Bruni v. Vidaurri

• Decision Date: 11 November 1942
• Docket Number: No. 7930.,7930.
• Citation: 166 S.W.2d 81
• Parties: BRUNI et al. v. VIDAURRI et al.
• Court: Texas Supreme Court

Page 81

166 S.W.2d 81

BRUNI et al. v. VIDAURRI et al.

No. 7930.

Supreme Court of Texas.

November 11, 1942.

Rehearing Denied December 16, 1942.

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Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action of trespass to try title by Antonio H. Bruni and others against Lucio Vidaurri and others. A judgment for plaintiff was reversed in part and remanded for a new trial, and affirmed in part, 154 S.W.2d 498, and the plaintiffs bring error.

Judgment of Circuit Court of Appeals reversed in part, and affirmed in part.

Hicks & Dickson and Yale Hicks, all of Laredo, and D. A. McAskill, of San Antonio, for Bruni and others.

T. M. West, of San Antonio, for Canales and others.

E. J. Dryden, of Laredo, and J. B. Robertson and Greenwood, Moody & Robertson, all of Austin, for respondents.

SMEDLEY, Commissioner.

The suit is by petitioners A. H. Bruni and others, as independent executors, trustees and devisees under the wills of A. M. Bruni and Consolacion H. Bruni, deceased, against respondents Lucio Vidaurri and one hundred sixty-nine others, being, except those joined pro forma, some of the descendants, and successors in title to descendants, of Jose Vasquez Borrego (and against many other parties who did not appeal from the trial court's judgment) for the title and possession of thirteen tracts of land in Webb and Zapata Counties, aggregating about 96,000 acres, being parts of a grant of approximately 240,000 acres made by the government of Spain to the said Jose Vasquez Borrego about the year 1750. The petition contains formal allegations of trespass to try title and also allegations of ownership by adverse possession under the five, ten and twenty-five year limitation statutes.

The district court, after several weeks of trial before a jury, withdrew the case from the jury and rendered judgment in favor of petitioners Bruni et al. against respondents Vidaurri et al. for the title and possession of the thirteen tracts of land described in the petition. Other tracts of land or interests in them were awarded by the judgment to certain of the parties, but as to them no question has been raised in the Court of Civil Appeals or in this court. Those who appealed from the trial court's judgment (and who will be designated herein respondents) disclaimed as to two of the thirteen tracts awarded to petitioners, attacking the trial court's judgment by assignments of error relating only to the other eleven tracts, which contain in the aggregate about 79,000 acres. The Court of Civil Appeals, holding that issues of fact were made by the evidence, particularly in respect to adverse possession and presumed grant, reversed the trial court's judgment as to the eleven tracts of land, and the award of costs in connection therewith, and remanded the cause for a new trial of the issues involved, affirming the trial court's judgment in all other respects. 154 S.W.2d 498.

Respondents' motion to dismiss the application for writ of error is overruled. The first motion for rehearing filed in the Court of Civil Appeals by petitioners was overruled October 1, 1941, with a written opinion. 154 S.W.2d 498. Petitioner filed a second motion for rehearing, which was overruled October 22, 1941. The application for writ of error was filed in the Court of Civil Appeals on November 21, 1941, more than thirty days after the first motion was overruled but within thirty days after the overruling of the second motion.

It clearly appears from an examination of the two opinions that the Court of Civil Appeals made at least two rulings in the second opinion that were not made in the first opinion. The new rulings related to the question of tenancy in common and to the right of petitioners to an affirmance of the trial court's judgment against a number of the respondents shown to have no title. Petitioners in their second motion for rehearing assigned error in respect to the questions discussed and decided in the second opinion and reiterated assignments made in the first motion. The second motion for rehearing was in our opinion properly filed to assign error in the new rulings and to support the application for writ of error thereafter filed. There is nothing in the record suggesting that the second motion was filed as a means of securing an extension of the time for the filing of the application for writ of error. Roth v. Murray, 105 Tex. 6, 141 S.W. 515; Tribble v. Uvalde Co., Tex.Com.App., 300 S.W. 23.

The principal question in the case, affecting all of the land in controversy, is whether the evidence conclusively proves that A. M. Bruni acquired title by adverse possession under the ten-year statute.

At a very early date, probably before the death of the original grantee, Jose Vasquez Borrego, the grant was divided into three tracts, Dolores, the upper, Corralitos, the middle, and San Ygnacio, the lower. On Borrego's death title to all of the land passed into two of his children, Fernando, a son, and Manuela, a daughter, who married Vidaurri, subject to claimed rights of Manuela's son, Jose Fernando Vidaurri. Partition was thereafter made between Fernando Borrego and Manuela Vidaurri whereby the San Ygnacio tract was set apart to Fernando and the Dolores and Corralitos tracts to Manuela Vidaurri. The eleven tracts in controversy are within the Dolores and Corralitos subdivisions.

On August 3, 1885, the widow and children of Lauriano Vidaurri, who was one of the descendants of Manuela Vidaurri, sold and conveyed to A. M. Bruni, for a recited consideration of $18,000 paid, 38,000 acres of the Borrego grant, the deed reciting that the 38,000 acres were conveyed by the grantors out of their respective interests and that the grantee should take the 38,000 acres in a solid body whenever he so desired. As early as 1886 or 1888 Bruni fenced 38,000 acres of the grant and used the same for pasturing cattle. Thereafter, and until he died in 1931, Bruni made many purchases and procured deeds from descendants and vendees of descendants of Manuela Vidaurri conveying interests in the Borrego grant. Respondents state in their briefs that by the purchases so made by Bruni and by a few purchases made by his executors, petitioners became and were the owners at the time of the trial of approximately an 88% undivided interest in the land in controversy, leaving outstanding approximately an undivided 12% interest unless title thereto has been acquired by adverse possession.

The deeds thus made to Bruni, with two or three exceptions, conveyed no specific tracts of land but merely undivided interests in the grant, that is, each deed conveyed either all or a part of the undivided interest owned by the grantor in the Borrego grant, sometimes in one or more of the subdivisions of the grant. Some of the deeds described the property conveyed as a certain number of acres undivided. The record contains the statement, which is supported by evidence and in which all counsel apparently acquiesced, that the various deeds made to Bruni by descendants and vendees of descendants of Manuela Vidaurri conveyed "according to their reading", 114,000 acres in the Borrego grant, but that those who made the deeds to Bruni actually owned by inheritance or by purchase a total of only 106,000 acres.

As Bruni acquired additional undivided interests, after his original purchase made in 1885, and his fencing in 1886 or 1888 of 38,000 acres of land within the grant, he built new fences and enclosed additional land until in the year 1901 he had enclosed all of the land in controversy herein. One of the witnesses who was familiar with Bruni's acquisition and use of the land testified that as Bruni bought interests he enclosed land equal in quantity to what he thought was the share of the person from whom he bought. Bruni developed the land into several highly improved ranches, fencing them and constructing on them houses for cow boys, fence riders and other employees, corrals, many tanks and other improvements. The fences enclosing the several ranches and pastures were maintained in good condition and remained in substantially the places where they were built prior to 1901 until Bruni's death in 1931. During all of that time, from 1901 until 1931, Bruni had the ranches and pastures well stocked with cattle and held and exercised exclusive use and possession of the land, rendered it for taxes and paid the taxes and claimed the land as his own. No one was permitted in the ranches or pastures unless he had business there. The ranches were well known as Bruni's ranches. The cattle on them carried Bruni's brand and all of the gates were marked by his name. Bruni resided in Laredo but he visited the ranches frequently. He was well known in the community, being engaged in ranching, buying and selling cattle, and other kinds of business.

Respondents offered no evidence questioning Bruni's open, continuous and exclusive use and possession of the land. Their answer to the proof of possession and use made by the evidence offered by petitioners is that it was not conclusively proven that Bruni's possession was adverse to respondents. Two reasons are strongly urged in support of this position. The first is that Bruni, through his purchases of undivided interests, became a cotenant of respondents, the owners of other undivided interests, and that there is in the record no conclusive proof of notice to respondents that Bruni had repudiated their title and was holding adversely to it or of such notoriety in his assertion of hostile claim that notice thereof would be presumed. Respondents make the further contention that the repeated acts of Bruni over a long period in purchasing undivided interest in the Borrego grant from many of the descendants of Manuela Vidaurri, and other acts of Bruni acknowledging in effect ownership of interests by certain persons claiming under Manuela Vidaurri, prove or tend to prove recognition of respondent...