*1 WHITAKER. FELTS v.
No. 13914. Appeals Texas. Civil
Court of Worth. Fort
May 19, 1939.
Rehearing June Denied *2 Miller, of Belton, Walter Hunter P. Warren,
Lane, Lattimore, E. Scott, H. S. J. Worth, ap- A. all of Fort John pellant. Bailey, A. B. Culbertson and M. Ward Worth, appellee. Fort both of SPEER, Justice. Whitaker C. H. G. M. sued Felts warranty estate,
breach deed to real charges Felts had no title at the conveyance; of the but that the real time and title stood in another. appears petition from the that on Feb- 4th, 1927, parties ruary exchanged lands, estimating the value of each tract property same. Whitaker’s County, in Tarrant and that of situated County; consisting the latter Felts Bell of timber none 34 acres of which subject cultivation. Each of represented to parties the other that he had .title, good merchantable executed warranty deed. That at the general Fort against the delinquent taxes conveyances, Felts did ex- pre- property the time Worth he had possession, but title or change $48. Bell viously conveyed the Townsend, by gen- to Sam and William market value 7. The cash ' 23rd, November *3 eral conveyance County land, the at the time of and then 1900, that and the Whitaker, was $750. have land possession of said and there took its answer read: eighth issue and same. possession of time been since that the you preponderance of “Do find from a said knowledge of plaintiff had no That William Sam Townsend and evidence that purchas- innocent conveyance, and was them, duly Townsend, or their or either of had said Townsends er for value. That and agents had control authorized .used, and fenced, cultivated had lands enjoying the 34 using, occupying and possession peaceable and adverse been in Texas, County, since acres of land in Bell more than for thereof under said to them of the deed Felts the execution deed to the prior execution of years to the . ‘yes’ ‘no’.” year Answer of the 1900? ouster were made of plaintiff. Allegations answered, “Yes.” issue was plaintiff by the Townsends party objections by either No were made Prayer warranty. breach defendant’s . submitted, any re- issues nor were to the price recovery purchase of the was for quests . additional issues. Whit for paid. . verdict, judgment moved for on the aker general Felts with answered Defendant judgment Felts non obstante and moved were, pleas, among which special and denial and veredicto. The latter overruled was conveyance Towns- to the the him that en Judgment was the former sustained. the placed record at not been ends had plaintiff tered for of the land for the value Whitaker, conveyance of his time n Bell interest, County, with less the taxes Townsend the consideration that County paid prop Felts on the Tarrant rescinded failed, that he had deed had overruled, erty. Motion new was trial prior the repossessed lands the and' same appealed. and Felts has answers conveyance Further to Whitaker. carry designation Parties will same the , properties that neither were made as in the trial court. . Counties, at the time Bell or in Tarrant presented appeal up- Defendant has that exchange, any had such value as theory on the judg- that his motion for had plaintiff; that Whitaker alleged by ment, County verdict, disregarding should possession Bell of the gone into have been sustained. This it to voluntarily surrendered property and contention upon propositions effect, based Townsends, (a) suffered to the and therefore .'the plaintiff that could not recover for breach no ouster. warranty until he assumed the burden ^special is- jury was had to Trial discharged jury it with a returned consisted The verdict sues. finding that the Townsend title was su- issues follows: answers to perior received that Whitaker, 1934, year During him from that defendant Barton, undertook to through acting one plaintiff had been ousted virtue of that County Bell land. possession of the take superior title; (b) that n pos- to take Barton tried time affirmatively 2. At the plain- the evidence shows that County land, act- Bell he was of the session tiff was the Bell agent of Whitaker. voluntarily as the land in surrendered Townsends and it to therefore there attempted to take time Barton 3. At the eviction; only was no that (c) Whitaker, the land for Will possession of theory plaintiff in the case which (cid:127) permit him to do so. refused to Townsend could have recovered was to show that per- refused Townsend Will 4. When Townsends held a take of the Barton mit virtue of limitations. But condi- that drily agent acting as authorized' under which claimed tions grantees one of Sam prescription were insufficient law or in 1900. Felts the deed claim, support ques- 'fact delinquent submitted were taxes due was not 5. There and tion determination, the Fort Worth unpaid failed to re- submission, exchange par- quest between the time its and therefore his means of in 1927. waived. ties of war- group the breach propositions, those Under above, ranty complete of action cause first subdivision ed us conveyance and arises bur at the time properly contends defendant 'party may warranty, complaining estab proof was den of thereafter convey have action as soon therefor took that at the lish discovers, by diligence as he ance from defendant discovered, Westrope deception. standing in County land title to the 178, 187; Estate, 51 Tex. Chambers’ another; is, did not Jones’ 41; Heirs, Heirs Atler title, by v. Paul’s good pass Erskine, Tex.Civ.App. the land. possession of take could refused; Compton undeniably v. Trico Oil writ true Jur., p. 58. It Co., conveyance, Tex.Civ.App., writ prior to the date *4 . County refused. the deeded had defendant Townsends, The in 1900. property to the plead by his defendant an deed of placed not had plaintiff swer that had in this case not an in alleged he was record. Plaintiff premises been evicted the described from is con purchaser for value. nocent It in the deed and that he could recover not briefs, it did by plaintiff, his that tended in ejected in this suit he had been until urge the not lie with defendant to dispossessed by claiming under a another trial, pur plaintiff an innocent was superior paramount title. This seems value, alleged he not when had chaser for holdings early to have the of our defense; he could defeat in not such courts, many years but for now that rule plaintiff's recovery a breach of the to extent that has been relaxed when admittedly convey warranty he when had attempts one who a deed takes under to prior to his con another ed the land to purchas so take veyance plaintiff. was no neces to There claiming finds another ed and under a plea by plain sity when for such his, superior and the latter title to denies that, fact, petition. plead had his tiff as a possession, right him the and threatens l Cameron, Mfg. Co. v. Western Meta rights through enforcement of his Imp. Dist., Tex.Civ.App., Water by legal methods, pursuing courts or other dismissed; 700, writ Tex. purchaser may, outstanding such if the title p. 593, Jur., cases there superior own, to be his resort to his rem cited. edy warranty. of suit for breach of In be said that the Town- It cannot however, doing so, respon he assumes the superior acquired sends held a title to that sibility paramount being that other title solely they plaintiff, a by because deed by grantor. one' taken him from to Felts, conveyance from executed in grantor is That was of record and deed not persons, other the lawful claims nothing knew about it. To be ef claims, prove if be unlawful to title, acquir against plaintiff’s fective as grantee must follow if has chosen it. must have been re: ed that deed prevail assumption let them under the to time, prior or other corded actual to that lawful, are he' no action plaintiff. by had notice thereof Bonito against his warrantor. Rancho 6627, R.C.S. North, Live-Stock Co. 92 Tex. Land & 72, 45 last cited case it S.W. 994. follows, then, such su It 72, 45 said, page S.W. at 996: was perior may title the Townsends warranty in former times “The could upon prescription. dependent had was from broken an actual eviction plead was Such a Townsend title in modern plaintiff, but times rule and he assumed the burden of so far relaxed an eviction establishing fact has been it was true. contemplation legal occurs prove when the plaintiff’s It was further burden to such be useless for from are that would that he been ousted facts’ attempt to maintain paramount held the covenantee those who title. conveyed g. where necessary e. holder longer prove is no an title It actual superior pos title has taken actual physical before a eviction can be suit. If warranty. breach of or threatens cases had for a If session resist, is, he superior estate, yields a force cannot outstanding he real law, contemplation attempted evicted.” passed to be to the one con quotation which the veyance, taken instrument contains a case recently evidence, in Love v. followed has been jury, nor found to be Tex.Civ.App., superior Corp., Minerva Petroleum statute of- years’ other authorities wherein limitation. are cited. Under the cited, authorities there can question but that the burden of upon a war- is not incumbent rested with prove procure otherwise, a fight in rantee to court finding that the Townsend title hope make a cannot resist or force he was the one title be right less of another’s contest received under his deed from defendant. his action for breach fore he maintain can That not virtue of warranty; assume the but must the Felts Townsends, 1900,. deed to the superiority responsibility regardless validity of that con- voluntarily to his own when other claim veyance as between grantees,, Felts and his Mumford, yields it. In Clark v. record, not of nor did “And is said: page any knowledge existence; of its he was- warranty withstanding a covenant purchaser, innocent insofar as deed by paramount eviction not broken until concerned, and Townsend’s title under judgment at law is still eviction taken-, that deed would be inferior to that breach; to establish essential *5 by plaintiff. The strength of outstand- the may paramount yield covenantee ing plaintiff yielded to which was de- buy else his give title and pendent upon having ripened' limitations peace cove and claim for breach of the it in the Townsends. either, bur But in case he does the nant. attempted prove Plaintiff to out- the in a suit his den is standing Town- title Will warrantor, that the title to to establish send, nephew grantees a of in the- the yielded superior was the which he thus conveyance; him- this witness showed Westrope Cham better v. title.” representative agent self to be the Estate, supra, Supreme Court bers’ the uncles, grantees his who were the old yielded to where a warrantee that deed as- mentioned. The most favorable superior title and what he to be a believed pect testimony given that can be his is- to the former his for breach sued warrantor in effect that since about 1906 had at- he peril, did his and must assume the so at tended to the grantees; business of those determining upon responsibility of the that the in controversy land rough was success; must, that he under chances timbered suitable for wood and conditions, suing his warran when pasture purposes; when that his uncles tor, proving the assume burden that the bought prairie acres lands from de- yielded he has title to which Felts, got fendant also this 34 acre- his own. To same effect are to the Johns tract, at which time one of his uncles 623; Hardin, 37, 16 Nor S.W. paid Mr. Felts it. the- That $100 Schmucker, 83 18 S.W. ton it, had no fence around en- tract but was ample support There is to something closed with over 360 acres be- plaintiff that when the verdict parties; longing through to other Barton, agent, his take sent agreement with the owners of those other- County land, possession of the to cut lands, enclosed he had turned his livestock up and clear certain therefrom timbers into the enclosure pasturage purposes. it, Townsend, parts that the authorized paid He taxes on all the lands his agent of Sam forbade tak him 1906; they uncles since had other lands possession land; clearing the that survey the in which this tract was locat- yielded to that title asserted ed, paid and that he taxes on 34 acres- Townsend, upon theory the it was more than was shown two deeds to> his own. We survey; be located in that on cross ex- assigned therefore overrule defendant’s er he amination said he did not know wheth- he judgment rors that should have had er he rendered acres of land favor, in his notwithstanding entered not; taxes or he had got sometimes verdict, proven because had not wood from the land used at his home eviction. prairie; depended it on on the kind brings us This to a consideration of de- wanted of wood he as to where got contention based assigned fendant’s er- This further it. witness about testified rors, attempted the title Townsends to occasion when Mr. a Barton plaintiff yielded was not some shown to cut wood on the land in 1934.
6S7
.another
cause of action shall have
relies,
his stock on
session
Tex.Civ.App.,
n '“Any person
another.”
is
continued
not
joying
(cid:127)to adverse
perior
in this
(cid:127)especially
(cid:127)of free
the land
able
to take
county
therefor
ilarly
n did not
were
itation in the
pears
ture
tiff. The use
others who
propriation of the
said he
heirs
land and
clusive or
for the
likewise
tiff. The
He said that
sistent
possession’
fused,
tracts
(This
It was
Insofar as
applicable
to show that
claimed
it and that he
afterward.
premises;
record,
occurrence
which contained this
property, as shown
light
similar in
essential
Felts
is the
situated,
not recorded and then
insofar as
seat and
with and hostile
case,
grass.
thereof, cultivating,
having
told Barton
within ten
return.
pastured
under a claim
necessarily
control,
representatives
considered
We do not
to his uncles
same,
man whom
likewise
demanded
considered
large
plaintiff,
who has
here.
real owner.
he, along with others
160 S.W.
tract of
R.C.S.,
an actual and
no one
that Barton
in
peaceable
Townsends, as disclosed
[*]
* rather
he looked
acres,
many respects to that of
had it recorded
of
Patrucio
ripening a title
foregoing
He testified that
and cut the
applicable
shall
enclosure,
the whole
lands
use and
represented
land,
It
his uncles owned
years
Townsends and
[*]
pastured
open,
title to
article
adverse
upon
while
considered
”
else
of Barton
reads:
think the evidence
the Townsends
in its
claimant
.
635, 637,
institute his
of such
“free
and adverse
to the
commenced and
**
up the old
acquired
right
acres,
These
next after his
notorious,
did leave
enjoyment
acres,
article refers
against plain
using
other owners be
took
accrued,
Selkirk
5515, R.C.S.,
here,
where
right
most favor
wood).
the several
visible
grass”.
found that
tract,
his uncles
“
*
sent
(in
any right
of
claim
evidence,
‘Adverse
a nature
any
pastured
elements limitation.”
it to
writ
to leave
by lim
reads:
incon-
action
which owner
1934).
plain
it
et
after
deed
kind
sim-
pos-
pas-
*6
one,
was session
suit
en-
ap-
He
ex an
ap
su
re-
al. “Possession
of
that case
not such
the evidence
not such
limitation.
build
page
herded
other
of over
must be in
land;
limitation
structive
claim of title
support
Civ.App.,
of the
sufficiency
time,
in
fore
such
it the
cattle
holding.
of
Claimant,
liams,
as would
acres from the
Com.App., 121 S.W.2d
tion.
in that
continued
eventually
fence built
fused,
108 and
authorities
In Mason v.
In the case of
West
A
large
80 acre
made to
160 acres
controversy,
open
the ten
same
claimant. Case of Schaeffer Wil
acres included
tract as
suit was
open
similar
170:
a
elements of
were not
presumption of
thereon,
Tex.Civ.App.,
large
enclosure,
Court
that his
sense
fence
was so
800 acres.
Production
enclosure, pastured
possession
range in common
possession, the
thing.
ripen
a
with
was involved.
sought
tract,
there cited
sheep
of
claimed a certain
held that the
“In
plea
appear
collated
use and
pasture built
rule is
years’ statute of
operates as notice to the
having
which included
on the
held that
instituted, and
pasture
premises
mere
notorious
evidence to
permission
another,
order to
Stapper,
support possession
the title
open
title is
so as to exclude the
and the
Walker v.
sufficient
large
Court
on the land from
prescription.
where
three,
that the
as will
He
57.
running
Co. v.
in 2
announced
disputed premises be-
acquired
establish his' title
occupancy
a claim of
the 160 acres
usually
pasture.
maintaining
said, 31
pastured his cattle
disputed.
adverse
subsequent owners
did
328, involved the
S.W.
by prescription
hold
Tex.Sup.,
commencement
party
It
five or ten
The claimant
years5
of
notorious
large
Tex.Jur.,
support
support a
sustain title
Kahanek, Tex.
Maynard, Tex.
claimant’s
with others
fence
is there
not
her cattle
sufficiency of
pasturing
land
part
80 acres
support
carries
claiming it
stock
others
possession
limitation.
statute
as
constitute
owner
enclosure
Claimant
80 acres
claimant
adjacent
writ re
It must
v.
time to
limita
would
years’
as to
many
pages
said:
with
con
plea
pos-
true
and
160
of
ground
presumption
knowl-
afford
for a
was whether or not the Townsends had
inquiry, acquired
edge
land,
In
to excite
or notice.
order
a limitation title
open,
exclusive and which
must be
to that
acquired by plaintiff by
visible.”
his deed in 1927.
strength
plain-
of thé title to which
understood as
We do
mean to be
not
yielded
tiff
depended upon
perfection,
its
unim-
holding
proved
unfenced and
that title to
years’
under the ten
statute of limitation.
acquired
limita-
land cannot
requisites
of that
were not
statute
tion,
certainly
which are re-
but
the acts
special
covered in
copied
issue No.
above.
acquire
lied
be such
to thus
must
By that issue and its
nothing
answer
open,
as are
even inconsistent
notorious and
except
Townsends, through
found
that the
may
with
claim
be made
a similar
agent,
controlled, used,
occupied
enjoy
persons
other
who
common
same,
enjoyed
the land
an-
since
use,
privileges
as claimant.
swer
determine,
to that
issue
even
concerning
While our
statutes
remotely, whether the
use
control
years
provide
do
limitation of
the Townsends embraced the peaceable many
claiming
so
words
one
adverse
of the land. “Peaceable
thereunder must have asserted a “claim” possession” is such as is continuous and not
ownership during
period
of title and
interrupted.
(Art. 5514,R.C.S.). “Adverse
prescription,
there must be
evident
such
possession”
ap-
means
actual and visible
part
acts
put
the claimant as will
propriation
commenced and
persons upon
notice that he in fact continued under
right
a claim
incon-
appropriated
exercising
the land and is
sistent with and hostile to the claim of
eventually
ripen
control as will
another.
(Art.
R.C.S.)
title.
this connection it
Reverting
adduced,
we
Supreme
was said
our
Court
Smith
Townsend,
recall that
representa-
Will
Jones,
469, 472,
uncles,
tive of his
all consid-
L.R.A.,N.S.,
1S3: “It is therefore true
pasture
ered
large
lands in this
enclo-
satisfy
statute, may
'a
'claim/
sure furnished a kind
grass.
of free
such as
in a mere
is involved
others,
evident that
like
also
possession of,
maintenance of
the ex
pastured
true,
being
land. This
Town-
over,
land, provided
ercise
dominion
send’s
enjoyment
use and
of that land was
present
hostility
there be
attitude of
tl}e
not shown to have been either hostile or
*7
and exclusiveness towards
owner.”
the true
any
adverse to
is nothing
one.
There
point
emphasized
This
been further
special
show
to
a
claim of right
by what was said in
Persinger,
Foster v.
to him not vouchsafed to
who did
others
378,
Tex.Civ.App., 30 S.W.2d
writ refused.
thing.
the same
Nor did the
to
answer
page 380,
At
the court announced three the issue indicate more than that he had
requisites necessary
to show
had control
it and had used and en-
language:
in this
acquire
order
“In
joyed
length
it. The
of time that this con-
by
title
ten-year
limitation under the
stat- dition existed is not found in the answer
* * *
ute
prove by
a claimant must
a unless it can be said that it had continued
prepondei-ance
pos-
(1)
of the evidence
at all times since 1900. But what does the
land, (2) cultivation, use,
session of the
or expression “since 1900” mean? Does it
enjoyment thereof,
(3)
and
an adverse or mean
that condition existed contin-
claim
hostile
thereto.”
uously since that date? Does it mean that
See, also,
Refining
Overton
Co. v. Har-
continuously
the condition existed
at least
mon, Tex.Civ.App.,
207;
81 S.W.2d
affirm-
period
years?
for a
of ten
Or
does
ed,
holding
689
2185, supported
By
Grocery
which he could recover.
Article
Co. v.
Paris
R.C.S.,
Burks,
174;
provided
charge
when
it is
Tex.
Jack-
prepared
Guerin,
it shall be son
court has been
v.
De
Tex.
parties
respective
or their
submitted to the
attorneys
inspection
objections by
judgment
The motion
non ob-
them,
if
make such.
desire to
veredicto,
defendant,
stante
should
provided
objections
further
if no
have been sustained
trial court. We
court,
charge
are
are made to
diligently
searched the evidence
waived.
perchance
ascertain if
had not
the facts
times been
many
It has
fully developed,
nothing sug
and find
party to
aof
our courts
the failure
gested
improperly
excluded
which
court
object
charge
court. From the
can con
whole record we
issue, or
ultimate
improperly
submits
theory
ceive of
no
submitted
when
issue
such ultimate
plead
could
recover
this action as
request
no
any
makes
party
form and-the
things
made. These
make
obvious that
thereby
submission,
waives
for its
good purpose
no
could
served
revers
If, then,
waived the
point.
remanding
cause for another
recover, it fol
theory upon which he could
duty
trial.
It therefore
our
becomes
to re
have recovered
should not
lows that he
judgment
verse-the
trial
court and
his favor have
judgment
verdict
judgment
defendant,
render
trial
equivalent
It is
support in the record.
Judgment
court
have done.
is re
plead
something not
or
versed
here rendered for defendant.
it.
abandoned
proved; he had waived or
controlling issue in
Rehearing.
ultimate and
Motion for
On
presumed to have been
case
not be
will
rehearing he
plaintiff’s motion for
sup
way
as to
found
court
expression
us in the
challenges
used-by
port
judgment
Ver
under
original opinion,
we undertook
wherein
last mentioned ar
non’s Tex.Civ.St. The
pleadings and
brief résumé of his
give
supplemental, in
applicable only to
ticle is
said con-
time of
said:
“That
main,
ancillary issues to the
cidental and
plaintiff,,
veyance
(from defendant
Ormsby
issue.
controlling or ultimate
sought to
Felts did
have-
cancelled)
Ratcliffe,