Burton's Heirs v. Carroll

• Decision Date: 05 March 1903
• Parties: BURTON'S HEIRS v. CARROLL et al.
• Court: Texas Supreme Court

72 S.W. 581

BURTON'S HEIRS v. CARROLL et al.

Supreme Court of Texas.

March 5, 1903.

Error from Court of Civil Appeals of Second Supreme Judicial District.

Action by Sidney J. Carroll and others against B. I. Burton's heirs for the recovery of real estate. From a judgment in favor of plaintiffs, defendants bring error. Affirmed.

E. C. Smith, Bates & Roard, and Nunn & Nunn, for plaintiffs in error. Davis & Garnett, for defendants in error.

BROWN, J.

The Court of Civil Appeals adopted the conclusions of fact filed by the trial court, which are as follows:

"(1) That B. I. Burton, to whose heirs the land in controversy was patented by patent dated December 13, 1859, died about the year 18__, leaving a will, which was duly probated in the county court of Houston county, Texas, in the year 1844, by which he gave all his estate to two of his nephews, each of whom was named B. B. Lacy, in equal portions. That one of the said B. B. Lacys, by deed dated November 17, 1851, conveyed one half of the certificate by virtue of which said land was located and patented to Thomas George, and the other of said B. B. Lacys, by his deed dated September 10, 1856, conveyed the other half of said certificate to W. H. Cundiff.

"(2) That said Thomas George, by deed dated May 22, 1856, conveyed to said W. H. Cundiff his half of said certificate, and that said Cundiff, by deed dated August 25, 1863, conveyed the land in controversy to Jas. P. Sargeant, and that the plaintiffs have a regular chain of transfer of the land from Sargeant down to themselves.

"(3) In the year 1883 the defendant R. C. Scripture owned two tracts of land adjoining the land in controversy, which he inclosed with a fence. At the same time he fenced the land in controversy, extending the fence around his own land so as to take in this. He fenced this land at the request of J. W. Jagoe, who was the agent of Mrs. Crane, one of plaintiffs' grantors, and who was then the owner of the land, and occupied and used the same by keeping stock upon it, as the tenant of Mrs. Crane, in connection with his own land, which was inclosed with it. He continued such use until July 6, 1885, when he sold his land in said inclosure to defendant C. P. Scripture, who, upon his purchase of R. C. Scripture's land, took possession of the land in controversy at the same time he did that which he had bought, and used it in connection with his own until the 30th day of January, 1894. That prior to the 30th day of January, 1894, neither R. C. nor C. P. Scripture informed Mrs. Crane, her agent, or plaintiffs, that R. C. Scripture's holding of said land as tenant of Mrs. Crane was repudiated, and they had no knowledge that the holding of the Scriptures was in hostility to them.

"(4) From the time R. C. Scripture took possession of said land as tenant of Mrs. Crane to the present time all taxes upon said land have been paid by the plaintiffs and their vendors, and the deed from W. H. Cundiff to Jas. P. Sargeant, one of the transfers in plaintiffs' chain of title, was duly registered in the deed records of Denton county on the 5th day of July, 1878; and the deed from Jas. P. Sargeant to Mrs. Crane, another of said transfers, was duly registered on the 6th day of July, 1878.

"(5) On the 30th day of January, 1894, the defendants, heirs of said B. I. Burton, including the heirs of the two B. B. Lacys, both of whom were then dead, through their attorney, leased said land to the said C. P. Scripture, who entered into a lease contract in writing, whereby he acknowledged himself to be the tenant of the heirs of said B. I. Burton, and he remained in possession of said land as such tenant from the 30th day of January, 1894, to the institution of this suit, on the ____ day of ____, 1900. That J. W. Jagoe, who was the agent of the plaintiffs in reference to this land, learned, soon after the 30th day of January, 1894, that C. P. Scripture had entered into the lease contract above mentioned."

The application for writ of error presents the two following propositions: First, there is no evidence to show that the Scriptures held the land as tenants of defendants in error; second, the possession by the plaintiffs in error for three years operated to bar the title of the defendants in error, and constituted a good defense to this action.

We are of opinion that there is sufficient evidence in the record to sustain the court's conclusions of fact that R. C. Scripture occupied the land as tenant of Mrs. Crane, and that C. P. Scripture received the possession of the land from R. C. Scripture, and continued to occupy the same for the full period of 10 years.

The solution of the second proposition depends upon the effect the 10 years' adverse possession of defendants...