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must be considered together, and that the obvious purpose of the questions was to ascertain whether the assured, at the time or in the past, had been addicted to the use of intoxicating liquors, and the extent thereof; and that the charge precluded the jury from giving proper consideration of the evidence about the drinking of the assured; and that the meaning of these questions and answers should have been submitted to the jury, unrestrained by these limitations in the charge.
The writer is of the opinion that since the question of former habit was properly submitted, and since there was no evidence of the falsity 339 of the answers to the first two questions, if there was error in this part of the charge, it was harmless.
It is not believed that the other complaints of error are well founded, nor is it considered necessary to discuss them. For the error first indicated, the judgment of the court of civil appeals is reversed and the cause is remanded.
HUME, S. C. J., dissenting. I am of opinion that this case was properly determined by the court of civil appeals.
Conceding all that is claimed as to the distinctive force of a warranty, it is still true that the situation and purposes of parties to it must be considered, just as they are in cases of contracts in other forms.
The purpose of a life insurance company is to secure risks on sound lives. It is interested in knowing that the applicant for insurance is not affected with infirmities that will hasten the event against which it insures. It inquires about his "diseases." I think that, according to common understanding, a disease is an affliction that takes hold of its victim, abides with him, impairs or menaces his functional vitality, and lessens the probabilities of the average duration of his life.
The charge upon which the case is reversed seems to me to be warranted by the evidence upon both points named in the opinion.
INSURANCE, LIFE-DISEASE–UNTRUE ANSWERS.-If the application for insurance on a person's life is expressly declared to be a part of the policy, and the statements therein are warranted to be true, such statements will be deemed material, whether they are so or not; and, if the statements of the applicant concerning his health are shown to be false, there can be no recovery on the policy. Numerous decisions sustain the general rule that a temporary ailment cannot be considered a disease unless it indicates a vice in the constitution, or is so serious as to have some bearing upon the general health and continuance of life, or such as, according to common understanding, would be called a disease: See monographic note to Continental Life Ins. Co. v. Yung, 3 Am. St. Rep. 634, 635, on the invalidity of a life insurance policy owing to the existence of disease affecting the applicant.
HUFF v. CRAWFORD.
(88 TEXAS, 368.) LIMITATIONS OF ACTIONS_REAL ESTATE-TEMPORARY ABSENCE.-A statute of limitations, providing that the temporary absence of defendant from the state shall not be accounted or taken as a part of the time limited, applies to all suits alike, includ. ing actions for the recovery of real estate, and, therefore, applies to an action of trespass to try title, but does not apply to persons who were nonresidents of the state at the time the cause of action accrued.
LIMITATIONS OF ACTIONS_REAL ESTATE-ABSENCE OF DEFENDANTS.-In an action of trespass to try title where the defendant has held possession by an agent, and has been absent from the state, and a resident of another state, during the time necessary to complete the bar, the running of the statute of limitations, concerning absent defendants, is suspended during the defendant's absence, if he was a resident of the state at the time the adverse possession was taken by his agent, but, if he was not, the statute does not apply.
REAL PROPERTY-POSSESSION BY AGENT.-The possession of land by an agent has the same effect as possession by a tenant.
R. E. Huff and J. A. Templeton, for the appellant.
872 GAINES, C. J. The court of civil appeals for the second supreme judicial district have certified to us for our determination the following question:
“G. F. and S. Y. Collins are among the defendants in this action of trespass to try title. They plead the statute of limitations for four years. They claim the land, on account of which the plea is entered, under a deed duly recorded for more than five years prior to the institution of the suit, paying taxes as prescribed by the statute. The land has been in actual possession under this deed and claim for the requisite time. The possession has, however, been held for them, in their name, and for their use and enjoyment, by an agent. During the 373 time necessary to complete the bar, the defendants named have been absent from the state and residents of another state.
"Question: Do the provisions of article 3216 of the Revised Statutes preclude these defendants, under the foregoing facts, from interposing the defense stated?
"It is contended that the opinion in the case of Hunton v. Nichols, 55 Tex. 217, is not to be regarded as an interpretation of this article; or, if so, that the announcement therein made of this question is obiter dictum.”
The case referred to contains the only decision of this court which bears directly upon the question. The report is so defective that it is impossible to determine from it with any de
gree of satisfaction the precise point which was decided. By referring, however, to the original transcript and briefs among the records of this court, we find that the question was presented, though, as we have concluded, it was not involved in the decision of the case. The appellants in that case had sued in trespass to try title to recover of appellees certain real estate in the city of Austin. Brush, one of the defendants below, pleaded, among other defenses, the statute of limitations; and introduced evidence tending to show his possession of the property for the requisite period. The plaintiffs replied that during the time of his occupancy he was absent from the state. In their brief as appellants, they made the point that on account of Brush's absence the statute did not run in his favor. The point was not noticed in the briefs of appellee. The evidence was to the effect that Brush held possession by tenants, but that during a great part of the time he had a residence in Brooklyn, in the state of New York; that he resided there during five or six months of each year; and that during the other months he resided in Austin. If the statute of limitations did not run in Brush’s favor during any portion of the time that he was in possession of the property, the burden was upon the plaintiffs to show it. When the case was decided, it was the settled law of the state that the provision of the statute of limitations in regard to absent defendants did not apply to persons who were nonresidents of the state at the time the cause of action accrued: Lynch v. Ortlied, 87 Tex. 590. The plaintiffs had failed to show that Brush was a resident of the state, or that he was within the state at the time he took possession by his tenants of the property in suit; hence, in our opinion, the question whether the provision of the statute in question applied to actions for the recovery of real property was not involved in that case. Brush was a nonresident and absent from the state at the time the cause of action accrued against him, his absence was not to be accounted against him. Therefore, we think that if the court intended in that case to hold that the provision did not apply to suits for real estate, the holding is not binding as an authority.
We therefore regard the question of the applicability of article 3216 of the Revised Statutes to actions for the recovery of real estate as an open one in this court, and are of opinion that it applies to all suits alike. That article is but a re-enactment of section 22 of the "Act of Limitations," approved February 5, 1841: Paschal's Digest, art. 23. That act was an adaptation of the statute of 21 James I., upon which it is evidently modeled: See Wood on Limitations, 631. The corresponding provision of
the statute of James is, by its express terms, made applicable to certain personal actions only; and it is significant that the words by which its operation is limited are omitted from section 22 of the act of 1841. The periods within which actions for the recovery of real estate, as well as actions of a personal nature, were prescribed in the previous sections of that act, and its place would indicate that it was to apply to every case for which a limitation had been provided. Title 62 of the Revised Statutes is a reproduction in substance of the main features of the act of 1841. It is divided into three chapters, the first of which is entitled “Limitation of Actions for Land”; the second is devoted to limitations of personal actions; and the third is entitled, “General Provisions,” some of which are necessarily applicable to both classes. There is nothing in the terms of the article in question which indicates that it was to be limited in its application, and the fact that it is inserted in the general provisions indicates that it was to apply as well to the actions specified in the first chapter as to those designated in the second. There may be reasons why suits for the recovery of land should be excepted from the operation of the article, but there are none which are sufficiently cogent to induce us to believe that the legislature did not intend what by its language it has so clearly expressed.
Similar provisions, couched in the same general terms, have been held to apply to suits for the recovery of lands by the courts of other states: Chicago etc. Ry. Co. v. Cook, 43 Kan. 83; Morrell v. Ingle, 23 Kan. 32; IHeaton v. Fryberger, 38 Iowa, 185; Lagow v. Neilson, 10 Ind. 183; Wright v. Strauss, 73 Ala. 227. We have been cited to no contrary ruling, nor have we found any.
Such is our construction of article 3216. But the question does not advise us whether or not the defendants named were residents of the state or within the state at the time the adverse possession was taken by their agent. We therefore cannot give an explicit answer. If not, then the statute ran in their favor until their return to the state, if they ever returned. If they were within the state at that time, then during their absence the running of the statute was suspended. We are of opinion that the possession by an agent should be deemed to have the same effect as possession by a tenant.
ADDENDUM. GAINES, C. J. Since the opinion in this case was filed and certified to the court of civil appeals, our attention has been 375 called to certain language which, to say the least of it, is calculated to mislead. It is said in the opinion: “But the question does not advise us whether or not the defendants named were residents of the state or within the state at the time the adverse possession was taken by their agent. .... If not, then the statute ran in their favor until their return to the state, if they ever returned.” This probably admits of the construction that if the defendants, though residents of the state, were absent at the time possession was taken, the statute would run in their favor, notwithstanding such absence. Such a
a construction would be in the very teeth of the statute, and we did not intend to so hold.
It is ordered that this be published as an addendum to the opinion referred to, and that it be published therewith.
LIMITATIONS OF ACTIONS_REAL ESTATE-ABSENCE OF DEFENDANTS-SUSPENSION.—THE POSSESSION of a tenant or agent employed to hold possession is the possession of the person under whom he holds. Possession by a tenant is the same in all respects as if by the party himself: Note to Omaha etc. Trust Co. v. Parker, 29 Am. St. Rep. 509. Adverse possession by a nonresident, maintained by his tenant, will, if sufficiently long continued, create title by prescription: Lindenmayer v. Gunst, 70 Miss. 693; 35 Am. St. Rep. 685. If adverse possession of land is begun by a person by actual entry, and continued by him through his agent or tenant, his absence from the state will not suspend the right to bring an action to recover the possession of the land, nor interrupt the running of the statute of limitations in his favor: Omaha etc. Trust Co. v. Parker, 33 Neb. 775; 29 Am. St. Rep. 506. That the statute does not apply to nonresidents, see Wilson v. Daggett, 88 Tex. 375; post, p. 766.
WILSON v. DAGGETT.
[88 TEXAS, 375.) LIMITATIONS OF ACTIONS_REAL ESTATE--TEMPORARY ABSENCE.-A statute of limitations, providing that the temporary absence of defendant from the state shall not be accounted or taken as a part of the time limited, is applicable to real as well as to personal actions.
LIMITATIONS OF ACTIONS_POSSESSION OF NONRESI. DENT BY TENANT-TEMPORARY PRESENCE.-A person who has at all times been a nonresident of this state, but who was teni. porarily within the state before taking adverse possession of land by tenant, though he was absent when such possession was taken, and has ever since been absent, is not a person "without the limits of this state,” within the meaning of a statute of limitations respecting absent defendants.
LIMITATIONS OF ACTIONS-VISIT BY NONRESIDENT"RETURN.”—If a nonresident person comes to this state for a temporary purpose only, after having taken adverse possession of land by tenant, and remains here but a short time upon business, his visit is not "a return to the state." within the meaning of a statute of limitations respecting absent defendants, and his absence, after such visit, does not suspend the running of the statute in his favor.