Barnes v. Lightfoot

• Decision Date: 03 April 1901
• Citation: 62 S.W. 564
• Parties: BARNES et al. v. LIGHTFOOT.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

62 S.W. 564

BARNES et al. v. LIGHTFOOT.¹

Court of Civil Appeals of Texas.

April 3, 1901.

Appeal from district court, Johnson county; J. M. Hall, Judge.

Suit by B. C. Lightfoot against Moses Barnes and others. From a judgment in favor of plaintiff, defendants appeal. Modified.

Henry, Brown & Patton and J. M. Moore, for appellants. P. B. Ward and S. C. Padelford, for appellee.

FLY, J.

Appellee instituted an action of trespass to try title against T. H. Oliver, W. J. Williams, and S. L. Fowler to recover two tracts of land, containing 174 acres in the aggregate, and by an amended petition vouched in his immediate vendors, J. C. Le Compte and L. H. Le Compte, his wife, and B. B. Ray and wife, and Moses Barnes, the vendors of Le Compte, all of whom had made warranty deeds to the land. Oliver, Williams, and Fowler disclaimed as to all the land except a narrow strip, 1,320 varas long, containing 16 acres, more or less, lying between their land and that of appellee, and pleaded three, five, and ten years' limitations. A trial by jury resulted in a verdict and judgment in favor of Oliver, Williams, and Fowler for the strip of land claimed by them, and in favor of appellee against Le Compte and Barnes for $477, and against Ray for $212, and that Le Compte recover of Barnes $477, and of Ray $212, and that Ray recover of Barnes $212. The appeal was perfected by J. C. Le Compte and Moses Barnes.

The trial developed a contest over a boundary line between appellee and Oliver, Williams, and Fowler, and the court instructed a verdict for those defendants on the issue of boundary. We will dispose of the cross assignment of appellee complaining of the instruction by saying that the line claimed by Oliver, Williams, and Fowler was shown to have been the one laid out by the surveyor when the original tract was being subdivided, and had been acquiesced in and agreed to by the owners of both tracts, and had been held adversely by the defendants last named, so as to cover fully all the requirements of the statute, for a period of more than 15 years. There was no conflict in the testimony on the subject of boundary, and the court properly instructed a verdict against appellee on that issue.

The second cross assignment of appellee raises a question as to the costs, all of which, as between appellee and the original defendants, were assessed against appellee. This suit was filed on July 3, 1897, and no disclaimer was entered by the defendants until December 13, 1899. Under decisions of the supreme court, this would render Oliver, Williams, and Fowler liable for all costs up to the time of filing the disclaimer. Keyser v. Meusback, 77 Tex. 69, 13 S. W. 967; Bexar Co. v. Voght, 91 Tex. 286, 43 S. W. 14. The proof established a sale of a certain number of acres of land at a certain price per acre, and under proper pleadings the judgment against appellant would be sustained, but there are no pleadings upon which the verdict and judgment can be based. Appellee vouched in his vendors, immediate and remote, on a warranty of title alone; and there is no allegation of fraud or mistake, or that the vendors had warranted the quantity of...