American Nat. Bank of Beaumont v. Wingate, 4878

• Decision Date: 17 September 1953
• Docket Number: No. 4878,4878
• Citation: 266 S.W.2d 934
• Parties: AMERICAN NAT. BANK OF BEAUMONT v. WINGATE.
• Court: Texas Court of Appeals

Page 934

266 S.W.2d 934

AMERICAN NAT. BANK OF BEAUMONT v. WINGATE.

No. 4878.

Court of Civil Appeals of Texas, Beaumont.

Sept. 17, 1953.

Rehearing Denied March 18, 1954.

Orgain, Bell & Tucker, Beaumont, for appellant.

Baldwin & Votaw, Beaumont, for appellee.

WALKER, Justice.

The plaintiff is the appellee and the defendant, the appellant.

The action is one to recover a tract of land. Plaintiff claims to have acquired title to this land by adverse possession under Article 5510, R.S. 1925. The tract is in the D. Burrell League in Jefferson County. It covers 175 acres and was formerly owned by the plaintiff. In 1937, she conveyed it (joined by her children) to the defendant bank in payment of a community debt owned by her deceased husband and herself. She testified that afterward, in 1938, she began to hold possession of the land adversely to the defendant and claims that she remained in adverse possession of the land, in person and by tenant, since that time. The action was filed on April 12, 1951.

The cause was tried to the court with a jury. Only one issue was submitted to the jury; this issue and the jury's answer were as follows:

'Do you find from a preponderance of the evidence that the plaintiff, Mrs. Elsie Wingate, either in person or by tenants, has been in peaceable, adverse and continuous possession of the property in controversy, cultivating, using and enjoying the same for a period of ten years or more prior to the filing of this suit on the 12th day of April, 1951. Answer: Yes.'

On this verdict the trial court rendered judgment (as we construe the judgment) in behalf of plaintiff against defendant, for the title to and possession of the land.

The defendant bank has appealed from this judgment. Of the Points of Error assigned, it is only necessary to consider those attacking the sufficiency of the evidence to support the judgment.

Separate findings of fact and statements of the evidence have been filed and only such reference to the facts are made in this opinion as are needed to explain our conclusions.

Opinion

(1) The defendant has title to the land under and by virtue of the plaintiff's deed unless the plaintiff's proof of adverse possession supports the verdict.

(2) The land in suit lies in an enclosure which covers approximately 520 acres. As we have stated, the land in suit covers only 175 acres. The enclosure is made by a fence; and excepting some fences appurtenant to the plaintiff's dwelling and out buildings, which enclose only a very small area, there are no partition fences within the area enclosed by the outer fence. All of the land in suit is within the general enclosure; none of it is within the fences appurtenant to the plaintiff's dwelling.

The land in suit is roughly in the form of a reverse 'L', the upper bar of which extends due north and south entirely across the enclosure from the northern fence to the southern fence; the lower bar of the 'L' extends westward, to the western fence of the enclosure. It is bordered on the south by the southern fence of the enclosure.

The land in suit thus divides the land enclosed by the outer fence. In the northwestern part of the enclosure is a tract of 172 acres. This belongs to the plaintiff, and in the northwestern corner of this (and thus at the extreme northwestern corner of the enclosure) is the plaintiff's dwelling. Immediately east of the land in suit are two rectangular tracts, each of 85 acres. The northern one belongs to the plaintiff's sister, Mrs. Maggie Wingate, and the southern one belongs to the plaintiff. The land belonging to plaintiff's sister is in the enclosure, and the plaintiff uses it (at least for grazing cattle), with her sister's consent.

The plaintiff has resided continuously in her present dwelling since a time several years prior to her deed to the defendant bank.

All this very land (that is, plaintiff's, defendant's and Mrs. Maggie Wingate's) but no more, lay within this enclosure for many years before plaintiff made her deed to the defendant; and it was used, excepting the small part farmed by Rodney Christ, for the same purposes after as well as before the plaintiff's deed to the defendant. The purposes mentioned are grazing and farming in rice and the use made of the land by the plaintiff is described in part (5) of this opinion. The practice is to farm the land in rice only at intervals, and when the land lay fallow it was used to graze cattle. The cultivation of rice has been done by C. A. Kiker since plaintiff's deed to the defendant, as a tenant either of the plaintiff or of the defendant, and he also cultivated the enclosure in rice in 1934, prior to plaintiff's deed.

The plaintiff's deed to the defendant is dated March 7, 1937. There was some testimony by the plaintiff that she first began to claim the land in 1938, when the fence about the enclosure was restored and repaired. The time in 1938 when this work was done on the fence is not very clearly shown by the evidence, and a period of at least a year very probably elapsed between the date of plaintiff's deed and the date when plaintiff says that her present claim to the land began.

There is the following evidence concerning the restoration and repair of the fence: At some time in 1938, before Rube Wingate returned to this country (and to the area in which the land in suit is situated) in August of that year, the fence along the western side of the enclosure was in bad condition and the fence elsewhere about the enclosure needed repairs, and the western fence was completely or substantially rebuilt from the northwestern corner of the southwestern corner; this newly rebuilt fence was of four strands of barbed wire; and it was placed a very short distance, some two to four feet, inside of the original fence line. The western fence bordered the Burrell-Wingate road, and there was evidence that the work done by the County in maintaining this road had widened it and required withdrawal of the fence to protect it from the County's machines. This western fence was 4,834 feet long, not much less than a mile. The northern 2,353 feet of this fence was on the plaintiff's own land, that is, the 172 acres she owned in the northwestern part of the enclosure. The southern 2,481 feet of this fence was on the land in suit. At the same time repairs were also made to the fence about the rest of the enclosure. This part of the fence was several miles long. The extent and magnitude of these repairs is not shown. In legal effect, all of this work was done by the plaintiff. There is also evidence that later, in 1938 or 1939, the plaintiff and the owners of land adjoining the enclosure on the north, acting together, restored about a mile of the northern fence of the enclosure. This northern fence was 7,870.03 feet long; so that about two-thirds of it was restored. The jury could have found that this part of the northern fence was completely rebuilt. Because of briers which had grown up along the old fence this new fence was placed a few feet inside the original fence line. The plaintiff furnished the posts used in this work and the adjoining land owners who acted with her furnished the labor and the wire. How much of this new part of the northern fence extended along the northern boundary of the land belonging to the plaintiff cannot be determined; but the jury could have found that a substantial part of it was placed on the land in suit, along its northern boundary.

Plaintiff, nor anyone else, ever told the officers of the defendant bank that the plaintiff was claiming the land; and the officers of the defendant bank who had this land in charge, did not know until a time in 1951, shortly before this suit was filed in April of that year, that the plaintiff was claiming the land. For notice of her adverse claim the plaintiff must depend upon her own uses of the land and her conduct pertaining to the land.

The defendant's first argument attacking the sufficiency of the evidence to support the judgment is that plaintiff never manifested the adverse character of her claim in such a way as to charge the defendant with notice that this adverse claim existed. Defendant says that plaintiff was bound to do this because she remained in possession, using the land after her deed as she did before that time, and the for a space of time (which, as we have shown, must have been about a year) she actually did not claim the land adversely.

(3) We agree with the defendant that if the plaintiff was in possession of the land at the time of her deed and remained in possession afterward, she was bound to give notice of the change in the nature of her possession from subservience to defendant's title to a claim adverse to that title. The rule is stated as follows in Evans v. Templeton, 69 Tex. 375 at p. 378, 6 S.W. 843, 844: 'In order to make the plea of limitation effectual in such case (the court refers to the case where the vendor/grantor remains in possession, using the land as he did before his deed), he must show some notorious act of ownership over the property, distinctly hostile to the claim of the grantee; and the adverse possession after this must continue for a sufficient length of time before suit to complete the statutory bar. The 'possession must not only be actual, but also visible, continuous, notorious, distinct, and hostile, and of such a character as to indicate unmistakably an assertion of claim of exclusive ownership in the occupant.''

This ruling was adhered to at the next term in the City of Galveston v. Williams, 69 Tex. 449, 6 S.W. 860; but it was not applied because the conduct of the vendor/grantor and his vendee/grantee gave notice of adverse claim. The rule quoted from Evans v. Templeton was later applied by the Commission of Appeals in Scott v. Rodgers, 6 S.W.2d 731, and by the Supreme Court in Kidd v. Young, 144 Tex. 322, 190 S.W.2d 65. It was applied by the Court of Civil Appeals in Epps v. Finehout, 189 S.W.2d 631, and, in a different...