Andress v. Crump, 1308-5394.

• Decision Date: 28 June 1930
• Docket Number: No. 1308-5394.,1308-5394.
• Citation: Andress v. Crump, 29 S.W.2d 1038 (Tex. 1930)
• Parties: ANDRESS et al. v. CRUMP et al.
• Court: Texas Supreme Court

Page 1038

29 S.W.2d 1038

ANDRESS et al. v. CRUMP et al.

No. 1308-5394.

Commission of Appeals of Texas, Section A.

June 28, 1930.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Action by Mrs. Lillian Andress and others against E. M. Crump and others. Judgment for defendants was affirmed [12 S.W.(2d) 1077], and plaintiffs bring error.

Reversed and remanded.

W. H. Jenkins, John B. McNamara, and James P. Alexander, all of Waco, for plaintiffs in error.

Bryan & Maxwell and Sam Dardnne, all of Waco, for defendants in error.

SHARP, J.

For a partial statement of the nature of this suit, we adopt the following from the opinion of the Court of Civil Appeals:

"This is the second appeal of this case. For former opinions, see Crump v. Andress, affirmed by this court 265 S. W. 1074, and reversed by the Supreme Court 278 S. W. 422. The suit involves the title to 200 acres of land which was originally claimed by J. P. Clements. In 1870 he married Mattie Martin, and they occupied the land as their homestead. To them were born three children. In October, 1875, J. P. Clements died, and his widow and children continued to occupy said 200 acres. At the time of J. P. Clements' death, a suit was pending in the district court of McLennan county by Mary N. Clements against J. P. Clements for a large tract of land which embraced the 200 acres. In January, 1876, this suit was compromised in so far as the 200 acres was affected, and Mary N. Clements executed a deed to same to Mattie Clements, wife of J. P. Clements, for a recited consideration of $400 paid, and said deed was promptly filed for record. In 1881, Mrs. Clements married T. B. Crump, and they lived on the land until 1888, when Mr. Crump died. There were born to Mr. and Mrs. T. B. Crump three children. In January, 1876, a 350-acre tract of land known as the Sprague tract was conveyed to the three children of J. P. Clements for the recited consideration of $3,800. About 1890, after the death of T. B. Crump, Mrs. Crump, with her six children, three by Clements and three by Crump, moved to the Sprague land, where she lived for about five years. In about 1896 she moved back to the 200-acre tract, and in 1898 she married her third husband, S. H. Crump. They lived on the 200 acres of land until 1920, and at that time she and S. H. Crump moved onto a tract owned by S. H. Crump. In 1921 Mrs. Crump conveyed the 200 acres to her son E. M. Crump. After said deed was executed, appellants, who are the heirs of the children of J. P. Clements, brought this suit, claiming that the property was the separate estate of J. P. Clements and that they, by reason of being his heirs, were entitled thereto."

This case was submitted to the jury upon special issues, and, based upon their findings, the trial court rendered a judgment in favor of the defendants in error. The case was appealed to the Court of Civil Appeals for the Tenth Supreme Judicial District and was affirmed. 12 S.W.(2d) 1077. A writ of error was granted.

The special issues submitted to the jury and their answers thereto are as follows:

"Special Issue No. 1: Did Mrs. Mattie Crump, at the time she moved off of the 200 acre tract on to the Sprague tract, or at any time while she was living on the Sprague tract, have the intention of not returning to and living on the 200 acre tract as her home? You will answer this `yes' or `no.'" To which the jury answered, "Yes."

"Special Issue No. 2: Did Mrs. Mattie Crump claim to hold possession of the 200 acres of land in controversy in her own right and name solely by purchase under the deed from Mrs. Mary N. Clements? Answer this `yes' or `no.'" To which the jury answered, "Yes."

"If you have answered Issue No. 2 `yes,' then you will answer Special Issues Nos. 3, 4 and 5, but if you have answered it `no,' then you need not answer said issues."

"Special Issue No. 3: Was such claim on the part of Mrs. Mattie Crump, if any, brought to the knowledge, directly or indirectly, of Stella Clements or her heirs? Answer `yes' or `no.'" To which the jury answered, "Yes."

"Special Issue No. 4: Was such claim on the part of Mrs. Mattie Crump, if any, brought to the knowledge, directly or indirectly, of J. P. Clements, Jr., or his heirs? Answer `yes' or `no.'" To which the jury answered, "Yes."

"Special Issue No. 5: Was such claim on the part of Mrs. Mattie Crump, if any, brought to the knowledge, directly or indirectly, of T. E. Clements or his heirs? Answer `yes' or `no.'" To which the jury answered, "Yes."

"Special Issue No. 6: Was such claim, if any, of said Mrs. Mattie Crump, brought to the knowledge, directly or indirectly, of said Stella Clements or her heirs five years or more prior to June 13, 1922? Answer `yes' or `no.'" To which the jury answered, "Yes."

"Special Issue No. 7: Was such claim of said Mrs. Mattie Crump, if any, brought to the knowledge of J. P. Clements, Jr., or his heirs, directly or indirectly, five years or more prior to June 13, 1922? Answer `Yes' or `No.'" To which the jury answered, "Yes."

"Special Issue No. 8: Was such claim of said Mrs. Mattie Crump, if any, brought to the knowledge of T. E. Clements or his heirs, directly or indirectly, five years or more prior to June 13, 1922? Answer `yes' or `No.'" To which the jury answered, "Yes."

"Special Issue No. 9: Was such claim of Mrs. Mattie Crump, if any, brought to the knowledge of Stella Clements, or her heirs, directly or indirectly, ten years or more prior to June 13, 1922? Answer `Yes' or `No.'" To which the jury answered, "Yes."

"Special Issue No. 10: Was such claim of Mrs. Mattie Crump, if any, brought to the knowledge of J. P. Clements, Jr., or his heirs, directly or indirectly, ten years or more prior to June 13, 1922? Answer this `yes' or `no.'" To which the jury answered, "Yes."

"Special Issue No. 11: Was such claim of Mrs. Mattie Crump, if any, brought to the knowledge of T. E. Clements or his heirs, directly or indirectly, ten years or more prior to June 13, 1922? Answer `yes' or `no.'" To which the jury answered, "yes."

"Special Issue No. 12: Prior to her conveyance to Earl Crump, by deed dated August 15, 1921, of said 200 acres, did Mrs. Mattie Crump repudiate and abandon her homestead claim as the surviving widow of her first husband, J. P. Clements, to said 200 acre tract in controversy? Answer `yes' or `no.'" To which the jury answered, "Yes."

"If you have answered Issue No. 12 `no,' you need not answer No. 13, 14 and 15, but if you have answered it `yes,' then you will answer."

"Special Issue No. 13: Did Stella Woodward, or her heirs, directly or indirectly have notice of such repudiation and abandonment by the said Mrs. Mattie Crump? If so, at what time did she, or they, receive such notice —that is, what year?" To which the jury answered, "1894."

"Special Issue No. 14: Did J. P. Clements, Jr., or his heirs, have notice directly or indirectly of such repudiation and abandonment by the said Mrs. Mattie Crump, if any? If so, at what time did he or they receive such notice? —that is, what year?" To which the jury answered, "1894."

"Special Issue No. 15: Did T. E. Clements, or his heirs, have notice directly or indirectly of such repudiation and abandonment by the said Mrs. Mattie Crump, if any? If so, at what time did he or they receive such notice? that is, what year?" To which the jury answered, "1894."

"Special Issue No. 16: Did Mrs. Mattie Crump have any agreement or understanding with Stella Clements, J. P. Clements, Jr., and T. E. Clements, at the time the 350 acre Sprague tract of land was partitioned—that is divided (among the said Clements children) —that she was surrendering any rights or interest that she had in said 350 acre tract to them, and that they, the said Stella Clements, J. P. Clements, Jr., and T. E. Clements, were surrendering to her any right or interest they claimed in the 200 acre tract which is now in controversy? Answer `yes' or `no.'" To which the jury answered, "Yes."

"Special Issue No. 17: What is the reasonable rental value of the 200 acres of land in controversy from June 13, 1922, to the present time?" To which the jury answered, "$3200.00."

The record further discloses that a partition of the Sprague 350-acre tract was made between the three children of J. P. Clements during the year 1894, and that they executed deeds to each other for their respective portions thereof.

Plaintiffs in error contend that the Court of Civil Appeals erred in holding as follows:

(a) That Mrs. Mattie Crump acquired title to the property in question by limitation through her adverse claim thereto, because the evidence shows that the property was the homestead of Mrs. Mattie Crump and she was entitled to the exclusive possession thereof as against the plaintiffs in error, the remaindermen, and Mrs. Mattie Crump could not have started the statute of limitation running in...