Allen v. Sharp, 15163

• Decision Date: 29 September 1950
• Docket Number: No. 15163,15163
• Citation: 233 S.W.2d 485
• Parties: ALLEN v. SHARP.
• Court: Texas Court of Appeals

Page 485

233 S.W.2d 485

ALLEN v. SHARP.

No. 15163.

Court of Civil Appeals of Texas, Fort Worth.

Sept. 29, 1950.

Rehearing Denied Nov. 10, 1950.

E. S. Allen, Carl W. Goerte, and W. L. Coley, all of Fort Worth, for appellant.

Obel L. McAlister and J. R. Black, both of Fort Worth, for appellee.

SPEER, Justice.

Appellant Flora V. Allen, plaintiff below, lost her trespass to try title suit tried to the court, relying upon the ten year statute of limitation, to appellee W. A. Sharp, and this appeal followed.

The Court entered a take-nothing judgment against appellant and awarded appellee his costs. There were no facts found by the court in the judgment. No request was made for findings of fact and conclusions of law and none were filed.

Appellant relies upon nine points of assigned error. In varied forms she complains because: (1) There was a condition precedent in the quitclaim deed under which appellee claims title, which condition was never performed; (2) the testimony was insufficient to support the take-nothing judgment entered by the court and that the evidence required a judgment in appellant's favor. Other purported points of error consist of arguments and assigned reasons why appellant should have recovered.

The deceased father and mother of appellant and her six brothers and sisters owned several hundred acres of land in Tarrant County. After the death of said ancestors, the seven adult children mutually partitioned the land, executed deeds to that part awarded to and accepted by each, under date of September 3, 1924. There was a difference in the value per acre of parts of the land and some received more acres than others.

The deed from six of the heirs to appellant Flora V. Allen conveyed by field notes 144.60 acres, being parts of three surveys. The north boundary line in the description definitely dips south, west and north so as to exclude the 7.64 acres known as the J. W. Haynes survey. This small tract was patented by the State to Haynes, obviously as 'scrap land' not covered by previous patents in that area. The land in controversy is very rough, filled with gullies and rocks, yet had a small quantity of surface containing grass. It has very little value. It was enclosed in the ancestors' pasture by a fence extending along the whole north line of the large tract of acreage, but was never fenced on the east, south and west sides. All of the heirs knew of these conditions when they partitioned the estate. This 7.64 acre tract is the land in controversy.

Apparently appellant does not claim that her period of limitation referable to the 7.64 acre tract began when she took possession of the part deeded to her by her brothers and sisters in the partition deed. The partition deed described the land intended to be passed thereby in specific terms of field notes which definitely excluded the 7.64 acres here in controversy. In fact she could not properly make such a claim in the absence of a showing that her possession, use and ownership was of such a character within itself as to furnish notice of an adverse claim of title to the owner. McCall v. Grogan-Cochran Lumber Co., 143 Tex. 490, 186 S.W.2d 677.

Because of differences in valuations of the parts taken by each, five of the heirs, including appellant Flora V. Allen, on September 3, 1924 (same date of the partition deeds), executed a quitclaim deed covering the 7.64 acre Haynes survey to a sister, Lizzie D. Browning and a brother, J. Clarence Allen. In the quitclaim deed we find this provision: 'But it is expressly agreed and understood between the grantors and grantees herein that if the grantees desire or if requested by the owner or owners of the adjoining land, to fence the above described tract of land, they must fence the entire tract at their own expense.'

There is no testimony in the record that the grantees in the above deed ever desired to fence the small tract conveyed to them until in 1945 and there is evidence from which the court could find expressly or impliedly that appellant, who owned the adjoining land, never requested grantees to fence the tract. Appellant argues here that the quoted provision in the quitclaim deed constituted a condition precedent to title passing to the grantees therein; that the condition was never performed and that no title passed. However, appellant does not claim title solely on this account but claims under the 10 year statute of limitation, which phase we shall presently discuss.

We do not believe the quoted provision in the quitclaim deed is material to this appeal. This for the reason appellant does not rely solely upon a failure to perform that condition for title. Indeed, if such title as the grantors had did not pass by the deed, it would have remained in all five of the grantors (appellant and her four brothers and sisters) and not in appellant alone, and she could not have had judgment for title against the remaining four grantors since they were not parties to this suit. It is a well recognized rule of law that if title appears to be in some person or persons other than plaintiff or defendant, the plaintiff cannot recover title in a trespass to try title suit as against any one and when plaintiff cannot recover under his pleadings and proof the defendant is entitled to judgment. But since appellant here relies in part for reversal upon the contention that the above quoted condition in the deed executed by her is and was a condition precedent, we shall overrule the contention with only a brief comment.

A condition precedent in a deed or contract is one which has the effect of precluding the passing of title to grantee until the condition has been performed or fulfilled. 12 Tex.Jur., p. 126, sec. 83. The very language used in the instrument conclusively shows it was a covenant subsequently to be performed under named conditions. Appellant's own testimony shows that she so considered it to be an obligation or covenant that grantee would perform...