t
Co. v. Arbetter , 1 S.W.2d. 334 (Tex. Civ. App. — San Antonio 1927, writ dism’d w.o.j.); Austin v. Carter , 296 S. W. 649 (Tex. Civ. App.-Eastland 1927, writ dism’d) and Alling v. Vander Stucken , 194 S.W. 443 (Tex. Civ. App. — San Antonio 1917, writ ref’d)).” ( A Realistic Approach to Identifying and Curing Ancient Title Problems , Terry E. Hogwood – 18th Advanced Oil, Gas and Mineral Law Course).
1927, writ dism’d) and Alling v. Vander Stucken , 194 S.W. 443 (Tex. Civ. App. — San Antonio 1917, writ ref’d)). A “marketable title” is a title based solely on instruments of conveyance properly filed of record and is defined as that title which is reasonably free from such doubt that a prudent man, with knowledge of all of the salient facts and circumstances surrounding the title and their legal significance, would be willing to accept. An objection (read title requirement) to a marketable title is based on serious and reasonable doubts by the title examiner concerning the title that would induce a prudent man to hesitate in accepting a title affected by it/them. ( Lund v. Emerson , 204 S.W.2d. 639 (Tex. Civ. App. — Amarillo 1947, no writ); Owens v. Jackson , 35 S.W.2d. 186 (Tex. Civ. App. — Austin 1931, writ dism’d w.o.j.); Texas Auto Co. v. Arbetter , 1 S.W.2d. 334 (Tex. Civ. App. — San Antonio 1927, writ dism’d w.o.j.); Austin v. Carter , 296 S. W. 649 (Tex. Civ. App. — Eastland 1927, writ dism’d) and Alling v. Vander Stucken , 194 S.W. 443 (Tex. Civ. App. — San Antonio 1917, writ ref’d)).
The 10 Year Adverse Possession Statute
This paper will deal primarily with § 16.026, Tex. Civ. Prac. & Rem. Code; the 10-Year Adverse Possession Limitations Period, and the cases interpreting § 16.026. In particular this paper will address the cases where the issue is generally whether the adverse claimant can make a successful claim for a limitation title under § 16.026 where it DID NOT adequately fence the lands claimed. This paper will not explore what is or is not a “title instrument,” “duly registered deed” or “other memorandum of title” under sub-parts (b) and (c) below. The statute provides the following, quoted in pertinent part: § 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. (emphasis added).
A title is NOT marketable if:
1. there is a reasonable chance that a third party could raise an issue concerning the validity of the title to the estate against the apparent owner ( for instance, a claim of adverse possession ) or 2. parol evidence is necessary to remove any doubt as to the validity and/or sufficiency of the owner’s title (for instance, an affidavit of heirship to reflect a deceased owners heirs-at-law) or 3. title rests upon a presumption of fact which, in the event of a suit contesting title, would probably become an issue of fact to be decided by a jury (for instance, whether additions to a tract of land occurred by accretion or avulsion) or 4. the record discloses outstanding interests in other parties that could reasonably subject the owner to litigation or compel such owner to resort to parol evidence to defend the title against the outstanding claims (for instance, a fee simple title with an outstanding, unreleased oil and gas lease is not a marketable title). ( Lund v. Emerson , 204 S.W.2d. 639 (Tex. Civ. App. — Amarillo 1947, no writ.); Owens v. Jackson , 35 S.W.2d. 186 (Tex. Civ. App. — Austin 1931, writ dism’d w.o.j.); Texas Auto
This statute actually sets forth the general outline of this paper:
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N at i onal A ssociation of D i v i s i on O rder A nalys t s
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