Armstrong v. Oppenheimer

• Decision Date: 19 April 1892
• Citation: 19 S.W. 520
• Court: Texas Supreme Court
• Parties: ARMSTRONG <I>et al.</I> v. OPPENHEIMER <I>et al.</I>

19 S.W. 520

ARMSTRONG et al. v. OPPENHEIMER et al.

Supreme Court of Texas.

April 19, 1892.

Commissioners' decision. Section B. Appeal from district court, Bexar county; GEO. H. NOONAN, Judge.

Action by Mary H. Armstrong and others against D. and A. Oppenheimer. From a judgment for defendants, plaintiffs appeal. Modified and affirmed.

Lane & Mayfield, for appellants. John D. Morrison, for appellees.

TARLTON, J.

This was an action of trespass to try title to 738 acres of land lying in McMullen county, granted to Joseph A. Spicer. The suit was brought by Mary H. Armstrong, joined by her husband, James Armstrong, in her own right and as next friend, for the use and in the behalf of her two minor children, Fannie and Emma Coley, against D. Oppenheimer and A. Oppenheimer, and for the use and occupation of the land. The appellees pleaded, "Not guilty," and that they were possessors of the land in good faith; and that they and their vendor, Moses McLane, have had adverse possession of the premises in good faith for more than one year next before the commencement of this suit, and they and the said Moses McLane had made valuable improvements thereon; and they prayed for a decree accordingly against the plaintiffs for the value of such improvements. The plaintiffs produced in evidence a connected and regular chain of title from the grantee in the patent down to Henry Coley, to which there were no objections by defendants. They proved that Henry Coley died in 1874, leaving as his heirs at law Mary H. Armstrong, his surviving widow, and Emma and Fannie Coley, his children. It was agreed and admitted that the rental value of the land was six cents an acre per annum. The appellees' only evidence of title was a deed from Moses McLane to them for the land in controversy, dated October 14, 1887, with covenants of general warranty. They did not propose to show that Moses McLane had any title whatever to the land. The court gave judgment for appellants for the land, and for the value of the rent for two years prior to the institution of the suit, at six cents an acre per annum, and rendered a decree in favor of appellees for the value of the improvements, viz., two stock pens placed upon the land by their vendor, Moses McLane, five years before the trial of the cause, in the sum of $800; from which judgment, awarding the sum of $800 for the value of the improvements, plaintiffs below (appellants in this court) excepted, and gave notice of appeal. The following are the court's conclusions of law and fact: "First. I find from the evidence that plaintiffs have shown title to the land in controversy, and that the rental value of the same is worth six cents per acre per annum; and, as a conclusion of law therefrom, that the plaintiffs are entitled to a recovery of the land, and for the use and occupation of the same for two years prior to the institution of this suit. Second. I find from the evidence that the defendants are purchasers and possessors of the land in controversy in good faith, holding the same under a warranty deed; that their immediate vendor, Moses McLane, constructed two stock pens upon said land of the value of eight hundred dollars; and, as a conclusion of law therefrom, that the defendants are entitled to recover from the plaintiffs the value of said improvements, less the rental value of said land at six cents an acre per annum for two years prior to the institution of this suit."

We deem it necessary to advert to only one of the assignments of error, which is as follows: "The court erred in finding that defendants were possessors, in good faith, of the land in controversy, and entitled to recover the value of the improvements placed thereon by their vendor, Moses McLane, for the reason that the evidence...