158 S.W.2d 597 | Tex. App. | 1941
Pleading a trespass to try title action in statutory form, appellants, plaintiffs below, J. F., W. C.,.and Betty Allison, and the children of Zella (Allison) Collins, deceased, sued appellees, defendants below, Charles B. Johnston, alleged fee owner,- and California Petroleum Corporation of Venezuela, and the Texas Company, alleged lease holders, to recover a 4/7 undivided interest in a certain undivided ½ interest in 22½ acres of land out of. the J. R. Crosby Survey near Gladewater, Texas, and for a like interest in the proceeds of oil theretofore produced from the premises. All defendants respectively pleaded not guilty, general denial, and title under the 5, 10 and 25 year statutes of adverse possession and limitation, Articles 5509, 5510 and 5519, R.C.S. of 1925, Vernon’s Ann.Civ.St. arts.’ 5509, 5510, 5519. Other defenses urged will not be detailed. In a cross action, the Texas Company prayed for its title to be quieted. In response to the nine special issues submitted, the jury found that each defendant had matured title under the 5, 10 and 25 year statutes of limitation; and'upon such findings the court entered judgment that plaintiffs take nothing, and the cloud cast upon the title of. the Texas Company by the claim of plaintiffs be removed.
Appellants’ points attack principally the court’s charge. Such portions of the charge pertinent to .the complaints made, and the evidence which bears upon such of the points to be discussed, will be detailed.
In a deed, dated November 2, 1898, duly filed for record, one Wm. Sheppard purports to convey to D. P. Allison a 24½ acre tract of land, the description of which includes the land in controversy. If title to the tract passed by virtue of this deed, the land became the community property of D. P. Allison and his wife, Renzia. Born of this union were five children, namely, Zella in April 1889, Betty in September 1891,. J. R. in December 1893, W. C. in April 1895, and J. F. in April 1899. Zella married Ray Collins in 1908, and she and her husband died in January 1919, leaving four children who have joined in this suit. J. R. Allison and two children of D. P. Allison by a second marriage are not parties to the suit. Renzia Allison died June 15, 1899, intestate. Thereafter under a guardian’s deed dated December 10, 1904, executed pursuant to orders theretofore granted in the probate court, the validity of which was not attacked in the trial court, J. L. Mackey, as guardian of the persons and estate of Zella, Betty, J. R., W. C. and J. F. Allison, conveyed to Mrs. Mary Victory the minors’ purported ½ interest in the tract in controversy for a recited consideration of $135. This deed was filed for record in September 1905. At the time this deed was executed, the children were making their home with their grandmother, Mrs. Victory, the grantee named. D. P. Allison died in August 1914, intestate. Four-sevenths of the alleged undivided ½ interest of D. P. Allison is here sought to be recovered by appellants.
A deed dated July 11, 1907, filed for record January 25, 1908, which recites a cash consideration of $500, and contains a general warranty of title, executed by Mary Victory and husband, purports to convey to Mrs. Annie B earner the entire 24½ acre tract of land. A deed filed for record in October 1916, executed by Mrs. Beamer and- husband, with general warranty of title, purports to convey to O. G. Johnston two acres, described by metes and bounds, out of the southwest corner of the original 24½ acre tract, leaving the 22½ acres here involved. A deed dated April 23, 1923, filed for record October 4¿ 1923, containing a general warranty of title, executed by the Beamers, purports to convey to appellee Charles B. Johnston all the 22½ acres in controversy. The other appellees hold title as leaseholders under him.
In July 1907, the 24½ acres was enclosed on the north, east and west by fences of adjoining landowners. There is some controversy whether a fence enclosed the tract on the south at that time, but it is certain that, either later in 1907 or early in 1908, the fence of an adjoining landowner enclosed the tract on its south. These fences thus enclosed the land from 1907 to 1931, when same were removed upon development of the land for oil. In July 1907 no part of the land had been put into cultivation. That year, after the Beamers acquired it, they began to clear portions of it and continued to so clear for several years. As we interpret the evi
Under the testimony offered by plaintiffs they contend that the land was not cultivated and no crops made thereon in the years 1910, 1911 and 1912, 1916, 1917, 1923, 1929,. and 1930; and that a tenant leased and worked only 2⅛ acres of the land in 1925 and 1931.
The court charged the jury:
“By the term ‘adverse possession’ is ■meant an actual and visible appropriation •of the land, commenced and continued un•der a claim of right, inconsistent with and hostile to the claim of another.
“By the term ‘claim of right’, as used in ■the main charge of the court, is meant that ■entry upon and possession of the land in •controversy by defendants, or by those un~ ■der whom they hold, shall have been with the intent to claim the land as his or her ■own, as the case may have been.
“ ‘Peaceable possession’ is such as is continuous and not interrupted by adverse .•suits to recover the estate.
“The word ‘hostile’ as used in the special issue herein means a. holding with intent to claim it as his own to the exclusion of all others.
“ ‘Paying taxes therein,’ means paying from year to year as the taxes accrue and before they are delinquent, and includes all taxes assessed against the land.
“The term ‘duly registered’ means that such deed or deeds must have been filed in the office of the county clerk of Gregg County, Texas.”
Special issues 1 to 6, inclusive, inquired about the 5 and 10 year limitation title urged by each appellee. Special issue No. 1 reads: “Do you find from a preponderance of the evidence that the defendant, Charles B. Johnston, and those through whom he holds conveyances, either in person or through a tenant or tenants, held peaceable and adverse possession of the land in controversy, continuously cultivating, using or enjoying the same and paying taxes thereon, and claiming under a deed or deeds duly registered for any consecutive period of five years prior to September 20th 1935? Answer Yes or No.”
This is followed by the instruction: “In connection with the above issue and the next five issues, you are charged that if those inquired about held peaceable and adverse possession and used, cultivated or enjoyed the same or any part thereof under a deed duly registered dr filed for record and recorded in the office of the County Clerk in which county this land is located, fixing the boundaries of the possessors’ claim, such peaceable and adverse possession shall be construed to be co-extensive with the boundaries specified in such instrument.”
Issues Nos. 2 and 3, identical in wording to No. 1, inquired about claim of the leaseholders under the same Article 5509. Issues Nos. 4, 5 and 6 inquired as to claim of the respective defendants under the 10 year limitation title, Article 5510., Issues Nos. 7, 8 and 9 inquired about the respective claims of defendants under Article 5519, the 25 year limitation title. Each .of the first three issues closed with the phrase, “for any consecutive period of 5 years prior to September 20, 1935”; the next three each inquired about any consecutive period of 10 years, prior to September 20, 1935, and the last three each inquired .about any consecutive period qf 25 years prior to September 20, 1935. .
Appellants contend that under the provisions of Article 5538, R.C.S.1925, the trial court, in the submission of the limitation issues, should have affirmatively instructed the jury that, in computing the time inquired about, they should not include the 12 month period immediately following the deaths of D. P. Allison in August 1914, and that of Zella Collins in January 1919. If limitation began to run against D. P. Allison in 1910 (if not earlier), as found in response to issues 7, 8 and 9, the deaths of Allison and Zella Collins alone would not break the running of the statutes of limitation here involved. Moody v. Moeller, supra; Huling v. Moore, supra.
Appellants assert that the court erred in not excluding from the consideration of the jury the time elapsing between April 24, 1923, when the deed from Mrs. Annie F. Beamer et al. to appellee Johnston was executed, and the 4th day of October, 1923, when said deed was filed for record; that this was an unreasonable delay under the evidence as a matter of law. If this complaint be directed to the sufficiency of the registration of instruments to support affirmative jury findings under the. provisions of Article 5519, the alleged delay in filing above deed, if it be conceded same was unreasonable, would not under the facts here destroy such findings. Free v. Owen, 131 Tex. 281, 113 S.W.2d 1221. It is without dispute that the deed into Mrs. Beamer went of record in January 1908. And under the evidence offered by appellees she and her successors in title (appellees) have held peaceable and adverse possession continuously since such date. The alleged delay of recordation in 1923 into Johnston becomes immaterial in testing the sufficiency of the evidence to support an affirmative finding under the 5 or the 10 year limitation, if either, for the latter began in 1910 if not earlier.
Points 18, 19 and 20 assert that the court erred in instructing the jury that the possession and use, cultivation or enjoyment of a part of the land would constitute adverse possession of the entire tract described in the deed. The instructions complained of, above set out verbatim, relate to the first six. issues. Such, instructions correctly stated the law. Yarborough v. Mayes, 41 Tex.Civ.App. 446, 91 S.W. 624; Thomas v. Southwestern Settlement & Dev. Co., Tex.Civ.App., 131 S.W.2d 31, and authorities there cited. While not expressly approving the action, of the court in so incorporating the clause-complained of in the charge, it is thought no reversible error is shown under the-facts of this record. Points 21, 22 and 23, closely related to the foregoing complaint, likewise are respectfully overruled.
Issues Nos. 1 to 6, inclusive, each, contained the phrase as set out in issue No. 1, namely, “ * * * held peaceable and adverse possession * * * continuously cultivating, using or enjoying the same- * * Issues Nos. 7, 8 and 9 each con
Points 35 and 36 relate more to the weight of certain evidence than its admissibility and are overruled. The other points brought forward and not discussed have been considered and are overruled. The conclusion herein reached eliminates the necessity of a discussion or consideration of the counter points advanced by ap-pellees.
The judgment is affirmed.