Brown v. Fisher

• Decision Date: 15 February 1917
• Docket Number: (No. 64.)
• Citation: 193 S.W. 357
• Parties: BROWN et al. v. FISHER.
• Court: Texas Court of Appeals

193 S.W. 357

BROWN et al. v. FISHER.

(No. 64.)

Court of Civil Appeals of Texas. Beaumont.

February 15, 1917.

Rehearing Denied March 28, 1917.

Appeal from District Court, Liberty County; J. Llewellyn, Judge.

Action by C. A. Brown and another against Wesley Fisher. Judgment for defendant, and plaintiffs appeal. Affirmed.

Stevens & Stevens, of Houston, for appellants. E. B. Pickett, Jr., of Liberty, for appellee.

HIGHTOWER, C. J.

This was an action of trespass to try title, instituted in the district court of Liberty county by C. A. Brown and A. E. Kerr, appellants, against Wesley Fisher, appellee, to recover six acres of land out of block No. 46 in the town of Dayton, formerly West Liberty, Liberty county, Tex., consisting of the west half of said block. Suit was filed on the 4th day of October, 1913. C. A. Brown, who was a tenant in common with A. E. Kerr, filed a suit in his own name at first, and afterwards, on the 6th day of December, 1915, the other cotenant, A. E. Kerr, was made a party plaintiff. Appellee, Wesley Fisher, answered by a plea of ten years' limitation, and also a plea for improvements in good faith. Appellee also set up a cross-action, which was met by a plea of not guilty on the part of appellants.

The case was tried with a jury upon special issues submitted by the court. After the return of the verdict upon special issues, judgment was entered in favor of appellee, from which appellants, after their motion for new trial was overruled, have appealed to this court.

Appellants' first assignment of error is:

"(I) Because the court erred in its charge, wherein it submitted in the second special issue to the jury to determine whether or not the defendant had peaceable and adverse possession of the land for ten years prior to the 11th day of November, 1909, since the undisputed proof showed that plaintiffs held the record title to the land, that Wesley Fisher erected no permanent improvements thereon, and did not begin to use, occupy, cultivate or enjoy the land adversely to the plaintiffs for the full period of ten years prior to November 11, 1909; said error having been previously pointed out to the court by seasonable objections prior to giving the said instruction.

"(II) Because the court erred in the third paragraph of its charge in submitting to the jury an issue as to adverse possession of the defendant for a period prior to October 14, 1913, since the undisputed evidence showed that the defendant failed to enter upon the land under a claim of right and adversely hold the same, which error in the charge of the court was seasonably pointed out and objected to by the plaintiffs before the giving of said charge to the jury."

Appellants' first proposition under this assignment is as follows:

"While the clearing of land may constitute evidence of an adverse claim, there can be no exclusive possession until the land is actually inclosed and used, hence the statute of limitation did not begin to run until Wesley Fisher, about Christmas, 1909, inclosed the land and planted the garden."

In order to a proper disposition of the above assignment, it is necessary to state, at least in substance, the evidence bearing upon appellee's claim of title to the land in controversy, based upon his claim of peaceable and adverse possession thereof for a period of ten years prior to November 11, 1909, but it will not be necessary to quote this testimony in detail.

At the outset, we might say that it was incumbent upon appellee, Wesley Fisher, to prove in the trial court that he was in peaceable and adverse possession of the land sued for ten years prior to November 11, 1909, because it was agreed in the trial court that the record title was in appellants, and that they were entitled to recover the land from appellee, unless title had vested in appellee by virtue of the ten-year statute of limitation; and it was necessary to show that title had so vested in appellee prior to November 11, 1909, because on that date he executed and acknowledged a written contract or agreement of tenancy to J. H. Herndon and E. J. Davis, appellants' predecessors in title, and, of course, the execution of such contract of tenancy had the effect in law to cut off any further claim of adverse possession on the part of appellee, subsequent to November 11, 1909.

On the question of adverse possession by appellee, it might be stated that his own testimony, and that of his witness, W. B. Jones, was the only really material testimony adduced on the trial for appellee, and it might also be correctly stated that the only testimony introduced by appellants on the issue of a material and satisfactory character was that of the witnesses, Dave Martin and Gus White, and it might be stated that appellants' witness, W. M. Babcock, testified to some few circumstances that would have a tendency to show that appellee had not had adverse possession of the land in controversy for the full period of ten years prior to November 11, 1909.

We have very carefully gone over the testimony of each witness bearing on the issue of appellee's claim of adverse possession, and have concluded that the evidence was sufficient as to warrant the jury in finding, as they did, that appellee had ten years' peaceable and adverse possession of the land in controversy prior to November 11, 1909. To state such evidence, in substance, it amounts to about this: Appellee, Wesley Fisher, moved from Ft. Bend county, Tex., to Liberty county, Tex., in the fall of 1899, either in September or about the first of October, and he shortly thereafter returned to Ft. Bend county and remained there about two weeks, after which time he came back to Liberty county, at Dayton, and, according to his testimony and that of his witness W. B. Jones, he immediately, or very soon after his return to Dayton, met W. M. Babcock, who then resided at Dayton, Liberty county, and appellee testified, in substance, and so does his witness W. B. Jones that he (appellee) entered into some kind of an agreement with Babcock, by which Babcock agreed to sell appellee the land in controversy for a consideration of $75, $5 of which appellee at the time paid Babcock; that Babcock agreed to make appellee a deed, and relying upon such agreement with Babcock, appellee immediately entered upon the land in controversy, and commenced to clear the same, that is, fell the timber, cutting and burning the brush, with a view to clearing up and putting in a farm on the land. It would be next to impossible for us to tell from the testimony of appellee alone just when it was that he entered upon this land and commenced clearing the same under the claimed agreement with Babcock, because the testimony of appellee himself on that point is not at all clear or certain, but, considered as a whole, is rather contradictory. However, looking to the testimony of his witness Jones, it appears with reasonable certainty that the entry upon the land by appellee, under this agreement with Babcock, was made about the middle of October, 1899, or at least not later than November 1, 1899. The witness Jones testified that he was present when the agreement between appellee and Babcock for the purchase of the land by appellee was made, and that this agreement was some time about the middle of October, 1899, and witness saw appellee pay Babcock the $5, and further testified that appellee thereafter immediately entered upon the land in controversy and commenced to clear and improve the same, for the purposes of a home and farm. The land in controversy was wild thicket land at the time appellee entered upon the same, was not in the actual possession of any one, and had no improvements of any character upon it; in fact, the land is referred to in the record as a thicket prior to the entry of appellee. The evidence of appellee is reasonably susceptible of the construction that from the time he first entered upon the land, he continuously and regularly kept up his work of clearing the brush and timber from the same, and that by the first of December, perhaps, of the same year, had enough of the land cleared and the brush burned to give room for his house, and for the purposes of a garden, and that he planted a garden that same winter, and that some time in the spring of the following year the frame of his house had been erected, but the testimony is indefinite as to the time the frame of the house was up. The testimony is certain, however, that appellee did not actually move in this house with his family until about a year after he first entered upon this land, but during all of that period, the testimony is reasonably clear to the effect that appellee was continuously and regularly clearing the land and fencing the same, as cleared, and that during the year 1900 he raised a crop on the land, consisting of corn, peas, sorghum, etc., and he testified, in substance, that during the first year he raised enough corn for his horses, and some other things, and that during all the year 1900 he was constantly working on the place, clearing, fencing, and working on his house, and moved his family into the house about one year after his first entry upon the land. The evidence of appellee and that of his witness Jones is definite and certain to the effect that after appellee first started his improvements on the land his possession was continuous, and the same was cultivated each and every year thereafter, and more and more of the land was cleared each year, until at the time of the trial there was in cultivation approximately six acres. Improvements placed upon the land by appellee altogether consisted of his dwelling house, which was a house made of lumber, and also a log house, and a small crib or two, a well, garden, and the cleared portion, which was fenced and used for farming purposes. Appellee testified that he had at all times claimed the land in controversy from the time he made the trade with Babcock, and that he intended to reside upon and...