WILLIAMS, Associate Justice.
This is an action of trespass to try title brought by plaintiff in error against defendant in error to recover a tract of land in Liberty County. Plaintiff in error showed title from the State to the locus in quo, but was defeated in the District Court and Court of Civil Appeals by the defense of limitation under the ten years statute. The time when the possession relied on by the defendants commenced was not shown by the evidence more definitely than that it was taken in the year 1888.
The Court of Civil Appeals held that the record before it did not show that suit was instituted within ten years after the expiration of the year 1888, and, indulging the presumption, in support of the action of the District Court, that it was not brought in time, concluded that the judgment should be affirmed. The case was tried in the District Court upon an amended petition filed January 15, 1900, which stated that it was 'filed as an amendment and in lieu of the original petition, filed June 14, 1898. This amendment was the only pleading in favor of the plaintiff contained in the record before the Court of Civil Appeals, and that court did not regard the recital in the amended petition as sufficient to show the date of the filing of the
original petition. We think the statement- in the amendment of the date of the original petition, in the absence of anything appearing to contradict it, should be taken as true.
Rule 13 for district courts provides: “The party amending shall point out the instrument,
with its date,
sought to be amended * * * and amend such instrument by preparing and filing a substitute therefor, entire and complete in itself.”
Rule 14 provides: “Unless the substituted instrument shall be set aside on exceptions . * * * the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause, unless some error of the court in deciding upon the necessity of the amendment, or otherwise in superseding it, be complained of, and exception be taken to the action of the court, or unless it be necessary to look to the superseded pleading upon a question of limitation.”
One purpose of the requirement in rule 13 was to preserve upon the face of the record proper evidence of the .history of the cause, without resort to the abandoned pleadings; and when it is properly complied with, the pleading on which the trial proceeds furnishes, both in the trial court and upon appeal, all the information necessary to the decision of all such questions as that which' has arisen here. Of" course, the rule did not intend that rights should be lost in the mere process of0 amending the pleadings, and therefore provision was made in rule 14 to secure litigants against such a result. The trial court takes notice of the true date of filing the suit on trial before it as such date appears from the original petition, and may see from an inspection of it whether or not such date is incorrectly stated in » an amendment; and the appellate court, reviewing its action, may do the same thing, but to enable it to disregard a recital such as that in question, designed by the rules to furnish the proper date, the other papers showing its incorrectness should be sent up with the record; otherwise the court must, be guided by that which the rules have provided as the proper information upon such points. Rucker v. Dailey, 66 Texas, 286, 287.
In the case of Moody v. Moeller, 72 Texas, 635, the amended petition did not state the date of the original and hence did not comply with the rule.
In so far as the opinion in the case of Cotton v. Jones, 37 Texas, 34, intimates that it is necessary to introduce in evidence file marks upon a petition to show the date of institution of the suit, it conflicts with the decision in Hutchins v. Flintge, 3 Texas, 475, and is not regarded as correct. The court, in Cotton v. Jones, did take notice of the date of filing of the petition on demurrer and held that the suit was not brought in time.
The suit must therefore be treated as begun in June, 1898, and, since the burden was upon the defendants to show possession for ten years before the commencement of the action, they failed to make
out their case in not showing that the entry on which they relied was made prior to June 14, 1888.
While the plaintiff's motion for rehearing was pending in the Court of Civil Appeals, the defendants filed an application for a certiorari to have brought up the original petition of which they filed a certified copy, from which it appeared that the date of its filing had been correctly given in the amended petition, but which developed facts raising another question concerning the defense of limitation. The record does not show that the Court of Civil Appeals took any action upon this application or any notice of the paper filed, and there would be some difficulty in the way of our giving effect to matters thus presented were it necessary to pass upon them. As the view which we take upon another point is decisive of the ease, it is unnecessary that we determine the questions thus sought to be raised, and we shall only state them to avoid any misapprehension of our decision. The copy of the original petition shows that R. J. Speights was the only party therein sued, the defendants in error, who are his wife and children and her child by a former marriage, having been sued for the first time in the amendment of 1900. The petition also alleged and the proof showed that when the suit was filed against Speights and during its pendency, he was not in possession of the land, but was confined in the penitentiary, while Mrs. Speights and her child by her former husband were in possession claiming the land as their own property; and the contention is urged with much force that, under these circumstances, suit against the husband did not interrupt limitation running in favor of the wife, and that ten years had elapsed before she and her child were sued.
Were we to so hold, the judgment could not be sustained. The evidence relied on to support the defense is that in 1888, one Weaver, having become the owner of the Faulk survey adjoining section number 7, of which the land in controversy is a part and which belongs to plaintiff, entered into possession, which he extended so as to include the jiart of section number 7 in controversy, believing it to be included in the Faulk survey. In 1890, Weaver conveyed the Faulk survey to Jack Speights, the first husband of defendant, Amanda, and he also entered into possession of the land in controversy, claiming it as part of that purchased from Weaver, and held it until his death, after which his widow, Amanda, and their child, Ruth, continued upon it until her marriage with R. J. Speights, which occurred in 1893. Thereafter the family thus formed held possession until Speights was sent to the penitentiary, since which time his wife, with her children, has maintained such possession until the trial below, the claims of all parties, except as stated below, being that the land was the property of herself and daughter Ruth, acquired through her former marriage. The uncontradicted evidence showed and it was found by the Court of Civil Appeals that in 1894 or 1895, before he was convicted and while he was living with the family as its head, R. J. Speights, having learned through a survey made by plaintiff that the land now in suit
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WILLIAMS, Associate Justice.
This is an action of trespass to try title brought by plaintiff in error against defendant in error to recover a tract of land in Liberty County. Plaintiff in error showed title from the State to the locus in quo, but was defeated in the District Court and Court of Civil Appeals by the defense of limitation under the ten years statute. The time when the possession relied on by the defendants commenced was not shown by the evidence more definitely than that it was taken in the year 1888.
The Court of Civil Appeals held that the record before it did not show that suit was instituted within ten years after the expiration of the year 1888, and, indulging the presumption, in support of the action of the District Court, that it was not brought in time, concluded that the judgment should be affirmed. The case was tried in the District Court upon an amended petition filed January 15, 1900, which stated that it was 'filed as an amendment and in lieu of the original petition, filed June 14, 1898. This amendment was the only pleading in favor of the plaintiff contained in the record before the Court of Civil Appeals, and that court did not regard the recital in the amended petition as sufficient to show the date of the filing of the
original petition. We think the statement- in the amendment of the date of the original petition, in the absence of anything appearing to contradict it, should be taken as true.
Rule 13 for district courts provides: “The party amending shall point out the instrument,
with its date,
sought to be amended * * * and amend such instrument by preparing and filing a substitute therefor, entire and complete in itself.”
Rule 14 provides: “Unless the substituted instrument shall be set aside on exceptions . * * * the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause, unless some error of the court in deciding upon the necessity of the amendment, or otherwise in superseding it, be complained of, and exception be taken to the action of the court, or unless it be necessary to look to the superseded pleading upon a question of limitation.”
One purpose of the requirement in rule 13 was to preserve upon the face of the record proper evidence of the .history of the cause, without resort to the abandoned pleadings; and when it is properly complied with, the pleading on which the trial proceeds furnishes, both in the trial court and upon appeal, all the information necessary to the decision of all such questions as that which' has arisen here. Of" course, the rule did not intend that rights should be lost in the mere process of0 amending the pleadings, and therefore provision was made in rule 14 to secure litigants against such a result. The trial court takes notice of the true date of filing the suit on trial before it as such date appears from the original petition, and may see from an inspection of it whether or not such date is incorrectly stated in » an amendment; and the appellate court, reviewing its action, may do the same thing, but to enable it to disregard a recital such as that in question, designed by the rules to furnish the proper date, the other papers showing its incorrectness should be sent up with the record; otherwise the court must, be guided by that which the rules have provided as the proper information upon such points. Rucker v. Dailey, 66 Texas, 286, 287.
In the case of Moody v. Moeller, 72 Texas, 635, the amended petition did not state the date of the original and hence did not comply with the rule.
In so far as the opinion in the case of Cotton v. Jones, 37 Texas, 34, intimates that it is necessary to introduce in evidence file marks upon a petition to show the date of institution of the suit, it conflicts with the decision in Hutchins v. Flintge, 3 Texas, 475, and is not regarded as correct. The court, in Cotton v. Jones, did take notice of the date of filing of the petition on demurrer and held that the suit was not brought in time.
The suit must therefore be treated as begun in June, 1898, and, since the burden was upon the defendants to show possession for ten years before the commencement of the action, they failed to make
out their case in not showing that the entry on which they relied was made prior to June 14, 1888.
While the plaintiff's motion for rehearing was pending in the Court of Civil Appeals, the defendants filed an application for a certiorari to have brought up the original petition of which they filed a certified copy, from which it appeared that the date of its filing had been correctly given in the amended petition, but which developed facts raising another question concerning the defense of limitation. The record does not show that the Court of Civil Appeals took any action upon this application or any notice of the paper filed, and there would be some difficulty in the way of our giving effect to matters thus presented were it necessary to pass upon them. As the view which we take upon another point is decisive of the ease, it is unnecessary that we determine the questions thus sought to be raised, and we shall only state them to avoid any misapprehension of our decision. The copy of the original petition shows that R. J. Speights was the only party therein sued, the defendants in error, who are his wife and children and her child by a former marriage, having been sued for the first time in the amendment of 1900. The petition also alleged and the proof showed that when the suit was filed against Speights and during its pendency, he was not in possession of the land, but was confined in the penitentiary, while Mrs. Speights and her child by her former husband were in possession claiming the land as their own property; and the contention is urged with much force that, under these circumstances, suit against the husband did not interrupt limitation running in favor of the wife, and that ten years had elapsed before she and her child were sued.
Were we to so hold, the judgment could not be sustained. The evidence relied on to support the defense is that in 1888, one Weaver, having become the owner of the Faulk survey adjoining section number 7, of which the land in controversy is a part and which belongs to plaintiff, entered into possession, which he extended so as to include the jiart of section number 7 in controversy, believing it to be included in the Faulk survey. In 1890, Weaver conveyed the Faulk survey to Jack Speights, the first husband of defendant, Amanda, and he also entered into possession of the land in controversy, claiming it as part of that purchased from Weaver, and held it until his death, after which his widow, Amanda, and their child, Ruth, continued upon it until her marriage with R. J. Speights, which occurred in 1893. Thereafter the family thus formed held possession until Speights was sent to the penitentiary, since which time his wife, with her children, has maintained such possession until the trial below, the claims of all parties, except as stated below, being that the land was the property of herself and daughter Ruth, acquired through her former marriage. The uncontradicted evidence showed and it was found by the Court of Civil Appeals that in 1894 or 1895, before he was convicted and while he was living with the family as its head, R. J. Speights, having learned through a survey made by plaintiff that the land now in suit
was a part of section number 7, entered into an oral agreement with, an agent of plaintiff to buy it and pay for it partly in cash and partly on credit, and it was agreed that he should be allowed a short time in which to raise the money for the cash payment, and that when it should be completed, he should execute his notes for the deferred, payments and receive a deed. He paid a small part of the cash installment, but some time afterwards notified plaintiff’s agent that he would not pay any more and would not buy the land, and requested the return of the money paid, to which the agent acceded.
These facts amounted to such an acknowledgment of plaintiff’s title by Speights as would, during the pendency of this agreement, at least, take from his possession any adverse character. Cook v. Knott, 28 Texas, 85; Ingersoll v. Lewis, 11 Pa. St., 212.
If it were conceded that after the agreement came to an end Speights’ possession again became adverse, it could not be connected with the possession which antedated that transaction to make up the bar and did not thereafter last for a sufficient time before the last amended petition was filed. This would be the attitude of the matter were the rights of Speights alone involved, and it remains to inquire what effect his acts had upon the claims of his wife and her child, Ruth.
It is urged that their claim, having originated during the first marriage, was their separate property, and that a title acquired by the possession would have been theirs and could not be affected by the acts or declarations of her husband. We need not determine what would have been the character of the title had it ever been acquired by limitation, since, in our opinion, the effect of the transaction is the same, whether such title would have been separate or community property. Ho title had been acquired by limitation, and in order to mature one, it would have been necessary to give effect to the possession held after the marriage and before Speights was convicted. After he became the head of the family, Speights held and controlled the possession, and its character, as adverse or not, depended on his action. Heither Mrs. Speights nor her child had any possession distinct from his, and hence both must avail themselves of that possession in order to acquire any title to the property. The plaintiff, being the true owner, had the right to deal with him as the party in possession, and when, by his transactions, he destroyed its adverse character, nothing was left upon which the statute could operate. In the case of Allen v. Read, 66 Texas, 20, it was said: “The husbands of Mrs. Thompson and Mrs. Jeffus were in possession of the lands claimed by their wives as their separate estates, at the time the suit of Fisher, guardian, was brought against them and others, and while the wives could not by that action be affected in their title or right to possession, yet the possession which their husbands held for them ceased to be, within the meaning of the law, a peaceable possession, as would it had the action been against their tenants in possession. Read v. Allen, 56 Texas, 180, 194; Read v. Allen, 58 Texas, 382; McKelvain v. Allen, 58 Texas,
388.” With equal truth it may he said in this ease that while Speights’ acts could not have affected any title which his wife and her child may have had, yet, as they had none, but must rely on Speights’ possession to acquire one by limitation, when he changed his attitude towards the true owner and agreed to purchase its title, that possession ceased to be adverse. This becomes obvious when it is reflected that had he completed his purchase and obtained plaintiff’s title, his possession would have been a rightful one, held in his own right, and there could have been no holding adverse to his by other members of the family. This doctrine is clearly set forth in Hurley v. Lockett,
72
Texas, 262. See also LeMaster v. Dickson, 91 Texas, 593.
The trial court, by the charge given, recognized the rule to be as we state it, but the jury disregarded it. The evidence upon the point is clear and uncontroverted, and it therefore becomes proper for this court to reverse the judgment and adjudge the land to plaintiff in error.
Reversed and rendered.