162 S.W. 913 | Tex. App. | 1913
This is an action of trespass to try title to the Nancy Cooper survey of 640 acres of land, instituted by the appellants against the appellee in the district court of Newton county. It is the second appeal in this case; the former is reported in
The first assignment of error charges that the verdict is contrary to the law and the evidence. Objection is made by the appellee to the consideration of this assignment, because it fails to refer to the motion for a new trial as required by the rules adopted by the Supreme Court. We have heretofore announced that it was the purpose of this court to follow the precedents set by several of the other Courts of Civil Appeals in refusing to consider assignments of error where the parties have failed to comply with the requirements prescribed in the rules. It is proper, however, to say in this connection that we do not feel inclined to permit the mere failure of attorneys in the preparation of their briefs to conform to the rules of practice to stand in the way of dispensing justice. Rules of procedure are generally to be construed as directory only. The Courts of Civil Appeals derive their power to consider assignments of error from the statute, not from the rules adopted by the Supreme Court. While an orderly system of briefing cases is an accomplishment which we, with all of the other Courts of Civil Appeals, are strongly inclined to encourage, yet we are not disposed to push that encouragement to such an extreme as would result in a miscarriage of justice. Without undertaking to outline any clear-cut system which we expect to follow in the future in the consideration of assignments presented in violation of the rules, we content ourselves with saying that we shall, in each particular instance, exercise such discretion as we may have, with a view to determining each particular case on its merits. However, we wish to impress upon the members of the bar the importance of conforming to the rules as they are laid down. There is little excuse for a failure to do this; otherwise we might be more lenient in overlooking such derelictions. The frequency with which objections to the consideration of assignments of error are made in cases submitted for our consideration shows that many of the attorneys are either unaware of the requirements of the present rules, or that they overlook them in the preparation of their briefs. We expect to deviate from the rule heretofore adopted only in those cases where the record shows that a palpable injustice has been committed in the judgment appealed from.
We do not believe that the verdict rendered in this case is the proper one which, under the evidence, should have been returned. If it were necessary to consider an assignment of error not properly presented in order to reverse this case, we should unhesitatingly overlook the failure to conform to the rule. W. R. Fuller himself never occupied the land. In 1880, according to the testimony, H. C. Fuller, a son of W. R. Fuller, moved on the land, built a house, and occupied the premises till about 1888 as the tenant of his father. During all of that time, it is asserted, W. R. Fuller claimed the land adversely to all other parties. H. C. Fuller in his testimony admits, however, that both he and his father were aware of the fact that the appellants and other heirs of Nancy Cooper claimed an interest in the property. His testimony as a whole strongly tends to show that the validity and justness of those claims were recognized by both him and his father during his alleged adverse occupancy. The record shows that Fuller's tax deed was dated the 4th day of June, 1878, and was filed for record July 8th of the same year. It is further shown that on the 19th day of June, 1878, before the recording of his tax deed, and on the 26th day of January, 1882, September 12, 1883, and November 23, 1878, W. R. Fuller acquired the interests of other parties in the land in controversy. Two of those conveyances are dated anterior to the time he claims that his adverse occupancy began. It follows, then, that when Fuller through his tenant entered into the possession of the premises he was a tenant in common with the remaining heirs of Nancy Cooper, and had the legal right to occupy the premises as such cotenant. The rules by which to determine whether or not he subsequently acquired a title by limitation are those which apply to controversies between tenants in common, where one is relying upon possession adverse to the others. In such cases the mere occupancy of the premises by one cotenant, although accompanied with a secret intention to claim the entire title, is not sufficient. Such hostile tenant must go further and fix upon his cotenants notice of his adverse claim. Moody v. Butler,
The court gave the following as a portion of his main charge: "The mere fact that H. C. Fuller purchased some of the heirs' interest in the land, and sought to buy the interests of others in the land, would not of itself be an admission of their title to the land or that his possession for his father was not adverse, as he would have the right to buy his peace without detriment to his limitation title." Appellants contend that this charge is on the weight of the evidence, and we think the contention is correct. It appears to be founded on the language used by Associate Justice Reese, of the Second judicial district, in disposing of the case on the former appeal. In discussing the contention of the appellant in that appeal, the appellee in this, that the evidence showed a perfect title in it by limitation, the court used the following language: "The fact that H. C. Fuller after getting his tax title bought out the interests or claims of certain of the Nancy Cooper heirs would not of itself prevent his possession from being adverse to them. He could buy his peace without admitting their title. But the testimony goes further than this in showing in the language of the witness that Fuller always recognized their claim during the time that he was undertaking to buy them all out." Appellee undertakes to justify the giving of that charge by saying that it is only a part of the general charge of the court and should not be considered without its appropriate connection with the other portions of the charge. It is true that this portion of the charge is separated from that which precedes and that which follows only by commas, but a reading of the entire context will show that it is an independent sentence, and is the enunciation of a distinct rule for the guidance of the jury. It is not qualified in any sense by that which precedes or that which follows. Appellee also insists that this is a correct enunciation of the law, and refers to the opinion of Associate Justice Reese as authorizing it. It will be observed, from a comparison of the language employed in the charge and that used by Justice Reese, that there is a material difference. In the opinion the justice said: "The fact that Fuller after getting his tax title bought out the interest or claims," etc., would not prevent his possession from being adverse to them. This charge says: "The mere fact that Fuller purchased some of the heirs' interest in the land and sought to buy the interest of others inthe land," etc., would not be an admission of their title to the land or that the possession of his father was not adverse. We may concede that the language employed by Justice Reese is the law; yet it was improper for the court to thus particularize that group of facts and undertake to tell the jury that they could not be considered as evidence against a hostile claim on the part of Fuller. In the excerpt from the opinion referred to the justice was merely saying that in the then condition of the record it could not be held as a matter of law that the transactions mentioned negatived the fact of an adverse holding on the part of Fuller. Evidently he did not intend to say that negotiations between *916 tenants in common, where one seeks to purchase the interest of another, do not under any circumstances carry with them a concession on the part of the prospective purchaser that the other has an interest which is to form the subject-matter of the purchase. Counsel for appellee in discussing another assignment of error use this language: "The fact of his [Fuller's] seeking to buy out some of the heirs and his in fact having purchased the interest of some of the heirs is an equivocal act. It might or might (not) show that Fuller's possession was held in recognition of the claim of the title of the heirs of Nancy Cooper, according as the jury would draw the inference of fact one way or the other from the entire testimony." This appears to be practically a concession that the jury had a right to consider those offers to purchase as evidence of the absence of any hostile claim on the part of Fuller. We think that counsel were correct in thus stating the nature of that testimony. We shall therefore use one portion of their argument to answer the other.
The objections urged in the third and fourth assignments of error are not tenable.
The fifth assignment complains of the action of the court in giving a special charge. We know of nothing in the record which called for the giving of this charge. The testimony referred to, having been admitted, could be considered by the jury for all legitimate purposes, and it was not of that character which required the court to place a limitation upon its consideration. While we do not think the charge contains any harmful error, it had no legitimate place in appropriate instructions to the jury under the facts of this case.
For the errors previously discussed, the judgment of the court is reversed, and the cause remanded.