized and possessed of the land, and, in Ms own right, sought a recovery, while the latter asserted a title in the estate of M. Guadalupe BMz y Smith, in Ms possession, as the admimstrator of her estate. Whatever may have been the right of J. If. Fisk in the land at the time he brought the suit, it is evident that under the amendment he could not have been heard to assert title in Mmself.
The amendment operated an abandonment of the suit in his own right and set up a cause of action in the estate of wMch he alleged that he was the admimstrator. He thus asserted a different right, a new cause of action, and this operated as an abandonment of the cause of action set up in the original petition. The amendment filed on April 26,1856, set up a good cause of action in favor of the estate of Guadalupe Ruiz y Smith, which, as admimstrator, J. N. Fisk could prosecute. Thompson v. Duncan, 1 Tex., 487; Menard v. Republic, 2 Tex., 311; Graham v. Vining, 2 Tex., 440; Shannon v. Taylor, 16 Tex., 413.
The amendment filed March 8, 1869, but alleged that J. If. and Simaría Fisk had succeeded to the right asserted by the former pleading, and asked to prosecute in their own names the right thus asserted. TMs did not change the cause of action, but simply made new parties to it. The amendment of date, February 6, 1872, simply asserted that Simana Fisk was interested in the subject matter of the action, and prays that she be permitted to join as a plaintiff.
On March 16,1885, Simana Fisk suggested the death of her husband and co-plaintiff, J. If. Fisk, and, amending the pleadings, asked to be permitted in her own behalf, and as the surviving widow of J. If. Fisk, and as next friend for his minor children, to prosecute the action. That amendment shows that the parties made plaintiff, were the heirs of Guadalupe Ruiz y Smith as well as of J. N. Fisk, and that the right wMch they assert is the same as that set up in the amendment filed by Fisk on April 26, 1856.
[195]*195This last amendment contains the following averments: “That on March 1, 1854, the estate of Guadalupe Ruiz, of which the said James hT. Fisk was then administrator, he having been appointed such by the honorable county court of Bexar county, at the May term, 1849, w'as seized and possessed, and the owner in fee simple; of a certain tract or parcel of ground (here describing that in controversy). That on that date the estate of Guadalupe Ruiz and the heirs thereof, whose several interests are now held and owned by these plaintiffs, who are also the heirs and descendants of Guadalupe Ruiz, were in possession of the lands, and that afterwards, on the same day, March 1, 1854, the defendants in this suit * * unlawfully entered upon and dispossessed them of a portion of said premises, * * * and with force and arms did take possession thereof, and still withhold from plaintiffs the possession thereof, ’ ’ etc.
To the last amendment the defendants, by demurrer, interposed the ¡statute of limitation as a defense, upon the theory that; it set up a new cause of action, and on its face, showed that the defendant had held an adverse possession from March 1, 1854. This demurrer was properly overruled, for it is too evident that the same cause of action was asserted by the last amendment as was by the amendment filed April 26, 1856. Hew parties were made from time to time, as it became necessary, but the same right and title was asserted under all the petitions except the first.
Simana Fisk was a daughter of Guadalupe Ruiz, as was a former wife of James 2ÑT. Fisk, hence had an interest as heir, as had the children of her deceased, sister, and for this reason was probably made a party plaintiff in the first instance.
It is also shown by the record that some of the other heirs of Guadalupe Ruiz conveyed them interest in her estate to Simana Fisk, or to the community of which she was a member, before the amendment of April 26, 1856, was filed; but this could not affect the right of the administrator to prosecute the action.
There was no change in the character of the action at any time; it was essentially an action to try title from its inception.
Maria Ines de Los Santos is the common source of title, and the rulings of the court below in reference to the admission of evidence, written or oral, for the purpose of showing that the lot in controversy was granted to her as early as the year 1818, presented by the second, fourth, fifth, sixth, seventh, eighth, thirty-third and thirty-fifth assignments of error, are of no importance whatever in the determination of the rights, of the parties.
If, under the undisputed facts, the court had instructed the jury that [196]*196title vested in Maria Ines de los Santos, this would give no ground for complaint to the appellant. He is not in a position to deny that title. There was no error in the charges referred to in the ninth, tenth and eleventh assignments of error. That part of the sixth paragraph of the charge given by the court, which, in effect, made the filing of the-original petition by Fisk, on February 15, 1855, operate to interrupt the running of the statutes of limitation in favor of the defendant) was-not correct, for it ran, if there was an adverse possession by the defendant, until the filing of the amended petition, on April 26, 1856, which, of itself, operated as an abandonment of the former action. This charge, in all other respects, was correct, and whether the error here referred to-requires a reversal of the judgment will be hereafter considered.
The plaintiffs show a regular chain of title from Maria Ines de losSantos, such as entitles them to recover, unless this is defeated by limitation, or by proof showing that Madame de los Santos transferred the-property to Dolores Ocon, through -whom the defendant claims. It is-claimed that Madame de los Santos, on her death-bed, in the year 1832, or 1833, made a verbal donation of the lot to Dolores Ocon. The facts-proved are not of such character as to show a verbal sale of the lot, and are such as -to preclude the belief that it was the intention of Madame de los Santos to make a donatio inter vivos. Waiving consideraturn of the power of Madame de los Santos to make a donation of the-entire property in any manner, and waiving a consideration of her power to make a verbal donation of land, and holding that there is no evidence sufficient to show a verbal sale, or a donation inter vivos, it remains to inquire whether the facts proved show a valid execution of donation causa mortis. To be valid, as such, it must be shown that it-was executed, solemnized, in accordance with the requirements of the laws then in force. It is claimed that the lot was verbally donated to Ocon during the last illness of Madame de los Santos, and but a short-time before her death; and that this occurred in the presence of six persons, four of whom were women, and one of them the wife of Ocon.
It appears that under the law in force at the time the donation is claimed to have been made, it was necessary that donatio causa mortisshould be solemnized with substantially the same formalities as testameats. 2 Febrero Ref., sec. 2023; 1 Alvarez Derecho Real, 197; Moreau & Carleton’s Partidas, part 5, title 4, law 11; Colquhoun’s Roman Civil Law, 1070, 1072; Donati Civil Law, 3481.
This rule was continued in force by the civil code enacted by the federal government of Mexico, which is in force in all but two of the Mexican states, and went into effect March 1,1871. Hall’s Mexican Law, 2867. This code expressly provides that “if the donation should [197]*197be of real estate, it can only be made by a public writing, whatever may be its value.” Hall’s Mexican Law, 2870, 2873. That such a donation ought to be made before three, five or seven witnesses, as the circumstances of its making may require, seems settled. Escriche. “.Donacion por cause de Muerte, Testamento Aburte.” 1 Alvarez Derecho Real, 197, 212; 2 Febrero Ref., 3023; Moreau & Carleton’s Partidas, p. 5, t. 4, 1. 11; Johnson’s Civil Law of Spain, 110; Schmidt’s Civil Law of Spain and Mexico, 1011, 1015; 2 Colquhoun’s Roman Civil Law, 1070, 1072.
Four of the persons who were shown to have been present at the time it is claimed the donation to Ocon was made were women of the family of Madame de los Santos, and it seems that women could not be witnesses to authenticate such a disposition of propertey. Moreau & Carleton’s Partidas, p. 3, t. 16, l. 17; Ib., p. 6, t. 1, l. 10; 1 Alvarez Derecho, Real, 213; Colquhoun’s Roman Civil Law, 3053; Johnson’s Civil Law of Spain, 111; Schmidt’s Civil Law of Spain and Mexico, 1021.
This rule in reference to wills is retained in the Mexican civil code before referred to, (Hall’s Mexican Law, 3414, 3461) as is the rule in reference to the number of witnesses required. The other two persons present were the son and grandson of Madame de los Santos, and, as thier number was insufficient, it is unnecessary to consider whether they were competent witnesses. The court instructed the jury that “the proof relating to a testamentary donation by Maria Ines de los Santos to Dolores Ocon is not sufficient in law to vest title to the property in question in Dolores Ocon. ’ ’ And it is urged that this was error. Under the evidence the court was authorized to assume that the donation claimed to have been made was testamentary, and to declare that there was no sufficient proof to show that it was made under formalities necessary at the time to give it validity.
The sixth instruction asked, and refused, would have led the jury to believe that there was evidence from which they might find that a valid donation was made, and, for this reason, was properly refused. The fifteenth instruction asked was properly refused for the same reason.
The seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth instructions asked were also properly refused, for they were all based on the idea that title passed by the several conveyances referred to in them, when there was no foundation for this, all the conveyances referred to being in the chain of title from Ocon. Ocon having no title, those deriving title through him could have none, by reason only of the conveyances referred to. The conveyance, referred to in these instructions were admissible only for the purpose of showing privity [198]*198of possession under the pleas of limitation, and it would have been proper for the court to have instructed the jury upon this point.
The first instruction asked, which related to the effect of the filing of the first amended petition upon the running of the statute of limitation, was correct, and should have been given.
The second, third and fourth instructions asked, for reasons before given, were properly refused.
The fifth instruction asked had been given in the charge Of the court, and to have given it again in connection with those which immediately preceded it would have been calculated to mislead.
The evidence, taken in connection with the pleadings, left no doubt as to the identity and extent of the lot claimed by the pleadings, and to have given the instruction asked in the sixteenth paragraph would have made the length of lines called for to control other calls, which should, in such cases, be given a controlling effect.
The seventeenth charge requested made the title of the appellees to depend on the fact that a former owner had once recognized the ownership of Chavez, and made that fact conclusive of, the rights of the parties. We know of no such rule of law.
The eighteenth, nineteenth, twentieth and twenty-first instructions asked, with some qualifications, would have been proper had the issue between the parties been only one of boundary, but they could have but little application when the issue was as to title, and were, therefore, properly refused.
The twenty-second, twenty-third and twenty-fourth instructions asked related to the time at which this action suspended the running of the statute of limitation, and, for reasons-before given, were properly refused.
The twenty-fifth and twenty-seventh instructions asked were given, in effect, in the charge of the court which we have held was erroneous.
The twenty-sixth instruction asked, so far as we can see from the record before us, ought to have been given. If there existed any fact which prevented the running of the statutes of limitation before April 26, 1856, it is not made to appear. There was no replication to the answer setting up the defense of limitation alleging facts which would prevent its running.
The twenty-eighth, twenty-ninth and thirtieth instructions asked were properly refused for reasons before given.
The thirty-first instruction asked had no application to the case made on the last trial, and if given could not have affected the ease, for Sebastiana Vela took, as heir of her mother, and those claiming under her were entitled to recover against one having no title.
[199]*199The thirty-second assignment of error has .no application whatever to the thirty-first charge asked, the refusal to give which is the ground of this assignment.
There was, as before said, error in the charge of the court as to the period at which the statutes of limitation ceased to run in favor of the defendant, and the evidence is conflicting as to the occupation of the premises by the respective parties.
From an inspection of the evidence we cannot say that the jury might not have properly found a verdict in favor of the defendant under a proper charge. The cause is one of long standing, and the parties have indicated a desire that it should now end; but, as the casé was tried before jury, and there was error committed which may have influenced their finding, the judgment will have to be reversed and the cause remanded.
There is but one question in the case as it is now presented, which is: Was the right of the plaintiff barred by limitation on April 26,1856? The case should be tried upon this issue.
It is ordered that the judgment be reversed and the cause remanded.
Reversed and Remanded.
[Opinion delivered May 7, 1886.]