Ball v. Filba

• Decision Date: 08 January 1913
• Citation: 153 S.W. 685
• Parties: BALL v. FILBA et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 685

153 S.W. 685

BALL v. FILBA et al.^†

Court of Civil Appeals of Texas. Austin.

January 8, 1913.

Rehearing Denied February 12, 1913.

Appeal from District Court, Freestone County; H. B. Daviss, Judge.

Action by W. J. Filba and others against P. D. C. Ball. Judgment for plaintiffs, and defendant appeals. Affirmed.

W. R. Boyd, of Teague, and Joe A. Worsham, of Dallas, for appellant. Simkins & Simkins, of Corsicana, for appellees.

RICE, J.

This was a suit brought by appellees against appellant to remove cloud and quiet title to 160 acres of land out of the Aguillera 11-league grant in Freestone county, basing their right to do so upon the 10-year statute of limitation, describing the land sought to be recovered by metes and bounds, and asking that the land so described be set aside to them, but, in the event that this could not be done, that the court should set aside to them 160 acres out of said grant, including their improvements.

Defendant pleaded the general issue. It appears from the evidence that in January, 1895, W. J. Filba, one of the appellees herein, and one G. M. Lawson moved upon the Aguillera grant, with the intention of claiming title to 160 acres each by virtue of the 10-year statute of limitation; that they each built a house and placed in cultivation, the former some 20 acres, and the latter about 10 acres, using, cultivating, and claiming the same as their own. Before the expiration of 10 years, however, Filba acknowledged, in writing, the ownership of the land in others, agreeing to pay rent therefor; but there was no such acknowledgment on the part of Lawson, who, in 1900, sold his claim to Filba, and Filba thereafter claimed the same as his own by reason of this purchase continuing to use, cultivate, and pay taxes thereon for the full period of 10 years prior to the institution of this suit.

There was a jury trial, resulting in a verdict and judgment in behalf of plaintiffs, from which this appeal is prosecuted.

The first error assigned complains of that portion of the charge wherein the court undertook to set out the contentions of plaintiffs, urging that the same was a charge upon the weight of evidence. The part of the charge so assailed reads as follows: "Plaintiffs claim title to said 160 acres, first, because of the fact that said W. J. Filba went into possession of same, or a part thereof, in January, 1895, and occupied and used the same since said date; second, from the fact that one G. M. Lawson went into possession of said land or a portion thereof, and occupied and used same, and claimed same as his own, for about five years from January, 1895, until in the year 1900, when the plaintiff W. J. Filba bought his interest in and to said land and the improvements placed thereon by said Lawson, and has occupied and used the same since." The charge then proceeds, after stating the pleadings of the defendant, to apply the law to the facts. There is no...