Misleading AP article: eviction of $16 Texas House Squatter – law insights

Associated Press writer Norman Merchant just labored through a fog of confusion. You can see the fog in his article at the below link.

$16 house? Dallas area man evicted after squatting

: http://www.foxnews.com/us/2012/02/06/16-house-dallas-area-man-evicted-after-squatting

 

Merchant wrote about the Kenneth Robinson’s dilemma. Robinson recently took a Dallas-area house by adverse possession. The court just evicted Robinson because the equitable owner lost the house in foreclosure, and so the court ordered Robinson out so the trustee could sell the house at foreclosure auction to pay down the debt to the lender.

 

Merchant tried to explain adverse possession from the viewpoint of others who had little clue about it. Merchant poorly evaluated the issue, leaving readers confused. His article leaves the impression that adverse possession is something bad, and taking adverse possession of foreclosure-abandoned realty amounts to nothing more than squatting. Look at the title of his article.

Merchant failed to refer to any of the following, which might have clarified the issues for readers:

  1. the adverse possession law in Texas Civil Practices & Remedies Code Sec.16.021 et seq. (“CPRC”);
  2. an authoritative article on the subject, like the one at http://www.lonestarlandlaw.com/Adverse.html;
  3. the English Law of Texas, from which adverse possession rights and duties hail.

In point of fact, the government must enforce the rights of adverse possessors (taking possession of someone else’s property) against everyone but the rightful owner who should exercise possessory dominion. Throughout the USA, people who borrow money to buy a house sign a note and mortgage as unilateral adhesion contracts. The mortgage CONVEYS the estate (realty) to the lender, or other mortgagee like MERS. Black’s Law Dictionary 8th Edition, page 3198, defines Mortgage as follows:

 

mortgage (mor-gij), n. 1. A conveyance of title to property that is given as security for the payment of a debt or the performance of a duty and that will become void upon payment or performance according to the stipulated terms. — Also termed (archaically) dead pledge. [Cases: Mortgages 1. C.J.S. Mortgages §§ 2–6.] 2. A lien against property that is granted to secure an obligation (such as a debt) and that is extinguished upon payment or performance according to stipulated terms. [Cases: Mortgages 145.C.J.S. Mortgages §§ 198, 200.] 3. An instrument (such as a deed or contract) specifying the terms of such a transaction. 4. Loosely, the loan on which such a transaction is based. 5. The mortgagee’s rights conferred by such a transaction. 6. Loosely, any real-property security transaction, including a deed of trust. — Abbr. M. — mortgage,vb., the estate (the realty)

 

In the mortgage situation, the lender or nominee becomes mortgagee with right to force a foreclosure sale of the realty to raise money to discharge the associated. The borrower becomes an “equitable” owner with possessory right, but also obligations to maintain and safeguard the property from disintegration of value. In the foreclosure, the owner/borrower loses equitable title to the realty under action of the trustee in a deed of trust (non-judicial foreclosure state like Texas) or of the court in a judicial foreclosure state like Florida.

 

So, the mortgagee cannot take possession or invade the properly maintained realty, in spite of having legal title because the borrower/owner of record has equitable or beneficial title. Therefore, the lender/mortgagee or its agents like the servicer have no right to dispossess the adverse possessor without a court order, and the court will not give it till after the foreclosure. Generally, the court will issue a writ of possession, and if necessary a writ of unlawful detainer or ejectment to empower the sheriff to remove the owner or adverse possessor from the realty. The court did that in the case of Kenneth Robinson. Black’s Law dictionary defines owners as follows:

 

owner. One who has the right to possess, use, and convey something; a person in whom one or more interests are vested. • An owner may have complete property in the thing or may have parted with some interests in it (as by granting an easement or making a lease).

 

beneficial
owner. 1. One recognized in equity as the owner of something because use and title belong to that person, even though legal title may belong to someone else; esp., one for whom property is held in trust. — Also termed equitable owner. [Cases: Trusts 139. C.J.S. Trover and Conversion § 251.] 2. A corporate shareholder who has the power to buy or sell the shares, but who is not registered on the corporation’s books as the owner. [Cases: Corporations 135. C.J.S. Corporations § 282.] 3.Intellectual property. A person or entity who is entitled to enjoy the rights in a patent, trademark, or copyright even though legal title is vested in someone else. • The beneficial owner has standing to sue for infringement. A corporation is typically a beneficial owner if it has a contractual right to the assignment of the patent but the employee who owns the patent has failed to assign it. Similarly, a patent or copyright owner who has transferred title as collateral to secure a loan would be a beneficial owner entitled to sue for infringement.

 

equitable
owner. See beneficial owner (1).

 

legal
owner. One recognized by law as the owner of something; esp., one who holds legal title to property for the benefit of another. See TRUSTEE(1). [Cases: Trusts 133. C.J.S. Trover and Conversion §§ 245–246.]

 

 

Shortly after Texas began its life as a state, it adopted the English Common Law as its basic law.

 

http://www.texasslaveryproject.org/sources/TTR/display.php?f=TSP0065.xml

An act to adopt the common law of England, to repeal certain Mexican laws, and to regulate the marital rights of parties.

SEC. 1. Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled, That the common law of England (so far as it is not inconsistent with the constitution or the acts of Congress now in force) shall, together with such acts be the rule of decision in this republic, and shall continue in full force until altered or repealed by congress.

“Untitled,” Telegraph and Texas Register, April 8, 1840

Laws related to adverse possession in Texas have an English law heritage stretching back 600 years. No news reporter, county clerk, or cop, and few if any lawyers or judges in Texas have replete familiarity with those laws. Therefore, they can opine with authority that adverse possession was never intended for use as a method to acquire realty which the owner abandoned in fear of the travail of foreclosure.

Adverse Possession of homes abandoned in foreclosure provides many benefits. You can read some of them here:

http://bobhurt.blogspot.com/2011/03/benefits-of-adverse-possession.html

These benefits help the lender, borrower, mortgagee, mortgagor, sheriff, police, courts, tax collectors, community, and the realty. Therefore, it makes good sense for people who will care for a home to take adverse possession of it.

Of course they run the risk of the court or owner forcing them to move. If the owner asks the Sheriff to do so, the Sheriff will issue a trespass warning, and the adverse possessor must move UNLESS the statute of limitations has expired. In Texas that means the adverse possessor might have to possess the realty for 10 years.

I consider that a trivial issue because most people adversely possessing foreclosure abandoned realty know they will lose it within months to a few years and they will have to move. SO what? They can simply move to another abandoned house.

Yes, adverse possessors ought to keep a record of the condition of the realty and any improvements or repairs made, and possibly file a lien so they can recover the expenditures if the owner moves them out. And adverse possessors ought to become good neighbors. Doesn’t that go without saying for anybody taking possession of any property?

Norman Merchant did not address these issues when reporting the ouster of Kenneth Robinson from that Dallas-area house. I imagine Kenneth will take possession of another abandoned house. Why shouldn’t he?

 

 
 

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WARNING:  I do NOT function as  law practitioner, lawyer, licensed attorney-at-law, or legal advisor.  Construe my comments ONLY as speculation or general information, and NOT as legal advice for you or anyone else.  Consult a well-qualified attorney (good luck finding one) in all questions of legality or law.

 

Bob Hurt

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The Texas Constitution also contemplated wholesale adoption of the common law. “Coongress,” it said, “shall, as early as practicable, introduce, by statute, the common law of England, with such modifications a our circumstances in their judgment may require

Texas law regarding adverse possession

Texas Civil Practice & Remedies Code

http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.16.htm

 

CIVIL PRACTICE AND REMEDIES CODE

 

TITLE 2. TRIAL, JUDGMENT, AND APPEAL

 

SUBTITLE B. TRIAL MATTERS

 

CHAPTER 16. LIMITATIONS

 

 

SUBCHAPTER B. LIMITATIONS OF REAL PROPERTY ACTIONS

 

Sec. 16.021.  DEFINITIONS. In this subchapter:

(1)  “Adverse possession” means an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.

(2)  “Color of title” means a consecutive chain of transfers to the person in possession that:

(A)  is not regular because of a muniment that is not properly recorded or is only in writing or because of a similar defect that does not want of intrinsic fairness or honesty; or

(B)  is based on a certificate of headright, land warrant, or land scrip.

(3)  “Peaceable possession” means possession of real property that is continuous and is not interrupted by an adverse suit to recover the property.

(4)  “Title” means a regular chain of transfers of real property from or under the sovereignty of the soil.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

 

 

Sec. 16.022.  EFFECT OF DISABILITY. (a) For the purposes of this subchapter, a person is under a legal disability if the person is:

(1)  younger than 18 years of age, regardless of whether the person is married;

(2)  of unsound mind; or

(3)  serving in the United States Armed Forces during time of war.

(b)  If a person entitled to sue for the recovery of real property or entitled to make a defense based on the title to real property is under a legal disability at the time title to the property vests or adverse possession commences, the time of the disability is not included in a limitations period.

(c)  Except as provided by Sections 16.027 and 16.028, after the termination of the legal disability, a person has the same time to present a claim that is allowed to others under this chapter.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 1049, Sec. 57, eff. Sept. 1, 1987.

 

 

Sec. 16.023.  TACKING OF SUCCESSIVE INTERESTS. To satisfy a limitations period, peaceable and adverse possession does not need to continue in the same person, but there must be privity of estate between each holder and his successor.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

 

 

Sec. 16.024.  ADVERSE POSSESSION: THREE-YEAR LIMITATIONS PERIOD. A person must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

 

 

Sec. 16.025.  ADVERSE POSSESSION: FIVE-YEAR LIMITATIONS PERIOD. (a) A person must bring suit not later than five years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who:

(1)  cultivates, uses, or enjoys the property;

(2)  pays applicable taxes on the property; and

(3)  claims the property under a duly registered deed.

(b)  This section does not apply to a claim based on a forged deed or a deed executed under a forged power of attorney.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

 

 

Sec. 16.026.  ADVERSE POSSESSION: 10-YEAR LIMITATIONS PERIOD. (a) A person must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.

(b)  Without a title instrument, peaceable and adverse possession is limited in this section to 160 acres, including improvements, unless the number of acres actually enclosed exceeds 160. If the number of enclosed acres exceeds 160 acres, peaceable and adverse possession extends to the real property actually enclosed.

(c)  Peaceable possession of real property held under a duly registered deed or other memorandum of title that fixes the boundaries of the possessor’s claim extends to the boundaries specified in the instrument.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 764, Sec. 1, eff. Sept. 1, 1989.

 

 

Sec. 16.027.  ADVERSE POSSESSION: 25-YEAR LIMITATIONS PERIOD NOTWITHSTANDING DISABILITY. A person, regardless of whether the person is or has been under a legal disability, must bring suit not later than 25 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

 

 

Sec. 16.028.  ADVERSE POSSESSION WITH RECORDED INSTRUMENT: 25-YEAR LIMITATIONS PERIOD. (a) A person, regardless of whether the person is or has been under a legal disability, may not maintain an action for the recovery of real property held for 25 years before the commencement of the action in peaceable and adverse possession by another who holds the property in good faith and under a deed or other instrument purporting to convey the property that is recorded in the deed records of the county where any part of the real property is located.

(b)  Adverse possession of any part of the real property held under a recorded deed or other recorded instrument that purports to convey the property extends to and includes all of the property described in the instrument, even though the instrument is void on its face or in fact.

(c)  A person who holds real property and claims title under this section has a good and marketable title to the property regardless of a disability arising at any time in the adverse claimant or a person claiming under the adverse claimant.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

 

 

Sec. 16.029.  EVIDENCE OF TITLE TO LAND BY LIMITATIONS. (a) In a suit involving title to real property that is not claimed by this state, it is prima facie evidence that the title to the property has passed from the person holding apparent record title to an opposing party if it is shown that:

(1)  for one or more years during the 25 years preceding the filing of the suit the person holding apparent record title to the property did not exercise dominion over or pay taxes on the property; and

(2)  during that period the opposing parties and those whose estate they own have openly exercised dominion over and have asserted a claim to the land and have paid taxes on it annually before becoming delinquent for as long as 25 years.

(b)  This section does not affect a statute of limitations, a right to prove title by circumstantial evidence under the case law of this state, or a suit between a trustee and a beneficiary of the trust.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

 

 

Sec. 16.030.  TITLE THROUGH ADVERSE POSSESSION. (a) If an action for the recovery of real property is barred under this chapter, the person who holds the property in peaceable and adverse possession has full title, precluding all claims.

(b)  A person may not acquire through adverse possession any right or title to real property dedicated to public use.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

 

 

Sec. 16.031.  ENCLOSED LAND. (a) A tract of land that is owned by one person and that is entirely surrounded by land owned, claimed, or fenced by another is not considered enclosed by a fence that encloses any part of the surrounding land.

(b)  Possession of the interior tract by the owner or claimant of the surrounding land is not peaceable and adverse possession as described by Section 16.026 unless:

(1)  the interior tract is separated from the surrounding land by a fence; or

(2)  at least one-tenth of the interior tract is cultivated and used for agricultural purposes or is used for manufacturing purposes.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

 

 

Sec. 16.032.  ADJACENT LAND. Possession of land that belongs to another by a person owning or claiming 5,000 or more fenced acres that adjoin the land is not peaceable and adverse as described by Section 16.026 unless:

(1)  the land is separated from the adjacent enclosed tract by a substantial fence;

(2)  at least one-tenth of the land is cultivated and used for agricultural purposes or used for manufacturing purposes; or

(3)  there is actual possession of the land.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

 

 

Sec. 16.033.  TECHNICAL DEFECTS IN INSTRUMENT. (a) A person with a right of action for the recovery of real property or an interest in real property conveyed by an instrument with one of the following defects must bring suit not later than two years after the day the instrument was filed for record with the county clerk of the county where the real property is located:

(1)  lack of the signature of a proper corporate officer, partner, or company officer, manager, or member;

(2)  lack of a corporate seal;

(3)  failure of the record to show the corporate seal used;

(4)  failure of the record to show authority of the board of directors or stockholders of a corporation, partners of a partnership, or officers, managers, or members of a company;

(5)  execution and delivery of the instrument by a corporation, partnership, or other company that had been dissolved, whose charter had expired, or whose franchise had been canceled, withdrawn, or forfeited;

(6)  acknowledgment of the instrument in an individual, rather than a representative or official, capacity;

(7)  execution of the instrument by a trustee without record of the authority of the trustee or proof of the facts recited in the instrument;

(8)  failure of the record or instrument to show an acknowledgment or jurat that complies with applicable law; or

(9)  wording of the stated consideration that may or might create an implied lien in favor of the grantor.

(b)  This section does not apply to a forged instrument.

(c)  For the purposes of this section, an instrument affecting real property containing a ministerial defect, omission, or informality in the certificate of acknowledgment that has been filed for record for longer than two years in the office of the county recorder of the county in which the property is located is considered to have been lawfully recorded and to be notice of the existence of the instrument on and after the date the instrument is filed.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1993, 73rd Leg., ch. 291, Sec. 1, eff. Sept. 1, 1993.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 819, Sec. 1, eff. June 15, 2007.

 

 

Sec. 16.034.  ATTORNEY’S FEES. (a) In a suit for the possession of real property between a person claiming under record title to the property and one claiming by adverse possession, if the prevailing party recovers possession of the property from a person unlawfully in actual possession, the court:

(1)  shall award costs and reasonable attorney’s fees to the prevailing party if the court finds that the person unlawfully in actual possession made a claim of adverse possession that was groundless and made in bad faith; and

(2)  may award costs and reasonable attorney’s fees to the prevailing party in the absence of a finding described by Subdivision (1).

(b)  To recover attorney’s fees, the person seeking possession must give the person unlawfully in possession a written demand for that person to vacate the premises. The demand must be given by registered or certified mail at least 10 days before filing the claim for recovery of possession.

(c)  The demand must state that if the person unlawfully in possession does not vacate the premises within 10 days and a claim is filed by the person seeking possession, the court may enter a judgment against the person unlawfully in possession for costs and attorney’s fees in an amount determined by the court to be reasonable.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 901, Sec. 1, eff. September 1, 2009.

 

 

Sec. 16.035.  LIEN ON REAL PROPERTY. (a) A person must bring suit for the recovery of real property under a real property lien or the foreclosure of a real property lien not later than four years after the day the cause of action accrues.

(b)  A sale of real property under a power of sale in a mortgage or deed of trust that creates a real property lien must be made not later than four years after the day the cause of action accrues.

(c)  The running of the statute of limitations is not suspended against a bona fide purchaser for value, a lienholder, or a lessee who has no notice or knowledge of the suspension of the limitations period and who acquires an interest in the property when a cause of action on an outstanding real property lien has accrued for more than four years, except as provided by:

(1)  Section 16.062, providing for suspension in the event of death; or

(2)  Section 16.036, providing for recorded extensions of real property liens.

(d)  On the expiration of the four-year limitations period, the real property lien and a power of sale to enforce the real property lien become void.

(e)  If a series of notes or obligations or a note or obligation payable in installments is secured by a real property lien, the four-year limitations period does not begin to run until the maturity date of the last note, obligation, or installment.

(f)  The limitations period under this section is not affected by Section 3.118, Business & Commerce Code.

(g)  In this section, “real property lien” means:

(1)  a superior title retained by a vendor in a deed of conveyance or a purchase money note; or

(2)  a vendor’s lien, a mortgage, a deed of trust, a voluntary mechanic’s lien, or a voluntary materialman’s lien on real estate, securing a note or other written obligation.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1997, 75th Leg., ch. 219, Sec. 1, eff. May 23, 1997.

 

 

Sec. 16.036.  EXTENSION OF REAL PROPERTY LIEN. (a) The party or parties primarily liable for a debt or obligation secured by a real property lien, as that term is defined in Section 16.035, may suspend the running of the four-year limitations period for real property liens through a written extension agreement as provided by this section.

(b)  The limitations period is suspended and the lien remains in effect for four years after the extended maturity date of the debt or obligation if the extension agreement is:

(1)  signed and acknowledged as provided by law for a deed conveying real property; and

(2)  filed for record in the county clerk’s office of the county where the real property is located.

(c)  The parties may continue to extend the lien by entering, acknowledging, and recording additional extension agreements.

(d)  The maturity date stated in the original instrument or in the date of the recorded renewal and extension is conclusive evidence of the maturity date of the debt or obligation.

(e)  The limitations period under this section is not affected by Section 3.118, Business & Commerce Code.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1997, 75th Leg., ch. 219, Sec. 2, eff. May 23, 1997.

 

 

Sec. 16.037.  EFFECT OF EXTENSION OF REAL PROPERTY LIEN ON THIRD PARTIES. An extension agreement is void as to a bona fide purchaser for value, a lienholder, or a lessee who deals with real property affected by a real property lien without actual notice of the agreement and before the agreement is acknowledged, filed, and recorded.

 

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1997, 75th Leg., ch. 219, Sec. 3, eff. May 23, 1997.

 

 

 

 

The English Law of Texas

Compiled by Bob Hurt, 7 February 2012

 

Lawrence M. Friedman
A History of American Law: Third Edition (2005), p. 115-116,

http://books.google.com/books?id=JndnEiydTiYC&lpg=PA115&ots=gvUWsPSmTe&dq=1840%20texas%20adopts%20common%20law%20of%20england&pg=PA117#v=onepage&q=1840%20texas%20adopts%20common%20law%20of%20england&f=false

 

… The Texas government later enacted a form of trial by jury, but not exactly in the American mold. [Edward L. Markham Jr., “The Reception of the Common Law of England in Texas and the Judicial Attitude Toward That Reception, 1840 -1859.” 29 Texas L. Rev. 904 ( 1951 ).”.] The constitution of the republic of Texas (1836), in its declaration of rights, affirmed the right of an accused “to a speedy and public trial, by an impartial jury. … And the right or trial by jury shall remain inviolate.”

The Texas Constitution also contemplated wholesale adoption of the common law. “Congress,” it said, “shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judgment, may require” (art. IV, sec. 13). But Texas never really ”received “English law in any literal or classical sense. Rather, the republic adopted a Texas subdialect of the American dialect of law. There was thoroughgoing acceptance of trial by jury, “that ever-to-be prized system of jurisprudence,” as the supreme court of Texas called it in 1840. [Edward v. Peoples, Dallam 359, 360 (Tex., 1840).] From the very start, however, court organization and procedure merged law and equity. The constitution of 1845 specifically gave to the district courts jurisdiction “of all suits … without regard to any distinction between law and equity.” [Art IV, Sec. 10 – Joseph W. McKnight] In 1840, the civil law was formally abolished; but Texas never fell under the yoke of common-law pleading in all its rigor. Rather, Texas retained “as heretofore” the civil law system of “petition and answer.” Procedure was, in short, a kind of hybrid system. Judges and lawyers, in the early years, seemed genuinely ambivalent about which orf the two rival had the edge. On the one hand, civil law was strange and unfamiliar to most lawyers. The law of 1840, since it kept some aspects of civil law pleading, put courts in the position (as one judge said) of searching for “principles and criteria in a language generally unknown to us.” This brought about “constant perplexities,” which annoyed and delayed the courts “at each step.” [Whiting v. Turley, Dallam 453, 455 (Tex., 1842)] Yet another Texas judge condemned common-law pleading as “Bold, crafty, and unscrupulous.”[Long v. Anderson, 4 Tex 422, 424 (1849).] Still, a third judge took a middle view:

The object of our statutes on the subject of pleading is to simplify as much as possible that branch of the proceedings in courts, which by the ingenuity and learning of both common and civil law lawyers and judges had become so refined in its subtleties as to substitute in many instances the shadow for the substance.

Hamiton v. Black, Dallam 586, 587 (Tex. . 1844).

In the long run, the common law was bound to win. The civil law tradition was too alien and inaccessible to survive. But the practice in Texas did undermine the idea that strict common law pleading was either natural or desirable. What resulted was a procedure that used common law terms and some common law attitudes, but in a more streamlined and rational way. Peripheral Texas was, in short, free to do what other states could do only by breaking with habit and tradition. But in Texas, divergences from the common law did not look like reform; they looked like civil law survivals. In a sense there were; what survived, however, survived because it suited the needs and wants of Texas jurists.

Chunks of civil law also remained imbedded in the substantive law of Texas as well. Texas recognizes the holographic will-an un-witnessed will in the dead person’s handwriting. Texas has also kept the community property system; indeed, Texas gave the system constitutional recognition. [Texas Const., 1845, art. VII, sec. 19.] Texas shares these “survivals” with Louisiana, and with a number of states carved out of Mexican territory, notably California. That these institutions lived on, despite the terrific pressure for common law, indicates either that they were tightly sewn in to the social fabric, or that they fulfilled some unique social function. The holographic will, for example, invited ordinary people to make wills by themselves, without consulting lawyers. The community property system, too, may have suited the facts of family life better than common law rules of marital. In fact, the common law rules were themselves in process of change.

Louisiana was the only solid, durable enclave of civil law. Here America swallowed up a territory with a sizeable population, a population centered in New Orleans, that was used to civil law forms. But Louisiana itself was in a state of great confusion. Its brand of civil law was a far cry from the elegance and system we associate with the civil law in nineteenth century .Europe. At the time of the Louisiana Purchase, Louisiana law was an arcane, bewildering hodgepodge of French and Spanish law, a melange of codes, customs, and doc trines of various ages. The French had settled Louisiana. but rhe Spanish had governed it from 1766 to 1803. Louisiana law was as baffling as the common law at its worst. Its “babel” of legislation, according to Edward Livingston , was only equaled by the “Dissonances” of the Court of Pleas, “where American Shopkeepers, French planters and Spanish clerks sit on the same bench ,” listening to “American Attorneys, French procureurs and Castillian Abogados,” each speaking his own language. [Quoted in George Dargo, Jefferson’s Louisiana: Politics and the Clash of Legal Traditions (1975), p. 112.]

 

Texas State Historical Association

The Handbook of Texas Online

Excerpt from article on LAW.. paragraph 3

http://www.tshaonline.org/handbook/online/articles/jzlph

In 1836 the Republic of Texas adopted the Anglo-American common law of crimes with jury trial. Those rules were the basis of the Penal Code of 1856, and criminal law has since been governed by statutes along with the safeguards of the United States and Texas constitutions. The nonstatutory, civil common law of Texas has been developed since the republic adopted “the common law of England as the rule of decision” in 1840. “Common law” was understood to include such matters as obligations arising by agreement (contracts) and those arising by injury (torts), as well as claims to property (lands as well as chattels), the status of citizens (such as marriage, divorce, welfare of children, corporations, and partnerships), and that body of legal doctrine embraced within the English concept of equity. Many of those rules have been put in an authoritative form by act of the legislature, while others have not. If codification has occurred, the legislative rules are interpreted by the courts and amplified by judicial decisions. Principles of law that are not codified are found in judicial decisions and learned writings. Only decisions of appellate courts designated to be published are looked to as sources of common law, and only about 20 percent of appellate decisions are so designated by the appellate courts deciding them.

 

http://www.texasslaveryproject.org/sources/TTR/display.php?f=TSP0065.xml

“Untitled,” Telegraph and Texas Register, April 8, 1840

Summary: Printed the text of a new law passed by the Texas Congress. First, the law stated that English common law would henceforth reign in the territory and most of the laws passed before 1836 were now null and void. The rest of the law dealt with marriage rights. Interestingly, the new law gave women many rights to property both in and out of marriage, although husbands still had control of most of the property within marriage.


An act to adopt the common law of England, to repeal certain Mexican laws, and to regulate the marital rights of parties.

SEC. 1. Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled, That the common law of England (so far as it is not inconsistent with the constitution or the acts of Congress now in force) shall, together with such acts be the rule of decision in this republic, and shall continue in full force until altered or repealed by congress.

SEC. 2 Be it further enacted, That all laws in force in this republic, prior to the first of September, one thousand eight hundred and thirty six (except the laws of the consultation and provisional government, now in force, and except such laws as relate exclusively to grants and the colonization of lands in the state of Coahuila and Texas, and also such laws as relate to the reservation of islands and lands, and also of salt lakes, licks and salt springs, mines and minerals of every description, made by the general and state governments) be, and the same are hereby repealed.

SEC. 3. Be it further enacted, That neither the lands nor slaves which the wife may own, or to which she may have any right, title or claim at the time of her marriage, nor the lands nor slaves to which she may acquire, during the coverture, any right title or claim, by gift, devise or descent, nor the increase of such slaves in each case, nor the paraphernalia as defined at common law, which the wife may have at the time of the marriage, or which she may acquire during the coverture as aforesaid, shall, by virtue of the marriage, become the property of the husband, but shall remain the separate property of the wife; Provided, however, that during the continuance of the marriage, the husband shall have the sole management of such lands and slaves.

SEC. 4. Be it further enacted, That all property which the husband or wife may bring into the marriage, except land and slaves and the wife’s paraphernalia, and all the property acquired during the marriage, except such land or slaves, or their increase as may be acquired by either party, by gift, devise or descent, and except also the wife’s paraphernalia, acquired as aforesaid, and during the time aforesaid, shall be the common property of the husband and wife, and during the coverture may be sold or otherwise disposed of by the husband only; it shall be first liable for all the debts contracted by the husband during the marriage, and for debts contracted by the wife for necessaries during the same time; and upon the dissolution of the marriage, by death, after the payment of all such debts, the remainder of such common property shall go to the survivor, if the deceased have no descendant or descendants; but if the deceased have a descendant or descendants, the survivor shall have one half of such common property, and the other half shall pass to the descendant or decendants of the deceased.

SEC. 5 Be it further enacted, That parties intending to enter into the marriage state, may enter into what stipulations they please, provided they be not contrary to good morals, or to some rule of law, and in no case shall they enter into any agreement, or make any renunciation, the object of which would be to alter the legal orders of descent either with respect to themselves in what concerns the inheritance of their children or posterity which either may have by any other person, or in respect to their common children–nor shall they make any valid agreement to impair the legal rights of the husband over the person of the wife, or the persons of their common children.

SEC. 6. Be it further enacted, That every matrimonial agreement must be made by an act before a notary public and two witnesses; the minor capable of contracting matrimony, may give his or her consent to any agreement which this contract is susceptible of; provided, such agreement be made by the written consent of both parents, if both be living; if not, by that of the survivor; if both be dead, then by the written consent of the minor’s guardian.

SEC 7. Be it further enacted, That no matrimonial agreement shall be altered after the celebration of the marriage.

SEC. 8. Be it further enacted, That when the wife, by a marriage contract, may reserve to herself any property or rights to property (whether such rights be in esse[sic] or expectancy) for such reservation to be valid as to the subsequent purchasers or creditors of her husband, the said contract must be acknowledged by her husband or proved by at least one witness, and recorded in the clerk’s office of the county court of the aounty[sic] in which said married parties may reside.

SEC. 9 Be it further enacted, That the husband may sue either alone or jointly with his wife, for the recovery of any effects of the wife, and in case he fail or neglect so to do, she may, by the authority of the court, sue for such effects in her name.

SEC. 10. Be it further enacted, That should the husband refuse or fail to support his wife, from the proceeds of the lands or slaves she may have, or fail to educate her children as the fortune of the wife would justify, she may in either case complain to the county court, who, upon satisfactory proof shall decree, that so much of such proceeds shall be paid to the wife for the support of herself and for the nurture and education of her children, as the court may deem necessary.

SEC. 11. Be it further enacted, That if, during the coverture, a sale of any of the lands or slaves of the wife be illegally effected, no limitation shall commence to run during the coverture; and should the wife survive the dissolution of the marriage, she may sue for and recover such property; should the wife survive the dissolution, but not the time allowed by the law of limitations, then the running of such law shall cease till all the children of the deceased mother shall have arrived at the age of majority, or those under that age shall have married, and the heirs of the wife shall have the unexpired time allowed by the law of limitations, within which to institute their suit for the recovery of said property; and if the wife shall not survive the dissolution of the marriage, the law of limitations shall not commence running, as to the children of the deceased mother, until all the children shall have arrived at the age of majority, or those under that age shall have married.

SEC. 12. Be it further enacted, That all the effects which both the husband and wife reciprocally possess at the time the marriage may be dissolved, shall be regarded as common effects or gains, unless the contrary be satisfactorily proved.

SEC 13. Be it further enacted, That marriages that may be entered into in this republic after the passage of this law, shall be governed by the provisions of the same. The marital rights of persons married in other countries, who may remove here after the passage of this act, shall, in regard to property acquired in this republic during the marriage, be regulated by the provisions of the same. The marital rights of persons married here before the passage of this act, or of persons married in another country, who removed here before its passage, shall be regulated by the law as it aforetime was

DAVID S. KAUFMAN,

Speaker of the House of Representatives.

DAVID G. BURNET,

President of the Senate.

Approved 20th January, 1840,

MIRABEAU B LAMAR.


Source Copy Consulted: “Untitled,” Telegraph and Texas Register, April 8, 1840, p. 1

 


 

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Author: bobhurt

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