*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, file 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 effective 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 allega- 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 creditors 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' trespass 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 proving 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 described 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 conveyances 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 purported 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- ence 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 also 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. located). (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 presumed, 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 cated 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 cattle. 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. have 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, occupation when he is with Gilliam, (1873). early 39 Tex. 227 In an intention, realized, actually of ex- case where the Court held that there had others, when, cluding occupation by “prior possession,” not been it was stated although occupation, actual the fact of right occupa- claims the of exclusive clearly unequivocally proved.” “must be tion, person occupation op- is Hernandez, (1853). Lea v. 10 Tex. 137 posing claim. The Palmer, (1857), Wilson v. 18 Tex. 592 *6 occupation involves actual is land Ry. Co., Parker v. Fort Worth & D. C. conveniently termed 'actual* 132, 71 (1888), 8 541 S.W. it was said occupation, and that not involving such that possession the actual must be con- possession.” Tiffany, ‘constructive’ 1 tinuous, or at least not In abandoned. ed., p. Property, 20, Real 3rd § Strong, Duren (1880), v. 53 Tex. 379 it was plaintiff having clearly that “the estab- foregoing, From the we conclude prior peaceable lished a possession never “prior pos that the rule that is to establish abandoned, and having the defendants session,” possession there must be an actual failed right to show pos- to disturb that property exclusive, of the which is and session, plaintiff in favor of peaceable. The “actual” in Tex should stand.” 53 Tex. at 382. Where the support “prior possession” may petitioner predecessors actual, and his “had through agents. tenants or Duren v. continuous, and exclusive Strong, Express (1880); 53 Tex. Pacific 379 land for years, more than 30 and the evi- Dunn, 85, Co. v. (1891). 81 Tex. 16 S.W. 792 dence leaves no doubt toas the fact of ac- indicated, As it has been held in some possession,” tual it was held that the claim that actual cases has been prior possession should be sustained. established In as a matter of law. other Vidaurri, Bruni 162, v. 140 Tex. 138 at 166 cases, it been held that a matter of has as (1942). S.W.2d 81 at 162-163 In Pacific law, “prior possession.” there not been has Express Dunn, Co. v. 16 S.W. Franklin, For example, Conn v. Tex.Comm. “* * * (1891), said, 792 this Court App., (1892), 19 S.W. 126 where peaceable possession exclusive and of land merely crop and went on land made a prima furnishes evidence of owner- facie year; Achille, one and Pettis v. Tex.Civ. ship, which, rebutted, if not is sufficient App., (1958, writ), 313 SW.2d 348 no * * * against trespasser or mere intrud- “possessor” prop where the had fenced the er.” 81 Tex. at 16 S.W. at 792. In erty occupied but had never it. Conn v. Franklin the Texas Commission Appeals, said, 19 S.W. 126 Wilcoxon, In Humble & Ref. Co. v. Oil “In order to Tex.Civ.App., enable (1934, recover 70 S.W.2d 218 writ

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, 148 S.W. 1154 Glenn, Tex.Sup.Ct, 65 S.W. Lockett v. posses- no writ), there had no where possessor the land and (1901), fenced where suit; sion years before and Bartee it; Patten, 48 Teagarden v. built a cabin on Bros., Tex.Civ.App., T. Carter & (1908, writ Tex.Civ.App. S.W. dism.), S.W.2d 378 where the well, built refused), possessor dug a where claimant had been out of house, cleared and cultivated years. claim for exerted no taxes, .the paid and sold timber off Mauritz, land; Tex.Civ.App., 308 Griffin v. holdings, these between it has been posses- (1957, no writ), where held on occasions that there was an cattle; pastured sor fenced the land and of fact issue whether there had Lynn Burnett, Tex.Civ.App. Bankhead, been an abandonment. Kolb large (1904, writ), (1856). Tex. 228 These cases are sum- 240,000 acres, ranch fenced a “little but left McManus, Tex.Civ.App., marized in Balli v. *7 fence, be- gap” three mile the this area refused, e.). S.W.2d 933 writ n. r. Court, cowboys. patrolled by ing the Said case, This Balli as well Holman v. must, possession course, ac- be “Such of above, Herscher, holds that where there tual, clearly and must be so defined as to possession, has may been actual it be con- give the claimant the dominion exclusive by tinued constructive if there property.” over the abandonment; e., has been no actual i. the present need not be the when Qnce actual possession of the party if opposing enters been no there has established, land has it be contin must abandonment. may by But it be uous. or continued prove One who does not that his constructive if has been by entry was disturbed another’s may possession. no abandonment of This prove has burden to he did not the that by (Tex. be illustrated Holman v. Herscher possession. holding abandon his This is the Sup.Ct., opinion officially reported), 16 not leading Sabariego of Mav the case (1891), plaintiffs S.W. 984 owned the 261, erick, 461, 8 S.Ct. 31 L.Ed. U.S. They “The Iron Roof House.” occu (1887), Supreme the U. S. Court pied it, town, leaving but left the house interprets ably Texas common agent the hands of an for rental. plain rule is law rule. Thus the that if house was locked when broke defendants possession when tiff have actual does not occupied Though and land it. the house ousted, possession, but claims constructive' physically occupied defend were not when amounting the facts must show entered, law matter of ants as a pendent possession. If ground recovery. holding the land- was of constructive entéred, outset, apparently defendant was sound. vacant when As stated at the in a trespass try case, and show that “must further title must abandoned; upon title; strength his actual recover of his own grounds have had proof otherwise he cannot said to recovery are of (1) regular possession.” even a sovereign, (2) constructive U.S. chain from the superior source, at 430. The L.Ed. title from a S.Ct. common ad- possession, verse’ Sabariego opinion (4) prior in Balli v. possession. is followed or McManus, Each Tex.Civ.App., 311 of these independent S.W.2d 933 is an ground. refused, e.). case, it n. r. Garcia that no was held if

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 possession, 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, 70 S.W.2d 218 payment of taxes the execution mort (1934, refused); Teagarden v. Pat gages gas and oil and leases. But there ten, Tex.Civ.App, S.W. prior be must to initiate refused); Doyno, with Lund v. “prior possession” trespass try to title. 315; Bacon, Tex. 91 S.W.2d Bates v. 256; S.W. Dawson v. Tum event, the evidence of linson, ; 150Tex. S.W.2d 191 possession by Turner was not sufficient to Wehrly Co., v. Humble Ref. Oil & Tex. prior possession establish as a matter of Civ.App., 64 S.W.2d 396 writ re It law. therefore was an issue of fact. The fused). 523,. Casenotes, See 12 Tex.L.Rev. burden was Turner to establish this Tex.L.Rev. 598. part finding trespass fact as of his case try Garza, to title. judgments Garcia Tex.Civ. The courts below are App, writ), reversed, it judgment is here rendered' prior possession that anwas inde- that nothing. take Turner SMITH, (concurring). Justice my agree

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. November, 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.