Bernard River Land Development Co. v. Sweeny

• Decision Date: 09 December 1948
• Docket Number: No. 12031.,12031.
• Parties: BERNARD RIVER LAND DEVELOPMENT CO. v. SWEENY et al.
• Court: Texas Court of Appeals

216 S.W.2d 597

BERNARD RIVER LAND DEVELOPMENT CO. v. SWEENY et al.

No. 12031.

Court of Civil Appeals of Texas. Galveston.

December 9, 1948.

Rehearing Denied January 13, 1949.

Appeal from District Court, Brazoria County; G. P. Hardy, Jr., Judge.

Trespass to try title to realty by B. G. Sweeny and others against Bernard River Land Development Company and others. Judgment for plaintiffs and named defendant appeals.

Judgment affirmed.

Hugh G. Dunlap, W. J. Howard, and Felix A. Raymer, all of Houston, and T. M. Gupton, of West Columbia, and Rucks & Perry, of Angleton, for appellant.

Williams, Lee & Kennerly, of Houston, Floyd Enlow, of Angleton, and Fountain, Cox & Gaines, Joyce Cox, and John G. Seaman, all of Houston, for appellees.

GRAVES, Justice.

This was a suit in trespass to try title, brought by the appellees, heirs of one Thomas J. Sweeny, as plaintiffs, against the Bernard River Land Development Company, and others not now necessary to name, as defendants, to recover 83 acres of land lying in the west corner of the Imla Keep League in Brazoria County, Texas.

Judgment in the trial court — following a jury's verdict on special issues submitted — went for such plaintiffs, who are now the active appellees before this Court, and against such Development Company, which alone has appealed from such action below to this Court.

Title to the league of land, in which the 83 acres here involved lay, was shown to have been issued to Imla Keep by the Mexican Government on July 23, 1824.

In inveighing on appeal against the judgment so adverse to it below, appellant presents some eight points of error. The first four of these complain of the court's refusing appellant's separate motions for an instructed verdict and a judgment non obstante veredicto in its favor, upon these distinctive grounds, respectively:

1. That appellees, as plaintiffs below, "after proving common source as between themselves and Bernard River Land Development Company, went further and destroyed the presumption of title, thus raised, by stipulating and proving that the common source had no title whatever";

2. "the uncontroverted facts admitted of no reasonable conclusion other than, that, under the doctrine of presumed grant, appellees, or their predecessors-in-title, had parted with all interest, claim or demand to the lands involved herein";

3. "the tax judgment in Cause No. 26115 in the District Court of Brazoria County, the order of sale and sale thereunder, established in appellant and its predecessors a good title, independent of and superior to any title or claim held by or vested in appellees, or those under whom they hold or claim";

4. "Appellants' motions for instructed verdict and for judgment non obstante veredicto were wrongfully denied, for the reason that, appellees and those under whom they claim are, as a matter of law, grounded upon public policy, estopped from now claiming title to the lands involved herein, because of the execution and filing of the affidavit by Mrs. D. Frances Sweeny (appellees' ancestor and predecessor-in-title) denying ownership of the lands now sued for, as a predicate for establishing her claim of right to pension from the State of Texas."

Points 5 and 6, respectively, complain of the closing argument of appellees' counsel. Mr. Cox, to the jury, and of an alleged individual statement made to it during the jury's deliberation by juror Bill Petteway, as having been materially prejudicial to it.

Through Point 7, it is contended that the court reversibly erred in excluding testimony from appellant's witness, R. D. McDonald, to the effect that he — in originally purchasing the land here involved — had relied upon the late Honorable Clarence Wharton's opinion that the title to such land was good; since such opinion would materially have sustained "the presumption-of-a-grant doctrine, as a matter of law, relied upon by Appellant".

Concluding Point 8 asserts this: "the jury's answers to Special Issues Nos. 3, 4, 5, 6, 7 and 8 were without any evidence to support them, and, in the alternative, were so completely against the great weight and preponderance of the evidence as to be manifestly wrong".

After careful consideration of the extended record, aided by able briefs and oral arguments from both sides, this Court concludes that none of Appellant's stated contentions can be sustained, but that, on the contrary, the trial court rendered the only judgment it could have properly done, under the pleadings and evidence.

This immediate determination of the overall result of so extended and complicated a controversy has been made possible, by the admirable reduction by the litigants in their briefs of their differences over both the structural and procedural questions of law involved to the lowest common denominator thereof.

From these it is made clear that both parties claimed the 83-acre tract involved down and under John Sweeny, Sr., and Nancy, his wife, who owned and occupied the John Sweeny plantation from some time about 1830 until their respective deaths, which occurred prior to December 1st of 1855. Among other children, their son, Thomas J. Sweeny, whose wife was D. Frances Sweeny, and their daughter, Sophia Sweeny, whose husband was John McGrew, by inheritance and purchase acquired from their parents all of such John Sweeny plantation, containing about 1100 acres, partly in the Keep and partly in the adjoining Junior Breen surveys, in the respective proportions of about 3/5 to Thomas Sweeny and about 2/5 to Sophia Sweeny, in undivided portions.

Up to the point stated, there seems to be no material dispute between the parties to this appeal; further, none as to the evident fact that both sides (appellant having acquired Sophia Sweeny McGrew's interest, and the appellees being all the heirs of Thomas J. Sweeny), claim under such original John Sweeny, Sr., in that the titles of them both rest upon John Sweeny's title to such plantation tract that was so left to their children by himself and his wife when they died; that plantation is shown to have been composed of two 1/8 leagues — one each in the adjoining Breen and Keep surveys — aggregating about 1100 acres.

Then, with the title to the whole of the John Sweeny, Sr., plantation having become thus vested in his two children, Thomas J. Sweeny and Sophia Sweeny, in the undivided interests indicated, there began inter sese between those two in their partitioning of such undivided interests between them, the transactions out of which this suit directly stemmed — notably, those of 1855 and 1856. This much of its background leads directly to appellant's position under its quoted first point of error, by which it contends that — to use their own language — "plaintiffs below (appellees here), upon whom rested the full burden of establishing their title, failed to connect themselves with the Sovereignty of the soil, or to show any title in themselves or their predecessors, and, for all practical intents and purposes, stipulated themselves out of Court."

The stipulation was this:

"It is stipulated that if the County Clerk of Brazoria County, Texas, who is the custodian of the deed records and conveyances, were present, he would testify as follows: That John Sweeny, Sr., does not of record connect his title with Imla Keep or the sovereignty of the soil.

"It is also stipulated that, prior to the adoption of the common law by the Republic of Texas in 1840, sales of real estate could be evidenced by parol agreements, and that is to say without writing."

Without extended discussion of it, this assignment is overruled, upon the holding that, under the attending facts, it cannot be given the effect of stipulating appellees out of court; on the contrary, it is plainly made to appear that neither appellant nor appellees at any time conceded that the title of John Sweeny, Sr., to his plantation was not in him; indeed, this stipulation — upon its face — recites only that the County Clerk would have testified that John Sweeny did not of record connect his title with Imla Keep, or the sovereignty of the soil, not that the appellees admitted or asserted that in fact he never had such title; contrarily, by both their pleadings, and throughout their proof, they insisted that John Sweeny did hold such title, and that both appellant and they themselves claimed down under it;

Further, the quoted stipulation clearly had reference to a matter of procedural convenience, and not to a giving up by the appellees of the very case they had declared upon — that is, of having inherited a good title to the 83 acres down under both John Sweeny, Sr., and his son, Thomas J. Sweeny, and in doing so, they neither claimed nor undertook to prove a title back of John Sweeny to the sovereignty of the soil — having introduced the patent to the Keep league merely as the basis for a necessary description of the land they were suing for.

So that, they thus rested their whole case upon (1) the proof of the land's location, (2) that they acquired the specific 83 acres under the 1858 deed of partition of the John Sweeny plantation from Sophia Sweeny McGrew and her husband to themselves, and (3) that appellant itself claimed under the McGrews and by the alleged lost deed, or other transactions, under the appellees themselves, as well as further by limitation.

In this state of the record, it is held that appellant was bound to the validity of appellees' record title to the land, by the doctrine of common source, and the legal estoppels to claim otherwise it entails. Campbell v. McLoughlin, Tex.Civ. App., 270 S.W. 257; Campbell v. McLaughlin, Tex.Com.App., 280 S.W. 189, 190; Carter & Bro. v. Rhoden, Tex.Civ. App., 72 S.W.2d 620; Corzine's Heirs v. Williams, 85 Tex. 499, 22 S.W. 399; De La Vega v. League, 64 Tex. 205; Ellis v. Lewis, Tex.Civ.App., 81 S.W. 1034; Federal Land Bank v. Brooks, 135 Tex. 370, 143 S.W.2d 928; Glover v. Thomas, 75 Tex. 506, 12 S.W. 684; House v. Reavis, 89 Tex....