104 S.W. 432 | Tex. App. | 1907
G. L. McAdams and his wife, Jennie McAdams, instituted this suit against J. B. Hooks, H. A. Hooks, S.W. Smith, Jack Dies, L. G. Roberts and Ed Carroll, to recover 160 acres of land out of the Hatton survey of 477 acres. He also sought to recover damages for the wrongful and malicious suing out of a writ of sequestration by J. B. Hooks, in a certain suit instituted by him against plaintiff McAdams for the land, and the wrongful, malicious and oppressive dispossession of himself and his wife from their home, under said writ. Plaintiffs set up fully the fact that they were in possession of the land as their homestead when they were so dispossessed under the writ of sequestration, and that having by this means ousted plaintiffs of their possession, appellee Hooks took possession of the property, and, without having any citation issued in said suit, afterwards dismissed the same. Plaintiffs further pleaded that G. L. McAdams bought the land from one Dennis Hamilton, by whom it was conveyed to him, and that he had good title under the statute of limitations of ten years, counting his own possession in connection with that of the said Dennis Hamilton. *82
Defendants pleaded the general issue and "not guilty." The other defendants, except Hooks, Dies and Smith, seem to have been made parties on account of their connection with the execution of the writ of sequestration.
Upon trial, with a jury, there was a verdict for defendants from which plaintiffs appeal.
In their brief appellants expressly waive any and all right or claim to the damages sued for, on account of their unlawful ejectment from their home, and no further reference will be made to that branch of the case.
Upon the trial the appellants requested the court to give the following charge:
"The jury are instructed that if they believe from the evidence that the defendant, J. B. Hooks, who was plaintiff in cause No. 1336, wherein he was plaintiff, and G. L. McAdams was defendant, got possession of the one hundred and sixty acres of land in this suit, by taking the same under the writ of sequestration issued out of cause No. 1336, and afterwards dismissed that suit, he would occupy now in this suit the place of plaintiff and would be required to show he held superior title to the land by a regular chain of title from the sovereignty of Texas down to himself, and unless you find he had so shown himself to be the owner of the superior title, that G. L. McAdams and wife, plaintiffs herein, are entitled to recover the 160 acres of land out of the southwest corner of the Thomas J. Hatton survey, so as to include their improvements." The refusal to give this charge is assigned as error.
The evidence showed that the appellants were in possession of apart of the land sued for, consisting of an enclosed and cultivated farm of 15 or 20 acres, with a dwelling house in which they were living, and which they had been so occupying, cultivating the farm, for several years before they were dispossessed under the writ of sequestration hereinafter referred to; that J. B. Hooks brought suit against appellants for the title and possession of the land, and sued out a writ of sequestration; that under this writ appellants were by the sheriff, with the active assistance of the said Hooks and other defendants, forcibly and violently ejected from the house and premises; that after having this done Hooks made a replevy bond and took possession of the property; that after getting possession he made no attempt to have citation issued or served upon appellants, defendants in said sequestration suit, but dismissed the same, and that he still holds possession of the property under the possession thus acquired.
At the trial defendant Hooks offered no evidence of title in himself, relying upon appellants' failure to show title under his plea of limitation as specially pleaded by them.
Upon this evidence appellants were entitled to recover, under their former possession, from which they had been ousted under the writ of sequestration, the land actually held and possessed by them, that is, the enclosed farm and improvements. (Parker v. Ft. Worth Denver City Ry. Co.,
When Hooks abandoned and dismissed his suit, in which the writ *83 of sequestration was issued under which he secured the possession held by appellants, appellants should have been reinstated in their possession, with all the advantages accruing to them from such a condition. They should have been considered, upon the trial, as still in possession, and as against appellees, who showed no title and who were mere trespassers after the dismissal of the sequestration suit, they were entitled to recover upon such possession alone, the land and premises so held by them, which embraced the land actually enclosed.
The evidence strongly tends to show that the suit was instituted against appellant by Hooks, and the property seized under the writ of sequestration, not in good faith, for the purpose of the prosecution of that suit, but really as a means of ousting appellants and getting possession of the property, and in this manner depriving them of the advantage of defending a suit from the vantage ground of such possession. Appellees can not be allowed thus to deprive appellants of the right going with their possession.
Appellees contend, in their brief, that having pleaded their limitation title appellants thereby waived all other right to recover the land, including their right based upon the former possession. In their petition appellants set out such former possession, and the ouster by appellees, as well as their title by limitation, and if the authorities relied upon by appellees were applicable in a case where the special title pleaded is a limitation title, it might fairly be said that appellants, by the allegations of their petition, sought to recover as well upon their former possession, specially pleaded, as upon the limitation title. It has been held, however, that where the title specially pleaded is a title by limitation the rule confining a party to the title thus specially pleaded does not apply. (Mayers v. Paxton,
This issue is not presented at all by the charge of the court. In such case, while the charge requested by appellants is not correct in the form presented, it was sufficient to call the court's attention to the issue, which appellants had the right to have submitted to the jury, and to require a correct charge upon the point. (Gulf, C. S. F. Ry. Co. v. Cusenberry,
The requested charge is incorrect in that it includes the entire 160 acres claimed by appellants. The evidence shows that their possession was confined to the land actually enclosed. Neither by the terms of any written instrument, nor in any other way, does it appear that either appellants or Dennis Hamilton claimed any specified land outside of the actual enclosure. The mere naked claim to 160 acres, without anything to show where it was located, further than that it was to include the improvements, was not sufficient to extend appellants' possession beyond the land enclosed. This principle also applies to appellants' claim of title by limitation.
Under the evidence as presented in the record it is doubtful if it presented the issue of limitation except as to the land under enclosure. (Titel v. Garland,
None of the other assignments present any error of which appellants can complain.
For the error pointed out in failing to charge on the issue of appellants' right to recover the land, embraced within their enclosure, upon their former possession, the judgment is reversed and the cause remanded.
Reversed and remanded.
Application for writ of error dismissed.
