Boedefeld v. Johnson

• Decision Date: 10 January 1918
• Docket Number: (No. 7468.)
• Citation: 201 S.W. 1027
• Parties: BOEDEFELD v. JOHNSON et al.
• Court: Texas Court of Appeals

201 S.W. 1027

BOEDEFELD v. JOHNSON et al.

(No. 7468.)

Court of Civil Appeals of Texas. Galveston.

January 10, 1918.

Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

Suit by A. J. Boedefeld against A. J. Johnson, O. W. Johnson, and another, in trespass to try title. Judgment for defendants, plaintiff appeals. Affirmed.

L. R. Patton, of Galveston, for appellant. Stewarts, of Galveston, for appellees.

GRAVES, J.

Appellant, A. J. Boedefeld, instituted this suit in the district court of Galveston county in trespass to try title and damages against appellees A. J., O. W., and B. F. Johnson, for the recovery of 216 acres of land, more or less, out of the Abner Van Nordstrand survey in that county; in the proof offered, however, he only asserted title to an undivided one-half of the tract, claiming as the vendee of A. S. Exline under a deed of date May 6, 1916, from the latter's executor. Under their pleas of not guilty and of limitation, the appellees' defenses were: First, that A. S. Exline, vendor of appellant, had in 1885 conveyed his interest in the tract sued for to appellee A. J. Johnson, which deed had been lost without recording; second, that their titles had matured under both the five and ten year statutes of limitation. The trial court, sitting without a jury, rendered judgment for appellees, from which this appeal is prosecuted.

No request was made for findings of fact and conclusions of law, and none were filed. The material facts may be thus summarized:

The property in controversy is 216 acres out of an 850-acre tract originally conveyed by George S. McIlhenny and wife to A. J. Johnson and A. S. Exline by general warranty deed dated February 16, 1884, recorded February 19, 1884. A 163-acre tract out of the original 850-acre tract, jointly owned by Exline and A. J. Johnson, was sold by them in 1885 to J. Atkins, Sr., for $1,000. The deed from Exline and Johnson to Atkins was made through their attorney in fact, John Caplen; such deed reciting that the 163 acres therein conveyed is adjacent and adjoining the 216 acres now owned by A. J. Johnson, reciting:

"* * * Thence * * * to the northeast corner of a tract of 216 acres belonging to A. J. Johnson, whose fence is near the line; thence parallel with the said line of A. J. Johnson's tract," etc.

The 216 acres now in controversy is the 216-acre tract adjacent to and adjoining the Atkins tract. At the same time that this deed from Johnson and Exline, through Caplen, was executed and delivered to Atkins, Johnson and Exline as principals and Caplen as surety made a bond personally signed by each of the above parties, in the sum of $1,000, payable to Atkins, conditioned that the principals would discharge a vendor's lien still retained against the land conveyed in favor of McIlhenny, their vendor. The undisputed testimony of A. J. Johnson is that the entire purchase money paid Exline was $1,000, which Exline accepted, and for which Exline conveyed to A. J. Johnson, all of Exline's interest in the 216 acres now in controversy. This deed was lost in the 1915 storm, without having been recorded. The further testimony of A. J. Johnson is that A. S. Exline was merely a figurehead, the property really belonging one-half to A. J. Johnson and the other half to John Caplen, but that Caplen's interest was taken in the name of Exline because some parties had obtained a judgment against Caplen.

A. J. Johnson held open, adverse, and peaceable possession of the entire 216 acres from 1884 to 1896, using, cultivating, and enjoying same, and paying all taxes thereon, and claiming one-half interest by virtue of the recorded deed from McIlhenny aforementioned and the remaining one-half interest by virtue of the unrecorded deed from Exline to Johnson above described. On July 1, 1896, he conveyed 50 acres out of the 216 to his son O. W. Johnson by general warranty deed, recorded September 8, 1896; while on December 24, 1908, he likewise conveyed the remaining 166 acres out of this 216-acre tract to another son B. F. Johnson, the latter deed being recorded January 23, 1909, himself continuing his former occupancy and use of the 166 acres during the interim between these two deeds to his sons.

Upon the dates of their deeds thereto, the appellees O. W. and B. F. Johnson took possession of the separate tracts thereby conveyed to each of them and thenceforth held open, adverse, and peaceable possession thereof until the date of the trial, claiming their respective tracts under such recorded deed, using, cultivating, and paying all taxes thereon; their father, A. J. Johnson, had paid all taxes on the property from 1885 until he sold it in the two separate tracts mentioned to his sons.

A. S. Exline never at any time rendered for taxation or paid any taxes on any part of the 216 acres, nor made any claim thereto, although having business dealings with and seeing A. J. Johnson every week from 1885, the date of the lost deed, until 1900, with occasional personal interviews between them extending three or four years later; likewise he met the sons O. W. and B. F. Johnson frequently during the same period of years, but never made any claim to the land, while in 1887 he personally rendered for taxation his property in Galveston county, making affidavit that the inventory, which did not include the land here involved, covered all the property he owned in the county.

As above stated, appellant claimed an undivided one-half interest in the 216 acres by virtue of a warranty deed from M. P. Exline, independent executor of A. S. Exline's estate, dated May 6, 1916, recorded May 13, 1916; but the possession and occupancy of appe...