*1 consenting creditors costs' as to debts of to be determined were fact issues expenses, re- trial, although and hence that no excess jury desired a which Merit Schumacher, supra. There is why Merit mained. Cf. explanation no was offered implied findings jury supporting evidence placed case docket had not its 18, contrary quite clearly is not shown September and' during pendency its since Black, law. The failure of as a matter of 1959. The court overruled the motion five assignee, filе the bond within by judgment signed De- continuance and Plaintiff, days contemplated by 266 did not 27, 1962, Article cember decreed that as the assets as- Company, nothing. No constitute a conversion of Clothing Merit take him, Merit, by findings signed were contended nor of fact or conclusions of law as requested by an additional judge. did this failure afford Merit or filed the trial remedy equity the Court of as The trial did not abuse its court expressly pro- Appeals. Civil Article 266 discretion in motion con overruling the assignment shall effeсtive vides that the be any in- tinuance. The record is barren of against assignor and creditors juy resulting to Merit therefrom. And on- notwithstanding assignee the failure of the question diligence we said in Fritsch requisite to execute and file the bond. 168, English Line, v. Truck Tex. M. assign- failure so does not vitiate an J. to do 856, S.W.2d prevent ment nor its effectiveness vest- Patty assignee. title in the v. ing Windham “Moreover, a trial will court 490; Mathews, Elsbury, & 62 Tex. Fant v. required grant a for con- motion 866; v. 68 Tex. S.W. Schoolherr tinuance, committing the risk Hutchins, supra. it, overruling аllega- error in when the tions the motion examined in the judgment of the Court of Civil light beyond of the record cavil show peals is reversed and that court of the trial complete diligence lack of as meas- is affirmed. pro- ured regulating rules cedure the trial of cases.” Company Clothing
Merit as a non- consenting rights creditor had no or inter property assigned
est in the for the benefit except creditors and unless there payment remaining an excess after consenting creditоrs of the amount of LAND, Petitioner, E. M. expenses and the execut debts costs v. 271; ing assignment. Article School Hutchins, 324; Moody herr v. v. Tex. TURNER, Respondent. W. R. Carroll, 510; 71 Tex. Craddock S.W. No. A-9799. Orand, 208; Schu McLane, Supreme Tex.Civ.App., macher Co. Court of Texas. 477, writ
S.W.2d hist. Feb. court of the trial implies necessary findings support all in its findings
since no of fact or conclusions requested filed the trial law were of or Lewis, Drug judge. Renfro Co. 23 A.L.R.2d implied findings This includes the assigned pay the assets were insufficient to *2 Crockett, peti- Granberry,
Adams & tioner. Crockett, respondent. Sallas, B.
J.
GREENHILL, Justice. against suit instituted R. Turner try Trial' tresрass to title. Land
E. M. had- Land found that jury which was to a trespass title, try To adverse recover years’ had or strength given must recover jury No issue was property. Wirth, judg- Hejl title. requested prior possession, but own *3 the basis 343 226 He re (1961). may entered for Turner on ment was by proving regular That was cover a chain of (1) his of conveyances sovereign, by from the by the of Civil (2) affirmed Court Waco questions superior 716. The main a title out of a common peals. proving 369 S.W.2d source, prior posses- by limitations, by prоving here are whether Turner had title sion; possession, sufficient or (4) proving prior was and that whether judgment; whether had not abandoned. to entitle him to had, abandoned; ramifications, Prior has other if was not whether, pos alleged existed but we are here dealing issues of fact with assuming upon Turn- questions, burden session under a deed (though these Turner findings conveyance deed was er to thereon. ineffectual as a obtain fact acres), trespasser, and a Land. 44 petition of Turner’s desсribed acres open apparent, outset, in disclaimed as It is at the but Land court that under case, proof made in this to all but 44 acres. record title to the acres in in question is the heirs of question belonged All the land of already Dr. E. R. B. Stokes. C. Stokes to in the M. Love R. It was C. Stokes. J. conveyed the E. when 44 acres to B. Stokes County, Survey, some five to sev- Houston conveyance plaintiff he executed the to the Crockett, Sep- en miles Texas. west of Turner. And the from of grant the widow a tember R. executed Stokes of C. E. B. Stokes to the defendant Land did not deed E. B. The deed con- to Dr. Stokes. convey the acres. veyed acres land and included the of question. 44 acres here in Dr. Stokes plaintiff prove Turner did a widow, thereafter died. His exe- common source of title R. Stokes. C. cuted a to deed 93.6 acres to the defendant prima he, And he made a facie case when property conveyed E. M. Land. The to plaintiff, first introduced the deed from survey Land im- the same but was the common source to himself of mediately to the south here of the 44 acres which pri- included acres. But the 44 in question. The deed from Mrs. Stokes upon ma facie case was refuted the intro to Land did not include the 44 acres. Land duction conveyance of the of purchased also Mrs. real- Stokes other from acres to Dr. E. B. Stokes. ty immediately acres. to west of the 44 prove So Turner regular failed to a chain In November of after the deed conveyаnces sovereign, from the he fail- from R. Dr. E. B C. Stokes to Stokes prove superior ed to title out of a common conveyed Stokes, acres to E. Dr. B. source, pleaded proved and he neither nor R. Stokes C. executed deed to acres title by limitation. It became his therefore Survey plaintiff in the Love M. to J. prove prior possession. burden to Turner. The 44 acres was included within conveyed, the 180 acres which or Because the courts below Stokes have sustained purрorted convey, prior posses- to Turner. The 44 Turner’s claim on the basis sion, acres involved is the southernmost evidence is here set out rather ful- conveyance ly. purposes opinion, 180-acre Stokes For of this we shall from Turner, adjacent and the 44 acres was treat Turner’s evidence of immediately land owned E. tract him and M. Land 180-acre which was deeded to plaintiff the south and west. The Turner which included south 44 acres as evi- these also question. owned land to the north the 180- еnce of the land in knowledge acre tract. Land defendant had no any, occupancy, the'operation until late As to the time of if of the saw- mill, did operated Turner he said R. “about 1922 or- 1923”; testify on of the infirmities that it was account erected about 1920 and. testify as age. Reynolds, His sons did removed in his advanced 1923. Mr. Surveyor bought and others. County as the mill about well ’33: “He tract, didn’t move it on our he moved it on. rural and conceded the land was It is tract.” The adjoining Turner- to have Turner never claimed uncleared. sold the timber the 180-acre tract to did to have it. Nor he claim lived Reynolds, Reynolds it in cut or- pasture or as for cat- farming it for used *4 1933. Turner also sold A. timber to E.. pri- His contention is that he used tle. Hurley, formerly operated who a sawmill purpose timber. marily for the growing - area,” Hurley “in this and cut the timber upon paid proved He the taxes that he in 1940. acres, from 1919 including the the son, The younger Turner, A.W. went through 1961. to college graduated off and in He- Turner, son, testified plaintiff’s Rufus away was аlso the from Crockett area from. Wesley Chapel to the family that the moved to he 1951 when to returned Crockett.. community, in in the land is which situated Between he was on the 180> year conveyance from R. the of the only acres or three times. On four those- Turner. n C. to the R. Stokes occasions, he had taken his father out to land family nearby resided on The Turner land; at they look the walked over it Survey, not on in E. Gossett the but except portion, for extreme south away family moved tract. lоcated). (where the 44 par- acres are He Chapel community to Wesley ticularly remembered going out once after- Crockett, nearby town of Texas. inspect a any hard freeze for timber- the 44 planted on family garden a small damage. He testified about some fences.. garden in question. But when the acres That will testimony be noted below. main- planted, was and how long Minns, family Stanley surveyor, Mr. a tained, local was not tes- shown. Since surveyed tified that away in the he the land рresumed, moved it is 1960 for- map- prepared testimony, not Turner. He that it was con- light of Rufus, plat son, used the trial.. during was tinued after that time. This Bry- “very He described the land being left Crockett and lived Lufkin Pasadena, Texas, an, brushy throughout on all The- He courses.” Texas. moved part southern to reside the 44 acres August and continued were] [where shape. was in bad particularly He Asked if the- being could not remember on there. grazing, was suitable for he said there the land between 1941 parts get through; were cattle could a saw- testified that his father built He “they generally it all graze could on son, he, the and that mill on 180 acres right.” gravel on the pit There was 44- examination, how- at it. On worked cross acres with small trees it. There- around ever, on a he located the site the mill pines, hickory were and oaks. plat upon point at a near but map or not relo- Asked condition tract. Later the mill about the and. 180-acre was thereon, he any improvements said he- “right in this area here” (referring сated mainly while- place plat), of the around its boundaries to a on a “due south went is, survey. point He found one two map used making Point C.” C trial, struc- boundary “clearings.” of the Asked if there were in the west line said, tures, syrup mill in place he he said he found old tract. At another 180-acre sawmill He into- was here. The the northwest corner. did “The sawmill over tract, but tract.” interior of the 44-acre said! removed from the 180-acre been leases, placed many large gas there could not have been fields. the oil and had been making survey County. his he saw no houses or record in Houston "barns. The defendant Land testified that when purchased he
There west land in late it and the side his a fence acres, being and a fence 44-acre tract were used one along John- son, boundary. Stokes, grazing. «astern fence on There was no tenant of for Mrs. boundary. purchased property his grazing northern He found evidence Land boundary, January, of an old fence on the northern cattlе. When Land entered fenced; Except purchased hut it was down. some the land he corner, feet at the southwest was no there the land fenced included the 44-acre Land, fence on he the southern boundary, Apparently according tract.
found no evidence having testimony, thought his land included the fence, gen- every- one. bought There was an running thought old 44-acre tract. He erally thing east and west across the acres. be- under fence. There was no fence on, approximately, This was the northern tween 93.6 to the and the Land’s acres south *5 boundary This fence 44 adjoining the south acres. There was of 44 acres to the north. replaced by acres, "had in the been a new fence a at the 44 fence northern end of the same area on The but a different location. and Land built a new fence to hold his cat- new kept up built defendant fence been tle. He all around his fences all, Land. purchased land. In Land about 839 vicinity in acres from Mrs. Stokes. The Turner, son, younger W. A. remem- fence acres the 44- 839 encloses around bered 44 the old fence on north of acre and tract did so at the time the land acres, testified fence but that there was no Stokes, conveyed was to him al- Mrs. on the south joined of it where it the de- though the deed Land did not include the fendant property. Land’s 44 acres. Raymond Cornelius, son-in-law many opinions While there have been Stokeses, helped E. B. testified that he ne- Appeals this Court and the Courts of Civil gotiate the sale from Mrs. to Land Stokes prior been, possession, there has not in late Land and that he walked with times, opinion by least in this modern edge property to the western and pos- Court on the nature and extent of the showed where was property Land Land’s required prior session which is to constitute to the south and where the acres were. 180 possession. are of Civil There Courts He did not was into the land because it peals’ vary opinions which between helped pretty rough. He said he had example, For in Street widest extremes. manage Stokeses their but he never Brown, Realty Tex.Civ.App., Co. tract. remembered into the 180-acre going dism.), it was held S.W. 580 any garden He did not remember on it. He prior support judgment based on that to remembered the sales. He had timber clearly possession must be so pit, gravel gone heard of the had never but give the claimant exclusive defined as to thought to it. He an old dim lane led to property, over the and that dominion it. hаve possession actual and exclusive must sup- up very actual existed until the time of his
The
introduced evidence
Boyd
port
dispossession.
acres
At the
extreme is
his claim to
including
Miller,
refused),
paying
in
In addition to
question.
44 acres
taxes,
occupied
one
mortgaged
acres
the land for
he
occupy
year
in
had executed oil
in 1852 but did not
and in
He
time
trial around
leases
in 1941 and in 1953.
from 1853 to the
gas
thereon
releases,
possession having been
that the
mortgages,
their
as well as
It was held
had, though
possession alone,
once
continued for
strength
not
over
of his
years,
support
finding
possession]
would
a fact
should be
actual
cor
[the
apparently
poreal,
merely
for this is
not
posses
basis
constructive
presumption
sion,”
pos-
citing
Hernandez,
supra.
continued
Lea v.
of a
status
Sim
plaintiff.
ilarly,
session in
in
Refining
Humble Oil &
Co. v. Wil
coxon, Tex.Civ.App.,
opinions
prior pos-
of this
Court
writ refused), it
held that the later ac
session
always
cases have not
set out the
plaintiffs
prevail
tual
would
requisite
same
pos-
tests for the
quality of
previous
possession by
over
de
claims of
necessary
prior possession.
session
In
previous
fendants
occasional cut
many
cases,
the leading
such
ting
of timber on the land
defendants.
question appears
actual
that no
defining “possession,” Tiffany says:
to have
pos-
as whether the
raised
may say,
speaking gen-
“We
however
Reavis,
session was sufficient. House v.
erally,
one is
(1896);
S.W. 1063
Alexander
thereof,
оccupation
when he is
with
Gilliam,
(1873).
early
187
“pos-
that
was constructive
there
were two sets
refused),
adjoin-
no abandonment.
defendants owned
sessors.”
they
land,
that
there was evidence
ing
extreme there are cases
At
the other
dispute.
On one
claimed
there has been an aban-
hold
they had
timber
it.
cut
occasions
more
In
v.
donment as a matter
law.
Conn
plaintiffs
November,
into
went
In
Marshburn, Tex.Civ.App.,
169 S.W.
plaintiffs
oust-
were
actual
refused),
possessor
.the
had
December,
It
ed
the defendants
had built a
moved on the
no
there had been
held that since
house,
opened a small
cul-
had
field
had
of the
occupancy
land until
1871, and
He moved off
tivated it.
before
in-
to an
plaintiffs, plaintiffs
entitled
were
property
in 1881.
was sold
taxes
structed verdict.
property
No claim
manifested to
un-
holding
til
is the
aban-
1901. Similar
cases,
that there
many
been held
donment as a matter of
in Adels v.
law
prior possession.
fact as
was an issue of
Tex.Civ.App.,
Joseph,
request was
made
submission
special
authorities,
theory
issues
foregoing
prior
under the
Under
recovery
ground
particularly
&
Humble
Ref. Co. Wil
Oil
coxon,
considered to have been
we
Tex.Civ.App,
waived.
If
70 S.W.2d
that
assume
there was an
refused),
it
issue
fact here
we
doubtful
think
prior pоssession,
on
special
no
issue was
Turner raised an
of fact as
issue
given
requested
ground
or
possession.
thereon. This
years
from 1913 to
recovery
actual,
was therefore
only
physical possession
waived. The
Garcia
point
case was followed on this
shown
the build
on the land
Turner was
Brown,
1923, Stringfellow
Tex.Civ.App,
ing and
use of
sawmill
1920to
(1959, writ).
S.W.2d 1
no
planting
at one
before
garden
time
cutting
and the
timber in 1933 and
did
Turner
not establish his title under
open and
1940. The land was
vacant. The
theory,
and the courts below erred
north,
180-acrc tract was unfenccd on the
in holding that Turner established his title
portion
of it
44-acre
was unfenced
right
on the
south. Between
only
physical
Turner as
evidence of
acts of
holding
unnecessary
This
makes it
for us
looking
to the land was that of
at it and
pass
point
remaining
on Land’s
of error:
walking
four occasions.
three
posses
since Turner was not in actual
improvements
There were no
entered,
sion when Land
Land could suc
cultivation,
Turner’s,
and no cattle of
cessfully
by showing
defend this suit
just growing trees
brush.
outstanding legal
person.
in a
title
third
Compare:
Gilliam,
Alexander v.
39 Tex.
good
was a
deal of
There
evidence
227;
Reavis,
House v.
*8
might support
ownership
a claim of
(1896);
Refining
Humble Oil &
Co.
possession by
and constructive
Turner:
Wilcoxon,
Tex.Civ.App,
I with the It is view that result. law, failed, Turner as a matter of to estab- prior posses- theory under lish title necessity true, being is no This sion. question further and discuss posses- abandoned or not Turner whether in this suit. Nor the land involved sion of discussion of is the constructive necessary. rec- Turner is true ord shows Stokes was presumed the land. owner Stokes is McDowell, (On in constructive Dallas Patrick John peal Only), appellant. for discharge the bur- Turner failed Since prove title proof resting Atty., Turling- him to Henry Wade, den of with C. M. Dist. otherwise, prior possession Dallas, B. through ton, Atty., and Leon Asst. Dist. Turner Austin, proper Atty., to enter for Douglas, is State’s nothing. take State.
WOODLEY, Presiding Judge. theft; felony punish- is offense ment, by a enhanced conviction theft, 10 burglary with intent commit years. STEPHENS, Appellant, Odell
Wendell proved al- conviction leged. Texas, Appellee. The STATE of suit alleged the theft of a The indictment fifty value of men’s of over clothing No. 36686. about dollars from Barnett Weldon Appeals Court of Criminal of Texas. Novеmber, day 8th 1962. March was a Weldon Barnett testified that he Rehearing April Denied depart- supervisor Sanger-Harris, ment store located Preston Center ; Dallas, assigned to men’s area and was care, supervisor had the control that as men’s in that custody of all the suits department. man’s suit He identified new *9 as; up picked which had been off the street department having taken from his consent, part: without and testified in “Q. you opin- you I’ll if ask have suit, price of this ion as to the suit as fair market value of that 8th, was sold on November “A. $55.00.