15 S.W.2d 672 | Tex. App. | 1929
This suit was instituted by Mrs. M. E. Crump, appellee herein, against G. D. Barrett and Mrs. Rebecca Lewis, a feme sole, appellants herein, in form of trespass to try title to 131.77 acres of land situated in McLennan county. Appellee's petition, in addition to a formal count in trespass to try title, contained allegations that title had been acquired by appellee under the several statutes of limitation applicable in suits to recover land. By an amended petition, apparently in reply to contentions asserted by appellants, appellee, expressly reserving her rights under her former pleadings, which were repeated therein, alleged in the alternative only that she was seized and possessed for and during her natural life of an undivided one-third interest in and to a certain 400-acre tract of land, of which the land sued for by her herein constituted a part.
Appellants pleaded not guilty. They also pleaded specially that they owned the fee-simple title in and to the tract of land sued for by appellee, subject only to a life estate therein which they admitted was vested in her. They further alleged that appellee was in possession of the land sued for as such life tenant, and expressly admitted her right to such possession. They further alleged that they were the joint owners of the fee-simple title to said 400-acre tract of land; that the land sued for by appellee was a part of said tract; that said 400-acre tract was formerly the property of their deceased father, David M. Barrett; that appellee was the widow of said Barrett and their mother; that said Barrett and appellee resided on said tract and were using and occupying the same as a home at the time of his death; that said Barrett left surviving him as his only heirs his said wife and these appellants, who were the only children of said marriage; that appellee and appellants resided on said tract of land until appellants reached their majority; that said tract of land was then subdivided into three separate tracts approximately equal in quantity; that the tract sued for by appellee was the one on which the home was situated, and *673 that the same was set aside to appellee as her life estate in said entire 400-acre tract; that one of the remaining tracts resulting from said subdivision was set aside to appellant Barrett and the other to appellant Mrs. Lewis; that they took immediate possession of their respective tracts and had held continuous possession of the same, respectively, to the time of the trial. They also, in connection with said allegations, pleaded absolute title in and to the respective tracts held by them under and by virtue of the several statutes of limitation. Appellee's pleadings contain other allegations sufficient to raise all the issues involved in this appeal, except the contention of appellant Barrett that he was a minor at the time of the subdivision of said 400-acre tract.
There was a trial by jury on special issues, in response to which the jury returned findings, in substance, as follows:
(1) That appellee and appellants, about the year 1897, entered into an agreement to divide said 400-acre tract of land into three equal parts, and that each of them should have the entire title to one of such parts.
(2) That appellant Barrett, after arriving at the age of 21 years, acquieseed in the terms and conditions of the agreement so made by him as to a division of said 400-acre tract of land.
(3) That appellee has claimed the entire title to the 131.77 acres of land upon which she lives and for which she here sues for a period of 10 years or more next preceding the filing of this suit, as against both of appellants.
(4) That appellant Barrett for a period of 10 years or more next preceding the filing of this suit has had knowledge that appellee claimed the entire title to said 131.77 acres of land.
(5) That appellant Mrs. Lewis for a period of 10 years or more next preceding the filing of this suit has had knowledge that appellee claimed the entire title to said 131.77 acres of land.
(6) That appellee has had peaceable and adverse possession of said 131.77 acres of land for a period of 10 years next preceding the filing of this suit.
(7) That appellee after the oral agreement above stated, upon the faith thereof, made valuable and permanent improvements on the land sued for which was allotted to her thereby.
(8) That said improvements were made with the knowledge or consent of appellant Mrs. Lewis.
(9) That said improvements were made with the knowledge or consent of appellant Barrett.
The court entered judgment that appellee have and recover of and from appellants the title and possession of the 131.77 acres of land sued for. Appellants by this appeal present said judgment for review.
Said 400-acre tract was the property of David M. Barrett. He together with his wife and said two children used and occupied the same as a home until his death, which occurred in the year 1878. Appellee married Madison Crump, now deceased, on January 14, 1880. From the death of David M. Barrett until some time during the year 1897, the date of the agreement for the division of said 400-acre tract found by the jury to have been made, appellee and her family continued to use and occupy said entire tract as a homestead. At the time of said agreement her family consisted of appellant Barrett, her said second husband, and their nine children born of their marriage. Under the Constitution and laws of this state, she was entitled on partition of said 400-acre tract to have set aside to her out of the same 200 acres, including the improvements, as a homestead. Such homestead would not have been subject to partition between her and her children by her first husband so long as she saw fit to use and occupy the same as a home. She was also entitled as heir at law of her deceased husband to a life estate in 133 1/3 acres of said 400-acre tract to be apportioned to her and included in her homestead exemption regardless of continued use and occupancy thereof as a home. Haley v. Hail (Tex.Civ.App.)
Appellants alleged that the partition or division of the 400-acre tract occurred after they had reached their majority. The evidence showed, however, that appellant Barrett was between 19 and 20 years of age at that time. Appellee testified that appellants at the time of said agreement and division promised to make her a deed to the tract allotted to her. While such promise, if made, was never performed, the agreement was otherwise fully executed. Appellee surrendered to appellants the tracts allotted to them, respectively, and restricted her possession to the tract allotted to her. Appellant Barrett took immediate possession of the tract allotted to him, and has had absolute control of the same, and the sole use and enjoyment thereof ever since. More than 30 years have elapsed since appellee delivered possession thereof to him. By his pleadings he repudiates any and every kind of claim thereto on the part of appellee. He has during all said years enjoyed the possession of, and the income and revenues from, 34 acres of land, to which he became entitled solely by virtue of said agreement. The jury found that after attaining his majority he acquiesced in the terms and conditions of said agreement. He cannot at this time still retain the benefits which accrued to him under such agreement, and deny the rights conferred on appellee thereby, merely because at the time such agreement was made he lacked a year or a little over of having attained his majority.
Appellant Mrs. Lewis was a married woman at the time of said agreement. Her coverture continued until the death of her husband in August, 1927. She contends that said agreement was, on account of her coverture, ineffective to divest her of her interest in, or title to, the tract of land in controversy. Our courts have frequently held that a married woman can convey title to her lands to another only in the manner prescribed by the statute. They have further held that the fact, that a married woman has received the consideration for a void sale and does not offer to return the same, is no bar to her recovery of the land so sold. Cauble v. Worsham,
Appellants contend that appellee's possession of the tract in controversy was not adverse. Appellee held possession of the entire 400-acre tract from the death of her husband, David M. Barrett, until the agreement of 1897, as his surviving wife. When under the terms of said agreement she surrendered two-thirds thereof to appellants and accepted one-third thereof as her entire interest therein, such surrender was on the specific stipulation that she should have the entire or fee-simple title to the tract retained by her. The jury found that appellee for a period of 10 years or more next preceding the filing of this suit had claimed the entire title to said tract against appellants, and that each of them knew of such claim. The jury further found that appellee had had peaceable and adverse possession of such tract for said length of time. There is affirmative evidence to support such findings. So long as appellee claimed and held possession under her right to homestead and life, estate in one-third of the excess, such possession was not adverse to appellants as remaindermen. After the oral agreement and the subsequent division and allotment thereunder of separate tracts to the respective parties, she claimed the entire title to the tract allotted to her. Such claim was based on rights acquired by such agreement, division, and allotment. Such claim was necessarily inconsistent with a claim of homestead and life estate interests only, and was an implied, if not an express, renunciation of such limited claims. A specific declaration of such abandonment or renunciation was not necessary. When notice of such larger claim was brought home to appellants, her possession became adverse, and the statute of limitation began to run. Humphreys v. Edwards,
Appellants rely in support of their contention on the fact that appellee in her amended petition pleaded in the alternative that, in event her right to the entire title to the tract sued for was denied, her right to a life estate in the entire 400-acre tract be established, and that such tract be partitioned and her interest therein set aside to her. Appellants in their answer denied that the agreement relied on by appellee was ever made. They also denied the validity thereof. Each of them also alleged personal grounds for avoiding the same. They also denied that appellee had ever claimed title to said tract in fee, and that they had ever heard of such a claim by her. They also expressly admitted that appellee was vested with a life estate in said tract and disavowed any intention of disturbing her in the enjoyment of the same. Such alternative plea merely met the issues tendered by appellants in event the jury adopted their version of the facts. There is another reason why such pleading on the part of appellee could not in itself defeat her claim that her possession of the tract sued for was adverse. Such plea appeared for the first time in her amended petition filed several months after the institution of this suit. She alleged, and the jury found, that she had peaceable and adverse possession of said tract for more than 10 years next preceding such filing. By such adverse possession, under the express provision of article 5513 of our Revised Statutes, she acquired full title to such tract. Such title could not be forfeited nor divested by the assertion of such alternative claim.
Appellant Mrs. Lewis claims that limitation did not run against her on account of her coverture, which continued from the inception of appellee's claim to the entire title to said tract until shortly before the filing of this suit. She cites Revised Statutes, art. 5535; Deaton v. Rush,
*676The judgment of the trial court is affirmed.