Best Inv. Co. v. Hernandez

Citation479 S.W.2d 759
Decision Date30 March 1972
Docket NumberNo. 17837,17837
PartiesBEST INVESTMENT COMPANY, Appellant, v. Torivio HERNANDEZ et al., Appellees.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

John R. Bryant, Dallas, for appellant.

Benjamin Raye Collier, Stigall, Maxfield & Collier, Dallas, for appellees.


This is a trespass to try title action in which the principal question is the propriety of the trial court's action in withdrawing the case from the jury and rendering judgment denying plaintiff any relief.

Best Investment Company brought this suit against Torivio Hernandez and wife Sarah Hernandez, Frank Paloma and wife Mary Jo Paloma, B. A. Johnson, william L. Pecena, David A. Douglas, Perry R. Salisbury, W. R. Todd, Herman Sessions, Davis B. Hilton and wife Geneva B. Hilton, Dora L. Newton, Joe A. Irwin, Joe A. Irwin as trustee for or as alter ego of, or both of them, J. A. Irwin, Inc., a corporation, J. A. Irwin, Inc., a Texas corporation, Ina S. Wadlington, Ina S. Wadington as alter ego of Alta Mesa Construction Company, a corporation, and Alta Mesa Construction Company, a Texas corporation, alleging that it was the owner in fee simple of thirty-one specifically described lots or tracts of land in Dallas Texas; that the defendants had unlawfully entered upon and dispossessed it of such premises; that plaintiff was entitled to judgment decreeing that it have title and possession of the lots. Each of the defendants answered with a plea of 'not guilty' and denial of the allegations contained in plaintiff's petition. Trial was had before the court and a jury and after the plaintiff had rested the trial court sustained motions made by all of the defendants (with the exception of Joe A. Irwin, Joe A. Irwin, trustee, and J. A. Irwin, Inc., a corporation) that the case be withdrawn from the jury and that judgment be rendered denying plaintiff any relief against any of the defendants. From the judgment thus rendered Best Investment Company appeals.

In its first point on appeal appellant says: 'The trial court erred by the Judge's abusing his discretion in several ways, and each of them, as herein contended.' Appellees ask that we not consider this point of error because the same is too general, multifarious, and does not comply with Rule 418, Vernon's Texas Rules of Civil Procedure. While we agree with appellees that the point presented is not in compliance with the briefing rules in that it does not specifically point out the matter complained about, we have consistently followed the practice that the court will discuss the point if the grounds therefor upon which appellant apparently relies to support his appeal are disclosed in the statements and arguments accompanying his point on appeal. White v. Great American Reserve Ins. Co., 342 S.W.2d 793 (Tex.Civ.App., Dallas 1961); Little v. Employees Security Life Ins. Co., 343 S.W.2d 517 (Tex.Civ.App., Dallas 1961); and Covington v. City of Denison, 369 S.W.2d 824 (Tex.Civ.App., Dallas 1963). In the statement and arguments contained in appellant's brief under this point counsel for appellant quotes isolated statements made by the trial court scattered throughout the record and contends that the total effect of such statements is to cause the court to become an advocate and to embarrass counsel for appellant in his presentation of his case. Appellant's counsel candidly concedes that no single statement made by the court is sufficient to constitute error but says that the composite of all the statements should be considered as constituting such a gross abuse of the trial court's discretion as to require reversal.

It would serve no useful purpose to repeat the various statements made by the trial court. We have carefully read and considered same and are of the opinion that none of them or all of them taken together constitute error on the part of the trial court. It appears to us that the trial judge exercised a great deal of restraint, patience and judicial objectivity in his conduct of the proceedings and at no time did he cease to become a judge and assume the role of advocate. A judge is vested with broad discretion in controlling a trial and this may be reflected in both conduct and statements made by him. We find nothing in this record to support appellant's contention that the trial court's actions or statements violated the discretion vested in him. Moreover, the point of error seems to be moot since the case was withdrawn from the jury's consideration and judgment rendered by the court. Appellant's first point is overruled.

In its points 2, 3, 4 and 5 appellant charges error in the action of the court in excluding from the jury various abstracts of title filed by several of the appellees showing common source of title. In its point 6 appellant says that the court erred in excluding from the jury an agreement of common source made between appellant and Joe A. Irwin and J. A. Irwin, Inc.

Appellant offered in evidence abstract of title of Alta Mesa Construction Company and of Ina S. Wadlington as alter ego of said company; abstract of title of Ina S. Wadlington individually; abstract of title of David A. Douglas; and abstract of title of Davis B. Hilton and wife Geneva B. Hilton. Each of these abstracts showed the common source of title to be Joe A Irwin. Appellant then offered an instrument designated 'Agreement of Common Source' in which it was agreed between the attorney for Best Investment Company and Joe A.Irwin and J. A. Irwin, Inc. that 'either Joe A. Irwin or J. A. Irwin, Inc., or Joe A . Irwin and J. A. Irwin, Inc., is the common source of title and that such common source shall be deemed fully proven on the basis of this agreement; * * *.'

When abstracts of title were offered as 'an admission of common source' the trial court sustained objections thereto. When the agreement of common source was offered it was objected to as being hearsay. The court sustained the objection. Appellees argue that the court's action in refusing to admit the abstracts was not error because they were tendered for the limited purpose of showing 'an admission of common source.' They argue that the abstracts are not admissions but are merely instruments setting forth the parties' chain of title. Viewing the record as a whole we are of the opinion that these objections to the abstracts were somewhat hypertechnical and that the instruments should have been admitted into evidence to demonstrate the common source of title. Appellant in its pleadings called on appellees to file their abstracts of title. The abstracts showed that the named appellees claimed through and under Joe A. Irwin as the common source of title. These abstracts were admissible in evidence as proof of an admission from the named appellees that they claimed through Joe A. Irwin and constituted proper proof of common source, provided that appellant could connect his title with that source. Moran Corporation v. Brashear, 339 S.W.2d 557 (Tex.Civ.App., San Antonio 1960, writ ref'd); Davidson v. Gelling, 153 Tex. 56, 263 S.W.2d 940 (1954); Mortimer v. Jackson, 206 S.W. 510 (Tex.Comm'n App. 1918); and Evans v. Foster, 79 Tex. 48, 15 S.W. 170 (1890).

Moreover, in response to admissions appellees Paloma, Todd and Sessions, Douglas, Newton and Salisbury, admitted the common source of title to be either Joe Irwin or Joe A. Irwin and J. A. Irwin, Inc .

As to the instrument entitled 'Agreement of Common Source' between the attorneys for Best Investment Company and Joe A. Irwin and J. A. Irwin, Inc., such agreement was admissible as between these parties, but not binding upon any other party, and only to the extent as revealed by the instrument itself.

However, we also hold that the error on the part of the trial court in refusing to admit the abstracts and agreement into evidence was harmless error. Even had the instruments been admitted into evidence the trial court would have been justified in withdrawing the case from the jury and rendering judgment for appellees for the simple reason that appellant failed to do more than establish a common source of title.

In order for a plaintiff in a trespass to try title action to prove title from a common source it must (1) connect its title with a common source by a complete chain of title, (2) connect defendant's title to the same source, and (3) prove the superiority of its claim to that of the defendant. 56 Tex.Jur.2d, 'Trespass to Try Title', § 121, pp. 254--255; Patterson v. Metzing, 424 S.W.2d 255 (Tex.Civ.App., Corpus Christi 1967); Abram v. Southwestern Fund, 404 S.W.2d 673 (Tex.Civ.App., Tyler 1966); and Hovel v. Kaufman, 266 S.W . 858 (Tex.Civ.App., San Antonio 1924, affirmed S.Ct. 280 S.W. 185); Davis v. Gale, 330 S.W.2d 610 (Tex.Sup.1960).

As will be later discussed in subsequent points, appellant failed to meet its burden of proving the superiority of its claim to that of appellees so that any error on the part of the court in refusing to admit evidence of common source of title becomes immaterial and did not result in the rendition of an improper judgment. Rule 434, T.R.C.P.

The remainder of appellant's points of error, 7 through 16, inclusive, deal with complaints concerning the action of the trial court in refusing to admit in evidence testimony of Joe A. Irwin attempting to show beneficial title of the real property in question in J. A. Irwin, Inc.; proceedings in the bankruptcy...

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