129 S.W.2d 786 | Tex. App. | 1938
Lead Opinion
This suit was brought by appellants to recover from appellees, in trespass to try title, an undivided interest in about 40 acres in the south part of Lot No. 1 of the Martin Dunman Survey in Galveston County, and to recover from one of the appellees damages in the sum of $138,750 for oil produced and removed therefrom.
The numerous appellees filed separate answers, pleading for the most part general demurrers, general denials, "not guilty", the three, five, ten, and twenty-five year statutes of limitation; and two of the appellees pleaded in addition, improvements and development made in good faith.
From a judgment rendered for appellees against appellants on an instructed verdict, appellants have appealed.
Appellants, who are about seventy-five of the descendants of John Hamshire, seek to recover in this case, in virtue of his apparently outstanding interest in Lot No. 1, aforesaid.
In August, 1845, the Martin Dunman Survey was patented to Martin Dunman. Upon his death it was partitioned; lot No. 1 of such survey was awarded to Wm. Reeves and wife, Sarah, who was a daughter of Martin Dumman and wife, Elizabeth Dunman. Thereafter, and on April 11, 1857, Elizabeth Dunman, widow of the patentee, married John Hamshire. Then, on September 15, 1858, Wm. Reeves and wife, Sarah, conveyed to Elizabeth Hamshire, Lot No. 1 that had been partitioned to Sarah, and in this deed John Hamshire was not mentioned, and Elizabeth Hamshire was described, sic, "(formerly Mrs. Elizabeth Dunman)". This conveyance was not expressed as being made to Elizabeth Hamshire as her separate property. Such property therefore presumptively became the community property of Elizabeth and John Hamshire. He had no children of his union with Elizabeth Hamshire, formerly Dunman. He died intestate in 1872, and left surviving him several children by a former marriage, from whom appellants are descended. Thereafter, and on September 21, 1876, Elizabeth Hamshire conveyed Lot No. 1 of the Martin Dunman Survey, by a deed which is in part copied hereinafter, to Louisa Cronea. Louisa Cronea and her husband, Charles, moved on the tract (of 200 acres, which included the 40 acres in controversy), and they or their children and persons claiming directly *789 under them have been in possession of part or all of this Cronea tract since 1876. One of the Cronea children lived on a part of the 200 acre tract continuously from 1876 until about two years before the filing of this suit, and her children are still living there. By mesne conveyances the appellees hold under Louisa Cronea and her husband, Charles.
The undisputed facts show that the John Hamshire heirs all live in the vicinity of this property; one of them was the wife of the surveyor that partitioned the property among the Cronea heirs, and lived there as a tenant of the Croneas. Appellants have never paid taxes on the property, and the present suit, brought after oil had been discovered and produced from the property, is the first time any of them have asserted any claim to it. The 40 acres in controversy is in low marshy land next to the Gulf, and appears not to have been actually occupied or enclosed. But the deed from Elizabeth Hamshire to Louisa Cronea, dated as aforesaid September 21, 1876, and in virtue of which the Croneas went into possession of the entire tract as stated, includes such 40 acres, and was filed for record in the deed records of Galveston County, October 27, 1876.
We have been unable to see why the possession and use of at least portions of the 200 acre tract, conveyed to Louisa Cronea by Elizabeth Hamshire, by Louisa Cronea and her husband, and by their children after them, under and by virtue of such deed of conveyance, was not an adverse holding of all the land within the boundary of such deed. Hodges v. Ross,
"Know all men by these presents: That I, Mrs. Elizabeth Hamshire widow of the late John Hamshire, and formerly the widow of Martin Dunman, decd. of said State and County party of the first part in consideration of a conveyance this day made by Charles Cronea and his wife Louisa A. Cronea, to H. M. Powell of a certain tract of land out of the Burwell Franks Survey on Bolivar Peninsular" — (here follows description of the exchanged land) — "have granted, bargained and sold unto the said Mrs. Louisa A. Cronea, wife of Charles Cronea, he consenting thereto party of the second part her heirs and assigns forever, two hundred acres of land on Bolivar Peninsular in the County of Galveston, State of Texas, described as follows: One Hundred and forty seven eight tenths (147-8/10) acres of land part of the Martin Dunman Survey on High Island and conveyed to me the said Mrs. Elizabeth Hamshire by William Reeves and wife Sarah Reeves by deed dated February 15th, 1858, and beginning at a stake on the Gulf shore 1275 vs. N. 67 E. from the S.W. corner of survey No. 16 made for Martin Dunman. Thence N. 23 deg. W. 2617-1/2 vs. to a stake for the N.W. corner. Thence N. 67 Deg. E. 318-3/4 varas to a stake for the N.E. corner. Thence S. 23 deg. E. 2617-1/2 vs. to a stake for S.E. corner. Thence S. 67 deg. W. 318-3/4 vs. to the beginning, with the Houses and improvements thereon." — (here follows description of an adjoining fifty-two and two-tenths acres) — and then follows the Habendum and General Warranty Clauses.
Though appellees have not undertaken to support the action of the trial court in instructing a verdict in their favor on the ground that the operation of the statutes of limitation have barred the rights of *790 appellants, we confess that on the face of the record we fail to see why it is not so sustainable: We do not, however, sustain the instructed verdict on this ground. We assume that, contrary to what seems to us to appear from the record, that appellees failed to establish, as a matter of law, the facts necessary to bar appellants' rights under operation of the statutes of limitation.
The first contention of appellants is that when they proved up their heirship in relation to John Hamshire, and proved up that the land was conveyed to Elizabeth Hamshire during her marriage to John Hamshire, and not conveyed to her as her separate property, they made out a prima facie case, entitling them to recover their respective proportions of his presumptive community interest. Appellants admit that under their contention Elizabeth Humshire took the entire legal title to the property, citing Martinez v. De Barroso, Tex.Civ.App.
Assuming for the moment that the recitals in the deed are sufficient to give subsequent purchasers of the land notice that John Hamshire owned an equitable community interest therein, then, by the same parity of reasoning, such recitals must likewise have constituted means by which appellants could have themselves known of the existence of their presumptive interest in such land — Hill v. Moore,
However, we do not believe that the recitals referred to were sufficient to put the purchaser from Elizabeth Hamshire, or those holding under such purchaser, on notice of an outstanding equitable community interest in the heirs of John Hamshire. Gilmer's Estate v. Veatch,
Furthermore, we believe that every fact necessary to sustain the presumption of a grant of this land having been made by the ancestor of appellants is shown by the evidence. "It is not necessary to such finding that the evidence satisfies the mind of the court or jury that the grant was made. It is sufficient if the evidence leads to the conclusion that a conveyance might have been executed and that its existence would explain and account for the long claim and assertion of ownership on the one side and the acquiescence on the other." Fowler v. Texas Exploration Co., Tex.Civ.App.
And in connection with the point relative to the presumption of a grant, it may not be amiss to state that, from an examination of the deeds in which the recitals relied upon by appellants occur, such words therein as "formerly" and "peninsular" are misspelled. From this it might be inferred that the deeds may not have been drawn by a member of a learned profession. We are not authorized, of course, to assume that the draftsman of the deed to Elizabeth Hamshire from her daughter and son-in-law was ignorant of the fact that, unless it were made to appear on the face of the deed that the land was conveyed to the grantee as her separate property, the presumption arose that it was conveyed to her as the community property of herself and husband, — a presumption that would remain rebuttable, of course, so long as the parties to it, or other witnesses that might know the facts, lived. But it certainly does not lessen the force of the applicability of the doctrine of a presumed grant where, as here, the interest which is asserted in conflict with such presumed grant does, itself, rest entirely upon a presumption — the presumption that where Elizabeth Hamshire was named as grantee, without any qualifying words, the intention was to convey to her unnamed husband as well as to herself. This presumption was rebuttable. And the fact that it was treated as being contrary to the truth for sixty years, lends credence to the view that it could have been rebutted at an earlier date. At least, as against this presumption, we may legitimately presume a grant from John Hamshire to his wife, Elizabeth Hamshire, or to some other of appellees' predecessors in title, merely from the principle and for the purpose of quieting title. "The owners of property, especially if it be valuable and available, do not often allow it to remain in the quiet and unquestioned enjoyment of others. Such a course is not in accordance with the ordinary conduct of men. When, therefore, possession and use are long continued, they create a presumption of lawful origin; that is, they are founded upon such instruments and proceedings as in law would pass the right to the possession and use of the property", etc. Fletcher v. Fuller, supra [
For the reasons given, the judgment is ordered affirmed.
Affirmed.
MONTEITH, J., participating as Special Commissioner.
Addendum
We erred, also, we believe, in holding that the court was authorized as a matter of law to find a lost grant to sustain appellees' title. The strength of the presumption of a lost grant where a party has been undisturbed in his possession for *792 a great while has been increasing, and its rebuttable character has been steadily receding in the opinion of bench and bar, but such presumption still remains merely a presumptio juris — one for the jury to draw, and not a presumptio juris et de jure, one for the court to draw as a matter of law. Of course, if under the facts proved, reasonable minds could reach no other conclusion but that the long continued and undisturbed possession could be explained only on the presumption of a lost grant, then the court could presume same as a matter of law, or instruct the jury to find such presumption. No doubt, the justification for presuming a lost grant is always the same. Men seldom have rights of value which are unknown to them, and it happens more seldom still, if possible, that they will suffer themselves to be deprived of the enjoyment of such rights for thirty years or more. It is much more reasonable to conclude, after those who know the facts are dead, that the ones who are in the enjoyment of property and have remained so undisturbed for more than a generation, have the better right to such property, or were left so undisturbed because their better right was well recognized. That a person and his predecessor in interest have held the undisturbed possession of property constitutes the strongest kind of vindication and proof of such right. To permit some technical rule of construction to construe the possession away from those who have held it for sixty years, is highly unsatisfactory to judicial reason. But we are unable to hold that the presumption of a lost grant under such circumstances has become one for the court to make. This is a matter for the legislature to consider.
The same grounds of policy that authorize the jury to presume a lost grant to protect long continued occupancy of land, authorize the jury to presume from the sale of property by the surviving spouse, after the lapse of many years, that such sale was made for the purpose of paying community debts. Our Supreme Court said in Veramendi v. Hutchins,
Appellees say that it ought to be presumed that Elizabeth Hamshire deeded the land in controversy to Louisa Cronea to pay community debts. They say, indeed, that they proved the existence of community debts, and that the existence of community debts does of itself authorize the sale of land by the surviving spouse. Certainly the power to sell community property to pay community debts does not include the power to give community property away, nor does it include the power to exchange property belonging to the community estate, unless it should be shown that such exchange was itself made to pay community debts. At any rate, if the existence of community debts is proved, and it is shown that the surviving spouse exchanged property as Elizabeth Hamshire did, it falls within the province of the jury, and not of the court, to indulge the presumption that the exchange of property was made to facilitate the payment of *793 community debts. We cannot sustain the deed in this case on the presumption, made as a matter of law, that it was authorized as the exercise of the power to pay community debts by the surviving spouse.
We adhere, however, to our former conclusion that the recitals in the deeds were not sufficient to give notice that Elizabeth Hamshire was the wife of John Hamshire at the time she acquired the land, and his widow at the time she conveyed it. The mere fact that the recitals in the deeds were sufficient to indicate that Elizabeth Hamshire was a "Mrs." at the time of the conveyance to her was not sufficient to put a purchaser on notice that she was a married woman at such time. Griggs v. Houston Oil Company, Tex.Com.App.,
If, however, we should be in error in our view that the recitals were insufficient to put Louisa Cronea on notice that Elizabeth Hamshire had a husband at the time she acquired the property, and that he died leaving heirs who inherited an undivided half interest, then we think it clear that all of the appellees that pleaded the statute of limitations were entitled to an instructed verdict. The undisputed proof showed that Louisa Cronea and family went into possession of the two hundred acre tract shortly after it was bought in 1876, and that the deed from Elizabeth Hamshire to her was promptly placed of record. This adverse possession, under a recorded deed, was maintained by Louisa Cronea and her family, who actually lived upon the premises until Louisa Cronea's death. Then in 1890, by deed dated December 20, 1890, and recorded, the children of Louisa Cronea partitioned this land among themselves, and continued to live upon this tract of land until such of them as sold their interest, moved off, but their successors in interest continued to use and occupy portions of the land, and at least one of Louisa Cronea's children still lives upon a portion of this tract. When the grantees in a deed take possession under it of any part of the land described in it, their possession constructively extends to the boundaries which it gives unless such possession is limited by the rule laid down in Turner v. Moore,
Appellants' motion for rehearing is refused.